(Application no. 8413/02)
14 May 2009
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 Alibekov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 14 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s criminal convictions
B. Applicant’s detention in correctional colony no. IU-4
1. Alleged ill-treatment in 2000
2. Alleged ill-treatment in August 2002
“State of health after the use of force: no injuries.”
3. Investigation into the applicant’s complaints of ill-treatment
C. Proceedings concerning the applicant’s transfer
II. RELEVANT DOMESTIC LAW
A. Code on Execution of Punishments (no. 1-FZ of 8 January 1997)
B. Penitentiary Institutions Act (no. 5473-I of 21 July 1993)
(1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees;
(2) ensure the least possible harm to detainees and provide medical assistance;
(3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28).
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
B. The Court’s assessment
(a) Alleged ill-treatment
(b) Alleged inadequacy of the investigation
“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.”
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT
(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, EUR 3,000 (three 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 on that amount;
(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;
Done in English, and notified in writing on 14 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Spielmann is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE SPIELMANN
I. As to the factual circumstances of the case
II. As to the uncertainties surrounding the burden and standard of proof in proceedings concerning alleged violations of Article 3 of the Convention.
“expecting those who claim to be victims of torture to prove their allegations ‘beyond reasonable doubt’ places on them a burden that is as impossible to meet as it is unfair to request. Independent observers are not, to my knowledge, usually invited to witness the rack, nor is a transcript of proceedings in triplicate handed over at the end of each session of torture; its victims cower alone in oppressive and painful solitude, while the team of interrogators has almost unlimited means at its disposal to deny the happening of, or their participation in, the gruesome pageant. The solitary victim’s complaint is almost invariably confronted with the negation ‘corroborated’ by many” (see paragraph 14 of the Opinion).
This is even more true where the alleged ill-treatment occurred in the closed environment of a prison.
III. As to the consequences to be drawn from an inadequate and ineffective investigation
“adopts the standard of proof beyond reasonable doubt but adds that such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context the conduct of the parties when evidence is being obtained has to be taken into account (emphasis added)”1
1 I would like to emphasise that this is not the first time that the Court has had to deal with operations conducted by special-purpose squads in Russian prison colonies. In Dedovskiy and Others v. Russia (no. 7178/03, 15 May 2008), the Court found that the applicants were subjected to torture. In Vladimir Romanov v. Russia (no. 41461/02, 24 July 2008), the Court again found that the applicant was subjected to treatment which can be described as torture. In Sharomov v. Russia (no. 8927/02, 15 January 2009), the Court, on the basis of a report, statements and the fact that the presence of a squad had been authorised and the officers had been advised of the applicable rules on the use of force, found no violation of the substantive limb of Article 3. In that case, no separate claim concerning an alleged ineffective investigation was made.
1 See Judge Bonello’s partly dissenting opinion in the case of Sevtap Veznedaroğlu v. Turkey, no. 32357/96, 11 April 2000.
1 See Loukis Loucaides, “Standards of Proof in Proceedings Under the European Convention on Human Rights”, in Présence du droit public et des droits de l’homme. Mélanges offerts à Jacques Velu, Bruxelles, Bruylant, 1992, p. 1431, and reprint in Essays on the Developping Law of Human Rights, Leiden, Boston, Martinus Nijhoff, 2007, p. 158.
2 On the standard of proof, see Patrick Kinsch, “On the Uncertainties surrounding the Standards of Proof in Proceedings before International Courts and Tribunals”, in Individual Rights and International Justice, Liber Fausto Pocar, Milan, Giuffrè Editore, 2009, p. 427.
1 See also the partly dissenting opinion of Judge Loucaides, joined by myself, in the case of Zubayrayev v. Russia (no. 67797/01, 10 January 2008).