Mensenrechtenhof veroordeelt Rusland wegens martelingen in een politiecel (en)

The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Mikheyev v. Russia (application no. 77617/01).

The Court held unanimously that there had been:

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  a violation of Article 3 (prohibition of torture) of the European Convention on Human Rights concerning the treatment inflicted on the applicant while in police custody;
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  a violation of Article 3 concerning the failure to conduct an effective investigation into the applicant's fall from a police station window on 19 September 1998; and,
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  a violation of Article 13 (right to an effective remedy).

Under Article 41 (just satisfaction), the Court awarded the applicant 130,000 euros (EUR) for pecuniary and EUR 120,000 for non-pecuniary damage. (The judgment is available only in English.)

The applicant, Aleksey Yevgenyevich Mikheyev, is a Russian national, aged 29, who lives in Nizhney Novgorod (Russia). At the relevant time he was a road traffic officer in the police force.

On 8 September 1998, while off duty, Mr Mikheyev and his friend F, gave MS, a teenage girl, a lift in the applicant's car. The girl was subsequently reported missing.

On 10 September Mr Mikheyev and F were arrested and questioned in relation to MS's disappearance and detained in custody. The applicant claimed that, while in police custody, his superior officer also forced him to sign a back-dated letter of resignation from the police.

On 11 September the police searched Mr Mikheyev's flat, country house, garage and car and found three gun cartridges in his car.

On 12 September an administrative offence report was filed against the applicant and F for allegedly disturbing the peace. They were sentenced to five days administrative detention.

On 16 September 1998 the police opened a criminal investigation into the finding of the gun cartridges in Mr Mikheyev's car. He was placed in custody and transferred to another detention centre under the jurisdiction of Leninskiy police department where, he submitted, questioning became more intensive and violent.

Meanwhile, F testified to the police that he had seen the applicant rape and kill MS.

On 19 September 1998 Mr Mikheyev was questioned at Leninskiy police station in the presence of several police officers and prosecution officials, including the deputy regional prosecutor.

Mr Mikheyev alleged that he was later tortured to make him corroborate F's confession and that police officers administered electric shocks to his ears through metal clips connected by a wire to a box. He was also threatened that he would be severely beaten and that an electric current would be applied to his genitals. He complained to the deputy regional prosecutor about the ill-treatment, who allegedly took no action. Then, unable to withstand the torture, Mr Mikheyev submitted that he broke free and jumped out of the window of the second floor of the police station to commit suicide. He fell on a motorbike and broke his spine. He was taken to hospital, where his mother asked a number of doctors to make a note of the burns on her son's ears in his medical records. Her request was refused.

The same day, MS returned home unharmed, explaining that she had gone to stay with friends without telling her parents. The criminal case concerning her alleged abduction rape and murder were consequently closed. However Mr Mikheyev was then charged with MS's abduction. That charge was dropped on 1 March 2000 on the ground that he had freed MS at her request.

The case concerning the illegal possession of gun cartridges was discontinued on 1 March 1999 on the ground that, being a police officer at the time, Mr Mikheyev was entitled to have ammunition in his possession.

On 21 September 1998 a criminal investigation was opened into the applicant's fall from the police station window. The criminal proceedings were discontinued on 21 December 1998, however, for lack of evidence. The case was subsequently reopened and closed several times. On 5 September 2002 the prosecution service discontinued the investigation, finding that no criminal offence had been committed. The case was then again reopened and closed a number of times.

A forensic medical examination of Mr Mikheyev was drawn up on 26 October 1998 which found that he had wounds on the top of his head, scratches on his forehead and bite marks on his tongue. No burns or other traces of the use of electrical current were recorded.

In 2005 two policemen who had participated in the questioning of the applicant on 19 September 1998 were charged. The case file was eventually forwarded to Leninskiy District Court of Nizhniy Novgorod, which found that the police officers had administered electric shocks to the applicant using a device connected to his ears. Unable to withstand the pain, the applicant had attempted suicide by jumping out of the window. On 30 November 2005 the police officers were found guilty under Article 286  3 (a) and (?) of the Criminal Code of abuse of official power associated with the use of violence or entailing serious consequences. According to the information available to the Court, the judgment is not yet final.

Mr Mikheyev's dismissal from the police force was later annulled and he was reinstated in his post. The officers responsible for his backdated dismissal were subjected to disciplinary proceedings. However, he is completely disabled and has had to leave the traffic police.

The application was lodged with the European Court of Human Rights on 16 November 2001 and declared partly admissible on 7 October 2004.

Judgment was given by a Chamber of seven judges, composed as follows:

Christos Rozakis (Greek), President,

Loukis Loucaides (Cypriot),

Peer Lorenzen (Danish),

Snejana Botoucharova (Bulgarian),

Anatoli Kovler (Russian),

Khanlar Hajiyev (Azerbaijani),

Dean Spielmann (Luxemburger), judges,

and also Soren Nielsen, Section Registrar.

Complaints:

The applicant alleged, in particular, that while in detention on remand he had been tortured by police officers to make him confess to the rape and murder of a female minor. As a result, he had jumped out of the window of the police station and broken his spine. He also complained that the investigation into those events had been ineffective. He relied on Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 13 (right to an effective remedy).

He further complained about the Russian Government's failure to disclose the criminal investigation files, relying on Article 34 (right of individual petition) and Article 38  1 (a) (obligation to provide all necessary facilities for the examination of the case).

Decision of the Court :

Article 3 :

In order to be able to assess the merits of Mr Mikheyev's complaints and in view of the nature of the allegations, the Court asked the Russian Government to submit copies of the criminal investigation files. The Government refused to do so, without explaining how the disclosure of the materials sought might be prejudicial for the interests of the investigation or the individuals involved. Neither did they advance any other plausible explanation for their failure to produce relevant documents and information, which were clearly in their possession.

The Court therefore considered that it could draw inferences from the Government's conduct and examine the merits of the case on the basis of the applicant's arguments and existing elements in the file and the evidence given at the hearing of Leninskiy District Court of Nizhniy Novgorod on 30 November 2005.

Effectiveness of the investigation

The Court noted, among other things, that:

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  the investigators' decisions to discontinue the proceedings disclosed significant omissions in the official pre-trial investigation;

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  many investigative measures were carried out after a significant lapse of time, eg. the forensic report was dated more than five weeks after the alleged ill-treatment;

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  until 2000 the decisions to discontinue the proceedings were based on almost identical evidence and reasoning;

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  there was a clear link between the officials responsible for the investigation and those allegedly involved in the ill-treatment; and,

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  the approach to the assessment and collection of evidence by the prosecutor's office was selective and inconsistent.

The Court was particularly struck by the factual inaccuracy of the investigator's report of 21 December 1998 which stated that the applicant had been arrested for disturbing the peace when it had already been officially confirmed that at the relevant time he had been in the hands of the police.

The Court emphasised that it took seven years for the case to reach trial stage. The pre-trial investigation was closed and then re-opened more than 15 times and it was clear that during certain periods the investigative process was no more than a formality with a predictable outcome.

Finding that the investigation into the alleged ill-treatment was not adequate or sufficiently effective, the Court held that there had been a violation of Article 3.

In view of the delays involved, the Court also concluded that the applicant had not been obliged to wait until the formal completion of the official investigation before bringing his case before the European Court of Human Rights. The Russian Government's objection as to the non-exhaustion of domestic remedies was therefore dismissed.

Alleged ill-treatment :

The Court noted that throughout the investigation Mr Mikheyev had provided a consistent and detailed description of who had tortured him and how. He also had witnesses to support his allegations and the bite marks on his tongue described in the forensic report could also be seen as indirectly supporting his accounts.

In the absence of any evidence to the contrary, the Court concluded that that Mr Mikheyev did not suffer from any mental deficiency which might have influenced his decision to commit suicide. He was subjected to a very stressful situation, having been wrongfully suspected of such an appalling crime. However, no plausible explanation had been adduced as to why, knowing he was innocent, he should attempt suicide, if no pressure had been put upon him. In addition, the Court noted that there was evidence that other detainees had suffered, or been threatened with, similar ill-treatment.

In view of the circumstances, the Court was prepared to accept that, while in custody, Mr Mikheyev was seriously ill-treated by agents of the State, with the aim of extracting a confession or information about the offences of which he was suspected. The ill-treatment inflicted on him caused such severe physical and mental suffering that he attempted suicide, resulting in a general and permanent physical disability. The Court found that the severity of the ill-treatment amounted to torture and constituted a violation of Article 3.

The Court further held, unanimously, that it was not necessary to examine the other complaints submitted by the applicant under Article 3.

Article 13 :

The Court found that Mr Mikheyev had been denied a sufficiently effective investigation in respect of the ill-treatment by the police and thereby access to any other available remedies at his disposal, including a claim for compensation. It therefore found that there had been a violation of Article 13.

Articles 34 and 38 :

The Court held that there was no need to examine separately the applicant's complaints under Articles 34 and 38  1 (a).

The Court's judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights

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Fax: +00 33 (0)3 88 41 27 91 :

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.

• 1. 

  Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

• 2. 

  This summary by the Registry does not bind the Court.