Постановление Европейского суда по правам человека от 01.07.2010 «Дело Никифоров (nikiforov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF NIKIFOROV v. RUSSIA
(Application No. 42837/04)
JUDGMENT*
(Strasbourg, 1.VII.2010)
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*This version was rectified on 2 July 2010 under Rule 81 of the Rules of the Court.

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Nikiforov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren}*Nielsen, Section Registrar,

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*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 10 June 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 42837/04) 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 Vyacheslav Aleksandrovich Nikiforov ("the applicant"), on 30 September 2004.

2. The applicant, who had been granted legal aid, was represented by Ms Ye. Muravyova (Yefremova) and Mr M. Rachkovskiy from the International Protection Centre, a Moscow-based human-rights NGO. The Russian Government ("the Government") were represented Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been beaten in police custody.

4. On 6 November 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

5. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
6. The applicant was born in 1972 and is now serving a sentence in Kostroma.

A. Alleged ill-treatment of the applicant
7. On 28 December 2003 the applicant was apprehended, allegedly in an inebriated state, on the railway line by Mr S. and Mr L., police officers from Nerekhta station police department (линейный пост милиции станции Нерехта). Subsequently he was transported to Nerekhta district police station (Нерехтский ГРОВД) and placed in a temporary detention cell.

8. After a while a police officer took the applicant from his cell to the second floor of the police station. The officer pointed to a young man and woman in one of the offices and asked the applicant whether he knew them. The applicant said that he knew the woman. The officer then noticed a blood stain on the sleeve of the applicant's jacket and allegedly accused him of having robbed the man and woman. The applicant was taken to the officer on duty and his jacket was seized as material evidence.

9. The applicant spent the night in the temporary detention wing.

10. On the morning of 29 December 2003 another police officer who did not introduce himself took the applicant from his cell to an office on the third floor of the police station. He told the applicant to write a confession statement which the applicant refused to do. The officer left and then returned with his colleagues. Together they beat the applicant up and later took him back to the cell.

11. Later on that day the applicant was brought before the Justice of the Peace of the 19th Court Circuit who found him guilty of disturbing public order and sentenced him to five days' detention.

12. On 30 December 2003 the applicant was interviewed as a witness in a robbery case. He refused to make any statements and asked for his injuries to be recorded and for an inquiry to be opened into the beatings he had received.

13. On 31 December 2003 an investigator from Nerekhta district police station, Mr S., commissioned a forensic examination of the applicant's injuries with a view to determining their extent and origin.

14. On 19 February 2004 the expert returned the following findings:

"Mr Nikiforov had a fractured nose, abrasions and a bruise on his face [measuring 7 x 4 cm]. The injuries could have been caused by the impact of a hard blunt object or as a result of falling on such an object... It is impossible to establish when Mr Nikiforov's nose was broken because of his belated request for it to be X-rayed..."
15. On 20 February 2004 an investigator of Nerekhta District Prosecutor's Office, Mr V., refused to institute criminal proceedings into the alleged beatings. He found that since the applicant's jacket had been stained with blood at the moment of his arrival at the police station, the injuries must have been caused at some earlier point in time.

16. On 12 May 2004 the Nerekhta District Prosecutor quashed the investigator's decision and directed him to hear the arresting police officers and to examine the detainees' registration log.

17. On 16 May 2004 the investigator Mr V. again refused to institute criminal proceedings. On the basis of an entry in the registration log, he established that from 8.30 to 9.20 a.m. on 29 December 2003 the applicant had not been in the temporary detention wing but with police officer Mr A. However, since both Mr A. and the arresting police officers had denied using any force on the applicant, there were no indications of a criminal offence.

18. On 25 June 2004 a deputy prosecutor of the Kostroma Region quashed the investigator's decision as incomplete. He ordered, in particular, that the officers on duty be heard on the issue of whether any injuries had been present on the applicant's body at the time of his arrival at the police station.

19. On 4 July 2004 the investigator Mr V. refused to institute criminal proceedings for a third time. His decision was an exact repeat of his previous one, save for the statement of the officer Mr P. in which he had claimed that at the time of the applicant's arrival at the police station he had had no visible injuries.

20. On 5 August 2004 the Nerekhta District Prosecutor quashed the investigator's decision, further to the applicant's complaint, and ordered him to verify the origin of the blood stain on the applicant's jacket.

21. On 28 January 2005 the investigator Mr V. refused to institute criminal proceedings for a fourth time. He added the testimony of the officer Mr K. who could not remember whether the applicant had been held in the police station on 29 or 30 December 2003.

22. On 23 May 2005 the Nerekhta District Prosecutor quashed the investigator's decision, noting that the investigator had not established how the injuries had been caused or obtained statements from the applicant's co-detainees.

23. On 28 May 2005 the investigator Mr V. issued a fifth decision refusing to institute criminal proceedings. On 27 September 2005 the regional prosecutor quashed that decision and ordered an additional inquiry.

24. On 25 November 2005 the investigator Mr Ku. issued a sixth decision refusing to institute criminal proceedings, which was set aside by the Nerekhta District Prosecutor on the same day.

25. On 25 January 2006 the deputy Nerekhta district prosecutor, Ms P., refused to institute criminal proceedings for a seventh time. She noted the testimony of the investigator Mr S., the applicant's partner Ms R. and the applicant's sister Ms E., who had all seen the applicant's swollen nose and bruised face on the morning of 29 December 2003. The Deputy Prosecutor acknowledged that light injuries had been inflicted on the applicant after his arrival at the police station on 28 December 2003, but declared the prosecution time-barred because the limitation period for the offence of light injuries was set at two years. The applicant complained to a court.

26. On 30 March 2006 the Nerekhta Town Court ruled in the applicant's favour, finding that the inquiry had been incomplete. It also noted that, although it was established that the applicant had been beaten at the police station, the investigation had failed to use all possible means to identify the perpetrators.

27. On 18 May 2006 the Kostroma Regional Court upheld the Town Court's decision on appeal.

28. On 18 March 2007 the investigator Mr L. from the Nerekhta District Prosecutor's Office issued the most recent decision refusing to institute criminal proceedings. He noted that, according to the arrest record and testimonies of many witnesses, the applicant had had no visible injuries at the time he was placed in the temporary detention wing at 11.50 p.m. on 28 December 2003. On 31 December 2003 a forensic expert had examined the applicant and recorded multiple injuries, including bruising to the eye, a broken nose, chipped tooth and abrasions on his face. Officer A. had admitted taking the applicant out of his cell on 29 December 2003 but denied having beaten him. The investigator thus confirmed that the applicant had suffered bodily injuries shortly after he was detained at Nerekhta district police station. However, the prosecution was time-barred because of the two-year limitation period and no evidence implicating officer A. or any other police officers had been obtained.

B. Criminal proceedings against the applicant
29. From 18 March to 2 April 2004 the Nerekhta District Court examined the case against the applicant on the charge of robbery.

30. On 2 April 2004 the District Court convicted the applicant as charged and sentenced him to seven years' imprisonment in a high-security colony. On 5 August 2004 the judgment was upheld on appeal by the Kostroma Regional Court.

II. Relevant domestic law
31. A criminal case may be instituted on the basis of a criminal complaint if there is sufficient evidence of elements of a crime (Article 140 of the Code of Criminal Procedure). A criminal case may be opened by a prosecutor or by an investigator with the prosecutor's consent (Article 146 § 1 of the CCrP).

32. The victim is the individual who has suffered physical harm, emotional distress or pecuniary damage as a consequence of the crime. The victim has, in particular, the right to give statements, to take part in procedural acts, to put questions to experts, and to lodge requests (Article 42 of the CCrP).

THE LAW
I. Alleged violation of Article 3 of the Convention
33. The applicant complained under Article 3 of the Convention that he had been beaten by police officers on 29 December 2003 and that his complaint had not been properly investigated. Article 3 provides as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
A. Admissibility
34. The Government submitted that the applicant had not exhausted domestic remedies because he had not challenged the decisions refusing the institution of criminal proceedings before a court and because he had not voiced his disagreement with the decision of 18 March 2007.

35. The applicant replied that he had lodged appeals against the investigators' decisions with the Nerekhta District Court. He had not lodged an appeal against the most recent decision of 18 March 2007 because that remedy had proved to be ineffective.

36. The Court observes that, following the applicant's complaint against the decision of 25 January 2006 by which the institution of criminal proceedings was refused, the Nerekhta District Court and the Kostroma Regional Court determined that the investigation had been incomplete and insufficiently thorough. Although the inquiry was subsequently reopened, the institution of criminal proceedings was again refused on 18 March 2007 on the same grounds. As the Court has found in a similar case, a requirement to introduce further appeals against successive decisions refusing the institution of criminal proceedings would be over-formalistic and place an excessive burden on the applicant. Furthermore, owing to the time that has elapsed since the events complained of, another reversal of the refusal to open criminal proceedings would not constitute an effective remedy (see Samoylov v. Russia, No. 64398/01, § 45, 2 October 2008). Accordingly, the Government's objection must be dismissed.

37. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits
1. Compliance with Article 3 as regards
the alleged ill-treatment by police
38. The Court has held on many occasions that the authorities have an obligation to protect the physical integrity of persons in detention. Where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see Ribitsch v. Austria, 4 December 1995, Series A No. 336, § 34, and Salman v. Turkey [GC], No. 21986/93, § 100, ECHR 2000-VII). In assessing evidence, the Court has generally applied the standard of proof "beyond reasonable doubt" (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A No. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch, § 34, and Salman, § 100, both cited above).

39. In their initial observations, the Government submitted that it had not been possible to establish the origin and timing of the applicant's injuries with sufficient certainty. The injuries may have occurred as a result of the applicant falling from his own height against hard objects with protruding elements. In such circumstances, the Russian authorities could not be held responsible for the applicant's alleged ill-treatment. In their additional observations, the Government acknowledged that the applicant's injuries had appeared after he was brought to