THIRD SECTION
DECISION
Application no. 60890/08
Bayzhan Kholmuradovich ISMOGULOV
against Russia
The European Court of Human Rights (Third Section), sitting on 27 March 2018 as a Committee composed of:
Helen Keller, President,
Pere Pastor Vilanova,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 14 November 2008,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Bayzhan Kholmuradovich Ismogulov, is a Russian national who was born in 1971 and lives in St Petersburg. He was represented before the Court by Ms A.V. Boychenyuk, a lawyer practising in Paris.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Events of 2 September 2002
4. The applicant and his family occupied one room of a flat within a hostel (общежитие).
5. On 2 September 2002 the applicant had an argument with I., the manager of the hostel, who demanded that the applicant vacate the room. When the applicant refused to let him in, I. called the police.
6. When police officers P. and Ch. arrived, the applicant opened the door. According to the applicant, as soon as he did so I. punched him several times holding a set of keys, and the applicant tried to shut the door. At that moment P. sprayed the applicant with tear gas and threatened him with a gun.
7. An ambulance paramedic recorded the injuries found on the applicant’s body: grazes on the surface of his stomach and burning of the mucous membrane of the eyes. This document, however, was not made available to the Court by the parties.
2. Criminal proceedings against the applicant in connection with the incident of 2 September 2002
8. On 21 October 2002 criminal proceedings were instituted against the applicant under Articles 213 § 1 (hooliganism) and 119 § 1 (threat of murder or infliction of grave bodily harm) of the Criminal Code.
9. In the course of a preliminary investigation it was established that at about 9.30 p.m. on 2 September 2002 in the communal corridor of the hostel, the manager of the hostel, I., and police officer P. asked the applicant to provide an explanation for his unlawful stay in room no. 702. In response the applicant started using obscene language and administered two blows to I’s face, causing him bruising to the left cheekbone and abrasions on his fingers. It was also established that the applicant had been occupying the room without any legal grounds and had prevented access to another room situated in the same flat to its lawful residents, M. and Sh.
10. On 7 February 2003 charges were brought against the applicant under Articles 213 § 3 (hooliganism) and 330 § 1 (taking the law into one’s own hands) of the Criminal Code.
11. On 14 December 2007 the Kalininskiy District Court of St Petersburg (“the District Court”) convicted the applicant under Articles 116 § 1 (physical assault) and 330 § 1 of the Criminal Code and sentenced him to a fine. The sentence was not enforced owing to the expiry of the procedural time-limit for prosecution.
12. On 7 April 2008 the St Petersburg City Court quashed the above judgment on appeal, terminated the proceedings in so far as they concerned the charges under Article 330 § 1 of the Criminal Code, and referred the rest of the case to the District Court for a fresh examination by a different bench.
13. On 6 November 2008 the District Court returned the case to the prosecutor, who in turn sent it back to the investigations department.
14. On 19 September 2009 the investigating authority reclassified the applicant’s acts under Article 213 § 1 of the Criminal Code.
15. On an unspecified date the proceedings were terminated because the legislature had decriminalised the acts committed by the applicant.
3. Investigation into the applicant’s allegations of ill-treatment
16. Meanwhile, on 23 May 2003 the applicant applied to the prosecutor’s office seeking the institution of criminal proceedings against I., P. and Ch.
17. On three occasions ‒ 1 July 2003, 11 May 2005 and 30 May 2006 – the Deputy Prosecutor of the Kalininskiy District of St Petersburg refused to institute criminal proceedings against I., P. and Ch. for lack of constituent elements of a crime (illegal entry to a dwelling, abuse of power and service forgery) in their actions.
18. Following complaints lodged by the applicant on 25 August 2004, 12 September 2005 and 15 January 2007 respectively, the District Court found the above-mentioned decisions unsubstantiated and ordered the prosecutor’s office to carry out an additional inquiry, questioning all the persons involved in the incident.
19. In the absence of any progress in the conduct of the inquiry by December 2007, the applicant challenged the inactivity of the prosecutor’s office before the District Court.
20. On 15 May 2008 the District Court found unlawful the inactivity of the prosecutor’s office in conducting a proper inquiry in the applicant’s case and ordered the Kalininskiy District Prosecutor to resolve the situation.
21. The material concerning the applicant’s complaint was subsequently lost.
22. Following communication of the present application to the Russian Government in June 2014, on 11 August 2014 an investigator of the Kalininskiy District Investigations Department of the Federal Investigating Committee for St Petersburg refused to institute criminal proceedings against I., P. and Ch.
23. On 30 January 2015 the above-mentioned decision was set aside by the prosecutor of the Kalininskiy District of St Petersburg, who ordered an additional inquiry.
24. The case file contains no further information as to the outcome of the proceedings.
COMPLAINT
25. The applicant complained of the failure of the domestic authorities to carry out an effective investigation into his allegations of ill-treatment.
THE LAW
A. The parties’ submissions
26. The Government submitted that the investigation carried out by the domestic authorities had complied with the procedural requirements of Article 3 of the Convention, and that the applicant’s complaint should be dismissed as being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
27. The applicant maintained his complaint, drawing the Court’s attention to the fact that the case had been repeatedly remitted for additional pre-investigation inquiry and to the failure of the investigating authorities to rectify the omissions pointed out by the domestic court, the absence of any activity on the part of the investigating authorities until communication of the application to the Russian Government, and to the fact that the domestic authorities had lost the material pertaining to the applicant’s complaint of ill-treatment.
B. The Court’s assessment
1. General principles
28. According to its case-law, it is not open to the Court to dispense with the application of the six-month rule solely because a Government have not made a preliminary objection to that effect. The Court therefore has jurisdiction to apply this rule of its own motion, even if the Government have not raised that objection (see Fábián v. Hungary [GC], no. 78117/13, § 90, 5 September 2017).
29. 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 and 8 others, § 157, ECHR 2009). 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 Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 260, ECHR 2014 (extracts)).
30. 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, 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).
31. 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 a delay on the part of an applicant 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). Nor does such a delay affect the admissibility of the application where the applicant was in a particularly vulnerable situation, having regard to the complexity of the case and the nature of the alleged human rights violations at stake, and where it was reasonable for the applicant to wait for developments that could have resolved crucial factual or legal issues (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012). 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 Raush v. Russia (dec.), no. 17767/06, § 56, 22 March 2016, with further references).
32. 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 or she 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).
2. Application of the general principles to the present case
33. The Court observes that on 14 November 2008 the applicant lodged a complaint with the Court as regards the failure of the domestic authorities to carry out an effective investigation of the ill-treatment to which he had allegedly been subjected on 2 September 2002 by a private individual, I., and a police officer, P.
34. The Court notes that the alleged ill-treatment took place on 2 September 2002, and that it was eight months and three weeks later, on 23 May 2003, that the applicant brought his complaint of ill-treatment before the domestic authorities. The Court cannot discern any objective reasons which could have prevented the applicant from bringing his complaint promptly before the domestic authorities: he remained at liberty and was unrestricted in his actions. The applicant did not advance any such reasons either.
35. The Court observes that between July 2003 and May 2006 three decisions were taken by the Deputy Prosecutor of the Kalininskiy District of St Petersburg refusing to institute criminal proceedings ‒ on 1 July 2003, 11 May 2005 and 30 May 2006. It further observes that following the applicant’s complaints, the District Court found the above-mentioned decisions unsubstantiated ‒ on 25 August 2004, 12 September 2005 and 15 January 2007 respectively – and ordered an additional inquiry. The Court notes the significant lapse of time between the refusals of the prosecutor’s office to open an investigation ‒ over one year and ten months between the first and second decisions and over one year between the second and third decisions. It further notes the significant lapse of time before the applicant challenged those decisions before the District Court. It has not been alleged by the applicant that he had received the copies of the refusals of the prosecutor’s office belatedly or, had that been the case, that he had been precluded from obtaining those copies earlier.
36. The Court further observes that as there had been no progress in the inquiry since 15 January 2007, the applicant challenged, in December 2007, the inactivity of the prosecutor’s office before the District Court. Regardless of the District Court’s decision of 15 May 2008 finding the inactivity of the prosecutor’s office unlawful, the inquiry was not resumed until 2014 following the communication of the applicant’s complaint to the Government. According to information contained in the case file, the inquiry was still pending in 2015.
37. In the light of the foregoing, the Court considers that, given the substantial delay in bringing the complaint of ill-treatment before the domestic authorities, the repetitive nature of the decisions of the district prosecutor’s office refusing the institution of criminal proceedings issued in the course of 2003-06, and the considerable lapse of time between those decisions, it ought to have become clear to the applicant that no progress was being made and that no other steps would be taken to investigate the allegations. Given that, in view of the considerable lapse of 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), the repeated refusals to open an investigation into the alleged ill‑treatment contained neither a sufficiently tangible indication nor a realistic possibility of progress in the investigative measures (see, by contrast, Mafalani v. Croatia, no. 32325/13, § 83, 9 July 2015). Accordingly, the Court considers that, in the circumstances of the present case, the applicant must have become aware of the ineffectiveness of the investigation at least in December 2007 when he challenged the inactivity of the prosecutor’s office before the District Court, which is more than six months before he lodged the application with the Court on 14 November 2008. The decision of the District Court of 15 May 2018 finding unlawful the inactivity of the prosecutor’s office and the subsequent inquiry carried out in 2014 cannot be regarded as new developments which could revive the procedural obligation under Article 3 and therefore bring the complaint within the scope of the Court’s temporal jurisdiction.
38. In the light of the foregoing, the Court holds that the complaint under Article 3 of the Convention concerning the lack of an effective investigation into the applicant’s allegations of ill-treatment should be rejected for non-compliance with the six-month time-limit within the meaning of Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 April 2018.
Fatoş AracıHelen Keller
Deputy RegistrarPresident
Full & Egal Universal Law Academy