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SLYUSAREV v. RUSSIA - 60333/00 [2010] ECHR 619 (20 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/619.html
Cite as:
57 EHRR 33,
(2013) 57 EHRR 33,
[2010] ECHR 619
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THIRD
SECTION
CASE OF
SLYUSAREV v. RUSSIA
(Application
no. 60333/00)
JUDGMENT
STRASBOURG
20 April
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 Slyusarev v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Anatoly
Kovler,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 60333/00) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Vladimir Yuryevich
Slyusarev (“the applicant”), on 25 April 2000.
The
applicant, who had been granted legal aid, was represented by Ms K.
Kostromina, a lawyer with the Centre of Assistance to International
Protection, a Moscow-based human-rights NGO. The Russian Government
(“the Government”) were represented by Mr P. Laptev and
Ms V. Milinchuk, former Representatives of the Russian
Federation at the European Court of Human Rights.
The
applicant alleged, inter alia, that the taking of his
glasses by the police after his arrest in 1998 amounted to inhuman
and degrading treatment.
By
a decision of 9 November 2006 the Court declared the application
partly admissible.
The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1970 and lives in Moscow.
Late
in the night of 2 July 1998, a Ms P. was assaulted at the entrance of
her house. Two of her neighbours apprehended the applicant on
suspicion that he had committed the crime and handed him over to the
police. The applicant was taken to the Moscow Pechatniki District
Police Department (ОВД
«Печатники»)
for questioning. It appears that at a certain point the applicant's
glasses were partially broken and the police took them away from the
applicant, who was short-sighted (according to the applicant, he
needed glasses of 3.5 dioptres).
At
the police station the applicant signed a written statement in which
he confessed that he had tried to rob Ms P. using a gas handgun, and
that there had been a short fight between him and one of her
neighbours. The neighbours confirmed that testimony in written
statements taken by the police officers.
On
3 July 1998 the police instituted criminal proceedings against the
applicant on suspicion of armed robbery of Ms P. and illegal
possession of firearms. On an unspecified date the applicant was also
charged with three counts of fraud, which were not related to the
episode with Ms P.
On
4 July 1998 the applicant was taken by the policemen to see a doctor.
It appears that the applicant did not complain to the doctor about
any injury.
11. On
6 July 1998 the applicant was questioned again in connection with the
robbery, now in the presence of his lawyer. This time the applicant
retracted his initial statement of confession.
On
an unspecified date the applicant was transferred from the police
department to a pre-trial detention centre (isolation unit IZ-48/1)
in Moscow. The applicant alleged that he had asked the administration
of the unit to provide him with new glasses, but his request had been
refused. According to the applicant, he also asked the investigator
in charge of his case to arrange for him to have his eyesight
examined by an oculist.
On 14 July 1998 the applicant filed an application for
release with the Preobrazhenskiy District Court, in which he gave his
version of the events of 2 July 1998. He contended that Ms P. had
stolen money from him, and that he had tried to retrieve his money or
have her arrested. He claimed that he was not guilty of robbery and
that his arrest had been unlawful. Among many other arguments, he
indicated that he was short-sighted, that his glasses had been taken
from him by the police, and that his eyesight was deteriorating.
According
to the applicant, on 1 September 1998 he had complained to the
investigator about the deterioration of his eyesight. On 9 September
1998 the investigator ordered the applicant's examination at the
Moscow Helmholtz Eye Disease Institute.
On
14 September 1998 the applicant's wife filed a complaint with the
district prosecutor, claiming that the applicant had been beaten up
by the police shortly after his arrest. She also requested the
prosecution to return the glasses to her husband.
The
prosecutor opened a preliminary inquiry (прокурорская
проверка)
into those allegations. On 16 October 1998 the prosecutor informed
the applicant's wife that he had decided not to pursue the case.
On
an unspecified date the applicant complained about the deterioration
of his eyesight to the investigator, who ordered the applicant's
examination by an oculist.
On 25 November 1998 the applicant underwent a medical
examination at an eye hospital. The doctors detected a reduction of
his left eye's mobility as a result of a “contusion”.
Further, the doctors found that the applicant's eyesight had dropped
to 0.07-0.04 and that he needed glasses of 5 dioptres. However,
the doctors concluded that the applicant was able to attend to
himself, orient himself and move around indoors.
On
1 December 1998 the applicant's lawyer lodged a formal request with
the investigator in charge of the applicant's case seeking to have
the glasses returned to the applicant.
On
2 December 1998 the investigator returned the glasses to the
applicant. According to him, the glasses were found in the safe box
of one of the policemen of the Pechatniki District Police Department
who had dealt with the applicant's case.
On
3 December 1998 the pre-trial investigation was completed and the
case file and the bill of indictment were filed with the Moscow
Lyublinskiy District Court for examination on the merits.
On
25 December 1998 the District Court remitted the case file to the
prosecutor, stating that the applicant had not had enough time to
read the case file because his glasses had been taken away and
returned only on 2 December 1998. The prosecution
authorities were ordered to put the case file at the applicant's
disposal anew in order to enable him to prepare his defence properly.
In
December 1998 the prosecutor re-opened the inquiry into the
applicant's allegations of ill-treatment. She questioned witnesses to
the applicant's apprehension. Further, she requested the State bureau
of forensic expertise to establish whether the impairment of the
applicant's health could have been provoked by the alleged beatings.
24. On
an unspecified date in January 1999 the investigator in charge of the
case provided the applicant with new glasses instead of his old ones.
Some time afterwards the case file with the bill of indictment was
re-submitted to the court by the prosecution.
25. On 5 April 1999 the forensic expert drew up a report, stating
that no evidence of beatings was established, that the applicant had
suffered from myopia since 1989 and that the impairment of the
applicant's eyesight could have been explained by his chronic myopia.
On
15 April 1999 the prosecutor closed the inquiry for lack of evidence
of a crime. The investigator concluded that
the bruises had been received by the applicant in the fight with the
neighbours of Ms P., and that his eye problems were not related to
the events of 3 July 1998. The applicant's wife
challenged that decision. On 31 July 2000 she was informed that
following an additional inquiry the prosecutor had decided not to
pursue the investigation.
The
applicant raised the issue of ill-treatment during the court
proceedings against him. He challenged the admissibility of his
initial confessions, claiming that they had been extracted by force.
The applicant's defence counsel requested a new medical expert report
in order to determine whether the injuries sustained by the applicant
could have been caused by beatings. The District Court dismissed that
motion on the ground that such an examination had already been
carried out.
On
15 June 1999 the District Court found the applicant guilty of one
count of armed robbery, one count of illegal possession of firearms
and several counts of fraud and sentenced him to nine years'
imprisonment. On 3 November 1999 the Moscow City Court dismissed
an appeal by the applicant and upheld the lower court decision of 15
June 1999. The City Court confirmed the conclusions of the
first-instance court and held that no evidence of ill-treatment had
been discovered.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that although he was very short-sighted, his
glasses had been taken away from him and returned only five months
later. This had debased his human dignity and resulted in serious
impairment of his eyesight. The applicant referred to Article 3,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties' submissions
The
Government accepted that the applicant had been deprived of his
glasses without a legal basis and that for a certain period of time
his ability to participate in the proceedings had been limited.
However, as to the impairment of the applicant's eyesight, the
doctors had concluded that it was due to natural causes. Even without
the glasses the applicant had been able to move around indoors and
attend to himself. Therefore, the treatment complained of could not
be considered as inhuman or degrading. Furthermore, the violation of
the rights of the defense had been acknowledged at the domestic
level, the glasses had been returned to the applicant and he had been
given additional time to study the case file. Therefore, his rights
had been fully restored.
The Government further maintained that between 3 July and 1 December
1998 neither the applicant nor his lawyer had requested the
investigator to return the glasses. The glasses were returned to the
applicant on 2 December 1998, a day after such a request had been
lodged by the defense. As to the new glasses, they had been given to
the applicant as soon as they had been made.
The
applicant maintained his complaints stressing that the authorities
had acknowledged the breach of his rights, and that he had been so
seriously short-sighted that without glasses he had been unable to
read or write. Although the court had ordered the return of his
glasses and given him an additional two days to read the case file,
this had clearly been insufficient. In the applicant's words,
after his arrest his eyesight had dropped “from 3.5 to 6
dioptres”.
The
applicant further maintained that from July to December 1998 he had
lodged several complaints with competent authorities seeking to get
his glasses back. In particular, he had mentioned the problem in his
application for release of 14 July 1998. Further, he had complained
about the rapid deterioration of his eyesight. He stressed that since
his eyesight had deteriorated after his arrest, he needed an
examination by an ophthalmologist to obtain a prescription for new
glasses. The investigator had ordered such an examination to be
carried out on 9 September 1998; however, the applicant had not been
taken to see the doctor until 25 November 1998. It had taken the
authorities another two months to have new glasses made for the
applicant.
B. The Court's assessment
The Court notes that the applicant's glasses were
taken from him shortly after his arrest on 3 July 1998. The
Government admitted that the taking of the glasses had been unlawful
in domestic terms. However, it does not automatically make the
authorities responsible for a breach of Article 3 of the Convention.
The Court recalls in this respect that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3 of the Convention. Previously the Commission has held that
a few days spent in detention without glasses did not amount to
ill-treatment (see A.K. v the Netherlands (dec.), no.
24774/94, 6 April 1995; cf. Jamal-Aldin v. Switzerland (dec.),
no. 19959/92, 23 May 1999), and the Court does not see any reason to
disagree with that. Therefore, if the glasses had been returned to
the applicant quickly, no issue under Article 3 would have arisen.
As
opposed to the example cited above, in the case at hand the applicant
did not have glasses for several months. The applicant alleged that
it had resulted in serious impairment of his eyesight. However, he
did not produce any medical evidence relating to the period before
his arrest. Furthermore, the domestic expert concluded that the
impairment of the applicant's eyesight had been due to natural causes
(see paragraph 25 above). The Court does not see any reason to
disagree with that finding.
On
the other hand, even if having no glasses had no permanent effect on
the applicant's health, he must have suffered because of it. As
follows from the case file, he had myopia of medium severity. Without
glasses he was able to “attend to himself, orient himself and
move around indoors” (see the doctors' report cited in
paragraph 18 above), but it is clear that he could not read or write
normally, and, besides that, it must have created a lot of distress
in his everyday life, and given rise to a feeling of insecurity and
helplessness. The Court thus considers that the applicant's
situation, due to its duration, was serious enough to fall within the
scope of Article 3 of the Convention.
The
Government maintained that the applicant himself had been responsible
for that situation. He had not complained about the taking of his
glasses until December 1998. The Court recalls that, indeed, in
certain contexts the behaviour of the alleged victim may be taken
into account in defining whether the authorities can be held
responsible for the treatment complained of. As a rule, Article 3
prohibits ill-treatment irrespective of the circumstances and the
victim's behaviour (see Labita v. Italy [GC], no. 26772/95,
§ 119, ECHR 2000-IV). However, this rule is not without
exceptions. Thus, if a prisoner does not receive requisite medical
assistance from the authorities, it may entail the State's
responsibility only if he made reasonable steps to avail himself of
such assistance (see Valašinas v. Lithuania, no.
44558/98, § 105, ECHR 2001 VIII, and Knyazev v. Russia,
no. 25948/05, § 103, 8 November 2007). Therefore, in the
present case the applicant's own conduct is an important element
which should be assessed among other relevant factors.
Before
addressing this argument of the Government it is necessary to rule
upon the facts of the case, which are disputed between the parties.
Whereas the Government alleged that the applicant had not complained
about the taking of his glasses until December 1998, the applicant
contested that assertion. He claimed to have raised that complaint
several times throughout the investigation, in particular, in his
application for release of 14 July 1998.
The
case file contains no evidence that the applicant raised that issue
in July-August 1998. Indeed, in his application for release of 14
July 1998 the applicant mentioned the situation concerning his
glasses (see paragraph 13 above). However, in that application
he primarily sought to prove that he was innocent, that his arrest
and the criminal prosecution had been unlawful, and that he should be
released. The applicant did not ask to have his glasses returned or
to have his eyesight examined. In any event, it is unclear whether
the court reviewing the lawfulness of the detention was competent to
examine that issue and take appropriate measures.
In
other circumstances the Court might have interpreted the applicant's
wording as an implicit request warranting appropriate reaction from
the authorities (see, mutatis mutandis, Aksoy v. Turkey,
18 December 1996, § 56, Reports of Judgments and Decisions
1996-VI). However, in the circumstances there are no reasons to
speculate on it, especially given that the applicant was represented
by a lawyer of his choice who could have advised him to raise this
issue before a competent authority (the investigator) in a more
straightforward manner.
On
the other hand, the Court cannot accept the Government's contention
that the applicant did not raise the issue of the glasses until
2 December 1998. Having examined the materials in its possession
the Court finds that the investigator had been aware of the
applicant's problem well before that date. On 9 September 1998 the
investigator ordered an examination of the applicant by an
ophthalmologist – apparently in response to a request lodged by
the defence some time earlier. It is unclear when such a request was
lodged, but the Court is prepared to conclude that as from early
September 1998 the prosecution knew about the difficult situation of
the applicant. In any event, on 14 September 1998 the applicant's
wife requested the district prosecutor to return the glasses to her
husband (see paragraph 15 above).
It
is true that the authorities did not remain passive; the applicant
was sent to an ophthalmologist who made a prescription, and finally
the applicant was given new glasses. However, it took the authorities
almost five months to procure new glasses for him. Furthermore, the
Government did not explain why his old glasses were not given back to
him as soon as the investigator learned about the applicant's
problem. Even though they were partially broken, they could have
alleviated the difficulty he faced.
The Court has consistently stressed that certain forms
of legitimate treatment or punishment – for example, a
deprivation of liberty – may involve an inevitable element of
suffering or humiliation. However, under Article 3 of the Convention
the States must ensure that a person is detained in conditions which
are compatible with respect for his human dignity, and that, given
the practical demands of imprisonment, his health and well-being are
adequately secured by, among other things, providing him with the
requisite medical
assistance (see
Kudła v. Poland [GC], no. 30210/96, §§ 92-94,
ECHR 2000-XI). Taking the applicant's glasses could not be explained
in terms of the “practical demands of imprisonment”, and,
even more so, was unlawful in domestic terms. The Government did not
explain why the investigator had not returned old glasses when he had
learned about the applicant's situation. Finally, the Government did
not provide any explanation for the delay of two and half months
before the applicant was examined by a specialist doctor or why
it took a further two months to have the new glasses made.
In such circumstances the Court concludes that the treatment
complained of was to a large extent imputable to the authorities.
Having regard to the degree of suffering involved in this case, and
its duration, the Court concludes that the applicant was subjected to
degrading treatment. There was, therefore, a violation of Article 3
of the Convention.
II. 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.”
The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
47. In
the instant case, on 7 December 2006 the Court invited the applicant
to submit his claims for just satisfaction before 9 February 2007.
However, the applicant did not submit any such claims. In
view of the above, the Court makes no award under Article 41 of the
Convention (see, for example, Şirin v. Turkey, no.
47328/99, §§ 27 29, 15 March 2005,
and Pravednaya v. Russia,
no. 69529/01, §§ 43 46, 18 November 2004).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article 3 of
the Convention.
Done in English, and notified in writing on 20 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President