FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15811/03 by Dmitriy VYATKIN against Russia

The European Court of Human Rights ( First Section), sitting on 24 January 2012 as a Chamber composed of:

Nina Vajić , President, Anatoly Kovler , Elisabeth Steiner , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , Erik Møse , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 1 April 2003 ,

Having regard to the observations submitted by the respondent Government and the observations in rep ly submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Dmitriy Anatolyevich Vyatkin, is a Russian national who was born in 1973 and lives in Nizhniy Tagil . The respondent Government were represented by Ms V. Milinchuk , former Representative of the Russian Federation at the European Court of Human Rights. The applicant was represented by Ms O. Preobrazhenskaya, a lawyer practising in Moscow .

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

On 30 November 1998 the applicant was arrested on suspicion of murder. He was allegedly ill-treated by police officers in order to obtain a confession.

On the morning of 8 December 2001 two officials of the temporary detention facility in Nizhniy Tagil stopped the applicant in the corridor and ordered him to do push ups . When the applicant refused, they beat him with a truncheon and kicked him.

On 10 December 2001 the applicant was transferred to remand centre no. IZ 66/3 in Nizhny Tagil. On the same day he underwent a medical examination. The doctor recorded two large bruises on his back.

The applicant complained of ill-treatment to the investigator. On 11 December 2001 he was questioned about the circumstances in which he had received injuries. On 14 December 2001 the investigator forwarded the complaint to the Nizhniy Tagil Prosecutor’s Office. On 28 December 2001 the Nizhniy Tagil Prosecutor’s Office refused to initiate criminal proceedings against the officials of the temporary detention facility.

As the applicant was not informed of the outcome of the inquiry, on 4 March 2002 his lawyer asked the trial court to obtain a copy of the prosecutor’s decision on the applicant’s complaint of ill-treatment. The prosecutor submitted a copy of the decision of 28 December 2001 at the request of the trial court. The decision was read out during the hearing.

On 8 April 2002 the Sverdlovskiy Regional Court convicted the applicant of aggravated murder and sentenced him to nineteen years ’ imprisonment. On 30 December 2002 the Supreme Court of the Russian Federation upheld the judgment on appeal.

On 1 August 2007 Mr Z., a deputy head of correctional colony no. 5 in Nizhniy Tagil , summoned the applicant to his office. According to the applicant, Mr Z. asked him whether he had complained to the Court and of what he had complained. He then asked whether the applicant was interested in reaching a friendly-settlement agreement and what his terms were. The applicant refused to discuss the issue of a friendly settlement because he was afraid of being cheated.

The Government submitted two written affidavits by the applicant, one undated and the other dated 30 October 2007, stating that in August 2007 he had had discussions with Mr G. and Ms M., officials from the Penitentiary Department of the Sverdlovskiy Region. He had been asked questions about the events of 8 December 2001 and about his application to the Court. He had not been subjected to any pressure and had not been urged to abandon his application.

RELEVANT DOMESTIC LAW

The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction (Article 113).

COMPLAINTS

The applicant complained under Article 3 of the Convention of being ill-treated by police officers and by officials of the temporary detention facility. He also invoked Article 13 in respect of the allegedly ineffective investigation into the ill-treatment.

The applicant complained under Articles 5 and 6 of the Convention of the unlawfulness of his arrest and detention and of an unfair trial.

The applicant also complained under Article 34 of the Convention that State officials had contacted him in connection with his application before the Court.

THE LAW

1. The applicant complained under Articles 3 and 13 of the Convention that on 8 December 2001 he had been ill-treated by officials of the temporary detention facility in Nizhniy Tagil and that no effective investigation had been carried out. These Articles read as follows:

Article 3

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

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government acknowledged that the applicant had been beaten by officials of the temporary detention facility and had sustained injuries. However, he had not exhausted the available domestic remedies. In particular, he had not complained of ill-treatment to the prosecutor’s office. The domestic authorities had conducted an inquiry on their own initiative and refused to open criminal proceedings. The applicant had not appealed against that decision to a court (they referred to Belevitskiy v. Russia , no. 72967/01, § 61 , 1 March 2007 , and Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003) . Nor had he lodged a civil claim for damages.

The applicant submitted that he had complained of ill-treatment to the investigator who had forwarded his complaint to the prosecutor’s office. He had not been provided with a copy of the prosecutor’s decision and could not therefore appeal against it to a court. He maintained his complaint of ill-treatment and the allegedly ineffective investigation.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey , 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Akdıvar and Others v. Turkey , 16 September 1996, §§ 65-67, Reports 1996-IV).

The Court has already found that in the Russian legal system the power of a court to reverse a decision not to institute criminal proceedings is a substantial safeguard against the arbitrary exercise of powers by the investigating authorities. An appeal under Article 113 of the CCrP to a court of general jurisdiction against a prosecutor’s decision not to investigate complaints of ill-treatment constitutes therefore an effective domestic remedy which must be exhausted (see Belevitskiy , cited above, § 61). In exceptional circumstances an applicant who challenged the prosecutor’s decision before the trial court in the course of criminal proceedings against him may be considered as having exhausted domestic remedies (see Akulinin and Babich v. Russia , no. 5742/02, § § 30-31, 2 October 2008 ).

The applicant’s allegations of ill-treatment were considered by the prosecutor, who did not find a prima facie case of ill-treatment and, by a decision of 28 December 2001, decided not to institute criminal proceedings. The applicant was given an opportunity to study that decision in March 2002 when it was read out by the trial court. He did not, however, challenge that decision either in separate judicial proceedings under Article 113 of the CCrP or before the trial court in the course of the criminal proceedings against him. In particular, although the prosecutor’s decision was read out before the trial court, there is no evidence that the applicant complained before that court of the inadequacy of the prosecutor’s investigation into the events in question. There is no indication in the Regional and Supreme Court judgments that the issue of ill-treatment was examined by these courts. The applicant’s ill-treatment complaints were therefore never examined by domestic courts.

In the light of the above considerations, the Court finds that the applicant’s complaints concerning his alleged ill-treatment by officials of the temporary detention facility in Nizhniy Tagil must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.

From this conclusion it follows that the applicant’s complaint of a lack of an effective investigation must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained under Articles 3 and 13 of the Convention that he had been ill-treated by police officers in November 1998 and under Articles 5 and 6 of the Convention that his detention had been unlawful and that the criminal proceedings against him had been unfair. The Court has examined these complaints. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they 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.

3. The applicant complained under Article 34 of the Convention that the administration of the correctional colony had interviewed him in connection with his application. This Article reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government submitted that the correctional colony administration had had regular meetings with the applicant in order to discuss issues relating to the service of his sentence, such as discipline and visits from relatives. The colony administration had also discussed the possibility of reaching a friendly settlement with the applicant. No pressure had been put on the applicant in the course of the meetings.

The applicant’s representative submitted that any contact between the applicant and the authorities in connection with his application before the Court was improper. The applicant was under the authorities’ control and therefore vulnerable. Accordingly, the affidavits submitted by the Government were suspicious and could have been signed under pressure. Moreover, the affidavits related to a different meeting, namely a meeting with Mr G. and Ms M., while he had complained about a meeting with Mr Z.

The Court reiterates that, although it is in principle not appropriate for the authorities of a respondent State to enter into direct contact with an applicant in connection with his case before the Court, not every enquiry by the authorities about an application pending before the Court amounts to a hindrance of the exercise of the right of individual petition under Article 34 of the Convention. For example, the Court has found that the authorities’ contact with an applicant for the purpose of securing a friendly-settlement agreement do not amount to a hindrance of the exercise of his right of individual petition, provided that steps taken by a State in the context of settlement negotiations with an applicant do not involve any form of pressure, intimidation or coercion (see Yevgeniy Alekseyenko v. Russia , no. 41833/04 , §§ 168-174 , 27 January 2011 ). In other cases concerning questioning by the local authorities of an applicant about the circumstances underlying his application, the Court was also unable to find, in the absence of evidence of pressure or intimidation, that the applicant was hindered in the exercise of his right of individual petition (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99 , 9 July 2002, and Matyar v. Turkey , no. 23423/94, § § 158-159 , 21 February 2002 ).

The Court has never underestimated the importance of the settlement work and has always encouraged and actively promoted settlement negotiations between parties. This approach reflects the traditional view that the Convention is not an instrument of accusation or prosecution of Contracting States, but a collective fulfilment of their obligations and undertakings, the surveillance of which was entrusted to the Court under Article 19 of the Convention. To deny a State the right to contact an applicant directly for the purpose of settling a case pending before the Court would have the effect of substantially discouraging settlement discussions, and ultimately placing a heavy burden on the Court. The parties should be left with ample room to explore the possibility of resolving disputes other than by a judgment (see Yevgeniy Alekseyenko , cited above, §§ 172-173).

Turning to the circumstances of the present case, the Court finds no indication that the authorities’ meetings with the applicant involved any form of pressure, intimidation or coercion . There is no evidence that these meetings – which apparently pursued the aim of discussing the possibility of friendly settlement – and the circumstances attending them were calculated to induce the applicant to withdraw or modify his complaint or otherwise interfere with the exercise of his right of individual petition, or indeed had this effect. Thus, the authorities of the respondent State cannot be held to have hindered the applicant in the exercise of hi s right of individual petition under Article 34 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible ;

Decides not to pursue the allegation of hindrance under Article 34.

Søren Nielsen Nina Vajić              Registrar President