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MASLOVA AND NALBANDOV v. RUSSIA - 839/02 [2008] ECHR 72 (24 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/72.html
Cite as:
[2008] ECHR 72,
48 EHRR 37,
(2009) 48 EHRR 37
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FIRST
SECTION
CASE OF
MASLOVA AND NALBANDOV v. RUSSIA
(Application
no. 839/02)
JUDGMENT
STRASBOURG
24 January
2008
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 Maslova and Nalbandov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Loukis
Loucaides,
President,
Nina
Vajić,
Anatoli
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and Søren Nielsen, Section
Registrar,
Having
deliberated in private on 3 January 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 839/02) 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 two Russian nationals, Ms Olga Yuryevna Maslova
(“the first applicant”) and Mr Fedor Vartanovich
Nalbandov (“the second applicant”), on 10 July 2001. They
were represented before the Court by Ms Y. Kirsanova and Ms
O. Shepeleva, legal experts practising in the town of Nizhniy
Novgorod.
The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mrs V. Milinchuk.
The
applicants alleged, in particular, that they had been subjected to
ill-treatment by State officials on 25 November 1999 and that there
had been no effective investigation into the events, in breach of
Articles 3, 6 and 13 of the Convention.
By
a decision of 12 December 2006 the Court declared the application
partly admissible.
The
applicants and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1980 and 1982 respectively and live in the
town of Nizhniy Novgorod.
A. Background information
Between
4 and 24 November 1999 the first applicant had the status of witness
in a murder case conducted jointly by the police and the prosecution.
It
appears that these authorities repeatedly summoned her to give
evidence to the Nizhegorodskiy District Department of Internal
Affairs (Нижегородское
районное
управление
внутренних
дел –
“the police station”).
It
also appears that at some point during the investigation suspect B.
stated that the first applicant had been in receipt of the murdered
person's belongings.
According
to the first applicant, investigator Zh. summoned her to appear on 25
November 1999 at 12.30 p.m. The Government submitted that the first
applicant was summoned by policeman K. and not by investigator Zh.
B. Events of 25 November 1999
The
applicants submitted the following account of events. The Government
did not make any specific comments in this respect.
1. Interrogation by policemen Kh. and K.
The
first applicant arrived at the police station on time and was
questioned. The interrogation was initially conducted by policemen
Kh. and K. and took place at office no. 63 of the police station.
The
policemen requested the first applicant to acknowledge that she had
received property belonging to the murdered person. When the first
applicant refused to do so, they started shouting and threatened to
bring criminal proceedings against her. They took her soccer scarf
and administered several blows with the scarf to her face.
Then
K. left the office and Kh. stayed there with the first applicant in
private. He locked the door from the inside and went on with physical
and psychological coercion. Kh. fettered the first applicant's hands
with thumbcuffs and administered blows to her head and cheeks. He
raped her using a condom and then forced her to perform oral sex with
him.
Kh.
was interrupted by noise in the corridor and knocking on the door.
The first applicant was allowed to go to the lavatory and tidy
herself up.
2. Confrontation with suspect B and events over the
next three hours
At
around 2 p.m. the first applicant was confronted with suspect B. In
his presence, she yet again denied her involvement in the murder.
Thereafter
Kh. and K. fettered the first applicant's thumbs and repeatedly hit
her in the stomach. They put a gas mask over the first applicant's
face and made her suffocate by shutting off access to air. Kh. and K.
also ran electricity through wires connected to the first applicant's
earrings. The above actions were coupled with attempts to obtain a
confession.
It
appears that eventually the first applicant admitted having received
the property in question and agreed to write her confession down on
paper. Since the first applicant was in an agitated state and failed
to write properly, she had to try twice. The confession was addressed
to a local district prosecutor.
Kh.
and K. then suggested that the first applicant's mother should bring
the notebook containing the phone numbers and addresses of the
applicant's friends and acquaintances.
The
first applicant called her mother and at 4.40 p.m. the latter and the
second applicant came to the police station and brought the required
notebook. The first applicant's mother and the second applicant
stayed in a lobby near office no. 63.
At
5 p.m. S., an investigator from a local prosecutor's office, came to
office no. 63. He learned from the first applicant that she was a
CSKA Moscow soccer fan and started to insult her and administer blows
to her head with the second applicant's own scarf, requiring her to
curse this club.
3. Interrogation of the first applicant by investigator
Zh.
Some
time later Kh. brought the first applicant to office no. 3 of the
prosecutor's office for the Nizhegorodskiy District of the city of
Nizhniy Novgorod (Прокуратура
Нижегородского
района
г. Нижний
Новгород
– “the local prosecutor's office”) which was
situated in the same building as the police station.
Zh.,
an investigator of the local prosecutor's office, interrogated the
first applicant in connection with her confession.
In
order to put additional pressure on her the investigators
simultaneously arrested and detained her mother. It appears that the
first applicant's mother spent two hours in detention.
4. Events between 6.30 p.m. and 7 p.m.
According
to the second applicant, around 6.30 p.m. investigator S. was in the
lobby and saw the second applicant. S. rudely demanded the second
applicant to leave the building, kicked him on the hip, pushed him
towards the exit, then caught up with him and forced him into office
no. 54 in which there were two unidentified policemen.
Then
S. locked the door from the inside, hit the second applicant in his
trunk several times and dealt a few blows to the second applicant's
head and trunk with his own CSKA Moscow soccer scarf.
S.
brought the second applicant to office no. 7 and, in presence of Kh.
and investigator M., went on beating the second applicant, requiring
him to curse the CSKA Moscow soccer club. When the second applicant
refused, S. put the scarf around his neck and started to suffocate
the applicant, simultaneously hitting him on the trunk. The second
applicant eventually capitulated.
Thereafter
M., Zh. and Kh. sent the second applicant to a nearby shop to buy
alcohol, cigarettes and food and upon his return he was expelled from
the building.
5. Events between 7 p.m. and 10.30 p.m.
Around
7 p.m., S. and M. came to office no. 3 in which investigator Zh. was
finalising the interrogation of the first applicant. They did not let
the first applicant out after the questioning was over and started to
drink alcohol. According to the first applicant, her requests to
leave were denied.
Upon
her request, the first applicant was escorted to the lavatory on the
third floor of the building where she unsuccessfully tried to cut the
veins of her left wrist.
She
returned to office no. 3 and for the next two hours she was raped by
Zh., S. and M. It appears that they used condoms and that following
the rape they cleaned the place with wipes. It appears that Kh. had
left the office upon the first applicant's return from the lavatory
and had not taken part in the rape.
At
9 p.m. S. left and during the next hour Zh. and M. went on raping the
first applicant. Around 10 p.m. they released her.
6. Events after 10.30 p.m.
At
10.30 p.m. the first applicant reached the place of her acquaintance
RB. Shortly later she was joined by IA and EA. After a talk, EA
called the first applicant's parents and told them that RB and IA
would follow the first applicant to a hospital.
At
1.20 a.m. on the next day they arrived at hospital no. 21 and the
first applicant told an assistant nurse that she had been raped in
the police station. The nurse and the doctor did not examine the
applicant and advised her to address herself to a bureau of forensic
examination. The applicant refused because the bureau was located too
close to the police station. She was then advised to go to a bureau
in a different district. It does not appear that the first applicant
did so.
C. Criminal investigation
It
appears that on 26 November 1999 the first applicant applied to the
prosecutor's office alleging that she had been tortured and raped.
The Nizhniy Novgorod City prosecutor's office (прокуратура
г. Нижний
Новгород)
opened a criminal case in this connection and carried out an
investigation. The second applicant had the status of crime victim in
this case.
On
25 April 2000 Kh., Zh., S. and M. were charged with commission of
crimes punishable under Articles 131, 132 and 286 of the Criminal
Code.
On
5 July 2000 the bill of indictment was signed and the case against
Kh., Zh., S. and M. was transferred to the Nizhegorodskiy District
Court of the city of Nizhniy Novgorod (Нижегородский
районный
суд г.
Нижний
Новгород
– “the District Court”) for trial.
The
bill of indictment stated that Kh. was accused of having tortured and
raped the first applicant, ill-treated the second applicant, abused
the office and discredited the authority (see the episodes described
in paragraphs 12-15, 16-21, 25-28 and 29-32 above). Zh. was charged
with having raped and sexually abused the first applicant, abused the
office and discredited the authority (see paragraphs 22-24 and
29-32). As to S., he was accused of having ill-treated the first and
second applicant and abused and discredited the authority (see
paragraphs 16-21 and 25-28), raped and sexually abused the first
applicant and abused and discredited the authority (see paragraphs
29-32). M. was charged with having raped and sexually abused the
first applicant and abused and discredited the authority (see
paragraphs 29-32). The alleged criminal acts of the accused were
characterised under Articles 131-1, 2 (b), 132-1, 2 (b) and 286-3 (a,
b), respectively, of the Criminal Code.
It
appears that the accused denied their involvement in the crimes in
question, kept silent and refused to give urine or sperm for
examination.
The
findings in the bill of indictment were principally made on the basis
of evidence given by the first and second applicants, who had
identified the alleged offenders and gave a very detailed account of
events.
The
bill also referred to the statements of witness B., who heard the
screams of Kh. and moans of the first applicant and then saw that the
first applicant was tear-stained and demoralised. B. also cited the
statement of Kh. who had allegedly said that the first applicant had
“cracked” and admitted everything.
There
were also statements of witnesses RB, EA and IA, the assistance nurse
and the doctor, the parents of the first applicant, the mother of the
second applicant and an employee of the shop who had sold the food
and alcohol to the second applicant (see paragraph 28 above).
The
other evidence also included the items obtained through searches
carried out on the premises of the police station and the
prosecutor's office, the first applicant's handwritten statement of a
self-incriminating character which had been described by an expert as
having been written by “a shaking hand” (see paragraph
18), the medical confirmation of the first applicant's attempts to
cut her veins (see paragraph 30), the report of the forensic
examinations and other evidence. It appears that several other people
who had previously been prosecuted and whose criminal cases had been
dealt with by the accused gave evidence confirming that the accused
had used torturing devices, such as a gas mask, electric wires and a
fettering device.
According
to forensic examination no. 650 of 31 December 1999, the clothes that
Kh. had worn on 25 November 1999 bore traces of cells of vaginal
epithelium of the same antigen group as the first applicant's. The
investigation also established that Kh. and his spouse had a
different antigen group.
During
the search carried out at the premises on 27 November 1999 the
investigative authority discovered two used condoms, one in the yard
of the police station and the other on the cornice under the window
of office no. 3 of the prosecutor's office.
It
appears that only one of the discovered condoms was suitable for
forensic examination. The genomic examination revealed the presence
of vaginal cells belonging, with a probability of 99.9999%, to the
first applicant and spermatozoids and cells of male urethra.
The
same search also led to the discovery of two wipes in the yard of the
police station bearing traces of sperm.
Furthermore,
the forensic examination established that the first applicant's
clothes which she had allegedly worn on that day bore traces of
sperm.
D. Proceedings at first instance
During
a preliminary examination of the case on 16 August 2000 counsel for
the accused pointed to various procedural defects in the
investigation and applied to have the case remitted for additional
investigation.
On
the same day the District Court granted the application and remitted
the case for additional investigation.
The
court ruled that the investigative authorities had committed serious
breaches of domestic procedure during the investigation which had
infringed the rights of the accused and rendered most of the evidence
in the case inadmissible.
In
particular, the decision noted numerous inaccuracies and deficiencies
in the handling of the case, including disregard of a special
procedure for opening an investigation in respect of prosecution
officers and the fact that Kh., Zh., S. and M. had not enjoyed the
procedural status of accused persons until 24 April 2000, which meant
that almost all investigative actions (searches, interrogations,
identification parades, expert examinations, etc.) prior to that date
had been carried out in breach of their defence rights and rendered
the respective evidence inadmissible.
E. Appeal and supervisory review proceedings
The
decision of the District Court of 16 August 2000 was upheld on the
prosecutor's appeal by the Nizhniy Novgorod Regional Court
(Нижегородский
Областной
Суд –
“the Regional Court”) on 13 October 2000.
On
an unspecified date in September 2001 the first applicant's counsel
brought an appeal against the decisions of 16 August and 13 October
2000 to the Presidium of the Regional Court, requesting that they be
re-examined by way of supervisory review.
On
1 October 2001 counsel lodged a similar appeal with the Supreme Court
of the Russian Federation (Верховный
Суд РФ
– “the Supreme Court”).
Having
examined the case file, on 6 June 2002 the Presidium of the Regional
Court declined the applicants' request for re-examination of the
decisions by way of supervisory review.
It
appears that a similar decision was taken by the Supreme Court on 21
June 2002.
F. Discontinuation of criminal proceedings
On
12 January 2001 the Regional Prosecutor's Office (Нижегородская
областная
прокуратура)
examined the case, found that the charges were essentially based on
the first applicant's incoherent and inconclusive submissions, that
the evidence in the case taken as a whole was inconsistent, and
concluded that no strong evidence against the accused had been
collected during the investigation.
It
also had regard to the conclusions in the court decisions of
16 August and 13 October 2000 and noted that “the
repetitive breaches of law and, in particular, the failure to respect
the procedures and rules governing the institution of criminal cases
in respect of special subjects – investigators of the
prosecutor's office – created no judicial perspective [for the
case] since it appeared impossible to remedy the breaches committed
during the investigation”. For these reasons it was decided to
discontinue the criminal proceedings. The decision stated that the
first applicant and the accused were to be notified and that the
decision could be appealed against to a higher prosecutor's office.
By
a letter of 19 June 2001 (No. 15/1-1018-99) the Regional Prosecutor's
office responded to the first applicant's appeal against the decision
of 12 January 2001 fully deferring to its reasons and conclusions.
The letter did not mention the possibility of appeal against the
decision in a court.
According
to the Government, the investigation in this case was repeatedly
resumed and discontinued.
On
30 August 2002 the Regional Prosecutor's Office annulled its decision
of 12 January 2001 to discontinue the criminal proceedings and
submitted the case for additional investigation. It mentioned the
lack of legal characterisation of the acts committed in respect of
the second applicant as a drawback of that decision.
On
16 October 2002 the local prosecution office terminated the
investigation in the criminal case, referring to the lack of evidence
of any crime and the failure to prove the involvement of the police
and prosecution officials.
It
appears that this decision was subsequently annulled, but on
24 February 2002 the local prosecutor's office again terminated
the proceedings on the ground of lack of evidence of a crime.
On
19 September 2004 the first applicant's counsel challenged the
decision of 24 February 2002 before the District Court. In a judgment
of 28 September 2004 the District Court upheld the decision,
fully deferring to its reasons. The judgment was upheld on appeal on
29 October 2004 by the Regional Court.
On
29 April 2005 the Regional Prosecutor's office yet again decided to
resume the proceedings in the case.
According
to the applicant, on 28 June 2005 the proceedings were yet again
closed.
The
Government submitted that on 22 August 2005 the proceedings in
the case had been resumed. This decision was appealed against by the
accused. On 22 November 2005 the District Court quashed the decision
to resume the proceedings as unlawful. The Regional Court upheld the
District Court's decision on 30 December 2005. Thereafter the
Deputy Prosecutor General lodged a supervisory review request in
respect of the decisions of 22 November and 30 December 2005.
On
1 February 2007 the Regional Court, sitting as a supervisory review
instance, examined and rejected the prosecutor's request, but noted
that the decision of 30 December 2005 had been adopted by an unlawful
composition of judges and remitted the case to the Regional Court for
a fresh examination on appeal.
The
outcome of these proceedings remains unclear, but no further steps
appear to have been taken in respect of the criminal case against the
policemen and investigators.
II. RELEVANT DOMESTIC LAW
A. Applicable criminal offences
Article
131 §§ 1 and 2 (b) of the Criminal Code of the Russian
Federation punishes the offence of rape committed by a group, whether
or not organised and with or without prior conspiracy, with
imprisonment up to fifteen years.
Article
132 §§ 1 and 2 (b) punishes forced sexual acts committed by
a group, whether or not organised and with or without prior
conspiracy, with up to fifteen years of imprisonment.
Article
286 § 3 (a, b) punishes abuse of office committed with use of
force or threat to use force, with or without the use of arms or
other special devices with imprisonment up to three years.
B. Interrogation of witnesses (Code of Criminal
Procedure of 1960, as in force at the relevant time)
Article 155
“A witness shall be called for interrogation by a
written notice served on him personally or, in his absence, on an
adult member of his family...
The notice shall contain the name of the person called
as a witness, indicating where, before whom, on what date and at what
time he is required to appear and the consequences of failure to
appear. A witness may also be called by means of telephone or cable.”
Article 157
“The interrogation of a witness shall be conducted
at the place of the investigation. An investigator may decide to
interrogate a witness at the location of that witness.”
C. Official investigation of crimes
Under
Articles 108 and 125 of the Code of Criminal Procedure, a criminal
investigation could be initiated by a prosecution investigator at the
request of a private individual or of the investigating authorities'
own motion. Article 53 of the Code stated that a person who had
suffered damage as a result of a crime was granted the status of
victim and could join criminal proceedings as a civil party. During
the investigation the victim could submit evidence and lodge
applications, and once the investigation was complete the victim had
full access to the case file.
Under
Articles 210 and 211 of the Code, a prosecutor was responsible for
overall supervision of the investigation. In particular, the
prosecutor could order a specific investigative measure to be carried
out, the transfer of the case from one investigator to another, or
the reopening of the proceedings.
Under
Article 209 of the Code, the investigator who carried out the
investigation could discontinue the case for lack of evidence of a
crime. Such a decision was subject to appeal to the senior
prosecutors or the court. The court could order the reopening of a
criminal investigation if it deemed that the investigation was
incomplete.
Article
210 of the Code provided that the case could be reopened by the
prosecutor “if there were grounds” to do so. The only
exception to this rule was for cases where the time-limit for
prosecuting crimes of that kind had expired.
Article
161 of the Code provided that, as a general rule, the information
obtained in the course of the investigation was not public. The
disclosure of that information might be authorised by the prosecuting
authorities if disclosure did not impede the proper conduct of the
investigation or go against the rights and legitimate interests of
those involved in the proceedings. The information concerning the
private life of the parties to the proceedings could not be made
public without their consent.
Section
42 of the Law on Prosecution Authorities and Decree No. 44 of the
Prosecutor General of 26 June 1998 sets out a special procedure for
bringing administrative and criminal proceedings against officials of
the prosecution authorities. In particular, the officials who have
the right to initiate such proceedings are exhaustively listed.
D. Civil-law remedies against illegal acts by public
officials
The
Civil Code of the Russian Federation, which entered into force on
1 March 1996, provides for compensation for damage caused by an
act or failure to act on the part of the State (Article 1069).
Articles 151 and 1099-1101 of the Civil Code provide for
compensation for non-pecuniary damage. Article 1099 states, in
particular, that non-pecuniary damage shall be compensated for
irrespective of any award for pecuniary damage.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
The
Government informed the Court that the criminal proceedings against
the alleged perpetrators of torture were still pending at the
domestic level and refrained from giving any comments on the case.
In
so far as this submission could be understood as an objection
regarding the applicants' failure to exhaust domestic remedies, the
Court notes that the respondent Government did not argue that the
domestic avenues chosen and employed by the applicants to bring their
grievances to the attention of the domestic authorities were
ineffective or otherwise inappropriate.
It
further notes that the first applicant initially complained about the
events of 25 November 1999 on the next day, 26 November 1999.
Thereafter the case was closed and reopened several times. On
22 August 2005, that is five years and almost nine months
after the date of the first complaint, the criminal proceedings were
yet again resumed and on 14 February 2007, the date on which the
respondent Government filed their additional observations, they were
still pending at the investigation stage. In the absence of any
indication to the contrary, the Court finds that the Government had
sufficient time at their disposal to address the applicants'
grievances by means of the domestic investigation. In addition, the
applicants duly participated in the proceedings and there is nothing
in the case file to suggest that they did not avail themselves of all
available domestic remedies to appeal against the unfavourable
decisions in that case.
In
view of the above, the Court finds that the applicants complied with
the requirement to exhaust domestic remedies and rejects the
Government's objection.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN
RESPECT OF THE FIRST APPLICANT
Under
Article 3 of the Convention the first applicant complained that she
had been repeatedly raped and ill-treated by the policemen and
prosecution officers on 25 November 1999. The first applicant also
complained that the authorities had failed to carry out a proper
investigation in this connection. Article 3 of the Convention
provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
The
Government disagreed with the first applicant's complaints and
allegations and submitted that on 29 April 2005 the Regional
Prosecutor's Office had resumed a criminal investigation into the
events of 25 November 1999. They considered that it was not possible
to comment further on the allegations for the time being. In their
additional observations, they also refrained from commenting on the
merits of the complaints.
The
first applicant maintained her complaints. In particular, she claimed
that the case file contained sufficient evidence of ill-treatment and
torture in respect of the first applicant and that the ensuing
investigation had fallen short of the requirements of Article 3 under
its procedural head.
B. The Court's assessment
The
Court finds it appropriate to begin by examining the first
applicant's submissions in so far as they raise an issue under the
procedural head of Article 3 of the Convention and then to turn to
the examination of the substantive issue under this Convention
provision.
1. Alleged inadequacy of the investigation
(a) Existence of an arguable claim of ill-treatment
At
the outset the Court notes that the first applicant complained about
the events of 25 November 1999 on the following day. The
investigative bodies carried out searches of the location of the
incident, leading to the discovery of two used condoms and two wipes
bearing traces of sperm. On 25 April 2000 four allegedly implicated
officers were formally charged and on 5 July 2000 the bill of
indictment was ready and the case was transferred to the trial court
for examination on the merits.
In
view of the body of evidence collected by the investigative
authorities at the initial stage of investigation and the fact that
the domestic authorities considered these items of evidence
sufficiently serious to lay the basis of criminal charges against the
allegedly implicated officers and to refer the case for trial, the
Court finds that the first applicant has an arguable claim that she
was seriously ill-treated by the State officials.
(b) General principles relating to the effectiveness
of the investigation
The Court reiterates that 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. The Court finds further that rape is for its victim an
offence of manifestly debasing character and thus emphasises the
State's procedural obligation arising in this context (see S.W. v.
the United Kingdom, judgment of 22 November 1995, Series A
no. 335 B; C.R. v. the United Kingdom, judgment of
22 November 1995, Series A no. 335 C; and M.C. v.
Bulgaria, no. 39272/98, § 153, ECHR
2003 XII). The effective official investigation should be
capable of leading to the identification and punishment of those
responsible (see Assenov and Others v. Turkey, judgment of 28
October 1998, Reports 1998-VIII, p. 3290, § 102, and
Labita v. Italy [GC], no. 26772/95, § 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, §§ 208-13, 24
February 2005).
(c) Application of those principles
The
issue thus arises whether the authorities complied with their
obligation to carry out an effective official investigation into the
matter.
The
Court observes in this connection that the investigation into the
first applicant's allegations commenced as soon as she brought the
matter before the competent authorities and that, at least on the
face of it, the authorities appeared to have acted with diligence and
promptness. Thus, the investigative bodies searched the location of
the incident, resulting in the discovery of two used condoms and two
wipes bearing traces of sperm (see paragraphs 45 and 47). It also
questioned possible witnesses and ordered necessary forensic
examinations of the items of evidence gathered (see paragraphs 41,
42, 43 and 46). On 25 April 2000, only five months after the
incident, four allegedly implicated officers were formally charged
and as soon as 5 July 2000 the bill of indictment was ready and the
case was referred to the trial court for examination on the merits
(see paragraph 37).
The
Court notes, however, that following a preliminary examination of the
case on 16 August 2000 the trial court discovered several serious
violations of domestic procedural rules, breaching the rights of the
accused, including disregard of a special procedure for opening an
investigation in respect of prosecution officers and the fact that
the allegedly implicated officers had not enjoyed the procedural
status of accused persons until 25 April 2000, which rendered
all previously collected evidence in the case inadmissible (see
paragraph 52). The case was remitted for fresh investigation and
later discontinued by the prosecution for, among other things, the
acknowledged inability to remedy the breaches of the domestic
procedure committed by the investigators during the first five months
of the inquiry (see paragraphs 58 and 59). Owing to the nature of the
evidence declared inadmissible by the trial court, it could not
apparently be re-used after remittal of the case for additional
investigation, and in these circumstances it is not surprising that
the criminal proceedings were ultimately discontinued for lack of
evidence of a crime.
Having
examined the circumstances of the case, the Court considers that it
may indeed be accepted that the authorities undertook appropriate
steps towards the identification and punishment of those responsible
for the incident and, had it not been for breaches of domestic
procedural rules by the authorities in the first five months
following the opening of the case which, as acknowledged by the
domestic courts, rendered the principal body of evidence inadmissible
(see paragraphs 49, 51-52 and 58-59), the proceedings might arguably
have complied with the requirements of the procedural aspect of
Article 3. The fact remains, however, that the competent authorities
committed procedural errors of an irremediable nature leading to the
ultimate stalemate in the criminal proceedings against the allegedly
implicated officers.
In
the absence of any other plausible explanation for these mistakes by
the Government, the Court finds that the principal reason for these
errors lay in the manifest incompetence of the prosecution
authorities which conducted the investigation between 26 November
1999 and 5 July 2000.
Accordingly,
the Court finds that there has been a violation of Article 3 of the
Convention on account of the lack of an effective investigation into
the first applicant's allegations of ill-treatment.
2. Alleged ill-treatment by State officials
The
Court will now turn to the question whether the first applicant was
subjected to ill-treatment in breach of Article 3 of the Convention.
(a) General principles
The
Court has observed on many occasions that Article 3 of the
Convention enshrines one of the fundamental values of democratic
societies and as such prohibits in absolute terms torture or inhuman
or degrading treatment or punishment (see, for example, Aksoy v.
Turkey, judgment of 18 December 1996, Reports 1996-VI,
p. 2278, § 62, and Aydın v. Turkey, judgment of
25 September 1997, Reports 1997 VI, § 81). The Court
further indicates, as it has held on many occasions, that the
authorities have an obligation to protect the physical integrity of
persons in detention and that in assessing evidence it 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, § 161). 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, §
34, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR
2000-VII). The Court further reiterates that, being sensitive to the
subsidiary nature of its role and cautious in taking on the role of a
first-instance tribunal of fact, it is nevertheless not bound by the
findings of domestic courts and may depart from them where this is
rendered unavoidable by the circumstances of a particular case (see,
for example, Matyar v. Turkey, no. 23423/94, § 108,
21 February 2002; by contrast Edwards v. the United Kingdom,
judgment of 16 December 1992, Series A no. 247 B, p. 12, §
34, and Vidal v. Belgium, judgment of 22 April 1992, Series A
no. 235 B, pp. 32-33, §§ 33-34).
(b) Assessment of the evidence
In
the present case the initial criminal investigation in respect of the
events of 25 November 1999 led to the discovery of evidence, such as
the used condoms, one of which, with a very high probability of
99.9999%, bore traces of the first applicant's vaginal cells (see
paragraph 46), and two wipes bearing traces of sperm (see paragraph
47), as well as the clothes with traces of sperm which the first
applicant had allegedly been wearing at the relevant time (see
paragraph 48), the clothes belonging to policeman Kh. with the traces
of vaginal epithelium of the same antigen group as the first
applicant's (see paragraph 44), the medical certificate confirming an
attempt by the first applicant to cut her veins and the first
applicant's handwritten statement of a self-incriminating character
(see paragraph 43), which all very strongly supported the first
applicant's account of events, as regards both the alleged repeated
rape and various acts of coercion and ill-treatment by the State
officials. Indeed, regard being had to the fact that the bill of
indictment of 5 July 2000 was based on, among other things, the above
items of evidence, and also in view of the number of decisions
resuming and discontinuing the case (see paragraph 58-70), it can be
said that the authorities conceded that the allegations had been
credible.
The
Court next takes note of its conclusions made in respect of the
procedural aspect of Article 3 of the Convention (see paragraph
92-97) and the fact that the domestic courts declared the
above-mentioned evidence inadmissible solely on the ground of
procedural defects (see paragraphs 51 and 52) and that neither the
Government nor the domestic authorities ever challenged it as
erroneous as such.
The
Court reiterates its settled case-law that strong presumptions of
fact will arise in respect of proven injuries occurring during
detention and that the burden of proof is reversed and may be
regarded as resting on the authorities to provide a satisfactory and
convincing explanation for the injuries in question (see Ribitsch
and Salman, both cited above). The Court considers that,
likewise, in situations such as that in the present case where the
investigation has gathered such an impressive body of evidence
strongly and unambiguously supportive of the applicant's account of
events, it is for the respondent Government to fulfil the burden of
proof and to provide a satisfactory and convincing explanation for
the origin of that evidence on pain of recognition that the
applicant's allegations of ill-treatment are truthful and correct.
The
Court notes that no such explanation has been advanced either at the
domestic level, or in the proceedings before this Court. Without
prejudice to the question of the personal criminal liability of the
alleged perpetrators of the criminal acts in question, the Court
concludes therefore that the Government failed to fulfil its burden
and that it was not satisfactorily established that the first
applicant's account of events had been inaccurate or otherwise
erroneous.
Accordingly,
the Court accepts the description of the events of 25 November
1999 as presented by the first applicant.
(c) Assessment of the severity of
ill-treatment
The
Court notes that it has accepted the facts as presented by the first
applicant, namely that she was detained by the State officials and
while in custody was repeatedly raped and subjected to various other
forms of ill-treatment, such as beatings, suffocation and
electrocution (see paragraph 105 above and paragraphs 12-34 in
the facts section).
The
Court observes that according to its settled case-law a rape of a
detainee by an official of the State must be considered to be an
especially grave and abhorrent form of ill-treatment given the ease
with which the offender can exploit the vulnerability and weakened
resistance of his victim. Furthermore, rape leaves deep psychological
scars on the victims which do not respond to the passage of time as
quickly as other forms of physical and mental violence. The victim
also experiences the acute physical pain of forced penetration, which
leaves her feeling debased and violated both physically and
emotionally (see Aydın, cited above, § 83).
In
view of the above, the Court is satisfied that the accumulation of
the acts of physical violence inflicted on the first applicant (see
paragraphs 13, 14, 17, 21 and 31-32) and the especially cruel
acts of repeated rape to which she was subjected (see paragraphs 14
and 31-32) amounted to torture in breach of Article 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION IN RESPECT OF THE FIRST APPLICANT
The
first applicant also complained about the failure of the authorities
to carry out a proper investigation in connection with the events of
25 November 1999, relying on Articles 6 and 13 of the Convention.
In
view of its above finding about the breach of the procedural aspect
of Article 3, on account of the lack of an effective investigation
into the events of 25 November 1999 (see paragraph 97), the Court
considers that no separate issue arises under Articles 6 and 13 of
the Convention in the circumstances of the present case.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN
RESPECT OF THE SECOND APPLICANT
The
second applicant also complained about ill-treatment by the State
officials on 25 November 1999 and the alleged lack of an effective
investigation in this connection. He relied on Article 3 of the
Convention.
A. The parties' submissions
The
Government disagreed with these complaints. Their observations were
essentially the same as those in respect of the first applicant (see
paragraphs 86 and 87).
The
second applicant maintained his complaints.
B. The Court's assessment
1. Alleged inadequacy of the investigation
The
Court notes that the second applicant had the status of crime victim
in the case initiated upon the complaint of the first applicant on
26 November 1999 (see paragraph 35). Furthermore, the
investigative authorities considered the evidence in the case
sufficient not only to bring charges against Kh. and S. for abuse of
office and ill-treatment of the second applicant, but also to prepare
the bill of indictment in this connection and to send the case for
trial (see paragraph 37).
In
view of these factors, the Court finds that the second applicant has
an arguable claim that he was ill-treated by the State officials.
The
Court reiterates that 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 (see earlier citations
in paragraph 91). The issue thus arises whether the authorities
complied with their obligation to carry out an effective official
investigation into the matter.
The
Court notes that it has made a finding of a violation of Article 3
of the Convention on account of various deficiencies and errors
committed by the investigative authorities in the same criminal case
in so far as it concerned the first applicant (see paragraphs 92-97).
In view of this finding and since the reasons indicated in paragraph
95 hold true in respect of the second applicant, the Court finds that
there has been a violation of Article 3 of the Convention on account
of the lack of an effective investigation into the second applicant's
allegations of ill-treatment as well.
2. Alleged ill-treatment by the State officials
(a) Assessment of the evidence
The
Court again reiterates its settled case-law that the authorities have
an obligation to protect the physical integrity of persons in
detention and that in assessing evidence it has generally applied the
standard of proof “beyond reasonable doubt”. The proof
may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see earlier citations in paragraphs 99-100).
Turning
to the circumstances of the present case, the Court notes that the
second applicant complained of having been beaten and strangled
between 6.30 and 7 p.m. on 25 November 1999 by the police officers
(see paragraphs 25-28). The Court observes that any ill-treatment
inflicted in the manner alleged by the applicant would have left
marks on his body which could have been seen and attested by a
doctor. It further notes that the materials in
its possession do not contain any such medical evidence and do not
allow it to confirm “beyond reasonable doubt” the second
applicant's account of events in this respect.
The
Court notes, however, that on 12 December 2006 it requested
the Government to submit a copy of the entire investigation file
opened into the events of 25 November 1999, since it regarded the
evidence contained in that file as crucial to the establishment of
the facts in the present case in particular in so far as the second
applicant's mentioned allegations were concerned. In reply, the
Government produced only copies of procedural decisions suspending
and reopening criminal proceedings and refused to submit any other
documents.
Since
the Government failed to submit any plausible explanation for this
refusal (see paragraphs 128-31 below) and bearing in mind the
principles cited above, the Court finds that it can draw inferences
from the Government's conduct in this respect.
The
Court considers that throughout the domestic proceedings the second
applicant has presented a coherent and convincing account of events
of 25 November 1999 which was furthermore supported by the evidence
collected by the investigative authority. The material collected by
the investigative authority was deemed sufficient to lay basis of
criminal charges against officers Kh. and S. for abuse of authority
and ill-treatment of the second applicant and to present the criminal
case in this respect to the trial court (see paragraphs 38-48). The
Court also notes that it reviewed no material which could cast doubt
on the credibility of the second applicant's statements or the
information submitted by him. Furthermore, no alternative account of
events was advanced by either the domestic authorities or the
Government in these proceedings.
In
view of the above and regard being had to its earlier conclusions
concerning the flaws in the investigation and the decision to accept
the description of the events of 25 November 1999 as presented by the
first applicant (see paragraphs 102-05), the Court accepts the
description of the events of 25 November 1999 as presented by the
second applicant.
(b) Assessment of the severity of
ill-treatment
The
Court notes that it has accepted the facts as presented by the second
applicant, namely that he was detained by the State officials and
while in custody was punched, kicked and suffocated (see paragraphs
25-27).
Having
regard to all the circumstances of the case, such as the duration of
the treatment and its physical or mental effects, the Court concludes
that, taken as a whole and having regard to its purpose and severity,
the ill-treatment at issue amounted to inhuman and degrading
treatment in violation of Article 3 of the Convention.
V. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION IN RESPECT OF THE SECOND APPLICANT
The
second applicant further complained about the lack of a proper
investigation, relying on Articles 6 and 13 of the Convention.
In
view of its above finding about the breach of the procedural aspect
of Article 3 on account of the lack of an effective investigation
into the events of 25 November 1999 (see paragraph 117), the Court
considers that no separate issue arises under Articles 6 and 13 of
the Convention in this connection.
VI. COMPLIANCE WITH ARTICLE 38 § 1 (a) OF THE
CONVENTION
The
Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
under Article 34 of the Convention that States should furnish all
necessary facilities to make possible a proper and effective
examination of applications (see Tanrıkulu v. Turkey
[GC], no. 23763/94, § 70, ECHR 1999 IV). This obligation
requires the Contracting States to furnish all necessary facilities
to the Court, whether it is conducting a fact-finding investigation
or performing its general duties as regards the examination of
applications. Failure on a Government's part to submit such
information which is in their hands, without a satisfactory
explanation, may not only give rise to the drawing of inferences as
to the well-foundedness of the applicant's allegations, but may also
reflect negatively on the level of compliance by a respondent State
with its obligations under Article 38 § 1 (a) of the
Convention (see Timurtaş v. Turkey, no. 3531/94, §
66, ECHR 2000-VI). In a case where the application raises issues of
the effectiveness of the investigation, the documents of the criminal
investigation are fundamental to the establishment of facts and their
absence may prejudice the Court's proper examination of the complaint
both at the admissibility stage and at the merits stage (see
Tanrıkulu, cited above, § 70).
The
Court observes that on 12 December 2006 it requested the Government
to submit a copy of the file of the investigation opened into the
events of 25 November 1999. The evidence contained in that file was
regarded by the Court as crucial to the establishment of the facts in
the present case. In reply, the Government produced only copies of
procedural decisions suspending and reopening criminal proceedings.
They refused to submit any other documents.
The
Court notes that the Government did not provide any explanation to
justify withholding the key information requested by the Court.
Having
regard to the importance of cooperation by the respondent Government
in Convention proceedings and the difficulties associated with the
establishment of the facts in cases such as the present one, the
Court finds that the Russian Government fell short of their
obligations under Article 38 § 1 (a) of the Convention on
account of their failure to submit copies of the documents requested
in respect of the events of 25 November 1999.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The first applicant claimed 70,000 euros (EUR) and the second
applicant claimed EUR 30,000 in respect of non-pecuniary damage.
The
Government argued that the finding of a violation in the case would
constitute sufficient compensation.
The
Court observes that it has found above that the authorities subjected
the first applicant to repeated rape and ill-treatment, in breach of
Article 3 of the Convention. Under this provision it has also found
that there was no effective investigation in respect of the events of
25 November 1999 as regards the first applicant. Having regard to the
seriousness of the violations of the Convention as well as to its
established case-law (see Aydın, cited above, §§
126-31, Mikheyev v. Russia, no. 77617/01, § 163,
26 January 2006, and Selmouni v. France [GC], no.
25803/94, § 123, ECHR 1999 V), the Court awards the first
applicant the entire amount claimed, i.e. EUR 70,000 for
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
As
regards the second applicant, it has been established that the
authorities subjected the second applicant to inhuman and degrading
treatment, in breach of Article 3 of the Convention, and that there
was also no effective investigation in breach of that provision. In
view of these considerations, the Court awards the second applicant,
on an equitable basis, EUR 10,000 for non-pecuniary damage, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
The
applicants did not submit any claims under this head and the Court
accordingly makes no award in respect of costs and expenses.
C. Default interest
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
Dismisses the Government's preliminary
objection;
Holds that there has been a violation of Article
3 of the Convention in respect of the first applicant on account of
the lack of an effective investigation into the events of 25 November
1999;
Holds that there has been a violation of Article
3 of the Convention on account of the first applicant's repeated rape
and ill-treatment at the hands of State officials;
Holds that no separate issue arises under
Articles 6 and 13 of the Convention as regards the first
applicant's complaints about the lack of an effective investigation;
Holds that there has been a violation of
Article 3 of the Convention in respect of the second applicant
on account of the lack of an effective investigation into the events
of 25 November 1999;
Holds that there has been a violation of
Article 3 of the Convention on account of the ill-treatment of
the second applicant at the hands of State officials;
Holds that no separate issue arises under
Articles 6 and 13 of the Convention as regards the second
applicant's complaints about the lack of an effective investigation;
Holds that there has been a failure to comply
with Article 38 § 1 (a) of the Convention in that the Government
refused to submit the documents requested by the Court;
Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 70,000
(seventy thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
the respondent State is to pay the second applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 10,000
(ten thousand euros) in respect of non-pecuniary damage, to be
converted into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(c) 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;
Dismisses the remainder of the second
applicant's claim for just satisfaction.
Done in English, and notified in writing on 24 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President