Постановление ЕСПЧ от 01.12.2016 <Дело Трапезникова и другие (Trapeznikova and Others) против России> (жалоба N 45115/09) [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF TRAPEZNIKOVA AND OTHERS v. RUSSIA
(Application no. 45115/09)
JUDGMENT <*>
(Strasbourg, 1.XII.2016)
FINAL

(01.III.2017)
——————————-
<*> This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Trapeznikova and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis  Guerra, President,
Helena ,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena ,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 8 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

 

  1. The case originated in an application (no. 45115/09) 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 three Russian nationals, Ms Natalya Borisovna Trapeznikova, Ms Yuliya Sergeyevna Trapeznikova and Ms Anastasiya Sergeyevna Antonova (“the applicants”), on 8 June 2009.
  2. The applicants, who had been granted legal aid, were represented by Mr E. Markov, a lawyer admitted to practise in the Odessa Region, Ukraine. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
  3. The applicants alleged that the Russian authorities had failed to protect their relative’s life and that the ensuing investigation into his death had not been effective.
  4. On 23 October 2014 the application was communicated to the Government.

 

THE FACTS

The circumstances of the case

 

  1. The applicants, Ms Natalya Borisovna Trapeznikova, Ms Yuliya Sergeyevna Trapeznikova and Ms Anastasiya Sergeyevna Antonova, are Russian nationals who were born in 1969, 1985 and 2004 respectively and live in Novosibirsk. The applicants are members of the family of Mr Sergei Antonov.

 

  1. Sergei Antonov’s detention in a correctional colony and death

 

  1. On 1 June 2006 Mr Antonov started serving a three-year prison sentence in correctional colony no. IK-8 in the Novosibirsk Region. When examined by a doctor on 5 June 2006, he stated that following a cranio-cerebral injury he had been under psychiatric supervision since 1996 and that he had been suffering from drug addiction since 2004.
  2. On 4 May 2006 Mr Antonov had swallowed several metal objects, including a spoon, and had cut himself on his stomach. On 5 May 2006 he had been taken to hospital and had been treated until 19 May 2006.
  3. On 20 July 2007 Mr Antonov was transferred to disciplinary cell no. 14 for smoking outside the designated area. On 22 July 2007 he complained of a headache and of feeling ill. At 7.10 p.m. Doctor M. examined Mr Antonov, noted that he had high blood pressure and gave him an injection. On the doctor’s recommendation, Mr Antonov was transferred to another cell in the disciplinary section, where he was detained alone. As requested by the doctor, he was provided with bed linen. Doctor M. examined Mr Antonov again at 9.25 p.m. and noted that his condition had improved. At 9.40 p.m. the cell where Mr Antonov was held was locked and the alarm system was turned on. The guards in charge of the disciplinary cells observed Mr Antonov at 1.06 a.m. on 23 July 2007 through a peephole in the cell door. He was lying on his bed. During the next round of visits at 1.30 a.m. the guards saw Mr Antonov, hanging. They reported this to the duty officer. After entering the cell, the officers discovered Mr Antonov hanging by a ligature fashioned out of a bed sheet. They cut the rope and put his body on the floor. Doctor M. examined Mr Antonov’s body and noted no injuries apart from the ligature mark on his neck.
  4. According to the death certificate, Mr Antonov died on 22 July 2007.
  5. According to an autopsy conducted on 24 July 2007, the cause of death was asphyxiation by hanging. In addition to the ligature mark on his neck, the forensic expert Ch. documented bruises on the deceased’s head behind the left ear, at the corner of his right eye, on the right cheek and on the right side of the lower jaw. The expert decided against conducting a histological examination given that he had no doubts about the cause of Mr Antonov’s death.

 

  1. Inquiry into Mr Antonov’s death

 

  1. On an unspecified date the acting head of the correctional colony conducted an internal inquiry. He established that despite Mr Antonov’s condition the administration of the correctional colony had not provided him with any psychiatric supervision or treatment. It had been obvious from Mr Antonov’s case file that he had had suicidal tendencies.
  2. On 28 July 2007 the deputy city prosecutor K. refused to institute a criminal investigation into Mr Antonov’s death. The investigator based his decision on the reports filed by Doctor M. and the officers who had discovered Mr Antonov’s body, the report on the inspection of the cell where Mr Antonov had been found and on his body, and on his medical file. He also questioned prisoners Bel., F. and Ber. who had been detained with the deceased in cell no. 14, where he had been held prior to his removal to a cell where he was found. They submitted that they had not had any conflicts with him.
  3. On 31 July 2007 the first applicant asked the regional prosecutor to institute a criminal investigation into Mr Antonov’s death. Referring to the numerous injuries on Mr Antonov’s body, she challenged the official version that he had committed suicide by hanging himself.
  4. On 22 August 2007 the city prosecutor P. quashed the decision of 28 July 2007 and ordered a further inquiry into the circumstances of Mr Antonov’s death. Referring to the first applicant’s complaint, he considered it necessary to determine the existence and origin of the injuries on Mr Antonov’s body.
  5. On 28 August 2007 deputy city prosecutor K. refused to open a criminal investigation into Mr Antonov’s death. The prosecutor again questioned F., Ber. and Bel., who had been detained with Mr Antonov in cell no. 14 on 22 July 2007. They submitted that it had been very stuffy in the cell and that at around 4 p.m. Mr Antonov had complained of a headache. He had been sitting at the table, had stood up and had then fallen down, hitting his head against the table. They had not noticed any injuries on Mr Antonov. The prosecutor concluded that Mr Antonov had committed suicide by hanging himself.
  6. On 13 September 2007 the first applicant appealed against the decision of 28 August 2007.
  7. On 23 September 2007 the deputy regional prosecutor A. quashed the decision of 28 August 2007 and ordered a further inquiry. He noted that it was necessary to obtain information concerning Mr Antonov’s health, to determine whether the medical assistance provided to him had been sufficient and prompt and to establish whether it had been known that Mr Antonov had intended to commit suicide. The prosecutor also ordered the noose used by Mr Antonov to be found and for it to be examined. Lastly, the prosecutor noted that the inquiry had failed to take into account the injuries on Mr Antonov’s head and that it was necessary to determine their origin and whether they had had any connection with his death.
  8. On 18 October 2007 investigator Fom. refused to open a criminal investigation into Mr Antonov’s death, repeating verbatim the findings of the previous inquiry.
  9. On 29 October 2008 a supervising prosecutor quashed the decision of 18 October 2007 as premature and unsubstantiated.
  10. On 8 November 2007 investigator Fom. again refused to open a criminal investigation into Mr Antonov’s death. In addition to the earlier findings the investigator examined Mr Antonov’s medical file. He again questioned Doctor M. about the state of Mr Antonov’s health on 22 July 2007. The doctor explained that following the treatment he had been given Mr Antonov had been in a satisfactory condition and that it had been possible to leave him alone in a cell. The investigator also questioned the forensic medical expert Ch., who had conducted the autopsy. The expert considered that the injuries on Mr Antonov’s head could have been due to convulsions which had caused an impact with blunt, solid objects.
  11. On 12 November 2007 the supervising prosecutor dismissed the first applicant’s complaint against the decision of 8 November 2007.
  12. On 18 January 2008 the first deputy head of the regional investigative committee quashed the decision of 8 November 2007 and ordered a further inquiry, noting that the prosecutor’s instructions of 23 September 2007 had not been followed.
  13. On 1 February 2008 investigator Am. refused to institute criminal proceedings. Relying on the materials of the previous inquiries, the investigator confirmed the earlier finding that Mr Antonov had committed suicide. The investigator could not establish the cause and time of the injuries on Mr Antonov’s body, but he noted that they were not related to his death.
  14. On 16 September 2008 the head of the regional investigative committee quashed the decision of 1 February 2008.
  15. On 30 September 2008 investigator V. again refused to open a criminal investigation, relying on the earlier findings. On 13 October 2008 that decision was quashed on the grounds of the incompleteness of the inquiry.
  16. The investigating authorities subsequently refused to open a criminal investigation into Mr Antonov’s death on 25 October 2008 and 2 January 2009. On 8 December 2008 and 12 January 2009 respectively the supervising prosecutor quashed those decisions and ordered a further inquiry into the matter, noting each time that the inquiry had been incomplete and the findings contradictory. In particular, on 8 December 2008, the regional prosecutor noted that the reports of 23 July 2007 and 23 October 2008 concerning the inspection of the cell where Mr Antonov had been found had given different and mutually contradictory descriptions of the layout of the cell.
  17. On an unspecified date a senior investigator, S., started another inquiry in response to the first applicant’s complaint. The investigator questioned the correctional colony officers who had been on duty on 22 July to 23 July 2007 and had seen or observed Mr Antonov on those days. She also saw Ozh., the prison psychiatrist, and a drug counsellor, Kot. Ozh. stated that he had never seen Mr Antonov or prescribed him any psychiatric supervision or treatment. After studying Mr Antonov’s medical file, the investigator established that he had a history of drug addiction, one instance of self-harming and had undergone treatment in a psychiatric institution prior to his incarceration. The investigator noted that the cell where Mr Antonov had been found dead had been mistakenly indicated in the inquiry case file as no. 38 and conducted an examination of cell no. 00. On 11 February 2009 the investigator talked to the forensic expert Ch., who submitted that his superior had advised him against making any written statements about the autopsy. If necessary, the investigator could question him as a witness within the framework of the criminal proceedings. On 13 February 2009 S. concluded that Mr Antonov had committed suicide and refused to open a criminal investigation into his death. She also considered that the injuries found on Mr Antonov’s head had resulted from convulsions which had caused his body to repeatedly strike against a metal grill.
  18. The senior investigator’s decision was subjected to judicial review at two levels of jurisdiction. On 11 March and 27 April 2009 the Dzerzhinskiy District Court of Novosibirsk and the Novosibirsk Regional Court respectively upheld the investigator’s findings on Mr Antonov’s death.

 

THE LAW

  1. Alleged violation of Article 2 of the Convention

 

  1. The applicants complained that the Russian authorities had failed to protect Mr Antonov’s life and that the ensuing investigation into his death had not been effective. They relied on Articles 2 and 13 of the Convention, which, in so far as relevant, read as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

  1. The Government contested that argument. In their opinion, the application did not disclose a violation of Article 2. The Russian authorities had conducted a thorough investigation into Mr Antonov’s death and had established that he had committed suicide. There had also not been a violation of the applicants’ rights set out in Article 13 of the Convention. Their complaints in connection with the investigation into Mr Antonov’s death had been thoroughly examined by the authorities.
  2. The applicants argued that the Russian authorities had failed to establish the circumstances of Mr Antonov’s death and, as a result, had not fulfilled the obligations imposed on them by Article 2. In their opinion, there had been sufficient evidence to show that Mr Antonov had not hanged himself and that he had been killed by unidentified perpetrators. In particular, the forensic medical expert had documented several injuries on Mr Antonov’s body. The Government had not provided any explanation as to their origin. The official date of Mr Antonov’s death had been different from the one indicated in the course of the authorities’ inquiry. There had been no official records confirming that Mr Antonov had been provided with the bed linen that he had allegedly used to hang himself. It had not been established with certainty in which cell Mr Antonov had been held at the time of his death. In any event, the applicants considered that the authorities, having been aware of Mr Antonov’s unstable condition, had failed to take all reasonable measures in order to secure his life. He had been left in a cell alone without any supervision or medical aid. The applicants further argued that the investigation conducted by the authorities had not met the minimum standards of effectiveness and had been in breach of Article 2 of the Convention. The investigation had not been speedy or effective. The initial inquiry had been perfunctory. Subsequently, the prosecutor had quashed refusals to open a criminal investigation into Mr Antonov’s death on nine occasions, stating each time that the inquiry had been incomplete or that the dismissal of the case had been premature. At no time had an official criminal investigation been instituted. The evidence had not been secured effectively immediately after Mr Antonov’s death and with the lapse of time it had become virtually impossible to establish what had really happened. The applicants had been unable to participate in the investigation. They had been repeatedly denied access to the case file. Lastly, the applicants submitted that they had not had at their disposal an effective domestic remedy in respect of their grievances under Article 2, as required by Article 13 of the Convention.

 

  1. Admissibility

 

  1. The Court notes that the application 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
  2. Article 2 of the Convention

 

  1. The general principles as regards the State’s positive obligation enshrined in Article 2 of the Convention are well-established in the Court’s case law and have been recently summarised in the case of Fanziyeva (see Fanziyeva v. Russia, no. 41675/08, §§ 46 – 51, 18 June 2015).

(a) Alleged failure to carry out an effective investigation into Mr Antonov’s death

  1. The Court observes that the authorities refused to conduct a fully-fledged criminal investigation into Mr Antonov’s death. As a result, a whole range of procedural investigative measures aimed at collecting and securing physical evidence and testimony were not available to the investigators. Instead, they conducted nine rounds of inquiries, of which all but the last were ruled to be perfunctory. Apart from the autopsy report, the investigators had to rely in their findings on Mr Antonov’s death mainly on unofficial statements made by the witnesses. The Court notes in this regard that it has previously ruled in a number of cases against Russia that failure on the part of the authorities to open a criminal investigation in a situation where an individual has died while in state custody is in itself a serious breach of domestic procedural rules capable of undermining the validity of any evidence which has been collected (see, among other authorities Kleyn and Aleksandrovich v. Russia, no. 40657/04, § 56, 3 May 2012, and Fanziyeva, cited above, § 53).
  2. The Court further reiterates 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 alleged perpetrators which may then be examined by a court (see Lyapin v. Russia, no. 46956/09, §§ 132 and 135 – 36, 24 July 2014, and Zelenin v. Russia, no. 21120/07, §§ 56 – 57, 15 January 2015).
  3. Regard being had to the above and to the materials in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to come to a different finding in the present case. It does not consider it necessary to analyse every alleged deficiency in the domestic proceedings. The absence of a criminal investigation leads it to the conclusion that the Russian authorities did not take all reasonable steps to ascertain the circumstances in which Mr Antonov’s death occurred.
  4. There has accordingly been a violation of Article 2 of the Convention under its procedural limb on account of the authorities’ failure to conduct an effective investigation into Mr Antonov’s death.

(b) Alleged breach of Mr Antonov’s right to life

  1. The Court observes that the factual circumstances surrounding Mr Antonov’s death are disputed by the parties. The applicants stated that Mr Antonov might have been killed, while the Government asserted that he had committed suicide by hanging himself.
  2. Regard being had to the materials submitted by the parties and to the Court’s earlier finding that the investigation into the circumstances of Mr Antonov’s death was ineffective, the Court considers that it has not been established that Mr Antonov’s death was a homicide. The applicants’ argument is to some extent speculative. Nor does the Court discern sufficiently strong, clear and concordant inferences allowing it to deem the explanation provided by the Government that Mr Antonov committed suicide unsatisfactory or unconvincing. The Court accepts as plausible the Government’s assertion that Mr Antonov’s death was the result of his taking his own life.
  3. However, this finding does not absolve the respondent State from responsibility for Mr Antonov’s death. It is incumbent on the Court to ascertain whether the authorities knew or ought to have known that there was a real and immediate risk of his committing suicide and, if so, whether they did all that could reasonably have been expected of them to guard against that risk (compare Keenan v. the United Kingdom, no. 27229/95, §§ 89 and 92, ECHR 2001-III).
  4. The Court notes that the administration of the correctional colony where Mr Antonov was serving his sentence was aware of his unstable psychiatric condition. Mr Antonov had suffered from drug addiction and one year prior to his suicide had intentionally harmed himself by swallowing metal objects and cutting his stomach (see paragraph 7 above). It was also established by the acting head of the correctional colony, albeit after Mr Antonov’s death, that he had had suicidal tendencies and should have been provided with psychiatric supervision (see paragraph 11 above).
  5. The Court further notes that in the hours preceding Mr Antonov’s death he was examined twice by a doctor who provided treatment for hypertension. The Court also accepts that at the time there was nothing in Mr Antonov’s behaviour to alert the officers on duty or the doctor that he was in a state rendering an attempt at suicide likely. Nevertheless, it must bear in mind that throughout the whole period of his confinement at the correctional colony Mr Antonov had no access to psychiatric care, despite indications of the need for such care. He did not receive any appropriate monitoring and supervision for over a year. In the Court’s view, given the circumstances, the failure on the part of the authorities to take any measures in order to ensure that Mr Antonov was properly examined and treated resulted in his death. There has accordingly been a violation of Article 2 of the Convention under its substantive limb on account of the authorities’ failure to safeguard Mr Antonov’s right to life.

 

  1. Article 13 of the Convention

 

  1. Regard being had to the findings under Article 2 (see paragraphs 34 – 42 above), the Court considers that no separate issue arises under Article 13 of the Convention (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 123, ECHR 2005-VII).

 

  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 applicants claimed 100,000 euros (EUR) in respect of non-pecuniary damage.
  2. The Government considered the applicant’s claims excessive.
  3. The Court considers that the applicants must have suffered anguish and distress as a result of the circumstances of their relative’s death and their inability to obtain an effective investigation into the matter. In those circumstances, the Court finds it reasonable to award the applicants EUR 26,000 in respect of non-pecuniary damage.

 

  1. Costs and expenses

 

  1. The applicants also claimed EUR 4,550 for the costs and expenses incurred before the domestic courts and the Court. In particular, they claimed EUR 1,500 for the national lawyer’s fee, postal expenses, photocopying, and international phone calls; EUR 3,000 for the fee for their representative before the Court, to be paid into his bank account; and EUR 50 for his postal, telephone, photocopying and other office expenses.
  2. The Government did not dispute the applicants’ claim in respect of the legal fees incurred in the domestic proceedings. They pointed out that the applicants had failed to substantiate the remaining expenses incurred at the national level. As regards the fee claimed by the applicant’s representative before the Court, the Government considered it excessive and, in any event, not necessary.
  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, the above criteria and to the fact that legal aid has been paid to the applicants, the Court considers it reasonable to award the sum of EUR 3,086 covering costs under all heads, plus any tax that may be chargeable to the applicants on that amount, in addition to the sum paid by way of legal aid. EUR 930 of this is to be paid directly to the applicants and EUR 2,156 into the bank account of the applicants’ representative.

 

  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 application admissible;
  2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb on account of the authorities’ failure to conduct an effective investigation into Mr Antonov’s death;
  3. Holds that there has been a violation of Article 2 of the Convention under its substantive limb on account of the State’s failure to safeguard Mr Antonov’s right to life;
  4. Holds that there is no need to examine the complaint under Article 13 of the Convention;
  5. Holds

(a) that the respondent State is to pay the applicants, 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 26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,086 (three thousand and eighty-six euros) plus any tax that may be chargeable to the applicants, in respect of costs and expenses. EUR 930 of this is to be paid directly to the applicants and EUR 2,156 to their representative;

(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 applicants’ claim for just satisfaction.

 

Done in English, and notified in writing on 1 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GuErra President
Stephen PHILLIPS Registrar

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