THIRD SECTION
DECISION
Application no. 17767/06
Petr Aleksandrovich RAUSH
against Russia
The European Court of Human Rights (Third Section), sitting on 22 March 2016 as a Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 4 April 2006,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Petr Aleksandrovich Raush, is a Russian national, who was born in 1963 and lives in St Petersburg. He was represented before the Court by Mr B. Gruzd, a lawyer practising in St Petersburg.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Events of 1 May 2002 and subsequent proceedings
4. The applicant was a member of the local anarchist movement.
5. On 1 May 2002 the applicant participated in a public gathering. At around 12 noon the applicant and six other persons were apprehended by the police and put in a police vehicle. According to the applicant, the arrest was carried out in a brutal manner: police officers twisted his fingers, gave him several blows on his back and legs and put him face down against the floor of the police vehicle. According to the police reports of 1 May 2002, the applicant was inebriated and violently resisted the police.
6. The applicant was released at around 4 p.m., that is, four hours after his arrest. He was not subject to any prosecution under the Code of Administrative Offences.
7. At around 7 p.m. on the same date the applicant underwent a medical examination, which concluded that he had bruises and scratches on his face and chest. At 8 p.m. he obtained a medical certificate confirming that he was not drunk.
8. On 16 May 2002 the applicant and other persons complained to the Tsentralnyy district prosecutor’s office, St Petersburg (“the district prosecutor’s office”) about police brutality on 1 May 2002.
9. On 28 June 2002 the district prosecutor’s office refused to initiate criminal proceedings against the police officers for lack of evidence of a crime, having concluded that it was impossible to establish whether the officers had inflicted any injuries on the applicant or other persons.
10. On 28 October 2002 the district deputy prosecutor overturned the decision of 28 June 2002.
11. On 30 January 2003 the district prosecutor’s office again refused to initiate criminal proceedings on the grounds that the persons participating in the public gathering of 1 May 2002 had refused to comply with the police order to stop the gathering and had resisted lawful arrest; accordingly, the police had acted lawfully in order to overcome violent resistance.
12. According to the applicant, he was served with a copy of the decision of 30 January 2003 on 29 April 2003. It remains unclear whether the applicant had attempted to obtain a copy prior to that date.
13. On 24 June 2003 the applicant challenged the decision of 30 January 2003 before the Smolninskiy District Court, St Petersburg (“the District Court”).
14. On 3 December 2003 the District Court declared the decision unlawful on the grounds that the seriousness of the injuries allegedly sustained by the applicant had not been assessed and issued an instruction ordering the prosecutor to re-examine the matter.
15. On 19 December 2003 the district prosecutor’s office again refused to open an investigation.
16. According to the applicant, he managed to obtain a copy of the decision of 19 December 2003 on 9 July 2004. It remains unclear whether the applicant had attempted to obtain a copy prior to that date.
17. On 31 August 2004 the applicant challenged the decision of 19 December 2003 before the District Court.
18. On 22 September 2004 the District Court declared the refusal of 19 December 2003 unlawful on the grounds that the seriousness of the injuries allegedly sustained by the applicant had not been assessed.
19. On 13 October 2004 the district prosecutor’s office issued a new refusal to open an investigation on the grounds that it was possible that the injuries had been sustained after the applicant’s release from the police station.
20. According to the applicant, he received a copy of the decision of 13 October 2004 in February 2005. It is not known whether the applicant had sought a copy earlier.
21. On 12 September 2005 the applicant’s lawyer challenged the decision of 13 October 2004 before the District Court.
22. On 26 September 2005 the District Court declared the decision of 13 October 2004 unlawful noting the incompleteness of the pre‑investigation inquiry.
23. On 24 November 2006 the district prosecutor’s office issued a new decision refusing to open an investigation.
24. According to the Government, on 25 January 2010 the St Petersburg prosecutor’s office overturned unspecified refusals to open an investigation by the district prosecutor’s office.
2. Events of 15 April 2003 and subsequent proceedings
25. On 15 April 2003 the applicant and other persons held a picket in front of the US Embassy in Moscow. They were arrested as they had failed to duly notify the city authorities of the picket. According to the applicant, he was arrested at 5.15 p.m. When brought to the police vehicle, he received two blows to his head. He was then required to sit on the floor of the vehicle. Once in the police station, a police officer inflicted around thirty blows to the applicant’s head and chest. According to the police reports of 15 April 2003, the applicant had violently resisted arrest.
26. The applicant was released shortly after his arrival at the police station. In the applicant’s submission, it happened two hours after the arrest. According to the Government, the applicant was arrested at 5.30 p.m. and released at 6.20 p.m.
27. At around 7.30 p.m. on the same date the applicant underwent a medical examination in a hospital and was diagnosed with bruises and scratches on the body and limbs and a bruise on the chest.
28. On 21 April 2003 the applicant complained to the district prosecutor’s office of police brutality.
29. On 20 May 2003 the district prosecutor’s office refused to open an investigation on the grounds that the participants of the picket had violently resisted the police.
30. On 28 May 2003 a Justice of the Peace of St Petersburg Circuit no. 201 imposed on the applicant a fine of 1,000 Russian roubles under the Code of Administrative Offences for his participation in the unauthorised picket.
31. On 24 June 2003 the applicant challenged the refusal of 20 May 2003 before the District Court.
32. On 3 December 2003 the District Court declared the decision of 20 May 2003 unlawful.
33. On 19 December 2003 the district prosecutor’s office again refused to open criminal proceedings against the police officers.
34. The applicant allegedly received a copy of the decision of 19 December 2003 on 17 June 2004.
35. On 31 August 2004 the applicant challenged the refusal of 19 December 2003 before the District Court.
36. On 22 September 2004 the District Court declared the decision of 19 December 2003 unlawful.
37. On 4 October 2004 the district prosecutor’s office again refused to open an investigation.
38. In his submission, the applicant received a copy of the decision of 4 October 2004 on 19 June 2005.
39. On 12 September 2005 the applicant’s lawyer challenged the refusal of 4 October 2004 before the District Court.
40. On 26 September 2005 the District Court declared the decision of 4 October 2004 unlawful.
41. According to the Government, on 25 January 2010 the prosecutor’s office of St Petersburg quashed unspecified refusals to open an investigation by the district prosecutor’s office.
COMPLAINTS
42. The applicant complained under Article 3 of the Convention that on 1 May 2002 and 15 April 2003 he had been ill-treated by the police and that no meaningful investigation into the alleged ill-treatment had been carried out at the national level. He further complained, under Article 5 § 1 of the Convention, of the alleged unlawfulness of his deprivation of liberty on 1 May 2002 and 15 April 2003. Invoking Article 11 of the Convention, the applicant alleged interference with his freedom of assembly on account of the events of 1 May 2002 and 15 April 2003. The applicant further complained, under Article 6 § 2 of the Convention, that the domestic authorities had written that he had been drunk and aggressive towards the police officers in details of their refusals to investigate the alleged ill‑treatment. Lastly, he complained, under Article 13 of the Convention, that he had no effective domestic remedies in respect of his grievances.
THE LAW
A. The parties’ submissions
1. The Government
43. The Government argued that the applicant had failed to comply with the six-month rule in respect of his complaints under Articles 3, 5, 11 and 13 of the Convention.
44. In their submission, the trigger date for calculating the six-month period in respect of the Article 3 of the Convention grievances was 26 September 2005 when the Smolninskiy District Court quashed the prosecutor’s decision not to open criminal proceedings of 13 October 2004. They further claimed that the complaint had been premature since the St Petersburg prosecutor’s office had ordered a resumption of the pre‑investigation inquiry on 25 January 2010. However, they did not submit any materials regarding further developments in the inquiry.
45. With regard to the complaint under Article 5 of the Convention, the Government submitted, firstly, that, in the absence of administrative offence proceedings concerning the events of 1 May 2002, the applicant could have requested a court to declare unlawful (under Chapter 25 of the Russian Code of Civil Procedure) the actions of the policemen who had apprehended him, and, secondly, that the applicant had had an opportunity to challenge the lawfulness of the actions of the police officers on 15 April 2003 by appealing against the decision of 28 May 2003 by the Justice of the Peace. Given that the applicant had not done so, the Government asserted that the trigger dates for the calculation of the six‑month period had been 1 May 2002 and 28 May 2003, respectively. They further argued that the applicant’s detention on 1 May 2002 and 15 April 2003 had been lawful pursuant to Article 5 § 1 (b) of the Convention as the police officers had apprehended the applicant to ensure that administrative offence records were drawn up and released him within one hour upon the completion of formalities on both occasions.
46. The Government further insisted that the applicant had not lodged any complaints concerning the alleged interference with his freedom of assembly before the domestic courts and asserted that the six-month period in respect of the complaint under Article 11 of the Convention had started running on 1 May 2002 and 15 April 2003, respectively. They also claimed that there had been no interference with the applicant’s right to freedom of peaceful assembly.
2. The applicant
47. The applicant insisted that he had complied with the six-month rule in respect of all complaints and maintained them in substance.
48. Without making any submissions as to the alleged ill‑treatment, he criticised the pace and inefficacy of the investigation arguing that he had not been informed of the decision of 25 January 2010 mentioned by the Government in the course of the proceedings before the Court.
49. With regard to Article 5 of the Convention, the applicant claimed that there had been no effective domestic remedies at his disposal for his grievances. He considered nonetheless that he had complied with the six‑month rule as, in his view, his attempts to institute criminal proceedings against the police officers should be taken into account for the purposes of calculating the six‑month time period.
50. The applicant further asserted that he had no effective domestic remedies to challenge the alleged violation of Article 11 of the Convention.
B. The Court’s assessment
1. Compliance with the six-month rule
(a) General principles
51. The six-month time-limit provided for by Article 35 § 1 of the Convention has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29 June 2012, and El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 135, ECHR 2012).
52. That rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible. The existence of such a time-limit is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question and constitutes a legitimate concern for order, stability and peace (see, with further references, Sabri Güneş, cited above, § 40).
53. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009). Article 35 § 1 of the Convention cannot be interpreted in a manner which would require an applicant to inform the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 of the Convention to take the start of the six-month period from the date on which the applicant first became or ought to have become aware of those circumstances (see Keenan v. the United Kingdom (dec.), no. 27229/95, 22 May 1998, and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 259-60, ECHR 2014 (extracts)).
(b) Application of the above principles to the present case
(i) Article 3 of the Convention
54. The Court does not accept the Government’s assertion that the trigger date for the purposes of the six‑month rule should be 26 September 2005, the date of the first-instance decision by the District Court, since the latter clearly was not a “final” domestic decision in respect of the applicant’s Article 3 grievances (see paragraph 22 above). Nor is it prepared to agree with the Government’s argument that the complaint was lodged prematurely. It reiterates, nonetheless, that it is not open to it to dispense with the application of the six-month rule solely because the respondent Government have not made an objection to that effect (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III). Accordingly, it is incumbent on the Court to satisfy itself that the applicant has complied with the six-month rule regardless of the Government’s position on the issue.
55. The Court reiterates in this connection that in cases concerning an investigation into ill‑treatment, the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, the applicants must contact the domestic authorities promptly – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation – and, on the other, they must lodge their application promptly with the Court as soon as they become aware or should have become aware that the investigation is not effective (see Mocanu and Others, cited above, § 264, and M.B. v. Croatia (dec.), no. 24488/13, 16 June 2015).
56. The first aspect of the duty of diligence – that is, the obligation to apply promptly to the domestic authorities – must be assessed in the light of the circumstances of the case. In this regard, the Court has held that applicants’ delay in lodging a complaint is not decisive where the authorities ought to have been aware that an individual could have been subjected to ill-treatment – particularly in the case of assault which occurs in the presence of police officers – as the authorities’ duty to investigate arises even in the absence of an express complaint (see Velev v. Bulgaria, no. 43531/08, §§ 59-60, 16 April 2013). Nevertheless, this does not relieve an applicant of his own individual obligation to undertake elementary steps and seek information from the relevant authorities about the investigation’s progress or the lack thereof (see, for example, Manukyan v. Georgia (dec.), no. 53073/07, § 30, 9 October 2012, and Vartic v. Romania (dec.), no. 27631/12, § 51, 6 May 2014).
57. With regard to the second aspect of this duty of diligence – that is, the applicant’s duty to lodge an application with the Court as soon as he realises, or ought to have realised, that the investigation is not effective – the Court has stated that the issue of identifying the exact point in time where this stage occurs necessarily depends on the circumstances of the case and that it is difficult to determine it with precision (see Nasirkhayeva v. Russia (dec.), no. 1721/07, 31 May 2011). In particular, the Court has considered it indispensable that persons who wish to bring a complaint concerning the ineffectiveness or lack of an investigation before the Court do not delay unduly in lodging their application. However, so long as there is some meaningful contact with the authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay by the applicants will not generally arise (see Mocanu and Others, cited above, § 269).
58. Turning to the circumstances of the present case, the Court observes that on 4 April 2006 the applicant complained before it of having been subjected to ill-treatment by the police on 1 May 2002 and 15 April 2003, and of the lack of an effective investigation into these incidents.
59. In so far as the first aspect of the duty of diligence is concerned, the Court emphasises that the applicant in the present case was neither detained nor charged with a criminal offence throughout the proceedings related to the alleged police brutality. It observes that the applicant has provided no explanation as to why he had only complained of the instances of the alleged ill-treatment several days after the events (see paragraphs 8 and 28 above). Moreover, the Court notes rather important periods of time ranging from two to eleven months that elapsed between the district prosecutor’s office’s refusals to open an investigation and the applicant’s challenges to them before the District Court (see paragraphs 13, 17, 21, 31, 35 and 39 above). The applicant vaguely stated that he had received copies of the prosecutor’s office’s refusals with delays (see paragraphs 12, 16, 20, 34 and 38 above). However, he did not put forward any explanation as to the origin of these delays and did not submit whether he had been precluded from obtaining those copies earlier. The Court is not convinced, accordingly, that there were any obstacles precluding the applicant from seeking information on the progress of the pre‑investigation inquiry with more expedition. Even assuming that the applicant could not gain access to the materials of the inquiry before the dates that he mentioned, time periods ranging from several weeks to seven months elapsed between those dates and the dates on which it the applicant and his lawyer applied to the District Court. In such circumstances the Court considers that the applicant – who was at liberty and thus unrestricted in his actions – had ample opportunity to diligently contact both the investigative authorities and the domestic courts. Having failed to do so, the applicant could not be said to have complied with the first aspect of his duty of diligence.
60. In so far as the second aspect of the duty of diligence is concerned, the Court notes that, given the repetitive nature of the district prosecutor’s office’s refusals to investigate the two instances of alleged ill-treatment issued in the course of 2002-04 (see paragraphs 9, 11, 15, 19, 29, 33 and 37 above), it ought to have become evident rather rapidly that no concrete progress had been made and that no other steps would be taken with regard to investigating the allegations (see Brunner v. Turkey (dec.), no. 10/10, 6 December 2011, and Petrović and Gajić v. Serbia (dec.), no. 36470/06, § 31, 17 March 2015). Given that, in view of passage of the considerable time, the gaps resulting from the absence of the most basic investigative steps, which should have been taken shortly after the events complained of in order to secure evidence, could hardly be filled (see, mutatis mutandis, Finozhenok v. Russia (dec.), no. 3025/06, 31 March 2011), these repeated refusals to open an investigation into each instance of the alleged ill‑treatment contained neither a sufficiently tangible indication nor a realistic possibility of progress in investigative measures (see, by contrast, Mafalani v. Croatia, no. 32325/13, § 83, 9 July 2015). Accordingly, the Court is convinced that, in the circumstances of the present case, the applicant must have become aware of the ineffectiveness of the investigation more than six months before he lodged the application with the Court on 4 April 2006.
61. Alternatively, if the applicant had such little confidence in authorities’ ability to conduct a meaningful criminal investigation in the aftermath of the events of 1 May 2002 and 15 April 2003, he could then have applied to the Court within six months of the alleged incidents (see Akhvlediani and Others v. Georgia (dec.), no. 22026/10, 9 April 2013).
62. In the light of the foregoing, the Court holds that the complaints under Article 3 of the Convention concerning the alleged ill‑treatment and lack of adequate investigation into it should be rejected for non-compliance with the six-month time-limit within the meaning of Article 35 §§ 1 and 4 of the Convention.
(ii) Article 5 of the Convention
63. Reiterating the principles governing the application of the six-month rule (see paragraphs 51‑53 above), the Court observes that the applicant’s complaints under Article 5 of the Convention lodged on 4 April 2006 relate to two distinct periods of time: that between 12 noon and 4 p.m. on 1 May 2002, and that between 5.15 p.m. and 6.20 or 7 p.m. on 15 April 2003. The parties disagreed as to whether the applicant had had effective domestic remedies at his disposal in respect of this complaint.
64. The Government stated generally that the applicant had had avenues of redress for the alleged breaches of his right to liberty at his disposal which he had not used, specifically, civil proceedings to declare the actions of the police officers unlawful and an appeal against the decision imposing a fine for the administrative offence (see paragraph 45 above). In so far as this claim may be understood as a non‑exhaustion objection, in the absence of any detailed description of the avenues involved the Court is not convinced that the burden of proof placed on the Government to satisfy it that an effective remedy had been available in theory and in practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999‑IX) has been discharged in the present case. Accordingly, it considers that the Government did not demonstrate that the applicant had had at his disposal any effective remedies to be taken into account when applying the six-month time-limit.
65. The applicant, in turn, put forward two contradictory arguments: firstly, he claimed to have no effective remedies in respect of the alleged unlawfulness of his detention on two occasions, and, secondly, he asserted that his attempts to institute criminal proceedings against the police officers should be taken into account for the purposes of the six‑month rule (see paragraph 49 above). The Court does not accept in the circumstances of the case that the proceedings ensuing from the applicant’s request to open a criminal investigation was of relevance in the context of the alleged violation of Article 5 of the Convention. Even assuming that the applicant had initially considered it an apparent remedy, it is clear in view of the Court’s findings concerning Article 3 of the Convention (see paragraph 62 above) that the applicant became aware, or should have become aware, of the overall ineffectiveness of his attempts to have investigations into the acts of the police officers opened more than six months before the date of introduction of the application.
66. The Court concludes, accordingly, that in the circumstances of the present case there was no “final decision” of any domestic authority with regard to the applicant’s complaint about unlawfulness of his deprivation of liberty on 1 May 2002 and 15 April 2003. It follows that the starting dates for the six-month period are the respective dates of the alleged violations (see, for similar reasoning, Roffey and Others v. the United Kingdom (dec.), no. 1278/11, § 34, 21 May 2013). The application was lodged with the Court on 4 April 2006. The applicant did not refer to any special circumstances that had precluded him from addressing the Court prior to that date.
67. In the circumstances of the case, the Court holds that the complaint under Article 5 of the Convention concerning the events of 1 May 2002 and 15 April 2003 was lodged out of time.
68. It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
(iii) Article 11 of the Convention
69. With regard to the freedom of assembly complaint, the Court points out that it is not disputed between the parties that the applicant never attempted to initiate any domestic proceedings raising an issue of undue restriction of his rights under Article 11 of the Convention on 1 May 2002 and 15 April 2003. The applicant, who has emphasised that in his view there were no domestic remedies to be exhausted, ought therefore to have lodged his application with the Court no later than six months after the end of the events complained of in order to comply with the six‑month rule (see, mutatis mutandis, Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 87, ECHR 2014 (extracts)).
70. It follows that this part of the application was submitted out of time, and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
2. Other complaints
(a) Article 6 § 2 of the Convention
71. Turning to the complaint about the wording of the prosecutor’s office’s decisions, the Court, having regard to all the material in its possession, and as far as it is within its competence, finds that the applicant’s submissions disclose no appearance of violations of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
(b) Article 13 of the Convention
72. The applicant complained that he had no effective domestic remedies in relation to the violations alleged. However, in the light of the above findings it follows that this part of the application is inadmissible and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 21 April 2016.
Stephen PhillipsLuis López Guerra
RegistrarPresident
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