FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 839/02 by Olga Yuryevna M aslova and Fedor Vartanovich N albandov against Russia

The European Court of Human Rights ( First Section), sitting on 12 December 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 10 July 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, M s Olga Yuryevna Maslova and Mr Fedor Vartanovich Nalbandov , are Russian nationals who were born in 1980 and 1982 respectively and live in the city of Nizhniy Novgorod . They are represented before the Court by Ms Yu. Kirsanova and Ms O. Shepeleva, legal experts practising in Nizhniy Novgorod. The Russian Government (“the Government”) are represented by Mr P. Laptev, 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.

Between 4 and 24 November 1999 the first applicant acted as a witness in a murder case conducted jointly by the police and prosecution. These authorities repeatedly summoned her to give evidence to the Nizhegorodskiy District Department of Internal Affairs ( Нижегородское районное управление внутренних дел , “the local police station”).

It appears that at some point during the investigation suspect B. stated that the first applicant had been in receipt of the murdered person ’ s belongings.

According to the first applicant, investigator Zh. summoned her to appear on 25 November 1999 at 12.30 p.m.

The Government submitted that the first applicant was summoned by policeman K. and not by investigator Zh.

1. Events of 25 November 1999

(a) Interrogation by policemen Kh. and K.

The first applicant arrived at the police station on time and was questioned. The interrogation was initially conducted by policemen Kh. and K. and took place at the office no. 63 of the police station. The policemen requested the first applicant to acknowledge that she had received property of the murdered person. When the first applicant refused to do so, they started shouting and threatened to bring criminal proceedings against her.

According to the first applicant, they took her soccer scarf and administered several blows with the scarf on her face.

Then K. left the office and Kh. stayed with the first applicant in private. He locked the door from the inside and went on with physical and psychological coercion. Kh. fettered the first applicant ’ s hands with thumbcuffs and administered blows on the head and cheeks. The first applicant alleged that he had raped her using a condom and then forced her to perform oral sex with him. Kh. was interrupted by the noise in the corridor and the knocking on the door. The first applicant was allowed to go to lavatory and fix herself up.

(b) Confrontation with suspect B and events of the next three hours

Around 2 p.m. the first applicant was confronted with suspect B. In his presence, she yet again denied her involvement in the murder.

Thereafter Kh. and K. fettered the first applicant ’ s thumbs and repeatedly hit her in the stomach. They put a gas mask on the first applicant and made her suffocate by shutting access to air. Kh. and K. also put electricity through wires connected to the first applicant ’ s earrings. The above actions were coupled with requests to confess. It appears that eventually the first applicant admitted the receipt of the property in question and agreed to write her confession down.

Since the first applicant was in an agitated state and failed properly to write, she had to try twice. The confession was addressed to a local district prosecutor. Kh. and K. then suggested that the first applicant ’ s mother should bring the notebook containing the phone numbers and addresses of the applicant ’ s friends and acquaintances. The first applicant called her mother and at 4.40 p.m. the latter and the second applicant came to the police station and brought the required notebook. It appears that the notebook was taken away by one of the policemen and never returned. The first applicant ’ s mother and the second applicant stayed in a lobby near office no. 63.

At 5 p.m. S., an investigator of a local prosecutor ’ s office, came to office no. 63. He learned from the first applicant that she was a CSKA Moscow soccer fan and started to insult her and administer blows on her head with the second applicant ’ s own scarf, requiring her to curse this soccer club.

(c) Interrogation of the first applicant by investigator Zh.

Some time later investigator Kh. brought the first applicant to office no. 3 of the Prosecutor ’ s Office of the Nizhegorodskiy District of the city of Nizhniy Novgorod ( Прокуратура Нижегородского района г . Нижний Новгород , “the local prosecutor ’ s office”) which was situated in the same building as the local police station. Zh., an investigator of the local prosecutor ’ s office, interrogated the first applicant in connection with her confession. The first applicant submits that in order to put an additional pressure on her the investigators simultaneously arrested and detained her mother. It appears that the first applicant ’ s mother spent two hours in detention.

(d) Events between 6.30 p.m. and 7 p.m.

According to the second applicant, around 6.30 p.m. investigator S. was in the lobby and saw the second applicant. S. rudely demanded the second applicant to leave the building, kicked him on the hip, pushed him towards the exit, then caught up with him and forced him into office no. 54 in which there were two unidentified policemen. Then S. locked the door from the inside, hit the second applicant in his trunk several times and made a few blows on the second applicant ’ s head and trunk with his own CSKA Moscow soccer scarf.

S. brought the second applicant to office no. 7 and, in presence of Kh. and investigator M., went on beating the second applicant, requiring him to curse the CSKA Moscow soccer club. When the second applicant refused, S. put the scarf around his neck and started to suffocate the applicant, simultaneously hitting him on the trunk. The second applicant eventually submitted.

Thereafter M., Zh. and Kh. sent the second applicant to a nearby shop to buy alcohol, cigarettes and food and upon return he was expelled from the building.

(e) Events between 7 p.m. and 10.30 p.m.

Around 7 p.m., S. and M. came to office no. 3 in which investigator Zh. was finalising the interrogation of the first applicant. They did not let the first applicant out after the questioning was over and started to drink alcohol. According to the first applicant, her requests to leave were denied.

Upon her request, the first applicant was escorted to lavatory on the third floor of the building where she unsuccessfully tried to cut the veins of her left wrist.

She returned to office no. 3 and during the next two hours she was raped by Zh., S. and M. It appears that they used condoms and that following the rape they cleaned the place with wipes. It appears that Kh. had left the office upon the first applicant ’ s return from the lavatory and had not taken part in the rape.

At 9 p.m. S. left and during the next hour Zh. and M. went on raping the first applicant. Around 10 p.m., they released her.

(f) Events after 10.30 p.m.

At 10.30 p.m. the first applicant reached the place of her acquaintance RB. Shortly later she was joined by IA and EA. After a talk, EA called the first applicant ’ s parents and told them that RB and IA would follow the first applicant to a hospital.

At 1.20 a.m. on the next day they arrived at hospital no. 21 and the first applicant told an assistant nurse that she had been raped in the police station. Nurse Sorokina and doctor Shevchek did not examine the applicant and advised her on addressing herself to a bureau of forensic examinations. The applicant refused because the bureau was located too close to the police station. She was then advised to go to a bureau in a different district. It does not appear that the first applicant did so.

2. Criminal investigation

It appears that on 26 November 1999 the first applicant applied to the prosecutor ’ s office alleging that she had been tortured and raped. The Nizhniy Novgorod City prosecutor ’ s office ( прокуратура г . Нижний Новгород ) opened a criminal case in this connection and carried out an investigation.

On 25 April 2000 Kh., Zh., S. and M. were charged with commission of crimes penalised by Sections 131, 132 and 286 of the Criminal Code.

On 5 July 2000 the bill of indictment was signed and the case against Kh., Zh., S. and M. was transferred to the Nizhegorodskiy District Court of the city of Nizniy Novgorod ( Нижегородский районный суд г . Нижний Новгород , “the District Court”) for trial.

The bill of indictment stated that Kh. was accused of having tortured and raped the first applicant, ill-treated the second applicant, abused the office and discredited the authority (see the episodes (a), (b), (d) and (e) above). Zh. was charged with having raped and sexually abused the first applicant, abused the office and discredited the authority (see the episodes (c) and (e)). As to S., he was accused of having ill-treated the first and second applicant and abused and discredited the authority (see the episodes (b) and (d)), raped and sexually abused the first applicant and abused and discredited the authority (see the episode (e)). M. was charged with having raped and sexually abused the first applicant and abused and discredited the authority (see the episode (e)). The alleged criminal acts of the accused were characterised under Sections 131-1, 2 (b), 132-1, 2 (b) and 286-3 (a, b) of the Criminal Code respectively.

It appears that the accused denied their involvement in the crimes in question, kept silence and refused to give urine or sperm for examination. The findings in the bill of indictment were principally made on the basis of evidence given by the first and second applicant, witnesses B., RB, EA and IA, assistance nurse Sorokina and doctor Shevchek, the parents of the first applicant, the mother of the second applicant and other witnesses. The other evidence also included the items obtained through searches carried out at the premises of the police station and the prosecutor ’ s office, the report of the forensic examinations and other evidence.

According to forensic examination no. 650 of 31 December 1999, the clothes that Kh. had worn on 25 November 1999 bore traces of cells of vaginal epithelium of the same antigen group as the first applicant ’ s. The investigation also established that Kh. and his spouse had a different antigen group. During the search carried out at the premises on 27 November 1999 the investigative authority discovered two used condoms, one in the yard of the police station and the other one on the cornice under the window of office no. 3 of the prosecutor ’ s office. It appears that only one of the discovered condoms was suitable for forensic examination. The genomic examination revealed the presence of vaginal cells belonging, with a probability of 99, 9999%, to the first applicant and spermatozoids and cells of male urethra. The same search also discovered two wipes in the yard of the police station bearing traces of sperm. Furthermore, the forensic examination established that the first applicant ’ s clothes which she had allegedly worn on that day bore the traces of sperm.

3. Proceedings at first instance

During a preliminary consideration of the case on 16 August 2000 the defence of the accused pointed at various procedural defects of the investigation and moved to have the case remitted for an additional investigation. On the same day the District Court granted the motion and remitted the case for additional investigation. The court ruled that the investigative authorities had committed serious breaches of the domestic procedure during the investigation which had breached the rights of the accused and rendered most of the evidence in the case inadmissible. In particular, the decision noted numerous inaccuracies and deficiencies in dealing with the case, including the deviations from a special procedure for bringing an investigation in respect of the prosecution officers and the fact that Kh., Zh., S. and M. had not enjoyed the procedural status of the accused until 24 April 2000 which meant that almost all investigative actions (searches, interrogations, identification parades, expert examinations etc.) prior to that date had been carried out in breach of their defence rights and rendered the respective pieces of evidence inadmissible.

4. Appeal and supervisory review proceedings

The decision of the District Court of 16 August 2000 was upheld on the prosecutor ’ s appeal by the Nizhniy Novgorod Regional Court ( Нижегородский Областной Суд , “the Regional Court ”) on 13 October 2000.

On an unspecified date in September 2001 the first applicant ’ s counsel had brought an appeal against the decisions of 16 August and 13 October 2000 to the Presidium of the Regional Court , requesting to re-examine them by way of supervisory review.

On 1 October 2001 the counsel lodged a similar appeal to the Supreme Court of the Russian Federation ( Верховный Суд РФ , the Supreme Court).

Having examined the case file, on 6 June 2002 the Presidium of the Regional Court declined the applicants ’ request to re-examine the decisions by way of supervisory review.

It appears that a similar decision was taken by the Supreme Court on 21 June 2002.

5. Discontinuation of criminal proceedings

On 12 January 2001 the Regional Prosecutor ’ s office ( Нижегородская областная прокуратура ) examined the case, found that the charges were essentially based on the first applicant ’ s incoherent and inconclusive submissions, that the evidence in the case taken as a whole was inconsistent and concluded that no strong evidence against the accused was collected during the investigation. It also had regard to the conclusions in the court decisions of 16 August and 13 October 2000 and noted that “the repetitive breaches of law and, in particular, the failure to respect the procedures and rules governing the institution of criminal cases in respect of special subjects – investigators of the prosecutor ’ s office – created no judicial perspective [for the case] since it appeared impossible to remedy the breaches committed during the investigation”.

The decision also stated that the first applicant and the accused were to be notified and that the decision could be appealed against to a higher prosecutor ’ s office.

By a letter of 19 June 2001 (No. 15/1-1018-99) the Regional Prosecutor ’ s office responded to the first applicant ’ s appeal against the decision of 12 January 2001 fully deferring to its reasons and conclusions. The letter did not mention the possibility to appeal the decision in court.

According to the Government, the investigation in this case was repeatedly resumed and discontinued.

On 30 August 2002 the Regional Prosecutor ’ s Office annulled its decision of 12 January 2001 to discontinue criminal proceedings and submitted the case for an additional investigation. It also mentioned the lack of legal characterisation of the acts committed in respect of the second applicant as a drawback of that decision.

On 16 October 2002 the local prosecution office terminated the investigation in the criminal case, referring to the lack of evidence of any crime and the failure to prove the involvement of the police and prosecution officials.

It appears that thereafter this decision was cancelled, but on 24 February 2002 the local prosecutor ’ s office again terminated the proceedings on the ground of the lack of evidence of a crime.

On 19 September 2004 the first applicant ’ s counsel challenged the decision of 24 February 2002 before the District Court.

By judgment of 28 September 2004 the District Court upheld the decision, fully deferring to its reasons. The judgment was upheld on appeal on 29 October 2004 by the Regional Court .

On 29 April 2005 the Regional Prosecutor ’ s office yet again decided to resume the proceedings in the case.

According to the Government, the case is at present pending before the domestic authorities.

According to the applicant, on 28 June 2005 the proceedings were yet again closed.

B. Relevant domestic law and practice

1. Applicable criminal offences

Section 131 §§ 1 and 2 (b) of the Criminal Code of the Russian Federation punishes the offence of rape committed in an organised or simple group with or without prior conspiracy.

Section 132 §§ 1 and 2 (b) punishes the forced sexual acts committed in an organised or simple group with or without prior conspiracy.

Section 286 § 3 (a, b) punishes the abuse of office committed with the use of force or the threat to use the force with or without the use of arms or other special devices.

2. Interrogation of witnesses (Code of Criminal Procedure of 1960, as in force at the relevant time)

Section 155

“A witness shall be called for interrogation by a written notice served on him personally, or in his absence to an adult member of family ...

The notice shall contain a name of the person called as a witness, indicate where, before whom, what date and time he is due to appear and the consequences of a failure to appear. A witness may also be called by telephone or a cable.”

Section 157

“The interrogation of a witness takes place at the place of investigation. An investigator may decide to interrogate a witness at the witness ’ location.”

3. Official investigation of crimes

Under Sections 108 and 125 of the Code , a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities ’ own motion. Section 53 of the Code stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party. During the investigation the victim could submit evidence and lodge applications, and once the investigation was complete the victim had full access to the case-file.

Under Sections 210 and 211 of the Code, a prosecutor was responsible for overall supervision of the investigation. In particular, the prosecutor could order a specific investigative measure to be carried out, the transfer of the case from one investigator to another, or the reopening of the proceedings.

Under Section 209 of the Code, the investigator who carried out the investigation could discontinue the case for lack of evidence of a crime. Such a decision was subject to appeal to the senior prosecutors or the court. The court could order the reopening of a criminal investigation if it deemed that the investigation was incomplete.

Section 210 of the Code provide d that the case could be reopened by the prosecutor “if there we re grounds” to do so. The only exception to this rule constituted cases in which the time-limit for prosecuting crimes of that kind had expired.

Section 161 of the Code provide d that, as a general rule, the information obtained in the course of the investigation file is not public. The disclosure of that information may be authorised by the prosecuting authorities if the disclosure does not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings. The information concerning the private life of the parties to the proceedings cannot be made public without their consent.

Section 42 of the Law on Prosecution Authorities and Decree No. 44 of the Prosecutor General of 26 June 1998 sets out a special procedure for bringing administrative and criminal proceedings against the officials of the prosecution authorities. In particular, the officials who have the right to initiate such proceedings are exhaustively listed.

4. Civil-law remedies against illegal acts by public officials

The Civil Code of the Russian Federation , which entered into force on 1 March 1996 , provides for compensation for damage caused by an act or failure to act on the part of the State ( Section 1069). Section s 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Section 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.

COMPLAINTS

The applicants complained that they had been unlawfully detained and tortured by the policemen and prosecution officers on 25 November 1999 . The first applicant complained that she had had no access to a lawyer during the interrogations, that she had been repeatedly raped by the officers and that the policemen had seized her personal notebook. The applicants also complained about the ineffectiveness of the criminal proceedings concerning the events of 25 November 1999. They relied on Articles 3, 5, 6 and 8 of the Convention in connection with their complaints.

THE LAW

1. The applicants complained that they had been ill-treated and tortured by the policemen and prosecution officers on 25 November 1999. They also complained that the ensuing criminal investigation concerning the events of 25 November 1999 was ineffective. The applicants relied on Articles 3, 6 and 13 of the Convention which, insofar as relevant, provided as follows:

Article 3

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

Article 6

“1. In the determination of his civil rights and obligations [...], everyone is entitled to a fair [...] hearing by a [...] tribunal [...]. [...].”

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 disagreed with the applicants ’ complaints and allegations and submitted that on 29 April 2005 the Regional Prosecutor ’ s Office had resumed a criminal investigation into the events of 25 November 1999. They considered that it was not possible to comment further on the allegations for the time being.

The first applicant maintained her complaints and argued that her complaints were admissible. In particular, she claimed that the case file contained sufficient evidence of ill-treatment and torture in respect of the first applicant and that the ensuing investigation fell short of the requirements of Article 13 and the procedural aspect of Article 3. The second applicant maintained his complaints.

The Court first notes that the Government seem to have raised an argument of non-exhaustion. The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits. Furthermore, the Court considers, in the light of the parties ’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Under Article 5 of the Convention t he applicants complained that they had been unlawfully detained. The first applicant was dissatisfied with the fact that she had had no access to lawyer during the interrogations. She relied on Article 6 of the Convention in this respect. In addition, the first applicant complained about the breach of Article 8 rights in that the policemen had seized her personal notepad and failed to return it.

The Court notes from the applicants ’ observations that they do not wish to maintain these complaints. In any event, insofar as the applicants ’ Article 5 complaints are concerned, the Court notes that it was open for them to bring their grievances about the irregularity of their detention to the attention of the prosecution authorities in the criminal proceedings into the events of 25 November 1999 or by way of filing a separate complaint to the competent domestic courts. The Court observes that the applicants failed to do so. In the absence of any justification for this omission, the Court concludes that they did not exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

As to the remainder of the applicants ’ complaints as submitted under Articles 6 and 8 of the Convention, t he Court finds that they did not raise these complaints before the competent domestic authorities and in this respect too failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

For these reasons, the Court unanimously

Joins to the merits the Government ’ s objection concerning the exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the applicants ’ complaint s concerning the alleged ill-treatment and the lack of effective investigation into the events of 25 November 1999;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President