FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26428/03 by Aleksandr Vyacheslavovich MEDVEDEV against Russia

The European Court of Human Rights (First Section), sitting on 1 June 2006 as a Chamber composed of:

Mr L. Loucaides , President , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr S.E. Jebens, judges ,

and Mr S. Nielsen , Section Registrar ,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksandr V y acheslavovich 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 Mos cow .

A. The circumstances of the case

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

On 12 March 2002 the police department of the “Tekstilshchiki” district of Moscow started an investigation into a residential burglary, committed earlier on the territory of the district (criminal case no. 127215).

On 19 March 2002 the police investigator questioned an eye-witness of that burglary, who identified the applicant as one of the perpetrators. The investigator questioned the applicant, who denied his implication in that crime. No formal charges were brought against the applicant at that moment.

1. The applicant ’ s arrest and “administrative detention”

According to the applicant, on 10 April 2002 , at about 10 a.m. , his car was stopped on a road . The police officers in plain clothes pulled the applicant out of his car and brought him to the nearby police station. The applicant submits that there he was beaten and threatened with torture by the police officers. It appears that the applicant was suspected in that burglary, and that the policemen were trying to extort confession from him.

At 5 p.m. a repor t of an “administrative offence” was drawn up by the police officers. The report stated that the applicant had been apprehended near the metro station “Tekstilshchiki” for using obscene language in a public place. The police confiscated his belongings, making no record of it and locked the applicant in a cell.

O n 11 April 2002 , at 5 p.m. , the applicant was brought before a judge of the Lyublinskiy District Court of Moscow. The applicant claims that he was not given access to the case-file, the judge did not let him to present his arguments and that, despite his demand, he was not allowed to have a lawyer.

The judge sentenced the applicant to seven days ’ “administrative detention” (a sanction for public disturbance, provided by the Code on Administrative Penalties). The court decision referred to the police report and statements of one of the policemen who had allegedly arrested the applicant near the metro station. The text of the decision indicated that it was not subject to any appeal and that the applicant refused to sign it. The applicant claims that he has never been served with a copy of the decision, or even have seen it.

On 12 April 2002 the applicant ’ s relatives contacted his lawyer, who immediately arrived to the police station, where the applicant was detained. However, the lawyer was denied access to the applicant for the reason that the applicant was at that moment questioned by the police in connection with the burglary.

On 14 April 2002 the lawyer has visited the applicant in the detention facility of the police station.

On 15 April 2002 the applicant ’ s lawyer requested the Lyublinskiy District Court to give him access to the materials of the administrative case. It appears that the registry personnel and the judge searched in the archives of the court, but the case-file has not been found.

On the same day the applicant complained of ill-treatment and “administrative detention” to the prosecutor ’ s office. He repeated his complaint on 29 April 2002 .

On 17 April 2002 the applicant was released after having served his sentence. According to the applicant, he found his car with a broken window; the audio system of his car had been stolen. In support of this allegation the applicant produced a photo of his car with a broken window, taken at an unidentified parking, allegedly on the next day after his release.

On several occasions in the following months the applicant was questioned by an investigator in charge of the criminal case no. 127215. However, no charges were brought against him. In July 2002 the investigation into the burglary was stayed.

2. The applicant ’ s appeal against the decision of 11 April 2002

On 21 April 2002 the applicant ’ s lawyer drafted an appeal against the decision of 11 April 2002 . He indicated, inter alia , that he had not received access to the case-file or even a copy of the decision.

As follows from the following correspondence and the postal receipt, produced by the applicant, the brief of appeal was posted by the registered mail on 22 April 2002 . On 30 April 2002 the appeal reached the Lyublinskiy District Court, which was supposed to transmit it further to the Moscow City Court, together with the case-file.

However, on 7 May 2002 the Lyublinskiy District Court returned the brief of appeal to the applicant ’ s lawyer. In the cover letter the judge noted that the appeal had arrived to the District Court outside the time-limit established by law and, thus, would not be forwarded to Moscow City Court. The letter was sent to the address of the bar association, to which the applicant ’ s lawyer belonged. The applicant claims that his lawyer has never received this letter. According to the letter of the bar association, they have not received any letters from the Lyublinskiy District Court addressed to the applicant ’ s lawyer.

On 15 May 2002 the Moscow City Prosecutor ’ s Office sent the applicant a letter in reply to his complaint of 15 April 2002 . As follows from that letter, the prosecutor ’ s office requested the materials of the administrative proceedings from the Lyublinskiy District Court. However, the request remained unanswered. Therefore, the prosecutor ’ s office was unable to review the lawfulness of the detention order of 11 April 2003 .

On 11 July 2002 the applicant requested the Moscow City Court to restore the time-limit for lodging an appeal. He referred to the fact that, despite his request of 15 April 2002 , he still did not have access to the materials of the case-file and did not have a copy of the decision of 11 April 2002 .

It is unclear what was the decision taken in reply to this motion. As follows from the letter of the Moscow City Court of 31 May 2004 , addressed to the applicant, the motion of his lawyer of 11 July 2002 has been left without examination since “by its form and content it had not complied with the requirements to the appeals against the court decisions in the administrative cases”.

3. The events after the request of information by the judge-rapporteur

On 27 April 2002 the applicant complained about his “administrative detention to the Court. In January 2004 the judge-rapporteur of the Court requested the Government under Rule 49 § 2 (a) of the Rules of Court to produce information and documents concerning the “administrative detention” of the applicant.

On 4 February 2004 the Representative of the Russian Federation in the European Court, Mr P. Laptev, requested relevant information from the Moscow City Prosecutor ’ s Office.

On 20 February 2004 an inquiry into the applicant ’ s allegations of ill-treatment was initiated. The investigator questioned the applicant and the policemen who took part in his arrest on 10 April 2002 . The policemen confirmed that they had arrested the applicant for use of obscene language in a public place. They denied all allegations of ill-treatment or stealing the applicant ’ s belongings. Further, the investigator examined the medical record of the arrested persons. The record, signed by the applicant, stated that the applicant had no visible injuries. The investigator concluded that the applicant ’ s allegations were unsubstantiated. On 1 March 2004 the investigation was discontinued.

On 21 April 2004 the Deputy Prosecutor of Moscow , upon the request of Mr Laptev, lodged an extraordinary appeal against the decision of 11 April 2004 . On 17 July 2004 the Vice-President of the Moscow City Court examined the case by way of supervisory review. The Vice-President noted that the District Court had based its conclusions solely on the statements of the police officers, without referring to other possible witnesses of the incident. Further, the court did not refer to any concrete information on the applicant ’ s personality or other circumstances of the case. The Vice-President concluded that the decision of 11 April 2002 was ill-founded and decided to quash it. Finally, the Vice-President discontinued the administrative proceedings against the applicant by virtue of “expiration of the prescription period”. It appears that the examination of the extraordinary appeal took place in camera and in absence of the applicant or his lawyer.

B. Relevant domestic law and practice

1. Criminal investigation

The RSFSR Code of Criminal Procedure (in force until 1 July 2002) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities ’ own motion (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or require the proceedings to be re-opened. 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 an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113).

2. Administrative arrest and detention

The Code of Administrative Offences of 1984 ( Кодекс об административных правонарушениях РСФСÐ ) , as in force at the relevant time ( until 1 July 2002 ) , established the penalties for petty offences and the procedure for imposing the penalties . Pursuant to Article 158 of this Code, the disturbance of public order was punishable with administrative detention up to fifteen days , to be ordered by a district court judge. The decision of the judge was not subject to any ordinary appeal, but could be reversed by way of supervisory review (Article 266, 274-276 of the Code).

On 28 May 1999 the Constitutional Court of the Russian Federation adopted Ruling no. 9- П , in which the above provisions of the Code on Administrative Offences were criticised as anti-constitutional. The Constitutional Court recommended that the law should be amended in order to provide for the right of appeal against the court ’ s decisions imposing an administrative sanction. In the meantime the Constitutional Court recommended the higher courts to accept and examine appeals against the “administrative” decisions of the lower courts, by analogy with ordinary appeal procedure.

COMPLAINTS

1. Under Articles 3 of the Convention the applicant complains of the beatings and threats he was subjected to in the “Tekstilshchiki” police station on the day of his arrest. He also claims that his complaints about the ill-treatment were not properly investigated.

2. Under the same Convention provision he complains that for 31 hours he was locked in a cell, which was not properly equipped for any detention longer than three hours. In the following days he was placed in the facility, designed for the detention of criminal suspects, whereas he was serving his “administrative detention” and, thus, should have been placed in a special detention centre with better conditions.

2. Under Article 5 § 1 (a) and (c) of the Convention the applicant complains about his arrest and “administrative detention”. In his words, his arrest was de facto related to the investigation into burglary. However, the police preferred to fabricate a back-dated “administrative offence” report which served as a basis for the applicant ’ s “administrative detention”. While the applicant was serving his sentence, the police proceeded with the investigation into burglary. The applicant was questioned without a lawyer, since, in the capacity of an “administrative offender” he had no right to legal assistance.

3. Under Article 5 § 2 the applicant complains that he was not formally notified about the reasons for his arrest.

4. Under Article 5 § 3 the applicant complains that he was not brought “promptly” before a judge.

5. Under Article 5 § 4 the applicant complains that he did not obtain a review of his detention by the court of appeal.

6. Under Article 5 § 5 the applicant complains that he did not receive any compensation for his unlawful detention.

7. Under Article 6 § 1 of the Convention the applicant complains that he did not have “access to court”, since his appeal against the decision of 11 April 2002 has never been examined.

8. Under Article 6 §§ 1 and 3 the applicant complains that the administrative proceedings against him were not “fair”. Thus, the court failed to establish real circumstances of his arrest and relied solely on the police reports. The applicant did not have access to the materials of the “administrative case”. He was not allowed to have a lawyer, neither he received a copy of the court ’ s decision ordering his detention. His lawyer, for a considerable amount of time, was not given access to the materials of the administrative case.

9. The applicant can be understood as complaining about the investigation within criminal case no. 127215 under Article 6 §§ 1 and 3. Thus, these proceedings exceeded the “reasonable time” requirement, the applicant was not formally charged and thus did not have access to the materials of the case-file, he was not allowed to have a lawyer and to call witnesses for the defence.

10. Under Article 13 the applicant complains that he had no effective remedies with respect of his complaints under Articles 3.

11. Under the same Convention provisions the applicant complains that he had no effective domestic remedies on account of his complaints under Article 5.

12. Finally, the applicant complains under Article 1 of Protocol No. 1 about the confiscation of his belongings by the police at the moment of his arrest.

THE LAW

1. The applicant complains that after his arrest the police officers have beaten him in order to make him confess in burglary. His also alleges that his complaints to the prosecutor 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 pu n ishment.”

As regards the first point, the Court recalls that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the C ourt adopts the standard of proof “ beyond reasonable doubt ” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).

Turning to the present case, the Court notes the following. First, it appears that the applicant did not have any marks of ill-treatment at the moment of his placement in the detention facility (see the “Facts” part above). Further, t he applicant did not produce any evidence of ill-treatment , such as medical certificates, witness testimonies etc. Finally, his submissions in this respect to the domestic authorities were not sufficiently clear and detailed. Accordingly, there is an insufficient evidentiary basis on which to conclude that the applicant, beyond reasonable doubt , was beaten up and threatened by the police officers, as alleged by him.

As regards the alleged lack of an effective investigation, the Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment only when they are “arguable” and “raise a reasonable suspicion” (see Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, pp. 3289-90, §§ 101-02). In the present case the domestic authorities where not confronted with a prima facie case of ill-treatment. Therefore, their refusal to open a formal investigation into his allegations does not seem unreasonable.

Finally, the Court notes that the decision not to proceed with his case has never been challenged before a competent court, although such possibility was expressly provided for by the Criminal Procedure Code .

In sum, it follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

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 has no other evidence in support of this complaint.

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

3. The applicant presents a number of complaints about his arrest and detention under Article 5 of the Co n vention. This provision, insofar as relevant, reads:

“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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

...

2. 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.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

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.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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.

4. Under Article 6 §§ 1 and 3 of the Convention the applicant presents several complains about the administrative proceedings, ended with the decision of Lyublinskiy District Court of 11 April 2002. Article 6, insofar as relevant, reads as follows:

“1. In the determination of [...] any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

[...]

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

[...] ”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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 the same Convention provisions, cited above, the applicant complains about various violations of his rights in the course of the official investigation into the burglary (criminal case no. 127215).

However, the Court notes that the applicant has never been formally charged within that criminal case. Further, the investigation into burglary has been stayed in May 2002 and the Court has no information about any developments in that case. Therefore, it is unclear to what extent the applicant is affected by those proceedings and, consequently, whether he can claim to be a victim within the meaning of Article 34 of the Convention. Even assuming that the applicant was a de facto suspect, as he alleges, the Court notes he failed to produce any materials which would substantiate his allegations.

In sum, it follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

6. Under Article 13 of the Convention the applicant complains that he had no effective remedy in respect of his complaint of ill-treatment and conditions of detention. Article 13 reads as follows:

“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 Court notes that Article 13 cannot be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A, no. 131, p. 23, § 52). The Court has already established that the applicant did not have an “arguable claim” of ill-treatment (see above).

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

7. Under Article 13 of the Convention, cited above, the applicant complains that he had no effective remedies to challenge his detention.

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.

8. Under Article 1 of Protocol No. 1 the applicant complains about the seizure of his personal belongings by the police officers. Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

However, apart from the applicant ’ s own allegations, the Court has no other evidence in support of this assertion. The photos produced by the applicant do not permit to establish who had been responsible for breaking the window of the applicant ’ s car and stealing his audio system. The police officers, questioned in the course of the inquiry in 2004, denied that they had taken anything from the applicant.

It follows that th is part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints under Article 5, 6 and 13 of the Convention co n cerning his arrest and “administrative detention”;

Declares the remainder of the application inadmissible.

Søren Nielsen Loukis Loucaides Registrar President