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Cite as: [2011] ECHR 1614
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
7129/03
Igor Valeryevich SKORKIN
against Russia
The European Court of Human Rights (First Section), sitting on 27 September 2011 as a Chamber composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 28 January 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Igor Valeryevich Skorkin, is a Russian national who was born in 1970 and lives in the town of Kursk. He was represented before the Court by Mr Aleksandr Ye. Lapidus, a lawyer from the human rights NGO “Lawyers for constitutional rights and freedoms” based in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings against the applicant
(a) The applicant’s arrest
At the relevant time the applicant worked as a senior police investigator at the Kursk Town Department of the Interior.
On an unspecified date a businessman, P., applied to the authorities, alleging blackmail and coercion to offer a bribe by the applicant, who had allegedly put pressure on P. to hand over 100,000 Russian roubles (RUB) (approximately 3,500 euros (EUR)) in exchange for a decision to terminate a criminal investigation against him. Apparently, they had agreed that P. would bring half of that sum in cash to a meeting with the applicant on 17 May 2002.
On 17 May 2002 criminal proceedings were instituted in connection with this complaint and at around 11.30 p.m. on that date officials from the Regional Department of the Federal Security Service (“the FSB”, Федеральная служба безопасности) arrested the applicant during his meeting with P. at a petrol station on the outskirts of Kursk.
It appears that, having received the money from P., the applicant and his driver made repeated attempts to drive away from the location of the meeting, despite warnings by the FSB officials to stop the car.
According to the applicant, he was heavily beaten, including numerous kicks to the face and body, and was not informed of his rights during the arrest. According to the Government, the officials chased and blocked the applicant’s car, forced him out and to the ground and then handcuffed him. They only used physical force to the extent that was necessary to apprehend and immobilise the applicant pending the arrival of the team from the local prosecutor’s office. The Government submitted a copy of the relevant arrest record, in which the applicant confirmed that he had been notified of his rights, including the right to remain silent, during his arrest.
The search of the applicant and his car yielded no results, but on the same date the team of investigators found the money P. had handed over to the applicant at the side of the road along which the FSB officials had chased the applicant’s car during the arrest. The money was identifiable because the banknotes had been marked with a special paint beforehand.
Having been notified of the right not to incriminate himself, the applicant chose to remain silent until he had access to his lawyer, D., on 18 May 2002.
Following the applicant’s arrest on 17 May 2002, he remained in detention during the first three days in the temporary detention centre of the Kursk Town Department of the Interior and was then transferred to remand prison IZ-46/1 of the town of Kursk.
(b) The subsequent investigation of the case
On 18 and 20 May 2002 the authorities searched the apartments of the applicant and his parents.
In response to requests by the applicant to be examined by a doctor, the authorities ordered medical examinations on several occasions.
After his examination by a doctor from Town Hospital No. 4 at around 10.00 a.m. on 18 May 2002, the applicant was diagnosed as having a bruise, scratches on the left cheek, bruises on the left shoulder area and the left antecubital fossa, scratches on the forearm, and concussion. Some time later, at 2.00 p.m., after another examination, the diagnosis of concussion was withdrawn.
On 20 May 2002 the applicant was again examined by a doctor. In a medical report of the same day (no. 1628/1) the doctor stated that the applicant had bruises on the left cheek, under the right nostril, on the area of the inside right elbow, on the upper part of the right shoulder, the left buttock area, the left popliteal area, scratches on the left cheek, on the area of the right wrist joint, finger of the left hand, and the lower parts of the right and left forearm. The doctor noted that most of these bruises had been made by a blunt object, apparently between two and five days before. A bruise on the applicant’s buttock was estimated to be five to seven days old. The doctor stated that the injuries had not caused any harm to the applicant’s health.
On 20 May 2002 the applicant’s detention on remand pending the investigation was ordered by the Kursk Regional Prosecutor’s Office.
Three days later, on 23 May 2002, the applicant was formally charged in relation to the complaint by P. and the events of 17 May 2002 with having accepted a bribe.
In July 2002 these charges were slightly modified and on 31 July 2002 the investigation was declared to have been completed.
By a decision of 30 September 2002 a supervising prosecutor refused to approve the bill of indictment and remitted the case for an additional investigation.
On 16 October 2002 the applicant’s charges were amended by the addition of several counts of fraud.
On 31 October 2002 the prosecutor approved the bill of indictment and transferred the case to the court.
(c) Court proceedings in the applicant’s criminal case
The preliminary hearing was listed on 18 November 2002 and the trial commenced on 25 November 2002.
On an unspecified date the prosecutor dropped the charges of bribery for the lack of evidence.
By a judgment of 17 December 2002 the Kursk Regional Court convicted the applicant of attempted fraud and sentenced him to three years’ imprisonment. The applicant was represented by two counsel. The court examined at least five direct witnesses to the applicant’s activities, including the victim P., his assistants L. and V., and the applicant’s superiors S. and Pe., as well as various pieces of documentary evidence, including the applicant’s telephone conversations with P. and the money in cash found at the roadside after the arrest on 17 May 2002.
It then made the following findings in respect of the applicant’s connections with P. Having learned of P.’s business problems and the intention of his creditors to apply to the police for assistance, the applicant, on his own initiative, had arranged a number of meetings with P., on 25 and 29 April and 3, 13 and 17 May 2002, during which he misinformed P. that there was a pending criminal case against him and that he was in charge of the case. To reinforce that impression, the applicant staged an interrogation of P. as part of a non-existent criminal investigation and then demanded RUB 100,000 from him to settle the matter “unofficially”. It was agreed that P. would hand half of that sum in cash over to the applicant on 17 May 2002, the date on which the applicant was arrested in connection with his criminal activities.
The judgment was upheld on appeal by the Supreme Court of Russia on 13 March 2003.
Thereafter the applicant served his sentence of imprisonment in a penal establishment located in the Ryazan Region and on 11 March 2004 the Skopinskiy District Court of the Ryazan Region granted the applicant’s request for release on parole.
2. The applicant’s detention on remand and related proceedings
The applicant was arrested on 17 May 2002. His detention on remand was authorised on 20 May 2002.
(a) Detention order of 20 May 2002
The detention order of 20 May 2002 was issued by an investigator and authorised by the Kursk Regional Prosecutor’s office under Article 90 of the old Code of Criminal Procedure (“the old CCP”, see the Relevant Domestic Law section below), which authorised a competent prosecutor, in exceptional circumstances, to detain an individual before the bringing of charges. The same provision gave the competent authorities ten days to bring charges against the person in question or to order his or her release.
This detention order set out P’s complaint and the events of 17 May and stated that the applicant was suspected of having accepted a bribe. The order took account of the circumstances of the case and stated that, given the applicant’s “resourcefulness” in his relations with P., there was a danger that the applicant might flee or interfere with the course of the investigation and criminal proceedings.
The applicant appealed and the order was upheld by the Leninskiy District Court of Kursk (“the District Court”) on 20 June 2002. Having examined the prosecutor and the applicant in person, the court noted that from the applicant’s explanation given to the court, as well as the material in the case file, it could be seen that the investigator had had reasonable grounds to believe that the applicant was capable of putting pressure on the alleged victim, especially in view of the nature of the applicant’s alleged criminal activity. The court also noted that the investigator had taken account of the applicant’s office and his family status in taking the decision. It also noted that the requirements of Article 90 of the old CCP had not been breached since the authorities had complied with the ten-day time-limit for bringing the charges against the applicant.
On 30 July 2002 the Kursk Regional Court (“the Regional Court”) upheld that decision.
(b) Extension order of 16 July 2002
On 1 July 2002 the new CCP of Russia (see the Relevant Domestic Law section below) came into force and became applicable to the applicant’s case.
On 16 July 2002 the applicant’s detention was extended by the District Court with reference to the new CCP. Having heard the applicant, his two lawyers and the prosecutor, and having examined the investigation file and taken account of the progress of the investigation, the court concluded that the investigator needed more time to finalise the investigation. In view of this information, and given the nature of the applicant’s charges, the court considered that the applicant might impede the investigation or flee and that in the circumstances the application of a less restrictive measure than detention was not possible.
Acting on appeal, the Regional Court reiterated these reasons and essentially upheld the decision on 6 August 2002.
(c) Extension order of 10 October 2002
By a decision of 10 October 2002 the District Court again extended the applicant’s detention. Having heard the parties and examined the progress of the investigation, it emphasised the need to finalise the investigation and ordered a final extension of the applicant’s detention. The court noted that the applicant might abscond, interfere with the gathering of evidence or threaten witnesses. The applicant’s detention was therefore extended until 17 December 2002.
On 31 October 2002 the Regional Court upheld the decision on appeal.
On 17 December 2002 the Regional Court delivered a judgment in the applicant’s criminal case.
3. The applicant’s account of the conditions of his detention
Between 17 May and 20 May 2002 the applicant was held in the temporary detention centre of the Kursk Town Department of the Interior.
Between 20 May 2002 and 13 March 2003 the applicant was held in remand prison IZ-46/1 of the town of Kursk.
The applicant alleged that all the beds and benches in cell no. 9-3 had been connected to electricity. In support, the applicant submitted a written statement by one of his cellmates.
In addition, the applicant claimed that the light in the cell had been kept on all the time, that the quality of the medical services had been inadequate, and that some of his cellmates had had tuberculosis. He did not submit any evidence in support of these allegations.
It does not appear that the applicant complained in respect of these grievances to the prison administration or any other competent domestic authority, including the courts.
In his observations of 10 April 2007 the applicant also argued that the prison cells had been overcrowded.
4. Various proceedings in connection with the applicant’s complaints about the events of 17-20 May 2002
The applicant submitted that he had complained about the ill-treatment during his arrest and the subsequent searches to various authorities, including the courts.
On 10 June 2002 he applied to the competent domestic prosecutor, demanding an investigation into the circumstances of his arrest and in particular the use of force by the officials of the FSB.
By a decision of 19 June 2002 an investigator of the Military Prosecutor’s office of the 56th Garrison examined the applicant’s complaint and rejected it as unsubstantiated. Having examined all four officials involved as well as the available medical data, which included the medical reports of 18 and 20 May 2002, the investigator established that officials Ku., Ka., Pr. and A. had used physical force during the operation in response to the applicant’s repeated attempts to drive away and his refusal to open the car door and step out. The applicant had been forced out of the car and laid on the ground with his face down and his hands handcuffed behind his back. The investigator also noted that, according to the officials involved, during the fifteen minutes that the applicant had spent on the ground awaiting the arrival of the officials from the prosecutor’s office he had deliberately scratched his face against the ground. In view of these findings, the investigator considered that the use of force had been justified and lawful.
The decision was upheld by the domestic courts at two levels of jurisdiction.
A first-instance judgment in the case was given by the Kursk Garrison Military Court on 6 August 2003.
The judgment was upheld on appeal by the Moscow Circuit Military Court on 21 October 2003.
According to the applicant, his complaints about the searches of 18 20 May 2002 were lodged on 19, 21 and 25 June 2002. He submitted that they had been left unanswered.
The case-file does not contain any proof that the latter complaints were indeed dispatched. It does not appear that the applicant filed any complaints against the searches with the courts.
B. Relevant domestic law
1. The Constitution
No one may be subjected to torture, violence or any other cruel or degrading treatment or punishment (Article 21).
2. The Law on the Federal Security Service of 1995 and Law on the Police of 1991
Under section 14 of Law on the Federal Security Service its officials have the right to use physical force, including martial arts, in the same circumstances and subject to the same conditions as police officials.
Police officials have the right to use physical force, including martial arts, to arrest persons who have committed a crime or an administrative offence and to overcome resistance to lawful demands, if it is not possible for them to perform their police duties by non-violent methods (Section 13). When using physical force, police officers must warn the person concerned about their intention to do so, unless any delay may pose a danger to the life and health of the citizens or police officers, or may lead to other grave consequences, or when such warning is inappropriate or impossible in the circumstances. The officers must further attempt to limit any possible damage as far as possible, depending on the nature and degree of dangerousness of the offence and of the persons who have committed it, and the extent of the resistance encountered. A police officer is held accountable if excessive physical force is used (Section 12).
3. The Code of Criminal Procedure of 1960, as in force at the relevant time
Article 89
Preventive measures
“If there are sufficient reasons to believe that the accused will elude the investigation or evade justice, obstruct the establishment of the truth in the case or engage in criminal activities ..., one of the following preventive measures may be imposed: an order not to leave the place of residence, a personal undertaking or an undertaking from a non-governmental organisation, placement in custody ...”
Article 90
Imposing a preventive measure on a
suspect
“In exceptional circumstances, a preventive measure may be imposed on a suspect who has not been charged. In such a case, charges must be brought against the suspect within ten days of the measure being imposed. If no charges are brought within that period, the measure shall be lifted.”
Article 91
Factors to be taken into account when
imposing a preventive measure
“When considering the need to impose a preventive measure and the nature of the measure to be imposed ..., the factors to be taken into account are ... the seriousness of the charges brought and the suspect’s or defendant’s personality, occupation, age, health, family status and other circumstances.”
Article 92
Order or decision imposing a preventive
measure
“A preventive measure shall be imposed by means of an order issued by an inquiry officer, investigator or prosecutor, or a reasoned decision delivered by a court, which must specify the offence of which the person is suspected or accused and the grounds for imposing the measure. The person concerned must be informed of the order or decision and, simultaneously, of the procedure for bringing a complaint against the decision to impose such a measure.
A person on whom a preventive measure has been imposed shall be provided immediately with a copy of the order or decision.”
Article 96
Placement in custody
“Placement in custody shall be imposed as a preventive measure ... for offences punishable by imprisonment of more than one year. In exceptional circumstances, this preventive measure may also be applied to offences punishable by imprisonment of less than one year ...”
4. Detention on remand – the new CCP
Since 1 July 2002, criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001).
Preventive measures include an undertaking not to leave a town or region, personal surety, bail, and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112).
When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, or re-offend or obstruct the establishment of the truth (Article 97). Also to be taken into account are the gravity of the charge, information on the accused’s character, and his or her profession, age, state of health, family status and other circumstances (Article 99).
Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
After arrest the suspect is placed in custody “pending investigation”. The maximum permitted period of detention “pending investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “pending investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 109 § 9).
The relevant parts of Article 159 § 3 (b) of the Criminal Code of 1996 provide:
“Fraud, namely, theft or acquisition of another’s property by misrepresentation or abuse of trust ... [committed on] a large scale ... shall be punishable by five to ten years’ imprisonment with or without expropriation of property.”
COMPLAINTS
The applicant supplemented his application with the following two additional complaints on 24 August 2003 and 10 April 2007 respectively:
THE LAW
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ observations
The Government submitted that the applicant’s account of the events was inaccurate and did not correspond to the medical report in so far as the latter only mentioned minor bruises which had not caused any harm to his health. They also referred to the statements of the officials of the FSB who had carried out the applicant’s arrest. According to the Government, the applicant had actively resisted the police during his arrest and, as a result, the officers had used physical force on him. To illustrate the applicant’s attitude and behaviour during the arrest, the Government referred to his repeated attempts to drive away from the FSB officials. Overall, they concluded that the complaint was groundless.
The applicant disagreed with the Government’s arguments and contended that he had been physically abused during the arrest by the FSB officials, who had repeatedly kicked him in the face and the body. He denied any resistance on his part and contested that the use of the physical force by the authorities had been unlawful.
B. The Court’s assessment
The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162).
Where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). The Court also points out that where an individual when taken into police custody is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, §§ 108-11, and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V).
In the instant case, the Court observes that the parties did not dispute that in the course of the applicant’s arrest he had tried to drive away from the officials of the FSB in his car, that once the car had been blocked the applicant had been taken out of it by the FSB officials and then forced to prostrate himself with his hands handcuffed behind his back. As a result of this operation the applicant received a number of injuries confirmed by medical reports drawn on 18 and 20 May 2002. The burden 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, mutatis mutandis, Rehbock v. Slovenia, no. 29462/95, § 72, ECHR 2000-XII, and Matko v. Slovenia, no. 43393/98, § 104, 2 November 2006).
Having examined the case file and the parties’ submissions, the Court notes that the applicant’s claims that there was no resistance on his part are rebutted by the witness statements made by all the arresting officers, and there is also nothing in the case file or in his own submissions to support his version of events. The Court further observes that the medical reports drawn up on 18 and 20 May 2002 indeed reflect a number of bruises and scratches on the applicant’s left cheek, under the right nostril, and around various knee, elbow, shoulder and wrist joints, which, in the doctor’s view, did not cause any harm to the applicant’s health. The Court finds that these reports correspond to the Government’s version of events, namely that the FSB officials, faced with the applicant’s resistance, applied physical force in order to lay him down on the ground and then attach the handcuffs. As regards the applicant’s allegation that he had concussion as a result of a kick in the face, the Court finds it unsupported as this initial diagnosis was withdrawn from the medical file after further examinations of the applicant by various doctors on 18 and 20 May 2002. Likewise, the applicant’s allegations of repeated kicks to his face and body by the arresting officers are unsupported. The only trace which might arguably fit the applicant’s description is the bruise on his left buttock which, however, was identified by the doctor as having been inflicted prior to the arrest. Overall, the Court considers that the domestic authorities had duly investigated the incident and that in the circumstances of the case the actions of the FSB officials and the use of force which resulted in the applicant’s injuries was not excessive.
Accordingly, the Court finds that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It must therefore be rejected pursuant to Article 35 § 4.
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
A. The parties’ submissions
The Government submitted that the applicant’s detention on remand had been lawful, justified and necessary throughout the relevant period.
The applicant disagreed with the Government and maintained his complaints.
B. The Court’s assessment
In so far as the applicant complains that his detention on remand lasted too long (17 May – 17 December 2002), the Court notes that the relevant period was seven months and one day. Firstly, it is undisputed that the applicant’s arrest took place, as was established by the domestic courts, immediately after he had received the money from P., and that given the circumstances of his arrest there existed a reasonable suspicion that he had committed a crime. The Court next observes that the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but that after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000 IV).
Turning to the present case, the Court notes that all three detention orders made by the authorities pending the criminal proceedings were made at regular intervals, contained a detailed and up-to-date account of the state of the investigation and referred to the risk that if released the applicant might obstruct the establishment by the authorities of the circumstances of the case. All the orders argued against the applicant’s release as some of the investigative actions were not yet complete (see, by contrast, Shishkov v. Bulgaria, no. 38822/97, § 62, ECHR 2003 I (extracts)). Having studied the progress of the investigation in the applicant’s case, the Court is unable to conclude that the authorities failed to display “special diligence” in the conduct of the proceedings. In view of the above, and taking into account that the period of a mere seventeen days (from 25 November to 17 December 2002) for the trial court to examine the merits of the applicant’s case was not unreasonably long, the Court concludes that the applicant’s detention on remand was justified.
Accordingly, the Court finds that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and rejects it pursuant to Article 35 § 4.
Accordingly, the Court finds that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and rejects it pursuant to Article 35 § 4.
It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
Finally, in his observations of 10 April 2007, the applicant argued that his pre-trial detention from 20 to 23 May 2002 had been unlawful. He also complained of various irregularities in the detention hearings between July and October 2002. The Court notes that the applicant did not raise these questions before it until 10 April 2007, for which reason both complaints were introduced out of time.
Accordingly, this part of the application was lodged out of time and should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Nina Vajić
Registrar President