CASE OF S.M. v. RUSSIA
(Application no. 75863/11)
22 October 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of S.M. v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
András Sajó, President,
Mirjana Lazarova Trajkovska,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 29 September 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 75863/11) 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 a Russian national, Ms S.M. (“the applicant”), on 26 November 2011. The Chamber decided of its own motion to grant the applicant anonymity (Rule 47 § 4 of the Rules of Court).
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that the Russian authorities had failed to carry out an effective investigation in response to her complaint of rape.
4. On 12 May 2014 the complaint concerning the alleged lack of an effective investigation into the rape was communicated to the Government and the remainder of the application was declared inadmissible.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1992.
A. The events of 9 - 21 July 2009 as submitted by the applicant
6. On 9 July 2009 the applicant’s father introduced the applicant ‒ who was seventeen years old at the time ‒ to Mr R., an official of the Derbent town administration. The latter promised to hire the applicant as his personal assistant.
7. On 10 July 2009 the applicant went to Mr R.’s office, assuming that she was to be employed there. She was assigned minor tasks such as making tea and cleaning up the office. On several occasions between 10 and 17 July 2012 the applicant was forced to have sexual intercourse with Mr R. in his office. Mr R. employed physical violence and put psychological pressure on the applicant as he threatened to use his influence and connections in the town administration to harm her family.
8. On 17 July 2009 Mr R. and Mr A. locked the door to Mr R.’s office at the end of the working day and raped the applicant. Afterwards both men cleaned their genitalia with a piece of pink cloth. Mr R. also used a green baby shirt for this purpose. Later Mr R. took the applicant outside, put her in a car and drove out of town. At some point he stopped the car and forcibly had intercourse with the applicant. Mr R. then drove the applicant to her family home and told her to remain silent about the events, threatening to kill her or her family should she complain to anyone.
9. After that day, the applicant stopped going to Mr R.’s office.
10. It later transpired that Mr R. had never had any intention of employing the applicant and that she had not been formally hired as his personal assistant.
11. On 21 July 2009 the applicant told her father that she had been forced to have sexual intercourse with Mr R. and Mr A. He contacted a local unit of the Investigative Committee of the Russian Prosecutor’s Office (“the investigative committee”), asking that an investigation into the rape be opened.
B. Attempts to institute a criminal investigation into the allegations of rape
12. On 24 July 2009 the applicant made a statement to an investigator from the Derbent investigative committee, Mr M.K., describing the events of 10-17 July 2009 in detail.
13. On the same date Mr M.K. and other officials from the Derbent investigative committee inspected Mr R.’s office. They found the pieces of green and pink cloth which, according to the applicant, had been used by Mr R. and Mr A. on 17 July 2009 after the intercourse had taken place, and collected them as evidence.
14. Between 24 July and 6 August 2009 a forensic expert, a gynaecologist and a proctologist examined the applicant. The forensic report drawn up afterwards stated that the applicant’s hymen was intact and that there were no signs of anal intercourse.
15. On 2 August 2009 Mr M.K. rejected the request to open an investigation into the rape. He noted, among other things, that Mr R. and Mr A., when questioned, had stated that they had not had sexual intercourse with the applicant. Mr R. had also claimed that the applicant had stolen 1,000 Russian roubles (RUB) from his desk and had therefore had an interest in slandering him. The investigator also mentioned the medical examinations of the applicant, Mr R. and Mr A. carried out on 23 and 24 June 2009, which had recorded no visible signs of blood or sperm on either Mr R.’s or Mr A.’s genitalia and had shown the applicant’s hymen to be intact. The investigator further pointed out that the pieces of cloth found in Mr R.’s office had not been examined by any experts and that in the absence of an expert examination report it was impossible to open a criminal investigation; however, the time-limit for the pre-investigation inquiry was about to expire.
16. On 10 August 2009 the head of the Derbent investigative committee, Mr D.A., quashed the decision of his subordinate, Mr M.K., of 2 August 2009 on the grounds that no results of forensic tests on the pieces of cloth were as yet available and issued an instruction ordering a medical examination of the applicant to be carried out by another forensic bureau.
17. On an unspecified date a forensic expert tested the pieces of cloth and found no spermatozoa or traces of blood in the stains found on them.
18. On 10 and 11 August 2009 forensic experts examined the applicant and Mr R. They found that the applicant’s hymen was intact and concluded, considering the size of Mr R.’s penis, that vaginal intercourse between the applicant and Mr R. could not have taken place.
19. By a decision dated 10 August 2009 Mr M.K. again refused to institute an investigation into the rape. The text mostly reproduced verbatim the text of 2 August 2009. Furthermore, the decision of 10 August referred to the forensic medical examinations of the applicant and Mr R. of 11 August 2009 and the report on the forensic biological testing of the pieces of cloth carried out on 20 August 2009.
20. On 1 September 2009 the applicant was examined by a gynaecologist who concluded that her hymen had been broken.
21. On 14 November 2009 Mr D.A. quashed the decision by Mr M.K. dated 10 August 2009 not to open an investigation into the rape.
22. On 16 November 2009 Mr M.K. again issued a decision not to open a criminal investigation into the rape.
23. On 29 April 2010 the Derbent town court (“the town court”) examined the applicant’s complaint concerning the decision of 10 August 2009 but terminated the proceedings on the grounds that Mr D.A. had quashed it on 14 November 2009 without notifying the applicant accordingly.
24. On 11 May 2010 the applicant’s lawyer challenged the decision of 16 November 2009 before a court.
25. On 2 June 2010 the town court declared unlawful the decision of 16 November 2009 by Mr M.K. not to open an investigation into the rape and ordered Mr D.A. to ensure that the errors be rectified. The town court’s reasoning included the following observations:
“... Mr D.A. admitted that he had been powerless and unable to change the bad practices that had evolved in his unit over the years because investigators under his command did not listen to his instructions and orders or simply ignored them ...
... this court discovered from the content of the lawyer’s complaint that on 16 November 2009 another decision not to open an investigation against Mr R. and Mr A. identical to the previous one had been taken ... For unknown reasons, in the course of the court hearing of 29 April 2009 the head of the investigative body, Mr D.A., had hidden from the court the fact that, in addition to his own “secret” decision to quash the unlawful procedural act, another decision had been adopted two days later by the investigator Mr M.K., again refusing to open an investigation for identical reasons.
It has been established that between 14 and 16 November 2009 no investigative steps were in fact taken, even though the head of the investigative body had ordered an additional check to be carried out ...
... It is clear that in his decision of 10 August 2009 the investigator unlawfully cited as justification for his actions various medical reports, biological tests and other results obtained only later - between 11 and 20 August 2010. This is in itself absurd ‒ being objectively impossible ‒ and demonstrates that the decision was falsified ...
The court also notes that the investigative body at the same time deemed the actions of the victim, Ms S.M., to be tantamount to bringing false charges against Mr R. and Mr A. even though the suspects’ actions had not yet been given a legal classification ...
Therefore, given the circumstances of the case, the court has concluded that unprofessional and clearly unlawful actions on the part of the investigative body, including the decision currently under scrutiny, have undoubtedly caused significant damage to Ms S.M.’s constitutional rights and freedoms and have gravely impaired her access to justice ...”
26. On the same day the town court delivered a special decision (частное определение) in respect of the investigators’ actions concerning the applicant’s rape allegations. It decided to inform the head of the Dagestan investigative committee of a number of “grave breaches of criminal procedural law” committed by the Derbent investigative committee and to order him to report back on measures taken with a view to ameliorating the situation within a period of thirty days.
27. On 23 August 2010 the town court declared unlawful the refusal of 16 November 2009 to open an investigation into the rape, indicating a range of shortcomings in the inquiry that preceded it. The decision became final on 3 September 2010.
28. On 12 May 2011 the town court rejected the applicant’s request that the Derbent investigative committee be ordered to open an investigation into the rape for lack of subject-matter jurisdiction.
29. The refusal to investigate the rape of 16 November 2009 was quashed on 7 October 2011 by Mr A.O., an official of the Derbent investigative committee, on the grounds that the town court had declared it unlawful on 23 August 2010. Mr A.O. also issued an instruction ordering an additional inquiry to be carried out.
30. On 8 October 2011 Mr M.I. of the Derbent investigative committee also refused to investigate the rape. The applicant challenged the refusal before a court.
31. On 10 January 2012 the town court declared Mr M.I.’s decision of 8 October 2011 unlawful on the grounds that the investigators had not properly evaluated the medical reports confirming that the applicant’s hymen had been broken.
32. On 24 August 2012 the deputy head of the Derbent investigative committee quashed the decision of 8 October 2011.
33. On 3 September 2012 Mr M.G. of the Derbent investigative committee refused to open a criminal case. The refusal decision was quashed by his immediate superior on 19 September 2012. On 6 October 2012 Mr M.G. delivered a new refusal to investigate. It was quashed by the deputy head of the Derbent investigative committee on 30 November 2012.
34. On 10 December 2012 Mr M.G. of the Derbent investigative committee again refused to institute a criminal investigation.
35. On 17 June 2014 the deputy head of the Dagestan investigative committee quashed the decision of 10 December 2012.
36. It appears that a criminal investigation into the alleged rape has not been instituted to date.
C. Criminal proceedings against the applicant
37. On 30 July 2009 Mr R. lodged a complaint with the investigative committee asking them to initiate criminal proceedings against the applicant on account of her having brought false charges against him.
38. On 16 November 2009 Mr M.K. filed with Mr D.A., his superior, a report regarding evidence of the commission of a crime, stating that the applicant’s complaint concerning the rape amounted to a criminal offence under Article 306 § 2 of the Russian Criminal Code (“bringing false charges”). On the same date Mr M.K. ‒ as acting head of the Derbent investigative committee ‒ decided to open an investigation against the applicant and took charge of the case.
39. On 5 April 2010 the applicant signed an undertaking not to leave her place of residence pending the investigation against her.
40. On 7 April 2010 the applicant was formally charged with the crime of bringing false charges.
41. On 17 May 2010 the town court dismissed a complaint from the applicant’s lawyer challenging the decision of 16 November 2009 to open a criminal case against the applicant.
42. It appears that on 20 August 2010 the proceedings relating to the bringing of false charges were suspended by an official of the investigative committee.
43. On 18 July 2011 Mr M.M., an official from the Derbent investigative committee, quashed the decision of 20 August 2010 staying the proceedings. On 7 October 2011 the proceedings against the applicant were resumed.
44. On 18 November 2011 the town court granted the applicant’s request to restore the time-limit for appealing against the decision of 17 May 2010.
45. On 23 December 2011 Mr N.R., an investigator from the Derbent investigative committee, terminated the criminal proceedings against the applicant for lack of evidence of the commission of a crime, reasoning, in so far as relevant:
“According to the statement by a proctologist Dr S., minor cuts and bruises typical for anal intercourse could heal in two or three days without a trace. Thus, considering the time that elapsed between the date of the intercourse with Ms S.M. and the date of [medical] examination (28 July 2009), it cannot be ruled out that those wounds had healed.
From the beginning of the proceedings Ms S.M. made detailed statements concerning the forcible sexual acts committed against her, reiterated them in her depositions and confirmed them during the face to face confrontation ...”
46. On 27 December 2011 the Supreme Court of Dagestan examined the appeal against the decision of 17 May 2010, upholding the decision of 16 November 2009 instituting proceedings against the applicant, quashed it and remitted the evidential material for fresh examination.
47. On 24 January 2012 the town court terminated the proceedings concerning the applicant’s complaint, challenging the decision of 16 November 2009 to open proceedings against her on the grounds that Mr N.R. had terminated the criminal proceedings against the applicant.
48. On 10 February 2012 Mr M.D., the deputy head of the Derbent investigative committee, quashed the decision of 23 December 2012 to terminate the criminal proceedings against the applicant.
49. On 2 March 2012 Mr N.R. severed the proceedings relating to the theft of RUB 1,000 from Mr R.’s desk from the investigation into the bringing of false charges.
50. On 5 March 2012 the town court quashed the decision of 10 February 2012. The prosecutor’s office appealed.
51. On 13 March 2013 the police issued a refusal to open an investigation into the theft of RUB 1,000.
52. On 17 March 2012 Mr N.R. of the Derbent investigative committee terminated the proceedings against the applicant concerning the bringing of false charges, noting that the criminal investigation into the rape had not disproved her account of events.
53. On 17 April 2012 the Supreme Court of Dagestan terminated the appeal proceedings in relation to the decision of 5 March 2012 on the grounds that the criminal proceedings against the applicant had already been terminated by the Derbent investigative committee.
54. On 28 April 2012 the town court awarded the applicant RUB 100,000 in compensation for non-pecuniary damage for unlawful prosecution and RUB 20,000 in compensation for costs and expenses. The judgment became final and was enforced. The applicant submitted that the money was later embezzled by the lawyer whom she had retained.
II. RELEVANT DOMESTIC LAW
A. Investigation of the crimes and victim status as set forth in the Code of the Criminal Procedure of the Russian Federation
55. In response to a complaint of a criminal offence an investigator is under an obligation to look into the complainant’s allegations (Article 144).
56. Should there be sufficient grounds to believe that a crime has been committed, the investigator initiates a criminal investigation (Article 145).
57. The criminal investigation should not normally exceed two months. This time-limit can be extended for up to three months. If the matter is of extreme complexity, the investigation can be extended for up to twelve months (Article 162).
58. The criminal investigation can be suspended if the alleged perpetrator has not been identified (Article 208 § 1).
59. A person who has suffered damage as a result of a crime is granted victim status and may take part in the criminal proceedings. During the criminal investigation, the victim may submit evidence and lodge applications. Once the investigation is completed, the victim has full access to the case file (Article 42).
B. Statute of limitation in respect of the rape as set forth in the Criminal Code of the Russian Federation
60. Prosecution on the charges of rape or coercive sexual act in respect of the victim under the age of 18 has a statute of limitations of fifteen years (Article 78 § 1 (g)).
I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
61. The applicant complained, relying on Articles 6, 7, 13, 14 and 17 of the Convention, about the lack of an effective investigation by the domestic authorities into the reported rape. The complaint was communicated to the Government with questions under Articles 3 and 8 of the Convention.
62. The Government invited the Court to limit the scope of the present case to the issue of compliance with Article 3 of the Convention.
63. The Court notes that the thrust of the applicant’s complaint focuses on the effectiveness of the investigation into the rape (see, by contrast, M.C. v. Bulgaria, no. 39272/98, §§ 148-68, ECHR 2003-XII) and that Article 3 provides sufficient legal basis for the State’s duty to conduct an investigation into serious offences against an individual’s physical integrity (see P.M. v. Bulgaria, no. 49669/07, § 58, 24 January 2012; N.D. v. Slovenia, no. 16605/09, § 38, 15 January 2015; and M.A. v. Slovenia, no. 3400/07, § 36, 15 January 2015). Being the master of the characterisation to be given in law to the facts of the case (see Margaretić v. Croatia, no. 16115/13, § 75, 5 June 2014), the Court considers accordingly that the applicant’s grievances fall to be examined solely under Article 3 of the Convention (see Y. v. Slovenia, no. 41107/10, § 74, 28 May 2015), which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
64. The Court finds that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
65. The Government acknowledged a violation of Article 3 of the Convention on account of the absence of an effective investigation into the applicant’s allegations of rape. They observed that the courts of the Dagestan Republic had repeatedly criticised the ineffectiveness of the inquiry carried out by the investigative authorities and held that the latter’s acts and omissions were in breach of domestic law.
66. The applicant maintained her complaint in essence.
2. The Court’s assessment
67. The relevant principles concerning the State’s obligation inherent in Article 3 of the Convention to investigate cases of ill-treatment, and in particular sexual abuse, committed by private individuals, are set out in the case of M.C. (cited above, §§ 149, 151 and 153).
68. In order to comply with the Convention requirements relating to the effectiveness of an investigation, any such investigation should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context. Matters such as the promptness of the authorities’ reaction to the complaints, the opening of investigations, delays in identifying witnesses or taking statements, the length of time taken for the initial investigation, and unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations are important factors (see, with further references, P.M., cited above, § 64).
69. Turning to the circumstances of the present case, the Court observes that the pre-investigation inquiry into the applicant’s allegations of rape was pending from at least July 2009 until June 2014 and did not result in the opening of a criminal case.
70. The Court further notes that the Government have acknowledged that the domestic investigation into the applicant’s complaint of rape did not meet the requirements of Article 3 of the Convention, which amounted to a violation of this provision in its procedural limb, without, however, offering to pay a reasonable compensation to the applicant.
71. Having regard to the material before it, the Court has no reason to hold otherwise. It observes that the applicant reported that she had been a victim of rape to the Derbent investigative committee in July 2009, presenting a very detailed description of the alleged abuse, and that her account of events remained coherent throughout the proceedings. Nonetheless, the investigators in charge of the case carried out a pre-investigation inquiry which, in the Court’s view, could at best be described as perfunctory, and refused to open criminal proceedings on the basis of the applicant’s allegations. On numerous occasions over the course of the following five years the pre-investigation inquiry was found lacking by both domestic courts and the investigators’ hierarchical superiors, and yet nothing meaningful resulted from these findings.
72. The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities failed to discharge their duty to carry out an effective investigation into the allegations of rape (see also Lyapin v. Russia, no. 46956/09, §§ 133-36, 24 July 2014).
73. Accordingly, there has been a violation of the respondent State’s procedural obligations under Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
74. The Court has examined the other complaints submitted by the applicant. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
75. 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.”
76. The applicant claimed by way of compensation for pecuniary damage the 380,000 Russian roubles (RUB) (9,500 euros (EUR)) allegedly embezzled by her lawyer. She also claimed EUR 500,000 in compensation for non-pecuniary damage.
77. The Government stated that there was no causal connection between the pecuniary damage claimed and the alleged breach of the Convention provision. They further stated that, given the sensitive nature of the present case, they would leave to the Court’s discretion the issue of determining the amount to be awarded under the head of compensation for non-pecuniary damage.
78. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it observes that the applicant must have sustained non-pecuniary damage as a result of the breach of her Convention right found in the present case. Taking into account all the circumstances of the case, and deciding on an equitable basis, the Court awards her EUR 12,500 in compensation for non-pecuniary damage.
B. Costs and expenses
79. The applicant also stated that she had incurred postal and other non-itemised expenses and asked the Court to determine the amount to be awarded under the head of costs and expenses.
80. The Government argued that the applicant’s claims were not supported by evidence.
81. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the lack of relevant documents and the above criteria, the Court rejects the applicant’s claim for costs and expenses.
C. Default interest
82. The Court considers it appropriate that the default interest rate 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. Declares the complaint under Article 3 of the Convention concerning the alleged ineffective investigation into the applicant’s allegations of rape admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention in its procedural limb;
(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 § 2 of the Convention, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen András Sajó