Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1985 and lives in Sokołów Podlaski.

On 8 April 2009 the applicant was arrested and remanded in custody. He was charged with, inter alia, murder, attempted murder, and illegal possession of firearms.

On 2 December 2011 the Ostrołęka Regional Court convicted the applicant of battery and attempted murder and sentenced him to twelve years’ imprisonment.

On 25 October 2012 the Białystok Court of Appeal upheld the firstinstance judgment.

On 8 November 2013 the Supreme Court dismissed the applicant’s cassation appeal.

On 10 April 2009 the Czerwony Bór Prison Penitentiary Commission (“the commission”) classified the applicant as a “dangerous detainee”. It considered that it was necessary to place him in a cell for dangerous detainees as he had been charged with murder committed with the use of firearms. The commission referred to the applicant’s “personal circumstances and serious lack of moral character”. The applicant did not appeal against the decision.

Between 7 July 2009 and 7 January 2010, the commission reviewed its decision every three months. In renewing its decision to classify the applicant as a “dangerous detainee”, the commission reiterated the same reasoning, which read as follows:

“His characteristics, personal circumstances, serious lack of moral character and [the fact of] being charged with offences committed with the use of a firearm, pose a serious danger to society and to the security of the remand centre.”

The reasoning given on 5 April, 30 June and 30 September 2011 differed slightly in that gave a detailed description of the offences with which the applicant had been charged as the grounds for extending the regime. The commission referred to the offences of murder and three attempts to commit murder with the use of a firearm.

The applicant lodged an appeal against the decision of 30 September 2011.

On 13 December 2011 the Białystok Regional Court dismissed the applicant’s appeal, holding that the decision had been lawful.

On 29 December 2011 the commission extended the application of the “dangerous detainee” regime to the applicant for the eleventh time. The reasoning given was the same as in the decisions of 2009.

On 29 March 2012 the commission lifted the “dangerous detainee” regime in respect of the applicant. It considered that, on the basis of the relevant documentation and the assessment of the applicant’s behaviour, he no longer posed a danger to society or to the security of the remand centre.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1994 and lives in Bidovce. He is of Romani origin.

At about 7 p.m. on 18 December 2010 a twelve-year old boy was mugged and his mobile phone taken from him while he was walking along a road between two villages in southeastern Slovakia. The perpetrators of the mugging were not known to him.

The boy and his parents subsequently reported the incident to the local county police.

In response, a police unit consisting of three officers searched the area surrounding the crime scene with the boy and his father.

At around 8 p.m. they spotted the applicant, who was then aged sixteen, another minor and a third person, all of whom the boy identified as his assailants.

The applicant and his two associates, both of whom were also of Romani origin, were arrested. The parties dispute the circumstances of the arrest.

The Government relied on entries in the county police logbook for the relevant night and on a note on the record drawn up by the county police dated 18 December 2010 indicating that the suspects had resisted arrest and attempted to flee. They had consequently had to be subdued, no injuries had been sustained, and the use of force by the arresting officers had been found lawful. That material referred to the measures of restraint used against the applicant and the other two suspects as “self-defence mechanisms for holding and grabbing”. The applicant, for his part, denied that he had shown any resistance or that the police had used any measures of restraint.

The applicant and his companions were then taken to the county police station. According to the results of a breathalyser test carried out there, all three detainees had consumed alcohol and the applicant was in a state of slight inebriation.

The three suspects were kept at the police station and preliminarily questioned (vyťažení) by officers from the county police. As to the rooms in which they were kept, these were used as offices, were fitted out with the usual office equipment and were not furnished as detention cells.

The applicant’s and the Government’s accounts in relation to further details vary as follows.

According to the applicant, during the probing, the officers subjected him to psychological pressure and physical violence with a view to obtaining his confession. In particular, he was slapped and punched in the head, was not allowed to sit or lie down or to rest during the entire length of his detention, and was not provided any food or drink.

In the Government’s submission, there had been no ill-treatment, the three suspects were kept in separate rooms and were checked on at fifteenminute intervals. The applicant was allowed to use the toilet, which was equipped with a washbasin with drinkable tap water.

The Public Prosecution Service (“the PPS”) was informed of the arrest and, at 11.10 p.m. the case file, along with the responsibility for the detention of the young men, was passed on to an investigator from the local district police.

Meanwhile or in parallel, the victim was examined by a doctor, his mother orally submitted a criminal complaint, and the crime scene was inspected.

In the early hours of 19 December 2010 the applicant and his two co-detainees were charged with robbery and the investigator decided to place them in a facility for provisional detention. However, the decision was not implemented as no room was available in such a facility within a reasonable distance.

Subsequently, a legal-aid lawyer was appointed for the applicant and a copy of the document containing the charges was sent to, inter alia, the child protection services.

Between 12 noon and 1 p.m. on 19 December 2010 the applicant was brought before the investigator, who interviewed him in the presence of his mother and the lawyer. No mention was made of any illtreatment.

At 1.50 p.m. the applicant was placed in a provisional detention cell as documented by a protocol, which cites him as submitting in response to a pre-printed question that had not been subjected to any violence. The relevant documentation further contains a hand-written note with the applicant’s signature indicating that “[he] ha[d] received dinner”. According to the Government, the cell was equipped with, inter alia, a washbasin and drinkable water from the tap.

At 6.05 p.m. the applicant and his co-detainees were released, and the police took them home.

When the applicant’s mother appeared before the investigator on 20 December 2010 she decided to avail herself of her right not to give evidence, making no mention of any ill-treatment.

On 21 December 2010, acting through the intermediary of his lawyer, the applicant lodged an interlocutory appeal against the charge, arguing that he himself had not been involved in the mugging, which had been perpetrated by his minor associate alone and to which the latter had confessed. There was no mention of any ill-treatment.

On 12 January 2010 the charge against the applicant was withdrawn.

In the applicant’s submission, meanwhile, in the days that followed his release, his mother presented herself at the county police station and contacted the Ministry of the Interior by telephone to complain about the treatment to which her son had been subjected while detained. According to the applicant, her complaint was not registered and she was orally advised to submit it in written form.

According to the Government, however, the heads of the county police and the district police, who were the only persons entitled to receive complaints in matters such as those obtaining in the present case, did not receive any complaint from the applicant’s mother. Similarly, there was no mention of a visit or any communication from her in the records of visits and telephone calls received by the county police or in the operational logbook of the district police.

On 5 January 2011 the applicant and his associates lodged a written criminal complaint with the Ministry of the Interior.

They directed it against the officers of the county police who had been on duty between 7 p.m. on 18 December 2010 and 10 a.m. on 19 December 2010, suggesting that the offence of abuse of authority of a public official could have been committed.

In particular, they submitted that, while in police custody, each of them separately had been pressured to confess on the pretext that the others had already confessed. The applicant also submitted that he had been subjected to slapping in the face and on the head until he had confessed. The persons inflicting that treatment had worn uniforms. Although the applicant did not know their identity, he would certainly recognise them. Another person had been present, not wearing a uniform, presumably a relative of the boy who had been robbed.

Throughout the entire time in police custody, the applicant had had to stand, without being allowed to sit or lie down, and he had not been given any food or water.

Moreover, in the applicant’s submission, his legal guardians had not been notified of his custody, let alone been present.

The applicant submitted a medical report dated 19 December 2010. The doctor who issued the report observed that the applicant had “allege[d] that he had been beaten by police officers the day before” and “had received a slap on the right half of a cheek”. In reply to a printed question about whether the injury could have been sustained as alleged, the reply “yes” was given. The doctor further observed that there was no haematoma and that the cheek was sensitive and slightly swollen. He diagnosed “a bruised cheek on the left” and classified the injury as slight, with recovery time below seven days.

The criminal complaint was sent to the local Control and Inspection Section (“the CIS”) of the Ministry of the Interior for examination. Subsequently, the part of the complaint concerning the failure to notify the applicant’s legal guardians of his arrest and detention, to provide him with food and water during his detention, and to hear him immediately after his arrest was sent to the district police (see paragraph 29 below).

In examining the complaint concerning the alleged physical mistreatment, the CIS interviewed the applicant and his associates, as well as the investigator and two officers under suspicion. In addition, it examined the case file concerning the investigation into the alleged robbery and other documentary material.

On 9 March 2011 the CIS dismissed the complaint. In doing so it observed that the applicant had not raised any complaint of ill-treatment during his interview with the investigator on 19 December 2010, and held that this could not be explained by his proclaimed fear of the officers involved since, in that interview, the applicant had been assisted by his mother and lawyer (see paragraph 15 above).

The CIS observed that in his oral depositions, the applicant had claimed that he had been beaten at the county police station for about three hours and that he had sustained bruises and a swollen cheek. However, those allegations of sustained beating and its consequences did not correspond to the findings in the doctor’s report of 19 December 2010, which only attest to an allegation of having received a slap on the right cheek and to having a swollen cheek, but no haematoma.

The CIS also noted that in the investigation file concerning the alleged robbery there was no indication of any ill-treatment. It observed that the applicant’s injury could have been inflicted in the course of his arrest, which he had resisted and which accordingly had had to be carried out forcefully.

In addition, the CIS observed that the police officers in question had not been involved in the investigation of the alleged robbery, but had merely been guarding the applicant. Consequently, they had had no reason to pressure him into confessing.

The applicant challenged the decision of 9 March 2011 by lodging an interlocutory appeal with the PPS. He requested twice that a decision by the PPS to dismiss the appeal be reviewed.

The applicant argued in particular that he had not resisted his arrest and that, accordingly, no physical force had been used in the course of it. His injury could therefore not be explained as the CIS had done. He had not complained of the ill-treatment before the investigator because nobody had asked him about it and because he had been concerned about possible repercussions.

The applicant further argued that the fact that there was no mention of the ill-treatment in the investigation file was irrelevant. In fact, it was logical, because the officers involved would naturally not mention their misconduct and would deny it. That incongruity and contradiction of the arguments had not been examined.

According to the applicant, a “racial motive was not excluded” and the treatment to which he had been subjected had been contrary to Article 3 of the Convention.

The interlocutory appeal and the requests for review were eventually dismissed by the Office of the Prosecutor General (“the OPG”), which communicated its decision to the applicant in a letter of 29 September 2011.

The PPS fully endorsed the findings of CIS, considering as crucial the fact that before the doctor on 19 December 2010 the applicant had only alleged slapping, that the doctor’s observations on the applicant’s injury did not correspond to the applicant’s subsequent allegation of sustained beating, and that the applicant had not raised any ill-treatment allegation with the investigator on 19 December 2010.

Without any explanation, the PPS also concluded that there was no indication of any racial motive behind the treatment complained of by the applicant.

As to the part of the applicant’s criminal complaint concerning the alleged failure to notify his legal guardians of his arrest and detention, to provide him with food and water during his detention, and to hear him immediately after his arrest (see paragraph 24 above), the district police informed the applicant in a letter of 8 June 2011, without any explanation at all, that “in the investigation of the given matter, no error had been committed by the investigative organs”.

On 2 December 2011 the applicant lodged a complaint, under Article 127 of the Constitution, with the Constitutional Court against the OPG and the Regional Office of the PPS involved in his case.

He emphasised that at the time of his arrest he had been a minor, that he had been kept at the police station the whole night without being able to sit or lie down, and without being given any food or water, and that he had been subjected to psychological pressure and physical violence with a view to forcing him to confess. He considered that such treatment had been in breach of his rights under Article 3 of the Convention, as was the ensuing investigation into his complaints on account of its lack of efficiency and independence, as well as the authorities’ failure to act on their own initiative.

The applicant also alleged that the lack of a proper investigation had been aggravated by the lack of an effective remedy and discrimination, contrary to his rights under Articles 13 and 14 of the Convention.

On the last point, the applicant argued that there had been many known incidents of police violence against the Roma in the course of arrest and detention in Slovakia, and that his treatment by the police had been influenced by his Romani origin.

On 10 April 2012 the Constitutional Court rejected the complaint as manifestly ill-founded. It observed that the applicant had no legal right to have a third person criminally prosecuted, that his right to lodge a criminal complaint merely implied that he had the right “to have the complaint dealt with by a body authorised to do so”, and that it had thus been dealt with. It further observed that the applicant had not complained of his alleged ill-treatment before the investigator on 19 December 2010 or in his interlocutory appeal against the charge (see paragraphs 15 and 19 above). The fact that he had had those means of asserting his rights at his disposal excluded the jurisdiction of the Constitutional Court. It concluded without further explanation that, in the circumstances, neither the proceedings before the PPS nor their decisions could have violated the applicant’s rights as identified in his constitutional complaint.

The decision was served on the applicant on 25 April 2012.


CASE OF VIKENTIJEVIK v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in 1941 and lives in Skopje.

On 27 September 1945 V.D.M., the applicant’s late grandfather, together with other individuals, A.J., T.K. and L.L., members of the Executive Board of company T. (“the company”), were convicted of offences against the people and the State since they had put the company T. at the disposal of the enemy forces (during the Second World War). They were all sentenced to a suspended prison term with forced labour. The court also ordered full confiscation of the company’s property.

On 9 January 1946 the then Skopje People’s District Court confiscated the company’s immovable property (including residential apartments for workers (работнички станови)) and various items of movable property, which were specified in detail in the decision (“the confiscation order”). The total surface area of the confiscated buildings was 3,496 square metres. Some 60,549 sq. m of land was also subject to confiscation. The confiscated property was to be transferred to the State. The confiscation order referred to V.D.M., A.J., T.K. and L.L., as “convicted shareholders” who had actual possession (фактичка сопственост) of the company.

On 29 December 1995 the company decided to restructure itself in accordance with the Law for Reorganisation of Companies with Business Losses (“the Company Restructuring (Business Losses) Act”).

On the basis of that decision and at the request of the applicant, who was seeking that the property be retained for restitution, on 18 October 1996 the company entered into a contract (“the 1996 contract”) with the State, represented by the Privatisation Agency, transferring to it the title to specific named buildings (which did not include the residential apartments), the total surface area of which was 1,240 sq. m. It further transferred into the State’s possession preference shares (приоритетни акции), the value of which was 2,158,831 German marks (DEM) (“the shares”).

Thereafter, on 28 December 1999 the Skopje Court of First Instance (“the first-instance court”), on the applicant’s request, overturned the 1945 judgment in respect of his late grandfather concerning the confiscation of the company’s property. This judgment became final on 31 January 2000.

In a judgment of 6 July 2000, which became final on 10 July 2000, the first-instance court declared the applicant heir to the right to claim restitution (наследник на правото на денационализација) in respect of the property of his late grandfather (V.D.M.). Referring to the 1945 judgment, the confiscation order and the judgment of December 1999 (see paragraphs 6, 7 and 10 above), the inheritance order also concerned the applicant’s right to claim “restoration of possession and payment of compensation” in respect of the company’s immovable and movable property.

On 14 August 2000 the applicant instituted restitution proceedings. The parties did not submit a copy of the restitution claim.

On 13 September 2000 the Ministry of Finance, represented by two officials, drew up a report concerning an on-site inspection carried out on 12 September 2000. According to the report, which was typed on a computer, V.D.M., A.J., T.K. and L.L. had been the company’s shareholders. The land was in the company’s possession. In 1959 the land in question was divided into two plots, which included buildings with a total surface area of 3,377 sq. m. The entry in the new Land Register indicated that the total surface area of the buildings constructed on the land was 34,617 sq. m. The report further stated that only some of the buildings specified in the confiscation order, including the residential apartments, were still on the land.

On 15 September 2000 the Restitution Commission of the Ministry of Finance accepted the applicant’s restitution claim and decided 1) to restore to his possession the buildings specified in the 1996 contract (see paragraph 9 above) and the residential apartments and adjacent buildings (694 sq. m), together with the land underneath, as well as the land described as a courtyard (двор), a total surface area of 60,549 sq. m; 2) to transfer into his possession the preference shares specified in the 1996 contract as compensation for the movable property of the company; and 3) to transfer into his possession State-owned shares in company P. as compensation (the equivalent to approximately 51,400 euros (EUR) for land underneath) for other objects (1,561 sq. m). As stated in the order, the Restitution Commission, assisted by an expert, had carried out an on-site inspection and established that the total surface area of all confiscated buildings at the time of confiscation, was 3,496 sq. m.

The restitution order indicates that the applicant’s restitution claim, together with the complete case file, was communicated to the Solicitor General (Јавен Правобранител) (see paragraph 48 below) , who submitted in reply that “there was no statutory provision requiring him or her to comment on the matter” (не бил законски обврзан да се изјасни по барањето). As is evident from a letter of 21 March 2003 from the Ministry of Finance included in the case file, the restitution order was served on the Solicitor General. No appeal having been submitted, the restitution order became final on 13 October 2000.

On 13 February 2001 the Restitution Commission rectified the restitution order under sub-heading 3), stating that the applicant would receive State-owned shares in company Z.L. (“the rectifying decision”).

Between 21 February and 27 March 2001, the State authorities 1) transferred to the applicant title to the company’s preference shares (which represented 7.84% of the company’s share capital (основна главнина)), and buildings specified in the 1996 contract (on the basis of two separate contracts concluded between the Privatisation Agency and the applicant), and 2) registered him as the owner of the buildings and the land. According to an extract from the land registry dated 25 October 2006, the applicant had title to 62,755 sq. m. The applicant was recorded in the company’s shareholder book (акционерска книга), as well as in the Central Securities Depositary (Централен Депозитар за хартии од вредност), as a shareholder in company T. and company I.G. (apparently instead of company Z.L.) The Privatisation Agency requested that company T. allow the applicant to obtain actual possession (владение) of the immovable property.

On 29 November 2003 an expert commission of the Ministry of Finance carried out an on-site inspection and established that the land in question could not be returned to the applicant, since it served the existing buildings (company property and the residential apartments).

On 8 December 2003 the applicant requested that the Ministry of Finance enforce the restitution order and asked that the company transfer the “land and buildings” into his actual possession. On 15 January 2004 he repeated his request for enforcement. On 22 April 2004 the Ombudsman also recommended that the Ministry of Finance enforce the restitution order and transfer the land into the applicant’s actual possession.

On 21 January 2004 a Coordinating Commission in the Ministry of Finance, having been approached by a group of citizens residing in the apartments located on the land in question, noted that there had been “certain irregularities” in the restitution proceedings, and requested that the Government Appeal Commission (“the Commission”) review the restitution order under the Administrative Proceedings Act. On 22 October 2004 the Commission found no grounds to rescind the restitution order within its powers of supervisory review (укинување по право на надзор). It also stated that the Coordinating Commission should submit the case file to the Restitution Commission, which had the authority to quash the restitution order of its own motion provided the statutory requirements had been met.

On 1 December 2004 the Solicitor General requested, under section 267 § 1 (3) and (5) of the Administrative Proceedings Act (see paragraph 44 below), that the Commission declare the restitution order and the rectifying decision null and void (барање за огласување ништовно). He submitted that the applicant had been awarded full restitution of the entire property of the company, despite the fact that, as specified in the confiscation order of 1946, the company had been jointly owned by several persons. Furthermore, the buildings restored to the applicant were not the same in terms of surface area and description as the buildings confiscated in 1946. The current value of the land now by far exceeded its value at the time of confiscation. Furthermore, the land had been developed in the meantime, and buildings with a total surface area of 34.064 sq. m had been constructed. Lastly, he maintained that the preference shares transferred into the applicant’s possession on the basis of the 1996 contract represented over half the value of the entire movable property of the company.

On 26 April 2006 the Commission granted the request, quashed the restitution order and the rectifying decision, and remitted the case for re-examination. It ordered the Land Registry and the Central Securities Depositary to amend their records accordingly. It held that the Solicitor General, in what was a manifest omission (очигледен пропуст), had not appealed against the impugned decisions in the ordinary proceedings “despite their apparent unlawfulness”. Referring to the confiscation order of 1946, the Commission stated:

“... V.D.M., A.J., T.K. and L.L. were the former owners of the confiscated property of [the company].

... it is not in doubt that [the applicant] is the heir only of V.D.M., thus of only a notional one-quarter of the confiscated property ...

This is sufficient (for the conclusion) that the first-instance commission violated the Restitution Act at the expense of the State, and that it follows that the [restitution order] is invalid.

As is evident from the expert report of 13 September 2000 (see paragraph 13 above), which was drawn up only two days before the restitution order, the confiscated property was not at all identical to the existing property, specifically the buildings confiscated in 1946, the total surface area of which was 3,496 sq. m, were supporting objects, while the current buildings, with a surface area of 34,617 sq. m, are modern and solid constructions. Furthermore, the confiscated buildings no longer exist, but completely different buildings, which are ten times bigger, were constructed instead. That was confirmed in the report of 29 November 2003 (see paragraph 18 above).

Furthermore, the land (60,549 sq. m) could not be the subject of restitution and it could not be returned under section 28 of the Restitution Act, since buildings (34,617 sq. m) belonging to the company T. had been constructed on that land. It is developed construction land with complete infrastructure, which serves the existing property ...

Lastly, the first-instance body wrongly applied sections 33, 34, 35 and 36 of the Restitution Act when it transferred into [the applicant’s] sole possession the entire package of reserved preference shares of all four former owners, actually their heirs, instead of only a notional one-quarter. As a result, the State sustained damages. Accordingly, [the restitution order] cannot be enforced, as specified under section 267 § 1 (3) of the Administrative Proceedings Act ...”

On 22 June 2006 the applicant lodged an administrative-dispute claim (тужба за управен спор) with the Supreme Court, in which he argued that the restitution order and the rectifying decision had already been enforced. They had been rendered in proceedings in which the Solicitor General had failed to lodge an ordinary appeal, although entitled to do so. The quashing of the order had been based on alleged errors in the facts, which could not serve as a ground for the extraordinary remedy used in his case. Furthermore, the Solicitor General had not been entitled to intervene in the proceedings in order to protect the interests of third parties. The applicant argued that the Commission, by quashing the relevant decisions over five years after they had been adopted, had violated the principle of legal certainty and irrevocability of final decisions. Lastly, he complained that the expert report of 13 September 2000, to which the Commission referred in the impugned decision, carried no stamp; it had not been drawn up on the form in use at the time; and the Restitution Commission had not quoted it in the restitution order of 15 September 2000. That raised doubts about the reliability of that document.

On 16 March 2007 the Supreme Court dismissed the applicant’s appeal. It stated that section 267 § 1 (3) of the Administrative Proceedings Act concerned both the factual (фактичка) and legal (правна) impossibility of enforcement. The restitution order and the rectifying decision were contrary to sections 13, 21 § 1 (1), 28 § 2, 33 and 36 of the Restitution Act (see paragraphs 31-38 below), and were accordingly legally unenforceable. The court further stated:

“... According to [the 1945 judgment], the confiscation concerned the convicted shareholders T.K., A.J. and L.L., who were (in addition to V.D.M.) the owners of [company T.]. Having regard to section 13 of the Restitution Act, [the applicant] applied as heir to the property of his legal predecessor, V.D.M. Consequently, he could inherit only V.D.M.’s share and not the entire property of [the company].

Having regard to the transcript of the hearing of 13 September 2000 ... the court finds that there has been a violation of section 21 of the Restitution Act, since it has not been established whether the value of the confiscated property has increased.

... there has been a violation of section 28 § 1 (2) of the Restitution Act, since land which has been developed and built upon (60,549 sq. m), as established on 29 November 2003 by a commission, has been restored [on the basis of the restitution order] to the possession of the applicant.

On the basis of the material in the case file it has been established beyond any doubt that the property subject to restitution had previously been owned by four persons, who were the shareholders. Consequently, there has been a violation of sections 33 and 36 of the Restitution Act, since the entire package of reserved preference shares for all four former shareholders was transferred to [the applicant’s] sole possession ...

... In the present case, the court underlines once more that there has been a violation of the imperative provisions of the Restitution Act, which made the enforcement of the final restitution order legally impossible, as specified under section 267 § 1 (3) of the Administrative Proceedings Act.

The court has examined [the applicant’s] allegations that there was a violation of the fundamental principle of finality of decisions in administrative proceedings, as well as that the impugned decision contained no reasons that could fall within the ambit of section 267 (of the Administrative Proceedings Act), but it considers them ill-founded. The Administrative Proceedings Act provides for the extraordinary remedy of declaring a decision null and void (section 267). [The Commission] is the competent body to decide, and the (impugned) decision clearly states that the decision was given under section 267 § 1 (3) of the Administrative Proceedings Act. Furthermore, the decision contains adequate reasoning.”

This judgment was served on the applicant on 11 May 2007.

On 3 July 2007 the public prosecutor found that there were no grounds to institute legality review proceedings (постапка по барање за заштита на законитоста) against the Supreme Court’s judgment.

On the basis of a request by the Restitution Commission, on 26 May 2008 an expert commission of the Ministry of Finance carried out an on-site inspection and found that construction of collective residential buildings had been planned under the town plan of May 2008 on the land in question. It further established that the part of the land on which roads, car parks and green space were planned could not be returned (не може да биде предмет на реално враќање). Over 42,600 sq. m of the land, the part on which construction of collective residential buildings was planned, could be restored.

On 7 December 2010 the Restitution Commission suspended the proceedings (прекинува) and instructed the applicant to institute, within fifteen days of service of that decision, separate civil proceedings in order to establish, as a preliminary question (претходно прашање), the amount of the share of V.D.M., his legal predecessor, in the company’s property. In the reasoning, it noted that on 9 May 2008 the applicant had submitted written evidence that T.K., A.J. and L.L. were not shareholders in the company. It also observed that five other requests for restitution of the company’s property had been submitted for consideration between 7 May 2003 and 15 May 2008. The claimants in those cases had provided documents indicating that their predecessors had been shareholders, dividing between them the entire property of the company.

The Government stated that most of the restitution claims concerning the property at issue which had been submitted by third parties had been dismissed.

On 22 December 2010 the applicant brought a civil action against T.K., A.J. and L.L., whose whereabouts were unknown, in which he sought to have the first-instance court declare V.D.M., his legal predecessor, the sole shareholder of the company. Those proceedings are still pending before the first-instance court.


CASE OF SULEJMANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in 1958 and lives in Tetovo.

On 12 April 2006, the applicant concluded a sales contract (купопродажен договор) with a Sh.A., for the purchase of a concrete mixing and transport lorry (“the vehicle”) for the equivalent of 5,000 euros (EUR) in Macedonian denars (MKD). On 15 May 2007 the applicant lent the vehicle to his company.

On 6 October 2008 the Ministry of the Interior temporarily seized the vehicle and its registration certificate (сообраќајна дозвола) from the applicant in order to examine the vehicle’s chassis (проверка на шасија). A record of temporarily seized objects (потврда за привремено одземени предмети) was issued.

On 1 February 2010 the Struga Court of First Instance (“the first-instance court”) acquitted Sh.A. of charges of forgery of a document (“фалсификување исправа“) concerning the vehicle’s chassis number and rejected an indictment brought by a public prosecutor against a certain I.S. The court found that during the trial it had not been established that Sh.A. had altered the vehicle’s chassis. In accordance with section 102(3) of the Criminal Proceedings Act (see paragraph 18 below), the court further advised the applicant, who had claimed compensation in the criminal proceedings, to pursue the claim by means of a separate civil action before the civil courts. On 21 July 2010 the judgment became final.

On 16 November 2010 the applicant requested that the first-instance court return the vehicle in his possession.

On 3 December 2010 the first-instance court heard evidence from the applicant, who stated that he had bought the vehicle from Sh.A. for EUR 25,000. He further stated that he could not have been aware at the time that the chassis number of the vehicle had been forged.

On 6 December 2010 the first-instance court, relying on Article 100a (3) of the Criminal Code (“the Code”, see paragraph 17 below), found that there were no grounds for confiscation of the applicant’s vehicle. The applicant had not known nor could he have known that the vehicle had been used to commit a crime. The court also ordered that the registration certificate be returned to the applicant.

Upon the public prosecutor’s appeal, on 24 January 2011 the Bitola Court of Appeal (“the appellate court”) quashed that decision. Relying on Article 100-a (2) of the Code, the appellate court found that the vehicle’s chassis had been forged and that the vehicle, in the interest of public safety, could not be declared roadworthy. It further referred to section 100-a (3) of the Code and instructed the first-instance court to assess whether the continued use of the vehicle would constitute a “use of a forged document” offence under the Code (употреба на фалсификувана јавна исправа, see paragraph 17 below).

On 22 February 2011 the first-instance court dismissed the applicant’s application and ordered the confiscation (се одземаат) of the vehicle and its registration certificate. It referred to Article 100-a (2) and (3) of the Code and found that the vehicle’s chassis number had been forged and that the vehicle could be used for committing an offence. For that reason and for the reasons of road safety, it was necessary to confiscate the vehicle and the registration certificate. It also referred to section 532(1) of the Criminal Proceedings Act (see paragraph 18 below) and found that, irrespective of the fact that there had been no proceedings against the applicant and that he was not an offender, it was necessary to confiscate the vehicle for general safety reasons.

On 11 March 2011 the applicant appealed arguing that the first-instance court had wrongly applied Article 100-a (2) and (3) of the Code and that he had not known that the vehicle had been used to commit a crime.

On 19 May 2011 the appellate court dismissed the appeal and upheld the first-instance court’s decision. The relevant part of the decision states as follows:

“[The arguments] raised in the appeals, [namely] that the first-instance court had not established the decisive facts concerning [the certitude] that the [applicant] had not known that the vehicle’s chassis had been forged, which was decisive, are groundless. Specifically, it is true that [the applicant] did not know that the vehicle’s chassis had been forged, as a result of which [he] registered the vehicle as its last buyer, [he was] issued a driving licence and [he] paid a large amount. However, [what is] primary under Article 100-a (2) of the [Criminal Code] is that the objects which were intended to [commit] an offence or were used to commit an offence shall be confiscated notwithstanding that they are not in the ownership of the offender or that they are in the ownership of a third person, if general safety, public health or ethics require so ...

The fact that [the applicant] did not know that the vehicle’s chassis had been forged does not signify that the conditions of Article 100-a(3) are met, but the first-instance court correctly found that the use of the vehicle with thus forged identification numbers would affect the safety of the road users in the State [безбедноста на јавниот сообраќај], and therefore also the general safety [интересите на општата безбедност].”

It appears that the latter decision was served on the applicant on 2 June 2011.


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1964 and lives in Nizhniy Novgorod.

In February 2008 a series of thefts from individual garages was committed in the Volodarskiy District of the Nizhniy Novgorod region. The Volodarskiy District police department (ОВД по Володарскому району) initiated a criminal investigation into the thefts.

During the night of 24 to 25 April 2008 police officers U. and K. from the Volodarskiy District police department were patrolling an area of Ilyinogorsk in which there was a garage cooperative where some of the thefts had been committed. At 2.30 a.m. they stopped the applicant, who had entered one of the garages.

According to the applicant, that night he had gone to Ilyinogorsk searching for abandoned scrap metal which he could then sell. He entered a garage, the door of which was allegedly open. He was then stopped by two police officers, who asked him to accompany them to a police station to check his identification documents. He explained that he had the documents with him and suggested that they check them right away. They insisted that he should go with them to the police station and he obeyed.

According to the reports of police officers U. and K. to the head of the Volodarskiy District police department of 25 April 2008 and their statements as witnesses to an investigator in the garage-thefts case of 26 April 2008, they were patrolling the garage cooperatives on the outskirts of Ilyinogorsk in order to detect persons involved in the garage thefts that had been committed previously. They heard metallic sounds and saw the applicant, who had opened and entered one of the garages. They apprehended him and took him to the Ilyinogorsk police station in order to check his identity and to establish whether he had been involved in the garage thefts. The applicant refused to accompany them to the police station, “swinging his arms” and trying to escape. Therefore they “used physical force” and handcuffs, in accordance with section 12 of the Police Act. At the Ilyinogorsk police station his identity was established and he was found to be in possession of homemade lock-picking tools.

According to the search record drawn up at the Ilyinogorsk police station, the police seized, in particular, six metal items made of screws which the applicant had on him.

According to the applicant, he was coerced by police officers into confessing to the garage thefts. He described his illtreatment as follows.

A police officer, who arrived after the applicant had been searched, took him to one of the offices and tied him up with a rope so that his head was between his legs while he was sitting on the floor with his legs crossed and his hands shackled behind his back. The police officer pressed on his back and legs. After about an hour of such treatment he was untied and placed in a cell for detainees.

About ten minutes later another police officer arrived and the applicant was taken to the same office and tied up again in the same way, with his hands shackled behind his back. The second police officer had a box with a handle and two wires, the last ten centimetres of which were bare. The police officers tied the wires to the applicant’s little fingers and the second police officer started rotating the handle. The applicant felt a sharp muscle contraction and screamed. The police officers gagged him. They took turns to rotate the handle. The wires kept falling off and the police officers had to attach them again and again. At some point they poured water over the applicant’s hands to exacerbate the electric shocks. The applicant lost consciousness several times. The electric shocks left burn wounds on his hands.

The police officers’ first names were O. and V. Based on information which the applicant received later, he deduced that those police officers were operational officers K.O. and S.V. from the criminal investigation unit of the Volodarskiy District police department.

At about 7.30 a.m. the applicant was placed back in the cell. At his request the officer on duty took him to a lavatory where he could hold his hands, which were swollen after the electric shocks, under cold water. He remained in the cell for several hours.

Then he was taken again to the same office, where he saw six police officers, each of whom asked him questions about the circumstances of different criminal cases. One of them kicked him in the chest and then punched him in the left ribs. That police officer took the applicant outside to participate in the examination of the applicant’s Gazelle truck conducted by a female investigator.

Thereafter the applicant was taken back inside the police station, where the police officers questioned him again, from time to time slapping him on the back of his head. When the applicant could no longer resist their pressure, they took him to some garages, where he acted in accordance with K.O.’s instructions, showing them the garages from which he had allegedly stolen certain property. That was recorded as an on-site verification of his statements.

The police officers took the applicant to the Justice of the Peace for an examination of an administrative charge against him (see paragraphs 19, 20 and 25 below). He confirmed before the judge that he had committed the administrative offence as alleged by the police. The police officers thereafter took him to the Volodarskiy District police department in Dzerzhinsk for questioning as a suspect in the garage-thefts case. The investigator gave him a readytosign record of his examination with his confession to the garage thefts, which he signed.

At 3 a.m. on 25 April 2008 the officer on duty at the Ilyinogorsk police station, K.S., drew up a record of the applicant’s administrative arrest. It stated that the applicant had been arrested in connection with his disobedience to police officers’ lawful demands, and that a visual examination of the applicant had not revealed any injuries. According to the record, the applicant requested that his wife be notified about the place of his detention. However, the section of the record indicating who was notified about the applicant’s place of detention, and when, was not filled in.

At 3.30 a.m. police officer U. drew up a record of the applicant’s administrative offence in which he described the circumstances of the applicant’s apprehension at 2.30 a.m. in the same way as in his report (see paragraph 9 above). He also stated that the applicant had used coarse language and had not reacted to his and his colleague’s demands to stop his disorderly behaviour. The record contains the applicant’s explanation that on his way to the police station he had only stopped once and had not tried to break away from the police officers or to escape.

From 12.45 p.m. to 2 p.m. a senior investigator, Ms M., of the investigation division of the Volodarskiy District police department carried out an examination of the applicant’s Gazelle truck in Ilyinogorsk.

From 2.10 p.m. to 3.20 p.m. in Ilyinogorsk investigator M. examined the applicant as a suspect in the presence of a lawyer on duty, Ya. According to the record of his examination, the applicant was suspected of having committed “thefts from garage cooperatives in Volodarsk, Ilyinogorsk and Mulino”. He confessed to having committed, starting from February 2008, thefts from five garages in Volodarsk, five garages in Ilyinogorsk and two garages in Mulino. No information was entered in the record about the specific garage which the applicant had entered immediately before his apprehension.

From 3.30 p.m. to 3.50 p.m., in the course of the on-site verification of the applicant’s statements, the applicant showed the police the garages in which he had committed the thefts.

At some point the head of the Ilyinogorsk police station ordered that the materials concerning the administrative case against the applicant (see paragraphs 19 and 20 above) be transferred to the Volodarskiy District Justice of the Peace for examination.

According to a judgment of 25 April 2008 of the Justice of the Peace of Court Circuit no. 2 of the Volodarskiy District, the applicant, who pleaded guilty, was found to have committed an administrative offence under Article 19.3 § 1 of the Code of Administrative Offences – disobedience to a police officer’s lawful demand (in particular, on account of his having used coarse language and having ignored the police officers’ requests to discontinue such behaviour). He was sentenced to five days’ administrative detention, to run from 2.30 a.m. of that day.

Investigator M. thereafter ordered that the applicant, as a suspect in the garagethefts case, should be subjected to a measure of restraint in the form of an undertaking not to leave his place of residence and to behave properly. It was stated in that decision that the applicant had fully acknowledged his guilt.

A group of police officers took the applicant to Nizhniy Novgorod where they carried out a search of his flat, as ordered by investigator M. According to an official record, the search was carried out from 9.55 p.m. to 10.50 p.m. by operational agent V. of the criminal investigation unit of the Volodarskiy District police department in the presence of the applicant’s wife and two witnesses.

From 11.05 p.m. to 12.07 a.m. operational officer K.O. seized some items from the applicant’s other car found near his block of flats, in the presence of his wife and two witnesses.

After their return from Nizhniy Novgorod, police officers took the applicant to a detention facility for administrative offenders at police station no. 1 of the Dzerzhinsk Town police department to serve the five days’ administrative detention (see paragraph 25 above). According to the detention facility records, he was placed there at 2 a.m. on 26 April 2008. The records did not mention any injuries on the applicant.

In the morning of 26 April 2008 the applicant was visited by his wife and brother. At 10.10 a.m. a police officer on duty called an ambulance at the applicant’s request.

According to the medical records, the applicant was examined by an ambulance doctor, Ms V., at 10.28 a.m. He complained of pain in the left side of his chest whenever he made the slightest movement or breathed, pain in the neck and heaviness in his head and explained that he had been beaten up and kicked. An examination revealed that he was suffering sharp pain around the eighth and ninth ribs on the left side, abrasions on his cheekbones and on one of his shoulders, and swelling and hyperaemia of both hands. The applicant was diagnosed with a closed fracture of the left ribs, abrasions on his face and back, and arterial hypertension. He was provided with first aid. The ambulance doctor considered that his condition was incompatible with detention and necessitated his further examination at a traumatology centre.

The applicant was therefore released from the detention facility and taken by ambulance to the Dzerzhinsk traumatology centre, where he was examined at 10.55 a.m. and diagnosed with multiple soft-tissue bruises on his face, contusions of the rib cage and abrasions on his wrists. He explained that he had been beaten up by police officers.

The applicant’s brother then took him to a hospital in Nizhniy Novgorod. At 12.55 p.m. he was admitted to the Avtozavodskoy District hospital no. 40. He was diagnosed with concussion, contusions of the rib cage and neck, and burns on his hands. The latter diagnosis was made on the basis of several circular lesions under scabs measuring about 0.5 cm in diameter on his hands.

On 1 May 2008 the applicant was examined by an expert in forensic medicine, Dr Ya. from the Nizhniy Novgorod Regional Forensic Medical Examination Bureau, in accordance with the Avtozavodskoy Investigative Committee’s decision of 30 April 2008 (see paragraph 51 below). The expert found the following injuries on the applicant: two circular abrasions on the back of each hand measuring 0.2 centimetres in diameter; similar abrasions on the right side of the lips, notably two on the upper and one on the lower lip; and an abrasion measuring 1.5 to 0.7 centimetres on the back of the left hand near the wrist. The above-mentioned wounds had similar characteristics. The applicant also had a circular bruise on his left wrist, a bruise measuring 5.5 to 7 centimetres on the left side of his rib cage and bruises on each side of his face, notably a bruise measuring between 2.5 and 5 centimetres on the right side and a bruise measuring 3 to 4 centimetres on the left side.

On 7 May 2008 the applicant was released from hospital and prescribed outpatient treatment, which he underwent at polyclinic no. 37.

On 30 May 2008 the forensic expert, Dr Ya., issued report (акт судебномедицинского освидетельствования) no. 104-E on the basis of the applicant’s examination on 1 May 2008 and his medical records from hospital no. 40. The expert considered that, given the morphological characteristics of the injuries, they could have been inflicted as alleged by the applicant.

On 14 July 2008 the applicant was examined by another expert in forensic medicine, Dr S. from the Nizhniy Novgorod Regional Forensic Medical Examination Bureau. The applicant had several circular scars on both hands. Having also examined the applicant’s medical records from hospital no. 40, and relying on Dr Ya’s description of his injuries of 1 May 2008, Dr S. concluded in report (акт судебномедицинского освидетельствования) no. 2944-D of 23 July 2008 that the applicant’s injuries, notably the abrasions on his hands and lips, the bruises on his face, left hand and the left side of his chest, and his concussion, had been inflicted by a blunt object and could have originated as a result of his having been punched and kicked. It was not excluded that the injuries could have been inflicted on 25 April 2008. Based on the existing data, it could not be categorically confirmed that the applicant had been subjected to electric shocks. However, it was not excluded that the abrasions and scars on his hands could have been caused as a result of their contact with a currentcarrying conductor. Taking into account the nature of the scars, it was not excluded that the injuries (from which the scars had originated) could have been inflicted on 25 April 2008.

On 16 July 2008 a psychotherapist, M., examined the applicant and diagnosed post-traumatic stress disorder, complicated by reactive depression in connection with his alleged ill-treatment by police officers on 25 April 2008. In particular, his recollection of those events provoked involuntary crying. Following the doctor’s recommendation, the applicant received outpatient psychotherapy. As of 31 October 2008 his condition improved and he refused further treatment.

On 11 October 2008 the applicant solicited an opinion from Dr L.M. about the origin of the injuries on his hands. Dr L.M.’s opinion, which was based on the applicant’s medical records, was similar to that of Dr S.

A letter of 22 June 2009, signed by the head of the organisational and methodological department of hospital no. 40, stated that the lesions on the applicant’s hands looked more like “old burns”.

Forensic medical expert opinion (заключение специалиста, судебномедицинское исследование) no. 189/09 of 25 November 2009 was prepared by an expert in forensic medicine, Dr Sh. from the Main State Centre of Forensic Medical and Criminalistic Examinations, on the basis of the previous forensic medical expert opinions of 30 May and 23 July 2008, another expert opinion (28 May 2009, no. 2153-D) and the applicant’s other medical records. It stated that the medical records did not contain the necessary objective clinical symptomatology to confirm the diagnosis of the closed fracture of the ribs, the contusion of the neck and the burns on the applicant’s hands. As regards the lesions on the applicant’s hands, they lacked objective morphological characteristics typical of lesions caused by electric current. The diagnosis could not, therefore, be the subject of forensic medical assessment. The applicant’s other injuries recorded in connection with the events of 25 April 2008, notably his concussion, the bruises on his face, the abrasions on his lips and on the back of his hands, the circular bruise on his left wrist and the contusion of the left side of his rib cage, were objectively supported by the medical documentation. The circular bruise on the left wrist could have been caused by a handcuff. The remaining injuries had been inflicted as a result of an impact with a blunt hard object. This could have been a fist, a shod foot or any other blunt hard object with a limited surface, given the form, small size and isolated character of the injuries. The lesions on the applicant’s face and hands could not have been caused as a result of the applicant’s rubbing his face with his denim jacket and sitting on his hands (as had been suggested by police officers Sh. and M., see paragraphs 58 and 60 below). The injuries could have been inflicted on 25 April 2008. They had caused a short-term – not exceeding twenty-one days – health disorder and should therefore be classified as minor health damage.

On 1 July 2008 the applicant lodged an appeal against the judgment of the Justice of the Peace of 25 April 2008 (see paragraph 25 above) and asked for an extension of the deadline for the appeal. He argued that the administrative case against him had been fabricated by the police.

On 5 August 2008 the Volodarskiy District Court heard the applicant, who recounted the events of 25 April 2008 and explained that he had pleaded guilty before the Justice of the Peace because he had been intimidated as a result of his ill-treatment at the Ilyinogorsk police station and because a police officer had been present at that hearing.

The District Court found no good reasons for the applicant’s failure to lodge his appeal earlier and rejected his request for an extension of the deadline for appealing.

On 4 June 2008 the applicant was charged with seven counts of theft from garages committed in February-March 2008. When questioned as an accused in the presence of a lawyer of his choice on 24 June 2008, he denied having committed the thefts and stated that his earlier selfincriminating statements had been given as a result of illtreatment by the police.

At a hearing before the Volodarskiy District Court of the Nizhniy Novgorod Region, the victims asked the court to terminate the proceedings since the applicant had fully compensated them for the damage and apologised. The applicant pleaded guilty of seven counts of theft and asked that the victims’ request be granted. On 27 August 2008 the District Court granted the victims’ request and terminated the criminal proceedings against the applicant for reconciliation between the parties.

At 11.24 a.m. on 26 April 2008 the Dzerzhinsk traumatology centre reported to the Volodarskiy District police department about the medical assistance administered that morning to the applicant, who had allegedly been beaten up by police officers in Ilyinogorsk on the night of 25 April 2008 (see paragraph 32 above). The Volodarskiy District police department transferred the report to the Dzerzhinsk inter-district investigation division of the investigative committee at the Nizhniy Novgorod regional prosecutor’s office (Дзержинский межрайонный следственный отдел следственного управления Следственного комитета при прокуратуре РФ по Нижегородской области, “the Dzerzhinsk Investigative Committee”) on 4 May 2008.

At 4.15 p.m. on 26 April 2008, hospital no. 40 reported to the Avtozavodskoy District police department of Nizhniy Novgorod that the applicant had been hospitalised with injuries allegedly sustained as a result of beatings by police officers in the Volodarskiy District (see paragraph 33 above). On the same day the applicant, who resided in the Avtozavodskoy District, lodged an application with the head of the same police department requesting that criminal proceedings be brought against the police officers who had illtreated him at the Ilyinogorsk police station on the night of 25 April 2008.

On 28 April 2008 the Avtozavodskoy District police department transferred the materials concerning the applicant’s alleged ill-treatment to the Volodarskiy District police department, which in its turn transferred them to the Dzerzhinsk Investigative Committee on 19 May 2008.

In the meantime, on 30 April 2008 the Avtozavodskoy District investigation division of the investigative committee at the Nizhniy Novgorod regional prosecutor’s office also received the applicant’s complaint of illtreatment. The applicant stated that he could identify the police officers who had ill-treated him, including those who had done so on the instructions of the investigator in charge of the garage-thefts case.

On the same day an investigator of the Avtozavodskoy Investigative Committee started a pre-investigation inquiry into the applicant’s allegation and ordered his forensic medical examination (судебномедицинское освидетельствование). In her decision she stated that during the night from 25 to 26 April 2008 the applicant had allegedly been gagged, tied up with a rope, punched and kicked, and electric current had allegedly been applied to him leaving burns marks.

On 2 May 2008 the head of the Avtozavodskoy Investigative Committee granted the investigator’s request for an extension of the timelimit for the preinvestigation inquiry to ten days, in order to receive the applicant’s “explanations” (see paragraph 105 below).

The applicant’s wife and the applicant gave “explanations” to the investigator on 5 and 6 May 2008, respectively. In describing his illtreatment at the Ilyinogorsk police station the applicant stated, in particular, that police officers O. and V. had locked the door of the office from the inside. They had tied his legs with a rope, which they pulled over his shoulders to shackle his hands behind his back, and attached them to handcuffs, thereby bending his head below the level of and between his knees, which were pulled aside. O. had stepped and jumped on his knees, causing him severe pain. O. had also slapped him in the back of his head several times. They had demanded that he confess to the thefts which had been committed in the district. Later in the same office, he had been questioned about the thefts by O., V. and other police officers. One of them had kicked him in the chest and punched him under the left armpit, making it difficult for him to breath. They had mocked him, hit and slapped him. The applicant stated that he could identify police officers O., V. and the third police officer who had kicked and punched him. He described their appearance and how they had been dressed on 25 April 2008.

On 6 May 2008 “explanations” were also received from a neurosurgeon of hospital no. 40, who had supervised the applicant’s treatment. He confirmed the information in the hospital medical records.

On the same day the investigator ordered that the applicant’s allegation of ill-treatment by Volodarskiy District police department officers, whose actions revealed elements of a crime under Article 286 § 3 (a) of the Criminal Code, be transferred for investigation to the Dzerzhinsk Investigative Committee.

On 7 May 2008 an investigator of the Dzerzhinsk Investigative Committee received an “explanation” from police officer U., who stated, inter alia, that following the applicant’s refusal to accompany him and police officer K. to the police station, physical force had been applied to the applicant, notably his arms had been twisted behind his back and he had been handcuffed. U. denied using any other physical force.

On the next day the deputy head of the Dzerzhinsk Investigative Committee, like in the proceedings before the Avtozavodskoy Investigative Committee, granted the investigator’s request to extend the initial threeday timelimit for the pre-investigation inquiry to ten days in order to examine the applicant, to identify and examine the police officers who had allegedly beaten him up, and to carry out a medical examination of the applicant after his recovery.

On 11 May 2008 the investigator received “explanations” from senior operational officer Sh. from the criminal investigation unit of the Volodarskiy District police department, who had seen the applicant in a cell at the Ilyinogorsk police station. Sh. stated that the applicant “had been sitting on his hands and, therefore, when taken out of the cell his hands had been swollen”. Sh. further stated that the applicant “had been rubbing his face with his denim jacket”. According to Sh., this had caused an irritation to the skin on the applicant’s face. Sh. denied any violence or threats towards the applicant. In Sh.’s opinion the applicant had inflicted his injuries on himself in order to complain afterwards that police officers had used unlawful investigative methods.

On 12 May 2008 “explanations” were received from the investigator, Ms M. She stated that operational support in the garage-thefts case had been provided by officers K.O. and S.V. She had arrived at the Ilyinogorsk police station as a member of an investigative task force set up in connection with the series of thefts from garages, questioned the applicant and carried out an onsite verification of his statements. The applicant had had no visible injuries. She denied that she had instructed the police officers to beat the applicant up and considered the applicant’s allegation a slander with a view to avoiding liability for his crimes.

On 16 May 2008 the head of the criminal investigation unit of the Volodarskiy District police department, Mr M., explained that a report had been received from the Volodarskiy District police department officer on duty about the apprehension of the applicant, who had forced open a garage door in Ilyinogorsk. As thefts in the proximity of Ilyinogorsk had become more frequent, an investigative task force had been sent to the scene of the incident. When Mr M. had arrived at the Ilyinogorsk police station, he had seen the applicant, who “had been sitting on his hands and, therefore, when taken out of the cell his hands had been swollen”. The applicant had had an irritation on the skin of his face as though he had rubbed it. The applicant had indeed been rubbing his face with his denim jacket. M. had rebuked the applicant for rubbing his face in order to injure himself. M. denied any violence or threats towards the applicant. He considered that the applicant had inflicted his injuries on himself in order to complain afterwards that police officers had used unlawful investigative methods.

On the same day the investigator’s request for an extension of the timelimit to twenty days for the pre-investigation inquiry was granted. On 26 May 2008 the pre-investigation inquiry was extended for ten more days.

On 28 May 2008 “explanations” were received from operational officer K.O. He stated that he and operational officer S.V. had interviewed the applicant after his arrest on 25 April 2008. He alleged that the applicant had refused to communicate with them and had been placed back in a police cell. K.O. had taken the applicant to Nizhniy Novgorod to carry out a search of his flat. There had been no visible injuries on the applicant except for some redness around his temples.

On 29 May 2008 operational officer S.V. explained that on the night of 25 April 2008 he had been informed by phone about the applicant’s apprehension. He had gone to the Ilyinogorsk police station in order to check whether the applicant had been involved in thefts from garages committed recently in Mulino. After his arrival he had joined K.O., who had been interviewing the applicant. The applicant had had no visible injuries, except for some redness on his face. The applicant had denied his involvement in the crimes and had not wished to talk to them. He had therefore been placed in a police cell.

Both K.O. and S.V. denied any use of violence against the applicant at the Ilyinogorsk police station. They supposed that the applicant had either inflicted his injuries on himself in order to compromise the police and thereby avoid liability for his crimes, or could have sustained the injuries during his apprehension.

Relying on the above “explanations” by the police officers and forensic medical report no. 104-E (see paragraph 36 above), the investigator of the Dzerzhinsk Investigative Committee concluded in his decision of 6 June 2008 that the applicant’s allegations had not been confirmed. He ordered, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”), that no criminal case be opened for lack of the elements of a crime, under Articles 285 and 286 of the Criminal Code, in the acts of investigator M. and police officers U. and K., who had acted in accordance with the Police Act, and officers of the criminal investigation unit of the Volodarskiy District police department, K.O., S.V., Sh. and M.

The investigator stated that the time at which the applicant’s injuries had been inflicted, which the forensic medical expert had estimated in report no. 104E as the night from 25 to 26 April 2008, did not match the time of the applicant’s apprehension and the ensuing investigative activities. The allegation concerning burns as a result of torture by electric current had not been confirmed by the applicant’s medical examination. Lastly, the investigator held that the applicant’s allegation of illtreatment by the police had been used as a defence aimed at avoiding liability for the crimes committed by him.

On 3 September 2008 the decision of 6 June 2008 was revoked as unfounded by an acting head of the Dzerzhinsk Investigative Committee. He ordered an additional pre-investigation inquiry, in particular another forensic medical examination of the applicant with a view to determining whether his injuries could have been caused in circumstances as suggested by police officers U., K. and M. The time-limit for the preinvestigation inquiry was extended to ten days.

On 11 September 2008 an investigator of the Dzerzhinsk Investigative Committee issued a new decision refusing to open a criminal case on the grounds that it followed from “explanations” received from Dr Ya. that the applicant could have sustained his injuries “in circumstances as suggested by the Volodarskiy District police department officers, that is in the course of his apprehension”. The decision did not quote or describe in detail either Dr Ya.’s “explanations” or “the circumstances as suggested by the Volodarskiy District police department officers”. It referred to the initial reports and previously received explanations by U., K. and other police officers (see, in particular, paragraphs 9 and 56 above).

On 11 February 2009 the Dzerzhinsk Investigative Committee revoked its decision of 11 September 2008 and ordered an additional preinvestigation inquiry to rectify the defects identified in the Town Court’s decision of 29 December 2008 (see paragraph 84 below).

There followed a series of refusals by investigators of the Dzerzhinsk Investigative Committee to open a criminal case on the same grounds and for the same reasons as those in the decision of 11 September 2008, with some new information added. Each time, the decisions were revoked by the investigative committee itself in view of the unsatisfactory and incomplete inquiry. They were delivered on the following dates:

- third refusal on 24 February 2009, revoked on 25 February 2009;

- fourth refusal on 4 March 2009 (“explanations” from the ambulance staff who examined the applicant on 25 April 2008, consistent with the relevant medical records, were added), revoked on 6 May 2009;

- fifth refusal on 8 June 2009, revoked on 15 June 2009;

- sixth refusal on 25 June 2009, revoked on 15 July 2009;

- seventh refusal on 15 July 2009 (a statement by Ms P., a witness during the search of the applicant’s flat on 25 April 2008, was added; she stated, in particular, that during the search the applicant had looked bad, his face had been “greenish” and he had asked for water), set aside by the main department of procedural control of the investigative committee at the General Prosecutor’s Office of the Russian Federation (Главное управление процессуального контроля Следственного комитета при прокуратуре РФ) on 3 September 2009;

- eighth refusal on 25 September 2009 (information about the outcome of the criminal proceedings against the applicant added), set aside on 20 November 2009 by the main department of procedural control of the investigative committee at the General Prosecutor’s Office which noted, in particular, the following defects: the failure to question police officer K. and the police officers on duty at the Ilyinogorsk police station about the circumstances of the applicant’s apprehension; the inconsistencies between the applicant’s and the police officers’ statements about the origin of the injuries; and the inconsistency between the forensic medical report, according to which the alleged ill-treatment had taken place during the night from 25 to 26 April 2008 (see paragraphs 34, 36 and 51), and the statements by the applicant and the police officers, according to which the incident had taken place during the night from 24 to 25 April 2008;

- ninth refusal on 14 December 2009 (it was added that no elements of crimes, under Articles 318 and 319 of the Criminal Code, had been established in the applicant’s actions during his arrest), revoked on the same day.

On 24 December 2009 the investigator of the Dzerzhinsk Investigative Committee took a new decision in which he held – as in the previous decisions – that pursuant to Article 24 § 1 (2) of the CCrP, no criminal case should be opened into the applicant’s allegation of illtreatment by police officers. The decision cited new “explanations” by some police officers about the events of 25 April 2008, which are summarised below. The decision cited the same “explanations” by police officer U. as before (see paragraph 56 above).

Police officer K. stated, in particular, that on their way to the police station the applicant had attempted to run away. K. had managed to grab him by the sleeve of his jacket. K. and U. had pushed him face down on the asphalt, twisted his hands behind his back and handcuffed him. They had retained him on the ground for about ten minutes until he had stopped resisting and insulting them. No other physical force had been used on him. At the police station the applicant had been unshackled and searched. Thereafter, operational agent K.O. had arrived at the police station and taken the applicant to his office. K. had not seen the applicant since then. Later operational agent S.V. had stayed with the applicant in that office, while K., U. and K.O. had searched for the applicant’s car.

Police officers M. and Sh. explained, in particular, that they had arrived in Ilyinogorsk together with the investigator, Ms M., and police officer P. from the Volodarskiy District police department in connection with the applicant’s arrest and their work on a series of unsolved garage thefts. They had arrived at the Ilyinogorsk police station at about 11.30 a.m. The applicant had been taken to K.O.’s office for questioning.

The decision also referred to police officer K.O., who had stated, in particular, that he had arrived at the Ilyinogorsk police station following a telephone call from an officer on duty, B., about the applicant’s apprehension. K. had told K.O. about the circumstances of the applicant’s apprehension. In particular, K. had seen, in the garage being opened by the applicant, some things that he had collected and was preparing to carry away. B. had said that the applicant had had a bunch of metal picklocks on him. K.O. had believed that the applicant had been involved in the series of garage thefts. The type of lock on the garage which the applicant had opened was the same as those on the other garages from which thefts had been committed. He had taken the applicant to his office and questioned him until 3 a.m. No one else had been present in his office. The applicant had stated that he had had no previous criminal convictions. K.O. had phoned the information centre of the Nizhniy Novgorod regional police department, which had informed him that the applicant had previously been convicted of garage thefts in the Avtozavodskoy District of Nizhniy Novgorod. According to the records of the information centre, the applicant’s mobile phone had been registered as missing in connection with a garage theft in Dzerzhinsk. At about 4 a.m. police officer S.V. had arrived and started interviewing the applicant in K.O.’s office. The applicant had not wished to communicate with them and they had taken him to the officer on duty.

K.O. had also explained that he, S.V., K. and U. had searched for the applicant’s car, which they had found in one of the streets in Ilyinogorsk. When looking inside K.O. had seen a spade resembling one which had been stolen from one of the garages. Afterwards they had returned to the police station and waited for the arrival of the investigative task force of the Volodarskiy District police department. The task force consisted of M., Sh. and P., investigator Ms M. and an expert criminologist, I. They had arrived at about midday and carried out investigative measures. In particular, investigator M. had questioned the applicant and then conducted the onsite verification of his statements. The applicant was then taken to the Justice of the Peace.

Police officer S.V.’s new “explanations” were largely similar to those of K.O., with some discrepancies in respect of the time of the events. According to S.V., the investigative task force arrived at the Ilyinogorsk police station at about 10 a.m. The group that carried out the searches in Nizhniy Novgorod returned to Dzerzhinsk together with the applicant at about 1 a.m. on 26 April 2008, after which S.V. and another police officer took the applicant to the Dzerzhinsk detention facility to serve his administrative sentence.

B., an officer on duty at the Ilyinogorsk police station on 25 April 2008, explained that at about 1 a.m. police officers U. and K. had taken the applicant to the police station. He had not seen any injuries on the applicant. The applicant had been searched. B. had called K.O., who had arrived fifteen minutes later and had taken the applicant to his office. He had not heard any shouts or noise from K.O.’s office. B. did not remember the applicant being brought back and had left at 8 a.m. when his shift had ended.

The decision of 24 December 2009 also cited the forensic medical expert report no. 189/09 of 25 November 2009 (see paragraph 41 above). The investigator concluded that the applicant’s medical examination had not confirmed his allegation that he had sustained burns on his hands as a result of torture by electric current. His other injuries – the abrasions on his face, the bruise on his chest and concussion – could have been caused by police officers U. and K. in the course of his apprehension when they had pushed him face down on the asphalt and retained him in that position. The lesions on his wrists could have been caused by handcuffs, which had been used by U. and K. at the time of his arrest. The actions of U. and K. had not violated the provisions of the Police Act and, therefore, did not carry the elements of a crime under Articles 285 and 286 of the Criminal Code. The investigator concluded that the applicant’s allegation of illtreatment by the police officers from the criminal investigation unit had not been confirmed by the results of the pre-investigation inquiry.

The applicant appealed against the investigator’s decision of 6 June 2008 (see paragraph 65 above), arguing, in particular, that he had not been personally interviewed by the investigator, the origin of his injuries had not been established and detainees at the Ilyinogorsk police station on 25 April 2008 had not been identified and interviewed.

On 8 August 2008 the Dzerzhinsk Town Court dismissed the applicant’s appeal. It noted that a criminal case against the applicant on charges of garage thefts had been pending before the Volodarskiy District Court since 23 July 2008. The Town Court held that any assessment of the applicant’s allegation that physical force had been used against him during questioning would inevitably lead to an assessment of the evidence on which the indictment against him was based. The Town Court had no jurisdiction over that matter, which had to be dealt with at a hearing in the applicant’s criminal case.

On 24 October 2008 the Nizhniy Novgorod Regional Court rejected an appeal lodged by the applicant against the Town Court’s decision and fully endorsed the Town Court’s findings.

On 3 October 2008 the Dzerzhinsk Town Court dismissed an appeal lodged by the applicant against the investigator’s decision of 11 September 2008 (see paragraph 68 above). It held, in particular, that it had been established during the preinvestigation inquiry that the police officers had used physical force and handcuffs lawfully in order to apprehend the applicant. It followed from Dr Ya.’s “explanations” that the applicant’s injuries could have been received in the course of his apprehension, as had been suggested by the Volodarskiy District police department officers.

On 9 December 2008 the Nizhniy Novgorod Regional Court granted an appeal lodged by the applicant against the Town Court’s decision. It found that the Town Court had failed properly to assess the applicant’s arguments about the investigative authority’s omissions in collecting evidence. Thus, by confirming that the forensic medical experts had not been questioned about the applicant’s burns, the Town Court had in fact acknowledged that the applicant’s version of events had not been properly assessed. It had also failed to assess the police officers’ statements in respect of the applicant’s injuries and their origin, in particular his concussion. The Town Court’s finding that the applicant could have sustained the injuries during his apprehension had not been based on a proper assessment of Dr Ya.’s “explanations”. Those “explanations” did not contain any detailed information which would allow the court to come to such a conclusion.

On 29 December 2008 the Town Court declared the investigator’s decision of 11 September 2008 unfounded in view of the incomplete preinvestigation inquiry, noting the same defects as those highlighted by the Regional Court. The decision came into force on 11 January 2009 and was served on the investigative committee on 19 January 2009.

On 14 October 2009 the Dzerzhinsk Town Court examined an appeal lodged by the applicant against the investigator’s decision of 25 September 2009 (see paragraph 70 above). The applicant argued that the preinvestigation inquiry had not met the requirements of an effective investigation according to the Court’s case-law under Article 3 of the Convention. He also argued that the investigator’s repeated refusals to institute criminal proceedings were unlawful and lacked reasons (he referred to Aksoy v. Turkey, 18 December 1996, § 98, Reports of Judgments and Decisions 1996-VI; Aydın v. Turkey, 25 September 1997, § 106, Reports 1997VI; and Mikheyev v. Russia, no. 77617/01, § 108, 26 January 2006). In particular, the investigator had not interviewed the applicant and his wife and had failed time and again to make a legal assessment of the applicant’s injuries, a failing which had been established by the courts in the course of a previous Article 125 review; the police officers’ suggestions that the injuries had been selfinflicted had been refuted by the expert conclusions in report no. 104E; the allegation concerning the infliction of electric shocks had been found groundless despite the fact that the expert opinions had not excluded that possibility; the investigator had communicated the wrong time (the night of 25 to 26 April 2008 instead of 24 to 25 April 2008) of the alleged illtreatment to the medical experts; and Dr Ya.’s “explanation” that the applicant could have sustained his injuries in “circumstances as suggested by police officers K., U. and M.” was not precise and lacked information as to what those circumstances were and which injuries were concerned.

The applicant further argued that the facts of the case could only be established as a result of investigative measures within the framework of a criminal case, such as the identification of the police officers responsible for the illtreatment, a confrontation between him and the police officers and their questioning. The Volodarskiy District assistant prosecutor had submitted to the court that the applicant’s arguments were lawful and reasoned, and that the Dzerzhinsk Investigative Committee’s decision ought to be set aside as unlawful.

The Town Court found the applicant’s submissions well founded and the investigative committee’s decision unlawful and unreasoned. It ordered that the shortcomings revealed be corrected by the head of the Dzerzhinsk Investigative Committee.

On 8 February 2010 the Dzerzhinsk Town Court dismissed the applicant’s appeal against the investigator’s decision of 24 December 2009 (see paragraphs 71-78 above). It considered that all instructions for correcting the defects of the previous preinvestigation inquiries, in particular those set out in the decision of the investigative committee’s main department of procedural control of 20 November 2009 (see paragraph 70 above), had now been fulfilled; the preinvestigation inquiry had therefore been thorough and the decision lawful and reasoned.

The applicant appealed against the Town Court’s decision, relying on the Convention case-law and arguing, in particular, that in order to take a lawful and reasoned decision it was necessary to carry out investigative measures such as identification, confrontation, questioning of the police officers, investigative experiments and on-site verification of statements. That would only be possible within the framework of a criminal case, which the investigative committee had never opened.

On 16 April 2010 the Nizhniy Novgorod Regional Court rejected the applicant’s appeal. It stated that the examination of a refusal to institute criminal proceedings within the meaning of Article 125 of the CCrP required a court to examine whether the procedure for taking such a decision had complied with the legal requirements and whether an applicant’s rights and freedoms had been observed in the course of the collection of evidence which served as the basis for such a refusal. The assessment of that evidence fell outside the scope of the examination under Article 125. It endorsed the Town Court’s findings and upheld its decision.

The applicant lodged a civil action for damages incurred as a result of the Dzerzhinsk Investigative Committee’s failure to conduct an effective investigation into his allegation of ill-treatment by the police, claiming compensation for non-pecuniary damage in the amount of 2,000 Russian roubles (RUB).

On 8 July 2009 the Sovetskiy District Court of Nizhniy Novgorod held that the investigative committee’s decisions refusing to institute criminal proceedings against the police officers, which were taken on the basis of incomplete inquiries and subsequently revoked by the investigative committee’s own officials or quashed by the courts, had violated the applicant’s right to an effective investigation under the Convention. The investigative committee’s decision of 22 September 2008 to refuse the applicant’s representative access to the materials of the pre-investigation inquiry had violated his constitutional rights. The District Court found that as a result of such actions and decisions on the part of the investigative committee, the applicant had suffered non-pecuniary damage.

It further noted, having regard to the investigative committee’s decision of 25 June 2009 (see paragraph 70 above), that the applicant’s allegations of ill-treatment had not been confirmed by the pre-investigation inquiry, despite its “thoroughness, completeness and length”. The District Court also stated that the applicant was also responsible for the revocation of the decisions not to institute criminal proceedings, which had been triggered by his complaints.

In its judgment of 8 July 2009 the District Court awarded the applicant compensation in the amount of RUB 500 for the nonpecuniary damage suffered by him, to be paid by the federal treasury. The judgment came into force on 27 July 2009.

The applicant’s alleged ill-treatment in police custody and the investigative authority’s response to his complaint was reported by the Russian mass media. Information about his alleged ill-treatment by the police was included in Amnesty International’s report of 2009 on “The state of the world’s human rights”.