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.
Court’s findings
The Court sustained the applicant’s claims and held Russia responsible for violation of Article 3 of the Convention on account of: (1) “the excessive use of firearms against the applicant”, and (2) “the authorities’ failure to carry out an effective investigation into the applicant’s complaints of ill‑treatment”. The Court also found that there had been no violation on account of the applicant’s alleged beating, since the Court was not in possession of any medical documents capable of proving that that applicant’s health problems had been the direct result of physical force applied by the railway guards.
The Court sustained its findings with the following reasons:
Excessive use of force
First, given that the guard belonged to an authority that was part of the Russian law enforcement system and that he had committed the act of violence in performance of his duties, the Court held that the Russian Government was responsible.
Second, the Court considered that, “given the serious nature and the circumstances of the applicant’s injuries,” the burden of proof rests on the Russian Government to demonstrate beyond a reasonable doubt that the use of firearms against the applicant was justified in the circumstances of the case.
Third, though the Court admitted that Article 3 did not “prohibit recourse to physical force by security agents during an arrest or other security operation,” it also noted that such force must meet necessity and proportionality requirements.
Finally, having analysed the evidence submitted by the parties, the Court was not convinced that the use of force by the railway guards was not excessive. Thus, the ECHR noted:
“As can be seen from the authorities’ description of the events, after the unsuccessful first attack by the applicant, S. chose to return to the building, putting himself at risk of another attack, which he then presumably had to repel by firing at the applicant’s legs (see paragraph 11 above). Neither the findings of the domestic investigation nor the Government’s subsequent submissions explain why this line of behaviour on the part of a professionally trained security guard was necessary, nor do they explain why the first shot was not sufficient.”
Given the above and the extent of the applicant’s injuries, the Court found that the applicant was subjected to inhuman and degrading treatment contrary to Article 3 of the Convention.
Lack of effective investigation
The Court recognized that a criminal investigation into the incident was opened immediately and that most of the essential investigative actions were carried out within three months of the incident. However, the Court also found several important omissions and inconsistencies in the investigation, undermining its credibility, such as:
- the lack of an attempt to explain why the guards could not find the knife, with which the applicant allegedly threatened the life of the guard, during the bodily search of the applicant;
- the investigation authorities failed to examine the knife for fingerprints;
- the amputated leg, a crucial piece of evidence, was disposed of in a careless manner at the time when the investigation was already under way;
- the investigation authorities neglected the applicant’s complaint that he had been beaten by the guards;
- the applicant had no opportunity to dispute the above omissions, having been denied the status of victim on numerous occasions.
Judging from the above, the Court found that the Russian authorities failed to conduct an effective investigation into the applicant’s injuries and thus violated Article 3 of the Convention.
Conclusion
The problem of ill-treatment by law enforcement officers was named by the Parliamentary Assembly of the Council of Europe as one of the systemic problems in Russia, which seriously undermine the rule of law. It was first discussed by the Court in January 2006 in the case of Mikheyev v. Russia. Since then the Russian authorities have adopted a number of reforms of the Ministry of the Internal Affairs. For more information on the measures taken by the Russian Government to alleviate the problem of the ill-treatment by the law enforcement officers see my previous post of 22 October 2011.
However, the Council of Europe was not convinced in the effectiveness of the said reforms. Russian legal experts are of the same opinion. Thus, in her interview to Vzglyad newspaper, Elena Lukianova, a law professor at Moscow State University, pointed out that it was too early to speak about the results of the reforms at issue and that Russian citizens still complain about corruption and unprofessionalism of law enforcement authorities. Ms. Lukianova also noted that it might take several years to see the first positive results of the reforms at issue. In this connection, we may expect more ECHR judgments in favor of the applicants in cases involving ill-treatment by law enforcement officers.
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