Information Note on the Court’s case-law 234
November 2019
A v. Russia - 37735/09
Judgment 12.11.2019 [Section III]
Article 3
Degrading treatment
Inhuman treatment
Positive obligations
Nine-year-old child subjected to witnessing violent arrest of her father who put up no resistance: violation
Effective investigation
Insufficient investigation into credible allegations of police ill-treatment: violation
Facts – The applicant had claimed that she had been present during her father’s arrest and that she had witnessed violence towards her father, who had not put up any resistance to his arrest, which involved his being knocked to the ground and beaten up. Shortly after those events she had been diagnosed with a number of medical conditions, including a neurological disorder, enuresis and post-traumatic stress disorder. The Government had contested the applicant’s allegations, claiming that no use of force had been applied in her father’s arrest and that the authorities could not therefore be held responsible for any harm suffered by the applicant.
Law – Article 3 (substantive and procedural aspects): Different assessment led the Court to conclude that the applicant’s allegations concerning her being subjected to witnessing her father’s arrest, and the violent nature of the arrest, had been credible.
The Government’s version of the facts had been based on the pre‑investigation inquiry, the first stage in the procedure for examining criminal complaints. However the Court had no reason to depart from its previous case-law that the mere carrying out of a pre-investigation inquiry, not followed by a preliminary investigation, was insufficient for the authorities to comply with the requirements of an effective investigation into credible allegations of ill‑treatment by the police under Article 3. The authorities had responded to the applicant’s credible allegations of treatment proscribed by Article 3 by carrying out a pre-investigation inquiry and had refused to institute criminal proceedings and carry out a fully-fledged investigation. This had been endorsed by the domestic courts, thereby departing from their procedural obligation under Article 3. The pre‑investigation inquiry had not provided the Government with a proper basis to discharge their burden of proof and produce evidence capable of casting doubt on the applicant’s credible allegations concerning her being subjected to witnessing the violent arrest of her father, which the Court therefore found established.
The interests of the applicant, who had been nine years old at the time, had not been taken into consideration at any stage in the planning and carrying out of the authorities’ arrest of her father. The law-enforcement officers had paid no heed to her presence, of which they had been well aware, proceeding with the arrest and subjecting her to witnessing a scene of violence towards her father during which he put up no resistance. This had affected the applicant very severely and had amounted to a failure on the part of the authorities to prevent her ill-treatment.
There had been a failure of the State under its positive substantive obligation under Article3 and under its procedural limb in that no effective investigation had been carried out in that respect.
Conclusion: violation (unanimously).
Article 41: EUR 25,000 in respect of non-pecuniary damage.
(See also Lyapin v. Russia, 46956/09, 24 July 2014, Information Note 176)
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This summary by the Registry does not bind the Court.
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