Last Updated on August 2, 2019 by LawEuro
THIRD SECTION
CASE OF PANKOV v. RUSSIA
(Application no. 52550/08)
JUDGMENT
STRASBOURG
15 May 2018
FINAL
15/08/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Pankov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Helena Jäderblom, President,
Helen Keller,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 17 April 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 52550/08) 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 Russian national, Mr Vladislav Stanislavovich Pankov (“the applicant”), on 19 August 2008.
2. The applicant was represented by Mr Z. Zhulanov, a lawyer practising in Perm. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The applicant alleged, in particular, that he had been subjected to ill‑treatment while in police custody and that the domestic authorities had failed to carry out an effective investigation.
4. On 14 April 2011 the above-mentioned complaint was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1987 and lives in Perm.
6. On 9 April 2007 at about 11 p.m. the applicant was stopped by the police and taken to the Dzerzhinskiy District Department of the Interior of the town of Perm (ДзержинскийРОВДг. Перми –“the police station”) for an identity check.
7. After the applicant’s identity was established the applicant was informed that he was wanted on suspicion of having committed a crime.
8. On 10 April 2007 at 1 a.m. the applicant was placed in the cell for administrative detainees at the police station. At 9 a.m. he was handed over to a police officer, P. According to the applicant, P. subjected him to ill‑treatment by administering several blows to his chest, abdomen and face.
9. Subsequently the applicant was interrogated by an investigator, B., in the presence of N. (the head of the police station), P., and Zh. (another police officer), as a witness in criminal case no. 1470 instituted on 8 March 2007 under Article 161 § 2 of the Criminal Code (robbery). After his questioning the applicant was released.
10. Immediately after his release on 10 April 2007 the applicant complained at the police station of having been beaten by P.
11. On the same day the applicant went to a traumatology centre, where he was diagnosed with bruising on the left side of his forehead.
12. On 11 April 2007 the applicant complained of the beatings to the prosecutor’s office. He was made to undergo an expert examination, which revealed the following injuries: bruises on the left side of his forehead, at the outer corner of his left eye and on the left side of his neck, and an abrasion behind his left ear. The expert concluded that the above-mentioned injuries could have been caused by his being hit by a hard blunt object(s) or by that object being drawn across the applicant’s skin, possibly at the time and under the circumstances indicated by the applicant.
13. On 9 June 2007 the investigator of the Dzerzhinskiy district prosecutor’s office of the town of Perm decided not to institute criminal proceedings against P., in the absence of any indication that a criminal act had been committed. Having questioned the applicant and others involved in the incident and having examined the medical evidence, the investigator found that there were no objective data confirming that the injuries had been inflicted by the police officer. The investigator noted, in particular, the discrepancies between the applicant’s description of the alleged beatings and the injuries that he had actually sustained.
14. On 27 June 2007 the applicant challenged the above-mentioned decision before the court.
15. On 2 July 2007 the Dzerzhinskiy District Court of Perm (“the District Court”) declined to examine the applicant’s challenge.
16. Following an appeal by the applicant, on 24 July 2007 the Perm Regional Court (“the Regional Court”) quashed the decision of 2 July 2007.
17. On 24 August 2007 the District Court held that the decision of 9 June 2007 not to institute criminal proceedings against P. had been unlawful and unjustified. The court held that the applicant’s allegations of ill-treatment had been substantiated by medical evidence.
18. On 20 September 2007 the Regional Court quashed the judgment of 24 August 2007 (since it had been delivered in the absence of P.), and remitted the matter for fresh examination by a different bench.
19. On 9 October 2007 the District Court held that the decision of 9 June 2007 not to institute criminal proceedings against P. had been unlawful and unjustified. The court pointed out that the decision in question had been based on the submissions of the police officers, without due assessment of the fact that the applicant, who had had no bodily injuries prior to his arrest by the police (as confirmed by I., A. and Pan.), had been diagnosed as having such injuries immediately after his release from the police station.
20. On 13 November 2007 the Regional Court quashed the judgment of 9 October 2007 on appeal and remitted the matter for fresh examination by a different bench.
21. On 29 November 2007 the District Court again held that the decision of 9 June 2007 not to institute criminal proceedings against P. had been unlawful and unjustified. The court’s reasoning was similar to that in respect of the judgment of 9 October 2007.
22. Following an appeal by the district prosecutor on 20 December 2007 the Regional Court quashed the judgment of 29 November 2007 on appeal and referred the matter again for fresh examination by a different bench.
23. On 30 January 2008 the District Court dismissed the applicant’s claim. The court found that the investigator had rightly come to the conclusion that there had been no objective information confirming the applicant’s allegation of ill-treatment by the police officer, P., and that the above-mentioned conclusion had been reached on the basis of comprehensive evidence.
24. Following an appeal by the applicant, on 19 February 2008 the Regional Court upheld the above-mentioned judgment on appeal.
II. RELEVANT DOMESTIC LAW
25. For the relevant provisions of domestic law on the prohibition of torture and other ill-treatment and the procedure for examining a criminal complaint, see Lyapin v. Russia, no. 46956/09, §§ 96-102, 24 July 2014, and Ryabtsev v. Russia, no. 13642/06, §§ 48‑52, 14 November 2013.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
26. The applicant complained, relying on Articles 3, 6 and 13 of the Convention, that he had been subjected to ill-treatment while in police custody and that no effective investigation into his complaint had been carried out. The Court will examine the applicant’s complaint under Article 3 of the Convention, which reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
27. The Government contested that argument. They noted discrepancies between the applicant’s account of the alleged ill-treatment and the medical evidence, which had only confirmed the bruising on the applicant’s forehead but had recorded no injuries to the applicant’s chest or abdomen. They therefore considered that there were no reasons to assert “beyond reasonable doubt” that the applicant had been subjected to inhuman or degrading treatment. The Government further considered that the investigation carried out into the applicant’s allegations of ill-treatment had fully complied with the requirements of Article 3 of the Convention. There had been no procrastination or abuse of office on the part of the investigator in charge of the applicant’s case. The pre-investigation inquiry (see paragraph 13 above) into the circumstances under which the applicant had been allegedly subjected to ill-treatment had been carried out by an independent body. The applicant’s allegations had been subsequently subjected to examination by domestic courts at two levels of jurisdiction, which had undertaken a proper assessment of the applicant’s arguments and delivered lawful and well-reasoned decisions.
28. The applicantmaintained his complaint. He argued that while he had had no injuries when he had been taken to the police station at 11 p.m. on 9 April 2007 (as confirmed by concordant evidence, including written submissions by eyewitnesses I., A. and Pan., and not contested by the Government), he had been discovered to have an injury on his head when he had been released from the police station on the afternoon of 10 April 2017 (which was also not contested by the Government). The applicant promptly brought an arguable claim of ill-treatment before the domestic authorities. However, no effective investigation had followed. In particular, although the pre-investigation inquiry had concluded that there had been no objective data confirming the fact that the injuries had been inflicted under the circumstances indicated by the applicant, no explanation had been provided by the domestic authorities as to how the applicant had sustained his injuries.
A. Admissibility
29. 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
30. The relevant general principles were reiterated by the Court’s Grand Chamber in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). In particular, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of individuals within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the version of events given by the victim. In the absence of such an explanation, the Court can draw inferences which may be unfavourable for the Government. That is justified by the fact that those in custody are in a vulnerable position and the authorities are under a duty to protect them (ibid., § 83). The same principleapplies to all cases in which a person is under the control of the police or a similar authority (ibid., § 84).
1. Credibility of the applicant’s allegations of ill-treatment and the presumption of fact
31. The Court observes that on 9 April 2007 the applicant was brought to the police station for an identity check. On his release in the afternoon of 10 April 2007 he was found to have sustained injuries. The medical certificate issued by the traumatology centre on 10 April 2007 attests to bruising on the forehead, and the results of the expert medical examination that followed on 11 April 2007 confirmed the presence of several bruises on the applicant’s face and neck and an abrasion behind his ear. According to the latter report, the injuries in question could have originated in impact from a hard, blunt object, possibly at the time and under the circumstances indicated by the applicant. The Court considers that the injuries could arguably have been sustained as a result of the applicant’s alleged ill‑treatment, and in particular as a result of his being physically assaulted.
32. The above-mentioned factors are sufficient to justify a presumption in favour of the applicant’s account of events and to satisfy the Court that the applicant has made credible allegations of ill-treatment in police custody.
2. Whether an effective investigation was carried out into the applicant’s allegations of ill-treatment
33. The Court observes that the applicant’s allegations that his injuries were the result of police ill-treatment were dismissed by the domestic investigating authorities. The investigator based his findings on the results of the pre-investigation inquiry, which is the initial stage in dealing with a criminal complaint under Russian law and should normally be followed by the opening of a criminal case and the carrying out of an investigation if the information gathered has disclosed elements of a criminal offence (see Lyapin, cited above, § 129). The investigator’s refusal to initiate criminal proceedings was upheld by the domestic courts.
34. The Court reiterates its finding that the mere carrying out of a pre‑investigation inquiry under Article 144 of the Code of Criminal Procedure of the Russian Federation is insufficient if the authorities are to comply with the standards established under Article 3 of the Convention for an effective investigation into credible allegations of ill‑treatment in police custody. It is incumbent on the authorities to institute criminal proceedings and conduct a proper criminal investigation in which a full range of investigative measures are carried out and which constitutes an effective remedy for victims of police ill-treatment under domestic law (see Lyapin, cited above, §§ 129 and 132-36,and Olisov and Others v. Russia, nos. 10825/09 and 2 others, §§ 80-82, 2 May 2017, with further extensive references).
35. The Court has no reason to hold otherwise in the present case, which involves credible allegations of ill-treatment of which the authorities were promptly made aware. It finds that the investigating authorities failed to carry out an effective investigation into the applicant’s allegations of police ill-treatment, as required by Article 3 of the Convention.
3. Whether the Government provided explanations capable of casting doubt on the applicant’s version of events
36. The Court notes that neither the authorities at the domestic level nor the Government in the proceedings before the Court advanced any explanation as to the origin of the applicant’s injuries.
37. The Court therefore concludes that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicant’s account of events, which it therefore finds established (see Olisov and Others, cited above, § 85).
4. Legal classification of the treatment
38. The Court finds that the police subjected the applicant to inhuman and degrading treatment.
5. Conclusion
39. There has accordingly been a violation of Article 3 of the Convention under its substantive limb and a violation of Article 3 of the Convention under its procedural limb.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
40. Lastly, the applicant complained under Articles 6 and 13 of the Convention about the length and unfairness of the proceedings before the domestic courts, the partiality of the domestic court, and the absence of effective domestic remedies for his complaints.
41. Having regard to all the material in its possession and in so far as it falls within its competence, the Court finds that there is no appearance of a violation 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 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
42. 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
43. The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
44. The Government considered that if the Court were to find a violation of the Convention, the Court’s judgment in this respect should in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.
45. The Court notes that it has found a violation under both the substantive and procedural heads of Article 3 of the Convention on account of the applicant’s ill-treatment by the police and the failure of the domestic authorities to carry out an effective investigation into the matter. In these circumstances, the Court considers that the suffering and frustration caused to the applicant cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000 in respect of non-pecuniary damage.
B. Costs and expenses
46. The applicant also claimed EUR 2,000 for the costs of his legal representation before the Court.
47. The Government considered that in view of the relative simplicity of the case the sum claimed by the applicant was excessive.
48. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 1,000 for costs and expenses in the proceedings before the Court.
C. Default interest
49. 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. Declaresthe complaint under Article 3of the Convention concerning the applicant’s alleged ill-treatment in police custody and lack of effective investigation into his allegations admissible and the remainder of the application 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. Holds that 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 allegations;
4. Holds
(a) that the respondent State is to pay the applicant, within three monthsfrom the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:
(i) EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Helena Jäderblom
Registrar President
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