FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 7178/03
by Mikhail DEDOVSKIY and Others
against Russia
The European Court of Human Rights (First Section), sitting on 12 October 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 27 January 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Mikhail Vladimirovich Dedovskiy born in 1969, Mr Alexandr Mikhaylovich Matrosov born in 1968, Mr Viktor Viktorovich Vidin born in 1978, Mr Stanislav Lvovich Bukhman born in 1974, Mr Igor Anatolyevich Kolpakov born in 1975, Mr Dmitriy Vladimirovich Gorokhov born in 1980, and Mr Aleksey Shamilyevich Pazleev born in 1974, are Russian nationals who were detained at the material time in the Perm Region. They are represented before the Court by Mr Z. Zhulanov, a lawyer with the Perm Regional Human Rights Centre in the town of Perm.
The respondent Government are represented by Mr P. Laptev, Representative 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. Background of the events
At the material time all applicants served their time in correctional colony no. AM-244/9-11 in the village of Chepets of the Cherdynskiy district of the Perm Region (also known as facility no. IK-11, hereinafter “the colony”).
In April 2001 a group of eight officers of a special-purpose squad “Varyag” of the Directorate of Correctional Facilities AM-244 (now renumbered as VK-240, отдел специального назначения «Варяг» Управления лесных исправительных учреждений АМ-244/ВК-240) headed by Mr B., arrived at the colony for the purpose of “rendering practical assistance in maintaining the detention regime”.
Upon their arrival Mr B. and Mr P., the deputy colony director for security and operational activities, developed a plan which included the following measures: searches in the living premises, including searches in the premises of the strict-security department (отряд со строгими условиями содержания), punishment ward (штрафной изолятор), and cell-like premises (помещения камерного типа); personal searches of detainees, including on their arrival from work; and supervision of the detainees’ compliance with the regime regulations. The officers of the squad wore balaclava masks and carried rubber truncheons during the implementation of the plan.
The applicants alleged that the squad officers had beaten detainees with truncheons, kicked and punched them. Specific allegations concerning each applicant are outlined below in the chronological order.
2. Events on 17 April 2001
(a) The first applicant, Mr Dedovskiy
On coming back from work to the colony living premises Mr Dedovskiy learnt from other detainees that the squad officers were performing a search. The officers wore camouflage and balaclava masks. During the search they hit Mr Dedovskiy on his back without any apparent reason four or five times with a truncheon and assaulted him verbally. On leaving the search premises he received more truncheon blows.
Later in the day, when going to dinner, Mr Dedovskiy, among other detainees, was told to squat down and waddle “duck-style” to the canteen.
(b) The second applicant, Mr Matrosov
On coming back from work to the colony Mr Matrosov was told to submit to a strip-search. Mr P., the deputy colony director, divided all detainees into groups of five persons and told them to run into the search room. Inside the room Mr Matrosov was ordered to look at the floor and comply with all instructions. Any delay in fulfilling an order was met with punches in the stomach and head. Once the strip-search was completed, Mr Matrosov was thrown half-naked out in the courtyard.
(c) The third applicant, Mr Vidin
On coming back from work to the colony, during the search the squad officers hit Mr Vidin on his head, neck and spine with a truncheon. As a consequence thereof, he could not work for an extended period of time owing to aches in his head and spine. He attempted to seek medical assistance but the medical department was closed.
Later in the day, when going to dinner, Mr Vidin, among others, was told to squat down and waddle to the canteen. On entering the canteen and while eating the squad officers hit him in the small of his back.
(d) The fourth applicant, Mr Bukhman
At the roll-call Mr Bukhman was beaten for having answered a squad officer’s question too softly.
(e) The sixth applicant, Mr Gorokhov
Mr Gorokhov was held in cell no. 1 of the strict-security department. At about 11 p.m. the squad officers arrived at the department and told the detainees to go out into the corridor and to remain spread-eagled against the wall. While they were so standing, the officers punched them; Mr Gorokhov received several blows to his liver and spine.
3. Events on 18 April 2001
(a) The first applicant, Mr Dedovskiy
The squad officers hit Mr Dedovskiy, among other detainees, during the wake-up and on their way to the canteen and back. He was also hit while eating. The officers allegedly hit him with a truncheon, holding it by the light end, in order to increase pain.
(b) The second applicant, Mr Matrosov
At their work-place detainees, including Mr Matrosov, were told to form a line. The squad officers and Mr F., the security head, verbally assaulted them.
(c) The fourth applicant, Mr Bukhman
When going to the dinner, the squad officers allegedly told Mr Bukhman to carry another detainee on his back. Then they told all detainees to go to the canteen in couples and holding hands. Mr Bukhman was beaten for his refusal to comply with these humiliating demands. After that a squad officer jumped on his back and told him to carry him to the canteen. Mr Bukhman’s refusal provoked a new round of beatings.
(d) The fifth applicant, Mr Kolpakov
On that day Mr Kolpakov, among other detainees, arrived at the colony for serving his sentence. The squad officers verbally and physically assaulted them on their way from the car to the punishment ward where the newly arrived detainees were held. Mr F. and Mr T. of the colony administration were present. Later, Mr Kolpakov was taken out of the cell and beaten in the corridor with truncheons, Mr T. was present again.
(e) The sixth applicant, Mr Gorokhov
The squad officers came to the strict-security department where Mr Gorokhov was held, accompanied by Mr F. The officers shouted at detainees as they were running out of cells and punched them. Mr Gorokhov was hit and fell onto the floor. Thereafter Mr Gorokhov and his cellmates were told to stand up, to strip naked and to lean spread-eagled against the wall. The officers punched, kicked and hit them with truncheons. Several times Mr Gorokhov collapsed onto the floor, but when he rose to his feet, the beating resumed. The officers did not make any demands or claims to detainees. As a consequence, Mr Gorokhov had many bruises, abrasions, headache and sharp pain in his liver.
(e) The seventh applicant, Mr Pazleev (“count 5”)[1]
Mr Pazleev was held in cell no. 1 of the strict-security department (the same cell as the sixth applicant, Mr Gorokhov). On that day at about 3.30 p.m. the squad officers opened the door of their cell and put a bench in front of it. Detainees were rudely told to go into the corridor, jumping over the bench. Mr Pazleev stumbled over the bench and fell. The officers started to punch, kick and hit him with truncheons. In the corridor all detainees were stripped naked and placed spread-eagled against the wall. Then the officers beat them. When Mr Pazleev fell, he was made to stand up and the beating continued. The beatings lasted for approximately twenty minutes.
Once the squad officers left, a doctor and a nurse entered the cell and asked whether there were any “bedridden patients” (that is, who could no longer walk by themselves). Mr Pazleev complained about sharp pains, but received no assistance.
The report on the use of a rubber truncheon of 18 April 2001 indicated that “during a search... at 3.30 p.m. the convict Pazleev refused to go out of the living premises into the common corridor, stating that he would be present during the search, although it was the convict Terekhov who had been assigned to be present during the search. Pazleev was warned that in case of further disobedience, a truncheon would be used on him, but he continued to disobey”.
4. Events on 19 April 2001
(a) The first applicant, Mr Dedovskiy (“count 7”)
At about 7 p.m. on coming back from work Mr Dedovskiy, among other detainees, was subjected to a strip-search. During the search the officers punched and hit him with truncheons.
The report on the use of a rubber truncheon of 19 April 2001 indicated that “on returning from the work facility Angara, the convict Dedovskiy repeatedly disobeyed to the lawful request of the colony administration... because he flatly refused to put his arms and legs wide apart for a body search. He did not react to the repeated requests. Thereafter, a rubber truncheon... was applied to him”.
(b) The second applicant, Mr Matrosov
Mr Matrosov, among other detainees, was beaten during the strip-search upon their return from work.
On coming to the canteen, detainees, including Mr Matrosov, were ordered to form two lines and run into the canteen one at a time. The squad officers stood at the doors and hit detainees with truncheons. While eating, the detainees were told not to raise their eyes and Mr Matrosov, among others, received a truncheon blow to his neck. On leaving the canteen he received more blows to his back.
(c) The fourth applicant, Mr Bukhman
At the roll-call Mr Bukhman was told to step out of the line and say “Ah”. He was beaten for having said it too softly. As a result of beatings, Mr Bukhman had his ribs broken. He applied to the medical department where a doctor treated the area around the broken ribs with iodine.
(d) The fifth applicant, Mr Kolpakov
The squad officers took Mr Kolpakov, among other detainees, out of the cell and into the corridor where he was spread-eagled against the wall and beaten.
(e) The seventh applicant, Mr Pazleev
Mr Pazleev, among other detainees, was taken out of the cell into the corridor where the squad officers punched, kicked and hit them with truncheons. Mr F. and Mr P., allegedly in an inebriated state, were also present.
5. Events on 20 April 2001
(a) The fifth applicant, Mr Kolpakov (“count 9”)
At about 7.15 a.m. the squad officers, together with Mr F. and Mr T., arrived at the strict-security department where Mr Kolpakov had been transferred from the punishment ward on the previous night. All detainees, including the fifth applicant, were told to run out of cells into the corridor. The squad officers punched and kicked Mr Kolpakov and beat him with truncheons. Several times he collapsed onto the floor and then fainted having received a strong blow to his head.
Mr Kolpakov alleges that he had a brain concussion. In December 2001 he was diagnosed with traumatic psychopathy in prison hospital UT-389/9 MOB which he believes to be a consequence of the beating on 20 April 2001.
The report on the use of a rubber truncheon of 20 April 2001 indicated that “the rubber truncheon was used because at the rouse at 7.15 a.m. the convict Kolpakov, along with other convicts, did not fulfil the get-up command. He flatly refused to proceed to the administrative premises for giving a written explanation, he refused to give his name or to explain the reasons for his conduct”.
(b) The sixth applicant, Mr Gorokhov (“count 9”)
The squad officers came to the strict-security department where Mr Gorokhov was held, this time accompanied by Mr T. Mr Gorokhov and his cellmates were taken out to the corridor where the officers punched, kicked and hit them with truncheons. Thereafter he was allegedly refused medical assistance in the medical department of the colony.
The report on the use of a rubber truncheon of 20 April 2001 indicated that “the rubber truncheon was used because at the rouse... the convict Gorokhov did not get up. When ordered to get up and dress up, he reacted reluctantly and dressed up not in accordance with the established form of dress. When told to change clothing and assume the normal look, he did not react, behaved rudely and tactless towards the officers”.
(c) The seventh applicant, Mr Pazleev
Mr Pazleev, among other detainees, was taken out of the cell into the corridor where the squad officers punched, kicked and hit them with truncheons. Mr F. and Mr P., allegedly in an inebriated state, were also present.
6. Investigation into the applicants’ complaints
On 9 June 2001 the Perm Regional Human Rights Centre handed 160 complaints about ill-treatment written by the colony detainees over to the Perm Regional Ombudsman (Уполномоченный по правам человека в Пермской области, hereinafter “the Ombudsman”). The Ombudsman provided copies of the complaints to the Perm Regional prosecutor and requested factual information from the colony administration. On the same day the Usolsk town prosecutor in charge of supervision of the compliance with laws in penitentiary institutions opened a criminal investigation into an offence under Article 286 § 3 of the Criminal Code (excess of power involving the use of weapons or special means).
On 20 June 2001 the Ombudsman decided to form a public-State commission for investigation of the causes and circumstances of the events in colony AM 244/9-11. The commission included the Ombudsman himself, the director of the Perm Regional Human Rights Centre and a representative of the Perm Regional Government.
On 25 June 2001 the Ombudsman visited the colony and talked to the detainees who had lodged the complaints. A majority of them confirmed their statements.
On 6 July 2001 the director of facility no. AM-244 replied to the Ombudsman’s request for information as follows:
“The measures.. with the involvement of the special-purpose squad officers.. were performed from 17 to 19 April [2001] on the basis of Article 82 of the Code on Execution of Punishments and they were not extraordinary... RP-73 [rubber truncheons] were used on detainees who refused to comply... The mass lodging of complaints about allegedly unlawful actions of the squad officers has been arranged by a criminal leader...”
On 16 August 2001 the director and other employees of the Perm Regional Human Rights Centre visited the colony. They were allowed to take photos and talked in private with five detainees. The findings were reported to the Ombudsman in the following manner:
“Conclusion: there is no reason not to trust the allegations of detainees. For three days detainees were severely beaten while going from work, in the canteen.. in the punishment ward, in the cell-like premises.. detainees were made to squat and waddle and then jump up.. they were stripped naked before the search.. It is conceivable that the special-purpose squad was called upon to intimidate [detainees] in the wake of a conflict between the colony administration and the criminal leader. However, no matter how subversive the ringleader’s influence on other detainees could have been, this could not in any way justify the squad’s actions. Especially taking into account that a majority of detainees in the colony are.. unconnected to organised crime. It appears that the detainees were, as usual, ‘collateral damage’ of an extremely complicated and entangled relationship between the management of the correctional institution and criminal leaders.”
On 29 August 2001 the Ombudsman paid another visit to the colony and talked to 24 detainees. Of those, 21 detainees confirmed their initial allegations and indicated that they had given the same statements to investigators from the prosecutor’s office. The Ombudsman found a number of violations of the colony regime, such as belated provision of medical assistance in the punishment ward and cell-like premises, absence of water and unavailability of remedies against disciplinary sanctions imposed by the colony administration.
In late August and early September 2001 the head of the department for supervision of the compliance with laws in penitentiary institutions of the Prosecutor General’s Office arrived in Perm for a special inquiry. According to the applicants (the Government did not provide a copy of his report at the Court’s request), he found that (i) the squad officers had used rubber truncheons unlawfully; (ii) when performing their duties, the squad officers should have been without balaclava masks; (iii) the quality of pre-trial investigation had been unsatisfactory; and (iv) a few detainees had been unlawfully placed in the punishment ward. The Usolsk town prosecutor was disciplined and the materials of the investigation were transferred to the Perm Regional prosecutor.
On 4 September 2001 Mr B., the head of the special-purpose squad, was charged with an offence under Article 286 § 3 of the Criminal Code. On 11 September 2001 he was additionally charged under Article 293 § 1 of the Criminal Code (undue performance of professional duties entailing a substantial impairment of citizens’ rights and interests).
On 21 September 2001 a prosecutor discontinued criminal proceedings against Mr B.’s subordinates, officers of the special-purpose squad, finding as follows:
“In the period from 17 to 20 April [2001] the employees of the special-purpose squad AM-244 stayed at the colony, executing the deputy head’s request to carry out the planned preventive and regime measures on detainees of the colony IK-11. When carrying out these measures, officers of the squad applied rubber truncheons on the detainees.
The investigation has taken all measures for determining the part of each squad officer in the events; however, the victims and witnesses were not able to identify the squad officers who had beaten them, because they had worn identical camouflage and balaclava masks. Thus, the investigation has not obtained any objective information which would permit to bring charges against any squad officers.”
On 25 September 2001 the same prosecutor discontinued the criminal proceedings in the part concerning the complaints lodged by the second, third and fourth applicants and 143 other detainees, finding that “the investigation had not obtained any objective information confirming these detainees’ allegations of application of rubber truncheons by the special-purpose squad”.
On 4 October 2001 the same prosecutor discontinued criminal proceedings against Mr B. on the charge of excess of power. The prosecutor noted that Mr B. had not used a rubber truncheon himself and he had not given orders to use it. The remaining charge of professional misconduct was referred for trial.
On 25 October 2001 the public-State commission was disbanded because the case had gone on trial.
7. Judicial proceedings against Mr B.
From 4 to 8 February 2002 the Cherdynskiy District Court of the Perm Region held public hearings in the criminal case against Mr B., accused of professional misconduct under Article 293 § 1 of the Criminal Code. In total, forty detainees were granted victim status in the criminal proceedings; of them, nineteen persons took part in the hearings and written depositions by the others were read out before the court. The court took witness statements from five other detainees who had not been victims themselves.
The trial concerned ten counts.[2] In counts 1 to 4 twelve detainees were beaten during searches on 17 and 18 April 2001. In count 5 twelve detainees, including the seventh applicant, were hit with rubber truncheons. Two detainees were hit with truncheons at the roll-call on 19 April 2001 (count 6). On the same day Mr B.’s subordinates beat three detainees, including the first applicant, who were returning from work (count 7) and two other detainees during a search in the punishment ward (count 8). In count 9 the fifth and sixth applicants, as well as six other detainees, were beaten with truncheons during the wake-up. Finally, another detainee received a truncheon blow on 20 April 2001 (count 10).
Before the court the applicants maintained their claims. The court decided, however, that their allegations were contradicted by the reports on the use of rubber trucheons (cited above) and witness statements by representatives of the colony administration.
The employees of the colony, including Mr F., Mr P. and Mr T., as well as Mr B.’s subordinates, denied any unjustified use of rubber truncheons on detainees. The colony doctor confirmed that a few detainees had applied for medical assistance after they had been hit with truncheons, however, no one had had his ribs broken or had been in a serious condition. Nor had medical assistance been refused to anyone. The five detainees heard by the court corroborated the statements by the other victims.
On 22 February 2002 the trial court delivered judgment. It acquitted Mr B. of the charges, finding as follows:
“Pursuant to Article 86 of the Code on Execution of Punishments and the Russian Law ‘On institutions and authorities supervising execution of criminal punishments in the form of deprivation of liberty’, employees of penitentiary institutions may use special means, including rubber truncheons, in cases of persistent disobedience to the lawful demands of the colony staff... The court has established that... all demands... had been lawful. In all cases the use of [rubber truncheons] was justified because they were used after... a warning about the intention to use a [truncheon] and because they were used when the victims refused to execute lawful demands of the staff, that is disobedience to the colony staff.. Each use of the [truncheon] was reported to B. if he was absent during its application... There are therefore no grounds to consider that [B.] had not exercised appropriate control over the lawfulness of actions of his subordinates and in that way unduly performed his duties.
Nor did the court establish violations of rights and lawful interests of citizens who are the victims in the present case... [T]he court considers that damage to their health had been caused on lawful grounds..
[T]he court also takes into account that criminal proceedings against the squad officers were discontinued for the lack of indications of a criminal offence... This decision has not been quashed. It does not, in itself, confirm the lawfulness of the squad officers’ actions... but it prevents [the court] from establishing the facts of unlawful actions.”
The prosecution and sixteen victims appealed against the acquittal. The prosecution submitted, in particular, that the trial court grounded its judgments on the statements by the defendant, his subordinates and the colony administration and disregarded submissions by detainees. It pointed out factual discrepancies: thus, according to the statements by B.’s subordinates, they had used truncheons twelve times, but B. had signed sixty-three reports on the use of special means. Moreover, it noted that the infliction of physical pain and bodily injuries had clearly violated the victims’ right and lawful interests and that the trial court had failed to identify lawful grounds for the use of physical force and special means.
On 17 December 2002 the Perm Regional Court examined the points of appeal and upheld the judgment of 22 February 2002. It noted that Mr B. had played a “merely nominal” part in the events and that he had not been able, or obliged, to control the conduct of each squad officer in his absence. He had not given orders to use truncheons and he had not used them himself. The appellate court held that in these circumstances the acquittal on the charge of undue performance of professional duties had been lawful and justified. It further noted that the investigative bodies had discontinued the proceedings against Mr B. on the charge of excess of power and against his subordinates for the lack of indications of a criminal offence and it was not therefore required to rule on these issues.
8. “Medical records” submitted by the Government
Further to the Court’s request, the Government submitted copies of certain handwritten documents described as the “medical records” of the applicants. Pages of these documents are not numbered or ordered. The documents do not contain any entries relating to the time of the events described above.
(a) The first applicant, Mr Dedovskiy
The documents contain records for 1995 to 1999 and 2003 to 2004.
(b) The second applicant, Mr Matrosov
The documents contain entries for 1995 to 2000 and 2002 to 2004.
(c) The third applicant, Mr Vidin
On 3 October 2001 Mr Vidin was referred to the prison hospital for treatment for inguinal hernia. In August 2002 he applied to the medical department in connection with recrudescence of otitis media, first diagnosed in 2001.
(d) The fourth applicant, Mr Bukhman
The documents contain entries for 1999, 2000 and 2002 to 2004.
(e) The fifth applicant, Mr Kolpakov
On 5 December 2001 Mr Kolpakov asked to be examined by a psychiatrist because of headache. There are no other entries for 2001.
In 2002, 2003 and 2004 Mr Kolpakov received treatment for a craniocerebral injury of an unspecified origin.
(f) The sixth applicant, Mr Gorokhov
The documents contain entries for 1999, January to March 2001 (treatment for psychopathy), 2003 and 2004.
(g) The seventh applicant, Mr Pazleev
The documents contain entries for 1999, and 2002 to 2004. The record of 25 June 2002 indicated that Mr Pazleev had been beaten by unidentified persons and had undergone in-patient treatment in July 2001 for affected kidneys.
B. Relevant domestic law
Article 82 §§ 5 and 6 of the Code on Execution of Punishments (Law no. 1-FZ of 8 January 1997) provide that the detainees and the premises where they live may be searched. Article 86 § 1 provides that physical force, special means or weapons can be used if detainees offer resistance to the colony officials, persistently disobey the lawful demands of the staff, engage in criminal activities, etc.
COMPLAINTS
The applicants complained, in respect of each incident described in parts 2‑5 of the Facts above, that they had been subjected to the treatment incompatible with Article 3 of the Convention.
The applicants complained under Article 13 of the Convention that the investigation of their allegations of ill-treatment carried out by the domestic authorities had not been effective as it had not led to identification and punishment of those responsible. Many detainees had been pressured to withdraw their complaints or give false testimony; the third and fourth applicants had been unlawfully refused recognition of their victim status in the domestic proceedings.
The applicants complained under Article 6 § 1 of the Convention that the finding of the domestic courts of the lawfulness of the use of special means had deprived them of an opportunity to have resort to a civil remedy for compensation for the health damage.
THE LAW
1. The applicants complained about many incidents of ill-treatment in breach of Article 3 of the Convention. They submitted that they had been deprived of an effective remedy in respect of their complaints, as required by Article 13, because the domestic investigation had not been adequate. The invoked Convention provisions read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government acknowledged that between 17 and 20 April 2001 a special-purpose squad composed of seven officers and headed by Mr B. had used rubber truncheons on detainees of colony no. IK-11. However, the detainees had not been able to identify any officers because the entire group had been dressed in the identical camouflage uniform and had worn balaclava helmets. On that ground the criminal proceedings against the officers had been discontinued. Subsequently the District Court had acquitted Mr B. of professional negligence because the rubber truncheons had only been used against detainees who had not complied with lawful orders. The applicants did not appeal to any court against the prosecutor’s decisions discontinuing criminal proceedings.
The applicants pointed out that their allegations of ill-treatment rested on a solid evidentiary basis which included their original complaints to the authorities in May 2001, reports on the use of rubber truncheons and materials of the criminal investigation. It was undeniable that the treatment complained about had been in breach of Article 3 of the Convention. However, they had not had an effective remedy for their grievances. All of them had complained to the authorities, but the investigation had been neither comprehensive nor adequate. They had never been informed of the prosecutor’s decisions on discontinuation of the criminal proceedings which had prevented them from lodging an appeal.
The Court reiterates at the outset the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism. This means in particular that the Court must take realistic account, not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general context in which they operate, as well as the circumstances of the individual case (see, among many authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, § 69).
In the present case the prosecutor took the decision not to prosecute the officers of the special-purpose squad who could not be identified and dismissed the complaints by the second, third and fourth applicants as unsubstantiated. The Government claimed that an appeal lay to the court against these decisions.
The Court observes that there is no evidence, and it has not been claimed by the Government, that copies of the prosecutor’s decisions were duly served on the applicants who had lodged complaints about the ill-treatment. It appears that a copy of the decision of 25 September 2001 was for the first time enclosed with the Government’s memorandum of 30 December 2004 and the applicants had not been previously aware of its contents. Accordingly, the Court finds that they did not have an effective opportunity to lodge a judicial appeal within the time-limit established by the domestic law. Furthermore, the Court cannot overlook the vulnerability of the applicants’ position at the material time. They were not represented by counsel and they were detained in a correctional colony under full control of the colony officials against whom their complaints of ill-treatment had been directed. In the light of the particular circumstances of the present case the Court considers that the applicants could not effectively pursue the remedy suggested by the Government.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicants complained that the findings of the domestic courts in the criminal proceedings barred their access to a court with a civil claim for compensation. They relied on Article 6 of the Convention.
The Government submitted that the acquittal of Mr B. and the decision discontinuing criminal proceedings against the other officers did not bar the applicants’ access to a civil court with a claim for damages. There were no legal provisions preventing such claim from being examined independently of the findings made in the context of criminal proceedings.
The applicants replied that the right of access to a court should be practical and effective. They contended that their complaint under Article 6 should be examined in the light of their submissions under Article 13 of the Convention.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren NielsenChristos Rozakis
RegistrarPresident
[1]. The numbering of counts in brackets refers to the subsequent court proceedings described below.
[2]. The counts are not numbered in the original judgment. The numbering has been introduced for the ease of cross-referencing and starts from the third paragraph of page 2 of the judgment of 22 February 2002.
Full & Egal Universal Law Academy