British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
BALENKO v. RUSSIA - 35350/05 [2011] ECHR 1583 (11 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1583.html
Cite as:
[2011] ECHR 1583
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIRST
SECTION
CASE OF BALENKO v. RUSSIA
(Application
no. 35350/05)
JUDGMENT
STRASBOURG
11 October
2011
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 Balenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 35350/05) 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 Anatoliy Petrovich
Balenko (“the applicant”), on 2 July 2005.
The
applicant was represented by Mr S. Kiryukhin, a lawyer practising in
Orsk. 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 he had been beaten up by
policemen, that the investigation into his complaint had been
ineffective and that the trial court had failed to ensure the
attendance and examination of two eyewitnesses.
On
31 August 2009 the President of the First Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1958 and lived in Novotroitsk, Orenburg Region.
On 17 March 2010 the applicant died. On 29 April 2010
Ms Aleksandra Balenko, the late applicant’s mother (born
on 14 September 1937), and Mr Timofei Balenko, the late
applicant’s son (born on 17 January 2000), expressed their
wish to pursue the proceedings before the Court.
A. The events of 1 May 2004
On
an unspecified date the police received information that certain
“persons with a criminal propensity” would be gathering
at the grave of a deceased gangster on 1 May 2004 and that they
would be carrying guns, explosives and drugs.
On
1 May 2004 a group of police officers came to the cemetery and
started checking the identification of the men and women gathered at
the said grave. The applicant was among them. He did not have any
documents on him. He was placed in a police car together with G. and
R. to be taken to the police station by officers S. and Kh.
On
the way to the police station an altercation occurred between the
applicant and the police officers. As a result, the applicant
sustained multiple injuries and S. had an index finger cut. The
police officers and the applicant disputed the circumstances of the
incident. It appears that investigation was opened into the incident
on the same day and resulted in two sets of proceedings.
B. The applicant’s complaint about the police
brutality
The
applicant was released from the police custody on 2 May 2004. On
the same day he was examined by a doctor in a clinic, who noted
numerous bruises on his face and alcoholic intoxication.
On
23 June 2004 the applicant underwent an X-ray examination which
showed that he had sustained a fractured nose.
On
an unspecified date the applicant lodged a complaint about police
brutality. With regard to the events of 1 May 2004, he submitted
that he had been detained by the police at the cemetery. No
explanation had been furnished by the police officers as to the
reasons for his detention. The applicant had criticised the police’s
actions and the policemen had then forced him into the car together
with G. and R. On the way to the police station he had continued to
express his dissatisfaction with the police. S., who had been driving
the car, had turned back, had told him to shut up and had hit him in
the face, breaking his nose. Then S. had stopped the car, and
together with Kh., the other police officer, had pulled the applicant
out of the car and had continued beating him. The applicant had lost
consciousness. He had then been taken to the police station and
released the next day.
On
12 July 2004 the applicant was subjected to another forensic
examination. The expert reiterated the earlier findings of the
forensic examination of 2 May 2004, including the nature and
time of the injuries, and added that the applicant had also sustained
a fractured nose with a time of the injury similar to that of the
other injuries.
On
3 November 2004 an investigator from the Leninskiy District
Prosecutor’s Office in Orsk dismissed the applicant’s
complaint of police brutality as unsubstantiated. In particular, the
investigator stated as follows:
“In the course of the inquiry [the applicant]
submitted that on 1 May 2004 the policemen had beaten him up at
the cemetery ... in Orsk. As result, he sustained injuries, including
the nose fracture. He denied having assaulted the police officer.
Within the framework of the inquiry in response to the
[applicant’s] complaint of police brutality, he underwent a
medical examination. It was established that [the applicant]
sustained bruises on the top right side of the head, bruises on the
left part of the forehead, bruises under the left eye and dorsum of
the nose, petechiae on the left temple and on the right cheek and a
fractured nose. The said injuries resulted from blunt force trauma...
[Policeman] S. submitted that [on 1 May 2004] he
had been in the taskforce which arrived at the cemetery... where he
had asked [the applicant] to proceed to the police car. Neither he
nor other policemen had beaten the applicant. [The applicant] could
have sustained injuries ... when they had pulled him out of the car
after his assault. It was possible that [the applicant] had caused
those injuries himself when resisting the policemen, hitting himself
against the car and then falling.
[Policeman] Kh. submitted that [the applicant] had
refused to get out of the car and had resisted when they pulled him
out.
...
Having regard to the above, [I conclude] that the
[applicant’s] complaint of police brutality has not been
confirmed. ... The fact that the applicant resisted being pulled out
of the car suggests that his injuries could have been caused by his
own actions or by the actions of the policemen who restrained him.”
The
applicant did not appeal against the decision of 3 November 2004
to the courts
C. Criminal proceedings against the applicant
1. Investigation
A
criminal investigation was opened against the applicant due to the
version of events provided by police officers S. and Kh. concerning
the incident of 1 May 2004. According them, in the car the
applicant took out a knife and tried to stab S., who was driving the
car, in the neck. S. saw the applicant’s movements in the
rear-view mirror and covered his neck with his hands. The applicant
cut S.’s right index finger. Kh. grabbed the applicant by the
arm. S. stopped the car and got out. He opened the rear door and
pulled out the applicant, who had managed to free himself from Kh.
The applicant fell out of the car, hitting his head against the car
as he did so, and then landed on his face. The knife fell onto the
road. The police officers handcuffed the applicant and took him to
the police station.
The
investigator ordered the forensic examination of the applicant. On
2 May 2004 the forensic expert examined the applicant and noted
the following injuries: bruises on the top right side of the head,
bruises on the left part of the forehead, bruises under the left eye
and top of the nose, and petechiae (evidence of bleeding under the
skin) on the left temple. The expert considered that the said
injuries could have resulted from blunt force trauma occurring no
earlier than one day prior to the applicant’s examination.
On
the same day R. was questioned by an investigator and stated the
following:
“As I had drunk wine, I immediately fell asleep in
the back seat. Then I was woken up by noise. I saw that the policeman
who was in the driver’s seat had blood on his right hand. I can
confirm that when we were leaving the cemetery, that policeman had no
injuries on his hands. Nor did I see any blood on him.
When I was woken up by the noise to see the policeman’s
hand covered with blood, I felt sick and lost consciousness. I cannot
tell whether the car stopped on the way [to the police station]. Nor
do I know why the policeman’s hand was bleeding. I do not know
if anyone in the car had a knife on him...
I regained consciousness when the car stopped at the
police station.”
G.
was also questioned on 2 May 2004. He stated the following:
“[At the cemetery] I was asked to get into [a
police car]. I complied and got into the back seat. There was a guy
wearing sunglasses sitting next to me behind the driver’s
seat... [He] was severely intoxicated. He was mumbling... On the way
[to the police station] the guy who was sitting behind the driver
moved his right arm towards the driver. In his hand he had an object
which resembled a knife. The driver saw the guy’s movements in
the rear-view mirror and leaned forward. After that, the guy made
another move with his right arm – [holding] the object
resembling a knife – towards the driver. The driver, however,
covered his neck with his right hand to protect himself and then
grabbed the guy by the right hand. Then the driver stopped the car,
opened the rear door next to the guy with the sunglasses with his
left hand, grabbed the guy’s right hand – holding a knife
– with his left hand and pulled him out of the car. He kicked
the guy in the chest. The other policeman ... took out a gun, told
the others present in the car to sit and be quiet. Then he got out of
the car and helped the driver to handcuff the guy. When the driver
pulled the guy out of the car, the guy fell down on the asphalt and
hit his face.”
On
14 May 2004 the applicant was charged with assaulting S.
It
appears that on 8 June 2004 the applicant was remanded in
custody pending investigation. He was released on 11 June 2004.
On
21 July 2004 a court authorised the applicant’s detention
arguing that the applicant might abscond, tamper with evidence or put
pressure on witnesses. He remained in custody pending investigation
and trial. In particular, the court noted as follows:
“The court takes into account the fact that [the
applicant] has a permanent place of residence. However, he is not
officially married and he is unemployed ...
The [applicant’s] contacts with G. and R., even
though denied by the [applicant’s] lawyer, have been noted by
[the investigators]. Furthermore, the applicant himself did not deny
that he was in contact with them... Pursuant to the materials in the
case-file, G. and R. are the only eye-witnesses of the crime the
applicant is charged with. Those persons have registered residence in
Orsk and Novotroitsk. They are unemployed and failed to appear [for
questioning]. The court considers that, if released, the applicant
might influence those witnesses.
...
The court takes into account the information furnished
by [the police department] concerning the applicant’s
connection with [known gangsters], that he is a member of an
organised criminal group... Having regard to the above, the court
considers that ... the applicant might continue his criminal
activities.”
The
investigating officer commissioned several expert evaluations,
including that of the knife found at the alleged crime scene. As it
turned out, the quality of the fingerprints on the knife was not good
enough to determine their origin. The investigator also questioned
the applicant, the police officers involved, the paramedic who had
attended to S., and R.’s mother.
On
13 September 2004 the investigator summoned G. and R. to appear
for questioning. Neither G. nor R. were found at their last known
addresses. The police questioned their neighbours and family, who
stated that they had no knowledge of G. and R.’s whereabouts.
On
22 November 2004 the forensic expert prepared another report on
the basis of the prior medical documentation, including the results
of the medical examination of 2 May 2004, the forensic report of
2 May 2004, X ray examinations of 23 June and 14 July
2004, and the applicant’s medical file. The expert concluded
that the applicant might have sustained a fractured nose
approximately two to three weeks prior to the date of the first X-ray
examination of 23 June 2004. As regards the origin of the
injury, the expert reiterated the earlier forensic findings.
On
5 December 2004 the investigator forwarded the applicant’s
case file to the court.
2. The trial
During
the trial the applicant pleaded not guilty. He denied assaulting S.
or having had a knife.
On
23 December 2004 the applicant unsuccessfully asked the court to
admit as evidence written statements made by G. and R. which
corroborated his version of the events of 1 May 2004. In
particular, the court indicated as follows:
“Pursuant to the [rules of criminal procedure],
[such] statements cannot be considered as evidence. Furthermore, [G.
and R.’s] signatures are not duly certified, which fact may
give rise to doubts as to whether the statements were made by G. and
R. and as to their admissibility as evidence. If the defence can
obtain R. and G.’s attendance in court for questioning or
indicate their whereabouts to the court, the court, if requested so
by the parties, may summon and question those persons.”
On
27 December 2004 the Orenburg Regional Court found the applicant
guilty as charged and sentenced him to twelve years’ imprisonment.
In particular, the court noted as follows:
“... the fact that the [applicant] has committed
the crime ... is confirmed by the following evidence:
By the testimony given by [police officer] S. ...;
...
By the testimony given by [police officer] Kh. ...;
...
By the testimony of [Police officer] Sh., who testified
that on the way from the cemetery to [the police station] he was in
the car that followed the one S. was driving. ... When S. stopped his
car, [Sh.] saw S., whose right hand was bleeding, and Kh., who ran
out of the car. They opened the rear door of the car and pulled [the
applicant] out. [The applicant] had a knife in his right hand. The
[police officers] knocked the knife out of his hand, put him on the
ground and handcuffed him. Then S. wrapped his injured finger with a
handkerchief. Some fifteen minutes later an ambulance appeared and
provided medical assistance to S.
...
The crime scene investigation report notes that ...
inside the [police car], eight brown stains were discovered on the
left rear door. Brown spots resembling blood ... were also discovered
inside the car on the steering wheel, on the interior of the window
pane next to the driver’s seat, on the door near the driver’s
seat, [and on the] windscreen wiper stalk near the steering wheel. A
handkerchief covered with brown stains was found on the floor of the
car, on the left side near the driver’s seat. A flick knife ...
was found next to the left of the car ...
...
The report on the findings of the biological forensic
expert evaluation ... of 25 October 2004 states that blood,
which could have belonged to S., was found on the flick knife and the
handkerchief and in four samples taken from the asphalt next to the
police car, the car’s steering wheel, the handle in the car and
the [applicant’s] right hand. It is possible that the samples
also contain the [applicant’s] blood provided that he sustained
injuries causing bleeding, but it is ruled out that the blood
belonged only to him...
Further to defence counsel’s request, witness V.,
[R.’s mother], testified in court.
...
She learnt from her son, R., that on the way to the
police station [the applicant] continued to “ask for trouble”
in the car. The policemen advised him to shut up and then one of them
punched him in the face with his fist. He started bleeding. The
policemen pulled him out of the car and continued beating him.
Regard being had to all the evidence examined in the
course of the proceedings, the court views witness V.’s
testimony critically ... Her testimony is refuted not only by the
testimony given by S. and Kh., but also by data contained in the
crime scene investigation report and the findings of the biological
forensic expert report.
According to the testimony given by S., Kh., and [the
applicant], the latter was seated in the back seat of the car. [The
applicant] and ... V. alleged that the [applicant] bled severely
after the policeman hit him in the face.
However, this is not confirmed by the crime scene
investigation report, which shows that there was no blood discovered
in the seat occupied by the [applicant] in the car.
Furthermore, according to the above-mentioned report and
the findings of the biological forensic expert evaluation report, the
blood found both in the car and next to it, belonged to [S.] and
possibly to [the applicant]. It did not belong only to [the
applicant].
Having regard to the data contained in the crime scene
investigation and the forensics reports, it is not possible to accept
as substantiated the applicant’s allegations about being beaten
in police custody ...
According to the testimony given by S. and Kh., the
applicant sustained the injuries as a result of the police efforts to
put a stop to his unlawful actions. He hit his head and face against
the asphalt and the frame of the car when [the policemen] pulled him
out of the car. This is confirmed by the findings of the medical
forensic report of 6 May 2004 confirming that [the applicant]
could have sustained the injuries as a result of contact with solid
blunt objects within the period in question.
...
The court finds [the applicant] guilty [beyond
reasonable doubt].”
On
11 March 2005 the Supreme Court of Russia upheld the applicant’s
conviction on appeal. As regards the trial court’s failure to
question G. and R., the Supreme Court indicated as follows:
“According to the materials of the case file, G.
and R. were detained together with [the applicant] and placed in the
same police car. They made written statements [about the incident].
However, they were not questioned, pursuant to the rules of criminal
procedure. During the investigation and at trial it was impossible to
establish their whereabouts.
According to V.’s testimony, R. is her son. He
left home on 3 May 2004. Since then, he has showed up only once
– in August 2004. His whereabouts are not known to her.
As regards her son’s account of the events of
[1 May 2004], V. gave contradictory testimony. First, she
claimed that her son had seen that [the applicant] had been beaten up
and covered with blood. He had not remembered, however, what had
happened in the car because he had been asleep there after drinking.
Then she asserted that [the applicant] had been beaten up by the
policemen in the car and then next to it. Under such circumstances,
the [trial] court had reasons to critically assess that witness’s
testimony.
The court’s decision not to admit as evidence G.
and R.’s written statements submitted by [the applicant’s]
counsel has also been justified.”
D. Action for damages
On
an unspecified date the applicant sued the State Treasury for damages
resulting from his injuries. On 29 May 2006 the Tverskoy
District Court of Moscow dismissed the claim without examination of
the merits for the applicant’s failure to comply with certain
procedural requirements for lodging civil claims. It appears that the
applicant failed to comply with those requirements and on 1 August
2006 the statement of claim was returned to him. On 21 December
2006 the Moscow City Court upheld the decision of 1 August 2006
on appeal.
On
an unspecified date the applicant resubmitted his claims. On
29 October 2007 the Tverskoy District Court dismissed them. The
applicant’s representative was present in court. On 4 March
2008 the Moscow City Court upheld the judgment on appeal.
E. Subsequent events
On
18 April 2006 the applicant was transferred to correctional
colony no. 5 in the Orenburg Region. On 20 September 2007
he was placed in a prison hospital. He died on 17 March 2010.
The autopsy showed tuberculosis and AIDS as causes of death.
On
15 June 2009 the case file containing the applicant’s
complaint of police brutality was destroyed after the expiry of the
statutory period for its storage.
THE LAW
I. THE GOVERNMENT’S OBJECTIONS RATIONE PERSONAE AND
AS TO THE LOCUS STANDI OF MS ALEKSANDRA BALENKO AND MR TIMOFEI
BALENKO
The
Government raised two objections as to the admissibility of the
application.
Firstly,
they contended that Mr S. Kiryukhin had not been duly
authorised to represent the applicant. They submitted that on 12 May
2005 the applicant had signed a power of attorney authorising
Mr S. Kiryukhin to represent him in the proceedings before
the Court. The said power of attorney had been valid, however, for a
period of three years, as indicated therein, and had expired on
12 May 2008. In the Government’s opinion, Mr S. Kiryukhin
had had no authority to represent the applicant after that date and,
accordingly, could not have validly signed or submitted the
observations on the applicant’s behalf on 17 March 2010.
In any event, they considered that, in view of the applicant’s
poor state of health, it was highly unlikely that he could have even
read the said observations prepared by Mr S. Kiryukhin.
The
Government further contended that, following the applicant’s
death, neither Ms A. Balenko nor Mr T. Balenko had had
locus standi to pursue the application before the Court. In
their view, the complaints had been personal to the applicant and had
not raised any question of general interest which would justify the
continued examination of the complaint.
In
the circumstances of the case and, in particular, having regard to
the fact that the applicant died after the introduction of the
application, the Court finds the Government’s objection as to
the expiry date of the power of attorney issued by the applicant in
favour of his representative to be without merit.
The
Court further notes, that, following the applicant’s death, his
mother Ms A. Balenko and his son Mr T. Balenko expressed
their wish to pursue the application. They submitted that they were
the applicant’s heirs and it was important for them that the
applicant’s rights were upheld. They signed forms authorising
Mr S. Kiryukhin to represent them before the Court.
The
Court reiterates that in a number of cases in which an applicant died
in the course of the proceedings it has taken into account the
statements of the applicant’s heirs or of close family members
expressing a wish to pursue the proceedings before the Court. It has
done so most frequently in cases which primarily involved pecuniary,
and, for this reason, transferable claims. However, the question of
whether such claims are transferable to the individuals seeking to
pursue an application is not the exclusive criterion. In fact, human
rights cases before the Court generally also have a moral dimension,
and people close to an applicant may have a legitimate interest in
seeing to it that justice is done even after the applicant’s
death (see, among other authorities, Horváthová v.
Slovakia, no. 74456/01, § 26, 17 May 2005).
Having
regard to the above, the Court accepts that the applicant’s
mother and son have a legitimate interest in pursuing the application
in the late applicant’s stead. It will therefore continue
dealing with the case at their request.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Articles 3 and 13 of the
Convention that he had been subjected to torture in police custody on
1 May 2004 and that the domestic authorities had failed to
conduct an effective investigation into his allegations of
ill-treatment. The Court considers that the complaints fall to be
examined under 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. The applicant
had assaulted a police officer and the policemen had responded
accordingly to put an end to his attack. The applicant’s
allegations of ill-treatment had been verified by the prosecutor’s
office and the courts at two levels of jurisdiction. The investigator
had dismissed the applicant’s complaint as unsubstantiated. He
had based his conclusions on the statements made by the applicant and
by the two policemen, as well as on forensic evidence. The
investigator’s findings had been confirmed by the courts in the
course of the criminal proceedings against the applicant. The
Government was unable to provide the relevant case file as it had
been destroyed due to the expiry of the statutory time-limit for its
storage. In sum, the investigation into the applicant’s
allegations of ill-treatment had been effective.
The
applicant’s relatives maintained his complaints.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) 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).
As
regards the use of force for effecting an arrest, the Court accepts
that in defusing situations, maintaining order, preventing offences,
catching alleged criminals and protecting themselves and other
individuals, police officers are entitled to use appropriate means,
including force. Nevertheless, such force may be used only if
indispensible and must not be excessive. Recourse to physical force
which has not been made strictly necessary by the individual’s
own conduct diminishes human dignity and is in principle an
infringement of the rights set forth in Article 3 of the Convention
(see Kuzmenko v. Russia, no. 18541/04, § 41,
21 December 2010).
The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing evidence, the Court has
generally applied the standard of proof “beyond reasonable
doubt” (see Ireland v. the United Kingdom, 18 January
1978, § 161, Series A no. 25). However, 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 under 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 Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII).
Turning
to the circumstances of the present case, the Court observes that it
is not disputed by the parties that on 1 May 2004 the applicant
sustained injuries after he was arrested and placed in the police
car. Those injuries included a fractured nose and numerous bruises
and resulted from his altercation with two police officers. The Court
finds it therefore established “beyond reasonable doubt”
that the applicant sustained those injuries as a result of the use of
force against him by the police officers. The Court considers that
the applicant’s injuries were, as such, sufficiently serious.
Accordingly, the burden rests with the Government to demonstrate with
convincing arguments that the use of force was not excessive (Zelilof
v. Greece, no. 17060/03, § 47, 24 May 2007).
The
Court notes that the exact circumstances of the altercation between
the applicant and the police officers were disputed by the parties.
The Government asserted that the use of force had been lawful and
strictly necessary to put an end to the applicant’s attempt to
stab one of the policemen with a knife. The applicant, however,
denied having been in possession of a knife or any other weapon. He
alleged that the policemen had beaten him up to retaliate for his
critical remarks in their respect.
The
Court further notes that the applicant’s allegations of
ill treatment had not been confirmed by the ensuing
investigation carried out by the prosecutor’s office and the
courts at two levels of jurisdiction. In this connection, the Court
reiterates that, where domestic proceedings have taken place, it is
not the Court’s task to substitute its own assessment of the
facts for that of the domestic courts and, as a general rule, it is
for those courts to assess the evidence before them (see Klaas v.
Germany, 22 September 1993, § 29, Series A no. 269).
Although the Court is not bound by the findings of domestic courts,
in normal circumstances it requires cogent elements to lead it to
depart from the findings of fact reached by those courts (see
Matko v. Slovenia, no. 43393/98, § 100, 2 November
2006). Where allegations are made under Article 3 of the Convention,
however, the Court must apply particularly thorough scrutiny (see,
mutatis mutandis, Ribitsch v. Austria, 4 December 1995,
§ 32, Series A no. 336).
Having
regard to the materials in its possession, the Court accepts the
Government’s explanation that, in the circumstances of the
case, the use of force against the applicant had been justified. The
Court observes that, following the applicant’s arrest, he was
placed in the police car, where he assaulted the driver with a knife
– trying to stab him in the neck. In response, the driver and
the other policeman present in the car pulled the applicant outside,
disarmed and handcuffed him. Whilst being pulled out of the car, the
applicant hurt his head, hitting it against the car, and his face
then came into contact with the asphalt on the road. As a result, he
sustained numerous injuries, including a fractured nose.
In
reaching the conclusion that the applicant had been injured in the
course of the altercation with the police officers, who had had to
pull him out of the car, disarm and handcuff him in order to put an
end to his assault, the domestic courts had the benefit of seeing
several witnesses make statements and of evaluating their
credibility. They further examined forensic evidence which supported
the witnesses’ testimonies. No material has been adduced in the
course of the Strasbourg proceedings which could call into question
the findings of the national courts and add weight to the applicant’s
allegations. The Court discerns no cogent elements in his submissions
which could lead the Court to depart from the findings of fact of the
national courts.
Lastly,
the Court notes that the seriousness of the injuries in question, as
such, does not overshadow the fact that the recourse to physical
force in this case was made necessary by the applicants’ own
conduct. Therefore, while the applicant admittedly suffered as a
result of the incident of 1 May 2004, the use if force against
him cannot be held to have been excessive.
Accordingly,
there has been no violation of Article 3 of the Convention with
regard to the alleged ill-treatment by the police on 1 May 2004.
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 v. Bulgaria, 28
October 1998, § 102, Reports of Judgments and Decisions
1998 VIII).
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 cited above, §
106; 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
an 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 the
prosecutor’s office opened an investigation into the incident
of 1 May 2004 on the same day. It resulted in two sets of
proceedings. The first set concerned the applicant’s complaint
about police brutality and the second one was carried out in
connection with the charges against the applicant. Subsequently, the
matter was subject to examination by the courts, with the final
decision on the matter taken on 11 March 2005. The Court accepts
that the authorities’ response to the incident was prompt.
In
the Court’s view, the authorities took all the steps necessary
to verify the applicant’s accusations. They questioned the
applicant, the police officers and other witnesses. They studied the
forensic evidence and examined the crime scene. The judicial
authorities reviewed the materials of the prosecutor’s inquiry.
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 a
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.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 § 3 (d)
of the Convention that the trial court had failed to ensure the
attendance and examination of eyewitnesses R. and G. The Court will
examine the complaint under Article 6 §§ 1
and 3 (d) of the Convention, which, in so far as relevant,
reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him...”
The
Government contested that argument. They noted that the Russian
judicial authorities could not be held responsible for their failure
to obtain the attendance and examination of G. and R., whose
whereabouts had been impossible to establish. Furthermore, it
appeared that the applicant had been privy to that information, given
that his lawyer had been able to obtain their written statements, but
he had not made any effort to communicate information on the
witnesses’ whereabouts to the trial court.
The
applicant’s relatives maintained his complaint. They submitted
that G. and R. had been unwilling to testify for fear of police
retaliation.
A. Admissibility
The
Court reiterates that the right to call witnesses is not absolute and
can be limited in the interests of the proper administration of
justice. Article 6 § 3 (d) does not require the attendance and
examination of every witness on the accused’s behalf; its
essential aim, as indicated by the words “under the same
conditions”, is full equality of arms in the matter (see Vidal
v. Belgium, 25 March 1992, § 33, Series A no.
235-B, pp. 32-33). It is for the domestic courts to decide
whether it is appropriate to call a witness. Nor will they be held
responsible when it is impossible to obtain the attendance of a
particular witness required by the defence (see Ubach Mortes
v. Andorra (dec.), no. 46253/99, ECHR 2000-V).
Turning
to the circumstances of the present case, the Court observes that the
domestic authorities were unable to establish the whereabouts of G.
and R. and, subsequently, to obtain their attendance and examination
at trial. Furthermore, the Court notes that it was not contended by
the applicant that the authorities had failed to make every
reasonable effort to secure the said witnesses’ presence in
court. Nor had he provided any information, if known to him, on the
issue or explain how it had been possible for him to obtain the
witnesses’ written statements. He never referred in the course
of the domestic proceedings to the possibility of the witnesses
having refused to testify for fear of police retaliation, and the
Court cannot accept these allegations as having any substance.
Admittedly,
G. and R. were present in the police car when the altercation between
the applicant and the policemen took place, and their testimonies
were relevant to the subject matter of the criminal proceedings
against the applicant. Nevertheless, regard being had to the
evidentiary basis underlying the applicant’s conviction, the
Court is unable to conclude that had G. and R. testified in court,
their testimonies would have been decisive for the outcome of the
trial. The applicant’s version of events had been reviewed by
the domestic courts. It had been rejected as unsupported – not
only by the examined witnesses’ statements, but by the forensic
evidence as well.
In
these circumstances, the Court concludes that the fact that it was
impossible to obtain G. and R.’s attendance during the trial
did not violate the right to mount a defence and that the fairness of
the trial did not suffer due to their absence.
It
follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant alleged that his arrest on 1 May 2004 had been
unlawful and that he had been convicted of a crime that he had not
committed. He further complained of unfairness in the civil
proceedings concerning his claims for damages. He referred to
Article 6 of the Convention, Article 1 of Protocol No. 1,
Article 2 of Protocol No. 4 and Article 3 of Protocol
No. 7.
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 manifestly ill-founded pursuant to Article 35 §§ 3 (a)
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 1 May
2004 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 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
