AS TO THE ADMISSIBILITY OF
Application no. 74348/01
by Sergey Vasilyevich BEZGIN
The European Court of Human Rights (First Section),
9 November 2004 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 1 March 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Sergey Vasilyevich Bezgin, is a Russian national, who was born in 1971 and is currently imprisoned in Orel. He was represented before the Court by Mr B. K. Kurbanov, a lawyer practising in Orel. The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The events of 1 December 1999
On 1 December 1999 the police instituted criminal proceedings in connection with a theft of horses committed the night before. The police allegedly had information about the applicant's belonging to the crime and one of the thieves being at his home. At about 10 p.m. on the same day three police officers came to the applicant's house in Orel. They entered his property through a gate and a front door which were unlocked. Two of them produced their service identification cards to the applicant's sister who was in a kitchen. The applicant was not at home. One police officer left the house while the other two decided to remain inside and await the applicant's return. Some time later the applicant arrived. One of the policemen produced his service identity card. As the applicant had doubts about the lawfulness of their visit he sent his sister to call the police. Then a quarrel and a fight ensued between the applicant, who was supported by his relatives, and the two policemen. A squad of police officers arrived soon afterwards. The police left the applicant's home that night at an unspecified time.
2. The applicant's remand in custody
Early in the morning of 2 December 1999 the applicant was arrested pursuant to Article 122 of the Code of Criminal Procedure as a suspect on a count of horses' theft and escorted to the police station. On 3 December 1999 the applicant was detained on remand pursuant to Article 90 of the Code of Criminal Procedure.
According to the applicant, on 8 and 9 December 1999 he was beaten up by police officers who tried to force him to confess.
As the three other suspects changed subsequently their original statements and testified that the applicant had not participated in the crime, in the absence of any other evidence, the police discontinued the criminal proceedings against the applicant and released him on 12 December 1999.
On the same day, at 11:45 p.m., the applicant was examined in the Orel traumatology centre. According to their certificate of 28 August 2001, the applicant had a closed head injury, concussion, a broken nose and bruises on his chest and waist. The applicant was forwarded for a further examination and an in-patient treatment to the Orel hospital where he underwent treatment from 17 to 31 December 1999. The hospital's certificate of 31 December 1999 confirmed the applicant's diagnosis of a closed head injury and concussion.
3. The prosecutor's refusal to institute criminal proceedings against police officers
On an unspecified date in December 1999 the applicant lodged a request with the Orel Region Prosecutor's Office to investigate the incident of 1 December 1999 and his beating by police officers during his remand in custody from 2 to 12 December 1999. On 30 December 1999 the regional prosecutor forwarded his application to the Sverdlovskiy District Prosecutor's Office. After an inquiry into the applicant's allegations the Sverdlovskiy District Prosecutor's Office refused, on 17 February 2000, to institute criminal proceedings. Upon the applicant's complaint to a higher prosecutor, on 28 April 2000, the Orel Region Prosecutor's Office upheld the district prosecutor's decision.
On numerous occasions subsequently the applicant unsuccessfully lodged, with various levels of the prosecuting authorities, requests to re-open the investigation and institute criminal proceedings against the alleged perpetrators.
By a letter of 2 June 2000 the regional prosecutor stated that the previous decisions of the prosecuting authorities were not to be re-considered. The entry of the police into the applicant's home was compatible with Article 8 of the Federal Law 144-FZ and Article 122 of the Code of Criminal Procedure. The investigation into the alleged ill-treatment was discontinued for the lack of evidence.
According to the Government, at some point the Orel Region Prosecutor's Office re-opened the investigation and following the additional inquiry into the applicant's allegations again, on 2 September 2001, refused to institute criminal proceedings against the police officers having examined statements of witnesses and an expert opinion. The witnesses (police officers, the applicant's lawyer and two other suspects in the proceedings concerning the theft of horses who saw the applicant at a confrontation two days after the alleged ill-treatment) did not confirm the applicant's allegations. The expert questioned the applicant's diagnosis of concussion and the fracture of nose, pointing out that medical documents did not specify supporting clinical data, and concluded that it was impossible to determine the time the injuries on the applicant's face and waist had been caused.
According to the applicant, the Orel Regional Court did not examine his applications challenging the prosecutor's refusal to institute criminal proceedings, which were lodged on 16 December 2000 and 13 February 2001.
3. Criminal proceedings against the applicant for assaulting police officers
On 23 April 2001 the Zheleznodorozhniy District Court of Orel convicted the applicant of assaulting police officers on 1 December 1999. On 7 August 2001, upon the applicant's appeal, the Orel Regional Court quashed the judgment of 23 April 2001 and remitted the case for a fresh examination at first instance, referring in this connection to the unlawful composition of the first instance court.
On 27 March 2002 the applicant was convicted by the Zheleznodorozhniy District Court. He received a suspended sentence of two years' imprisonment. The sentence was revoked in view of an amnesty law.
Regarding the events of 1 December 1999, the court found that the police officers had arrived at the applicant's home, acting in accordance with the law on police, in order to arrest a suspect and collect evidence about the applicant's belonging to the crime. Upon the applicant's arrival the police officers were attacked by the applicant and his relatives. As a result of assault one police officer sustained injuries to his arm, waist, nose and ear. The other policeman was diagnosed with concussion.
4. Other proceedings
On 29 June 2001 the Orel Regional Court convicted the applicant of murder and robbery and sentenced him to twelve years' imprisonment.
1. The applicant complains under Article 8 of the Convention that the entry of the police into his home on 1 December 1999 was arbitrary and unlawful.
2. He further complains
under Article 3 of the Convention that he was beaten up by police officers
during his remand in custody from
2 to 12 December 1999.
3. The applicant also complains under Article 5 of the Convention that his detention on remand from 2 to 12 December 1999 was unlawful.
4. Under Article 6 of the
Convention the applicant complains that his conviction for assaulting
police officers as well as his conviction on
29 June 2001 for murder and robbery was arbitrary and unlawful. In particular, he alleged that the courts failed properly to assess the evidence.
1. The applicant complains that the entry of the police officers into his home on 1 December 1999 was in breach of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government submit that the applicant has failed to exhaust domestic remedies. In particular, his allegation about lodging court applications of 16 December 2000 and 13 February 2001 challenging the refusal of the Orel Region Prosecutor's Office to institute criminal proceedings against relevant police officers was not confirmed by the domestic courts.
As to the merits, the Government submit that the police officers acted in accordance with the Federal Law 1026-I “On Police” and Articles 7 and 8 of the Federal Law 144-FZ. They had information about the applicant's belonging to a theft of horses committed the night before and entered his house with the permission of his sister having produced their service identity cards. The Government further submit that the subsequent fight between the applicant and the police was scrutinised by the domestic court which found that the police had acted lawfully. The applicant's complaint about the events of 1 December 1999 was also a subject of the examination by the Orel Region Prosecutor's Office, which found that the police officers' behaviour was lawful and refused to institute criminal proceedings against them. The Government conclude that the entry of the police into the applicant's home was in accordance with the law and necessary for the protection of the rights and freedoms of the victims of the crime.
The applicant maintains that his applications challenging the refusal of the prosecutor's office to institute criminal proceedings against the police officers were lodged with the Orel Regional Court on 16 December 2000 and 13 February 2001. The applicant further alleges that on an unspecified date he lodged an application with the Sverdlovskiy District Court of the Orel Region complaining about the entry of the police into his house. In November 2000 the court allegedly forwarded his application to the Sverdlovskiy District Prosecutor's Office of the Orel Region.
As regards the merits, the applicant argues that the police officers entered into his home without permission of residents and against the law. They allegedly did not have a court order or any other authorisation. Nor did they notify the prosecutor or another competent authority of the breaking-in afterwards.
The Court recalls that Article 35 § 1 of the Convention provides that it may only deal with a matter after all domestic remedies have been exhausted. The Court recalls in this regard that a complaint seeking the institution of criminal proceedings against police officers alleged to have violated Convention rights constitutes an adequate remedy for the purpose of Article 35 § 1 (see, mutatis mutandis, Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3286, §§ 82-86). The Court recalls further that where competent investigating authorities refuse to institute criminal proceedings an appeal to a court can be considered a substantial safeguard against the arbitrary exercise of powers by the investigating authority (see Trubnikov v. Russia (dec.), no. 49790/99). The Court notes that the applicant has not produced a copy of his applications which he allegedly lodged with the domestic courts or any other documents which would sufficiently support his allegations of challenging the refusal of the prosecutor to open criminal proceedings. Thus, the applicant has failed to show that he has employed the remedy in question.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The applicant further complains that he was beaten up by police officers during his remand in custody from 2 to 12 December 1999. The applicant relies on Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government submit that the applicant's relevant complaint was scrutinised by the Orel Region Prosecutor's Office which refused, on 2 September 2001, as a result of a thorough examination of statements of witnesses, to institute criminal proceedings against the police officers. The Government also note that more than twelve hours had elapsed before the applicant saw a doctor after his release from custody.
The applicant maintains his initial complaint. He contends that the prosecutor's office failed to conduct a thorough investigation. Thus, they did not examine the applicant's sisters who had met him immediately after his release from custody and accompanied him home and then to a hospital where the injuries had been confirmed. The applicant further submits that the statements of the witnesses and the expert opinion, on which the prosecutor based his decision, are not credible as the two suspects gave conflicting statements, his lawyer was a former police officer and the expert never examined the applicant. The applicant also explains that he could not see a doctor immediately after his release because it took him some time to get home by train and take a shower as there were no any sanitary facilities at the police station, where he had spent ten days.
The Court notes that the applicant raised the complaint in question before the prosecutor's office in the same set of proceedings as the one concerning the above complaint under Article 8 of the Convention. Similarly, the Court is not persuaded that the applicant has challenged the refusal of the prosecutor's office to open criminal proceedings before the domestic court.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. The applicant also complains
that his detention from
2 to 12 December 1999 was unlawful in breach of Article 5, which, in so far as relevant, provides as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”
The Government submit that the applicant's detention was in accordance with the domestic law and complied with Article 5 § 1 (c) of the Convention. On 2 December 1999 the applicant was arrested and detained pursuant to Article 122 of the Code of Criminal Procedure. On 3 December 1999 an order was issued for his detention pursuant to Article 90 of the Code of Criminal Procedure. The applicant was released on 12 December 1999 following the termination of criminal proceedings against him.
The applicant maintains that his detention was unlawful.
The Court again recalls that Article 35 § 1 of the Convention provides that it may only deal with a matter after all domestic remedies have been exhausted. The Court notes that the applicant has failed to produce the evidence of raising the complaint in question before the domestic authorities.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
4. Lastly, the Court has examined the remainder of the applicant's complaints as submitted by him. However, having regard to all material in its possession, the Court finds that these complaints 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 being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
BEZGIN v. RUSSIA DECISION
BEZGIN v. RUSSIA DECISION