THIRD SECTION

DECISION

Application no. 65263/09 Konstantin Nikolayevich DMITRIYEV against Russia

The European Court of Human Rights (Third Section), sitting on 30 January 2018 as a Committee composed of:

Branko Lubarda , President, Pere Pastor Vilanova , Georgios A. Serghides , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 30 October 2009,

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

The applicant, Mr Konstantin Nikolayevich Dmitriyev , is a Russian national who was born in 1971 and lives in St Petersburg. He was represented before the Court by Ms O. Preobrazhenskaya , a lawyer admitted to practise in Moscow.

The Russian Government (“the Government”) were initially represented 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 .

The circumstances of the case

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

1. The events of 12 February 2005

According to the applicant, on 12 February 2005 two masked men broke into his flat and attacked him and his wife. The applicant fought back and threw the attackers out of the flat. The applicant ’ s wife called the local police station, reporting the attack and seeking help. Her complaint was registered and two police officers were sent to the applicant ’ s flat.

On 13 February 2005 the applicant was admitted to hospital, where he was diagnosed with a closed marginal fracture of the left kneecap, hemarthrosis of the left knee joint, a compound fracture of a finger on the right hand, and injuries to the left forearm. He remained in the hospital for in-patient treatment until 18 February 2005.

2. Refusals to open criminal proceedings issued in 2005 and 2006 and their revocation

On 14 February 2005 a police officer, V., issued a decision refusing to open criminal proceedings into the events of 12 February 2005 for lack of the elements of a crime. According to the reasoning for the decision, after the applicant ’ s wife had called the police station on 12 February 2005, a police officer had arrived at the applicant ’ s flat. However, the applicant ’ s wife had written a statement asking for no enquiries to be made into the incident given its “personal nature” and refusing to give any further explanation. V. submitted that both the applicant and his wife had asked that a criminal case not be opened. The police officer ’ s attempt to collect additional information about the incident by questioning the applicant ’ s neighbours had yielded no result, as no one had seen or heard anything.

On 25 May 2005 the prosecutor of the Tsentralnyy District in St Petersburg (“the district prosecutor”) quashed the decision of 14 February 2005, having found that the police inquiry had been incomplete. The prosecutor ordered that the applicant and his wife be interviewed, that medical documents be collected in order for the severity of the health damage sustained by the applicant to be determined, and that witnesses to the incident be identified and questioned.

On 19 September 2005 V., the police officer, again issued a decision refusing to open a criminal case on the same grounds as before and noted that the attempts ( i ) to contact the applicant and his wife in order to question them and (ii) to identify witnesses had been futile.

On 3 October 2005 the deputy prosecutor of the Tsentralnyy District in St Petersburg (“the deputy district prosecutor”) quashed that decision and ordered that the investigative measures listed in the decision of 25 May 2005 be carried out and that the police officers who had arrived on the scene be interviewed.

On 21 February 2006 V. again issued a decision refusing to open criminal proceedings on the same grounds as before.

In March 2006 the applicant ’ s mother lodged a complaint with the General Prosecutor ’ s Office, arguing that the St Petersburg prosecutor ’ s office had taken no measures to ensure a proper inquiry into the attack on her son.

In April 2006 the St Petersburg prosecutor ’ s office informed her that on 27 March 2006 the deputy district prosecutor had quashed the decision of 21 February 2006 and remitted the matter for additional inquiry, which had to be completed by 16 May 2006.

On 31 July 2006 police officer V. again issued a decision refusing to open criminal proceedings on the same grounds as before.

On 17 August 2006 the deputy district prosecutor quashed that decision and remitted the matter for additional inquiry.

On 27 September 2006 the police once again issued a decision refusing to open a criminal case.

On 10 October 2006 the applicant ’ s mother again lodged a complaint with the General Prosecutor ’ s Office about the St Petersburg prosecutor ’ s office.

On 30 October 2006 the St Petersburg prosecutor ’ s office informed the applicant ’ s mother that the decision of 27 September 2006 had been quashed and that the prosecutor had asked that disciplinary measures be taken against the officers concerned for procrastination and procedural violations committed during the inquiry.

On 12 November 2006 R., a police officer, issued a decision refusing to open a criminal case. According to that decision, the applicant did not reside at the address that the authorities had for him and the police had not had an opportunity to question the applicant and his wife. One of the police officers who had been at the scene on 12 February 2005 had been dismissed from his post and questioning him was not possible. Another police officer had stayed in the patrol car when he and his colleagues had arrived at the applicant ’ s home and so could not testify about what had happened there. R. referred to the refusal of the applicant ’ s wife to pursue the case.

3. The applicant ’ s first complaint to a court

On 2 May 2007 the applicant lodged a complaint with the Smolninskiy District Court of St Petersburg, submitting that after two years of inquiry no criminal proceedings had been initiated into the attack on him, that the decision of 3 October 2005 had not been complied with and that since 30 October 2006 he had not received any information about the progress of the inquiry. Having regard to the above the applicant submitted that the district prosecutor had failed to duly supervise the inquiry into the attack on him. The Smolninskiy District Court returned the complaint to the applicant for his failure to indicate the address of the place at which he had been attacked.

On 12 July 2007 the applicant resubmitted his complaint to the Smolninskiy District Court of St Petersburg.

On 26 July 2007 the Smolninskiy District Court left the applicant ’ s complaint unexamined, having found that the inquiry into the events had been conducted by the police department, which was under an obligation to inform him of its results. The applicant had never complained to the district prosecutor about the length of the inquiry and had never asked to be informed of the results of the inquiry. It followed that the applicant had brought the complaint against the wrong defendant.

On 15 October 2007 the St Petersburg City Court upheld that decision.

4. The applicant ’ s complaint to the Investigative Committee

On 1 February 2008 the applicant applied to the head of the Investigative Committee with the Prosecutor ’ s Office of Russia with a request for the opening of criminal proceedings into the attack on him and his wife. He also submitted that he had not been provided with copies of decisions taken during the inquiry into the attack on him. His complaint was forwarded to the district prosecutor.

On 2 August 2008 the applicant lodged a complaint with the St Petersburg prosecutor ’ s office, submitting that he had not been informed of any decision taken in respect of his complaint of 1 February 2008. The applicant also asked to be provided with copies of all decisions to refuse to institute criminal proceedings and of all the decisions quashing them.

On 20 August 2008 the St Petersburg prosecutor ’ s office informed the applicant that a reply to his complaint of 1 February 2008 had been sent to his address on 29 April 2008.

5. Decisions issued in 2008 and 2009

On 1 September 2008 the deputy district prosecutor quashed the decision of 12 November 2006 refusing to institute criminal proceedings and remitted the matter for additional inquiry.

On 7 October 2008 K. again issued a decision refusing to open criminal proceedings.

On 30 January 2009 the deputy district prosecutor quashed the decision of 7 October 2008 and remitted the matter for additional inquiry.

6. The applicant ’ s further complaints to courts

On 8 December 2008 the applicant lodged a complaint with the Oktyabrskiy District Court of St Petersburg, stating that the St Petersburg prosecutor ’ s office had not informed him of the results of the inquiry into his complaint of 2 August 2008 and had therefore failed to monitor the actions of the district prosecutor. The applicant ’ s complaint was forwarded to the Smolninskiy District Court.

On 25 May 2009 the Smolninskiy District Court dismissed the applicant ’ s complaint, finding that the district prosecutor did not have the authority to open a criminal case and that the district prosecutor had acted diligently.

Following an appeal by the applicant, on 4 August 2009 the St Petersburg City Court upheld that decision.

7. Information provided by the Government

According to the Government, on 6 July 2011 the register of incoming information on crimes, together with material concerning inquiries carried out in 2005, were destroyed, in accordance with the applicable rules on the storage of documents.

On 2 September 2011, following the communication of the application to the Government, a new inquiry into the appl icant ’ s complaint about his ill ‑ treatment by unidentified individuals in February 2005 was opened.

On 8 September 2011 a police officer, G., acknowledged that the acts of the unidentified individuals who had attack ed the applicant on 12 February 2005 disclosed elements of an offence punishable under Article 112 § 1 of the Criminal Code. However, he issued a decision refusing to open criminal proceedings on the grounds that the offence had become statute-barred.

On an unspecified date the decision of 8 September 2011 was quashed and the matter was sent for additional inquiry, which is still pending.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the domestic authorities had failed to conduct an effective investigation into the attack on him by unidentified individuals on 12 February 2005.

The applicant also complained under Article 6 of the Convention that the domestic courts that had heard his complaints had been partial, had incorrectly applied the domestic law and had misinterpreted the facts. He further complained that the attackers who had broken into his flat had violated his rights under Articles 5 and 8 of the Convention. Lastly, he complained that the investigative authorities and the courts had violated his rights guaranteed by Article 13 of the Convention.

THE LAW

A. The complaint about the authorities ’ failure to carry out an effective investigation into the ill-treatment inflicted on the applicant by unidentified individuals

The applicant complained that there had been no effective investigation into the ill-treatment inflicted on him by unidentified individu als on 12 February 2005. He relied on Article 6 of the Convention. The Court, being the master of the characterisation to be given in law to the facts of a case, considers it more appropriate to examine the complaint from the standpoint of Article 3 of the Convention, which reads as follows:

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

1. The parties ’ submissions

The Government submitted that the police had intervened immediately after being informed of the attack on the applicant. The inquiry into the applicant ’ s complaint about the events of 12 February 2005 was still pending. Therefore, it would be premature to make any conclusions about a violation of the applicant ’ s rights under Article 3 of the Convention.

The applicant submitted that on 12 February 2005 he had complained of the injuries inflicted on him by unidentified individuals to the police officer who had arrived at the scene. However, between 2005 and 2008 – that is to say before he had lodged the application to the Court – the authorities had several times issued decisions refusing to open criminal proceedings. Each time their decisions had been quashed because of the incomplete nature of the inquiry. Because of the inaction of the authorities it was no longer possible to investigate the attack on him as it had become time-barred.

The applicant also submitted that the decisions refusing to initiate criminal proceedings and the decisions quashing them had not been served on him in due time. He had obtained copies of those decisions only during the court proceedings against the prosecutor ’ s inaction. Therefore, he had been unable to effectively take part in the inquiry into the ill-treatment inflicted on him.

2. The Court ’ s assessment

(a) General principles

According to its case-law, it is not open to the Court to set aside the application of the six-month rule solely because a Government has not made a preliminary objection to that effect. The Court therefore has jurisdiction to apply this rule of its own motion, even if the Government have not raised that objection (see Fábián v. Hungary [GC] , no. 78117/13, § 90, 5 September 2017).

The six-month time-limit provided by Article 35 § 1 of the Convention has a number of aims. Its primary purpose 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 Sabri Güneş v. Turkey [GC] , no. 27396/06 , § 39, 29 June 2012 ). Normally, the six-month period runs from the date of the final decision in the process of the exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the applicant gaining knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 of the Convention to calculate the start of the six-month period from the date on which the applicant first became or ought to have become aware of those circumstances (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 260, ECHR 2014 (extracts)).

The Court has already held that, in cases concerning an investigation into ill-treatment, the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, the applicants must contact the domestic authorities promptly concerning progress in the investigation – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation – and, on the other, they must lodge their application promptly with the Court as soon as they become aware or should have become aware that the investigation is not effective (see Mocanu and Others , cited above, § 264).

The first aspect of the duty of diligence – that is to say the obligation to apply promptly to the domestic authorities – must be assessed in the light of the circumstances of the case. In this regard, the Court has held that applicants ’ delay in lodging a complaint is not decisive where the authorities ought to have been aware that an individual could have been subjected to ill-treatment – particularly in the case of an assault which occurs in the presence of police officers – as the authorities ’ duty to investigate arises even in the absence of an express complaint (see Velev v. Bulgaria , no. 43531/08 , § § 59-60, 16 April 2013). Nor does such a delay affect the admissibility of the application where the applicant was in a particularly vulnerable situation, having regard to the complexity of the case and the nature of the alleged human rights violations at stake, and where it was reasonable for the applicant to wait for developments that could have resolved crucial factual or legal issues (see El- Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012).

With regard to the second aspect of this duty of diligence – that is to say the duty of an applicant to lodge an application with the Court as soon as he realises, or ought to have realised, that the investigation is not effective – the Court has stated that the issue of identifying the exact point in time that this stage occurs necessarily depends on the circumstances of the case and that it is difficult to determine it with precision (see Nasirkhayeva v. Russia ( dec. ), no. 1721/07 , 31 May 2011). In particular, the Court has considered it indispensable that persons who wish to bring a complaint about the ineffectiveness or lack of an investigation before the Court do not delay unduly in lodging their application. However, so long as there is some meaningful contact with the authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay by the applicants will not generally arise (see Mocanu and Others , cited above, § 269).

(b) Application of the principles to the present case

The Court observes that on 30 October 2009 the applicant complained before it of the lack of an effective investigation into the ill-treatment allegedly inflicted on him by unknown individ uals at his flat on 12 February 2005.

As to the first aspect of the obligation of diligence, the Court notes that it was common ground that the applicant ’ s wife called the police on 12 February 2005 and reported the attack on her and her husband. On the same date the police opened an inquiry into the incident.

The Court furthermore notes that bet ween February 2005 and November 2006 the investigating authorities issued six decisions refusing to open criminal proceedings for lack of the elements of a crime. All of them were quashed by the district prosecutor on the basis of the fact that the inquiry had been incomplete. In September 2006 the district prosecutor asked that disciplinary measures be taken against the officers concerned for procrastination and procedural violations committed during the inquiry.

The applicant alleged that the authorities had not provided him in due time with copies of the decisions refusing to initiate criminal proceedings and the decisions quashing them, and had thus deprived him of the possibility to effectively participate in the inquiry. According to him, he had only obtained those copies on an unspecified date during the proceedings against the district prosecutor.

In that respect the Court observes that for more than two years from the opening of the inquiry the applicant did not seek information from the authorities about its progress. It was the applicant ’ s mother who complained in March and then in October 2006 to the General Prosecutor ’ s Office about the prosecutor ’ s alleged inaction in the applicant ’ s case. The applicant has provided no explanation as to why he took the initiative only in May 2007 – more than two years after the opening of the inquiry.

The Court further observes that by a final decision of 15 October 2007 the St Petersburg City Court dismissed the applicant ’ s complaint of 2 May 2007 as having been lodged against the wrong defendant. The court observed that the applicant had never complained to the district prosecutor about the length of the inquiry and had never asked to be kept informed of its findings.

In such circumstances, the Court considers that the applicant – who was at liberty throughout the inquiry into his complaint and was thus unrestricted in his actions – had ample opportunity to diligently contact the investigating authorities and the domestic courts. However, as can be seen from the materials of the case he did not take any steps until May 2007 and thus could not be said to have complied with the first aspect of the duty of diligence.

As to the second aspect of the duty of diligence, the Court observes that in the complaint that he lodged with the Smolninskiy District Court on 2 May 2007 the applicant referred to the content of the district prosecutor ’ s decision of 3 October 2005 to quash the decision refusing to initiate criminal proceedings and, in particular, the indications given by the district prosecutor to the inquiry officer. He also referred to the reply addressed to his mother by the St Petersburg prosecutor ’ s office on 30 October 2006 in which she had been informed that the decision of 27 September 2006 refusing to initiate criminal proceedings had been quashed and that the district prosecutor had asked that disciplinary measures be taken against the officers concerned for procrastination and procedural violations committed during the inquiry. Those elements allow the Court to conclude that by 2 May 2007 at the latest the applicant had become aware that no criminal proceedings had been instituted into his complaint. Having regard to the fact that by that date the applicant had not been informed of the measures taken to fill in the gaps in the inquiry ’ s findings resulting from the procrastination and procedural violations committed during the inquiry, he should also have become aware that there was neither sufficiently tangible indication nor a realistic possibility of progress being made in the investigative measures.

Accordingly, the Court is convinced that in the circumstances of the present case, the applicant must have become aware of the ineffectiveness of the investigation into the alleged attack on him more than six months before he lodged his application with the Court on 30 October 2009.

The Court considers that the inquiry reopened in 2011, after the communication of the present case to the Government; that inquiry, which is currently pending, has been unable to establish the circumstances of the attack on the applicant or to identify the perpetrators of the impugned act in view of the passage of considerable time since the event in question. In particular, it does not appear that the gaps in the inquiry ’ s findings resulting from the absence of the most basic investigative steps at the initial stages of the proceedings could be filled in at that point. Nor does it appear that at this stage the applicant has submitted any new information that could have warranted a different conclusion. In such circumstances the Court does not consider that this round of proceedings constituted a new development which could have revived the procedural obligation under Article 3 and therefore bring the complaint within the scope of the Court ’ s temporal jurisdiction.

In the light of the foregoing the Court considers that the applicant has failed to comply with the six-month rule in respect of his complaint under Article 3 of the Convention. This part of the application must therefore be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Other complaints

Lastly, the Court has examined the other complaints submitted by the applicant. 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 manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 February 2018 .

FatoÅŸ Aracı Branko Lubarda              Deputy Registrar President