Last Updated on April 24, 2019 by LawEuro
THIRD SECTION
CASE OF BELYAYEV v. RUSSIA
(Application no. 43852/12)
JUDGMENT
STRASBOURG
15 January 2019
This judgment is final but it may be subject to editorial revision.
In the case of Belyayev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helen Keller, President,
Pere Pastor Vilanova,
MaríaElósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 11 December 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 43852/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russiannational, Mr Vladimir IvanovichBelyayev (“the applicant”), on 16 June 2012.
2. The applicant was represented by Mr P. Kozyukov, a lawyer practising in Yekaterinburg. The Russian Government (“the Government”) were initially 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.
3. On 30 August 2013 the Government were given notice of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1968 and was detained in LPU-3, Chelyabinsk.
A. Ill-treatment in respect of the applicant
1. Beatings by prison warders and criminal charges against the applicant
5. On 14 November 2003 the Saint Petersburg City Court found the applicant guilty of aggravated murder and possession of firearms, and sentenced him to twenty-one years’imprisonment. On 1 November 2004 the conviction was upheld on appeal.
6. On 28 September 2007 the applicant arrived at medical detention facility no. LPU-3 in Chelyabinsk, where he stayed until 30 October 2007.
7. On 2 October 2007 the applicant was ordered to leave his cell. He entered the corridor, turned to face the wall and took up a spread-eagle position leaning against the wall. Having refused to strip naked for a body search, he was immediately subjected to beatings. A warder hit him a number of times on the buttocks with a rubber truncheon. At the same time another warder started kicking and hitting the applicant on the back and head. Trying to protect himself from more serious harm, the applicant turned and faced his assailants. He raised his arm and inadvertently hit the warder’s face. The beatings intensified and the applicant was pushed to the floor. The warders continued kicking and punching him and hitting him with truncheons. The applicant lost consciousness. A warder dragged him back to the cell and the applicant was left there on the floor.
8. On the same date the applicant was examined by a prison doctor. The doctor found hematomas on his buttocks and documented them in the applicant’s medical records as follows:
“Skin hyperaemia on both buttocks, traces of blunt injury, blue hematomas.Moderate pain on palpation.”
9. On 5 October 2007 criminal proceedings were instituted against the applicant on suspicion of assault on a warder and disruption of order in the detention facility. The prosecution’s case was that on 2 October 2007 the applicant had refused to be subjected to a body search and had waved his hands to prevent the search. Warder B. had warned the applicant about the intention to use force should he fail to comply with the order. In response, the applicant had punched another warder, Mr L., in the face,splitting his lip.
10. On 2 September 2008 the Chelyabinsk Regional Court, by a jury verdict, acquitted the applicant. Having established that he had hit warder L. once and had split his lip, the jury nevertheless concluded that the applicant had caused the injury in an attempt to protect himself. The relevant part of the judgment read as follows:
“The jury has established in a verdict that two injuries to Mr L.’s lower lip were caused by [the applicant] with a single punch to Mr L.’s face. [The applicant] had refused to strip naked and to submit his clothes to a check-up, and had asked for a copy of a decision by the head or deputy head of the facility authorising a full body search. [The applicant] who had stayed with his face to the wall, had been subsequently kicked and punched, and hit with rubber truncheons a number of times, at least ten, on various parts of his body, head [and] limbs. [The beating] had been accompanied by verbal assaults.In an attempt to prevent further beatings and to protect himself,[the applicant], while falling down, had turned and taken an aimless swing in the direction of the persons who had continued hitting him.”
11. On 18 November 2008 the Supreme Court of the Russian Federation upheld the judgment on appeal.
2. Investigation into the applicant’s allegations of ill-treatment
12. After the acquittal had become final, the applicant lodged a complaint with the prosecutor’s office of the Chelyabinsk Region, providing his version of the events of 2 October 2007 and complaining of ill‑treatment.
13. On 28 January 2009 the investigative department of the Metallurgicheskiy District of Chelyabinsk opened a criminal investigation into the events of 2 October 2007 on charges of abuse of power committed with violence. The investigators questioned the applicant along with fourteen witnesses and conducted three cross-examinations.
14. On 28 September 2009 the investigation was suspended for failure to identify the alleged perpetrators.
15. On 18 November 2009 the investigation was reopened.
16. On 22 December 2009 the criminal proceedings against the prison warders were discontinued and the investigation was suspendedfor failure to identify the alleged perpetrators. The investigators had questioned the warders B. and L. mentioned in the acquittal judgment of 2 September 2008, who had testified that they had indeed administered up to six truncheon blows to the applicant’s buttocks because he had refused to go through a body search and had hit warder L. in the face.
17. On 8 November 2012 the criminal proceedings against the warders were reopened.
18. On 19 November 2012 the investigation was suspended again for failure to identify the alleged perpetrators. The investigator analysed the depositions of warders and other witnesses, and the findings of the medical examination of 2 October 2007, and concluded that the applicant had not obeyed the warders’ lawful orders and had been aggressive. Therefore, the use of rubber truncheons had been justified. Moreover, the medical records contained a vague summary description of the applicant’s injuries, which were not life-threatening. Lastly, the jurors’ verdict did not contain any assessment of the warders’ actions or any proof of the warders’ guilt.
19. On 14 November 2013 the prosecutor’s office of the Chelyabinsk Region quashed the decision of 19 November 2012 and reopened the investigation.
20. On 28 February 2014the criminal proceedings against the warders were terminated. The investigator found that the warders had not abused their powers and had acted in accordance with the law.
3. Challenging the investigator’s decisions before the court
(a) Challenging the decision of 28 September 2008
21. The applicant’s representative challenged the decision of 28 September 2009, arguing that the jury verdict of 2 September 2008 had already identified the assailants and that there had therefore been no reason to adjourn the proceedings.
22. On 10 February 2011 the Metallurgicheskiy District Court of Chelyabinsk dismissed the complaint, having found as follows:
“As follows from the case-file materials, on 28 September 2009 a senior investigator of the investigative department, Mr V., refused to open a criminal case against officers of [medical colony no. 3], Mr M., Mr B. and Mr L., who, as follows from that decision, had lawfully used force against [the applicant]. That decision remains in force.
In those circumstances, the decision by which the criminal proceedings were adjourned is lawful and well-founded; there are no grounds to consider it unlawful.”
23. On 9 April 2012 the Chelyabinsk Regional Court quashed that decision on appeal and remitted the case for re-examination.
24. On 1 June 2012 the Metallurgicheskiy District Court of Chelyabinskheldto discontinue the proceedings as the decision of 28 September 2008 had been quashed on 18 November 2009.
(b) Challenging of the investigator’s decision of 22 December 2009 and other decisions
25. On an unspecified date the applicant asked the court to declare unlawful the investigator’s decisions of 28 September 2008, 11 November 2008, 22 December 2009 and an opinion of 12 October 2009 justifying suspension of the investigation. He argued that those decisions contradicted each other and sought to conceal the warders’ crime.
26. On 9 November 2012 the Metallurgicheskiy District Court of Chelyabinsk discontinued the proceedings on the applicant’s claim.
27. On 21 March 2013 the Chelyabinsk Regional Court quashed that decision and remitted the case for fresh examination.
28. On 18 April 2013 the District Court allowed the applicant’s claim. It held that the decisions of 28 September 2008 and 22 December 2009 lacked sufficient reasoning, did not contain any references to the jurors’ verdict, and were based only on the testimony of warders.It ordered that the violations found be remedied.
B. Compensation proceedings
29. The applicant brought a civil action against the prosecutor’s office of the Chelyabinsk Region, the Treasury and the Ministry of Finance, seeking compensation for non-pecuniary damage caused by the unlawful institution of criminal proceedings. He also sought apologies from the implicated officials.
30. On 10 August 2011 the applicant and his lawyer asked the court to consider the case in their absence.
31. On 11 August 2011 the Tsentralnyy District Court of Chelyabinsk awarded the applicant 15,000 Russian roubles (RUB) (353 euros (EUR)) in compensation for non-pecuniary damage and dismissed the remaining claims. The District Court held the hearing in the applicant’s absence. The applicant lodged an appeal against this decision.
32. On 6 February 2012 the Chelyabinsk Regional Court upheld the decision of 11 August 2011 and rejected the applicant’s appeal. The appellate court also noted that as an inmate, the applicant had been duly notified of the court hearing but had failed to attend it.
II. RELEVANT DOMESTIC LAW AND PRACTICE
33. For domestic law concerning the use of force and special measures in detention facilities, see Vladimir Romanov v. Russia(no. 41461/02, §§ 34-38, 24 July 2008).
34. For domestic law and practice relevant to the participation of detainees in civil proceedings, see Yevdokimov and Others v. Russia(nos. 27236/05 and 10 others, §§ 9-15, 16 February 2016).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
35. The applicant, relying on Article 3 of the Convention, complained that he had been severely beaten by warders on 2 October 2007 and that the ensuing investigation had been ineffective. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
36. The Government submitted that the complaint was premature because the preliminary investigation had been reopened on 14 November 2013, the proceedings were still pending. In their additional observations they stated that the criminal investigation had been closed on 28 February 2014. It had established that on 2 October 2007 the warders had lawfully used force against the applicant. The investigation had been thorough and had involved cross-examinations, expert reports and witnesses’ testimonies. The Government also argued that the warders could not have been brought to trial on the sole basis of the jury verdict of 2 September 2008.
37. The applicant disagreed. He submitted that despite the fact that the judgment of 2 September 2008 contained a description of the beatings and the names of the possible perpetrators, the criminal investigation had failed to establish their identity and had eventually been closed.
A. Admissibility
38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Alleged ill-treatment and establishment of the facts
39. As the Court has reiterated on many occasions,Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s behaviour (see Balogh v. Hungary, no. 47940/99, § 44, 20 July 2004, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).
40. In the context of detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (seeTarariyeva v. Russia, no. 4353/03, § 73, ECHR 2006‑XV (extracts); Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; and Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX). In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006).
41. Turning to the circumstances of the present case, the Court first notes that the parties did not dispute the fact that on 2 October 2007 warders of the prison hospital had used physical force against the applicant and had hit him with rubber truncheons. The Government alleged that the force had been used lawfully in response to the applicant’s unruly conduct and had not exceeded what was reasonable and necessary in the circumstances of the case.
42. As shown by the medical reports referred to in the criminal case against the warders (see paragraph 8 above), the applicant’s hematomas had been caused by the use of force by warders on 2 October 2007. In particular, a prison doctor who examined the applicant immediately after the incident in question recorded hematomas on his buttocks. Moreover, the judgment of 2 September 2008 issued in criminal proceedings initiated against the applicant on account of his disobedience to warders, contains a description of the applicant’s beatings. In particular, it says that, as established by jurors in their verdict, after the applicant had hit one of the warders, hehad been hit back “at least ten times” by means of punches, kicks and blows with truncheons. It has therefore been established “beyond reasonable doubt” that the applicant was hit several times with rubber truncheons by the warders.
43. The Court observes that it is clear that the acts of violence against the applicant were committed by warders in the performance of their duties. The Court notes the Government’s argument that the force was used lawfully in response to the applicant’s unruly conduct and that the applicant did not deny that he had demonstrated a defiant attitude towards the warders.
44. The Court accepts that the use of force may be necessary on occasion in order to ensure prison security, to maintain order or prevent crime in penal facilities. Nevertheless, such force may be used only if indispensable and must not be excessive (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007, with further references).
45. In the instant case, the Court accepts – and this conclusion is supported by the findings of the domestic authorities – that the warders used truncheons to put an end to the applicant’s refusal to comply with their orders in accordance with the law. However, the manner in which the domestic law regulates the use of force against detainees does not absolve Russia from its responsibilities under the Convention. The Court must scrutinise the alleged breach of Article 3 with heightened vigilance, irrespective of the applicant’s conduct (see Vladimir Romanov v. Russia, no. 41461/02, § 64, 24 July 2008 with further references).
46. The Court notes that it was established in the domestic proceedings that the applicant had disobeyed warders’ orders and had hit one of them.In those circumstances, the warders may have needed to resort to physical force in order to protect themselves. However, the Court is not convinced that hitting a detainee with a truncheon was conducive to the desired result.
47. The Court does not discern any necessity which might have prompted the use of rubber truncheons against the applicant. On the contrary, the warders’ actions were disproportionate to the applicant’s imputed transgressions, and were manifestly inconsistent with the goals they sought to achieve. The Government did not provide any plausible explanation as to why several warders confronting only one prisoner could not have settled the conflict without recourse to truncheons. In the Court’s eyes, the use of truncheonsin those circumstances amounted to a form of reprisal or corporal punishment.
48. The Court further considers that the number and location of the injuries the applicant sustained indicate that the beatings to which the warders had subjected him were sufficiently serious to be considered of a nature amounting to inhuman treatment prohibited by Article 3 of the Convention.
49. Regard being had to the above, the Court concludes that there has been a violation of Article 3 of the Convention under its substantive limb.
2. Effectiveness of the investigation
50. The Court reiterates that where an individual raises an arguable claim that he or she has been seriously ill-treated by the police in breach of Article 3, that provision requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible (see Labita, cited above,§ 131). The minimum standards as to effectiveness defined by the Court’s case-law also include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, §§ 208-13, 24 February 2005, andChitayev v. Russia, no. 59334/00, §§ 163-66, 18 January 2007).
51. The Court notes that the events of which the applicant complained had unfolded under the control of the authorities and with their full knowledge. On the day the applicant had been beaten up by the warders for refusing a body search, he was taken to a prison medical officer, who recorded some hematomas.The applicant brought the incident to the prison administration’s attention. Against that background, the Court concludes that the above considerations raised a reasonable suspicion that his injuries could have been caused by representatives of the State and that the matter was duly brought before the competent authorities. The latter were therefore under an obligation to conduct an effective investigation satisfying the requirements of Article 3 of the Convention.
52. The Court also notes thaton 28 January 2009, criminal proceedings were initiated against the warders on suspicion of abuse of power. Thereafter, the proceedings were suspended several times, and the investigators’decisions were reversed by their superiors or the courts on the grounds of various deficiencies. In these circumstances, the Court cannot conclude that the investigation was prompt and thorough.
53. The Court finds that the authorities have failed to carry out an effective investigation into the applicant’s allegations of ill-treatment, as required by Article 3 of the Convention. Accordingly, there hasbeen a violation of Article 3 of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
54. The applicant complained that his right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the domestic courts’ refusal to ensure his effective participation in compensation proceedings to which he was a party. The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair and public … hearing … by [a] … tribunal …”
55. The Government submitted that the applicant had been duly notified of the hearing dates and that the nature of the legal dispute did not call for his personal attendance. Moreover, the applicant had asked the first-instance court to consider the case in his and his lawyer’s absence. The applicant and his lawyer had been duly informed of the appeal hearing and could therefore have attended the hearing. As there was no absolute right to be present at a civil court hearing, the applicant’s right to effective participation in the proceedings to which he had been a party had not been breached.
56. The applicant maintained his complaint.
A. Admissibility
57. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance (see Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII).
58. The Court notes that on 10 August 2011 the applicant and his lawyer asked the Tsentralnyy District Court of Chelyabinsk to consider the case in their absence. Therefore, the applicant waived in an unequivocal manner his right to be present at thefirst-instance court hearing on 11 August 2011 (see Gladkiy v. Russia, no. 3242/03, §§ 105-09, 21 December 2010, and Belan v. Russia (dec.), no. 56786/00, 2 September 2004).
59. 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.
60. The Court further considers that the applicant’s complaint about his absence from the appeal hearing on 6 February 2012 is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
61. The Court observes that the general principles regarding the right to present one’s case effectively before a court and to enjoy equality of arms with the opposing side, as guaranteed by Article 6 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59‑60, ECHR 2005-II). The Court’s analysis of alleged violations of the right to a fair trial in respect of cases where incarcerated applicants have complained about their absence from hearings in civil proceedings includes the following elements: examination of the manner in which the domestic courts assessed the question of whether the nature of the dispute required the applicants’ personal presence, and determination of whether the domestic courts put in place any procedural arrangements aimed at guaranteeing their effective participation in the proceedings (see Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, § 48, 16 February 2016).
62. The Court notes that the civil proceedings in question concerned the applicant’s claim in respect of non-pecuniary damage, which involved his personal experience. Therefore, his presence at the hearing was necessary.
63. The Court, however, observes that neither the applicant, nor his lawyer attended the appeal hearing on 6 February 2012.The Government did not provide any confirmation that the applicant and his lawyer had been properly notified of the appeal hearing. The appellate court did not verify whether the nature of the case was such as to require the applicant’s personal testimony, did not provide an explanation as to why it considered that his absence would not be prejudicial to the fairness of the proceedings as a whole, and did not make any appropriate procedural arrangements enabling the applicant to be heard.
64. In the leading case of Yevdokimov and Others, cited above, the Court found a violation in respect of issues similar to those in the present case.
65. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion in the present case. The Court considers that, in the instant case, the authorities deprived the applicant of the opportunity to present his case effectively at the appellate court, and failed to meet their obligation to ensure respect for the principle of a fair trial.
66. There has therefore been a violation of Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
67. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
68. The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage.
69. The Government found that claim excessive.
70. The Court awards the applicant EUR 15,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to him.
B. Costs and expenses
71. The applicant did not claim any costs or expenses. Accordingly, there is no call to make an award under this head.
C. Default interest
72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declarescomplaintsconcerning the applicant’s alleged ill-treatment under Article 3 of the Convention and his absence from the appeal hearing on 6 February 2012 under Article 6 of the Convention admissible and his complaint concerninghis absence from the hearing on 11 August 2011 under the same Article inadmissible;
2. Holdsthat there has been a violation of Article 3 of the Convention under its substantive limb in that the applicant has been subjected to inhuman and degrading treatment;
3. Holdsthat there has been a violation of Article 3 of the Convention under its procedural limb on account of the lack of an effective investigation into the applicant’s claim of inhuman and degrading treatment;
4. Holdsthat there has been a violation of Article 6 of the Convention on account of the applicant’s failure to attend the appeal hearing on 6 February 2012;
5. Holds
(a) that the respondent State is to pay the applicant, within three months,EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; and
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
6. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Helen Keller
Deputy Registrar President
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