THIRD SECTION

DECISION

Application no. 6490/08 Magometbashir Rashitkhanovich EKAZHEV against Russia

The European Court of Human Rights (Third Section), sitting on 13 April 2021 as a Committee composed of:

Darian Pavli, President, Dmitry Dedov, Peeter Roosma, judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 18 December 2007,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Magometbashir Rashitkhanovich Ekazhev, is a Russian national, who was born in 1978 and lives in Nazran. He was represented before the Court by Mr I.Y. Timishev, a lawyer practising in Nalchik.

2 . The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

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

4 . On 12 March 2005 the applicant, then a police officer in the Republic of Ingushetia, was travelling by minibus. The minibus was stopped at the check-point “Kurp-2” operated by the Terskiy district police department of Kabardino-Balkariya. During the control of the applicant ’ s identity an altercation took place between the applicant and Officer B. Following the applicant ’ s complaints, on 28 March 2006 a final refusal to institute criminal proceedings was issued.

5 . On 18 October 2005 the applicant followed through the same check ‑ point in a minibus. During the control of the applicant ’ s identity a brawl occurred between the applicant and the officers. Both, the applicant and Officer Sh., received injuries classified by forensic medical experts as minor harm to health. Both parties denied using any violence. Their respective versions of events were supported by statements of witnesses and were reported to the investigating authorities.

6 . On 6 January 2006 the internal security department of the Ministry of Interior of Kabardino-Balkaria issued a report, in which it concluded that the actions of the check-point officers on 18 October 2005 for carrying out the control of the applicant ’ s identity had been lawful. It noted that in the wake of the armed attack on Nalchik on 13 ‑ 14 October 2005 the control of passengers and cars had been carried out at all check-points on the administrative border of Kabardino-Balkaria, as had been ordered by the Ministry of Interior of the Russian Federation, for the purposes of suppression, detection and prevention of the movement of individuals pursuing criminal interests, as well as arms and drugs, across the administrative border.

7 . A pre-investigation inquiry was conducted into the applicant ’ s complaint against the check-point officers . In a decision of 23 March 2006 an investigator from the Terskiy district prosecutor ’ s office found that on 18 October 2005 the applicant had, for no reason and for hooligan motives, started a row at the check ‑ point. He had not obeyed the lawful demand of Officer Sh. to produce his personal belongings for control. The applicant had addressed Sh. in a foul language, threatened him with violent reprisal and hit him to the face and torso. As a result of his criminal actions Sh. had received injuries. The applicant ’ s lawless conduct had been supressed by the joint efforts of the police officers. The investigator noted the applicant ’ s injuries recorded by a forensic medical expert and stated that police officers had the right to use force for suppression of offences and for overcoming resistance to lawful demands. The actions of Officers Sh. and A.K. had not therefore been unlawful. No criminal proceedings should be instigated against them for lack of the elements of the crime of abuse of power under Article 286 of the Criminal Code in their actions.

8 . On 24 March 2006 the applicant was charged under Article 318 § 1 of the Criminal Code with recourse to violence against a public official.

9 . On 31 March 2006 the applicant received access to the case-file of the criminal case against him, which included the material of the pre ‑ investigation inquiries into his complaints against the police officers in respect of both incidents.

10 . On 11 April 2006 the criminal case against the applicant was transmitted for trial.

11 . In the trial before the Terskiy District Court in Kabardino-Balkaria the applicant, represented by lawyer M., denied any violence against Officer Sh. and argued that the police officers had beaten him up, and that they had done so in retaliation for his criminal complaint against them in March 2005. The trial court examined witnesses of the October incident and a witness of the March incident, at the request of the defence.

12 . In his submissions to the court a representative of the prosecution from the Terskiy district prosecutor ’ s office stated that the check-point officers had lawfully invited the applicant to produce his identity documents and bag for control. Sh., A.K. and other police officers denied beating the applicant. They stated that after delivering blows to Sh. the applicant had been separated from Sh. and dragged to the central post of the check-point. They also stated that all persons crossing the check-point had been subject to control in connection with the armed attack on Nalchik on 13 October 2005.

13 . On 25 January 2007 the applicant was convicted of recourse to violence against a public official in the exercise of his duties under Article 318 § 1 of the Criminal Code and sentenced to ten months ’ imprisonment. After examining prosecution and defence evidence the court dismissed the applicant ’ s arguments (see paragraph 11 above) as unsubstantiated and established the facts as follows. The applicant had not reacted to the lawful demands of Officer Sh. to produce his identity documents for control. The applicant had addressed Sh. in a foul language, threatened him with violent reprisal and inflicted him injuries. The applicant ’ s unlawful actions had then been supressed by the joint efforts of the police officers. As regards the applicant ’ s injuries, the court held that they might have been received as a result of the officers ’ lawful actions to stop his illegal behaviour. The court stated that the officers ’ actions had been considered lawful at the preliminary investigation, therefore it had been decided that no criminal proceedings should be instituted against them.

14 . The applicant ’ s lawyer, M., appealed against the judgment on the grounds that the trial court had failed to assess evidence impartially.

15 . Another lawyer representing the applicant in the appeal proceedings, Mr I.Y. Timishev, lodged an additional statement of appeal, arguing that the police officers had unlawfully demanded the applicant to produce his identity documents and personal belongings for control, in breach of the Police Act . Therefore, he should not have been convicted under Article 318 of the Criminal Code, applicable in case of resistance to the official ’ s lawful activity.

16 . On 27 July 2007 the Supreme Court of Kabardino-Balkaria upheld the judgment on appeal. The judgment became final on the same day.

17 . After his trial, the applicant sought judicial review under Article 125 of the Code of Criminal Procedure of the refusals to prosecute the check ‑ point officers (on 29 December 2007 in respect of the refusal of 23 March 2006 concerning the incident in October 2015, and on 4 February 2008 in respect of the refusal of 28 March 2006 concerning the incident in March 2015).

18 . On 30 January and 18 February 2008 the Terskiy District Court dismissed the applicant ’ s appeals against the refusals of 23 and 28 March 2006, respectively, with a summary reasoning, noting that the applicant ’ s allegations of the check-point officers ’ violence on 12 March 2005 and 18 October 2005 had already been examined at the applicant ’ s own trial. The Supreme Court of Kabardino-Balkaria upheld those District Court ’ s decisions on 14 and 21 March 2008, respectively, stating that the refusals to institute criminal proceedings against the police officers had already been subject of court review at the applicant ’ s trial .

19 . Article 318 of the Criminal Code of the Russian Federation, as in force at the relevant time, established that the use of violence not endangering life or health against a public official in connection with the performance of his or her duties was punishable by a fine or by up to five years ’ deprivation of liberty.

THE LAW

20 . The applicant complained under Article 6 § 1 of the Convention that the appeal court had not replied to his argument that the police officers had acted unlawfully in checking his identity and that he had, therefore, been wrongfully convicted for violence against one of them.

21 . The Government rejected the allegation, noting that it had been established, as a result of the preliminary investigation and the trial, that the police officers had acted lawfully, in the wake of the large-scale attack on Nalchik by illegal military formations on 13-14 October 2005 . Their actions had been based on the Police Act and had been aimed at ensuring the citizens ’ security, the identification of individuals involved in crimes and the prevention of terrorist acts and other crimes.

22 . The Court reiterates that judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 of the Convention obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court ’ s decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 I). Parties to judicial proceedings can expect to receive a specific and explicit reply to those arguments that are decisive for the outcome of those proceedings. It must be clear from the decision that the essential issues of the case have been addressed (see Lobzhanidze and Peradze v. Georgia , nos. 21447/11 and 35839/11, § 66, 27 February 2020). In determining whether the complainant ’ s arguments required an explicit reply, the Court must have regard to whether they were sufficiently well-substantiated as to have cast doubt on the findings of the domestic courts and the evidence already available in the case file (ibid., § 69).

23 . In the instant case, in so far as the applicant complained that his additional appeal argument alleging unlawfulness of the police officers ’ actions had not been addressed, the Court notes that the trial court addressed that issue in a reasoned judgment, in which the circumstances of the incident on 18 October 2005 were established after examining witness and other evidence presented by both sides, and the lawfulness of the actions of the check-point officers and of the applicant was assessed (see paragraphs 11 - 13 above). The trial court found the actions of the check ‑ point officers in respect of the control of the applicant ’ s identity lawful (see paragraphs 6 and 21 above). Its findings were endorsed by the appeal court. In such circumstances, and given the body of evidence contained in the case file, the answer to the applicant ’ s additional appeal was effectively set out in the judgment in question. The applicant may not therefore validly argue that this judgment did not address the essential issues of the case, and that, taken as a whole, the proceedings in issue were unfair for the purposes of Article 6 § 1.

24 . Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

25 . On 4 May 2008 the applicant lodged complaints about his alleged ill-treatment by the check-point officers on 12 March 2005 and 18 October 2005, and the lack of an effective investigation in that regard. The Court considers that these complaints fall to be examined under Article 3 of the Convention.

26 . The Government submitted that the question of compliance with the six-month time-limit for lodging the complaints depended on whether the Court regarded the court appeal under Article 125 of the Code of Criminal Procedure against the refusal to open a criminal case against the police officers of 23 March 2006 an effective remedy. For the Government, such appeal had not been required for the exhaustion of domestic remedies in the present case because the circumstances of the October incident had been established in the judgment in the criminal case against the applicant and, thereafter, the applicant had not produced any new evidence in support of his version of events. The Government also argued in respect of the March incident that, although Officer B. had behaved rudely, the applicant had not received any injuries and his treatment had not therefore reached the minimum level of severity under Article 3 of the Convention .

27 . The applicant submitted that a court appeal against a refusal to institute criminal proceedings might be ineffective in the circumstances of a specific case. He conceded that his court appeals under Article 125 of the Code of Criminal Procedure had had small chances of success after his conviction, given that his arguments about the police officers ’ violence against him in both incidents had been examined by the trial court and rejected. However, he had availed himself of that remedy in order to comply with what he considered the Court ’ s formal requirements for exhaustion of domestic remedies. The applicant argued in respect of the March incident that the police officer ’ s blows (even if not occasioning injuries) accompanied by foul language had reached the minimum level of severity under Article 3.

28 . The Court will first ascertain whether this part of the application was lodged within six months from the date of the final decision, as provided for by Article 35 § 1 of the Convention. It reiterates that the primary purpose of the six-month time-limit is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 258, ECHR 2014 (extracts)). It also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised and facilitates the establishment of facts in a case, since with the passage of time, any fair examination of the issues raised is rendered problematic (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29 June 2012).

29 . The six-month period runs from the final decision in the process of exhaustion of domestic remedies. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 of the Convention will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six ‑ month rule. If an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that appeal cannot be taken into account for the calculation of the six-month period (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016).

30 . As regards the incident on 18 October 2005, in its decision of 23 March 2006 the investigating authority decided not to institute criminal proceedings into the police officers ’ use of force against the applicant. At his trial the applicant argued that he had been the victim of the police violence and not the aggressor (see paragraph 11 above). The Terskiy District Court examined the evidence and established the circumstances of the incident on 18 October 2005, finding that the applicant ’ s injuries might have been received as a result of the police officers ’ lawful actions. The trial court examined the investigating authority ’ s decision not to institute criminal proceedings against the police officers (see paragraph 13 above).

31 . In these circumstances the Court has no reason to doubt the Government ’ s submissions that a separate court appeal against the refusal to institute criminal proceedings of 23 March 2006 was not required for the exhaustion of domestic remedies because the circumstances of the October incident had been established in the judgment in the criminal case against the applicant (see paragraph 26 above). The applicant himself agreed that the appeal under Article 125 of the Code of Criminal Procedure had had small chances of success after his trial (see paragraph 27 above). The domestic courts dismissed the appeal, holding that the applicant ’ s allegations had already been subject of judicial review at the applicant ’ s trial (see paragraphs 18 above).

32 . The Court considers that it should have been obvious for the applicant that seeking judicial review of the refusal to prosecute the police officers after the trial in the criminal case against him in respect of the same incident would be bound to fail. Hence, in the circumstances, such appeal should not be taken into account for the calculation of the six-month period, which started running on 27 July 2007, the date of the final decision in the applicant ’ s trial (see paragraph 16 above).

33 . As regards the earlier incident on 12 March 2005, the Court notes the applicant ’ s view that the trial court in his case had examined his allegations of police violence also in respect of the incident in March (see paragraph 27 above). It also notes that the domestic courts dismissed his appeal against the investigator ’ s decision of 28 March 2006 in respect of the March incident on the grounds that it had already been reviewed at his trial (see paragraph 18 above). The Court finds, as in respect of the complaints concerning the October incident, that the six month period started running on 27 July 2007, while the applicant ’ s complaints were lodged on 4 May 2008 (see paragraph 25 above).

34 . Accordingly, these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. There is therefore no need to address the Government ’ s remaining arguments concerning their admissibility.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 May 2021 .

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Olga Chernishova Darian Pavli Deputy Registrar President