KOROBOV AND OTHERS v. ESTONIA

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10195/08
by Aleksandr KOROBOV and Others
against Estonia

The European Court of Human Rights (Fifth Section), sitting on 14 September 2010 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 29 February 2008,

Having deliberated, decides as follows:

THE FACTS

The applicants are seven Estonian residents. The first applicant, Mr Aleksandr Korobov, is an Estonian national born in 1959. The second applicant, Mr Sergei Kovaljov, is an Estonian national born in 1992. The third applicant, Mr Rostislav Makariev is a Russian national born in 1985. The fourth applicant, Mr Gennadi Mihhaidarov, is an Estonian national born in 1983. The fifth applicant, Mr Sergei Petrov, is a stateless person born in 1977. The sixth applicant, Mr Dmitry Tarasov, is a Russian national born in 1981. The seventh applicant, Mr Valeri Zatvornitski, is a stateless person born in 1970. All the applicants live in Tallinn, except for the fourth applicant who lives in Kiviõli. The applicants are of Russian ethnic origin. They are represented before the Court by Mr B. Bowring and Mr P. Leach, university professors and lawyers at the European Human Rights Advocacy Centre (London).

The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background of the case

The Bronze Soldier, originally named “Monument to the Liberators of Tallinn”, was unveiled on 22 September 1947, on the third anniversary of the entry of the Soviet Red Army into Tallinn. It was erected in Tõnismägi, central Tallinn, above a small burial site of Soviet soldiers' remains reburied in April 1945. The monument consisted of a statue of a soldier in a Second World War-era Red Army military uniform set against a stone background.

From 2004 demands for the removal or relocation of the Bronze Soldier intensified. At the same time, on 22 September (the anniversary of the entry of the Red Army into Tallinn in 1944) and 9 May (Soviet Victory Day in the Second World War), a crowd of mainly Russian speakers, including veterans and younger people, gathered at the monument. Since 2006 in particular, there have been several instances of confrontation in the vicinity of the monument which the police have been able to keep under control. On some occasions the monument has been smeared with paint.

In early 2007 the Protection of War Graves Act (Sõjahaudade kaitse seadus) was enacted by the Riigikogu and provided for the reburial of remains and relocation of monuments in cases where war graves were located at unsuitable sites. The Bronze Soldier was a prominent issue in the electoral campaign ahead of the parliamentary elections on 4 March 2007.

On the eve of 26 April 2007 the monument's defenders were removed from the square where the Bronze Soldier was located by police forces and the area was cordoned off. A large tent structure was erected over the monument and the graves in preparation for the exhumation of the remains of the Soviet soldiers. By the evening of 26 April 2007 a large group of people, mostly Russian speakers, had gathered at Tõnismägi and expressed their discontent with the Government's actions. Shouting “Shame!” and “Fascists!” they refused to comply with the police orders and some attempted to break through the police cordon. The group turned more violent and started throwing rocks and empty bottles at the police. The police forced the protesters out of Tõnismägi. The crowd then started committing acts of vandalism and looting shops and buildings in neighbouring streets. There were clashes with the police who, in response, used truncheons, rubber bullets and plastic handcuffs. A large number of people were arrested. According to some sources approximately a third of those detained were ethnic Estonians; ethnic Estonians were also among those charged with looting and theft.

Early in the morning of 27 April 2007 the Government decided to move the monument from Tõnismägi and a few days later it was re-erected in a military cemetery. On the evening of 27 April protesters returned to Tõnismägi. The police again cordoned off the area and carried out arrests, this time within a larger radius of the monument's former location. Disorder and vandalism continued for a second night. Although the protests had been unauthorised, there was no formal ban on visiting the city centre. Nevertheless, on 27 April 2007 the Government, through the mass media and messages sent to people's e-mail addresses and mobile phones, asked people to stay home.

According to the official sources referred to by the applicants, in total more than 1,160 people were arrested (of whom 500 were Estonian nationals, nearly 100 were Russian nationals and more than 300 were stateless persons). One person was stabbed to death and 156 were injured (including twenty-nine policemen). The police recorded 148 cases of vandalism. By 18 May 2007 the authorities had opened sixty-five criminal cases involving 300 suspects, mostly concerning serious breach of public order and disregard of lawful orders given by representatives of the state authority.

2. The applicants' detention

(a) The first applicant

The first applicant was arrested on 27 April 2007 at 11.30 p.m. in Viru Street in the city centre. He was kicked to the ground by the police officers and was made to lie face down on the road where there was a lot of broken glass. He was handcuffed and taken to a storage facility at the port (D‑terminal). According to the applicant, the police officers refused to tell him where he was being taken or to give any reasons for the arrest.

By 1 a.m. on 28 April 2007 about 350 people were being held at the D‑terminal, a storage facility which measured 19 metres by 6 metres. The applicant was told to squat against the wall.

The first applicant submitted that detainees who attempted to stand up because their legs had gone numb or out of protest were kicked to the ground, hit with rubber truncheons and beaten. The applicant was struck so hard that he fell down on the floor. He was repeatedly beaten with truncheons and kicked in the stomach by police officers wearing heavy boots.

According to a medical report issued on 2 May 2007 and submitted by the first applicant, it appears that he was diagnosed with pelvic contusion in the right side of the lumbo-sacral region. A medical record was also submitted to the domestic authorities to substantiate his criminal complaint (see below). The applicant also submitted to the Court a written statement from Zh., dated 28 May 2008, concerning their arrest and detention.

The police kept the first applicant's personal details and released him at 4 a.m. on 28 April 2007 without any charges. No explanations or grounds for his detention were given, his rights were not explained to him and he was not given any official record of his detention.

(b) The second applicant

According to the second applicant, who was a minor at the time, he was arrested on 27 April 2007 at 7.30 p.m. in Tuukri Street. After witnessing the arrest of three persons aged approximately 15-16 years who were walking in front of him in the street, the second applicant became scared and attempted to run away but was caught by a police officer who threw him on the ground, pressed him down and bound his hands with plastic straps. He was taken by bus to the D-terminal without been given any reasons for his arrest or being allowed to call his mother. About three hours later he was asked how old he was, after which his handcuffs were removed. Nevertheless, it was another two hours until the police officers called his mother who was working a night shift and therefore could not come and collect him. He was taken home at 4 a.m. on 28 April 2007.

(c) The third applicant

As submitted by the third applicant, he was arrested on 27 April 2007 at 2 a.m. on the corner of Viru Street and Pärnu Street on his way home after a date with his girlfriend. He was approached by police officers and ordered to lie on the ground. He was pushed so hard that he injured his chin and, although he put up no resistance, he was handcuffed in such a way that his hands immediately went numb. One of the officers did not like the way he was lying on the ground and kicked his leg twice with his heavy boots. According to his mother's written statement to the Court, dated 4 July 2008, the third applicant had bruises on his leg, lesions on his chin and red marks on his wrists from handcuffs.

According to the third applicant, every time he tried to speak the police officers would respond with swear words that humiliated him and degraded his dignity, and would beat him severely. At 3 a.m. on 27 April 2007 he was taken to Rahumäe Detention Centre. He was searched and, without having been told his rights or allowed to make a phone call, he was placed in a cell designated for four persons where there were soon to be twenty.

In the evening of 27 April 2007 he was called to see an investigator who informed him that he was suspected of serious breach of public order and questioned him. The questioning was done in Estonian without an interpreter. He was released at 10.47 p.m.

On 12 October 2007 the criminal investigation in respect of the applicant was terminated because no offence had been made out.

(d) The fourth applicant

According to the fourth applicant's submissions, he was watching the protest on the evening of 27 April 2007 at Kaarli Avenue. At 10.30 p.m. the policemen started shooting at the crowd with rubber bullets. One of the bullets hit the fourth applicant's right arm. He was subsequently hit on the head with one or more truncheons causing a serious wound. He was then hit on his knee causing him to fall to the ground. His arms were bound and he was thrown into a car. He was not allowed to make a phone call or told his rights or the reasons why he had been arrested. His requests for first aid were ignored. He was taken to the D‑terminal where he started to lose consciousness. Only at this point was his head bandaged. When he started to feel worse, a nurse examined him and advised that he should be taken to hospital. According to a medical report submitted to the Court he arrived at the hospital at 11.30 p.m. on 27 April 2007. He was diagnosed with a haematoma on his skull. A medical report was also submitted to the national authorities to substantiate the fourth applicant's criminal complaint (see below).

(e) The fifth applicant

According to the allegations of the fifth applicant, he was with some friends near Harju Hill at 9.30 p.m. on 27 April 2007 when he was suddenly attacked by police officers. He was kicked to the ground and three officers started hitting him on the head with truncheons and boots. His arm was broken as he tried to protect his head with his arm. He was taken to the D‑terminal and made to squat without being allowed to stand up. According to the applicant, detainees who tried to stand up were severely beaten. Although the fifth applicant complained of pain in his arm, he was not given any medical treatment. He was not told why he had been detained; nor was he allowed to make a phone call or told his rights. He was released at 5.30 a.m. the next day.

According to a medical report submitted to the Court, the applicant arrived at the hospital at 12.26 p.m. on 28 April 2007 and was diagnosed with a fractured forearm. A medical report was also submitted to the national authorities to substantiate his criminal complaint (see below).

The fifth applicant also submitted to the Court written statements from Z. and K., both dated 2 June 2008, describing the circumstances of his arrest and the violence used by the police officers against him.

(f) The sixth applicant

Sometime after 6 p.m. on 27 April 2007 the sixth applicant and his wife went to see what was happening at the Bronze Soldier and to take some photos for the family album. At 11 p.m. when the police started using truncheons, gas and grenades to disperse the crowd the applicant and his wife decided to leave and go home. On their way home at 12.40 a.m. on 28 April 2007 they saw two men fighting on the opposite side of Väike-Karja Street. The sixth applicant stayed to stop the fight and his wife went home. The fight stopped without any intervention from the applicant and he continued on his way home. He then joined a group of four people who were asking the police to let them go home to Pärnu Street to get away from the fights and looting in Väike-Karja Street. However, the police officers ordered them to go to Väike-Karja Street. According to the applicant, approximately fifteen or twenty minutes later the policemen started to approach them, brandishing their truncheons at the same time as another group of policemen began attacking them from the other side. The sixth applicant and the other people were made to stand against the wall of a house and were hit on the legs and pushed, despite no one having resisted arrest. They were tied to each other with plastic bands and handcuffed. No explanations were given as to the reasons for their arrest. While they were sitting on the ground, the policemen kicked and pushed them. Their personal details were then recorded. The sixth applicant was not allowed to loosen the plastic bands, even though they were causing him severe pain. Approximately two hours later a vehicle arrived and the applicant and the other people were taken to Rahumäe Detention Centre. The sixth applicant was searched and placed in a cell, which had been designed for four people, together with seventeen others.

While in detention the sixth applicant became ill with severe ulcer pain. A doctor was called to see him and gave him medication. She rudely remarked that the applicant should drink less alcohol, although he did not drink at all. When he had subsequent bouts of ulcer pain the doctor did not come, in spite of his requests.

The sixth applicant submitted to the Court medical reports according to which he had been diagnosed with a duodenal ulcer in 2005 and had still been undergoing treatment in December 2007. A medical report was also submitted to the national authorities to substantiate his criminal complaint (see below).

In the evening of 28 April 2007 the sixth applicant was questioned on suspicion of having committed a serious breach of public order. Although he was offered a State-assigned lawyer, his status was not explained to him and nor was the importance of having a lawyer. Moreover, the police investigator persuaded him to refuse the lawyer's assistance, saying that he would be acquitted in court. Thus, the sixth applicant refused the lawyer's services. He was released after approximately one hour. On 1 October 2007, after having interviewed the sixth applicant again, the police terminated the criminal investigation in his regard because no offence had been made out.

(g) The seventh applicant

The seventh applicant was arrested on 28 April 2007 at 11 p.m. when he was walking to a bus stop. According to the applicant, a police officer approached him and asked to see his identity papers. When the seventh applicant showed them, the police officer asked for details of his citizenship. When the seventh applicant asked why this mattered, the policeman answered: “You will see now” and he tied the seventh applicant's hands together with tape. He was taken in a police vehicle to a court building. There, he was made to stand against a wall and when he tried to move, police officers pushed him, causing him to badly injure his head on the floor. The police officers hit him repeatedly on his head and one police officer kicked him in the genitals. The police officers also pulled his legs in different directions, sat on him and shouted at him. After half an hour he was taken to a cell where he spent the night. His rights were not explained to him and nor was he allowed to make a phone call. He was released at 6 a.m. on 29 April 2007. When he asked why he had been detained the only answer he received was that he should not have left his house before 9 May.

According to a medical report issued at 6:45 on 29 April 2007 and submitted by the seventh applicant, it appears that at he had an abrasion on the right side of his face and a small abrasion on his forehead. He also complained of severe pain in his right thigh but there were no signs of any trauma. A medical report was also submitted to the domestic authorities to substantiate his criminal complaint (see below). The applicant also submitted to the Court a written statement from R., dated 29 May 2008, describing the circumstances of their arrest and detention.

According to a misdemeanour report drawn up by police officer J.R. on 29 April 2007, the seventh applicant had shouted and used foul language in a public place (Tammsaare Park) and disturbed other people at 10.30 p.m. on 28 April 2007. Therefore, he had committed a breach of public order. The misdemeanour report refers to a separate report on the questioning of a witness (which was not submitted to the Court) and bears the seventh applicant's signature next to his remark that he had seen the report but did not agree with the statements contained in it.

3. The applicants' criminal complaints

Each of the applicants made an individual criminal complaint after the events described above alleging that they had been unlawfully deprived of their liberty and complaining that violence had been used against them. The first, fourth, fifth, sixth and seventh applicants also submitted medical reports to substantiate their allegations. The fifth applicant provided the names and personal details of Z. and K. who could give statements concerning the circumstances of his arrest. The seventh applicant referred to R. as a witness. In addition, the fourth applicant appended a video recording of the arrests to his complaint to the Tallinn Court of Appeal.

The Põhja district prosecutor's office declined to initiate criminal proceedings considering that the applicants' arrest and the use of force and special equipment by the police had been lawful.

The applicants appealed to the State Prosecutor's Office which dismissed their appeals, emphasising that criminal proceedings were commenced only when there was sufficient information about an offence having been committed. It noted that, in the course of the riot, rocks and bottles had been thrown at police officers and there had been violent looting and acts of destruction, during which the participants themselves had been hurt. Thus, the mere allegations of the applicants about the circumstances in which they had sustained their injuries were not sufficient to establish a causal link between the alleged acts and the consequences. Moreover, the police officers were authorised to apply coercive measures and to detain persons suspected of committing criminal offences, but the applicants had not complied with the orders of law-enforcement officers to leave the site of an unauthorised and violent mass meeting. The measures taken in respect of them had been appropriate and no elements of an offence could be identified on the basis of the applicants' complaints.

The applicants lodged further complaints with the Tallinn Court of Appeal against the refusal to initiate criminal proceedings. The court dismissed them, upholding the finding of the prosecutor's office that no unequivocal link between the actions of the police officers and the injuries sustained by the applicants could be established. The court held that the use of force by the police had been lawful and there was no evidence that an excessive force had been used. In respect of the allegedly unlawful deprivation of liberty, it noted that under Article 20 of the Constitution, a person could also be deprived of his or her liberty in order to prevent an offence or to prevent his or her escape. No appeal lay against the Court of Appeal's decision.

COMPLAINTS

1. The applicants complained of ill-treatment during their arrest and detention. They also maintained that no effective investigation had been carried out by the authorities in respect of their complaints. They relied on Articles 3 and 13 of the Convention

2. They further complained, relying on Article 5 of the Convention, that their deprivation of liberty had been unlawful and arbitrary. It had not been justified under any of the grounds provided for in the first paragraph of Article 5 and had been unlawful under the domestic law. The authorities had had no reasonable suspicion that the applicants had committed an offence, nor could the deprivation of liberty be considered necessary to prevent the applicants from committing an offence.

They complained of a violation of Article 5 § 2 of the Convention, in that none of the applicants had been promptly informed of the reasons for their arrest or of any charge against them. Although the third and sixth applicants had eventually been informed of the charges against them, this had only happened some hours into their detention.

In the light of the above violations of Article 5, the applicants claimed an enforceable right to compensation, in accordance with Article 5 § 5.

3. The third and sixth applicants complained that their right to a fair trial, guaranteed under Article 6 of the Convention, had been violated. Although they had only been suspects in the criminal case concerning a serious breach of public order and the investigation in respect of both of them had been terminated in October 2007, the prosecutor, in refusing to open a criminal case in respect of their unlawful arrest and detention, stated that “evidently [their] behaviour [had not been] law-abiding”. Thus, the presumption of innocence had been infringed. They had also been deprived of other procedural rights provided for in Article 6 § 3.

4. Lastly, the applicants alleged that the treatment to which they had been subjected, and which had fallen within the ambit of Articles 3 and 5 of the Convention, namely their arrest, had amounted to discrimination on the ground of their origin or perceived origin as ethnic Russians or Russian speakers, in violation of Article 14 taken in conjunction with Article 3 and Article 5.

THE LAW

1. The applicants complained that they had been ill-treated during their arrest and detention and that no effective investigation had been carried out in respect of their complaints. They relied on Articles 3 and 13 of the Convention. The Court considers that the complaints at issue 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.”

As the Court has stated on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct. According to the Court's case-law, 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 mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see, among many authorities, Labita v. Italy [GC], no. 26772/95, §§ 119-20, ECHR 2000‑IV; Tekin v. Turkey, 9 June 1998, §§ 52-53, Reports of Judgments and Decisions 1998‑IV; and Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25).

Furthermore, allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita, cited above, § 121, with further references).

Turning to the present case, the Court observes that according to the second applicant's submission he had been thrown on the ground and pressed down during his arrest and then handcuffed for three hours. He had witnessed police violence in the D-terminal. The Court further observes that, according to the submission of the third applicant, he had been pushed and kicked twice by a police officer during his arrest. The third applicant submitted to the Court a written statement from his mother describing the injuries he had sustained during his arrest. According to the sixth applicant, he had been in severe pain because of the plastic bands placed around his wrists; he also mentioned that other detainees had been kicked and pushed by police officers. Furthermore, the sixth applicant had been given medication for his ulcer pain once, but not when he had had further bouts of pain.

The Court notes that the second applicant attempted to escape from the police when he saw other persons being arrested. In these circumstances, and based on the information submitted by the second applicant, it does not appear that the force applied in respect of him during his arrest, and the treatment he was subsequently subjected to, reached the threshold to fall within the scope of Article 3. In the Court's view, the same applies to the third applicant. Moreover, it observes that the second and third applicants provided no pertinent medical reports either to the domestic authorities or to the Court in order to substantiate their complaints. A non-medical statement by the third applicant's mother concerning his injuries was only submitted to the Court at the time of the lodging of the application and not to the national authorities together with a criminal complaint. As concerns the sixth applicant, he submitted to the Court medical reports according to which he had been diagnosed with a duodenal ulcer in 2005 and was still undergoing treatment in December 2007.

The Court concludes that the evidence in the case file does not demonstrate beyond reasonable doubt that the second, third and sixth applicants were subjected to treatment contrary to Article 3 of the Convention. Furthermore, as concerns the procedural aspect of Article 3, the Court notes that these applicants' criminal complaints were examined by the district prosecutor's office and State Prosecutor's Office and by the Court of Appeal which found that there had been no need to initiate formal criminal proceedings as there was no evidence that any criminal offence against the applicants had been committed. In the light of the applicants' submissions, the Court considers that no arguable claim concerning their ill-treatment has been put forward and sees no reason to come to a conclusion different from that reached by the domestic authorities. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In respect of the first, fourth, fifth and seventh applicants, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicants complained under Article 5 § 1 of the Convention that their deprivation of liberty had been unlawful and arbitrary. Furthermore, they had not been promptly informed of the reasons for their arrest and of any charge against them, in violation of Article 5 § 2. They also claimed an enforceable right to compensation in accordance with paragraph 5 of Article 5. The relevant parts of Article 5 read 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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

a) In respect of the complaint concerning the lawfulness of the applicants' deprivation of liberty, and the related complaint concerning their right to compensation for the allegedly unlawful detention, the Court considers that it cannot, on the basis of the case file, determine the admissibility of those complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of that part of the application to the respondent Government.

b) In so far as the complaint under Article 5 § 2 is concerned, the Court reiterates that this provision contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. He must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Saadi v. the United Kingdom, no. 13229/03, § 51, 11 July 2006, and Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182).

In the present case, the Court observes that the duration of the applicants' detention was between one and twenty hours and that the third and sixth applicants, whose detention lasted the longest (twenty and eighteen hours, respectively) were informed of the charges against them and questioned before they were released. The remaining applicants were detained for eight and a half hours (the second applicant) or less.

In this context, the Court notes that there is a close link between paragraphs 2 and 4 of Article 5, namely, that an important function of the right to be informed of the grounds for one's arrest is to enable the person to challenge its lawfulness before a court. The Court has found that once an individual has been released Article 5 § 4 ceases to be applicable, save in so far as he complains about the speediness with which the lawfulness of his detention was considered by the relevant national court (see Harkmann v. Estonia, no. 2192/03, § 43, 11 July 2006, and Tyrrell v. the United Kingdom, no. 28188/95, Commission decision of 4 September 1996, unreported). Similarly, the fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5 § 3. No violation of Article 5 § 3 can arise if the arrested person is released “promptly” before any judicial control of his detention would have been feasible (see Brogan and Others v. the United Kingdom, 29 November 1988, § 52, Series A no. 145‑B, and De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 52, Series A no. 77).

The Court considers that it is appropriate to take a similar approach in respect of the applicants' complaint under Article 5 § 2 in the present case. It considers that the time taken to release the applicants or inform them of the charges against them, as the case may be, was compatible with the notion of promptness in Article 5 § 2 (see, for comparison, Lowry v. Portugal (dec.), no. 42296/98, 6 July 1999; Durgov v. Bulgaria (dec.), no. 54006/00, 2 September 2004; and Saadi, cited above, § 52). Moreover, the Court finds that the general context of the present case was such that the applicants must have understood, at least in broad terms, why they had been arrested.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The third and sixth applicants complained of a violation of their rights, under Article 6 of the Convention, in respect of the criminal proceedings against them. In particular, they alleged that their right to be presumed innocent had been violated because of the language used by the prosecutors, who had stated in their rulings that “evidently [their] behaviour [had not been] law-abiding”. They also complained of a violation of their other rights guaranteed under Article 6 § 3.

In respect of the complaint under Article 6 § 2, the Court observes that there is no indication that it had been raised by the applicants before the domestic authorities. In any event, even leaving aside the question of whether the requirement of exhaustion of domestic remedies can be considered to have been complied with, the Court considers that there is no appearance of a breach of the presumption of innocence. In the Court's view, the language used in the decisions has to be assessed in its context, that is, keeping in mind that the decisions addressed the issue of whether a criminal investigation should be opened into the acts of the police officers. Furthermore, the language used in the decisions of the prosecutor's office does not refer to the applicants as being guilty of any criminal offence. The Court notes that it was explicitly stated that the applicants were suspects in the criminal case relating to serious breach of public order. It was further noted that it was evident that the applicants' behaviour had not been law-abiding and that they had not complied with the police officers' lawful orders and therefore the officers had been obliged to take measures to protect public order. The Court considers that it cannot be concluded from the wording used in these decisions that the applicants were found guilty before a judgment was delivered convicting them. Rather, the text of the decisions in question would seem to refer to any kind of disobedience – not necessarily amounting to a criminal offence – by the applicants. In the Court's view the context and the wording used in the decisions cannot be considered to violate the applicants' right to be presumed innocent.

As concerns the complaint of a violation of the third and sixth applicants' other fair trial guarantees under Article 6, the Court reiterates that a person may not claim to be a victim of a violation of his or her right to a fair trial under Article 6 which allegedly took place in the course of proceedings in which he or she was acquitted or which were discontinued (see, for example, Kalpachka v. Bulgaria (dec.), no. 49163/99, 19 May 2005, with further references). In the present case, the criminal proceedings in respect of the third applicant were terminated on 12 October 2007 and in respect of the sixth applicant on 1 October 2007.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. Lastly, the applicants argued that the treatment to which they had been subjected had amounted to discrimination on the ground of their ethnic origin, in violation of Article 14 taken in conjunction with Article 3 and Article 5.

The Court notes that the applicants failed to substantiate their allegation of discrimination on the basis of their ethnic origin and that there is no indication of discrimination of any kind in connection with their alleged ill-treatment and detention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first, fourth, fifth and seventh applicants' complaint concerning their ill-treatment and the applicants' complaint concerning their deprivation of liberty, as well as the related complaint concerning their right to compensation for the allegedly unlawful detention;

Declares the remainder of the application inadmissible.

              Claudia Westerdiek Peer Lorenzen
RegistrarPresident

 

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