Excessive use of firearms by Russian railway guards against mentally ill man resulted in amputation of his leg

Today the ECHR delivered its judgment in the case of Naboyshchikov v. Russia related to the excessive use of force against a mentally ill man resulting in his partial disability and considerable psychological distress and to the lack of effective investigation into this matter by Russian authorities. The Court unanimously found Russia responsible for a violation of Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment) and ordered Russia to pay the applicant 23,000 euros (EUR) in respect of non-pecuniary damage.

Facts of the case

The applicant suffered from a manic mental disorder. Allegedly on 2 October 2003 he saw a road police inspector being bribed for permitting the number of cars to enter a restricted-access zone.  He also believed that the railway guards were aiding terrorists. On the same day he demanded the guards stop letting the cars through. However, no action followed after that. In this connection the applicant decided to investigate himself why certain cars were allowed to pass through the restricted zone.

At 2 a.m. on 3 October 2003 the applicant accessed the restricted territory of the guarded zone. He admitted that he might have tried to set fire to the car of one of the guards, who later apprehended the applicant. After that, the applicant was searched and taken to the guardroom, where he was allegedly brutally beaten. One of the guards also fired several shots hitting a fire extinguisher which discharged its foam. After the foam had settled down that guard returned to the guardroom and severely wounded the applicant by firing two rifle shots at his legs, as a result of which one of the applicant’s legs was amputated.

According to the Government’s submissions, the guard fired the shots at Mr. Naboyshchikov’s legs in self-defense since the latter threatened him with a knife after he re-entered the building. Meanwhile, the applicant alleged that the guard had planted a knife in the guards’ quarters to support his argument that the applicant had attacked him.

A few days later, a criminal investigation was opened on account of the serious bodily harm suffered by the applicant. However, after a year and several months criminal proceedings were eventually terminated for lack of corpus delicti.

The applicant complained under Article 3 of the Convention that he had been tortured by the railway guards and that the domestic authorities had failed to carry out an effective investigation into this matter.

A member of the United Russia lost his suit against an anti-corruption blogger due to a domestic court’s reliance on ECHR case-law

On 11 October 2011, Lyublinsky district court in Moscow dismissed the lawsuit of Vladimir Svirid, a member of the ruling United Russia party, against Alexey Navalny, a Russian anti-corruption blogger, as reported by Vedomosti (the link is in Russian).  Judging from the court’s ruling, the extracts of which Navalny published today in his blog, the court substantiated its findings relying, inter alia, on Article 10 of the Convention (freedom of expression) and ECHR case-law, namely: Grinberg v. Russia, and Bezymyanyy v. Russia. [The full text of the court’s ruling in Russian can be found here].

Facts of the case

On 2 February 2011 Alexey Navalny called the United Russia party “a party of corruption, swindlers and thieves” and spoke negatively of the party’s activity during his on-air interview to the radio station “Finam FM.” Vladimir Svirid, a member of the United Russia party, did not agree with Navalny’s opinion and claimed that such statements insulted him and discredited his honor and dignity. In his claim, Svirid asked Navalny, inter alia, to recant his statements about United Russia on the official internet site of “Finam FM” and to pay compensation in the amount of 1,000,000 rubles (approximately 33,000 USD) as restitution for non-pecuniary damages.

Findings of the court

The court did not find any violation of Svirid’s rights and dismissed his claims relying both on national legislation and the ECHR case-law. According to national legislation, the claimant had to prove, inter alia, that the relevant statements about United Russia contained information specifically about him, which he failed to do. Thus, the court agreed with Navalny, that his statements at issue did not contain any accusation towards Svirid specifically or anybody else, rather they concerned the United Russia party and its activities as a whole.

The court also supported its findings with the relevant ECHR case-law, referring to it as the part of the national legal system according to the Constitution of the Russian Federation. First, having considered Navalny’s statements as value judgments, the court cited paragraph 30 of the ECHR judgment in the case of Grinberg v. Russia, according to which “while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfill and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10.”

Second, as the final chord sustaining its findings the court cited paragraph 35 of the ECHR judgment in the case of Bezymyannyy v. Russia:

“According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for individual self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”.”

Conclusion

The ruling of the Lyublinsky district court deserves applause. The judge did not limit its analysis of the legal norms to the national law only, but competently applied the Convention provisions and the relevant case-law of the ECHR to the facts of the case, which rarely happens in the courts of lower instances.

It is also a perfect example of how EHCR rulings can contribute to the promotion of the rule of law via domestic courts in Russia. The ECHR alone can do little without support of the domestic authorities, especially courts that are one of the main guarantors of the rule of law. Applying the Convention provisions and ECHR case-law, the courts convey a message to the participants of the trial and all other persons that they are aware of Russia’s obligations under the Convention and are willing to respect human rights and international law.

Moreover, given the high reputation of the ECHR, the more frequent the domestic courts competently sustain their findings with ECHR case-law and the Convention, the more trust and respect they will gain among the Russian citizens.

New judgments about old problems

On 18 October 2011 the ECHR delivered four judgments in the cases of Shuvalov v. Russia, Buldashev v. Russia, Cherkasov v. Russia and G.O. v. Russia.[1] In all four cases the ECHR found that Russia had violated, inter alia, Article 3 of the Convention due to either the condition of the applicants’ detention, their ill-treatment in custody, or both, and ordered the Russian Government to pay compensation to the applicants as restitution for non-pecuniary damages.

Overcrowded cells in police custody

Applicants Buldashev and G.O. (who decided not to disclose his name) were arrested, charged, and later convicted of serious crimes.[2] Pending investigation and trial they were detained in remand prisons in Russia. Both applicants complained, inter alia, that the conditions of their detention in the remand prisons were inhumane and degrading. The ECHR upheld their claims due to the following reasons:

1. The ECHR confirmed once again that guarantees of Article 3 of the Convention are provided to everyone, “irrespective of the circumstances or the victim’s behavior”. The Court also noted that Article 3 requires the State to ensure “that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention.”

2. In both cases the applicants were afforded no more than 1.5 to 3 sq.m of personal space, while according to the Russian statutory requirements each inmate shall be provided with no less than 4 sq. m. In this respect the Court reiterated, that such lack of personal space was “so extreme as to justify in itself a finding of a violation of Article 3 of the Convention.” The Court supported this finding by its well-established case law with regard to Russia.[3]

3. Moreover, the applicants were confined to their overcrowded cells “day and night,” apart from an hour’s outdoor daily exercise.

4. In the case of G.O. the Court also noted that “the fact that for approximately three years and one month the applicant was obliged to live, sleep and use the toilet in the same cell with so many other inmates was itself sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.”

Balancing Public Hearing with Interests of National Security and Justice

On 11 October 2011 the ECHR delivered judgments in the cases of three Russian females, Ms. Nevskaya, Ms. Raks and Ms. Romanova, all of whom had been convicted of possession of explosives and terrorism. The Court ordered Russia to pay compensation to the applicants for violation of their rights guaranteed by the Convention.

The applicants were arrested in 2000 on suspicion of their involvement in explosions in 1998 and 1999: the explosion that destroyed the monument to Tsar Nicolas II in Podolsk, Moscow Region, and explosions in Moscow that damaged the façade of the Federal Security Service (FSB). In May 2003 the Moscow City Court convicted the applicants of possession of explosives and terrorism. Each of the applicants was sentenced to several years of imprisonment. [The facts of the case are described in more detail in the Court’s judgments in the cases of Nevskaya, Raks and Romanova]

All three applied to the ECHR and claimed, inter alia,[1] that Russia violated their right to a fair trial since the court proceedings against them had not been conducted in public. The Court sustained this claim in all three cases, since the Russian Government failed to convincingly show that the national security concerns and justice interests justified the exclusion of the public from the trial in the domestic court. The Court ordered Russia to pay 4,800 euros to both Nevskaya and Raks, and 20,000 euros to Romanova (since in her case Russia also violated Article 5 of the Convention (her detention did not meet the requirements of lawfulness)).

The ECHR’s reasoning:

According to the case file, the domestic court ordered to exclude the public from the criminal proceedings due to: (a) the need to ensure the security of the trial participants, (b) the nature of the charges of the applicants, and (c) the “secret” status of the case file. The ECHR disagreed with such reasoning based on the following grounds:

(a) Safety of the trial participants: The ECHR noted that the domestic court failed to explain why it was concerned about the safety of the certain persons, and why these safety concerns “outweighed the importance of ensuring the public nature of the trial.”

(b) Gravity of the charges: According to the Court, the gravity of the charges by itself cannot evidence existence of a danger the defendants may present to other parties to a trial, and therefore cannot justify closure of the entire trial to the public. The presence of such danger and necessity to hold the trial in camera can be confirmed only by assessment of the gravity of the charges together with other relevant factors. The ECHR found that the domestic court failed to make such assessment and to give reasons why it considered “the risk to the safety of the ‘participants’ to be decisive.”

(c) “Secret” information in the case-file: The ECHR stated that “the mere presence of such information in a case file” cannot automatically imply “a need to close a trial to the public, without balancing openness with national security concerns.” Thus, the domestic court failed to take “any measures to counterbalance the detrimental effect that the decision to hold the trial in camera must have had on public confidence in the proper administration of justice for the sake of protecting the State’s interest in keeping its secrets.” In the ECHR’s view, instead of closing the entire trial to the public the domestic court could have ordered a single or a number of non-public sessions to deal with “secret” documents, which it failed to do.

Thus, judging from the ECHR findings, the main flaw of the Moscow City Court decision on closing the trial to public was the lack of relevant explanations and justifications. Had the domestic court delivered a more reasoned and well-founded decision, the ECHR would likely not have found a violation of the right to a fair trial in the applicants’ cases.

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[1] The applicants also presented other complaints under Articles 3, 5, 6, 8-11, 13 and 18 of the Convention. However, the Court either found their complaints inadmissible or found no violation, except in the case of Romanova v. Russia, where the Court also found a violation of article 5 of the Convention.

The CIS Human Rights Court: a possible alternative to the ECHR?

Today Alexander Torshin, a Russian Senator, came forward with an initiative to set up the Commonwealth of Independent States (CIS) Human Rights Court, reported Interfax and Gazeta.ru.

According to Torshin the CIS court should be analogues to the ECHR. The Senator named the following advantages of the CIS Human Rights Court over the ECHR: (a) the applicants to the CIS court will not need translator’s assistance, since the majority of them have a good command of the Russian language; (b) the CIS court will be of a better quality than the ECHR, since during its set-up all the “bottlenecks and problems” of the ECHR will be taken into account; and (c) the CIS court will help relieve the ECHR which is currently overloaded with applications.

According to Torshin, the CIS Court will not replace the ECHR, but rather will be an alternative: the applicants will be able to choose between the two of them.

Russia’s failure to comply with ECHR interim measures resulted in the applicant’s death

Yesterday, the former vice president of YUKOS, Vasily Aleksanyan, died of several health complications worsened by inhuman and degrading treatment during his detention in a Russian jail, reported Reuters.

Aleksanyan first worked as the head of the legal department of YUKOS. In March 2006 the shareholders of YUKOS appointed him as executive vice-president of the company. On 6 April 2006 Aleksanyan was arrested and taken into custody on suspicion of alleged participation in YUKOS criminal activities as the legal advisor to YUKOS executives. His detention had since been repeatedly extended.

Over the course of his detention, his health progressively deteriorated. His eyesight worsened to the extent that he became blind. In addition, in September 2006 Aleksanyan was found to be HIV-positive. As a result, from 2006–2008 he developed a number of opportunistic infections and lymph cancer. For more than a year he was denied treatment in a specialized hospital and received medical care in the medical facility of the detention center, which was insufficient considering seriousness of his illnesses. [See the full description of the facts related to the detention of Aleksanyan]

On 16 November 2006, following his arrest and subsequent detention, Aleksanyan lodged a complaint with the ECHR. He alleged, inter alia, that the Russian authorities violated Article 3 of the Convention due to the lack of medical treatment in the detention center. He also claimed that his state of health had been incompatible with his detention. In addition, Aleksanyan requested the Court to apply urgent interim measures under Rule 39 of the Rules of the Court.

His request for application of the interim measures was sustained by the Court. Thus, the ECHR ordered the Russian Government to implement two interim measures, on 27 November 2007 and 21 December 2007 respectfully. According to the first interim measure, the Russian Government was ordered to transfer Aleksanyan immediately to a specialized hospital. However, it took the Russian authorities more than two months to implement this measure. In the Court’s view, such delay put the health and life of Aleksanyan in danger.

The Russian Government also refused to comply with the second interim measure of the Court, namely to form a mixed medical commission to be composed on the parity basis, to diagnose the health problems of Aleksanyan and suggest treatment. However, the Russian Government replied to the Court that the medical facility of the detention centre could provide proper medical treatment to Aleksanyan, and that his examination by a mixed medical commission was against the Russian law.

On 22 December 2008 the ECHR delivered the judgment in Aleksanyan case and ordered the Russian Government, inter alia, to discontinue his detention on remand, in view of the gravity of his illnesses. He was released only in January 2009 after a bond of 50 million rubles was paid (approximately 1,700,000 USD).

As the Moscow Times reports, human rights activists believe that Aleksanyan could have lived longer if the Russian authorities had not kept him in custody for nearly three years.

Beksultanova v. Russia: a detailed analysis of the ECHR judgment

On 27 September 2011 the ECHR delivered another judgment relating to the actions of the security forces in Chechnya, namely the case of Beksultanova v. Russia. As many other cases involving Chechnya, this one concerns a forced disappearance, unacknowledged detention and inadequate investigation conducted by the Russian authorities. [See my previous post for a brief description of the facts of the case]

This ECHR judgment did not bring anything new to the Court’s case-law. In its findings the Court applied the same approach as in other cases concerning Chechnya, as well as in cases against the UK and Turkey related to human rights violations committed by the security forces during their fight against terrorism and illegal armed groups.

As in its previous judgments relating to Chechnya, the Court did not challenge the lawfulness of the Russia’s fight against illegal armed groups, but rather, implied that Russia’s authorities must respect human rights granted by the Convention even during the fight against terrorism.

The ECHR unanimously found that Russia violated Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy) of the Convention. Below is the detailed analysis of the ECHR’s findings.