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

Information

  • Judgment date: 2021-10-19
  • Communication date: 2013-02-19
  • Application number(s): 44071/06
  • Country:   RUS
  • Relevant ECHR article(s): 3, 6, 6-1
  • Conclusion:
    Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment
    Inhuman treatment) (Substantive aspect)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.900482
  • 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 Andrey Petrovich Portnyagin, is a Russian national, who was born in 1979 and lived in Chita before his conviction.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A.
Criminal proceedings concerning assault on the applicant According to the applicant, on 1 November 2002 at about 9 p.m. he was beaten up in his flat in Chita by three unknown persons in police uniforms.
There was allegedly blood everywhere in his kitchen.
He was then taken in a baggage compartment of their Volga car to a lake near the settlement of Naklonniy where the beatings continued.
He was subsequently thrown out of their car in one of the streets of Naklonniy where he was found by Ms E.P., her mother Ms M.P.
and Mr A.G.
He was hospitalised in the same evening and diagnosed with a spine injury which resulted in a disability.
Subsequently he required a walking stick to move around.
Next day he was questioned by the police in the hospital.
He stated that his assailants had been in police uniforms with a stripe on a sleeve bearing an inscription in yellow.
On 12 November 2002 investigator Zh.
of the Kadalinskoe police station at the Chernovskiy district police department of Chita (Кадалинское ОМ при Черновском РОВД г. Читы, “Chernovskiy ROVD”) brought criminal proceedings no.
17779 under Article 111 § 3 (a) of the Criminal Code (intentional infliction of grievous bodily harm by a group of persons) based on a report of 5 November 2002 by senior operative officer Mr M. The decision was approved by deputy prosecutor of Chernovskiy district, Ms K., on the same day.
On 25 November 2002 the applicant received victim status in the proceedings.
The applicant was taken to the Chernovskiy ROVD for a number of investigative actions.
During an identification parade on an unspecified date in 2003 he identified two men ‐ S. and V. ‐ who turned out to be police officers of a security service (tasked with guarding buildings, apartments and other property) of the Kadalinskoe police station at the Chernovskiy district police department of Chita (ОВО при Кадалинском ОМ Черновского РОВД г. Читы, “Chernovskiy OVO”).
The applicant identified the third assailant – Mr T., a driver from Chernovskiy OVO, – during a confrontation with him.
He also identified his assailants’ Volga car which belonged to the Chernovskiy OVO.
It was established that all three ‐ S., V., and T. ‐ were one team on duty in the evening of 1 November 2002.
They denied the applicant’s allegations.
On an unspecified date the Chernovskiy ROVD investigator suspended the criminal proceedings for lack of person to be charged (under Article 208 § 1 (1) of the Code of Criminal Procedure) considering that the total of evidence collected as a result of the investigation was insufficient to level charges against police officers S., V., and T. Subsequently, as a result of the applicant’s persistent complaints the investigation was reopened and suspended again on numerous occasions throughout 2003-2011 by authorities in charge of the investigation at the relevant times, in particular the Chita Chernovskiy ROVD investigation division (Следственный Отдел при ОВД Черновского р-на г. Читы), the Chita Chernovskiy district prosecutor’s office investigators (следователи прокуратуры Черновского р-на г. Читы), and the Chernovskiy district investigation department at the prosecutor’s office of the Zabaykalskiy region (Следственный Отдел по Черновскому р-ну г. Читы Следственного Управления Следственного Комитета при прокуратуре РФ по Забайкальскому краю).
The decisions to suspend the proceedings were annulled by the investigators’ superiors as unlawful in view of incomplete investigation and the investigators’ failure to correct the deficiencies previously identified.
The Chernovskiy district prosecutor and the investigator from her office were subject to internal inquiry and disciplinary proceedings.
As a result the prosecutor was deprived of her salary bonus in 2007.
The applicant’s appeals under Article 125 of the Code of Criminal Procedure against the suspension of the criminal proceedings were not subject to judicial examination, as the challenged decisions had, by the time of the court hearings, been annulled by the investigators’ superiors (the Chita Regional Court’s decisions of 26 February and 15 October 2007).
The applicant was denied access to the materials of the investigation, other than the decisions to suspend and reopen the proceedings, for the reason that by virtue of Article 42 § 2 (12) of the Code of Criminal Procedure the access to the entire case-file would only be available as soon as the preliminary investigation would end.
This never happened in the applicant’s case.
B.
Criminal proceedings concerning the applicant’ assault on S. In October 2005 the applicant committed intentional infliction of bodily harm on Mr S. He was convicted in a judgment of the Justice of the Peace of the 12th circuit of Chernovskiy district of Chita of 29 August 2007, which was upheld by the Chita Regional Court on 11 February 2008.
C. Criminal proceedings concerning the applicant’s assault on G. and the latter’s death On 21 December 2006 the Chernovskiy District Court of Chita convicted the applicant of Mr G.’s robbery and intentional infliction of grievous bodily harm on Mr G. causing the latter’s death, committed in January 2006.
It sentenced the applicant to twelve years’ imprisonment in a strict regime colony.
On that day the District Court held its hearing in a hospital at penitentiary establishment IK-5 where the applicant had been undergoing in‐patient treatment since 13 December 2006.
At the hearing, judge T. of the District Court read out the judgment in the presence of an assistant prosecutor, the applicant and his co-defendant, in a procedure unit of the hospital.
On 26 February 2007 the Chita Regional Court upheld the judgment on appeal.
D. Imprisonment under the 2006 judgment During the first half of 2007 the applicant was detained in the Zabaykalskiy region penitentiary establishments IK-5, IK-2, IK-7 and IZ‐75/1.
He was allegedly transported from one detention facility to another in prison vans designed for transportation of 20 detainees but used for 30‐35 detainees.
Each transportation was allegedly preceded by six-eight hours’ waiting time in cells together with about 40 people.
During his imprisonment the applicant received medical treatment for his spine injury and tuberculosis.
His numerous requests for earlier release on the ground of his health condition were dismissed by courts because his diseases did not make him eligible for release and because he was under permanent medical supervision and received necessary treatment.
Medical experts called to assess his condition were of the opinion that his complaints about his state of health were incoherent with the objective data.
The applicant brought proceedings for damages against IZ-75-1 alleging that he had contracted tuberculosis during his detention in that detention facility in December 2008 ‐ February 2009.
On 6 November 2009 the Ingodinskiy District Court of Chita established that the applicant had been diagnosed with tuberculosis during his imprisonment back in 1997 and had been operated in 1999.
His allegation that in IZ-75-1 he had been placed in a cell together with persons ill with tuberculosis had been untrue.
It rejected the applicant’s complaint.
On 30 December 2009 the Zabaykalskiy Regional Court upheld the District Court’s judgment on appeal.
The applicant brought proceedings against IK-4 seeking damages for alleged deterioration of his health as a result of his placement in a disciplinary cell in January – February 2010.
On 11 August 2010 the District Court examined the applicant’s complaint and rejected it as unfounded.
It established that his health condition had been compatible with his placement in a disciplinary cell and that he had received medical treatment there.
On 15 September 2010 the Regional Court upheld the District Court’s judgment on appeal.
E. Provision of wheelchair and walking stick On 19 August 2010 the applicant’s regular medical examination confirmed his disability category II for one year.
According to an individual rehabilitation programme set up for the period from August 2010 to August 2011, he was to be provided with an indoor wheelchair and a walking stick.
As the applicant had not received them from the authorities, his family provided him with a wheelchair.
The Chita prosecutor supervising law observance in Zabaykalskiy region penitentiary establishments brought proceedings in his interests.
On 25 July 2011 the Tsentralniy District Court of Chita ordered the Social Defence Ministry for the Zabaykalskiy region to provide the applicant with a wheelchair and a walking stick.
As of 27 February 2012 the judgment remained unenforced.
COMPLAINTS 1.
The applicant complains under Articles 3, 5, 6, 13 and 17 of the Convention that on 1 November 2002 he had been beaten up by police officers S., V. and T. who remained unpunished because their crime had not been properly investigated.
2.
He complains under Article 6 of the Convention that he did not receive a fair trial in the proceedings concerning G.’s death, and that the judgment was delivered in the hospital and not in the courtroom.
3.
The applicant complains that his requests for earlier release on health grounds were dismissed; that he contracted tuberculosis in IZ-75-1; and that his health deteriorated as a result of his placement in a disciplinary cell in IK‐4.
He also complains about the conditions of his transportation between detention facilities in the first half of 1997.
4.
In his additional application form of 11 February 2011 the applicant complains that he did not receive a fair trial in the proceedings concerning infliction of bodily harm on S. 5.
In his additional application form of 27 February 2012 the applicant complained that he had not been provided with a wheelchair and a walking stick despite the Tsentralniy District Court’s judgment of 25 July 2011.

Judgment

THIRD SECTION
CASE OF PORTNYAGIN v. RUSSIA
(Application no.
44071/06)

JUDGMENT
STRASBOURG
19 October 2021

This judgment is final but it may be subject to editorial revision.
In the case of Portnyagin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no.
44071/06) 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 Andrey Petrovich Portnyagin (“the applicant”), on 13 September 2006;
the decision to give notice to the Russian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 28 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1.
The application concerns the lack of an effective criminal investigation into the assault on the applicant by three individuals wearing police uniform. THE FACTS
2.
The applicant was born in 1979 and lives in Chita. 3. The Government were represented initially by Mr G. Matyushkin, the then Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. At about 9 p.m. on 1 November 2002 the applicant was beaten up in his flat in Chita by three unknown persons. According to the applicant, they wore police uniforms. He was then taken in the trunk of a car to a nearby lake, where the beatings continued. Some time later, he was thrown out of the car in a street. He was hospitalised in the same evening and diagnosed with multiple serious bruises all over his body and a serious spine injury which resulted in a disability. 6. On the next day he was questioned by the police and stated that his assailants had been in police uniforms with a stripe on a sleeve bearing an inscription in yellow. 7. On 12 November 2002 an investigator of the Kadalinskoe police station at the Chernovskiy district police department of Chita brought criminal proceedings in connection with these events. On 25 November 2002 the applicant received victim status in the proceedings. 8. Between November 2002 and 2012 the investigation authorities over thirty times terminated and re-opened the investigation in this case. 9. It does not appear that any meaningful attempts were made to try to locate the perpetrators right after the events. Some time in 2003 during an identification parade the applicant recognised two of the assailants who turned out to be officers serving at the same police station that was in charge of the investigation and their car which belonged that station. It appears that the attack was unrelated to the assailants’ work in the police and may have had a personal character. As a result of the delays of the investigation and visible lack of initiative the authorities were unable to collect any meaningful evidence to bring criminal charges against anyone. 10. The decisions to suspend the proceedings were annulled on multiple occasions by the investigators’ superiors as unlawful in view of incomplete investigation and the investigators’ failure to correct the deficiencies previously identified. The Chernovskiy District Prosecutor and the investigators from that office were subject to internal inquiry and disciplinary proceedings. 11. The applicant’s appeals under Article 125 of the Code of Criminal Procedure against the suspension of the criminal proceedings were not subject to judicial examination, as the challenged decisions had, by the time of the court hearings, been annulled by the investigators’ superiors (the Chita Regional Court’s decisions of 26 February and 15 October 2007). 12. The applicant was denied access to the materials of the investigation, other than the decisions to suspend and reopen the proceedings. 13. The outcome of the case is unclear. THE LAW
14.
The applicant complained that on 1 November 2002 he had been ill‐treated by three police officers and that the ensuing investigation into the events had been defective, in breach of Article 3 of the Convention. That Convention provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
15.
The applicant maintained his complaints. 16. The Government agreed that the investigation of the events of 1 November 2002 had been in breach of the procedural aspect of Article 3 of the Convention, but denied that the three officers allegedly involved in the assault had been acting in their official capacity or otherwise on behalf of the authorities. They considered that, contrary to the applicant’s position, there was no proof “beyond reasonable doubt” confirming the applicant’s allegations of direct State involvement in the attack. 17. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 18. The Court observes that in the present case the Government acknowledged the breach of the procedural aspect of Article 3 of the Convention and, having observed the case file materials and the parties’ submissions, it finds no reason to hold otherwise. There were serious shortcomings affecting the effectiveness, promptness and impartiality of the investigation, which despite the ten-year duration of the proceedings were never properly addressed and corrected at the domestic level. 19. There has therefore been a violation of Article 3 of the Convention under its procedural limb. 20. Turning to the applicant’s allegations under the substantive aspect of Article 3 of the Convention, the Court reiterates that in assessing the evidence on which to base a decision as to whether there has been a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt”. It is true that in certain cases 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). 21. In the present case, however, it is not in dispute between the parties that the case file contains no evidence which could confirm that the persons allegedly involved in the assault on the applicant of 1 November 2002 were acting in their official capacity or within the framework of any official proceedings. 22. Having regard to the parties’ submissions and all the materials in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the applicant was subjected to treatment contrary to Article 3 of the Convention by the police officers, as alleged. In this respect it particularly emphasizes that its inability to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention derives in a considerable part from the failure of the domestic authorities to react effectively to the applicant’s complaints at the relevant time (see Lopata v. Russia, no. 72250/01, §§ 123-26, 13 July 2010). 23. Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant’s ill-treatment. 24. Lastly, the Court has examined the complaints about various events and proceedings in which the applicant was involved between 2006 and 2011 submitted by the applicant and, having regard to all the material in its possession and in so far as it falls within the its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 25. 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.”
26.
The applicant claimed 5,000,000 euros (EUR) in respect of the pecuniary and non-pecuniary damage and made no claims in respect of costs and expenses. 27. The Government considered that the award should be based on the Court’s case-law. 28. The Court awards the applicant EUR 12,500 in respect of non‐pecuniary damage, plus any tax that may be chargeable on that sum. 29. 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, EUR 12,500 (twelve thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 19 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{signature_p_2}
Olga Chernishova Peeter RoosmaDeputy Registrar President

THIRD SECTION
CASE OF PORTNYAGIN v. RUSSIA
(Application no.
44071/06)

JUDGMENT
STRASBOURG
19 October 2021

This judgment is final but it may be subject to editorial revision.
In the case of Portnyagin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges,and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no.
44071/06) 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 Andrey Petrovich Portnyagin (“the applicant”), on 13 September 2006;
the decision to give notice to the Russian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 28 September 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1.
The application concerns the lack of an effective criminal investigation into the assault on the applicant by three individuals wearing police uniform. THE FACTS
2.
The applicant was born in 1979 and lives in Chita. 3. The Government were represented initially by Mr G. Matyushkin, the then Representative of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, his successor in that office. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. At about 9 p.m. on 1 November 2002 the applicant was beaten up in his flat in Chita by three unknown persons. According to the applicant, they wore police uniforms. He was then taken in the trunk of a car to a nearby lake, where the beatings continued. Some time later, he was thrown out of the car in a street. He was hospitalised in the same evening and diagnosed with multiple serious bruises all over his body and a serious spine injury which resulted in a disability. 6. On the next day he was questioned by the police and stated that his assailants had been in police uniforms with a stripe on a sleeve bearing an inscription in yellow. 7. On 12 November 2002 an investigator of the Kadalinskoe police station at the Chernovskiy district police department of Chita brought criminal proceedings in connection with these events. On 25 November 2002 the applicant received victim status in the proceedings. 8. Between November 2002 and 2012 the investigation authorities over thirty times terminated and re-opened the investigation in this case. 9. It does not appear that any meaningful attempts were made to try to locate the perpetrators right after the events. Some time in 2003 during an identification parade the applicant recognised two of the assailants who turned out to be officers serving at the same police station that was in charge of the investigation and their car which belonged that station. It appears that the attack was unrelated to the assailants’ work in the police and may have had a personal character. As a result of the delays of the investigation and visible lack of initiative the authorities were unable to collect any meaningful evidence to bring criminal charges against anyone. 10. The decisions to suspend the proceedings were annulled on multiple occasions by the investigators’ superiors as unlawful in view of incomplete investigation and the investigators’ failure to correct the deficiencies previously identified. The Chernovskiy District Prosecutor and the investigators from that office were subject to internal inquiry and disciplinary proceedings. 11. The applicant’s appeals under Article 125 of the Code of Criminal Procedure against the suspension of the criminal proceedings were not subject to judicial examination, as the challenged decisions had, by the time of the court hearings, been annulled by the investigators’ superiors (the Chita Regional Court’s decisions of 26 February and 15 October 2007). 12. The applicant was denied access to the materials of the investigation, other than the decisions to suspend and reopen the proceedings. 13. The outcome of the case is unclear. THE LAW
14.
The applicant complained that on 1 November 2002 he had been ill‐treated by three police officers and that the ensuing investigation into the events had been defective, in breach of Article 3 of the Convention. That Convention provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
15.
The applicant maintained his complaints. 16. The Government agreed that the investigation of the events of 1 November 2002 had been in breach of the procedural aspect of Article 3 of the Convention, but denied that the three officers allegedly involved in the assault had been acting in their official capacity or otherwise on behalf of the authorities. They considered that, contrary to the applicant’s position, there was no proof “beyond reasonable doubt” confirming the applicant’s allegations of direct State involvement in the attack. 17. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 18. The Court observes that in the present case the Government acknowledged the breach of the procedural aspect of Article 3 of the Convention and, having observed the case file materials and the parties’ submissions, it finds no reason to hold otherwise. There were serious shortcomings affecting the effectiveness, promptness and impartiality of the investigation, which despite the ten-year duration of the proceedings were never properly addressed and corrected at the domestic level. 19. There has therefore been a violation of Article 3 of the Convention under its procedural limb. 20. Turning to the applicant’s allegations under the substantive aspect of Article 3 of the Convention, the Court reiterates that in assessing the evidence on which to base a decision as to whether there has been a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt”. It is true that in certain cases 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). 21. In the present case, however, it is not in dispute between the parties that the case file contains no evidence which could confirm that the persons allegedly involved in the assault on the applicant of 1 November 2002 were acting in their official capacity or within the framework of any official proceedings. 22. Having regard to the parties’ submissions and all the materials in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the applicant was subjected to treatment contrary to Article 3 of the Convention by the police officers, as alleged. In this respect it particularly emphasizes that its inability to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention derives in a considerable part from the failure of the domestic authorities to react effectively to the applicant’s complaints at the relevant time (see Lopata v. Russia, no. 72250/01, §§ 123-26, 13 July 2010). 23. Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant’s ill-treatment. 24. Lastly, the Court has examined the complaints about various events and proceedings in which the applicant was involved between 2006 and 2011 submitted by the applicant and, having regard to all the material in its possession and in so far as it falls within the its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 25. 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.”
26.
The applicant claimed 5,000,000 euros (EUR) in respect of the pecuniary and non-pecuniary damage and made no claims in respect of costs and expenses. 27. The Government considered that the award should be based on the Court’s case-law. 28. The Court awards the applicant EUR 12,500 in respect of non‐pecuniary damage, plus any tax that may be chargeable on that sum. 29. 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, EUR 12,500 (twelve thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 19 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{signature_p_2}
Olga Chernishova Peeter RoosmaDeputy Registrar President