Постановление ЕСПЧ от 09.02.2016 <Дело Шлучков (Shlychkov) против России> (жалоба N 40852/05) [англ.] (Продолжение)

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  1. Merits
  1. General principles
  1. The Court has stated on many occasions that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman and degrading treatment or punishment, irrespective of the victim’s conduct (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V).
  2. Allegations of ill-treatment must be supported by appropriate evidence (see, among many other authorities, Keller v. Russia, no. 26824/04, § 114, 17 October 2013). To assess this evidence, the Court adopts the standard of proof «beyond reasonable doubt», but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25, and Bouyid v. Belgium [GC], no. 23380/09, § 82, 28 September 2015).
  3. In relation to 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 (see, with further references, Bobrov v. Russia, no. 33856/05, § 33, 23 October 2014). Where an individual claims to have been injured as a result of ill-treatment in custody, the Government are under an obligation to provide a complete and sufficient explanation as to how the injuries were caused (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see, with further references, Bouyid, cited above, § 83).
  4. The Court further recalls that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such State agents unlawfully and in breach of Article 3 of the Convention, that provision — read in conjunction with the State’s general duty under Article 1 of the Convention to «secure to everyone within [its] jurisdiction the rights and freedoms defined in… [the] Convention» — requires by implication that there should be an effective official investigation (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998-VIII).
  5. An obligation to investigate «is not an obligation of result, but of means»: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Zelenin v. Russia, no. 21120/07, § 42, 15 January 2015).
  6. An investigation into serious allegations of ill-treatment must be thorough. This means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis for their decisions (see Assenov and Others, cited above, §§ 103 et seq.). They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and so forth (see, with further references, Korobov and Others v. Estonia, no. 10195/08, § 113, 28 March 2013). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Mikheyev v. Russia, no. 77617/01, § 108, 26 January 2006).
  7. Furthermore, the investigation must be expeditious. In cases examined under Articles 2 and 3 of the Convention, where the effectiveness of an official investigation is at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time (see Labita, cited above, §§ 133 et seq.). Consideration has been given to the starting of investigations, delays in taking statements (see v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin v. Turkey, 9 June 1998, § 67, Reports 1998-IV), and the length of time taken to complete the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001).
  1. Application of the general principles to the present case

(a) Substantive limb of Article 3 of the Convention

  1. The Court observes at the outset that the events of 18 March 2004, the date on which the applicant was allegedly subjected to ill-treatment, are disputed between the parties. However, it is common ground between them that the X-ray of 30 March 2004 showed that the applicant had three fractured ribs (see paragraph 24 above).
  2. The Court notes that in the course of the proceedings before it the Government have not put forward any explanation as to the origin of the fractures in question as they chose to comment only on the bruise under the applicant’s right eye. That compels the Court to establish the facts, drawing such inferences as it deems appropriate from that attitude (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 132, ECHR 2013 (extracts)).
  3. The Court observes at the outset that the materials in its possession demonstrate that the applicant was not examined by a doctor or other medical professional upon placement in the IVS despite the fact that he had visible bruising on his face which was noted, in particular, by the deputy head of the facility (see paragraphs 18, 27 and 37 above). It emphasises in this connection that the CPT regards a right of access to a doctor for detained persons during their custody by law-enforcement agencies as one of the three fundamental safeguards against ill-treatment (see paragraph 47 above). In the absence of any explanation for such an omission put forward by the respondent Government, the Court cannot but conclude that the failure on the part of the IVS personnel to ensure that the applicant’s injuries were immediately examined and documented by a doctor divested the applicant of an important safeguard against a breach of Article 3 of the Convention (compare v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII; Barabanshchikov v. Russia, no. 36220/02, § 46, 8 January 2009; Davitidze v. Russia, no. 8810/05, § 95, 30 May 2013; and Zayev v. Russia, no. 36552/05, §§ 85 — 86, 16 April 2015).
  4. The Court further notes that the only medical evidence available in the present case, namely the X-ray examination of 30 March 2004, showed fractures of three ribs in an early stage of recovery (see paragraph 24 above). When dismissing the allegations of ill-treatment, the Regional Court relied heavily on the findings of N. who had concluded that the fact that the rib fractures had begun to knit by 30 March 2004 to be sufficient to refute the applicant’s version of the events of 18 March 2004. The Court observes, however, that the Regional Court was made aware of the fact that N. regarded his expertise in reading X-rays insufficient to assess the rib fractures without external assistance (see paragraph 34 above). Moreover, N.’s assessment of the fractures as «considerably old» does not appear to be sufficiently precise to dismiss with certainty the claim that the applicant had sustained injuries twelve days prior to the X-ray.
  5. In view of the above considerations, the Court concludes that the applicant presented a sufficiently detailed and consistent account of the beatings by the police officers on 18 March 2004 and, accordingly, raised an arguable claim of alleged ill-treatment.
  6. Since no credible account of how the fractures to the applicant’s ribs had been caused was given either at the domestic pre-investigation inquiry stage or before the Court, it considers that the respondent Government failed to discharge their burden of proof and that it was not satisfactorily established that the applicant’s account of events was inaccurate or otherwise erroneous (see Ryabtsev v. Russia, no. 13642/06, § 74, 14 November 2013, and Zelenin, cited above, § 49). In such circumstances the Court does not deem it necessary to assess the Government’s assertion that the injuries could have been inflicted in the fight with «Dima» on 11 March 2004.
  7. Bearing in mind the authorities’ obligation to account for injuries caused to persons within their control in custody, the Court concludes that the applicant’s injuries, at least in part, were the result of treatment he underwent while in police custody for which the respondent State bore responsibility.
  8. Having regard to all the circumstances of the ill-treatment, its physical and mental effects and the applicant’s health, the Court finds that the accumulation of the acts of physical violence inflicted on the applicant amounted to inhuman and degrading treatment, in breach of Article 3 of the Convention.
  9. There has therefore been a violation of the above provision under its substantive limb.

(b) Procedural limb of Article 3 of the Convention

  1. The Court observes that it is not disputed by the parties that the State was under a procedural obligation, arising from Article 3 of the Convention, to carry out an effective investigation into the applicant’s allegations of ill-treatment.
  2. The Court notes that the town prosecutor’s office carried out a pre-investigation inquiry into the applicant’s allegations. It is not convinced, however, that the inquiry in question was sufficiently thorough and effective to meet the requirements of Article 3 of the Convention.
  3. Indeed, the Court has previously ruled that in the context of the Russian legal system a «pre-investigation inquiry» alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators which may then be examined by a court. The Court drew strong inferences from the mere fact that the investigative authority had refused to open a criminal investigation into credible allegations of serious ill-treatment in police custody, regarding it as indicative of the State’s failure to comply with its obligation under Article 3 of the Convention to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, §§ 135 — 36, 24 July 2014). Moreover, the Court found that as a result of their refusals to open a criminal case, the town prosecutor’s office had never conducted a proper criminal investigation in which the whole range of investigative measures could be carried out, including questioning, confrontation, identification parade, search and seizure, and crime reconstruction (ibid., § 132).
  4. In view of the above, the Court also considers in the instant case that the refusal to open a criminal case into the applicant’s credible allegations of ill-treatment at the hands of the police officers on 18 March 2004 amounted to a failure to carry out an effective investigation as required by Article 3 of the Convention. This conclusion makes it unnecessary for the Court to examine in detail the pre-investigation inquiry conducted in the applicant’s case, with a view to identifying specific deficiencies and omissions on the part of the investigators (see Zelenin, cited above, § 59).
  5. The above considerations are sufficient for the Court to conclude that there has been a violation of Article 3 of the Convention under its procedural limb.
  1. Alleged violation of Article 6 of the Convention
  1. The applicant complained under Article 6 of the Convention that he had been convicted on the basis of his confession given under duress and without a lawyer present. The Court will examine this complaint under Article 6 §§1 and 3 (c) of the Convention, which, in so far as relevant, provides:

«1. In the determination of… any criminal charge against him, everyone is entitled to a fair… hearing… by [a]… tribunal…

  1. Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require…»

  1. The Government submitted that the record of the first interview of 19 March 2004 conducted without a lawyer present (see paragraph 17 above) had been declared inadmissible evidence by the Regional Court and that accordingly in that part of the applicant’s complaint was manifestly ill-founded. With regard to the statement of surrender and confession, the Government admitted that it had been made without a lawyer present; they noted, however, that the applicant had waived the right to legal assistance in writing and that in his appeal of 14 December 2004 he had invoked the fact of surrender and confession as a mitigating circumstance. The Government stated that the applicant’s conviction had been based on various pieces of evidence, in particular, the record of the second interview of 19 March 2004 (see paragraph 19 above), the investigative re-enactment record, witnesses’ statements and other unspecified evidence. They concluded that the applicant’s complaint was manifestly ill-founded.
  2. The applicant alleged that, because of the ill-treatment he had sustained at the hands of the police, he could not be said to have waived his right to legal assistance on 19 March 2004. Moreover, the statement of surrender and confession had been written on 18 March 2004, that is to say before the statement declining legal assistance had been put in writing. He concluded that there had been no clear and unequivocal waiver of his right to legal assistance in his case and that, consequently, his Convention right of access to a lawyer had been breached. He further pointed out that the self-incriminatory statement made under duress without the benefit of legal advice had served as the sole evidence of his guilt.
  1. Admissibility
  1. 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.
  1. Merits
  1. The Court reiterates that it is not the role of the Court to determine, as a matter of principle, whether particular types of evidence — for example, evidence obtained unlawfully in terms of domestic law — may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see v. Germany [GC], no. 22978/05, § 163, ECHR 2010).
  2. The right to silence and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 of the Convention. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 of the Convention. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-IX).
  3. Confession statements obtained in violation of Article 3 of the Convention are inherently unreliable. Furthermore, their use in criminal proceedings is often a reason for which the acts of ill-treatment are committed in the first place. Taking such statements into consideration in finding a person guilty is incompatible with the guarantees of Article 6 of the Convention (see v. Turkey, no. 46661/99, § 122, 21 September 2006).
  4. The Court has found in earlier cases, in respect of confessions as such, that the admission of statements obtained as a result of torture (compare and Others v. Turkey, no. 46213/99, § 60, 20 June 2006; Harutyunyan v. Armenia, no. 36549/03, §§ 63, 64 and 66, ECHR 2007-III; v. Moldova, no. 17332/03, §§ 101 and 104 — 05, 16 December 2008; Hajnal v. Serbia, no. 36937/06, § 113, 19 June 2012), or of other ill-treatment in breach of Article 3 of the Convention (see , cited above, §§ 107 and 122 — 24; Iordan Petrov v. Bulgaria, no. 22926/04, § 136, 24 January 2012; and Nasakin v. Russia, no. 22735/05, §§ 98 — 100, 18 July 2013) as evidence in establishing the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. The use of evidence secured as a result of a violation of one of the core and absolute rights guaranteed by the Convention always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see , cited above, § 165).
  5. In the present case, it is not disputed between the parties that the self-incriminating statement of surrender and confession made by the applicant without a lawyer present, following his arrest and placement in police custody, formed part of the evidence adduced against him in the course of the criminal proceedings. The Regional Court did not find the statement inadmissible and referred to it when finding the applicant guilty and convicting him.
  6. The Government, however, asserted that the applicant had waived his procedural rights, relying on his written statements of 19 March 2004 (see paragraphs 15 — 16 above). The Court reiterates in this connection that a waiver of a right guaranteed by the Convention — in so far as it is permissible — must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver’s importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II). In the circumstances of the present case it finds it impossible to agree with the Government’s waiver claim as the written statements of 19 March 2004 were clearly made after the statement of surrender and confession had been drawn up on 18 March 2004. Most importantly, the applicant cannot be said to have validly waived his privilege against self-incrimination in view of the Court’s finding in paragraph 69 above that he had sustained the ill-treatment in violation of Article 3 of the Convention.
  7. The Court therefore finds that the domestic courts’ use of the applicant’s surrender and confession statement as evidence in establishing the applicant’s guilt — irrespective of the probative value of that statement and irrespective of whether its use was decisive in securing the applicant’s conviction — has rendered the applicant’s trial unfair.
  8. There has therefore been a violation of Article 6 § 1 of the Convention.
  9. In view of the above, the Court does not deem it necessary to examine separately the part of the applicant’s complaint concerning lack of access to a lawyer.

III. Other alleged violations of the Convention

  1. The applicant raised a number of other complaints under various Convention provisions. Having regard to all the material in its possession, the Court finds that these complaints do not disclose any 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 manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
  1. Application of Article 41 of the Convention
  1. 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.»

  1. Damage
  1. The applicant claimed 40,000 euros (EUR) in respect of pecuniary damage for the cost of medical treatment that he would require as a result of the ill-treatment. In particular, he claimed that his hearing had been impaired and that he had developed heart pains. He also requested EUR 6,000 allegedly embezzled from him by a lawyer previously retained by him.
  2. He further claimed EUR 300,000 in respect of non-pecuniary damage caused by the ill-treatment. He also claimed EUR 650,000 in compensation for his detention.
  3. The Government stated that the claims in respect of pecuniary damage were not supported by evidence. They further asserted that the claims in respect of non-pecuniary damage were excessive.
  4. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have suffered non-pecuniary damage on account of the breaches of his Convention rights which cannot be compensated for by mere findings of violations and awards the applicant EUR 19,500 under that head.
  1. Costs and expenses
  1. The applicant also claimed EUR 1,640 for the costs and expenses incurred before the Court corresponding to 24.5 hours’ work on the part of his representative. An itemised schedule of these costs was submitted.
  2. The Government asserted that the applicant’s claims under this head were not supported by evidence.
  3. 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, and bearing in mind that the applicant was granted EUR 850 in legal aid for his representation by Ms Preobrazhenskaya, the Court considers it reasonable to award the sum of EUR 790 for costs and expenses incurred in the proceedings before it.
  1. Default interest
  1. 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. Declares the complaints about alleged ill-treatment in police custody, the ineffectiveness of the ensuing investigation and the use at the trial of the coerced confession obtained without a lawyer present admissible and the remainder of the application inadmissible;
  2. Holds that there has been a violation of Article 3 of the Convention under its substantive limb;
  3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;
  4. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the use of the applicant’s surrender and confession statement as evidence;
  5. Holds that it is not necessary to examine separately the applicant’s complaint under Article 6 § 1 of the Convention concerning lack of access to a lawyer;
  6. Holds

(a) that the respondent State is to pay the applicant, within three months from 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 State at the rate applicable at the date of settlement:

(i) EUR 19,500 (nineteen thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 790 (seven hundred and ninety 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;

  1. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 9 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President

Marialena TSIRLI Deputy Registrar

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