EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MENESHEVA v. RUSSIA
(Application No. 59261/00)
JUDGMENT <*>
(Strasbourg, 9.III.2006)
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Menesheva v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 14 February 2006,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in an application (No. 59261/00) against
the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by Ms Olga Yevgenyevna Menesheva, a
Russian national, on 20 June 2000.
2. The Russian Government ("the Government") were represented
by Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
3. The applicant alleged ill-treatment by the police, the
absence of an effective investigation of her complaints in this
respect, unlawful arrest and detention and the absence of
effective domestic remedies in respect of the above complaints.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a decision of 15 January 2004 the Court declared the
application partly admissible.
6. The applicant and the Government each filed observations on
the merits (Rule 59 з 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 з 3 in fine), the parties replied in writing to each
other's observations.
7. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1979 and lives in Bataysk, Rostov
Region.
9. On 11 February 1999 the police started an investigation of a
murder case in which they identified L as a suspect. It was
believed that L was the applicant's boyfriend.
10. On the same day the police decided to search for L. at the
applicant's place.
11. On 12 February 1999, about midnight, the police arrived at
the applicant's flat, apparently to conduct a search, but since
they failed to produce a warrant she would not let them in.
12. On the following day, 13 February 1999, at about 4.30 p.m.
three policemen in plain clothes were waiting for the applicant at
her door. One of them produced the identity card of a police major
S and demanded to enter the applicant's flat. As they still had no
warrant the applicant again refused to let them in. The policemen
insisted and the applicant clashed with them in a heated
discussion during which both sides blurted out threats and
insults. Ultimately, the major ordered the applicant's arrest. His
subordinates, P and B, seized the applicant, turned her upside
down and, while continuing to intimidate her, threw her into a car
with no police markings on it. In the struggle the applicant was
pushed against the door and she hurt her leg and her head; she
also hit her head against the car when she was being pushed into
it. On the way major S threatened the applicant, saying that he
would beat her family and loot her flat while searching it.
13. The applicant was taken to the Zheleznodorozhnyy District
police station in Rostov-on-Don. The applicant was not informed
why she had been taken to the police station. According to the
Government's subsequent accounts, it was necessary to fill in the
official report on her forceful resistance to the police. However
in the police report it was stated that she was brought in for
questioning.
14. At the police station, the applicant was brought to the
Deputy Head of the Criminal Investigation Department who
questioned her about the whereabouts of "her husband". The
applicant told him that she had never been married, and after that
he started strangling her with his hands and several other
policemen started beating her. For about two hours they
administered kicks and blows to her legs, threw her across the
room, beat her with a baton and hit her head against the walls.
While beating her they accused her of telling lies, insulted her
and threatened her with rape and violence against her family.
15. The applicant requested that her relatives be informed
about her detention; she also requested medical assistance and
permission to contact a lawyer, but all her requests were refused.
16. At the end of the applicant's interrogation the Deputy
Prosecutor of the Zheleznodorozhnyy District, D, happened to visit
the police station and he entered the room where the applicant had
been beaten. The applicant seized this opportunity to complain
about her arrest and the beating. He listened to her and suggested
that she write him a complaint about her unlawful arrest, but he
discouraged her from complaining about ill-treatment. The
applicant claimed that she wrote her complaint on the spot and
handed it to D.
17. After that, at about 7 p.m., the applicant was taken home
because the police wanted to conduct a search in her flat. The
applicant's neighbour Z who was brought as a witness was told that
they were looking for L, and she confirmed that L did not live
there. The police insisted on searching the flat, however it
turned out that they had still no search warrant and the applicant
again refused to let them in. After a short struggle the applicant
was again seized and carried to the car upside down with her head
banging on the walls and the staircase. She was taken back to the
Zheleznodorozhnyy District police station where she was again
beaten up, intimidated and accused of hiding L. She was then
placed in a detention cell.
18. The applicant was kept in the detention cell until 2.30
p.m. on 14 February 1999. Although this fact has never been in
dispute, no record concerning this period of the applicant's
detention could be found.
19. On 14 February 1999 at about 2 p.m. the applicant was
subjected to a personal search and the keys to her flat were
seized. Later on the same day the Prosecutor of Zheleznodorozhnyy
District issued a warrant to search the applicant's flat and it
was carried out.
20. On the same day the applicant was brought before an officer
who without introducing himself told her "five days". Subsequently
the applicant learned that it was judge P of the Zheleznodorozhnyy
District Court of Rostov, and that "five days" meant a five days'
sentence for the administrative offence of forceful resistance to
the police. On the same day the applicant was taken to a special
centre for administrative detention.
21. On 18 February 1999, when the applicant's release after the
five days' detention was due, the police major S who had arrested
her checked her out from the detention centre, took her to the
Zheleznodorozhnyy District police station and ordered her to wash
the floor in the police station hallway. When she finished doing
so he released her.
22. On 19 February 1999 the applicant underwent a forensic
examination by a medical expert who established that she had
multiple bruises on the face and legs, abrasions on the face, jaw,
neck and legs, and a traumatic edema of the soft tissues of the
head.
1. Proceedings concerning ill-treatment and unlawful arrest
23. On 11 March 1999 the Human Rights Commissioner of the
Rostov Regional Governor's office filed, on the applicant's
behalf, a complaint with the Chief of the Internal Affairs
Department of the Rostov Region and another one with the
Prosecutor of the Rostov Region. They requested an investigation
of the applicant's alleged ill-treatment by the police and her
allegedly unlawful detention; they enclosed the applicant's
detailed statement of the facts and the forensic report of 19
February 1999.
24. On 15 March 1999 the applicant lodged a claim for damages
with the Bataysk Town Court of the Rostov Region alleging ill-
treatment by the police and challenging her arrest and the search
of her flat.
25. On 30 March 1999 the Deputy Chief of the Internal Affairs
Department of the Rostov Region informed the applicant that an
internal inquiry had been conducted in view of her complaint and
that her allegations had been found to be unsubstantiated. The
conclusions of the internal inquiry were forwarded to the
prosecutor's office. However, she was also informed that some
unspecified officers had been charged with disciplinary offences.
The Human Rights Commissioner received a similar reply.
26. On 12 April 1999 the applicant received a letter from the
Deputy Prosecutor of the Zheleznodorozhnyy District, D whom she
had met in the police station (see paragraph 16). He informed the
applicant that her complaint against the police had been forwarded
to him by the Rostov City Prosecutor's office and that he had
decided that no criminal investigation in respect of the accused
police officers was to be opened.
27. On 7 May 1999 the Prosecutor of the Zheleznodorozhnyy
District, Kh, informed the Bataysk Town Court, apparently
following their official enquiry, that no documents concerning the
applicant's arrest and detention could be found.
28. On 9 June 1999 the Deputy Prosecutor of the Rostov City
Prosecutor's Office confirmed that decision.
29. On 22 December 1999 the Bataysk Town Court of the Rostov
Region examined the applicant's claim and held that the search of
the applicant's flat, the initial arrest and the five days'
detention had been lawful. The court found that the police had
acted lawfully, as authorised by the prosecutor, and that it was
necessary for the investigation of the murder case. As to the
allegations of ill-treatment, the court referred to the
prosecutor's refusal to open a criminal investigation in respect
of the police officers and to the conclusion of the internal
police inquiry that no ill-treatment had been established. It
dismissed the forensic report as irrelevant and held that the
allegations of ill-treatment were unsubstantiated.
30. On 23 February 2000 the Rostov Regional Court examined the
applicant's appeal and upheld the earlier findings.
2. Appeal against the administrative detention
31. On 15 March 1999 the applicant attempted to challenge her
five days' detention before the Rostov Regional Court. She alleged
that she was not informed of the name of the officer who took the
decision to detain her and that he did not ask questions, did not
inform her of any charge against her, did not explain the purpose
of her appearance before him and did not give her a copy of his
decision concerning her detention.
32. On 17 March 1999 the same judge who imposed the five days'
detention informed the applicant that no ordinary appeal could be
brought against that decision, and that it could only be
challenged by the prosecutor's extraordinary appeal.
33. On 25 March 1999 the applicant filed a complaint with the
Zheleznodorozhnyy District Court of Rostov and the Rostov Regional
Court. She challenged the refusal to consider her claim in civil
proceedings.
34. On 26 May 1999 the President of the Rostov Regional Court
replied to the applicant that, on the evidence of the file, her
detention had been lawful as it had been imposed for the
administrative offence in accordance with substantive and
procedural law.
35. On 17 July 1999 the applicant filed another appeal with the
Rostov Regional Court against the decision on her detention.
36. On 23 August 1999 the acting President of the Rostov
Regional Court replied that no appeal against a decision on
administrative detention was provided for by law.
37. The applicant subsequently tried to challenge the above
decisions, but none of her claims were accepted, the ground given
being that the courts lacked jurisdiction over the subject matter.
The last decision in this respect was taken on 1 December 1999 by
the Rostov Regional Court.
3. Further proceedings
38. On 15 January 2003 the Prosecutor's Office of the
Zheleznodorozhnyy District instituted a criminal investigation
into the circumstances of the applicant's arrest and her overnight
detention and into her allegations of ill-treatment.
39. On 28 February 2003 the Prosecutor of the Rostov Region of
his own motion filed a request with the President of the Rostov
Regional Court to quash the decision of 14 February 1999 by which
the applicant had been convicted of an administrative offence. He
stated that the applicant's resistance to the police did not
constitute an administrative offence because the police had acted
unlawfully and that the detention was in any event a
disproportionate punishment.
40. On 5 March 2003 the President of the Rostov Regional Court
granted the request and quashed the decision on the grounds that
the judge who had convicted the applicant had not examined the
circumstances of the case and had not established whether she was
guilty of any administrative offence. It was found that no
forceful resistance had taken place, because the police were
carrying out an investigation and not safeguarding public order
when the applicant resisted. It was also held that the police had
acted in violation of the procedural law.
41. On 25 August 2003 the Prosecutor's Office of the
Zheleznodorozhnyy District terminated the criminal investigation
of the alleged ill-treatment and unlawful arrest and detention on
the ground that the police officers had not committed any unlawful
act.
42. On 3 March 2004 the Office of the Prosecutor General
quashed the termination order of 25 August 2003 and resumed the
criminal investigation concerning the ill-treatment and the
unlawful arrest. The Prosecutor's Office of the Zheleznodorozhnyy
District was given 30 days to complete the investigation under the
supervision of the Prosecutor General. This decision, in so far as
relevant, read as follows:
"[The applicant] consistently maintained that she objected to
the unlawful entry of the police into her flat and the unlawful
search in the absence of a prosecutor's warrant, and therefore had
been subjected to unlawful arrest and detention and been beaten
up...
The medical examination revealed numerous injuries caused by
beating,..., the time of origin and the cause of which corroborate
[the applicant's] statements... The investigation has not
established the circumstances in which these injuries were caused.
The reports on the administrative offence and on the
applicant's arrest of 13 February 1999... contain fraudulent
statements concerning the participation of the attesting
witnesses... These circumstances have not been fully investigated,
although they served as a basis for the applicant's administrative
arrest. The decision of 29 April 2003 dispensing with criminal
proceedings against [the police officer who issued the reports]...
is unfounded."
43. In their letter of 19 April 2004 the Government submitted
that the investigation was still in progress. The parties have not
provided any update concerning the criminal investigation
thereafter.
B. Relevant domestic law
1. Forceful resistance
The relevant provisions of the Administrative Code (Кодекс об
административных правонарушениях РСФСР), in force until 1 July
2002, read as follows:
Section 165
"Forceful resistance to a lawful order or demand by a police or
a voluntary brigade serviceman,... shall be punished by a fine of
10 to 15 times the minimum wage, ..., or by one to two years'
corrective labour..., or if these measures are considered
insufficient, by up to 15 days' imprisonment."
2. Questioning of witnesses
The Code of Criminal Procedure in force at the material time
provided, in so far as relevant, as follows:
Section 155
"A witness shall be summoned for questioning by a written
notice served on him personally, or in his absence to an adult
member of his/her family...
The notice shall contain the name of the person called as a
witness, indicate where, before whom, at what date and at what
time he is due to appear and the consequences of a failure to
appear. A witness may also be summoned by telephone or telegram."
Section 157
"The questioning of a witness takes place at the place of
investigation. An investigator may decide to question a witness at
the witness's location."
3. Administrative arrest and detention
The Constitution of the Russian Federation adopted by
referendum on 12 December 1993 provides, in so far as relevant, as
follows:
Article 22
"1. Everyone has a right to liberty and personal security.
2. Arrest, detention and placement in custody shall be subject
to a court decision. No one may be detained longer than 48 hours
before the court decision is taken."
Chapter 19 of the Administrative Code (see above) provided that
the police could subject a person to an administrative arrest to
prevent an administrative offence, to establish a person's
identity, to issue a document certifying that an administrative
offence had been committed, if it was necessary and could not be
done on the spot, and to ensure effective proceedings or the
enforcement of administrative sanctions. Section 242 provided, in
particular, that the term of administrative arrest should not
exceed three hours, except for certain categories of offenders,
including those who forcefully resisted the lawful order of the
police, who could be detained as long as necessary until their
case was considered by a district (town) judge or a police
superior. Section 240 set out the requirements for the arrest
report.
The Administrative Code did not provide for an appeal against
the administrative arrest if imposed by a judge. The relevant
provisions read as follows:
Section 266
"... The decision of a district (town) court or judge to impose
an administrative sanction is final and not subject to appeal in
the administrative proceedings..."
Section 274
"The decision of a district (town) judge to impose an
administrative sanction under Articles..., 165, ..., may be
changed or quashed by the same judge following a prosecutor's
extraordinary appeal, or by a president of a superior court, of
his own motion."
THE LAW
I. Alleged violation of Article 3 of the Convention
44. The applicant complained under Article 3 of the Convention
that she had been ill-treated by the police during her arrest and
while she was in custody at the police station. She also
complained that her allegations of ill-treatment had not been
investigated effectively, as required by the procedural obligation
imposed by the same Article. Article 3 of the Convention provides
as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
A. Alleged ill-treatment by the police
1. The parties' submissions
45. The applicant submitted that on 13 February 1999 she was
arrested in a manner contrary to Article 3 of the Convention. She
furthermore alleged that she had been beaten up upon arrival at
the police station by the officers who questioned her and then
again on the same day by the police officers when she refused to
let them search her flat. She alleged that she had sustained
injuries, such as bruises and abrasions, and that she felt
intimidated due to such treatment. She also alleged that she had
received no medical assistance thereafter.
46. The applicant presented a forensic report drawn up shortly
after her release, which mentioned injuries compatible with her
account of events.
47. The Government submitted in their memorandum of 15 March
2004 and in their letter of 19 April 2004 that the investigation
of the applicant's allegations of ill-treatment was in progress.
They informed the Court that the Office of the Prosecutor General
had reviewed the criminal file No. 3467098 concerning allegations
of abuse of authority by the police and on 3 March 2004 resumed
the investigation. They claimed that before it was finished they
could not comment on the merits of these complaints.
48. Since then the Government have made no further submissions
concerning the course of investigation or the facts established
thereby.
2. The Court's assessment
49. The Court reiterates that "[w]here an individual, when
taken in police custody, is in good health, but is found to be
injured at the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused,
failing which a clear issue arises under Article 3 of the
Convention" (see Tomasi v. France, judgment of 27 August 1992,
Series A No. 241-A, pp. 40 - 41, зз 108 - 11, and Selmouni v.
France [GC], No. 25803/94, з 87, ECHR 1999-V).
50. In assessing evidence, the Court has generally applied the
standard of proof "beyond reasonable doubt" (see Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A No. 25, pp.
64 - 65, з 161). However, such proof may follow from the
coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Where
the events in issue lie wholly, or in large part, within the
exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will
arise in respect of injuries occurring during such detention.
Indeed, the burden of proof may be regarded as resting on the
authorities to provide a satisfactory and convincing explanation
(see Ribitsch v. Austria, judgment of 4 December 1995, Series A
No. 336, з 34, Salman v. Turkey [GC], No. 21986/93, з 100, ECHR
2000-VII).
51. The Court notes that the Government did not contest the
applicant's account of events, or the forensic report. The
investigation carried out in 2003 - 2004 did not furnish any new
facts or evidence beyond what had been submitted by the applicant.
Neither did the Government provide an alternative explanation as
to how her injuries could have been inflicted. In particular, it
can be assumed as common ground that those injuries were not
sustained before the applicant was taken into police custody.
52. Furthermore, the authorities conceded that the applicant's
allegations were credible. In particular, the Prosecutor General's
office acknowledged that she had consistently maintained in full
her assertions of ill-treatment and noted that the applicant's
injuries recorded by a medical expert were compatible with her
account of events (see з 42 above).
53. The Court notes that the police expected the applicant to
provide information relating to the murder allegedly committed by
L, supposedly her boyfriend. It observes the conflicting official
statements why the applicant was taken to the police station and
concludes that she was taken there for questioning as a witness
about that crime and not in connection with a minor administrative
offence used as a pretext. This interview was not attended by the
usual procedural guarantees under Russian law, such as a record of
the interview, access to a lawyer etc., hence the Court cannot
rule out the use of force by the police to extract information
from the applicant.
54. Having regard to the applicant's consistent and detailed
allegations, corroborated by the forensic report, and in view of
the absence of any other plausible explanation as to the origin of
the injuries found on the applicant upon her release from custody,
the Court accepts that the applicant was ill-treated by the
police.
55. As to the seriousness of the acts of ill-treatment, the
Court reiterates that in order to determine whether a particular
form of ill-treatment should be qualified as torture, it must have
regard to the distinction, embodied in Article 3, between this
notion and that of inhuman or degrading treatment. It appears that
it was the intention that the Convention should, by means of this
distinction, attach a special stigma to deliberate inhuman
treatment causing very serious and cruel suffering. The Court has
previously had before it cases in which it has found that there
has been treatment which could only be described as torture (see
Aksoy v. Turkey, judgment of 18 December 1996, Reports of
Judgments and Decisions 1996-VI, p. 2279, з 64; Aydin v. Turkey,
judgment of 25 September 1997, Reports 1997-VI, pp. 1891 - 92, зз
83 - 84 and 86; Selmouni, cited above, з 105; Dikme v. Turkey, No.
20869/92, зз 94 - 96, ECHR 2000-VIII, and, among recent
authorities, Bati and Others v. Turkey, Nos. 33097/96 and
57834/00, з 116, ECHR 2004 -... (extracts)).
56. The acts complained of were such as to arouse in the
applicant feelings of fear, anguish and inferiority capable of
humiliating and debasing her and possibly breaking her physical
and moral resistance. In any event, the Court reiterates that, in
respect of persons deprived of their liberty, recourse to physical
force which has not been made strictly necessary by their own
conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 (see Selmouni,
cited above, з 99).
57. The Court finds that in the instant case the existence of
physical pain or suffering is attested by the medical expert and
the applicant's statements regarding her ill-treatment in custody.
The sequence of events also demonstrates that the pain and
suffering was inflicted on her intentionally, in particular with
the view of extracting from her information concerning L (see зз
53 - 54 above).
58. To assess the severity of the "pain or suffering" inflicted
on the applicant, the Court has regard to all the circumstances of
the case, such as the duration of the treatment, its physical or
mental effects and, as in some cases, the sex, age and state of
health of the victim (see Bati, cited above, з 120). The Court
observes that at the material time the applicant was only 19 years
old and, being a female confronted with several male policemen,
she was particularly vulnerable. Furthermore, the ill-treatment
lasted for several hours during which she was twice beaten up and
subjected to other forms of violent physical and moral impact.
59. In these circumstances, the Court concludes that, taken as
a whole and having regard to its purpose and severity, the ill-
treatment at issue amounted to torture within the meaning of
Article 3 of the Convention.
60. The Court concludes that there has been a breach of Article
3 of the Convention in this regard.
B. Alleged failure to carry out an effective investigation
1. The parties' submissions
61. The applicant submitted that immediately after the events
she lodged several requests for criminal proceedings against the
police officers involved; that she had indicated their names and
ranks and claimed that she could recognise them; that she had
attached the forensic report confirming her injuries. However,
none of her requests had succeeded and no investigation had been
carried out before her application to the Court was communicated
to the respondent Government. As for the investigation opened in
2003, the applicant did not consider it prompt or effective and,
furthermore, she was wary of the authorities' negative reaction to
the fact that she had lodged an application with the Court and
found their contacts with her intimidating. Therefore she did not
play an active role in these proceedings. She submitted that
although she had given evidence to the investigator she had never
been informed of the outcome of these proceedings.
62. The Government did not comment on the merits of this
complaint (see зз 47 - 48 above).
2. The Court's assessment
63. The Court considers, first of all, that the medical
evidence and the applicant's complaints and testimony together
raised a reasonable suspicion that her injuries could have been
caused by the police.
64. Where an individual raises an arguable claim that he or she
has been seriously ill-treated by the police in breach of Article
3, that provision, read in conjunction with the State's general
duty under Article 1 of the Convention to "secure to everyone
within their jurisdiction the rights and freedoms defined in...
[the] Convention", requires by implication that there should be an
effective official investigation. This investigation should be
capable of leading to the identification and punishment of those
responsible (see Assenov and Others, judgment of 28 October 1998,
Reports 1998-VIII, p. 3290, з 102 and Labita v. Italy [GC], No.
26772/95, з 131, ECHR 2000-IV). The minimum standards as to
effectiveness defined by the Court's case-law also include the
requirements that the investigation must be independent, impartial
and subject to public scrutiny, and that the competent authorities
must act with exemplary diligence and promptness (see, for
example, Isayeva and Others v. Russia, Nos. 57947/00, 57948/00 and
57949/00, зз 208 - 213, 24 February 2005).
65. The Court finds that a procedural obligation arose to
investigate the applicant's allegation of ill-treatment as soon as
she brought the matter before the competent authorities, i.e. the
prosecutor's office and the police superior. Her requests for an
investigation were filed within one month of the incident and
contained a detailed account of events, expressly pointed at
certain individuals and were accompanied by the forensic report
corroborating her story. However, no investigation followed. The
inquiry that took place in the Internal Department (see з 25
above), although it resulted in some disciplinary charges, did not
disclose the names of those charged or the grounds for their
punishment. For this reason alone it could not qualify as an
effective investigation, and the Government, rightly, did not
invoke it as such.
66. The investigation was only opened almost four years after
the events complained of, when the matter was brought to the
attention of the domestic authorities in connection with the
applicant's proceedings before the Court. The case was
investigated in criminal proceedings which, despite their
lateness, were not necessarily doomed to failure, since the file
already contained ample documentary evidence submitted by the
applicant. However, this investigation has not been satisfactory,
as it has failed to establish the material circumstances and to
address the questions put before it, such as the origin of the
applicant's injuries (see з 42 above).
67. On 3 March 2004 the Prosecutor General gave orders for the
investigation to be resumed, but since then there has been no
follow-up. Therefore the Court cannot but conclude that in the
past three years the authorities have not remedied the shortfalls
of which they had been acutely aware.
68. Accordingly there has been a violation of Article 3 of the
Convention on account of the lack of an effective investigation
into the applicant's allegations of ill-treatment.
II. Alleged violation of Article 13
of the Convention as regards the ill-treatment
69. The applicant also claimed to have been denied an effective
remedy in respect of her Convention complaint of ill-treatment.
She submitted that all her attempts to have the criminal
proceedings instituted failed, and so did her attempts to secure
redress through civil proceedings before the courts. She invoked
Article 13, which provides as follows:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
70. The Government made no submissions other than those under
Article 3 of the Convention.
71. The Court recalls that Article 13 of the Convention
requires that where an arguable breach of one or more of the
rights under the Convention is in issue, there should be available
to the victim a mechanism for establishing any liability of State
officials or bodies for that breach. The Contracting States are
afforded some discretion as to the manner in which they comply
with their Convention obligations under this provision. As a
general rule, if a single remedy does not by itself entirely
satisfy the requirements of Article 13, the aggregate of remedies
provided for under domestic law may do so (see, among many other
authorities, {Kudla} <*> v. Poland [GC], No. 30210/96, з 157, ECHR
2000-XI; see also {Conka} v. Belgium, No. 51564/99, з 75, ECHR
2002-I).
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
72. However, the scope of the State's obligation under Article
13 varies depending on the nature of the applicant's complaint,
and in certain situations the Convention requires a particular
remedy to be provided. Thus, in cases of suspicious death or ill-
treatment, given the fundamental importance of the rights
protected by Articles 2 and 3, Article 13 requires, in addition to
the payment of compensation where appropriate, a thorough and
effective investigation capable of leading to the identification
and punishment of those responsible (see Anguelova v. Bulgaria,
No. 38361/97, зз 161 - 162, ECHR 2002-IV; Assenov and Others v.
Bulgaria, cited above, з 114 et seq.; {Suheyla} Aydin v. Turkey,
No. 25660/94, з 208, 24 May 2005).
73. On the basis of the evidence adduced in the present case,
the Court has found that the State authorities were responsible
for the injuries sustained by the applicant on 13 February 1999.
The applicant's complaints to the domestic authorities in this
regard were based on the same evidence and were therefore
"arguable" for the purposes of Article 13 (see the Boyle and Rice
v. the United Kingdom judgment of 27 April 1988, Series A No. 131,
p. 23, з 52). The authorities thus had an obligation to carry out
an effective investigation into her allegations against the police
officers. For the reasons set out above no effective criminal
investigation can be considered to have been carried out.
Consequently, any other remedy available to the applicant,
including the claim for damages, had limited chances of success.
While the civil courts have capacity to make independent
assessment of fact, in practice the weight attached to a preceding
criminal enquiry is so important that even the most convincing
evidence to the contrary furnished by a plaintiff would often be
discarded as "irrelevant". The civil proceedings brought by the
applicant illustrate that. The court simply endorsed the
prosecutor's opinion that the applicant's claim was unmeritorious
without assessing the facts of the case (see зз 29 - 30 above).
Therefore the action for damages was, in the circumstances of the
case, only a theoretical and illusory remedy, not capable of
affording redress to the applicant.
74. The Court therefore finds that the applicant has been
denied an effective domestic remedy in respect of the ill-
treatment by the police. Consequently, there has been a violation
of Article 13 of the Convention on that account.
III. Alleged violation of Articles 5 and 6
of the Convention as regards the administrative detention
75. The applicant complained that her arrest on 13 February
1999, the overnight detention in the police station and the
subsequent five days' detention had been unlawful. These
complaints have been declared admissible under Articles 5 and 6 of
the Convention.
Article 5
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a
competent court;
(b) the lawful arrest or detention of a person for non-
compliance with the lawful order of a court or in order to secure
the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an
offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of
educational supervision or his lawful detention for the purpose of
bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or
extradition.
...
4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
Article 6
"In the determination of... any criminal charge against him,
everyone is entitled to a fair... hearing... by [a]...
tribunal..."
76. The Government acknowledged that the applicant's arrest and
detention had been unlawful. However they claimed that the
applicant had ceased to be a victim of the violations alleged
under this head. They referred to the ruling of the President of
the Rostov Regional Court of 5 March 2003 which established that
the applicant's arrest had been in breach of domestic law and
quashed the decision of 14 February 1999.
77. In the Government's view, this decision opened to the
applicant the possibility of claiming compensation in separate
civil proceedings for the non-pecuniary damage caused by the
unlawful deprivation of liberty, as provided by Sections 1070 and
1100 of the Civil Code. They consider that since the applicant
failed to bring such an action for damages she has not exhausted
domestic remedies and, accordingly, the Court must reject the
complaints relating to her detention.
78. The applicant contested the Government's position and
maintained her complaints.
79. In their objection the Government requested the Court to
find that the ruling of 5 March 2003 had affected the applicant's
status as a victim and that she must apply for compensation.
However, the Court notes that essentially the same objection has
already been put forward by the respondent Government and was
rejected by the Court in its decision on the admissibility of the
application. Accordingly, the Court will not examine the
Government's objection.
A. Lawfulness of detention
80. The Court observes from the outset that, as was not
disputed by the parties, the applicant's arrest, her overnight
detention at the police station and the subsequent five days'
administrative detention amounted to deprivation of liberty within
the meaning of Article 5 з 1 of the Convention.
81. The first question to be considered is whether the
detention was covered by any of the permitted grounds of
deprivation of liberty listed exhaustively in paragraph 1 of
Article 5. The Court observes that the applicant's detention falls
into two distinct periods, i.e. before and after her meeting with
the judge on 14 February 1999. On that day five days' detention
were imposed on the applicant in connection with the
administrative offence allegedly committed by her; accordingly,
from that point her detention had clearly defined grounds. As for
the preceding overnight detention, it remains mainly unexplained.
The Court will examine these periods separately.
1. Arrest and overnight detention
82. The Court notes that at one stage of the applicant's
detention she was formally charged with the administrative offence
and theoretically could be assumed to be detained under Section
242 of the Administrative Code until her administrative case was
heard by a judge. Nevertheless, it transpires that the true reason
why she was taken to the police station was to force her to give
information on L's case and to make her surrender the key to her
flat. Charging her with the administrative offence was clearly a
mere pretext for having her available for that interrogation.
83. In these circumstances the Court may dispense with deciding
whether the applicant's overnight detention was at all covered by
any of the sub-paragraphs of Article 5 з 1 of the Convention since
the following considerations would in any event apply.
84. Firstly, the Court observes that no documents pertaining
specifically to the applicant's initial arrest and her overnight
stay at the police station could subsequently be found (see
paragraph 27 above). It follows that for some 20 hours after the
applicant's arrest there existed no records as to who the
applicant was and what was the reason for and expected duration of
her detention. Even assuming that the police intended to press
charges for the administrative offence, this did not absolve them
from complying with such basic formalities before locking her up.
That fact in itself must be considered a most serious failing, as
it has been the Court's traditional view that the unacknowledged
detention of an individual is a complete negation of the
fundamentally important guarantees contained in Article 5 of the
Convention and discloses a most grave violation of that provision.
The absence of a record of such matters as the date, time and
location of detention, the name of the detainee, the reasons for
the detention and the name of the person effecting it must be seen
as incompatible with the requirement of lawfulness and with the
very purpose of Article 5 of the Convention (Anguelova v.
Bulgaria, cited above, з 154, and Kurt v. Turkey, judgment of 25
May 1998, Reports of Judgments and Decisions 1998-III, з 125).
85. Moreover, it can be deduced from the Government's post-
admissibility submissions that the applicant's arrest was unlawful
under domestic law (see paragraphs 39 - 40 above).
86. Against this background the Court concludes that the period
of the applicant's detention until her appearance before a judge
on 14 February 1999 did not comply with the guarantees of Article
5 з 1. There has accordingly been a violation of this Article.
2. Five days' detention on the charge
of forceful resistance to the police
87. On 14 February 1999 the applicant was brought before the
judge, who ruled that she had committed forceful resistance to the
police, an administrative offence under Section 165 of the
Administrative Code, and sentenced her to five days' imprisonment.
On 5 March 2003 this decision was declared unlawful and quashed.
It must be determined whether serving this sentence following the
conviction in the administrative proceedings complied with Article
5 without prejudging the merits of the complaint under Article 6
referring to the same decision.
88. The Court recalls the following general principles that
were stated in Benham v. the United Kingdom (judgment of 10 June
1996, Reports 1996-III, зз 40 - 42) and reiterated in other cases
(see Lloyd and Others v. the United Kingdom, Nos. 29798/96 et
seq., 1 March 2005; and Perks and Others v. the United Kingdom,
Nos. 25277/94 et seq., 12 October 1999):
"40. The main issue to be determined in the present case is
whether the disputed detention was 'lawful', including whether it
complied with 'a procedure prescribed by law'. The Convention here
essentially refers back to national law and states the obligation
to conform to the substantive and procedural rules thereof, but it
requires in addition that any deprivation of liberty should be
consistent with the purpose of Article 5, namely to protect
individuals from arbitrariness...
41. It is in the first place for the national authorities,
notably the courts, to interpret and apply domestic law. However,
since under Article 5 з 1 failure to comply with domestic law
entails a breach of the Convention, it follows that the Court can
and should exercise a certain power to review whether this law has
been complied with.
42. A period of detention will in principle be lawful if it is
carried out pursuant to a court order. A subsequent finding that
the court erred under domestic law in making the order will not
necessarily retrospectively affect the validity of the intervening
period of detention. For this reason, the Strasbourg organs have
consistently refused to uphold applications from persons convicted
of criminal offences who complain that their convictions or
sentences were found by the appellate courts to have been based on
errors of fact or law."
89. The Court observes that the five days' detention was
carried out pursuant to the order by a judge who was in principle
competent to take the decision at issue. The substantive
correctness of this order generally falls outside the Court's
review, as follows from the case law cited above. However, this
case is different from the cases where the impugned decisions were
taken by judicial authorities in good faith, following the
procedure prescribed by law. The judge in the instant case, on the
contrary, exercised his authority in manifest opposition to the
procedural guarantees provided for by the Convention. Therefore
the ensuing detention order was inconsistent with the general
protection from arbitrariness guaranteed by Article 5 of the
Convention.
90. It follows that there has been a violation of Article 5 з 1
in respect of the applicant's five day's detention.
B. Right to a fair trial
1. Applicability of Article 6 з 1
91. Although the applicability of Article 6 to the
administrative proceedings in question is not in dispute the Court
considers it necessary to address this issue of its own motion.
For the reasons set out below it considers that these proceedings
involved determination of a criminal charge against the applicant.
92. The Court observes that in order to determine whether an
offence qualifies as "criminal" for the purposes of the
Convention, it is first necessary to ascertain whether or not the
provision defining the offence belongs, in the legal system of the
respondent State, to criminal law; next the "very nature of the
offence" and the degree of severity of the penalty risked must be
considered (see Ozturk v. Germany, judgment of 21 February 1984,
Series A No. 73, p. 18, з 50, and Demicoli v. Malta, judgment of
27 August 1991, Series A No. 210, pp. 15 - 17, зз 31 - 34).
93. As to the domestic classification, the Court has previously
examined the sphere defined in certain legal systems as
"administrative" and found that it embraces some offences that are
criminal in nature but too trivial to be governed by criminal law
and procedure (see Palaoro v. Austria, judgment of 23 October
1995, Series A No. 329-B, p. 38, зз 33 - 35). In the Russian
system that also appears to be the case.
94. The Court also observes that loss of liberty imposed as
punishment for an offence belongs in general to the criminal
sphere, unless by its nature, duration or manner of execution it
is not appreciably detrimental (Engel and Others v. the
Netherlands, judgment of 8 June 1976, Series A No. 22, зз 82 - 83,
and Ezeh and Connors v. the United Kingdom [GC], Nos. 39665/98 and
40086/98, зз 69 - 130, ECHR 2003-X). In the present case the
applicant was deprived of her liberty for five days and was locked
up in the detention centre during the term of her sentence.
Finally, the purpose of the sanction imposed on the applicant was
purely punitive.
95. These considerations are sufficient to establish that the
offence of which the applicant was accused may be classified as
"criminal" for the purposes of the Convention. It follows that
Article 6 applies.
2. Whether the applicant received a fair trial
96. The Government accepted that the proceedings at issue had
been defective both under domestic law and the Convention. Indeed
the court ruling quashing the above judgment stated that "the
judge who convicted the applicant had not examined the
circumstances of the case and had not established whether she was
guilty of any administrative offence". That corroborates the
applicant's allegations that there had been no adversarial
proceedings as such and that even the appearances of a trial had
been neglected to the extent that she did not get a chance to find
out the purpose of her brief appearance before judge P.
97. It follows that there has been a violation of Article 6 з
1.
IV. Impossibility to appeal against
conviction of an administrative offence
98. The applicant complained that under domestic law the
decision ordering her administrative detention was not subject to
appeal. She therefore maintained that there was no effective
domestic remedy in this respect. She referred to Article 13 of the
Convention which provides as follows:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
This complaint was also declared admissible under Article 5 з 4
of the Convention, which provides as follows:
"4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful."
99. The Government accepted that under domestic law no appeal
lay against such a decision.
100. The Court first refers to the above finding that the
decision ordering the applicant's administrative arrest was taken
by a "tribunal established by law" in the proceedings falling
within the ambit of Article 6 (see зз 90 and 95 above).
101. The Court recalls that a right of recourse against a
faulty judicial decision is not recognised as a general guarantee
(see Delcourt v. Belgium, judgment of 17 January 1970, Series A
No. 11, p. 14, з 25). This right is provided for in criminal cases
in Article 2 of Protocol No. 7 with the exception of offences of a
minor character. However, the applicant did not rely on this
Article and presented no argument whether or not her criminal
charge concerned anything but an "offence of a minor character".
The Court did not consider it necessary to raise this issue of its
own motion.
102. As regards Article 13, the Court observes that Article 6 з
1 is a lex specialis in relation to Article 13, in other words the
requirements of Article 13 are less strict than, and are here
absorbed by, those of Article 6 (see, mutatis mutandis, the
Kamasinski v. Austria, judgment of 19 December 1989, Series A No.
168, pp. 45 - 46, з 110). As a rule, Article 13 is not applicable
where the alleged violation of the Convention has taken place in
the context of judicial proceedings (see Pizzetti v. Italy,
judgment of 26 February 1993, Series A No. 257-C, p. 40 - 41, з
41). The only exceptions to this principle have been the Article
13 complaints relating to a breach of the "reasonable time"
requirement (see {Kudla} v. Poland [GC], No. 30210/96, зз 146 -
149, ECHR 2000-XI). Since this is not the case here, there is no
room for a separate breach of Article 13.
103. In so far as Article 5 з 4 concerned, the Court notes that
its guarantees are in principle redundant with respect to
detention under Article 5 з 1 (a), since judicial control of the
deprivation of liberty has already been incorporated into the
original conviction and sentence (see De Wilde, Ooms and Versyp v.
Belgium, judgment of 18 June 1971 (merits), Series A No. 12, p.
40, з 76). Turning to the facts of the present case, the
applicant's five days' detention was based solely on her
conviction by the judge, therefore Article 5 з 4 did not require
that a separate judicial authority review that decision.
104. In view of the above, the Court concludes that this
complaint raises no separate issue under Article 13 or Article 5 з
4 of the Convention.
V. Application of Article 41 of the Convention
105. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of
the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
106. The applicant claimed 100,000 euros (EUR) for non-
pecuniary damage in respect of the injuries and distress she had
suffered as a result of her ill-treatment by the police and the
anguish caused by the administrative proceedings and the ensuing
detention, as well as by the authorities' failure to act in
response to her complaints about the ill-treatment.
107. As pecuniary damage she claimed 25 roubles (RUR), the
money charged by the detention centre for her five days'
detention.
108. The Government submitted no comments on the applicant's
claims, indicating that it was in part due to the pending
investigation of the ill-treatment and in part due to their
objection concerning non-exhaustion in respect of her complaint
about the detention.
109. The Court observes that it has found above that the
authorities tortured the applicant and failed to provide a prompt
and public investigation meeting the requirements of Article 3 of
the Convention. It has also been established that she was deprived
of liberty in violation of Article 5 and through proceedings
conducted contrary to Article 6. In addition, the applicant spent
months in unsuccessful attempts to secure domestic redress for the
acts of ill-treatment. The applicant must have suffered anguish
and distress from all these circumstances. Having regard to all
these considerations, the Court awards the applicant, on an
equitable basis, EUR 35,000 for non-pecuniary damage and RUR 25
for pecuniary damage, plus any tax that may be chargeable on these
amounts.
B. Costs and expenses
110. The applicant claimed RUR 5,000 for costs and expenses
incurred in the domestic proceedings and before the Court,
including stamp duty, translation fees, postal expenses and
stationery.
111. The Government did not object.
112. Against this background, the Court finds the applicant's
claim reasonable and therefore awards her RUR 5,000 for costs and
expenses, plus any tax that may be chargeable on that amount.
C. Default interest
113. The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 3 of the
Convention as regards the ill-treatment;
2. Holds that there has been a violation of Article 3 of the
Convention as regards the absence of effective investigation into
the applicant's allegations of ill-treatment;
3. Holds that there has been a violation of Article 13 of the
Convention on account of the lack of effective remedies in respect
of the ill-treatment complained of;
4. Holds that there has been a violation of Article 5 з 1 of
the Convention in respect of the applicant's arrest and overnight
detention;
5. Holds that there has been a violation of Article 5 з 1 of
the Convention in respect of the applicant's five days' detention;
6. Holds that there has been a violation of Article 6 з 1 of
the Convention;
7. Holds that there are no separate issues under Articles 5 з 4
and 13 of the Convention as regards the absence of the right of
appeal against the decision imposing sanction for the
administrative offence;
8. Holds
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final in
accordance with Article 44 з 2 of the Convention, the following
amounts:
(i) RUR 25 (twenty five roubles) in respect of pecuniary
damage;
(ii) EUR 35,000 (thirty five thousand euros) in respect of non-
pecuniary damage to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(iii) RUR 5,000 (five thousand roubles) in respect of costs and
expenses;
(iv) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points;
9. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 9 March 2006,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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