Published on 23 September 2024
THIRD SECTION
Application no. 39748/23
Elsad MAMEDOV
against Estonia
lodged on 2 November 2023
communicated on 5 September 2024
SUBJECT MATTER OF THE CASE
The case concerns the ill-treatment allegedly suffered by the applicant during the strip search he was subjected to in Tartu Prison, as well as the lack of effectiveness and independence of the subsequent investigation by the domestic authorities.
The applicant has been imprisoned in Tartu Prison. On 6 February 2023 he was subjected to a strip search.
According to the applicant he had tried to explain to the prison officer that a complete strip search in front of a male prison officer was not in accordance with his religious beliefs. According to the prison officer in question the applicant had used rude language, had sworn and yelled at him and “had suddenly turned to face him” after the officer had pointed the applicant towards the wall to perform checks. Subsequently, apparently three other prison officers arrived at the scene and together the officers fixated the applicant on the ground with his hands cuffed. It seems that there were other prison officers who witnessed the scene. According to the materials in the case file, the applicant was subsequently searched.
According to the applicant the prison officers beat him, and, among other injuries, he emerged from the incident with a broken rib. The applicant subsequently added that he had been diagnosed with post-traumatic arthrosis of the joints in his shoulder and linked this injury back to the use of force during his strip search.
The applicant lodged a criminal complaint concerning the manner in which he was strip searched and about the physical force used on him. The prison (where the investigation appears to have been carried out by the prison’s own internal control service) and subsequently the prosecutor’s office refused to institute criminal proceedings, finding that the use of force had had a legal basis and had not been excessive. The courts dismissed the applicant’s subsequent request to be granted State legal aid to appeal against the prosecutor office’s refusal, finding that the applicant’s case lacked prospects of success.
The applicant has also lodged a claim for damages concerning (in part) the above-described strip search as well as a claim to oblige (kohustamiskaebus) the prison to stop complete strip searches (täielik lahtiriietumisega läbiotsimine). These administrative court proceedings are still pending.
The applicant, invoking Article 3 of the Convention, complains about his strip search as such (which he considers having taken place without legal basis), and about the allegedly excessive use of force. He does not complain about the strip search having been contrary to his religious beliefs in his application to the Court.
He also complains under Article 3 that the investigation of his ill-treatment was not independent and was ineffective, and under Article 13 about not having had an effective remedy in relation to his ill-treatment by the prison officers.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, in relation to the strip search that he was subjected to, in particular taking into account the alleged excessive force used on him and the injuries he sustained? Alternatively, has there been a violation of the applicant’s right to respect for his private life contrary to Article 8 of the Convention (see Roth v. Germany, nos. 6780/18 and 30776/18, §§ 70-72, 22 October 2020; Dejnek v. Poland, no. 9635/13, §§ 57-77, 1 June 2017; Jaeger v. Estonia, no. 1574/13, §§ 41-48, 31 July 2014; and Iwańczuk v. Poland, no. 25196/94, §§ 58-59, 15 November 2001)?
The parties are asked to clarify what was the exact nature of the applicant’s strip search, and – more specifically – whether it included a body cavity search, and what were the injuries sustained by the applicant as a result of the strip search.
2. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV; see also B.Ü. v. the Czech Republic, no. 9264/15, §§ 89-93, 6 October 2022; Bokhonko v. Georgia, no. 6739/11, §§ 72-74, 22 October 2020), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular, could the investigation be considered to have met the requirement of independence (see Mihhailov v. Estonia, no. 64418/10, § 107 and §§ 127-131, 30 August 2016; Perkov v. Croatia, no. 33754/16, § 62, 20 September 2022; and Premininy v. Russia, no. 44973/04, §§ 94 and 109, 10 February 2011)?
3. Has there been a violation of the applicant’s right to an effective remedy under Article 13 in conjunction with Articles 3 and/or 8 of the Convention?