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MARYIN v. RUSSIA - 1719/04 [2010] ECHR 1578 (21 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1578.html
Cite as:
[2010] ECHR 1578
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FIRST
SECTION
CASE OF MARYIN v. RUSSIA
(Application
no. 1719/04)
JUDGMENT
STRASBOURG
21 October
2010
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 Maryin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 30 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 1719/04) 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, Mr Konstantin Sergeyevich
Maryin (“the applicant”), on 3 December 2003.
The
applicant was represented by Mr S. Maryin, his father. The Russian
Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation
at the European Court of Human Rights.
The
applicant alleged, in particular, that on 30 July 2005 he had
been beaten up by guards at the remand prison and that the
authorities had failed to conduct a proper investigation into the
incident.
On
18 November 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1983 and lives in Saransk, the Republic of
Mordoviya.
A. Determination of the criminal charge against the
applicant
1. The first set of criminal proceedings
On
12 October 2002 the applicant was arrested and charged with rape. He
was released two days later on an undertaking not to leave town. On
an unspecified date the applicant moved to Moscow. He was
subsequently apprehended on a train going from Moscow to Saransk and
remanded in custody pending investigation and trial on 21 August
2003.
The
Insarskiy District Court of the Republic of Mordoviya opened the
trial against the applicant on 10 September 2003 and appointed
lay assessors P. and S. as members of the bench considering the
criminal charge against the applicant on 17 September 2003. On 23
September 2003 the applicant unsuccessfully challenged the
composition of the bench, alleging that the term of office of the lay
assessors had expired.
The
applicant was found guilty as charged and sentenced to five years’
imprisonment. The District Court delivered the verdict on 2 October
2003. On 3 December 2003 the Supreme Court of the Republic of
Mordoviya upheld it on appeal.
2. The second set of criminal proceedings
On
2 February 2004 the Supreme Court of the Republic of Mordoviya
granted a request by the applicant for supervisory review. The court
noted that the second-instance court had failed to address all the
issues raised by the applicant in his points of appeal. The Presidium
of the Supreme Court quashed the appeal judgment of 3 December 2003
and remitted the case for fresh consideration on 12 February
2004.
The
Supreme Court suspended consideration of the applicant’s appeal
and assigned the President of the Supreme Court to verify the
lawfulness of the lay assessors’ participation in the
applicant’s trial on 10 March 2004. On 14 April 2004 the
Supreme Court considered the applicant’s appeal and upheld his
conviction. The court noted that the trial had been conducted in
accordance with the rules of criminal procedure.
Following
the applicant’s request for supervisory review, the Presidium
of the Supreme Court quashed the judgment of 14 April 2004 and
remitted the case for fresh consideration on 8 July 2004.
On
1 September 2004 the Supreme Court quashed the judgment of
2 October 2003 on appeal and remitted the matter for fresh
consideration to the Proletarskiy District Court of Saransk.
The
District Court found the applicant guilty as charged and sentenced
him to five years’ imprisonment on 20 December 2004. On 9 March
2005 the Supreme Court upheld the judgment of 20 December 2004 on
appeal.
3. The third set of criminal proceedings
On
26 May 2005 the Presidium of the Supreme Court of the Republic of
Mordoviya quashed the appeal judgment of 9 March 2005 by way of
supervisory review and remitted the case for fresh consideration. The
court noted that the appellate court had failed to assess the
admissibility of the victim’s testimonies.
A
new consideration of the applicant’s appeal by the Supreme
Court on 29 June 2005 resulted in the quashing of the judgment of
20 December 2004. The matter was remitted to the lower court for
fresh consideration.
On
25 October 2005 the District Court found the applicant guilty as
charged and sentenced him to five years’ imprisonment. The
court based its findings on the witnesses’ testimonies,
including those provided by the victim, who testified in court, and
on forensic evidence. The court further ordered the applicant to pay
for the services provided by a legal-aid lawyer in the amount of
5,220 Russian roubles. On 15 March 2006 the Supreme Court upheld the
applicant’s conviction on appeal, but reduced his sentence to
three years’ imprisonment.
B. The applicant’s detention
1. The applicant’s detention in a correctional
colony
From
30 December 2003 to August 2004 the applicant was detained in a
correctional colony. Some of his belongings were allegedly stolen
during his transport to the colony. On 17 August 2004 the
administration of the colony refused to investigate the applicant’s
allegations.
On
3 February 2004 the applicant had an altercation with another inmate.
According to the applicant, he was beaten up by the guards for
refusing to explain in writing the reasons for the altercation.
According
to the applicant, on 9 July 2004 the administration of the colony
allegedly refused to allow the applicant to meet his father, who
represented him during the trial.
2. The incident of 30 July 2005 and the ensuing
investigation
In
August 2004 the applicant was transported to remand prison
no. IZ-13/1 in Saransk.
Following
the applicant’s failure to comply with internal regulations, on
26 July 2005 he was placed in a disciplinary cell for seven days.
On
30 July 2005 the warden, his deputy and two guards inspected the
prison. They noticed an inter-cell communications device in the
applicant’s cell. The applicant tried to prevent them from
entering the cell. He pushed them and swore at them. L., one of the
guards, hit the applicant three times with a rubber truncheon. The
applicant gave up his resistance. He was then examined by a paramedic
who noted four bruises on his shoulders, buttocks and left forearm
which did not require medical treatment. The device was removed from
the applicant’s cell and destroyed.
In
response to the complaint lodged by the applicant’s father on
2 August 2005, on 5 August 2005 the prosecutor questioned the
applicant in respect of the incident of 30 July 2005. The applicant
was also examined by a paramedic who noted a yellowish bruise on his
left shoulder.
On 12 August 2005 the prosecutor refused to institute
criminal proceedings against the alleged perpetrators. He stated that
the guard had used the rubber truncheon lawfully. The prosecutor
based his findings on testimonies provided by the applicant and the
guards. He studied the reports prepared by the guards to account for
the use of force against the applicant and the medical documentation
prepared by the paramedics who had examined the applicant. In
particular, his findings were as follows:
“On 30 July 2005 M., the warden of the remand
prison..., G., the deputy warden of the remand prison..., and
[officers] Mus. and L. inspected the disciplinary cells. In cell
no. 3, where [the applicant] was held, they saw an inter-cell
communications device. The [officers] tried to enter the cell to
remove the ... device and to search the [applicant]. However, the
latter resisted. He pushed them out of the cell and grabbed L. by the
arms so that the latter could not search him. In addition to those
unlawful actions, [the applicant] swore and ignored the officers’
requests to stop his unlawful behaviour. Accordingly L. had to use
force against [the applicant]: he hit [the applicant] three times
with the rubber truncheon. He administered the blows to the back and
the buttocks. He did not hit [the applicant] on the head ...
The inquiry did not uncover any evidence to confirm [the
applicant’s allegations] that he had been beaten up by M., the
warden of the remand prison, and the other officers.
The use of the rubber truncheon against the applicant
has been justified, in accordance with section 45 of the Federal Law
on Detention of Suspects and Defendants charged with Criminal
Offences.”
The
prosecutor’s decision was upheld by the Leninskiy District
Court of Saransk on 27 September 2005. The court found that the
applicant had resisted the guards and that the latter had had to use
force to restrain him. The applicant appealed. He argued that in the
circumstances of the case, in which four officers had been involved,
the use of the rubber truncheon against him was excessive. On 23
November 2005 the Supreme Court of the Republic of Mordoviya upheld
the decision of 27 September 2005 on appeal.
3. Further allegations of ill-treatment
On
5 September 2005 the remand prison administration force-fed the
applicant. The complaint lodged by the applicant’s father with
the prosecutor’s office on 6 September 2005 was left without
response.
On
12 October 2005 the applicant was allegedly handcuffed with his arms
behind his back and hung from the railings by the guards. The
applicant’s feet did not touch the floor. He was kept in that
position for two hours. The complaint lodged by the applicant’s
father was dismissed by the prosecutor’s office on 17 January
2006. According to the prosecutor, the applicant had assaulted a
guard and had to be restrained with handcuffs. At no point had the
guards hung him from the railing.
It
appears that in 2009 the prosecutor’s office carried out an
additional investigation into the incident of 12 October 2005 and on
11 January 2009 the applicant’s complaint was dismissed
anew. According to the applicant, the final decision on the matter
was taken by the Supreme Court of the Mordoviya Republic on 26
February 2009.
4. Extension of the applicant’s detention pending
the third trial
The
applicant remained in custody pending the third trial. On 24 August
2005 the Proletarskiy District Court of Saransk extended the
applicant’s detention for three months. The court noted that
the applicant was charged with a serious crime and had tried to
abscond during the investigation of the case. On 30 November 2005 the
Supreme Court upheld the decision on appeal.
5. Detention at the courthouse
On
15 February and 15 March 2006 the applicant was transported to
the Supreme Court of the Republic of Mordoviya for appeal hearings.
He alleged that on those days he could not use his dry food ration
because of the lack of facilities to boil water in the courthouse. On
4 April 2006 the Ministry of the Interior informed the applicant’s
father that the courthouse was indeed not equipped with a kettle and
forwarded a copy of his complaint to the department responsible for
the maintenance of courthouses.
6. The applicant’s release
After
having served a prison sentence, the applicant was released on
18 October 2006.
II. RELEVANT DOMESTIC LAW
Federal Law on Detention of Suspects and Defendants charged with
Criminal Offences
Physical force in respect of detainees may be employed
in order to put an end to their misconduct or resistance to
legitimate orders of detention officers if non-forceful
alternatives are not feasible (section 44).
33. Rubber
truncheons may be used in respect of detainees in the following
circumstances (section 45):
(1) to
put an end to an assault by the detainee on detention officers;
(2) to
suppress mass uprisings or collective breaches of public order;
(3) to
put an end to misconduct by the detainee in resisting the legitimate
orders of detention officers;
(4) to
free hostages;
(5) to
put an end to the detainee’s attempt to escape; or
(6) to
put an end to the detainee’s attempt to cause harm to others.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that on 30 July 2005 he was beaten up by
the guards and that the ensuing investigation was not effective in
contravention of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument. They argued that the use of force
against the applicant had been lawful and justified. On numerous
occasions he had failed to comply with internal regulations. He had
been involved in fights and altercations with other inmates and
refused to follow lawful orders given by the personnel of the remand
prison and correctional colony. As regards the incident of 30 July
2005, the applicant had failed to comply with the lawful demands of
the warden and the guards and the latter had responded accordingly to
put an end to his attack. The altercation had taken place in the
narrow doorway of the disciplinary cell. The guard who had used the
truncheon against the applicant had had to react promptly since the
others had been unable to help him because of the limited space. The
guard duly warned the applicant and only after that used the rubber
truncheon to restrain him. The use of the rubber truncheon against
the applicant had lasted only a few seconds and could not be
considered to be “inhuman or degrading treatment”.
Furthermore, the guards had immediately taken the applicant to the
doctor, who had examined him and documented the injuries inflicted.
The injuries had not been serious and had not caused any health
problems. The applicant’s allegations of ill-treatment had been
verified by the prosecutor and the courts at two levels of
jurisdiction. The prosecutor had questioned the applicant, the guards
and the medical personnel. He had not considered it necessary to
inspect the alleged crime scene. The prosecutor’s findings had
been confirmed by the courts. The investigation carried out by the
authorities in response to the applicant’s allegations of
ill-treatment had been effective as required by the procedural limb
of Article 3 of the Convention.
The
applicant maintained his complaints. He denied that he had put up any
resistance to the guards. Given his weight of less than 60 kg and his
height of 1.65 m, it had been physically impossible for him to
effectively resist four officers, one of whom had been more than two
metres tall. Nor had the guards had any injuries. In his view, the
use of the rubber truncheon against him had been excessive and
unnecessary. It had been retaliatory in nature and amounted to
torture. The applicant further contended that the ensuing inquiry had
not been effective or thorough. Nor had it been complete. The
prosecutor had not questioned the applicant’s representative or
commissioned an independent forensic medical examination of the
applicant’s injuries.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Alleged ill-treatment
The
Court has stated on many occasions that Article 3 enshrines one of
the most fundamental values of democratic societies. Even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture
and inhuman and degrading treatment or punishment, irrespective of
the victim’s conduct (see, among many other authorities, Labita
v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and
Selmouni v. France [GC], no. 25803/94, § 95, ECHR
1999-V).
In
the context of detainees, the Court has emphasised that persons in
custody are in a vulnerable position and that the authorities are
under a duty to protect their physical well-being (see Tarariyeva
v. Russia, no. 4353/03, § 73, ECHR 2006-... (extracts);
Sarban v. Moldova, no. 3456/05, § 77, 4 October
2005; and Mouisel v. France, no. 67263/01, § 40,
ECHR 2002 IX). In respect of a person deprived of his
liberty, any recourse to physical force which has not been made
strictly necessary by his own conduct diminishes human dignity and is
in principle an infringement of the right set forth in Article 3 of
the Convention (see Sheydayev v. Russia, no. 65859/01, §
59, 7 December 2006, and Ribitsch v. Austria, 4 December 1995,
§ 38, Series A no. 336). The burden of proof rests on the
Government to demonstrate with convincing arguments that the use of
force, which resulted in the applicant’s injuries, was not
excessive (see, for example, Dzwonkowski v. Poland, no.
46702/99, § 51, 12 April 2007).
Turning
to the circumstances of the present case, the Court observes that it
is not disputed by the parties that on 30 July 2005 the
applicant sustained the injuries as a result of the use of force
against him by the remand prison personnel. The Court takes
cognisance of the Government’s argument that those injuries
were not serious and did not cause any “health problem”.
However, this fact alone cannot rule out a possibility that the
treatment was severe enough to be considered inhuman or degrading.
The Court considers that the degree of bruising noted by the remand
prison paramedics indicated that the applicant’s injuries were,
as such, sufficiently serious. Accordingly, the question before the
Court in the instant case is whether the State should be held
responsible under Article 3 in respect of these injuries.
Having
regard to the material in its possession and to the parties’
submissions before it, the Court answers this question in the
negative. In the Court’s view, the use of force against the
applicant had been lawful and strictly necessary, in response to the
applicant’s unruly behaviour.
The
Court accepts the Government’s explanation that the altercation
between the applicant and L., a prison guard who used the rubber
truncheon to subdue the applicant, had taken place in a narrow
doorway and that the other officers present could not have come to
L.’s rescue.
Furthermore,
the Court observes that the applicant was refusing to comply with the
legitimate orders of the remand prison personnel. He swore at the
officers, pushed them out of the cell and grabbed one of them by the
arms. The Court accepts that in these circumstances the officers
needed to resort to physical force in order to enter the cell and
search the applicant.
In
these circumstances, the Court cannot conclude that on 30 July
2005 the use of a rubber truncheon by a prison guard to restrain the
applicant amounted to inhuman and degrading treatment contrary to
Article 3 of the Convention. While the applicant experienced
certain mental and physical suffering as a result of the altercation
with the remand prison officers, the use of force against him cannot
be held to have been excessive. It follows that there has been no
violation of Article 3 of the Convention under its substantive limb.
2. Adequacy of the investigation
The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated by the
police or other such agents of the State unlawfully and 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, cited above, §
102).
An
obligation to investigate “is not an obligation of result, but
of means”: not every investigation should necessarily be
successful or come to a conclusion which coincides with the
claimant’s account of events; however, it should in principle
be capable of leading to the establishment of the facts of the case
and, if the allegations prove to be true, to the identification and
punishment of those responsible (see Paul and Audrey Edwards v.
the United Kingdom, no. 46477/99, § 71, ECHR 2002-II,
and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR
2000-III).
An
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis
for their decisions (see Assenov and Others, cited above, §§
103 et seq.). They must take all reasonable steps available to them
to secure evidence concerning the incident, including, inter alia,
eyewitness testimony and forensic evidence (see, mutatis
mutandis, Salman v. Turkey [GC], no. 21986/93, § 106,
ECHR 2000-VII; Tanrıkulu v. Turkey [GC], no. 23763/94, §§
104 et seq., ECHR 1999-IV; and Gül v. Turkey,
no. 22676/93, § 89, 14 December 2000). Any deficiency in
the investigation which undermines its ability to establish the cause
of injuries or the identity of the persons responsible will risk
falling foul of this standard.
Furthermore,
the investigation must be expeditious. In cases examined under
Articles 2 and 3 of the Convention, where the effectiveness of
the official investigation is at issue, the Court has often assessed
whether the authorities reacted promptly to the complaints at the
relevant time (see Labita, cited above, §§ 133
et seq.). Consideration has been given to the starting of
investigations, delays in taking statements (see Timurtaş
v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin
v. Turkey, 9 June 1998, § 67, Reports 1998-IV), and
the length of time taken to complete the initial investigation (see
Indelicato v. Italy, no. 31143/96, § 37, 18 October
2001).
Turning
to the facts of the present case, the Court observes that, following
the applicant’s complaint lodged on 2 August 2005, the
prosecutor’s office carried out an inquiry into his allegations
of ill treatment. The inquiry was completed on 12 August 2005.
The applicant’s allegations were subsequently subjected to
examination by domestic courts at two levels of jurisdiction. The
final decision on the matter was taken on 23 November 2005. The
Court accepts that the authorities promptly reacted to the
applicant’s complaint.
The
Court further observes that the authorities took all the steps
necessary to verify the applicant’s accusations. They
questioned the applicant and the prison officers involved in the
incident and studied the reports prepared by them and the results of
the applicant’s medical examinations conducted by two
paramedics. The judicial authorities reviewed the materials of the
prosecutor’s inquiry and ensured both the applicant’s and
his representative’s presence in court. The Court discerns
nothing in the materials in its possession to suggest that the
domestic authorities’ findings in respect of the applicant’s
allegations were unreasonable or lacking basis in evidence.
The foregoing considerations are sufficient to enable
the Court to conclude that the investigation into the applicant’s
complaint of ill treatment in police custody was “effective”.
There has therefore been no violation of Article 3 of the
Convention under its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant referred to the violation of his rights set forth in
Articles 3, 5, 6 and 8 of the Convention and Article 1 of
Protocol No. 1 in the course of the criminal proceedings against him.
However,
having regard to all the material in its possession, the Court finds
that the events complained of do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded pursuant to Articles 35
§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 3 of the
Convention concerning the ill-treatment of the applicant on 30 July
2005 and the effectiveness of the ensuing investigation admissible
and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 3 of the Convention.
Done in English, and notified in writing on 21 October 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
