FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1573/02
by Suleyman Akberdovich MEDOV
against Russia
The European Court of Human Rights (First Section), sitting on 7 September 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 20 December 2001,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Suleyman Akberdovich Medov, is a Russian national, who was born in 1958. The applicant was a resident of Grozny, Chechnya, at present he is staying in Ingushetia. He is represented before the Court by Böhler Franken Koppe de Feijter Advocaten, lawyers practising in the Netherlands. The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case are partially in dispute between the parties. Their submissions are summarised below in Sections 1-4. Relevant Council of Europe documents and the national legislation are summarised below in Parts B and C.
1. The applicant’s arrest
The applicant is married and has three children. He and his family lived in the Staropromyslovskiy district of Grozny, in a settlement referred to by the local residents as Karpinka. On 23 January 2000 the applicant and his family - wife, sisters and several other people – were in the basement of a neighbours’ house at Krasnovodskaya Street, because their house at 21 Volodarskaya Street had been burnt down.
At approximately 2 p.m. a group of servicemen of the troops of the Ministry of the Interior came to the basement for passport control. The applicant and seven other men from the same basement and from a nearby building were rounded up by the soldiers and brought to a garage plot in the neighbourhood. The applicant’s wife and sisters came there and unsuccessfully sought his release.
Later that day the applicant and other detainees were brought to the encampment of a tank division near a place called Solyonaya Balka, situated 2-3 kilometres away from Karpinka. The applicant and other detainees were made to sit on the ground near the tanks. The soldiers threatened to kill them in retribution for General Mikhail Malofeyev, who had been killed in Grozny several days earlier. The applicant and others were briefly spoken to by General Troshev, the military commander of the Russian forces in Chechnya, who passed through the encampment to collect the killed General’s body. He told them that after the identity check and in case their documents were in order they would be released.
However, later that day the applicant and other detainees were placed together in an anti-tank pit in the ground in the open field and spent the night there. The soldiers beat and kicked the applicant and other detainees, and while they were in the pit, threw rocks and poured cold water at them. The temperature that night was about minus 3 degrees Celcius. Approximately at midnight the applicant and other detainees were allowed to sit near a campfire and were given some food.
On the following day, 24 January 2000, the applicant and the other detainees were driven to the Khankala military base, the headquarters of the united forces group in Chechnya. They were ordered into a small lorry used for transportation of prisoners (“avtozak”), and the applicant was hit by a rifle butt by a soldier when boarding the lorry. Upon arrival at Khankala, they were moved into another lorry where the applicant spent approximately 24 hours.
According to the Government, the applicant was apprehended on 23 January 2000 under suspicion of having participated in an attack at the federal servicemen which had occurred on 4 October 1999 in the village of Chervlenaya, the Shelkovskoy District of Chechnya. As a result of the attack, 15 servicemen were killed and 28 were wounded. The attack was investigated within the criminal case file no. 14/03/0547-99/49064. The Government did not submit any documents relating to this investigation.
The Government submitted that the applicant’s allegations about ill-treatment between 23 and 25 January 2000 could not be verified, because all archives had been destroyed and because it was impossible to identify and question the military servicemen who had participated in the operations in question.
2. The applicant’s detention in Chernokozovo,
On 25 January 2000 the applicant was taken to the Chernokozovo detention centre, where he was kept in cells nos. 8 and 17. The applicant submits that in cell no. 8, which was meant for five persons, he was kept with about 20 other detainees. In cell no. 17 the applicant was kept with about 40 persons.
During his stay in Chernokozovo the applicant was subjected to regular and particularly severe ill-treatment by the guards. The applicant identified them as the riot police (OMON) troops from the Rostov-on-Don region. The guards who ill-treated him were often drunk.
In particular, the applicant submits that upon arrival he and other detainees were forced to run through a corridor of soldiers who beat them with great force using rubber truncheons, rifle butts and wooden hammers. While standing naked in the shower room the applicant was also severely beaten. At a later time while in Chernokozovo the applicant was hit with a rifle butt on the head so hard that it left a deep wound on the left side of his head. The scar was still clearly visible about three months later when the applicant was questioned by an interviewer of the NGO Human Rights Watch (HRW) in Ingushetia. As a result of the beatings the applicant sustained a broken nose and fractured ribs, as well as bruises. The guards also played humiliating “games” like riding on the applicant who was forced onto his knees and hands.
The applicant was formally interrogated four times. During the interrogations the applicant was beaten. The interrogators tried to force him to sign a confession of participation in the illegal armed groups, penalised by Article 208 of the Criminal Code. The applicant denied having committed any crimes and refused to sign the document. He was shown an electric chair and threatened with application of electric shock.
In addition, the applicant was on several occasions “informally” questioned by soldiers, who beat him and tried to obtain a confession.
The applicant later recalled the conditions of detention and ill-treatment at Chernokozovo to the HRW interviewer and his testimony under the name of “Aslanbek Digayev” was included in their report “Welcome to Hell: Arbitrary Detention, Torture and Extortion in Chechnya” of October 2000.
The Government in their submissions confirmed that between 25 January and 18 February 2000 the applicant had been detained at the pre-trial detention centre IZ 4/2 in Chernokozovo. His detention had been ordered on 28 January 2000 by an investigator of the General Prosecutor’s Office Department for the Northern Caucasus and authorised by the acting Prosecutor for the Republic of Chechnya (the Chechnya Prosecutor). The Government submitted that on the same day the applicant had been formally charged with committing a crime prescribed under Article 208 part 2 of the Criminal Code –participation in an illegal armed group.
The Government submitted that on 28 January 2000 the charges had been formally brought against the applicant, the decree authorising his arrest had been read out to him and he had been advised of his procedural rights, including the right to appeal. On the same day the applicant was questioned about the charges. The applicant opted to keep silent, in accordance with Article 51 of the Constitution, and refused to sign any procedural documents or to give testimony. The applicant filed no appeals or motions related to the charges brought against him or the arrest warrant.
The Government submitted that upon admission to the pre-trial detention centre the applicant had underwent a medical examination, which revealed a bruise on his left shoulder. The Government submitted a copy of the register of newly arriving prisoners maintained by the detention centre, which did not indicate any other injuries or health problems for the applicant. The page contained eight entries, some of them with details of wounds, burns and diseases for other prisoners. While in detention in the IZ 4/2 the applicant had not applied for medical assistance and no separate medical record had been opened for him.
The Government submitted documents issued in October 2004 by the pre-trial detention centre IZ 20/2 located in Chernokozovo which stated that it had started to function in August 2000 [presumably replacing the pre-trial detention IZ 4/2] and that it therefore had had no information concerning the conditions of detention of the applicant or whether physical force had been applied to him.
Another letter issued by the pre-trial detention centre IZ 20/2 stated that the applicant had been detained in IZ 4/2 between 25 January 2000 and 29 April 2000 [sic] and that no personal file had been opened for him. Instead, an “informal record card” (карточка неустановленного образца) had been opened, a copy of which was submitted by the Government. This document stated that the applicant had arrived to the detention facility on 25 January 2000, that he had been arrested on 25 January 2000 by the Naurskiy [District] Prosecutor [sic] and that on 19 February 2000 he had been sent to the [pre-trial detention centre] SI-2 in Pyatigorsk. The document further stated that the applicant had been admitted to the IZ 4/2 on 28 April 2000 and released on 29 April 2000 under the Amnesty Act of 13 December 1999.
3. The applicant’s subsequent detention in Mozdok, Pyatigorsk and Stavropol
The applicant submits that on 18 February 2000, along with twelve men and three women, he was taken to Mozdok in North Ossetia. The detainees spent the night in a railway carriage. The applicant was taken out to a shower room which was outside the carriage, made to undress and beaten and kicked by the guards.
On 20 February 2000 the applicant was taken to Pyatigorsk in the Stavropol Region. He was brought to the pre-trial detention centre SIZO no. 2. He submits that upon admission he was superficially examined by a doctor who asked whether he had any complaints. The applicant, who felt intimidated by the presence of the guards, did not state any complaints, even though he submits that his bruises and an unhealed wound on his head should have been evident.
The applicant states that while in SIZO no. 2 he was severely beaten by the guards on his way to the shower room, where he and other detainees were forced to run naked. He was also beaten while he was in the bathroom.
The Government state that the applicant’s allegations about ill-treatment during transportation from Chernokozovo to Pyatigorsk are impossible to verify in the absence of the relevant archives data.
On 22 February 2000 the applicant was taken to Stavropol to the pre-trial detention centre SIZO no. 1. Upon arrival the applicant was again briefly examined by a doctor in the presence of the guards. Subsequently, the applicant was subjected to the same treatment as in Chernokozovo and in Pyatigorsk – he was forced to run through a corridor of soldiers who beat him. He was then forced to go into an ice-cold bath.
In SIZO no. 1 the applicant remained in cell no. 79. While in Stavropol, the applicant was interrogated only once by officials who did not present themselves. They wore uniforms with badges of the Ministry of Justice. The interrogators beat him and tried to force him to confess to having committed crimes under Article 208 of the Criminal Code. The applicant refused to sign a confession.
The Government confirmed that between 22 February and 3 May 2000 the applicant had been detained at the pre-trial detention facility IZ 26/1 in Stavropol. Upon arrival he was subjected to a medical examination which had revealed no injuries or particular health problems. He did not submit any complaints about his medical conditions either. He did not seek any medical assistance, did not submit any complaints about ill-treatment or conditions of detention and was not subjected to any disciplinary measures while in SIZO 26/1.
In support of their position the Government submitted several letters issued by the SIZO no. 1 of Stavropol in October 2004. According to these documents, the applicant had arrived to the detention facility on 22 February 2000. He had been arrested on 23 January 2000 under suspicion of participation in an illegal armed group (Article 208 part 2 of the Criminal Code). On 28 January 2000 his arrest had been authorised by the acting Chechnya Prosecutor. On 28 January 2000 the charges were formally brought to him. By a decision of the General Prosecutor’s Office his detention had been prolonged until 23 May 2000.
The applicant was subjected to a medical examination upon arrival and no injuries or diseases were recorded. On the same day he underwent a fluorography of the chest and blood tests, which did not reveal any health problems. He submitted no complaints about his health or injuries while in detention. The Government submitted a copy of the register of newly arriving prisoners which did not indicate any injuries or health problems for the applicant and a copy of his medical record which did not mention any health problems or complaints either.
During his stay in SIZO no. 1 the applicant had remained in cell no. 79. The Government submitted a detailed description of the cell and gave details of the applicant’s conditions of detention in that facility, supported by relevant records. They stated that the cell was intended to hold ten persons, but did not hold more than nine. The applicant and other detainees were supplied with beddings, food and items of personal hygiene in accordance with the relevant standards. They were taken to the shower once a week. The detention facility stated that no disciplinary measures or physical force had been applied to the applicant during his stay there. He had received no visits from the relatives, lawyers or investigators while in the SIZO.
4. The applicant’s release and domestic investigation
On 3 May 2000 the applicant was released from custody in Stavropol. Upon release he was issued with a document by the Ministry of the Interior which stated that he had been detained from 23 January to 3 May 2000 and that the criminal proceedings against him had been dropped under the State Duma Decree no. 4785-11 of 13 December 1999 “On amnesty for persons who had committed dangerous acts against public order during the anti-terrorist operation in the Northern Caucasus”. The measure of restraint was lifted. The applicant states that his passport was not returned to him.
The next day the applicant joined his family in Ingushetia. According to affidavits produced by his wife, sister-in-law and an interviewer of the HRW, upon release the applicant showed marks of severe physical abuse and mental traumas and it took him about six months to recover from the injuries he had sustained while in detention.
The applicant’s wife submits that the applicant had lost in weight significantly, that he had numerous bruises and scars on his body and head, that he had difficulty breathing, for several months had difficulty in performing the simplest exercises. She and the applicant’s sister-in-law, who had some basic knowledge in first aid and who treated the applicant upon his release, submitted in addition that the applicant was nervous and depressed, had difficulties sleeping, could not stand noise. They both stated that the deterioration of the applicant’s health was due to the ill-treatment received while in detention, and that before that the applicant was a healthy person.
On 7 December 2000 the applicant filed a complaint with the Grozny Town Prosecutor’s Office. He stated the circumstances of his arrest and detention, stated that he had been beaten and ill-treated while in detention in Karpinka, Khankala, Chernokozovo, Mozdok, Pyatigorsk and Stavropol. As a result of the beatings he had suffered a broken nose, two broken ribs and a scar on his head. The applicant stated that he had never participated in the illegal armed groups, to which he had been unsuccessfully put under pressure to confess, and that he was nevertheless released upon application of an amnesty act. The applicant requested an investigation into his complaints, to bring the responsible to justice and to award him compensation for the damages sustained.
On 21 December 2000 HRW wrote a letter to the General Prosecutor on the applicant’s behalf. It briefly recalled the circumstances of the applicant’s arrest and detention and requested to institute criminal proceedings into credible allegations of severe ill-treatment and torture. A copy of the letter was sent to Mr. Kalamanov, the Special Representative of the Russian President for Rights and Freedoms in Chechnya who forwarded the letter to the Stavropol Regional Prosecutor’s Office.
On 12 March 2001 the applicant was informally examined by a doctor in Ingushetia. The doctor, whose name the applicant does not disclose, reported a scar about 10 centimetres long on the left side of the applicant’s head, signs of a healed fracture of three ribs on the left side, apathy and fears. He concluded that the applicant suffered from the consequences of a head trauma, broken ribs, astheno-neurotic syndrome and phobias.
On 26 March 2001 HRW again wrote to the General Prosecutor, reminding him of their earlier letter to which no response has been given.
On 20 April 2001 the Chechnya Prosecutor’s Office replied to HRW that no criminal prosecution would be initiated upon the applicant’s complaints since the investigation showed that these were lacking grounds. The letter stated that on 20 February 2000 the applicant was examined by a doctor in SIZO no. 2 of Pyatigorsk and that no injuries had been reported or recorded at that time. Similarly, no particular records were made upon his examination by a doctor of SIZO no. 1 in Stavropol on 22 February 2000. While in SIZO no. 1 the applicant did not request any medical assistance, neither was he subjected to disciplinary measures or to physical coercion.
On 27 April 2001 the Stavropol Regional Prosecutor’s Office replied to the letter forwarded to them by Mr. Kalamanov. The letter referred to the absence of recorded complaints or injuries in the medical file made upon admission of the applicant to the detention centres and the absence of any medical complaints during the detention. Similarly, it referred to the absence of recorded disciplinary measures or physical coercion used against the applicant. The interviewing of cell-mates was no longer possible as no cell population records were kept. The letter also stated that the applicant’s passport was not in his personal file. The letter concluded that no violation of the applicant’s rights has been committed by the staff of the detention centres in Pyatigorsk and Stavropol.
On 21 May 2001 the applicant was summoned as a witness by an investigator of the Zavodskoy District Temporary Department of the Interior (VOVD) in Grozny. No further information about the nature of the proceedings was contained in the summons. The summons mentioned that the applicant was obliged to present himself, carrying his passport.
On 22 May 2001 the applicant was examined by a doctor of the Médecins Sans Frontières in Nazran, Ingushetia. The doctor reported a scar on the left side of his head, healed fractures of the ribs and nose.
On 23 May 2001 HRW again wrote to the General Prosecutor on the applicant’s behalf, challenging the outcome of the prosecutorial check conducted upon their earlier requests. They stated that the decision of the Stavropol Prosecutor’s Office not to initiate a criminal investigation was unfounded and failed to answer most of the well-founded allegations brought by the applicant. In particular, HRW asked to investigate the torture and ill-treatment of the applicant, the legal grounds of his detention and the guarantees of detention, confiscation of the applicant’s passport.
On 25 May 2001 HRW wrote to the Deputy Minister of Justice trying to clarify the situation of the cell population records. In particular, it asked what kind of records were maintained and for how long they were kept. No answer has been received to that letter.
On 14 June 2001 the General Prosecutor’s Office forwarded HRW letter of 23 May 2001 to the Chechnya Republican Prosecutor’s Office with a request to answer to the HRW.
On 2 July 2001 the applicant wrote letters to the Grozny Prosecutor’s Office and the Zavodskoy District VOVD of Grozny in reply to their summons. He explained that he resided in Ingushetia and that his passport had been confiscated upon arrest in January 2000. Therefore he asked to be questioned in Ingushetia and indicated his temporary address there. These letters were delivered in person by the applicant’s sister-in-law. Neither the Grozny Prosecutor’s Office nor the Zavodskoy VOVD have replied to these letters or taken any follow-up actions of which the applicant would be aware.
On 10 July 2001 HRW again addressed the General Prosecutor on the applicant’s behalf and requested an investigation of the applicant’s complaints. It also requested to retrieve the case-file from the Stavropol and Chechnya Prosecutor’s offices, to review the decision of the Stavropol Prosecutor’s Office not to open criminal proceedings and to conduct a proper investigation. There has been no reply to that letter.
On 16 July 2001 HRW wrote to the Minister of the Interior, asking him which unit of the Ministry had conducted the passport check in the settlement of Karpinka in Grozny on 23 January 2000. No answer has been given to that letter.
The applicant, in support of his submissions concerning ill-treatment and lack of effective investigation, refers to a number of NGO reports and documents produced by the Council of Europe and the UN bodies in relation to the situation in Chechnya.
The Government confirm that on 3 May 2000 the criminal proceedings against the applicant were dropped in application of the Amnesty Act of 13 December 1999 and that he was released on the same day.
The Government submit that the medical report of March 2001 obtained by the applicant was not drawn in conformity with the relevant rules applicable to these kind of documents and that the applicant had failed to apply to a medical institution upon his release to obtain a proper report.
Concerning the investigation of the alleged ill-treatment, the Government refer to the information received from the General Prosecutor’s Office. According to them, following complaints brought on the applicant’s behalf by the HRW, on 21 February 2001 the Pyatigorsk Town Prosecutor’s Office and on 20 March 2000 the Stavropol Town Prosecutor’s Office refused to initiate criminal proceedings upon the applicant’s complaints for absence of a criminal offence. These decisions were taken following a check conducted in accordance with Article 109 of the Criminal Procedural Code then in force. The applicant was advised of these decisions immediately, and again in May 2003, upon an application of the NGO Stichting Russian Justice Initiative brought on his behalf.
As to the applicant’s passport, the Government stated that upon release he had been issued with a standard reference form concerning his detention and release. On the basis of that notice, on 31 July 2002 the Zavodskoy District Court of Grozny issued him with a passport. The materials of the criminal case against the applicant contain no reference to the alleged seizure of his passport.
B. Relevant Council of Europe reports
The Chernokozovo SIZO, where the applicant had been detained, received extensive attention from various human rights institutions, including the European Committee for the Prevention of Torture (CPT), for allegations of severe ill-treatment of detainees. On 4 March 2000 the Head of the CPT delegation Mr Hajek issued a statement to the Russian officials at the end of the visit of the CPT to the North Caucasian region of the Russian Federation. The statement said, inter alia, in relation to the visit to Chernokozovo:
The delegation is satisfied that, at present, persons detained in this establishment are not being physically ill-treated. Further, although conditions of detention in the SIZO leave much to be desired, the delegation has noted that genuine efforts have been made in recent times - and continue to be made - to improve those conditions.
However, the information gathered by the delegation strongly indicates that many persons detained at Chernokozovo were physically ill-treated in the establishment during the period December 1999 to early February 2000. In different locations, the delegation has interviewed individually and in private a considerable number of persons who were held at Chernokozovo during that period. A clear pattern of physical ill-treatment of prisoners by custodial staff emerged. The ill-treatment alleged consisted essentially of kicks, punches and truncheon blows to various parts of the body (excluding the face). The ill-treatment was said to have been inflicted principally in the central corridor of the detention facility, usually when prisoners were taken to an investigator’s room for questioning or when they were returned to their cells after such questioning; apparently, prisoners were also on occasion physically ill-treated in the investigators’ rooms. Investigators were said to have been fully aware of the ill treatment being inflicted, and some prisoners affirmed that it was inflicted at their instigation. In certain cases, the delegation has gathered medical evidence which is consistent with the allegations of ill-treatment made by the prisoners concerned.
It is also noteworthy that practically all the prisoners interviewed who had been held at the establishment in Chernokozovo during the period January to February 2000 stressed that there had been a distinct change for the better in early February, at the same time as a changeover of staff began to occur. The beatings stopped; further, other improvements had been made, in particular as regards food. Moreover, no allegations of physical ill-treatment were made by prisoners interviewed who had arrived in the establishment after the first week of February 2000.
On 10 July 2001 the CPT issued a public statement concerning the Chechen Republic, under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. This step was prompted by the Russian authorities’ failure to cooperate with the CPT in relation to two issues: i) the carrying out of a thorough and independent inquiry into the events in a detention facility at Chernokozovo during the period December 1999 to early February 2000; ii) action taken to uncover and prosecute cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the current conflict. The statement said, in particular:
...the information gathered by the CPT’s delegation in the course of its February/March and April 2000 visits indicated that a considerable number of persons deprived of their liberty in the Chechen Republic since the outset of the conflict had been physically ill-treated by members of the Russian armed forces or law enforcement agencies. In the report on those two visits, the CPT recommended that the Russian authorities redouble their efforts to uncover and prosecute all cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the conflict. The Committee made a number of remarks of a practical nature intended to clarify the precise form those efforts might take. More generally, the CPT stressed that it was essential for the Russian authorities to adopt a proactive approach in this area.
The response of the Russian authorities to this key recommendation was very unsatisfactory...
As was stressed in a letter sent to the Russian authorities on 10 May 2001, the CPT’s concerns in this regard are all the greater given that in the course of the Committee’s most recent visit to the Chechen Republic, in March 2001, numerous credible and consistent allegations were once again received of severe ill-treatment by Federal forces; in a number of cases, those allegations were supported by medical evidence. The CPT’s delegation found a palpable climate of fear; many people who had been ill-treated and others who knew about such offences were reluctant to file complaints to the authorities. There was the fear of reprisals at local level and a general sentiment that, in any event, justice would not be done. It was emphasised to the Russian authorities that they must spare no effort to overcome this deeply disturbing state of affairs.
On 10 July 2003 the CPT issued a second public statement in relation to Chechnya. It was prompted by allegations of continued resort to torture and other forms of ill-treatment by members of the law enforcement agencies and federal forces operating in the Chechen Republic. It also referred to the action taken to bring to justice those responsible as slow and ultimately ineffective. In particular, the report stated:
In the course of the CPT’s visits to the Chechen Republic in 2002 and, most recently, from 23 to 29 May 2003, a considerable number of persons interviewed independently at different places alleged that they had been severely ill-treated whilst detained by law enforcement agencies. The allegations were detailed and consistent, and concerned methods such as very severe beating, the infliction of electric shocks, and asphyxiation using a plastic bag or gas mask. In many cases, these allegations were supported by medical evidence. Some persons examined by the delegation’s doctors displayed physical marks or conditions which were fully consistent with their allegations. Documentation containing medical evidence consistent with allegations of ill-treatment during periods of detention in law enforcement agencies was also gathered.
C. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure (CCP), as in force at the relevant time, read as follows:
1. Provisions relating to opening of criminal investigation
Article 108 provided that criminal proceedings could be instituted on the basis of letters and complaints from citizens, public or private bodies, articles in the press or discovery by an investigating body, prosecutor or court of evidence that a crime had been committed.
Article 109 provided that the investigating body should take one of the following decisions within a maximum period of ten days after being notified of a crime: open or refuse to open a criminal investigation, or transmit the information to an appropriate body. The informants should be informed about any decision.
Article 113 provided that if the investigating body refused to open a criminal investigation, a reasoned decision should be provided. The informant should be made aware of the decision and could appeal to a higher-ranking prosecutor or to a court.
2. Provisions relating to arrest and detention
Article 11 (1) guaranteed the principle of personal inviolability and established that no one could be arrested otherwise than on the basis of a judicial decision or a prosecutor’s order.
Pursuant to Articles 47 and 52 of the CCP, a suspect, from the moment of his arrest, had the right to be represented by a defence counsel, if necessary to be paid by the authorities.
Article 89 (1) authorised application of preventive measures when there were sufficient grounds to believe that the accused person could evade an inquiry, preliminary investigation or trial or obstruct the establishment of truth in a criminal case or engage in criminal activity, as well as in order to secure the execution of a sentence. The investigator, prosecutor or the court could apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or placement in custody.
Article 90 permitted, in exceptional instances, a measure of restraint to be imposed on a suspect who has not been charged. In such a case, charges should have brought against the suspect within ten days after imposition of the measure. If no charges were brought within the period specified, the measure of restraint should be revoked.
Article 91 required the following circumstances to be taken into account in imposing measure of restraint: the gravity of the charges and the suspect’s or defendant’s personality, occupation, age, health, family status and other circumstances.
Article 92 authorised investigator, prosecutor, or a court to issue a ruling or finding to impose measure of restraint, which should specify the offence of which the person was suspected or accused and the grounds for imposing the measure of restraint. The person concerned should have been informed of the ruling or finding and at the same time provided with explanations concerning appeal procedure. A copy of the ruling or finding should be immediately served on the person on whom a measure of restraint has been imposed.
Article 96 (Arrest) set out grounds for detention, and empowered public prosecutors, from the level of a district or town prosecutor to the Prosecutor General, to authorise detention on remand.
Article 97 (Terms of detention on remand) provided that detention on remand during the investigation of criminal cases could not last for more than two months. This term could be extended by the relevant prosecutor to three months, and further detention could have been authorised by a regional prosecutor (or a prosecutor of equal rank) up to a maximum of six months.
An appeal against an order extending periods of detention lay with the court for the area where the prisoner was held (Articles 220-1 and 220-2 of the CCP).
COMPLAINTS
1. The applicant complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment in the course of his detention. He referred to the conditions of detention, mental and physical abuse, anguish and fear which he had had to suffer for three months.
2. The applicant complained about lack of a proper investigation into credible allegations of ill-treatment and referred to the procedural obligations under Article 3 of the Convention.
3. The applicant complained that his arrest and detention had breached Article 5 § 1 Convention, as well as national law. The applicant referred, in particular, to an absence of official records accounting for a part of his detention. He complained that he had not been informed of the reasons for his arrest and detention under Article 5 § 2. He complained under Article 5 § 3 that his detention had not been authorised by a court or a prosecutor and that his right to be released within a reasonable time pending trial had been violated. He also complained under Article 5 § 4 that he had been denied an opportunity to challenge the lawfulness of his detention because he had had no access to lawyers and legal information and virtually no contacts with the outside world. Finally, he complained under Article 5 § 5 that his right to compensation for detention in violation of the provisions of Article 5 had been violated, since no inquiry had been conducted by the national authorities into his allegations of unlawfulness of detention.
4. The applicant complained under Article 6 § 1 of the Convention about the fairness of de facto criminal proceedings against him which had started upon his arrest in January 2000 and terminated three months later by the application of an amnesty act. He also submitted that the presumption of innocence, guaranteed under Article 6 § 2, had been violated by the actions of the investigators who had tried to extract a confession from him through ill-treatment. He further submitted that, contrary to the requirements of Article 6 § 3, he had not been informed promptly and in detail of the nature and cause of the accusations against him or of any evidence incriminating him, that he had had neither adequate time and facilities for the preparation of defence, nor access to legal assistance.
5. The applicant submitted that he had had no effective domestic remedies against the above violations, contrary to the requirements of Article 13 of the Convention.
THE LAW
1. The applicant complained under Article 3 that he had been subjected to inhuman and degrading treatment while in detention. He also submitted that the State had failed its positive obligation under Article 3 to conduct a proper investigation of the credible allegations of such treatment. He also submitted that he had had no effective remedies in respect of the above violation, contrary to Article 13. These Articles provide, as far as relevant:
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.”
1. Exhaustion of domestic remedies
The Government requested the Court to declare the complaint inadmissible as the applicant had failed to exhaust the domestic remedies. The Government outlined several possible available legal remedies.
They submitted that the applicant could have complained to the Military Prosecutor concerning the actions of the servicemen who had guarded him prior to his arrival to the pre-trial detention centre. He could have appealed the legality and conditions of detention to the prosecutor or to a court, but he did not submit any complaints while in detention. Finally, it was open to the applicant to pursue civil proceedings once he was released, either in Chechnya or in the neighbouring regions, which he also failed to do.
The applicant disagreed with the Government’s objection.
First, he argued that there was an administrative practice of non-compliance with the requirement to investigate effectively abuses committed by Russian servicemen and members of the police in Chechnya. He referred to complaints submitted to the Court by other persons claiming to be victims of such abuses, who also complained about lack of effective investigation. The applicant cited human rights groups’, international organisations’ and media reports on violations of civilians’ rights committed by federal forces and the subsequent lack of effective domestic investigation.
Second, he invoked the existence of special circumstances as a result of detention incommunicado. He explained that he had felt vulnerable, powerless and apprehensive of the State representatives and therefore had been unable to submit any complaints while in detention.
He maintained that in any event he had exhausted domestic remedies, because upon release he had applied to a prosecutor with a request to conduct an investigation into the allegations of ill-treatment. In his opinion, criminal investigation should have been regarded as a proper remedy in view of the nature of his complaints and the relevant practice of the Court. Despite his efforts, no proper investigation took place. His complaints were rejected without proper examination, and his appeal to higher ranking prosecutor remained unanswered.
Application to courts with a request for compensation could not, in his opinion, be a proper remedy for the type of violations alleged, and in any event would be futile in the absence of conclusions from the criminal investigation.
The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings.
The Court therefore decides to join this objection to the merits.
2. As to the merits of the applicant’s complaints
The Government denied that the applicant had been subjected to unlawful violence while in detention. They stated that he had been examined by medical staff upon admission to the pre-trial detention centres in Chernokozovo, Pyatigorsk and Stavropol and that no injuries had been recorded apart from a bruise on his shoulder on 25 January 2000. They stressed that the records showed that other detainees had had more serious injuries recorded, which had proved their accuracy. The applicant did not seek medical assistance while in detention and did not submit any complaints about ill-treatment. As to the examinations upon release, the Government noted that the applicant had only obtained a medical opinion in March 2001, and that document was not a proper medical expert’s report but an anonymous “consultative conclusion”. His allegations about ill-treatment were dismissed by the prosecutor’s office as unfounded after a proper verification.
The applicant maintained his complaints. He referred to his detailed submissions about the conditions of detention and methods of ill-treatment, to the medical documents produced after his release and to the witness statements which corroborated with his account. He alleged that the documents submitted by the Government could not be regarded as conclusive evidence of the contrary, because some had been issued in 2004 and the records maintained in 2000 were not accurate. Even these documents acknowledged that he had had a bruise on his shoulder. He also referred to NGOs’ reports, Council of Europe documents and other complaints brought to the European Court that denounced wide-spread ill-treatment of detainees in Chechnya, and particularly at the Chernokozovo detention centre. He argued that the investigation had not attained the level required by the Convention standards and the domestic legal provisions.
He also submitted that he had had no recourse to effective remedies against the said violations, contrary to Article 13.
The Court considers, in the light of the parties’ submissions, that the complaints under Articles 3 and 13 of the Convention raise complex issues of law and fact, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that these complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
2. The applicant claimed that he had been detained unlawfully and in violation of the guarantees contained in Article 5. He claimed that he had been hold incommunicado and therefore could not effectively challenge his detention. He claimed that he had had no effective remedies against the violations alleged under Article 5. Article 5 provides:
Article 5
“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;
...
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.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
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.”
The Government stated that the applicant’s detention had been lawful throughout the period under review and that it had been authorised by the competent prosecutors until 23 May 2000. The applicant was timely informed about the reasons for detention and could have appealed it to a court, in accordance with the legislation then in force. They also noted that the applicant had failed to make use of the existing complaints mechanisms after release, such as application to a court.
The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision or, where no domestic remedy is available, from the act complained of. As far as the applicant complains about the lawfulness and guarantees of detention, the Court notes that he was detained between 23 January and 3 May 2000. He was released on the latter date, and issued with a document confirming that an amnesty act had been applied to him and that the previously applied measure of restraint had been lifted. After that the applicant requested prosecutors to initiate criminal proceedings for ill-treatment and illegal detention, but these complaints were rejected. The complaint in the present case was lodged on 20 December 2001.
The Court observes that the Russian law provides, in principle, three avenues for victims of allegedly illegal detention, such as (a) an application for release, (b) institution of criminal proceedings (in cases where illegal detention falls under the provisions of the Criminal Code), and (c) a civil claim for damages (see in this respect Mikheyev v. Russia (dec.), no. 77716/01, 7 October 2004).
As regards the first avenue, which is applicable during the time of detention, the Court notes that the applicant failed to seek judicial review of the detention. It may be open to doubt whether in the circumstances of the present case he would have been required to make use of this remedy. However, even assuming that this remedy was not an effective one, the Court recalls that his detention ended in May 2000, whereas the application to the Court in this respect was introduced in December 2001, that is more than six months after his release.
As to the second avenue, the Court considers that in the circumstances of this case, when the applicant’s detention and release took place within the context of criminal proceedings against him, an application for a criminal investigation could not be regarded as an effective remedy for the purposes of the applicant’s complaint under Article 5 of the Convention, because it did not involve any action on behalf of the State agents manifestly amounting to a criminal offence.
As to the third avenue, the Court recalls that in certain circumstances a claim for pecuniary compensation for unlawful detention may be regarded as an effective remedy for the purposes of Article 5 of the Convention. In the present case the Court notes that no such proceedings were brought by the applicant because he regarded them as ineffective in the absence of conclusions from the criminal investigation. The Court is not convinced that in the present case the applicant was absolved from the obligation to exhaust this remedy. However, even assuming that this is so, the application was lodged out of the six months limit starting from the date of his release.
It follows that this part of the application must be declared inadmissible pursuant to Article 35 § 4 of the Convention.
3. Under Article 6 the applicant complained about various aspects of the criminal proceedings brought against him. Article 6 provides:
Article 6
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time... by [a] ... tribunal...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”
The Court recalls that the criminal proceedings against the applicant were terminated on 3 May 2000 due to application of an amnesty act. The applicant did not appeal against this decision and he did not claim that he continued to be affected by these proceedings after that date. The application was submitted to the Court in December 2001, i.e. more than six months later.
It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Joins to the merits the Government’s objection concerning non-exhaustion of domestic remedies;
Declares admissible, without prejudging the merits, the applicant’s complaints concerning Articles 3 and 13 of the Convention;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy