ITEMID: 001-118385
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF OCHELKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 6. The applicant was born in 1979 and lived, before his arrest, in the town of Zavolzhye in the Nizhniy Novgorod Region. He is serving a prison sentence of thirteen years having been convicted of several counts of aggravated robbery and theft committed within an organised criminal group.
7. It appears from the parties’ submissions that at approximately 9 p.m. on 16 January 2002, police officers from the interregional crime detection division of the Nizhniy Novgorod Main Department of Interior Affairs arrested the applicant, together with several other individuals, including Mr T., on suspicion of car hijacking and took them to police station no. 1 in Zavolzhye. Several hours later an officer on duty, Mr M., drew up an administrative offence record which, in its relevant part, read as follows:
“At 1 a.m. on 17 January 2002 [the applicant], was inebriated in a street... in Zavolzhye; [his appearance] was an insult to human dignity and social morals.
He committed an administrative offence under Article 162 § 1 of the RSFSR Code of Administrative Offences ...
[The applicant], in the presence of witnesses, refused to give any explanations and to sign the administrative offence record ...
It has been decided to levy a fine of 10 Russian roubles [on the applicant].”
8. After the police officers from the crime detection division had left the police station, the officer on duty called police officer Mr S. who was to interrogate the applicant about the car hijacking.
9. According to the applicant, during the interrogation the police officer, Mr S., and the officer on duty, Mr M., urged him to confess to the hijacking. When the applicant refused to sign a confession statement, the police officers handcuffed him, tied his legs with a rope in a crisscross manner, threw the rope over his head and tied it to his arms. The applicant was forced to remain in a very painful position for more than an hour. According to him, the police called that form of torture “an envelope”. A number of times the police officers untied and re-tied the applicant, causing him severe pain. When his resistance had worn down, the applicant asked the officers to untie him, promising to write a confession statement. The officers waited for an additional fifteen minutes before untying the applicant. Unable to move, he had to sit on the floor for another hour, trying to regain his strength. He was too weak to write, so the police officer wrote the confession statement and told the applicant to sign it. Once he had complied, he was placed in a cell for administrative detainees.
10. In the morning of 17 January 2002 the applicant was taken to the office of the police investigator, Ms Sa., for questioning. The applicant complained to her that he had been forced to confess to a hijacking which he had not committed. In response, Ms Sa. ordered an officer on duty to take the applicant back to the cell.
11. The applicant was taken to another room where both officers, Mr S. and Mr M., were present. They tied up the applicant in the same manner as on the previous night and began beating him. They hit him several times in the head with a chair leg and kicked him a number of times in various parts of his body. During the beatings a police investigator, Mr Ma., entered the room. He placed a metal beer bottle top in the applicant’s mouth and ordered him to swallow it. When the applicant refused, Mr Ma. punched him in the face. Officers S. and M. asked Mr Ma. not to leave marks on the applicant’s face and Mr Ma. left the room. The beatings continued for another hour or so. Unable to bear them any longer, the applicant lost consciousness and was taken to a cell for administrative detainees. The police officers poured cold water on the applicant to “revive” him.
12. When the applicant regained consciousness, he was taken back to the office of the police investigator, Ms Sa. Under Ms Sa.’s influence and being afraid of further beatings, the applicant confirmed his confession statement given in the early hours of 17 January 2002.
13. In the meantime, the applicant’s relatives were trying to establish his whereabouts. In the morning of 17 January 2002 his wife, who had noticed his car near police station no. 1, enquired about him at the station, but the officers on duty refused to give her any information. On the same day the applicant’s father called the station and talked to the police investigator, Ms Sa., who, at first, refused to answer any questions and then, following a number of phone calls, told the father that the applicant had attempted to escape from the police, had run into a store, bought a bottle of alcohol and drunk it. Police officers had brought the applicant to the station because he had behaved inappropriately. Ms Sa. insisted that the applicant would remain at the station until he had sobered up and could answer her questions.
14. The applicant’s parents arrived at the police station and at approximately 5 p.m. the applicant was released. When he approached his father in a corridor of the police station, he was only wearing trousers and an overcoat and was holding the rest of his clothes, which were wet, in his hands. On the way home, the applicant lost consciousness in the car and his parents took him to hospital no. 1 in Zavolzhye.
15. As the Government pointed out, at approximately 6.15 p.m. the applicant was examined in the hospital and diagnosed with a closed cranio-cerebral injury, concussion and multiple injuries to the head, including on its capillary surface and the left side of the parietal area, back, arms and chest. He was admitted to the surgery department of the hospital where he underwent treatment until 29 January 2002.
16. The applicant submitted that his confession statement had served as a ground for instituting criminal proceedings on the charge of car hijacking. However, shortly afterwards, the criminal proceedings against him were discontinued as there was no other evidence linking him to the criminal offence in question.
17. The Government, citing the statements which the applicant had made at various stages of the inquiry into his complaints of ill-treatment by the police, stated that there was no evidence that the injuries on the applicant’s body recorded in the hospital on 17 January 2002 had been caused by the police officers. They stressed that on a number of occasions the applicant had changed his statements. In their view, it was possible that he had sustained those injuries as a result of his own careless actions or in a fight which had occurred before his arrest.
18. On 18 January 2002 the applicant’s parents lodged a complaint with the Gorodets town prosecutor’s office, describing in detail the events on 16 and 17 January 2002 and asking them to institute criminal proceedings against the police officers.
19. Ten days later a senior assistant of the Gorodets town prosecutor refused to institute criminal proceedings, finding no prima facie case of illtreatment. The senior assistant’s decision read as follows:
“On 18 January 2002 the parents, Mr and Ms Ochelkovy, complained to the Gorodets town prosecutor’s office that their son ... had been beaten up. They stated that police officers of the Zavolzhye town police department had arrested [the applicant] in the early hours of 17 January 2002. Their son had not been released until after 5 p.m. on 17 January 2002, His clothes had been wet; he had been unable to move unassisted. [The applicant] had lost consciousness and his parents had brought him to the admissions department of hospital no. 1 in Zavolzhye, where [the applicant] had been examined by a doctor on duty and admitted to the surgery department.
[The police investigator] Ms Sa. explained that on 17 January 2002 police officers of the interregional crime detection division of the Nizhniy Novgorod Main Department of Interior Affairs had arrested [the applicant] while he had been trying to sell a stolen car... During an interrogation [she] had informed him [of his rights] under Article 51 of the Russian Constitution and he had agreed to give a statement in the case; [he] had described the circumstances surrounding the theft of the car. Ms Sa. had not applied any pressure on the applicant; he had refused legal assistance. After the interrogation [the applicant] had been allowed to go home; his father had waited for him in the corridor. [The applicant] had not been arrested in compliance with Article 122 of the RSFSR Code of Criminal Procedure; he had been released at 2 p.m. [The applicant] had not made any complaint about the actions of the police officers. He had not had any visible injuries; she had only seen that there had been marks on [the applicant’s] hands from handcuffs.
Mr S., a police officer of the crime detection unit of the Zavolzhye town police department stated that at midnight on 16 January 2002, an officer on duty, Mr K., had summoned him to work because several persons who had tried to sell a stolen car had been arrested. Mr S. had interrogated [the applicant] in his office in the police station. [The applicant] had described the circumstances surrounding the theft of the car; during the interrogation [the applicant] had been touching his chest. When asked what had happened to him, [the applicant] had explained that before his arrest he had had a fight with unknown persons near the entrance to his house. [The applicant] had no visible injuries. Another police officer, Mr M., had entered the office a number of times. [The applicant] had not told Mr S. whether another [police officer] had questioned him before Mr S.
According to the police officer of the crime detection unit of the Zavolzhye town police department, Mr M., at approximately 10 p.m. on 16 January 2002, police officers from the interregional crime detection division of the Nizhniy Novgorod Main Department of Interior Affairs, who had arrested three residents of Zavolzhye, including [the applicant], had arrived at police station no. 1. Mr M. had offered them his office and had left. After the police officers of the interregional crime detection division of the Nizhniy Novgorod Main Department of Interior Affairs had left, Mr S. had been summoned from his home because the car hijacking had been committed on territory which he supervised. [Mr S.] had questioned [the applicant] alone. Mr M. had entered the office a number of times, but the atmosphere had been calm... [The applicant], while in Mr S.’s office, said that before his arrest he had been beaten up and, apparently, he had a broken rib, but he did not mention whether he had contacted a hospital or the police in respect of that [incident].
According to an extract from the registration log of urgent medical assistance of the admissions unit of hospital no. 1 in Zavolzhye, when [the applicant] requested [medical assistance] at 6.15 p.m. on 17 January 2002, he had injuries... to the head, the wrists, the back [and] the chest [and he had] painful pink bruises in the lumbar region.
According to a statement by Dr Y., who had examined [the applicant] in the admissions unit, [the applicant] had no fresh injuries or bruises.
According to a statement by a medical assistant of the admissions unit, Ms K., [the applicant] had undressed in her presence and she had not seen any injuries on his body, face or hands. After [the applicant] had been examined by doctors, he had been admitted to the surgery department.
The arguments laid down in the complaint of [the applicant’s] parents are refuted by the materials of the investigation.
On the basis of the above-mentioned elements, ... [the senior assistant] has decided to:
1. Dismiss the request of [the applicant’s father] for the institution of criminal proceedings concerning the beating of his son by police officers of the Zavolzhye town police department ...”
20. The applicant appealed against the decision to a higher-ranking prosecutor.
21. On 5 February 2002, on an order of the Gorodets town prosecutor, a forensic medical expert examined the applicant and issued a report confirming that the latter had the following injuries: concussion, bruises on his scalp, wrists, back, chest and on the lumbar region, and abrasions on the left side of the parietal region of the head. The expert concluded that the injuries had been caused by a blunt, firm object, possibly on 16 January 2002, and had resulted in insignificant damage to the applicant’s health.
22. When he was interrogated by the town prosecutor on 31 January 2002, the applicant had provided a detailed description of the alleged ill-treatment in the police station. The description was similar to that provided in the application to the Court.
23. On 15 April 2002 the Gorodets town prosecutor quashed the decision of 28 January 2002, instituted criminal proceedings against the police officers and initiated an additional inquiry.
24. According to the Government, on 27 June 2002 the applicant asked the prosecutor’s office to end an inquiry into his complaints about ill-treatment following the arrest, stating that he had no hard feelings against the police officers.
25. On the following day a senior investigator of the Gorodets town prosecutor’s office discontinued the criminal proceedings, finding no case to be answered. The decision was based on statements by the police officers, Mr M. and Mr S., and the police investigator, Ms Sa., identical to those which served as the basis for the decision of 28 January 2002, and the restatement of the conclusion of the medical expert in the report of 5 February 2002. The senior investigator also relied on a record of the applicant’s questioning on 8 June 2002 in which the latter had denied the beatings and had stated that he had hit his head several times against a bookshelf when he had stood up from his chair at the police station. The applicant had also explained that when he had gone to the lavatory in the police station, a water tap had broken off and he had got doused with cold water. According to that interrogation record, the applicant had decided to complain about the alleged beatings in order to discredit the police officers investigating the criminal case against him.
26. The senior investigator’s decision was not served on the applicant. Five months later, the applicant’s lawyer learned about it during a phone call to the Gorodets town prosecutor’s office. On 14 December 2002, following the lawyer’s complaint to the Nizhniy Novgorod regional prosecutor’s office, the applicant received a copy of the decision of 28 June 2002.
27. On 14 January 2003 a deputy prosecutor of Gorodets town quashed the decision of 28 June 2002 and ordered an additional investigation into the applicant’s ill-treatment complaints.
28. An expert opinion issued following another forensic medical examination performed on 26 January 2003 again listed the numerous injuries to the applicant’s head and body, and stated that those injuries had probably been sustained within twenty-four hours prior to the applicant’s admission to hospital on 17 January 2002.
29. On 14 February 2003 the senior investigator of the Gorodets town prosecutor’s office again adjourned the criminal proceedings, holding that there was no criminal conduct in the police officers’ actions. The decision was similar in wording to the one issued by the senior investigator on 28 January 2002, save for two paragraphs. In the first paragraph the investigator cited statements by the three police officers from the interregional crime detection division of the Nizhniy Novgorod Main Department of Interior Affairs, who had arrested the applicant. The police officers stated that they had handcuffed the applicant, but had not applied any force. They also noted that the applicant had been in a state of drug intoxication and that he had had bruises under his nose and on his lips. The second paragraph read as follows:
“It appears from materials of criminal case no. 67083, which was instituted in respect of a car hijacking..., the police officers of [the interregional crime detection division of the Nizhniy Novgorod Main Department of Interior Affairs] had lawful grounds for arresting [the applicant and another person]. Moreover, as they had operative information pertaining to [the applicant’s and another person’s] characters ... the police officers ... lawfully handcuffed [the applicant and another person], without overstepping the boundaries of the measures necessary to arrest persons who have committed a criminal offence. According to [the applicant’s] statement, which he gave as a witness, and the statement by a witness, [the police officer], Mr S., [the applicant] sustained the concussion, injuries to the scalp and the left side of the parietal region of the head as a result of his own carelessness, and the police officers have nothing to do with these injuries. It was impossible [to establish] the circumstances in which [the applicant] had sustained the injuries to his back, chest and the back of his head. The witnesses, [the police officers] Mr M. and Mr S., stated that during the interrogation [the applicant] had been touching his chest, explaining that he had been beaten up by unknown persons in the entrance lobby of his home. [The applicant] did not give any explanations as to that fact during the interrogation. Given that those injuries did not damage his health and [the applicant] did not request that criminal proceedings be instituted against the unknown persons, there are no grounds for institution of criminal proceedings. It appears from the above-mentioned events that the fact that [the applicant] had been beaten up on the night of his arrest... was not confirmed during the pre-trial investigation.”
30. The applicant was informed about the decision of 14 February 2003 by a letter of 10 April 2003 enclosing a copy of that decision. The applicant’s lawyer appealed against the decision to a higher-ranking prosecutor.
31. On 9 October 2003 a deputy prosecutor of Gorodets town quashed the decision of 14 February 2003 and re-opened the criminal proceedings against the police officers.
32. On 25 December 2003 an investigator of the Gorodets town prosecutor’s office issued a decision to adjourn the criminal proceedings. The decision was identical to the one issued on 14 February 2002, save for two paragraphs, in which the investigator restated the results of an additional medical examination of the applicant performed on 24 February 2003 and cited the report of the applicant’s questioning on 18 December 2003. It appears from the investigator’s decision that during the questioning on 18 December 2003 the applicant refuted his previous statement given to the police officers on 8 June 2002 and insisted that he had been beaten up at the police station after his arrest. The applicant explained that prior to his being interviewed on 8 June 2002 the police investigator, Ms Sa., had threatened him with criminal prosecution and had forced him to lie that he had hit his head against a bookshelf. The expert report again listed the injuries recorded in the previous medical examinations.
33. On 15 January 2004 that decision was quashed by a higher-ranking prosecutor. However, ten days later an investigator of the Gorodets town prosecutor’s office, by a decision identical to the one issued on 25 December 2003, closed the criminal case.
34. On 21 June 2004, following a complaint submitted by the applicant’s lawyer, the Gorodets District Court found that the decision of 15 January 2004 had been unlawful because the investigator had not interrogated the applicant, his father and mother in compliance with the Russian Code of Criminal Procedure. Nor had he questioned the person with whom the applicant had been arrested, who could have specified whether the applicant had sustained the injuries prior to his arrest. The District Court also noted that the investigator had not carried out other investigative measures necessary for the establishment of the truth in the case (for example, an additional expert examination of the applicant, in view of the fact that the previous ones were contradictory). The court quashed the investigator’s decision and ordered the re-opening of the criminal proceedings.
35. On 8 August 2004, in a decision identical to those issued on 25 December 2003 and 15 January 2004, a senior investigator closed the investigation, finding that the officers’ conduct had not been illegal. That decision was annulled on 14 September 2004 and a new round of criminal proceedings commenced.
36. The decision of 14 September 2004 was supported by the ruling of the Gorodets District Court, which on 23 September 2004 examined the complaint lodged by the applicant’s lawyer and held that the decision of 8 August 2004 had been unlawful because the senior investigator had failed to comply with the District Court’s orders laid down in the decision of 21 June 2004. The District Court reiterated its findings of 21 June 2004 and also noted that the prosecuting authorities had not interrogated a Mr So., who could have been “an eyewitness in the case”. It further pointed out that the investigating authorities had not resolved the discrepancies between the police officers’ statements pertaining to the applicant’s injuries prior to the arrest and the medical expert reports, which had not recorded those injuries. The District Court stressed that the officers had given conflicting statements, changing their description of the events as the criminal case had progressed.
37. On 7 and 30 November 2004 the criminal proceedings against the police officers were discontinued, with the finding that there was no case of ill-treatment. Both decisions were quashed by higher-ranking prosecutors on 17 November and 15 December 2004, respectively, and the criminal proceedings were re-opened. The decision of 30 November 2004 mentioned an experiment during which the investigators attempted to verify whether the applicant could have sustained the head trauma by hitting his head against a bookshelf. It appears that such a possibility was not excluded if the applicant had stayed in a very specific position and had hit his head a number of times.
38. On 15 January 2005 the senior investigator of the Gorodets town prosecutor’s office closed the criminal case, finding that the injuries to the applicant’s head had resulted from his own careless actions (namely, hitting his head several times against a bookshelf) and that the remaining injuries had been caused by unknown individuals before the applicant’s arrest. The decision was based on statements by the police officers, who had denied any involvement in the alleged beatings, the results of the medical examinations and the applicant’s statements which the investigator considered to be contradictory and manifestly ill-founded.
39. According to the applicant, the decision of 15 January 2005 was annulled on 17 March 2005. However, in April 2005 the investigation was again closed. Despite numerous requests from the applicant, copies of those decisions were not served on him. Without providing the Court with a copy of the decision, the Government submitted that the final decision in the course of the inquiry into the applicant’s ill-treatment complaints had been issued by a senior investigator of the Gorodets town prosecutor’s office on 19 July 2006. The senior investigator had not found any evidence in support of the applicant’s allegations.
40. On 28 February 2007, without reopening the inquiry into the incident on 16 and 17 January 2002, a commission comprising three high-ranking prosecutors from the Nizhniy Novgorod regional prosecutor’s office examined the materials of the inquiry. Having read the statements that the applicant had given during various stages of the inquiry, the statements by the police officers and investigators implicated in the events and the results of the medical expert examinations, the commission confirmed that the decision to close the inquiry had been reasonable. In addition, the commission cited statements by the applicant’s co-defendant, Mr T., who had allegedly told the investigators that the applicant had acknowledged an attempt to frame the police officers by complaining of ill-treatment. According to Mr T., the applicant had told him that he had hit his head against a bookshelf a number of times during the interrogation, and had broken a tap in a lavatory in the police station and had poured water on his clothes. The commission concluded that the applicant’s head injury had resulted from his own careless actions and that his statements about the beatings should be treated with caution as they had been merely revenge for his arrest and the subsequent institution of criminal proceedings against him. The commission also noted that it had been impossible to establish the cause of the bruises on his back and chest. They also relied on statements by the police officers, who had allegedly observed the applicant touching his chest during the interrogation after his arrest and who had reiterated the applicant’s explanations that he had been beaten up by unknown persons in the entrance lobby of his home.
41. At approximately 4 p.m. on 14 February 2003, police officers of the Balakhninskiy District traffic police stopped the applicant’s car and searched it. They discovered a television set, a claw hammer and two balaclava masks. Suspecting that the television set could have been stolen, the officers decided to arrest the applicant and his two passengers, Mr T. and Ms F. According to the Government, the applicant refused to proceed to the police station and verbally insulted the officers. Following an altercation with the applicant during which he had used force, had physically resisted the officers’ order to get into a police car and had hurled himself against the car, officers Zel. and Ko. forced him into the car and took him to the Balakhninskiy District police station.
42. A senior inspector of the Balakhninskiy District traffic police drew up an administrative offence report. The report issued on 14 February 2003 stated that the applicant had committed a disorderly act: he had used offensive language, had cursed passers-by, had not responded to reprimands and had acted provocatively. The applicant signed the report, noting that he did not agree with it. Two police officers, acting as witnesses, also signed the report.
43. According to the applicant, in the police station he was placed in office no. 24 where five police officers were present. The officers handcuffed him to a metal safe and began hitting and kicking him. The officers urged the applicant to confess to the theft of the television set. The beatings continued for half an hour.
44. On the same day, the chief of the Balakhny town police department examined the administrative offence report and decided to levy a fine of RUB 1,000 Russian roubles on the applicant. The examination record states that the applicant was transferred to the temporary detention unit of the police station at 5 p.m.
45. The applicant submitted that at 8 a.m. on 15 February 2003, he had again been taken to office no. 24 in the police station. A police officer ordered him to sit on a metal chair near a safe and handcuffed him to the safe. Another police officer placed a gas mask over the applicant’s head. A number of times the officer squeezed the inlet pipe of the gas mask, completely cutting off the air supply so that the applicant could not breathe. According to the applicant, that method of torture continued for approximately fifteen minutes. Almost suffocating, the applicant tore off the handcuffs. The officers put him on the floor and placed another pair of handcuffs, bearing the sign “Kostya”, on him. While one police officer sat on the applicant’s back, another held his legs and a third officer again started squeezing the pipe of the gas mask. Then they connected wires to the applicant’s fingers. The applicant heard the sound of someone turning a phone handle and felt an electric shock. The officers applied electric shocks to him and at the same time continued to cut off the air supply in his gas mask. A number of times during the torture, the applicant lost consciousness. He also suffered involuntary defecation. When the police officers had grew tired, they placed him back on the chair and again handcuffed him to the safe. He spent the rest of the day in that position and was taken back to his cell in the evening.
46. On 17 February 2003 a police investigator of the Balakhny town police department drew up a record stating that the applicant had been arrested at 6.30 p.m. on the same day on suspicion of having stolen the television set on 13 February 2003.
47. On the following day the applicant had a meeting with a lawyer, who asked for the applicant to be medically examined. In response to the request, on the same day a police investigator issued a letter of referral addressed to the Balakhninskiy District Division of the Bureau of Forensic Medical Experts. According to the applicant, on 22 February 2003 a medical expert examined him and a month later issued a report, the relevant part of which read as follows:
“According to the letter of referral, [the applicant] was allegedly beaten up by police officers in an attempt to extract a confession from him.
OBJECTIVELY: on the external surface of the lower right forearm there is a bruise which has an irregular oval form, measures 0.9 cm in width and 4 cm in length and is covered by a brownish crust... There is a similar injury measuring 4 cm in width and 5 cm in length on the inside of the same forearm; [there are] three [injuries] measuring 0.5 cm in width and 1 cm in length on the inside of the left forearm; [there is a bruise] measuring 3 cm in width and 4 cm in length on the right cheekbone; [there is an injury] measuring 4 cm in width and 6 cm in length on the right shoulder [and there is a bruise] measuring 3 cm in width and 6 cm in length on the left shoulder. In the lumbar region there is a bruise which has an irregular oval form, measures 4 cm in width and 5 cm in length and is light blue in colour. There is a similar bruise, measuring 3 cm in width and 4 cm in length in the middle of the lower spine. There is another similar bruise measuring 0.5 cm in width and 1 cm in length on the chin.
CONCLUSIONS:
[The applicant’s] injuries on the chin, right and left forearms, right and left shoulders, right cheekbone, bruises on the chest [and] the right side of the lower spine were caused by a firm blunt object. Those injuries did not cause health damage. The injuries were sustained 4-7 days before the examination.”
The report indicated that the examination was performed on the basis of the police investigator’s decision of 18 February 2003. It also stated that the examination commenced and ended on the same day, on 22 March 2003. The expert signed the report on 22 March 2003.
48. On 18 February 2003 the applicant’s lawyer lodged a complaint with the Balakhny town prosecutor, seeking the institution of criminal proceedings against the police officers.
49. On 28 February 2003 an assistant to the Balakhny town prosecutor refused to institute criminal proceedings, noting that the applicant had written a note withdrawing his complaint against the police officers and explaining that he had received the injuries before his arrest.
50. According to the applicant, he wrote that note while he was still at the hands of the alleged perpetrators of the offence against him, that is, while he was being held in the temporary detention unit at the police station. He insisted that the police officers had forced him to write the note and that the assistant prosecutor had never talked to him in person.
51. On 15 May 2003, following a complaint lodged by the applicant’s lawyer with the Nizhniy Novgorod regional prosecutor, the Balakhny town prosecutor quashed the decision of 28 February 2003 and initiated an additional inquiry into the applicant’s ill-treatment complaints.
52. Ten days later, the Balakhny town prosecutor closed the inquiry, finding that there was no case to be answered. Without indicating the evidence on which his findings were based, the prosecutor noted that the fact that the police officers had used physical force against the applicant had not been confirmed.
53. On 25 August 2003 the Balakhny town prosecutor annulled his previous decision, finding that the inquiry had been incomplete.
54. On 15 September 2003 and 29 January 2004 a deputy prosecutor of Balakhny town refused to institute criminal proceedings against the police officers, holding that there was no prima facie case of ill-treatment. Both decisions were quashed by the town prosecutor on 23 January and 25 May 2004, respectively.
55. On 29 March 2004 a deputy prosecutor of Balakhny town issued a decision dismissing the applicant’s ill-treatment complaints. The relevant part of the decision read as follows:
“In the course of the investigation it was established that from 14 to 17 February 2003 [the applicant] was detained in the temporary detention unit of the ... police station on the basis of an administrative offence record ... which had been drawn up by the senior inspector of the Balakhninskiy district traffic police, Mr Zel., under Article 20.1 of the Russian Code of Administrative Offences, [that is] “a minor disorderly act”. On 14 February 2003 [the applicant] was fined RUB 1,000 in accordance with the decision of the deputy chief of the Balakhny town police department, Mr P. On 17 February 2003 a police investigator of the Balakny town police department, Ms D., arrested [the applicant] as a suspect in compliance with Article 91 of the Russian Code of Criminal Procedure.
The deputy chief of the Balakhny town police department, Mr P., in relation to the fact of [the applicant’s] arrest and his placement in the temporary detention unit ..., explained that ... he had fined [the applicant] for a minor disorderly act on 17 February 2003 and not on 14 February 2003 as it was indicated in the record of the administrative offence. The date of 14 February 2003 was indicated incorrectly. On 17 February 2003 the materials in the case of the administrative offence [committed by the applicant] were not sent to a court because it was no longer necessary. He was arrested on the same day by the investigator, Ms D., by virtue of Article 91 of the Russian Code of Criminal Procedure.
Thus, there is no criminal conduct... in the actions of the deputy chief of the Balakhny town police department, Mr P.
Earlier, in the course of the inquiry into [the applicant’s] complaint, [the applicant] was questioned [and he] explained that at approximately 3 p.m. on 14 February 2003, he had been arrested by the police officers of the Balakhninskiy District traffic police on suspicion [that he had] stolen a television set. [He] was taken to an office on the second floor of the ... police station where five police officers were present. [The applicant] stated that during an interrogation the police officers had applied physical force to him: [they] had handcuffed him to a safe, [they] had punched him in various parts of his body, [they] had put a gas mask on him and had cut off [the air supply in] the inlet pipe. Subsequently, he was taken to the temporary detention unit of the Balakhny town police station. At approximately 8 a.m. on 15 February 2003, he was taken to the same office, where the same police officers continued a discussion with him, during which they used physical force against him.
In the course of the check of [the applicant’s] statement, a police officer of the crime detection unit of the Balakhny town police department, Mr L., was also questioned; [he] explained that on 14 February 2003 [the traffic police] had arrested [the applicant] on suspicion of theft. Subsequently he was taken from the duty unit of the ... police station to office no. 27 ... where Mr L. talked to him. Mr L. stated that during the talk [the applicant] had acted provocatively, had used offensive language towards the police officers and had suddenly thrown himself on [Mr L.]. Mr L. thought that [the applicant] wanted to take possession of his service gun. In this connection, Mr L., in compliance with section 14 of the Federal Police Act, had handcuffed [the applicant] to the safe to restrict his actions. Mr L. stated that during the talk with [the applicant] he had noticed abrasions on his chin. Mr L. could not explain the origin of those injuries. He had not talked to [the applicant] on 15 and 16 February 2003 because he had taken days off. Moreover, Mr L. noted that police officers of the crime detection unit of the Balakhny town police department, Mr Sh., Mr Le., Mr G., Mr Zo., and Mr K., had been in the office during the questioning of [the applicant]; [they] had not taken part [in the talk], [they] had performed their work and had not used physical and moral pressure against [the applicant].
Police officer ... Mr Sh. stated that on 14 February 2003 Mr L. had talked to [the applicant] in office no. 27 of the police station. He did not take part in the talk [and] carried on with his work. However, during the talk with Mr L. he heard [the applicant] use offensive language against the police officers a number of times. Mr Sh. explained that at the moment when [the applicant] had attacked Mr L., he had paid attention to him and had noticed abrasions on his face. When Mr L. handcuffed [the applicant] to the safe, he had continued with his work. He did not talk to [the applicant] on 15 and 16 February 2003 because he took those days off.
In the course of the additional inquiry, police officers..., Mr G., Mr Zo. and Mr K. were questioned; [they] explained that on 14 February 2003 they had been in office no. 27 of the police station, to which [the applicant] had been brought for a talk. However, they were unable to recollect who had talked to him owing to the remoteness of the events. [They] also could not recollect whether [the applicant] had had any injuries on his face or other parts of his body.
Moreover, police officers... Mr G. and Mr Zo. explained that on 15 and 16 February 2003 they had not talked to [the applicant], because they had had days off. Police officer Mr K. explained that on 15 February 2003 he had been on the reserve list, and on 16 February 2003 he had had a day off. However, he had not talked to [the applicant] on 15 and 16 February 2003.
It was impossible to question police officer... Mr Le. in the course of the additional investigation because since 10 December 2003 he has been serving in the Ministry of Interior Affairs of the Chechen Republic.
According to the report of [the applicant’s] forensic medical examination [issued] on 23 March 2003, [the applicant] had the following injuries: abrasions on the chin, right and left shoulders, right and left forearms, right cheek, bruises on the chest and the right side of the lower spine. The injuries were caused 4-7 days before the examination. Thus, according to the report of the forensic medical examination [the applicant] could have sustained the injuries on 11, 12, 13 or 14 February 2003.
In the course of the examination of [the applicant’s] complaint, the police officers of the Balakhninskiy District traffic police..., an inspector..., Mr Ko., and the senior inspector, Mr Zel., were questioned.
During the questioning Mr Ko. stated that on 14 February 2003 he, together with the senior inspector of the traffic police, Mr Zel., had been supervising the traffic. They had received an order from an officer on duty... to stop a white car.... At approximately 3 p.m..... near a railway crossing they stopped a similar car [intending] to check the documents. There were four persons in the car; [the applicant], one of the persons in the car, started using offensive language towards the traffic police officers; [he] resisted being placed in a police patrol car. It was apparent that [the applicant] did not want to get into the patrol car, resting his hands against the car door and roof. That is why Mr Ko. grabbed [the applicant] by one hand and Mr Zel. by the other and they twisted [his hands] behind his back. However, [the applicant] continued his resistance, turning from side to side in his struggle to break loose. At the same time he was bumping against various parts of the car (a door, the car body) with his shoulders and other parts of his body. Then Mr Ko. and Mr Zel. pushed [the applicant] into the patrol car. Mr Zel. gave a similar statement in respect of those events. Moreover, Mr Ko. and Mr Zel. explained that [the applicant] had had abrasions on the chin. Subsequently, the arrestees were taken for further inquiry to the Balakhny town police station, where Mr Zel. drew up an administrative offence record in respect of [the applicant] under Article 20.1 of the Russian Code of Administrative Offences.
In the course of the additional investigation an expert of the Balakhny Division of the Forensic Medical Expert Bureau, Mr Zh., was questioned as to whether the injuries on the [applicant’s] arms, chest and lower spine could have been caused when he had been placed in and taken out of the car while [he] had been bumping against protruding parts of the car door and body. In response to that question, Mr Zh. stated that those injuries had been caused by a blunt firm object and they could have been caused when [he] had bumped against protruding parts of the car door and body when [he] had been placed in and taken out of the car.
Thus, the orders of the Balakhny town prosecutor, Mr G., were complied with fully.
However, [the applicant’s] allegations that the police officers of the Balakhny town police department used physical force against him are not corroborated by any material evidence.”
56. The applicant’s lawyer appealed against the decision to the Balakhny Town Court, complaining that it was unlawful and manifestly ill-founded.
57. On 10 February 2005 the Balakhny Town Court accepted the complaint, quashed the decision and ordered an additional investigation into the applicant’s allegations of ill-treatment. In particular, the Town Court noted that there were eyewitnesses of the applicant’s arrest who could have testified as to whether the applicant had resisted arrest, had used offensive language, and so on. The Town Court also found that there were a number of discrepancies in the materials submitted by the prosecution. It ordered the relevant authorities to resolve them.
58. On 3 March 2005 the deputy prosecutor of Balakhny town again dismissed the request for the institution of criminal proceedings against the police officers. The deputy prosecutor copied the complete text of the decision of 29 March 2004, and added two more paragraphs in which he noted that a record of the crime scene examination and extracts from registration logs had been enclosed in the case file.
59. That decision was annulled by a higher-ranking prosecutor. However, on 20 April 2005 the deputy prosecutor of Balakhny town issued another decision refusing to institute criminal proceedings. That decision was identical to those issued on 29 March 2004 and 3 March 2005, save for one paragraph in which the deputy prosecutor drew attention to the statements by Mr T. and Ms F., two eyewitnesses of the applicant’s arrest on 14 February 2003. Both witnesses testified that the applicant had had no visible injuries prior to his arrest and that he had not complained about the state of his health. He had not resisted the arrest or his placement in the patrol car, and the police officers had not used force during the arrest.
60. According to the applicant, the decision of 20 April 2005 was not served on him and he learned about it in August 2005 during a phone call to the Balkhny town prosecutor’s office. In October 2005 he lodged a complaint with the Nizhniy Novgorod regional prosecutor’s office about the ineffectiveness of the investigation. By a letter of 26 December 2005 he was informed that on 6 December 2005 a deputy prosecutor of Nizhniy Novgorod Region had instituted criminal proceedings against the police officers.
61. On 1 February 2006 an investigator interviewed the applicant in the correctional colony where he was serving his sentence at the time (see paragraph 6 above) about the circumstances surrounding his arrest on 14 February 2003 and his complaints of ill-treatment by the police. The applicant refuted his previous statements, insisting that he had fallen down the stairs in the detention unit of the police station. He stressed that the police officers had not used force against him and that he had no intention of pursuing the complaint against them.
62. Five months later, on 5 May 2006 an investigator of the Balakhny town prosecutor’s office closed the criminal proceedings against the police officers, finding no criminal conduct in their actions. Neither the applicant nor his lawyer was notified of the decision. The lawyer learned about the decision in December 2006. He immediately lodged a motion with the Balakhny town prosecutor’s office, asking for permission to study the case file. The request was dismissed. The lawyer repeated his request without success and appealed against the refusal to the Balakhny Town Court, providing the court with copies of the prosecutor’s refusals and the power of attorney issued by the applicant and confirmed by the Priokskiy District Bar Association on 15 March 2007.
63. On 21 November 2007 the Town Court confirmed that the refusal had been lawful as the lawyer had not presented any document authorising him to act on the applicant’s behalf. That decision was quashed on appeal on 22 January 2008 by the Nizhniy Novgorod Regional Court and a reexamination of the matter was ordered.
64. On 15 April 2008 the Town Court ruled that the refusal to provide the applicant’s lawyer with access to the case file had been unlawful.
65. On the basis of the Town Court’s decision, the applicant’s lawyer was given access to the file and was able to make copies of documents, including the decision of 5 May 2006. The investigator, having exclusively relied on statements by the police officers who had come into contact with the applicant between 14 and 17 February 2003, had found that there was no evidence of ill-treatment and that the applicant had sustained the injuries in resisting arrest.
66. Responding to an appeal lodged by the applicant’s lawyer against the decision of 5 May 2006, the Balakhna Town Court upheld that decision, finding it to be lawful and reasonable. The Town Court noted that the investigators had collected evidence in support of their version that the applicant had sustained the injuries in his attempt to resist arrest. It also drew attention to the applicant’s statements made in February 2006 when he had provided another cause for his injuries.
67. On 25 February 2003 the applicant was transferred to detention facility no. IZ-1/52 in Nizhniy Novgorod. On 18, 21 and 25 March and 1 and 2 April 2003 he was taken from facility no. IZ-1/52 to a temporary detention ward in the Kanavinskiy District of Nizhniy Novgorod, where police officers interrogated him. The applicant alleged that the officers had used force against him following his refusals to answer their questions. On 3 April 2003 the applicant complained to the Nizhniy Novgorod regional prosecutor of ill-treatment in March and April 2003. On 24 May 2003 the Balakhny town prosecutor refused to carry out an inquiry into the applicant’s complaints, reasoning that the Balakhny town prosecutor’s office had no competence to examine it.
68. On 14 June 2003 three police officers took the applicant from his cell in detention facility no. IZ-1/52 to an investigation ward. They allegedly ordered the applicant to confess to a robbery, threatening that they would dress him in a police uniform and place him in a cell with “hardcore criminals”. The officers also repeatedly threw the applicant’s hat in a dustbin and then forced him to take the hat out of the dustbin and put it on his head.
VIOLATED_ARTICLES: 3


ITEMID: 001-58011
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF VALSAMIS v. GREECE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 3;No violation of Art. 9;No violation of P1-2;Violation of Art. 13+P1-2;Violation of Art. 13+9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 6. The three applicants are Jehovah’s Witnesses. Elias and Maria Valsamis are the parents of Victoria, who was born in 1980 and is currently a pupil in the last three years of State secondary education at a school in Melissia, Athens.
According to them, pacifism is a fundamental tenet of their religion and forbids any conduct or practice associated with war or violence, even indirectly. It is for this reason that Jehovah’s Witnesses refuse to carry out their military service or to take part in any events with military overtones.
7. On 20 September 1992 Mr and Mrs Valsamis submitted a written declaration in order that their daughter Victoria, who was then 12 and in the first three years of secondary education at a school in Melissia, should be exempted from attending school religious-education lessons, Orthodox Mass and any other event that was contrary to her religious beliefs, including national-holiday celebrations and public processions.
8. Victoria was exempted from attendance at religious-education lessons and Orthodox Mass.
In October 1992, however, she, in common with the other pupils at her school, was asked to take part in the celebration of the National Day on 28 October, when the outbreak of war between Greece and Fascist Italy on 28 October 1940 is commemorated with school and military parades.
On this occasion school parades take place in nearly all towns and villages. In the capital there is no military parade on 28 October, and in Salonika the school parade is held on a different day from the military parade. The school and military parades are only held simultaneously in a small number of municipalities.
9. Victoria informed the headmaster that her religious beliefs forbade her joining in the commemoration of a war by taking part, in front of the civil, Church and military authorities, in a school parade that would follow an official Mass and would be held on the same day as a military parade.
According to the applicants, the school authorities refused to accept her statement. In the Government’s opinion, it was imprecise and muddled and did not make clear the religious beliefs in question. At all events, her request to be excused attendance was refused but she nevertheless did not take part in the school’s parade.
10. On 29 October 1992 the headmaster of the school punished her for her failure to attend with one day’s suspension from school. That decision was taken in accordance with Circular no. C1/1/1 of 2 January 1990 issued by the Ministry of Education and Religious Affairs (see paragraph 13 below).
11. The 1975 Constitution contains the following provisions:
"1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it [omodoxi], immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928.
2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph.
3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople."
"1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs.
2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.
3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion.
4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions.
5. No oath may be required other than under a law which also determines the form of it."
12. A royal decree of 23 July 1833 entitled "Proclamation of the Independence of the Greek Church" described the Orthodox Church as "autocephalous". Greece’s successive Constitutions have referred to the Church as being "dominant". According to Greek conceptions, the Orthodox Church represents de jure and de facto the religion of the State itself, a good number of whose administrative and educational functions (marriage and family law, compulsory religious instruction, oaths sworn by members of the Government, etc.) it moreover carries out. Its role in public life is reflected by, among other things, the presence of the Minister of Education and Religious Affairs at the sessions of the Church hierarchy at which the Archbishop of Athens is elected and by the participation of the Church authorities in all official State events; the President of the Republic takes his oath of office according to Orthodox ritual (Article 33 para. 2 of the Constitution); and the official calendar follows that of the Christian Eastern Orthodox Church.
13. Circular no. C1/1/1 of 2 January 1990 issued by the Ministry of Education and Religious Affairs provides:
"Schoolchildren who are Jehovah’s Witnesses shall be exempted from attending religious-education lessons, school prayers and Mass.
...
In order for a schoolchild to benefit from this exemption, both parents (or, in the case of divorced parents, the parent in whom parental authority has been vested by court order, or the person having custody of the child) shall lodge a written declaration to the effect that they and their child (or the child of whom they have custody) are Jehovah’s Witnesses.
...
No schoolchild shall be exempted from taking part in other school activities, such as national events."
14. The relevant Articles of Presidential Decree no. 104/1979 of 29 January and 7 February 1979 are the following:
"1. The behaviour of pupils inside and outside the school shall constitute their conduct, irrespective of the manner – by act or by omission – in which they express it.
Pupils shall be required to conduct themselves suitably, that is to say in accordance with the rules governing school life and the moral principles governing the social context in which they live, and any act or omission in contravention of the rules and principles in question shall be dealt with according to the procedures provided in the educational system and may, if necessary, give rise to the disciplinary measures provided in this decree."
The disciplinary measures laid down in Article 27 of the same decree are, in increasing order of severity, a warning, a reprimand, exclusion from lessons for an hour, suspension from school for up to five days and transfer to another school.
"Suspended pupils may remain at school during teaching hours and take part in various activities, under the responsibility of the headmaster."
15. Article 10 of the Constitution provides:
"Any person, or persons acting jointly, shall be entitled, subject to compliance with the laws of the State, to submit written petitions to the authorities. The latter shall be required to act as quickly as possible in accordance with the provisions in force and to give the petitioner a reasoned written reply in accordance with the statutory provisions."
Article 4 of Legislative Decree no. 796/1971 provides:
"Once the authorities have received the petition [provided for in Article 10 of the Constitution], they must reply in writing and give the petitioner all necessary explanations, within the time deemed absolutely necessary, which shall not exceed thirty days from service of the petition."
16. Article 95 of the Constitution is worded as follows:
"The following shall in principle lie within the jurisdiction of the Supreme Administrative Court:
(a) the setting aside, on application, of enforceable acts of the administrative authorities for misuse of authority or error of law.
..."
According to the settled case-law of the Supreme Administrative Court, "decisions of school authorities to impose on pupils the penalties provided in Article 27 of Presidential Decree no. 104/1979 are intended to maintain the necessary discipline within schools and contribute to their smooth running; they are internal measures which cannot be enforced through the courts, and no application lies to have them set aside by the courts" (judgments nos. 1820/1989, 1821/1989 and 1651/1990). Only transfer to another school has been held to be enforceable and amenable to being quashed by the Supreme Administrative Court (judgment no. 1821/1989).
17. Section 105 of the Introductory Law to the Civil Code provides:
"The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility."
This section establishes the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts (Kyriakopoulos, Interpretation of the Civil Code, section 105 of the Introductory Law to the Civil Code, no. 23; Filios, Contract, Special Part, volume 6, Tort, 1977, para. 48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima, 16th year, p. 75).
The admissibility of an action for damages is subject to one condition, namely the unlawfulness of the act or omission.
Article 57 of the Civil Code ("Personal rights") provides:
"Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries. In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded."
VIOLATED_ARTICLES: 13
9
P1
VIOLATED_PARAGRAPHS: P1-2
NON_VIOLATED_ARTICLES: 3
9


ITEMID: 001-93115
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GAVRYLYAK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1962 and lives in Lviv.
5. The applicant owns 99% of shares in a limited liability company “Sykhiv” (“the Sykhiv company”) and is the sole owner of a private company “Sykhiv-MB” (“the Sykhiv-MB company”).
6. In February 1997 the “Ukrsotsbank” bank (“the U. bank”) granted the Sykhiv-MB company a sum in credit that had to be paid back within a year. The credit was secured by the company’s real estate.
7. In September 1997 the “Prominvestbank” (“the P. bank”), granted credit to the Sykhiv company, also with the latter’s property as security. The criminal proceedings against the applicant would later establish that this contract was provided on the basis of fictitious transactions and in fact was aimed at raising funds for repayment of the Sykhiv-MB company’s debt vis-à-vis the U. bank (see paragraph 11 below).
8. In October-November 1997, according to the applicant, the State Tax Administration and the police seized certain financial documents of both the Sykhiv and Sykhiv-MB companies.
9. The Sykhiv-MB company failed to pay back the debt owed to the U. bank in a timely manner. Therefore, in March 1998 the notary who had certified the pledge contract securing the credit issued a writ of execution for the sale of the pledged property. In May 1998 the Galytskyy District Court of Lviv (“the Galytskyy court”) ordered the seizure of that property, which in June 1998 was sold at a public auction.
10. On 18 March 1997 the Lychakivskyy District Department of the Ministry of the Interior in Lviv opened a criminal investigation against the applicant on suspicion of embezzlement of State (or collective) property. On 9 May 1997 the proceedings were discontinued as the action in question had ceased to be a criminal offence.
11. On 12 February 1999 the Lviv Regional Prosecutor opened a new criminal investigation against the applicant on a charge of financial fraud. He was suspected of having provided a bank with false information regarding his company’s financial situation in order to obtain credit, which had allegedly caused considerable damage to the bank.
12. The parties’ versions of events during this period varied.
13. According to the applicant, he was not aware of the investigation opened against him on 12 February 1999 until August 2003. He alleged, however, that in early May 2000 he had discovered from a letter of the Lviv Regional State Administration that a criminal investigation against him on a financial fraud charge had been opened on 24 February 1999 and subsequently discontinued on 15 October 1999. This was not disputed by the Government.
14. In May-July 2000 the applicant complained to the Lviv Town Prosecutor, Regional Prosecutor and Prosecutor General that the criminal investigation against him had been improper, and that he had not been informed of the grounds for its opening and closure, nor had been involved in any investigative activities. The outcome of the applicant’s complaints is unknown.
15. According to the Government (see also paragraph 13 above), following the opening of the criminal investigation on 12 February 1999, he was summoned several times by the investigating officer for questioning, but failed to appear.
16. According to the documents submitted by the Government, on 29 May 1999 the “criminal case against the applicant on a charge of fraud ... [was] ... stayed pending identification of the persons who had committed the crime”; in August-December 2000 the investigator issued three warrants to the police to ensure the applicant’s appearance for questioning as a witness; and on 12 March 2001 the investigator issued another warrant for the applicant’s obligatory appearance, but that time as an accused.
17. On 14 March 2001 the investigator found the applicant to be absconding and put him on a wanted list.
18. The Government submitted that the preliminary investigation was stayed four times pending establishment of the applicant’s whereabouts. The applicant maintained that he had been permanently staying at his ordinary residential address at which he had not received any summons. In support of that argument he referred to the fact that in May 2000 he had filed a number of complaints with the prosecution authorities, some of those in the course of his personal meetings with their officials.
19. On 12 June 2003 the Galytskyy court authorised a search of the applicant’s dwelling.
20. On 5 August 2003 the police apprehended the applicant and conducted a search in his flat. As a preventive measure pending trial, he was placed under an undertaking not to abscond.
21. On 17 November 2003 the applicant was notified about completion of the pre-trial investigation and was provided with access to the case file.
22. On 24 November 2003 he was officially indicted and his case file was sent to the court.
23. On 8 December 2003 the Galytskyy court held a preliminary hearing. On 19 December 2003 the next hearing was adjourned owing to the applicant’s and the witnesses’ failure to appear.
24. On 19 January 2004 the applicant sought the withdrawal of the bench dealing with his case.
25. On 21 January 2004 the hearing was adjourned pending a decision on that matter. The case was referred to the Sykhivskyy District Court of Lviv (“the Sykhivskyy court”), which held a preliminary hearing on 1 March 2004. Another eleven hearings then followed. There were some seven adjournments, including three because of failures on the part of the witnesses and the prosecutor to appear and one because the judge was ill. Another adjournment was caused by a motion of the applicant on the summoning of witnesses.
26. On 20 May 2005 the Sykhivskyy court ruled that the case be returned for additional investigation, having found that the one already conducted had been flawed and superficial. Both the prosecutor and the applicant appealed: the former held that the case file already contained conclusive evidence of the applicant’s guilt, while the applicant maintained that he was clearly innocent and that no further investigation was required. On 11 October 2005 the Lviv Regional Court of Appeal upheld the above ruling in the main. On 26 January 2006 the Supreme Court rejected as unsubstantiated the applicant’s request for leave to appeal in cassation.
27. According to the Government, in December 2005 and later on in April-September 2006, the investigation was stayed five times on account of the applicant’s illness. The applicant denied this.
28. In March 2006 the applicant complained to the Regional Prosecutor about a lack of any visible progress in the additional investigation ordered by the court. In response, he was informed that the investigating officer in charge had been disciplined for some procedural violations.
29. On 29 August 2006 a warrant was issued for seizure from the bank of certain classified financial documents relevant for the investigation, and in September 2006 the seizure took place.
30. On 30 August 2006 the investigator issued a ruling on finding the whereabouts of some witnesses.
31. On 19 October 2006 the applicant was notified about the completion of the pre-trial investigation and was provided with access to the case file.
32. On 30 October 2006 the case was referred to the Galytskyy court.
33. On 10 November 2006 the court held a preliminary hearing, for which the applicant and the plaintiff failed to appear.
34. The case was subsequently referred to the Sykhivskyy court, which held some ten hearings. According to the information provided by the Government, there were nine adjournments: three owing to the prosecutor’s failure to appear, three caused by the applicant’s motions, and three for other reasons. The applicant submitted that the prosecutor had failed to appear for hearings more than ten times.
35. On 17 April 2008 the applicant unsuccessfully sought the withdrawal of the bench of the Sykhivskyy court.
36. On 18 April 2008 he also unsuccessfully complained about the bench of the Regional Court of Appeal before the Supreme Court, alleging that it had been involved in a “robbery” against him.
37. On 22 April 2008 the Sykhivskyy court found the applicant guilty of financial fraud and sentenced him to two years’ imprisonment and to a one-year disqualification from holding certain administrative and commercial positions. He was, however, released from serving the sentence under the statute of limitations. The court also found unsubstantiated the prosecution’s statement about the applicant’s absconding during the pre-trial investigation, having noted that he had been addressing various authorities with complaints during that time and that there were thus no reasons to consider him to have been avoiding the investigation.
38. On 30 April 2008 the applicant challenged the verdict by a complaint, which he considered to be a cassation appeal, while the Court of Appeal regarded it as an ordinary appeal. As the applicant insisted that it was a cassation appeal to be considered by the Supreme Court, on 8 July 2008 the Court of Appeal ruled to leave it without consideration.
39. On 26 February 2009 the Supreme Court rejected the applicant’s request for leave to appeal in cassation as unsubstantiated.
40. In July 1998 the Sykhiv-MB company lodged a claim with the Lviv Regional Arbitration Court against the U. bank, seeking the return of part of its property allegedly in excess of the collected debt (see paragraph 9 above).
41. In August 2002 the company made some modifications to its claims.
42. On 26 September 2002 the Regional Commercial Court ruled to discontinue the proceedings, having found the modified claims to be beyond the scope of the commercial procedure.
43. On 14 October 2002 the Lviv Commercial Court of Appeal rejected the company’s request for leave to appeal on account of procedural flaws which had not been rectified.
44. On 14 January 2003 the Higher Commercial Court ruled that the company’s cassation appeal be left without consideration for having been lodged out of time.
45. On 10 April 2003 the Supreme Court rejected the company’s request for leave to appeal in cassation as unsubstantiated.
46. The Sykhiv-MB company complained to the Galytskyy court about the bailiff in charge of the auction at which its property had been sold.
47. On 4 March 1999 the court ruled to leave that complaint without consideration, having found that it had to be considered within a contentious civil procedure, which the company could initiate by lodging an appropriate claim. On 29 March 1999 the Lviv Regional Court upheld the above ruling. Apparently, the Sykhiv-MB company did not lodge such a claim.
48. On 26 July 2004 the applicant’s father died. In a judgment of 27 August 2004 the Rogatyn Town Court recognised the entitlement of the applicant’s brother D. to a house bequeathed to him by his – and the applicant’s – deceased father.
49. On 14 September 2004 the applicant requested the court to review the above judgment under newly discovered circumstances.
50. On 17 November 2004 the court found against the applicant.
51. On 8 February 2005 the Ivano-Frankivsk Regional Court of Appeal upheld the judgment.
52. The applicant lodged an appeal in cassation which apparently remains undecided.
53. The applicant complained several times to the police and prosecution authorities about arson attempts on his flat, threats to his and his family’s life by “state officials”, alleged misconduct of the police during his apprehension in August 2003, and the fact that he had been “robbed” by the court which had passed the judgment against him.
VIOLATED_ARTICLES: 6


ITEMID: 001-91128
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SUN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1949 and lives in Khabarovsk.
6. In 2001 the applicant, a salesman by occupation, decided to go to China to purchase merchandise.
7. On 30 July 2001 the applicant arrived at the Khabarovsk International Seaport. The customs found on him 72,300 United States dollars (USD) and 760 Chinese yuan (CNY) in cash which he had not reported in his customs declaration. The applicant was charged with attempted smuggling of foreign currency, a criminal offence under Articles 30 § 3 and 188 § 1 of the Criminal Code. The money was appended to the criminal case as physical evidence (вещественные доказательства).
8. On 6 November 2001 the Tsentralniy District Court of Khabarovsk found the applicant guilty as charged and imposed a suspended sentence of two years’ imprisonment conditional on one year’s probation. As regards the money, the court held that:
“Physical evidence – USD 72,300 and CNY 760 taken from Mr Sun Huan Xin – shall be confiscated by the State ...”
9. In his statement of appeal, counsel for the applicant argued that the confiscation measure had no basis in domestic law because the offence of smuggling did not carry such a penalty. She asked that the money be returned to the applicant as the lawful owner.
10. On 29 January 2002 the Khabarovsk Regional Court upheld the conviction on appeal. As regards the money, the Regional Court held as follows:
“Pursuant to Article 86 (4) of the RSFSR Code of Criminal Procedure, criminally acquired money and other valuables shall be confiscated by the State after conviction.
It appears from the case materials that Mr Sun Huan Xin did not report USD 72,300 and CNY 760 in his customs declaration when crossing the customs border of the Russian Federation. Since that moment, the above-mentioned valuables have become criminally acquired by Mr Sun Huan Xin and, pursuant to Article 86 (4) of the RSFSR Code of Criminal Procedure, should be confiscated by the State after conviction.”
11. On 2 March 2006 the first deputy prosecutor of the Khabarovsk Region lodged an application for supervisory review of the applicant’s conviction. He submitted as follows:
“It was established during the trial that the money which Mr Sun Huan Xin omitted to declare... USD 6,100 were his personal property, whereas the remainder was the money destined to pay for the merchandise he had intended to buy in China. Thus, the court did not adduce any evidence showing that the seized foreign currency had been criminally acquired. In these circumstances, the physical evidence – USD 72,300 and CNY 760 – must be returned to the lawful owner, Mr Sun Huan Xin. Moreover, the first-instance and appeal judgments contradict the requirements of Article 1 of Protocol No. 1 ...”
12. On 5 June 2006 the Presidium of the Khabarovsk Regional Court rejected the prosecutor’s application. In a succinct decision it held, without further details, that “the convict’s acts had been correctly characterised” and that “the penalty had been determined in accordance with the requirements of the law”. It did not address in substance the issue raised in the prosecutor’s application. Finally, noting that Article 188 of the Criminal Code did not provide for confiscation, the Regional Court considered it necessary to amend the first-instance and appeal judgments to read “reverted to the profit [of the State]” instead of “confiscated [by the State]”.
13. The Criminal Code of the Russian Federation provides that smuggling, that is movement of large amounts of goods or other objects across the customs border of the Russian Federation, committed by concealing such goods from the customs or combined with non-declaration or inaccurate declaration of such goods, carries a penal sanction of up to five years’ imprisonment (Article 188 § 1).
14. The RSFSR Code of Criminal Procedure of the Russian Federation (“CCrP”, in force at the material time) provided as follows:
“The judgment, interim decision or decision on discontinuation of proceedings must deal with the destiny of physical evidence in the following manner:
(1) instruments of the crime belonging to the accused are liable to confiscation, transfer to competent authorities or destruction;
(2) objects banned from circulation must be transferred to competent authorities or destroyed;
(3) unusable objects of no value must be destroyed...;
(4) criminally acquired money and other valuables must revert to the State by a judicial decision; any other objects must be returned to their lawful owners or, if the identity of the owner cannot be established, transferred to the State...
(5) documents must be kept with the case file...”
15. The Resolution of the Plenary Supreme Court of the USSR “On judicial practice regarding the offence of smuggling” (no. 2 of 3 February 1978) provided as follows:
“7. In accordance with the current legislation, the objects of smuggling are liable to confiscation to the State as physical evidence. Vehicles and other means of transport are also liable to confiscation as instruments of the crime provided that they were equipped with special hiding places for concealing goods or other valuables...”
16. The Resolution of the Plenary Supreme Court of the USSR “On confiscation of the instruments of the offence that were recognised as physical evidence in the case” (no. 19 of 16 August 1984) provided as follows:
“Having regard to the questions relating to the possibility of applying Article 86 § 1 of the RSFSR Code of Criminal Procedure... in cases of negligent criminal offences, the Plenary USSR Supreme Court resolves -
- to clarify that the objects belonging to the convict and declared to be physical evidence may be confiscated on the basis of Article 86 (1) of the RSFSR Code of Criminal Procedure... only if the convict or his accomplices deliberately used them as the instruments of the crime with a view to achieving a criminal result.”
17. The Presidium of the Supreme Court of the Russian Federation in the case of Prosecutor General v. Petrenko (decision no. 446p98pr of 10 June 1998) granted the prosecution’s appeal against the judgment, by which Mr Petrenko had been found guilty of smuggling foreign currency but the money had been returned to him on the ground that Article 188 of the Criminal Code did not provide for confiscation as a penal sanction. The Presidium held as follows:
“Confiscation of property as a penal sanction must be distinguished from confiscation of smuggled objects which were recognised as physical evidence. These issues must be addressed separately in the judgment...
In the meaning of [Article 86 (1) of the RSFSR Code of Criminal Procedure] and also Article 83 of the CCrP, an instrument of the offence is any object which has been used for accomplishing publicly dangerous actions, irrespective of the main purpose of the object. Accordingly, the notion of an instrument of the offence comprises the object of the offence.
A mandatory element of a criminal offence under Article 188 of the Criminal Code is an object of smuggling that is being illegally transported across the customs border... The court found Mr Petrenko guilty of [attempted smuggling], noting that the US dollars were the object of the offence. Accordingly, it was required to decide on the destiny of physical evidence in accordance with Article 86 § 1 of the CCrP – that is, according to the rules on the instruments of the offence – but failed to do so.”