CASE OF ZELENIN v. RUSSIA

FIRST SECTION

CASE OF ZELENIN v. RUSSIA

(Application no. 21120/07)

JUDGMENT

STRASBOURG

15 January 2015

FINAL

15/04/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Zelenin v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 2 December 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 21120/07) 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 Ivan Petrovich Zelenin (“the applicant”), on 29 June 2007.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been subjected to ill‑treatment by police officers and that no effective investigation had been conducted in that regard.

4. On 30 April 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1975 and lives in Krasnoyarsk.

6. On 5 February 2006 Mr V.N. informed the local office of the Federal Drug Control Service (“DCS”) that he had purchased heroin from the applicant. The DCS officers then decided to organise a covert operation of the test purchase of the drug.

7. At about 3 p.m. on 6 February 2006 the DCS officers arrived at the applicant’s block of flats and rang at the door of a flat located next to that of the applicant in which two sisters, Ms E.N. and Ms T.N, resided. The DCS officers asked the two women to ring at the applicant’s door so that he would open it unaware of the DCS officers’ presence. Ms E.N. and Ms T.N. refused to cooperate.

8. The DCS officers then waited on the stairway for the applicant to leave the flat. At some point the applicant stepped out of his flat.

9. According to the applicant, three DCS officers forcibly dragged him out of the flat, pushed him to the floor and beat him on the stairway. According to the Government, the applicant showed active resistance by beating and kicking the DCS officers. They had to resort to physical force in order to overcome his resistance, and handcuffed the applicant.

10. Ms E.N. and Ms T.N. observed through the open door that three men were beating and kicking the applicant.

11. According to the Government, the applicant voluntarily allowed a visual inspection of his flat. According to the applicant, he was forced to make a written statement agreeing to the inspection. It is common ground between the parties that the DCS officers then proceeded to carry out the inspection in the presence of two attesting witnesses and discovered syringes with traces of heroin and pieces of aluminium foil.

12. The officers took the handcuffs off the applicant so that he could sign an inspection report. At some point the applicant rose to his feet suddenly and ran at a cupboard with glass doors, ramming it with his head. The cupboard fell on the applicant.

13. The applicant was then brought to the DCS premises. At about 1.50 a.m. on 7 February 2006 he was formally detained as a suspect in a temporary detention cell.

14. Two of the DCS officers presented their hierarchical superior with reports dated 6 February 2006 on the use of physical force in the course of the applicant’s arrest, claiming that the force had been used legitimately to overcome the violent resistance offered by the applicant.

15. On 7 February 2006 the applicant was brought to a trauma centre and then to hospital. He was diagnosed with a closed cerebral injury.

16. On the same day the Kirovskiy District Court of Krasnoyarsk authorised the applicant’s detention.

17. On 9 February 2006 the applicant was transferred to a remand prison. On arrival he was examined by a doctor and diagnosed with a closed cerebral injury as well as injuries to his face and head.

18. On 15 February 2006 the applicant complained to the Kirovskiy district prosecutor’s office of Krasnoyarsk (“the district prosecutor’s office) about the alleged ill-treatment.

19. On 2 March 2006, having conducted a pre-investigation inquiry, the district prosecutor’s office refused to institute criminal proceedings against the DCS officers who had allegedly beaten the applicant on 6 February 2006. They referred to statements made by the DCS officers and one of the attesting witnesses who had been present during the inspection in the flat and concluded that the applicant had resisted lawful arrest and that the use of force and handcuffing had thus been lawful and justified in the circumstances. The district prosecutor’s office also established that the applicant had thrown himself against the cupboard, which had collapsed on the applicant causing him injuries.

20. On 15 November 2006 the Leninskiy District Court of Krasnoyarsk convicted the applicant of drug-related crimes and sentenced him to six years’ imprisonment. The applicant admitted the unlawful procurement and possession of heroin but pleaded not guilty to the charges of supplying the drug to others, inter alia on 5 and 6 February 2006.

21. Between March 2006 and February 2007 the pre-investigation inquiry into the allegation of ill-treatment was resumed on six occasions as the decisions refusing to open a criminal investigation were quashed by either the district prosecutor’s office or the Krasnoyarsk regional prosecutor’s office.

22. On 2 February 2007 the district prosecutor’s office issued another decision refusing to open a criminal investigation.

23. On 13 February 2007 the Krasnoyarsk regional prosecutor’s office quashed the decision of 2 February 2007 on the grounds that the applicant’s neighbours, the N. sisters, had consistently alleged that the applicant had been beaten by the officers; another neighbour had not been questioned at all; and the forensic expert report had not been completed.

24. On 13 February 2007 the Krasnoyarsk Regional Court upheld the conviction of 15 November 2006 on appeal.

25. On 20 February 2007 the district prosecutor’s office ordered a forensic expert examination of the applicant in order to establish the origin of the injuries that he had sustained on 7 February 2006.

26. On 26 February 2007 a forensic expert drew up a report based on medical certificates and X-rays dated February 2006 and the explanations given by the applicant on 22 February 2007. According to the report, the initial diagnosis of a closed cerebral injury had not been confirmed and the bruises could have “resulted either from a beating with a hard blunt object(s) or from falling and hitting the said object(s)”.

27. On 1 March 2007 the district prosecutor’s office again refused to open a criminal investigation into the alleged ill-treatment. They argued, in particular, that the statements by Ms E.N. and Ms T.N. could not be regarded as reliable evidence owing to the fact that “according to the information received, both the N. sisters [were] prostitutes and acquaintances of Mr Zelenin, with whom they [maintained] a friendly relationship, and thus [were] interested in the outcome of Mr Zelenin’s arrest”. They concluded that the DCS officers had used legitimate force to effect the applicant’s arrest.

28. On 28 May 2007 the Kirovskiy District Court of Krasnoyarsk upheld the above decision on judicial review. On 6 September 2007 the Krasnoyarsk Regional Court upheld the first-instance decision.

29. On 26 October 2007 the Investigative Department of the Investigative Committee of the Prosecutor’s Office of Russia for the Krasnoyarsk Region (“the regional investigative committee”) quashed the decision of 1 March 2007.

30. On 15 November 2007 the Investigative Unit of the Investigative Department of the Investigative Committee of the Prosecutor’s Office of Russia for the Kirovskiy District of Krasnoyarsk (“the district investigative committee”) again refused to open a criminal case. Again it was argued that the statements by Ms E.N. and Ms T.N. were to be disregarded since “according to the information received, both the N. sisters [were] prostitutes and acquaintances of Mr Zelenin, with whom they [maintained] a friendly relationship, and thus [were] interested in the outcome of Mr Zelenin’s arrest”.

31. On 30 January 2008 the Kirovskiy District Court of Krasnoyarsk upheld the decision of 15 November 2007 on judicial review. On 5 June 2008 the Krasnoyarsk Regional Court upheld the first-instance ruling.

32. On 23 March 2009 the applicant was released on probation.

II. RELEVANT DOMESTIC LAW

33. For a summary of the relevant domestic law see Ryabtsev v. Russia (no. 13642/06, §§ 42-52, 14 November 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

34. The applicant complained that he had been ill-treated by the police and that there had been no effective investigation at the national level into his allegations. He relied on Articles 3 and 13 of the Convention. The Court considers that the complaints fall to be examined under Article 3, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

35. The Government contested that argument. They claimed that the police officers had lawfully used physical force against the applicant and handcuffed him because he had resisted arrest and kicked the officers in the abdomen and the face. The injuries had been caused by the fact that the applicant had voluntarily run at the glass doors of the cupboard. After the cupboard had fallen on him he had been brought to hospital and diagnosed with a cerebral injury. Later, at the remand prison, he had also been diagnosed with bruises to his face and head. A pre-investigation inquiry into the allegations of ill-treatment had been carried out. It had been established that the officers of the Krasnoyarsk Regional Department of the Federal Drug Control Service had used legitimate and necessary force against the applicant to overcome his active resistance to arrest, and that shortly after that the applicant himself had run at the cupboard. The forensic expert examination had concluded that the bruises and injuries to the applicant’s face, head and waist could have resulted either from a blow with a blunt hard object or from falling on and hitting such an object. The diagnosis of cerebral injury had not been confirmed. The applicant’s injuries had not amounted to “damage to health”. The N. sisters had led an “asocial life style” and their statements had therefore been disregarded by the investigator. The domestic courts had confirmed the lawfulness of the decisions not to institute criminal proceedings against the DCS officers.

36. The applicant maintained his complaint. He argued, inter alia, that the forensic expert examination ordered one year after the infliction of the injuries had not been reliable and that the statements by the N. sisters had been disregarded merely on the basis of vague allegations.

A. Admissibility

37. 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. General principles

38. 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).

39. The Court reiterates that 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, among many other authorities, Mrozowski v. Poland, no. 9258/04, § 26, 12 May 2009). Although the use of force during arrest, even if resulting in injury, may fall outside the scope of Article 3 if the use of force was indispensable and resulted from the conduct of the applicant (see Klaas v. Germany, 22 September 1993, § 30, Series A no. 269), 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 Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999‑V).

40. The Court further notes that in assessing evidence in a claim of a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt”. Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Farbtuhs v. Latvia, no. 4672/02, § 54, 2 December 2004; Bazjaks v. Latvia, no. 71572/01, § 74, 19 October 2010; and Krivošejs v. Latvia, no. 45517/04, § 69, 17 January 2012).

41. Where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, 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 (see Labita, cited above, § 131).

42. An obligation to investigate “is not an obligation of result, but of means”: not every investigation should necessarily come to a conclusion which coincides with the applicant’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 Mikheyev v. Russia, no. 77617/01, § 107, 26 January 2006).

43. The investigation into allegations of ill-treatment must be thorough. That means that the authorities must 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 v. Bulgaria, 28 October 1998, §§ 103 et seq., Reports of Judgments and Decisions 1998‑VIII). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness accounts and forensic evidence. 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 the applicable standard (see Mikheyev, cited above, § 108).

44. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used by the police was or was not justified in the circumstances (see Kaya v. Turkey, 19 February 1998, § 87, Reports 1998-I).

2. Application of the principles to the present case

(a) Substantive limb of Article 3 of the Convention

45. Turning to the facts of the present case, the Court observes that the applicant was arrested in the course of a DCS covert operation. It is common ground between the parties that the DCS officers used physical force against the applicant, that the cupboard fell on the applicant after he had run at it and that the applicant sustained certain injuries on 6 February 2006. However, the parties disagree as to the nature of the injuries sustained and their origin, that is, whether or not they were caused by the officers’ actions.

46. The Court observes that the applicant presented a sufficiently detailed and consistent account of the alleged ill‑treatment by the DCS officers and produced medical evidence attesting that he had injuries which could have resulted from such beatings, at least arguably. The Court thus considers that the applicant raised an arguable claim concerning the alleged ill-treatment.

47. The Court notes that the Government in the course of Strasbourg proceedings have not put forward any detailed explanation as to the nature of the “legitimate and necessary force” applied by the DCS officers during the applicant’s arrest, while statements by Ms E.N. and Ms T.N. describing the beating of the applicant on the stairway were dismissed as unreliable at national level (see paragraphs 27 and 30 above). That compels the Court to establish the facts, drawing such inferences as it deems appropriate from that attitude (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 132, ECHR 2013 (extracts)).

48. The Court points out that the only forensic examination of the applicant took place more than a year after the alleged ill-treatment. Accordingly, the forensic expert could not provide an unequivocal answer to the question whether the injuries sustained by the applicant could or could not have been inflicted by the DCS officers in the manner described by the applicant (see paragraph 26 above).

49. While the Court accepts that at least some of the applicant’s injuries could have been caused by the fall of the cupboard on him, since no credible account of how all of the applicant’s injuries had been caused was given either at the domestic investigation stage or before the Court, it considers that the respondent Government failed to discharge its burden of proof and that it was not satisfactorily established that the applicant’s account of events was inaccurate or otherwise erroneous (see Ryabtsev, cited above, § 74).

50. Bearing in mind the authorities’ obligation to account for injuries caused to persons within their control in custody, the Court considers that the Government have failed to provide a plausible explanation as to the nature of the force applied by the DCS officers in the course of the applicant’s arrest. It therefore concludes that the applicant’s injuries, at least in part, were the result of treatment for which the respondent State bore responsibility.

51. Having regard to all the circumstances of the ill-treatment, its physical and mental effects and the applicant’s state of health, the Court finds that the accumulation of the acts of physical violence inflicted on the applicant amounted to inhuman and degrading treatment, in violation of Article 3 of the Convention.

52. There has therefore been a violation of Article 3 of the Convention under its substantive limb.

(b) Procedural limb of Article 3 of the Convention

53. The Court observes that it is not disputed by the parties that the State was under a procedural obligation, arising from Article 3 of the Convention, to carry out an effective investigation into the circumstances in which the applicant was arrested.

54. The Court notes that the authorities carried out a pre‑investigation inquiry into the applicant’s allegations. It is not convinced, however, that the inquiry in question was sufficiently thorough and effective to meet the requirements of Article 3 of the Convention.

55. The district prosecutor’s office’s decisions, and subsequently those of the district investigative committee, were such as to prompt their own hierarchical bodies to revoke those decisions regularly on account of the unsatisfactory or incomplete nature of the inquiries (see paragraphs 21, 23 and 29 above).

56. As a result of their repeated refusals to open a criminal case, the investigative authorities never conducted a proper criminal investigation in which the whole range of investigative measures was carried out, including questioning, confrontation, identification parade, search, seizure and crime reconstruction (see Lyapin v. Russia, no. 46956/09, § 132, 24 July 2014).

57. The Court has previously ruled that in the context of the Russian legal system a “pre‑investigation inquiry” alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators which may then be examined by a court. The Court drew strong inferences from the mere fact of the investigative authority’s refusal to open a criminal investigation into credible allegations of serious ill‑treatment in police custody, regarding it as indicative of the State’s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin, cited above, §§ 135-36).

58. The investigative authorities’ failure to discharge their duty to carry out an effective investigation in the present case was not remedied by the domestic courts which conducted judicial review of their decisions, since the domestic courts on two occasions upheld the investigative authorities’ decisions refusing to open a criminal case (see paragraphs 28 and 31 above).

59. The Court thus considers that the refusal to open a criminal case into the applicant’s credible allegations of ill-treatment at the hands of the DCS officers amounted to a failure to carry out an effective investigation as required by Article 3 of the Convention. This conclusion makes it unnecessary for the Court to examine in detail the many rounds of the pre‑investigation inquiry conducted in the applicant’s case, with a view to identifying specific deficiencies and omissions on the part of the investigative authorities.

60. By failing in its duty to carry out an effective investigation, the State fostered the DCS officers’ sense of impunity. The Court stresses that a proper response by the authorities in investigating serious allegations of ill‑treatment at the hands of the police or other similar agents of the State in compliance with the Article 3 standards is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (see, among other authorities, Gasanov v. the Republic of Moldova, no. 39441/09, § 50, 18 December 2012; Amine Güzel v. Turkey, no. 41844/09, § 39, 17 September 2013; and Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013).

61. The above considerations are sufficient for the Court to conclude that the domestic authorities did not ensure an effective investigation into the applicant’s allegations of ill-treatment by the DCS officers on 6 February 2006.

62. Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

63. The applicant complained that his arrest and detention until 3 a.m. on 7 February 2006 had been unlawful. He relied on Article 5 § 1 (c) of the Convention, which reads as follows:

“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; ...”

64. The Government contested that argument. They submitted that the applicant’s arrest had been lawful as the DCS officers had had a reasonable suspicion of his involvement in drug-related crimes.

65. The applicant maintained his complaint.

66. The Court observes that the Government did not raise the issue of the applicants’ compliance with the six-month rule before it. Nonetheless, the Court has already considered that the six-month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion (see Assanidze v. Georgia [GC], no. 71503/01, § 160, ECHR 2004‑II), even if the Government have not raised that objection (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I).

67. In this connection the Court observes that the applicant’s allegations under Article 5 § 1 of the Convention concern a specific time-period between 6 and 7 February 2006. The applicant has not provided any explanation as to whether he lodged any complaint in this respect at national level. It is noteworthy, however, that he introduced this complaint before the Court only on 29 June 2007, which is more than six months after the end of the time period under consideration. The Court therefore finds that the applicant failed to comply with the six-month time-limit laid down in Article 35 § 1 of the Convention.

68. It follows that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

69. The applicant further complained of the unlawful inspection, search and seizure carried out in his flat on 6 February 2006. He relied on Article 8 of the Convention, which reads in so far as relevant as follows:

“1. Everyone has the right to respect for ... his home ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

70. The Government contested that argument. They argued that the applicant had agreed to the inspection of his flat and had signed an authorisation to that effect.

71. The applicant maintained his complaint.

72. Having jurisdiction to apply the six-month rule of its own motion (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012), the Court notes that this complaint was raised by the applicant on 29 June 2007, which is more than six months after the events in question took place.

73. It follows that this complaint is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

74. Lastly, the applicant complained that he had been wrongly convicted, that the judicial review proceedings in respect of the decisions refusing to prosecute the officers in question had been unfair and that his family had received anonymous and threatening calls from unspecified police officers.

75. Having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant’s submissions disclose no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. 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.”

A. Damage

77. The applicant claimed 60,000 euros (EUR) in respect of non‑pecuniary damage.

78. The Government considered that a finding of a violation would constitute sufficient just satisfaction.

79. The Court, ruling on an equitable basis, awards the applicant EUR 19,500 in respect of non-pecuniary damage.

B. Costs and expenses

80. The applicant did not submit any claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum under this head.

C. Default interest

81. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb;

3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

EUR 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

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