I correctly predicted that there was a violation of human rights in SHARKOV v. RUSSIA.

Information

  • Judgment date: 2021-05-11
  • Communication date: 2013-08-28
  • Application number(s): 43305/07
  • Country:   RUS
  • Relevant ECHR article(s): 3, 6, 6-1, 7, 7-1
  • Conclusion:
    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)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.617996
  • Prediction: Violation

  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Vyacheslav Anatolyevich Sharkov, is a Russian national, who was born in 1969 and lives in Samara.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
At or around 8 a.m. on 7 June 2006 the applicant was driving a car when he was stopped by road police officers Kh.
and B.. Having checked the applicant’s identity documents, the officers told the applicant that he had no valid authority to drive the car (which was owned by his father).
The applicant objected.
The officers told the applicant that he should follow them to the road police station.
As subsequently established in the criminal case against the applicant, having arrived there, the applicant started to insult officer Kh.
and punched him in the face on one occasion.
Officer B. apprehended the applicant and handcuffed him.
In the applicant’s submissions (both before the domestic authorities and the Court), he did not insult or assault any officers.
When they arrived in front of Samarskiy police station Officer Kh.
punched him and put violently his knee on his chest causing rib fractures.
The applicant was then handcuffed.
In the applicant’s submission, several police officers saw the scene but did not react in any way.
Despite his requests, the applicant was refused medical assistance.
In two hours following his arrival in the police station, he was, however, taken to a medical examination to determine whether he was drunk.
The test was negative.
Having spent four hours in the police station, the applicant was released.
He was not given a copy of the arrest record.
Immediately after his release, the applicant went to the Regional forensic expert office and obtained a report.
The expert concluded that the applicant had several bruises on his arms and forehead; scratches on his neck, arms and his right knee.
The expert also stated that the findings in respect of “the other injuries” could not be made without X-rays and “original” medical documents.
Thereafter, he was on sick leave and was undergoing out-patient treatment for some time.
In the meantime, on 8 or 9 June 2006 the applicant unsuccessfully sought a meeting with the Chief Officer of the Regional Department of the Interior (supervising police stations).
On 15 June 2006 he lodged a complaint with the town department of the Interior.
The content of this complaint is unclear.
It appears that he also complained to the regional prosecutor, who informed him that a preliminary inquiry (доследственная проверка) was opened and was pending (see also the regional prosecutor’s letter of 8 November 2006 below).
In the meantime, on 18 June 2006 investigator N. in Samarskiy district prosecutor’s office initiated criminal proceedings against the applicant accusing him of use of force and insult against a public official (Articles 318 and 319 of the Criminal Code).
On 25 July 2006 investigator N. in Samarskiy district prosecutor’s office issued a refusal to institute criminal proceedings against officers on account of an alleged excessive use of force against the applicant on 7 June 2006.
Having listed the applicant’s account of the events, as well as statements made by Officer Kh.
and two eye-witnesses of the events on 7 June 2006, the investigator concluded that there had been no corpus delicti in so far as the offences under Articles 285 and 286 of the Criminal Code could be relevant (ultra vires actions by a public official and abuse of power by a public official, respectively).
It appears that this refusal was in reply to the applicant’s complaint received by the investigating authority on 23 July 2006.
According to the applicant, he became aware of the refusal of 25 July 2006 in January 2007 (see below).
He did not seek judicial review of this refusal under Article 125 of the Code of Criminal Procedure.
On 31 July 2006 the applicant sought, at his own expense, another expert report.
On 5 September 2006 expert U. issued a report stating that the applicant had no other injuries in addition to those already recorded in the expert report of 7 June 2006.
The expert refuted the earlier conclusions concerning the presence of a chest injury.
Being dissatisfied with this new report, the applicant obtained an X-ray of his chest.
On 8 November 2006 the regional prosecutor’s office informed the applicant that a procedural decision regarding his allegation of beating would be taken in the framework of the investigation against the applicant.
Allegedly, before and in December 2006 the applicant and his next of kin were threatened on various occasions.
In particular, as allegedly confirmed by an audio recording, a district prosecutor and investigator N. compelled the applicant to decline the services of his privately-retained counsel.
On 15 December 2006 the applicant was arrested again.
On 16 December 2006 a district court refused to authorise his continued detention.
However, the applicant was released only on 17 December 2006.
According to the applicant, he was not provided with a copy of the arrest record.
The preliminary investigation in the criminal case against the applicant was completed in December 2006.
When studying the case file, on 22 January 2007, the applicant became aware of the refusal of 25 July 2006 by which his allegation of beating had been dismissed.
On an unspecified date, the case against the applicant was submitted for trial before the Samarskiy District Court of Samara.
The applicant pleaded not guilty and affirmed that he had not insulted or assaulted any officers on 7 June 2006.
He argued instead that he had been beaten up by these officers.
By judgment of 5 February 2007, the District Court convicted the applicant as charged and imposed a suspended sentence of two years’ imprisonment.
As to the medical evidence in the case, the trial court considered as follows: “The diagnosis made in the clinic that [the applicant] had a chest hematoma is not substantiated.
The record of out-patient treatment does not cite any objective indications of a hematoma.
In addition, the examination on 7 June 2006 in the forensic office did not disclose any chest injuries.
In view of the confused nature of the medical evidence and because the experts did not have any X-ray images at their disposal, it was not possible to determine whether the applicant had any chest injury ...
The defendant’s allegation of beating is not supported by evidence.
An expert report, which was compiled on the basis of documentary evidence, did not confirm any chest injury ...
The additional expert report, which has been submitted to the court by the defendant, concludes that he had a fracture of three ribs.
This report was issued on 18 January 2007 on the basis of the documents submitted by the defendant.
However, this report does not provide a truthful picture of the way the injury had been caused.
The court concludes that the above evidence is aimed at avoiding criminal responsibility ...
It does not matter whether the officers’ findings concerning the applicant’s driving of the car were lawful or justified ...” On 23 March 2007 the Samara Regional Court upheld the conviction but replaced the suspended custodial sentence with a fine of 2,600 Russian roubles (approx.
75 euros).
The appeal court held as follows: “...
It follows from the car certificate that the car owner (the defendant’s father) had no right to authorise another person to use this car.
Thus, since the defendant had no right to use the car, Officer Kh.
had lawfully prevented him from continuing to drive it.
Recourse to physical force against the defendant was justified by the latter’s assault against the on-duty officer ...” B.
Relevant domestic law and practice 1.
Criminal Code Article 318 of the Criminal Code punishes recourse to physical force against a public official.
As indicated in the 1999 review of the military courts jurisprudence, the corpus delicti under Article 318 of the Code was constituted if recourse to violence was related to the official’s exercise of his official duties.
Recourse to force was not punishable (under this Article) if related to unlawful actions of the official.
2.
Code of Criminal Procedure (CCrP) Article 125 of the CCrP provides for judicial review of the decisions or (in)actions on the part of an inquirer, investigator or a prosecutor, which has affected constitutional rights or freedoms.
The judge is empowered to verify the lawfulness and reasonableness of the decision/(in)action and to grant the following forms of relief: (i) to declare the impugned decision/(in)action unlawful or unreasonable and to order the respective authority to remedy the violation; or (ii) to reject the complaint.
In its Resolution of 10 February 2009 the Plenary Supreme Court of Russia considered that it was incumbent on the judges to verify before processing an Article 125 complaint whether the preliminary investigation has been completed in the criminal case (point 9).
If the criminal case has already been set for trial or has been completed, the complaint should not be examined unless it was brought by a person who was not a party to the main case or if such complaint was not amenable to judicial review at the trial stage of the proceedings.
In all other situations, the complaint under Article 125 should be left without examination and the complainant be informed that he or she can raise the matter before the trial or/and appeal courts in the criminal case.
In the same vein, according to the interpretation given by the Constitutional Court, a complaint under Article 125 cannot be brought or pursued after the criminal case, to which this complaint is connected, has been submitted for trial.
However, when it is established that a party to the proceedings (including a judge or a witness) has committed a criminal offence, thus seriously affecting the fairness of the proceedings, the Code exceptionally allows for a separate investigation of the relevant circumstances leading to a re-opening of the case (see Decision no.
1413-O-O of 17 November 2009; see also Ruling no.
20-П of 2 July 1998 and Ruling no.
5-П of 23 March 1999).
COMPLAINTS Relying on Articles 1, 3, 5, 6-8, 13, 14 17 and 18 of the Convention, the applicant complains that he was beaten up by the road police officers and that he was refused medical assistance.
He also argues that there was no investigation into his allegation of beating.
In particular, he alleges that he was not timely informed of the refusal to prosecute dated 25 July 2006 and thus could not apply for judicial review; that investigator N. failed to order any forensic examinations.
The applicant further complains under the same provisions that he was wrongly prosecuted for and convicted of recourse to physical force against a public official.
In the applicant’s submission, the trial court failed to ascertain whether the officer had acted lawfully when he stopped his car, ordered him to follow him to the road police station and then inflicted injuries.

Judgment

THIRD SECTION
CASE OF SHARKOV v. RUSSIA
(Application no. 43305/07)

JUDGMENT
STRASBOURG
11 May 2021

This judgment is final but it may be subject to editorial revision. In the case of Sharkov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,Dmitry Dedov,Peeter Roosma, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 43305/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vyacheslav Anatolyevich Sharkov (“the applicant”), on 11 August 2007;
the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the police violence against the applicant, the authorities’ investigation into it and the applicant’s conviction of recourse to violence against a public official, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 30 March 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the use of force by the police against the applicant and the authorities’ investigation into it. THE FACTS
2. The applicant was born in 1969 and lives in Samara. 3. The Government were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and subsequently by his successor in that office, Mr M. Galperin. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 7 June 2006 the applicant was driving a car in Samara when he was stopped by police officers, B. and Kh., from the Samarskiy district traffic police unit. Having checked the applicant’s documents, the officers told him that he had no right to drive the car (which was registered in the name of his father, a disabled person, with no right to transfer it to others) and that he should follow them to the police station. At the police station B. and Kh. drew up a record of an administrative offence and a record of removing the applicant from driving the car. At approximately 8.30 a.m. an altercation occurred between them and the applicant, with the use of force. The parties’ versions of the incident differed. 6. After the incident, at 2.40 p.m. on 7 June 2006 the applicant was examined at his request by an expert from the Samara regional forensic medical expert bureau. The applicant explained that earlier in the morning he had been beaten up by two police officers who had punched him in the head, arms and other parts of the body. The applicant had fallen and one of the police officers had pressed his knee on the applicant’s chest. The officers had twisted the applicant’s hands behind his back and handcuffed him. 7. According to the expert’s report of 7 June 2006, the applicant had bruises on the forehead and upper extremities, as well as abrasions on the neck, upper extremities and knee, notably: bruises on the forehead, left and right shoulders, right elbow, and right wrist joint; abrasions on the back of the neck, right shoulder, right forearm, left elbow, left forearm and right knee; and scratches on the left forearm. The expert stated that the applicant should be examined by a surgeon, and that conclusions in respect of his other injuries could be made after X-rays and original medical documents would be provided to the expert. 8. On the same day the applicant sought medical aid at the local polyclinic. He complained about pain in the thoracic cage on the left. His X‐ray examination that day and on 20 June 2006 did not reveal any traumatic changes of the ribs. He was, however, diagnosed with fracture of the seventh rib and contusion of the thoracic cage on the basis of certain clinical signs as a result of his examination by a surgeon on 7 and 23 June 2006. 9. On 29 June 2006 the applicant was examined by the chief doctor of the neurosurgery unit at the Samara regional hospital, who diagnosed him with contusion of the thoracic cage on the left and intercostal neuralgia. On 30 June, 5 and 10 July 2006 the applicant was diagnosed with posttraumatic intercostal neuralgia on the left by the polyclinic doctors. An X-ray examination on 11 July 2006 did not show any traumatic changes of the ribs. On 17 July 2006 he was diagnosed with posttraumatic neuralgia of intercostal nerve. Pain in the thoracic cage on the left persisted, with improvement over time, until 21 July 2006, when the applicant’s sick leave (which began on 7 June 2006) ended. 10. On 31 July 2006 the applicant sought a forensic medical expert’s opinion in respect of his chest injury, stating that on 7 June 2006 he had been beaten up by police officers, one of whom had jumped on him pressing the knee on his chest. In a report of 5 September 2006 an expert from the Samara regional forensic medical expert bureau stated that he could not confirm the diagnoses of contusion of the thoracic cage and posttraumatic intercostal neuralgia made by the polyclinic doctors because the polyclinic records lacked information about the relevant objective clinical signs. 11. On 2 August 2006 an investigator from the Samarskiy district prosecutor’s office ordered the forensic medical examination of the applicant’s injuries on the basis of his medical records from the polyclinic. On 4 August 2006 an expert from the Samara regional forensic medical expert bureau began the examination, for which she requested (on 30 August 2006) and received (on 2 October 2006) the applicant’s additional medical records and the forensic medical expert’s report of 7 June 2006. On 24 October 2006 she also requested the applicant’s thoracic cage X-ray images. The X-ray images were not made available to her. 12. In a report of 27 November 2006 the expert concluded that the applicant’s bruises and abrasions (as recorded by the forensic medical expert on 7 June 2006) had been caused by blows or compression by hard blunt objects (bruises) and as a result of the grazing contact with such objects with uneven surface (abrasions) in the period up to three days (bruises) and one day (abrasions) before the applicant’s examination. 13. The report also stated that the diagnoses of contusion of the thoracic cage and posttraumatic intercostal neuralgia made by the polyclinic doctors could not be confirmed because they had not been supported by information available in the polyclinic records, which lacked indications of certain objective clinical signs. However, it followed from those records that the applicant’s examination on 7 June and 17 July 2006 revealed some clinical signs which could be indicative of the fracture of the ribs. In view of the unclear clinical picture described in the medical records and the unavailability of the thoracic cage X-ray images, it was impossible to make any conclusions about the presence and nature of the thoracic cage injury. 14. On 9 January 2007 the applicant sought an additional forensic medical report in respect of his injuries, giving the same explanations for their origin as stated previously in the report of 7 June 2006. An expert from the Samara regional forensic medical expert bureau examined the applicant’s medical records, the results of the X-ray radiography and radioscopy of his thoracic cage on 8 September 2006 at the Samara regional hospital (which showed an area of bony tissue formed during the healing of the fractured sixth rib on the left) and the results of radionuclide bone imaging (which showed signs of the fracture of the fourth, fifth and sixth ribs on the left) performed on 2 October 2006 at the radionuclide diagnostics unit of the Samara State Medical University and reported by the head and professor of the university radio‐diagnostics department. 15. In his report of 18 January 2007 the expert concluded that, in addition to the injuries recorded in the forensic medical expert’s report of 7 June 2006, the applicant also had the fracture of three ribs on the left, which had caused medium gravity harm to his health in view of the duration of his health disorder which had exceeded three weeks. The expert explained that his conclusion about the fracture of three ribs was based on the results of the examination using the method of radionuclide bone imaging, which was more informative than X-ray imaging. 16. Immediately after the incident on 7 June 2006 the applicant was handcuffed and taken to the Samarskiy district police department. Officer B. reported the incident, stating that the applicant had used foul language and punched Officer Kh. in the head. B. requested an inquiry into the applicant’s actions. He submitted statements by two individuals interviewed by him, R.O. (a passer-by) and I.M. (an employee of a private company situated in front of the traffic police office), who confirmed his version of events. After being interviewed and examined to establish whether he was in a state of alcoholic inebriation (the examination at 10.26 a.m. confirmed that he was not) the applicant was released. 17. On 8 June 2006 the Samarskiy district police department forwarded the material concerning the incident to the Samarskiy district prosecutor. 18. On 18 June 2006 an investigator from the Samarskiy district prosecutor’s office instituted criminal proceedings against the applicant under Article 318 § 1 of the Criminal Code for use of violence against Officer Kh. in the performance of his duties. 19. On 28 June 2006 the investigator concluded that there were elements of the crime under Article 319 of the Criminal Code in the applicant’s actions (insult of a public official in the performance of his duties). 20. According to statements by Officer Kh. (questioned as a victim on 22 July 2006), after being addressed in foul language and punched by the applicant in the face, in order to prevent further unlawful actions by the applicant, Kh. used a combat technique, notably twisting the applicant’s arm behind his back. As the applicant actively resisted, B. twisted the applicant’s other arm behind his back. They held the applicant, pressing him against the police car. The applicant continued resisting, trying to break away in order to attack them. Officer D. helped overcome the applicant’s resistance by holding the applicant’s arms. The applicant was then handcuffed. During his apprehension the applicant was standing all the time. The injuries on the applicant’s upper extremities could have been inflicted unintentionally during his active resistance by Kh.’s hand watch with a metal bracelet, and the abrasion on his knee as a result of being pressed against the police car. Kh. could not explain the injuries on the applicant’s forehead and neck, stating that the applicant had had no such injuries and could not have received them during his apprehension. Interrogated as a witness, B. gave a similar account of events, adding that he had taken handcuffs from the Samarskiy traffic police station, which had then been used for handcuffing the applicant. B. denied seeing any injuries on the applicant and stated that the applicant could not have received any injuries during his apprehension. 21. On 26 July 2006 witness R.O. stated that after being punched by the applicant the police officer had tried to twist the applicant’s hands behind his back, first alone and then with the help of another police officer, in order to handcuff the applicant. The applicant had resisted and tried to break away. After being distracted for some time, R.O. had next seen the applicant being led by police officers to the police station. R.O. had not seen the police officers beating the applicant or the applicant falling. 22. On 15 December 2006 the applicant was charged with use of violence and insult against police officer Sh. On 16 December 2006 he was given access to the case-file. On 29 December 2006 his case was transferred for trial to the Samarskiy District Court of Samara. 23. On 15 June 2006 the applicant complained to the head of the Samara town police department about the incident on 7 June 2006. His account of the events was the following. He disagreed with an administrative offence record. Kh. reacted by insulting him in foul language and threatening him with an arrest. The applicant responded that he did not wish to listen to the insults and threats. Kh. punched him in the head. While trying to protect himself from other blows which Kh. continued delivering, the applicant fell on the bonnet of the police car and then on the tarmac. Kh. then jumped on him pressing the knee on his chest. The applicant felt sharp pain. Other police officers had come out, twisted his arms behind his back and handcuffed him. The applicant submitted a forensic medical expert’s report of 7 June 2006 and his sick leave certificate and asked to conduct an inquiry and hold the police officers responsible for his ill-treatment. On 24 June 2006 the applicant lodged an application with the Samara regional prosecutor’s office, similar to his complaint to the police. All his applications were forwarded for examination to the Samarskiy district prosecutor’s office. 24. On 23 July 2006 the Samarskiy district prosecutor informed the applicant that his application had been joined to the criminal case against him in relation to the incident on 7 June 2006, and that it would be examined in the course of the preliminary investigation in that case. 25. On 25 July 2006 an investigator from the Samarskiy district prosecutor’s office refused to institute criminal proceedings against the police officers following the examination of the applicant’s complaint within the framework of the criminal case against him. In concluding that there were no elements of the crimes under Articles 285 and 286 of the Criminal Code (exceeding and abusing authority by a public official) in the police officers’ actions, the investigator relied on the statements by Officer Kh. and witnesses I.M. and R.O. According to the applicant, he was not informed of that decision until 22 January 2007. 26. On 10 October 2006 the applicant requested the Samara regional prosecutor to take control over the inquiry into his complaint about police ill‐treatment, stating that he had not been informed of any decision and requesting to order his forensic medical examination, taking into account the medical evidence confirming the fracture of three ribs. 27. On 8 November 2006 the Samara regional deputy prosecutor informed the applicant that his complaint against the police officers would be examined during the preliminary investigation within the framework of the criminal case against him. 28. On 4 December 2006 the applicant requested the Samarskiy district prosecutor to order his forensic medical examination, taking into account the medical evidence confirming the fracture of three ribs. 29. On 7 December 2006 the Samarskiy district prosecutor replied to him that there were no grounds for ordering an additional forensic medical examination. 30. On the latter date the applicant submitted a complaint to the Prosecutor General of the Russian Federation, similar to his complaint of 10 October 2006 to the regional prosecutor. 31. On 22 January 2007 the applicant was summoned to the Samarskiy District Court of Samara within the framework of the criminal proceedings against him and served a copy of the refusal of the Samarskiy district prosecutor’s office of 25 July 2006 to institute criminal proceedings against the police officers. The applicant appealed against the refusal to the Samara regional prosecutor’s office and the Prosecutor General of the Russian Federation. On 14 February 2007 the Samarskiy district prosecutor’s office informed the applicant that there were no grounds for the annulment of the decision of 25 July 2006 because his allegations of police ill-treatment had not been based on any objective evidence, as followed from the judgment in the criminal case against him. 32. On 5 February 2007 the Samarskiy District Court of Samara delivered a judgment, in which it established that at approximately 8.30 a.m. on 7 June 2006 outside the Samarskiy district traffic police station the applicant addressed Officer Kh., who was in a uniform and in the performance of his official duties, in foul language and punched him once in the face. 33. According to the trial records, the court relied on the testimonies of the police officers and witnesses R.O. and I.M. In particular, R.O. stated that the applicant had punched the police officer in the course of “fighting”. I.M. stated not to have seen what had happened after the applicant had punched the police officer. 34. Officers Kh. and B. stated, in relation to the force used against the applicant, that the applicant had been handcuffed. Kh. specified that he had had difficulties handcuffing the applicant. Therefore, he had used permitted combat techniques on him. The applicant’s abrasions could have been caused during his apprehension. Kh. had found his watch with a metal bracelet lying on the ground after the incident. 35. Police officer G. stated to have seen from the window of his office the applicant addressing Kh. (G.’s subordinate) in foul language and punching Kh. in the face. G. had taken handcuffs and run outside, where he had seen the applicant standing in a bended position near the car, his hands held by Kh. behind his back. Officer B. had been there. G. had handcuffed the applicant. 36. The applicant pleaded not guilty. He argued that the police officers’ actions from the moment they had stopped his car on the road had been unlawful and that it was Officer Kh. who had physically assaulted him. Kh. had twisted his arms, lied him down on the bonnet of the police car and started beating him. Kh. had punched him in the head, had wrung his arms and had delivered a blow to his chest by the leg. The applicant mentioned his fall. Then a chief police officer had come out and handcuffed the applicant. 37. The applicant’s colleague and another witness stated to have seen the applicant coming to his workplace on 7 June 2006 (during lunch time) dirty, with abrasions and bruises, complaining about pain in the area of the lungs and having difficulties breathing, and explaining that he had been beaten up by police officers. 38. In its judgment the trial court noted the findings in the forensic medical examination report of 27 November 2006 in respect of the bruises and abrasions recorded on the applicant on 7 June 2006 and that report’s inconclusiveness in respect of the applicant’s thoracic cage injury. As to the additional forensic medical expert’s report of 18 January 2007, which concluded that the applicant had a fracture of three ribs, the trial court stated that that report too had not reliably established the circumstances in which that injury had been caused. 39. The court concluded that the applicant’s allegations of his beatings by the police officers had not been based on any objective evidence and were aimed at avoiding his own criminal responsibility. 40. The court also dismissed as baseless the applicant’s argument that the police officers had acted unlawfully in deciding that he had had no right to drive his father’s car. 41. The Samarskiy District Court convicted the applicant of use of force and insult against a public official in the performance of his official duties under Articles 318 and 319 of the Criminal Code and imposed a conditional sentence of two years’ imprisonment. 42. The applicant appealed against the judgment, maintaining his arguments about the unlawfulness of the police officers’ actions and his beatings by them. 43. On 23 March 2007 the Samara Regional Court upheld the applicant’s conviction and mitigated his punishment, replacing the imprisonment sentence with a fine of 2,600 Russian roubles. The appeal court addressed the applicant’s arguments as follows:
“The recourse to physical force against Sharkov was justified by the violence which Sharkov himself had used against the police officer performing his service duties. Therefore, these arguments cannot lead to granting the appeal. The [trial] court had had good reasons for considering the additional forensic medical report (produced by the applicant at the hearing) unreliable. It follows from the report that the expert had made his conclusions on the basis of medical documents prepared on 8 September 2006 and 2 October 2006, that is three months after the crime on 7 June 2006. The report had provided no information about the correlation between the time of the appearance of the injuries and the time of the crime. Therefore, their relation to the event of the crime had not been confirmed.”
THE LAW
44. The applicant complained that he had suffered violence at the hands of the police and that no effective investigation had been carried out by the authorities into his complaint. He invoked multiple provisions of the Convention. The Court considers that his complaint falls to be examined under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
45. The Government stated that the applicant’s complaint against the police officers and the criminal case against him had concerned one and the same incident on 7 June 2006. The evidence collected within the framework of the criminal case against the applicant had been used for the pre‐investigation inquiry into his complaint. Therefore, the non-institution of criminal proceedings against the police officers had not adversely affected that inquiry which had been efficient. The Samarskiy District Court gave its assessment of the applicant’s alleged ill-treatment during the examination of the criminal case against him. It had the competence to establish the fact of the applicant’s ill-treatment in a judgment or a special ruling, which could have triggered the annulment of the investigating authority’s decision of 25 July 2006 (not to prosecute the police officers) and the institution of criminal proceedings against them, which in its turn could have led to the officers’ conviction and the payment of compensation to the applicant. The applicant’s acquittal could equally have led to the annulment of the investigating authority’s decision of 25 July 2006. 46. The Government noted that the Samarskiy District Court had established in its judgment that the use of force against the applicant had been necessary in order to stop the applicant’s aggression against the police. The applicant’s minor injuries (bruises and abrasions) had therefore been caused as a result of the lawful use of force by the police officers. As to his chest injury, the circumstances of its infliction had not been established because the necessary medical documents were missing. 47. The applicant maintained his complaint. 48. The Government submitted that the applicant had not lodged a court appeal against the refusal to prosecute the police officers of 25 July 2006, failing therefore to exhaust effective domestic remedies. 49. The applicant disagreed. 50. The Court notes that the applicant’s allegations of violence by Officer Kh. during the incident on 7 June 2006 were examined and dismissed during the trial in the criminal case concerning the applicant’s use of force against Officer Kh. in the same incident. The Court has no reason to doubt the Government’s arguments that the trial court had the competence to establish the fact of the violence against the applicant which could have led to the annulment of the refusal to prosecute the police officers of 25 July 2006, as could have equally happened in case of the applicant’s acquittal (see paragraph 45 above). In these circumstances the Court is not convinced that the applicant should have lodged a separate court appeal against the refusal to prosecute the police officers, outside the criminal proceedings against him in which his allegations of the police violence were made and assessed. The Government’s objection should be dismissed. 51. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 52. The Court reiterates that in respect of a person who is deprived of his or her liberty, or, more generally, is confronted with law‐enforcement officers, any recourse to physical force which has not been made strictly necessary by his or her own conduct diminishes human dignity and is an infringement of the right set forth in Article 3 of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 100-01, ECHR 2015). In assessing the evidence on which to base the decision as to whether there has been a violation of Article 3, the Court has generally applied the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006‐IX). The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first‐instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a “particularly thorough scrutiny”, even if certain domestic proceedings and investigations have already taken place. In other words, in such a context the Court is prepared to be more critical of the conclusions of the domestic courts. In examining them, the Court may take into account the quality of the domestic proceedings and any possible flaws in the decision-making process (see El‐Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 155, ECHR 2012). 53. The Court notes the Government’s argument that in the present case the use of force against the applicant had been necessary in order to stop his aggressive actions against the police. 54. The domestic courts found that the recourse to physical force against the applicant had been justified by his own violence against the police, notably punching police officer Sh. in the face. The Court notes, however, that while the facts concerning the applicant’s use of force had been well established, the same cannot be said in respect of the force used against the applicant. It does not follow from the domestic authorities’ decisions that the relevant facts were established. The factual basis for their findings was therefore unclear and the assessment, required by Article 3, of whether the force used against the applicant was strictly necessary in view of his conduct, was clearly missing. 55. At the trial the applicant described the alleged police violence to include, inter alia, his arms being twisted and wrung, his receiving a blow to the head and a blow to the chest and his being handcuffed (see paragraph 36 above). The account of the alleged police violence in his criminal complaint of 15 June 2006 and his explanations to the forensic medical experts on 7 June 2006, 31 July 2006 and 9 January 2007 were essentially the same, specifying that the chest injury had been inflicted by Officer Kh. jumping on the applicant and pressing his knee on the applicant’s chest while the applicant was lying on the tarmac after falling in the course of Kh.’s aggression (see paragraphs 6, 10, 14 and 23 above). 56. The applicant’s allegations of violence suffered at the hands of the police were supported by medical evidence attesting to the presence of bruises on his forehead and multiple bruises, scratches and abrasions on his upper extremities, as well as abrasions on the neck and knee (see paragraph 7 above). The injuries were recorded on 7 June 2006 immediately after the incident. The time and mechanism of their infliction established by the forensic medical expert were consistent with the applicant’s allegations (see paragraph 12 above). The Government agreed that all those injuries had been inflicted as a result of the force used by the police officers (see paragraph 46 above). 57. As regards the applicant’s chest injury, the surgeon examined the applicant on the same day and diagnosed him with the fracture of a rib, as well as contusion of the thoracic cage (see paragraph 8 above). The latter diagnosis and posttraumatic intercoastal neuralgia were later established by a doctor of the regional hospital and doctors at the local polyclinic, where the applicant received treatment and was given sick leave from the day of the incident until 21 July 2006 (see paragraph 9 above). 58. On 31 July 2006 the applicant sought a forensic medical examination in respect of his thoracic cage injury. Following the expert’s refusal to confirm the diagnoses made by the polyclinic doctors, considering that they were not sufficiently supported by information in the medical records (see paragraph 10 above), additional examinations were carried out on 8 September and 2 October 2006. Their results enabled the expert to conclude in the report of 18 January 2007 that, in addition to the injuries recorded on 7 June 2006, the applicant also had the fracture of three ribs, which had caused medium gravity harm to his health owing to the duration of his health disorder exceeding three weeks (see paragraphs 14-15 above). 59. In the Court’s view, the above medical evidence shows conclusively that after the incident on 7 June 2006 the applicant also had the fracture of ribs, which was consistent with his allegations of the police officer’s violence at its origin (see paragraph 55 above). 60. The Court notes that the above-mentioned forensic medical examination reports were obtained by the applicant independently, while his requests for forensic medical examination in the course of the inquiry into his complaint were not granted by the authorities (see paragraphs 26 and 28‐30 above). The report of 27 November 2006 ordered by the investigating authorities did not take into account the results of the X-ray imaging and radionuclide bone imaging. The expert who prepared that report was therefore unable to make any conclusions about the presence and nature of the thoracic cage injury, though noting certain clinical signs which could be indicative of the fracture of ribs (see paragraphs 11 and 13 above). 61. The domestic courts discarded the expert’s report of 18 January 2007 as unreliable, noting that it had not established the time and circumstances of the infliction of the ribs’ fracture (see paragraphs 38 and 43 above). The Court notes that it was the authorities’ responsibility, as part of their investigation into the alleged police violence against the applicant, to timely order a forensic medical examination, put relevant questions and provide an expert with necessary information. Instead, they made the applicant bear the consequences of their failure to do so. 62. Witnesses at the applicant’s workplace testified that shortly after the incident they had seen the applicant dirty, with abrasions and bruises, complaining about pain in the area of the lungs and having difficulties breathing, and explaining that he had been beaten up by police officers (see paragraph 37 above). This gives further credence to the applicant’s allegations. 63. The Court also notes that the statements by the only eyewitnesses to the incident, who did not belong to the police force, are not very informative about the use of force by the police officers against the applicant, as the witnesses stated not to have seen it either entirely (I.M., see paragraph 33 above) or partially (R.O.’s statements at the preliminary investigation, see paragraph 21 above). R.O.’s statements at the trial mentioned “fighting” between the applicant and the police officer (see paragraph 33 above). 64. Officer Kh.’s statements at the trial indicated, apart from handcuffing the applicant, his using permitted combat techniques (see paragraph 34 above). The specific actions in using force against the applicant on the part of each of the two or three police officers confronted by him (see paragraph 20 above) were not however established. 65. Lastly, it is of importance that none of the police officers involved in the incident sustained any medically attested injuries as a result of the applicant’s use of force against them. 66. The foregoing enables the Court to conclude that all the applicant’s injuries, including the ribs’ fracture, were attributable to the use of force against him by the police officers on 7 June 2006, which was not shown to have been strictly necessary in view of the applicant’s conduct. 67. The authorities’ reaction to the applicant’s complaint, notably the dismissal of his criminal complaint in the perfunctory decision dispensing with the prosecution of the police officers, of which he was kept unaware for several months, their disregarding his requests for ordering the forensic medical examination, and the flawed assessment of his allegations by the domestic courts, demonstrate the authorities’ failure to take all reasonable steps available to them to secure the evidence, to carry out a thorough, objective and impartial analysis of all relevant elements and to make a serious attempt to find out what had happened. They therefore failed in their obligation to conduct an effective investigation into the applicant’s credible allegations of the police violence (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 68. In view of the foregoing, there has been a violation of Article 3 of the Convention under its substantive and procedural heads. 69. The applicant further complained under various provisions of the Convention that he had been wrongly convicted of recourse to physical force against a public official, since the police officers had acted unlawfully. 70. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 71. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 72. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
73. The applicant asked the Court to determine the amount of compensation in respect of non-pecuniary damage in accordance with its case-law. He claimed 1,027 Russian roubles (RUB) in respect of his medical expenses incurred in connection with the injuries suffered at the hands of the police. He also claimed RUB 28,841 in respect of some costs and expenses, and a further sum in respect of postal expenses. 74. The Government contested the claim. 75. The Court awards the applicant 13,000 euros (EUR) in respect of non‐pecuniary damage. 76. It further awards the applicant EUR 12, plus any tax that may be chargeable, in respect of pecuniary damages, to cover the medical expenses. It also awards him EUR 500 in respect of costs related to the forensic medical examination, legal services in the domestic proceedings and postage, plus any tax that may be chargeable to the applicant. 77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 12 (twelve euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 13,000 (thirteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 11 May 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.nature_p_1} {signature_p_2
Olga Chernishova Darian PavliDeputy RegistrarPresident