FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9487/02 
by Aleksandr Vyacheslavovich MEDVEDEV 
against Russia

The European Court of Human Rights (First Section), sitting on 4 May 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs N. Vajić
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges, 
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 27 January 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Aleksandr Vyacheslavovich Medvedev, is a Russian national, who was born in 1978 and lives in Moscow. He is represented before the Court by Mr A. Yablokov, a lawyer practising in Moscow.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The alleged ill-treatment

In the early morning of 22 February 2001 the applicant penetrated into the territory of a furniture depot, where he was spotted by the guards. The guards called the police patrol, and in a short time the applicant was apprehended. He claims that he was beaten by the policemen and the guards at the moment of his arrest. After having searched the place, the police discovered a handgun, allegedly belonging to the applicant. The applicant was conveyed to the police station of Vidnovo town (Moscow Region) for questioning.

The applicant alleges that in the course of the questioning police officers M and I tortured him: they put a gas mask on his head and blocked air access, so that he was suffocating. They also hit him with a rubber stick. To stop it, the applicant agreed to confess in theft and, moreover, to give them money. At about 4 o’clock in the morning the applicant, accompanied by two policemen, went to his flat, where, at gunpoint, he handed them  
5,000 US dollars. Then the policemen with the applicant returned to the police station where he was locked in a cell. However, the policemen promised him that if he confessed to the impugned crimes the town prosecutor would soon release him on bail. The applicant wrote a statement where he confessed to the attempted theft and in illegal possession of the handgun.

In the afternoon the police instituted criminal proceedings against the applicant on suspicion of theft and illegal possession of a firearm (criminal case no. 39697). Within those proceedings the town prosecutor authorised the applicant’s detention on remand.

On 23 February 2001 the applicant met with his lawyer. Through him the applicant transmitted to the town prosecutor a written statement where he described the circumstances of his arrest, ill-treatment and extortion of money. On 5 March 2001 the applicant lodged a formal complaint about the ill-treatment and extortion with the town prosecutor, seeking criminal prosecution of the policemen involved in it. He also sought his release, because in the pre-trial detention facility he could be easily subjected to further pressure and physical violence by those policemen.

The applicant claims that, as a result, officers M and I were dismissed from service. However, on 21 May 2001, after a preliminary inquiry into the applicant’s allegations of ill-treatment, the town prosecutor decided not to proceed with the investigation.

In July the applicant’s lawyer lodged similar complaints with the Regional Prosecutor and the Prosecutor General, seeking further investigation into the alleged ill-treatment and extortion. It is unclear whether those complaints have ever been examined on the merits. The applicant’s complaint in similar terms lodged with the Internal Security Department of the Ministry of Interior was forwarded to the Moscow Regional Court “for further inquiries”. On 5 September 2001 this complaint was forwarded to the Vidnovo Town Court, where it was “added to the materials of the case-file”.

After the applicant’s conviction on 10 September 2001, his lawyer lodged a new complaint with the prosecutor of the Vidnovo district, seeking institution of criminal proceedings against officers M and I. However, the prosecutor once again refused to open criminal investigation into the alleged ill-treatment.

On 19 March 2002 the applicant challenged that decision before the court. On 29 March 2002 the Vidnovo Town Court returned his complaint without examination. The court indicated that the complaint had been lodged under the provisions of the Code of Civil Procedure, whereas it should have been based on the provisions of the Code of Criminal Procedure.

The applicant appealed, claiming that the town court’s refusal to examine his complaint was unlawful and breached his constitutional right of access to court. However, on 22 May 2002 the Moscow Regional Court upheld the decision of the Vidnovo Town Court of 29 March 2002. The court of appeal confirmed that the decision of the prosecutor not to proceed with the case should have been challenged under the provisions of the Code of Criminal Procedure.

2. Applications for release

During the pre-trial investigation of criminal case no. 39697 the applicant remained in the remand prison. On several occasions he requested the investigator in charge of his case and the town prosecutor to release him. However, it was refused on the ground that the applicant might flee or interfere with the course of justice.

On 17 April 2001 the applicant lodged an application for release with the court. In his application he described the alleged ill-treatment and extortion of money by the police officers. He also referred to various defects in the investigation proceedings, his poor health and personal situation.

On 11 May 2001 the Kashirskiy Town Court of the Moscow Region rejected his applications, putting forward the following arguments:

“[The applicant] has committed several intentional crimes, including grave ones. This fact is not refuted neither by [the applicant] nor by his defence counsel. There is no information that the state of his health is incompatible with the detention in custody. Given this and taking into account the fact that Medvedev committed the impugned crime in another district, the Court holds that the investigative authorities have rightly applied the detention in custody as a measure of restraint.”

The applicant’s lawyer appealed. On 13 June 2001 the appeal was rejected by the Moscow Regional Court. It appears that nor the applicant neither his lawyer were present at the appeal court hearing. A copy of the appeal court decision was sent to the applicant on 20 January 2002.

3. Trial of the applicant’s case

On 22 May 2001 the prosecution forwarded the applicant’s case together with the bill of indictment to the Vidnovo Town Court of Moscow Region. In the course of the trial the applicant raised an issue of ill-treatment and extortion of money by the policemen before the court as an argument in favour of his innocence.

On 10 September 2001 the Vidnovo Town Court delivered a judgment. As to the alleged ill-treatment, the court rejected this argument, referring to the inquiry conducted by the Vidnovo town prosecutor upon the applicant’s request. The court further noted that the guards of the furniture depot, present at the moment of the applicant’s arrest, witnessed that the applicant had confessed to the alleged theft immediately. So, there had been no need to put further pressure on him in order to extort confession.

The court found the applicant guilty of attempted theft, but acquitted of illegal possession of firearms. He was convicted to eight months’ imprisonment.

The judgment of 10 September 2001 was subject to appeal to the Moscow Regional Court. However, the applicant did not appeal, allegedly out of fear of reprisals by the police officers implied in the ill-treatment. However, he lodged a supervisory review appeal, which was rejected by the Moscow Regional Court on 13 December 2001.

On 24 October 2001 the applicant was released from prison.

COMPLAINTS

1. Under Article 3 of the Convention the applicant complains about the ill-treatment by the police officers on 22 February 2001 and lack of proper investigation into it.

2. Under the same Convention provision the applicant complains that in the remand prison he was deprived of food and proper medical care. As a result, he contracted vascular dystonia, cerebral vasospasms, stomach ulcer, and lost fifteen kilos of weight.

3. Under Article 5 § 2 of the Convention the applicant complains that he was not promptly informed about the reasons of his arrest.

4. Under Article 5 § 4 of the Convention the applicant complains that his applications for release were not examined speedily by the courts.

5. Under Article 6 of the Convention the applicant complains that the criminal proceedings against him were not fair.

THE LAW

1. The applicant claims that after his arrest police officers M and I ill-treated him in order to make him confess in the impugned crimes and pay them money. His complaints to the prosecutor and the courts in that respect have been left without proper examination. Article 3 of the Convention, referred to by the applicant on that account, reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. Under the same provision the applicant complains about the conditions of detention in the remand prison.

However, apart from the applicant’s own allegations of a very general character, the Court notes that he has not produced any evidence in support of this complaint.

It follows that this complaint is unsubstantiated and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant complains that he was not promptly informed about the reasons of his arrest. Article 5 § 2 of the Convention reads:

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The Court recalls that the Convention does not require that the reasons for the arrest be given in writing or in any other specific form (see the Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, p. 17, § 31). For the purposes of Article 5 § 2 it is sufficient if a detainee is informed in general terms of the reasons for the arrest and of any charge against him. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see the Fox, Campbell and Hartley v. the United Kingdom judgment of  
30 August 1990, Series A no. 182, p. 19, § 40).

Turning to the present case, the Court notes that the applicant was arrested at night on the closed territory of a private depot. Immediately after his arrest he was questioned by the police. The context of questioning clearly suggested that he was suspected of theft and possession of the gun which had been found nearby. Later in the afternoon he was formally charged with those crimes. Therefore, in the Court’s view, he had enough information about the reasons for his detention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. Under Article 5 § 4 the applicant complains that it took the Kashirskiy Town Court and the Moscow Regional Court too long to hear his appeal against the detention order. Article 5 § 4, referred to by the applicant, reads 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;

[...]

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. Under Article 6 of the Convention the applicant presents several complains about the criminal proceedings against him, which ended with the judgment of the Vidnovo Town Court of 10 September 2001.

The Court notes, however, that the applicant has failed to lodge an appeal against that judgment. The applicant submits that he did not appeal out of fear of reprisals. However, he does not explain why that fear did not prevent him from lodging other numerous complaints about the alleged ill-treatment. Therefore, this argument of the applicant cannot be accepted.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning his alleged ill-treatment by the police officers on the day of his arrest and lack of effective investigation in this respect;

Decides to adjourn the examination of the applicant’s complaints concerning delayed review of his application for release;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

MEDVEDEV v. RUSSIA DECISION


MEDVEDEV v. RUSSIA DECISION