THIRD SECTION

DECISION

Application no. 15258/18 Igor Dmitriyevich BOCHAROV against Russia

The European Court of Human Rights (Third Section), sitting on 19 October 2021 as a Committee composed of:

Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 20 March 2018,

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 Igor Dmitriyevich Bocharov, is a Russian national, who was born in 1966 and is detained in Lgov, the Kursk Region. He was represented before the Court by Mr I.N. Sholokhov, a lawyer practising in Kazan.

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

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

4. On 23 October 2016 at about 10 p.m. two traffic police officers, D. and I., stopped the applicant’s car in Kursk on suspicion of a road traffic offence. According to the applicant, after he refused to get into the police car, the police officers followed him to the front yard of his acquaintance’s private residence and, joined by four other traffic police officers, handcuffed him, knocked him off his feet and beat him. The applicant was subsequently escorted to the local police station.

5. On 24 October 2016 at 1.35 a.m. the applicant was admitted as an inpatient to Kursk City Clinical Hospital no. 4 ( ГКБ № 4 г. Курска ). On 8 November 2016 he was discharged from the hospital with the following final diagnosis: closed fracture of the eighth rib on the right side, chest contusion with severe pain syndrome, groin contusion, closed fracture of the nasal bones, retinal angiopathy.

6. On 24 October 2016 D. and I. submitted written reports regarding the circumstances of the applicant’s arrest. They asserted that the applicant had been acting aggressively towards them, had torn their uniform and had attempted to hit them. According to the police officers, the applicant had also attempted to suffocate D. with his hands, and they had had to resort to physical force and to place handcuffs around his wrists.

7. On 8 November 2016 the applicant complained to the investigating authorities about his alleged ill-treatment by the traffic police officers.

8. According to expert report no. 767/2 of 16 November 2016 and expert report no. 16/2 of 13 January 2017, at the material time the applicant had the following injuries: contusions on the eyelids of the left eye and on the left ear, a nose fracture with a contusion of the nasal dorsum, a haematoma on the abdomen, a bruise on the groin with testicules contusion, and subcutaneous haemorrhages on both wrists. The medical experts excluded the diagnosed closed fracture of the eighth rib as that diagnosis had not been confirmed by the X-ray films.

9. On an unspecified date in November 2016 the six police officers who had carried out the applicant’s arrest were questioned. According to their testimony, during the incident D. had been blocked in the front yard with the applicant, his brother and their acquaintance until the arrival of the backup police officers. As the applicant’s brother had been holding the fence door, I. and the backup police officers had had to force themselves into the front yard, and had resorted to physical force and handcuffs during the arrest.

10. On 23 November 2016 the investigating officer refused to open a criminal investigation. The investigating officer relied, inter alia , on the testimony of the police officers who had performed the applicant’s arrest. In particular, according to D., after he had found himself in the front yard and while the applicant’s brother had been holding the fence door preventing I. from entering, the applicant had started to choke D. with his hands. The police officers also asserted that about fifteen minutes after the beginning of the incident the backup police officers had arrived on site and, together with I., had managed to force themselves into the front yard. According to them, I. had helped D. release himself from the applicant’s grip, they had twisted the applicant’s arms behind his back, had laid him down on the ground and had placed handcuffs around his wrists, while two other police officers had performed the same actions on the applicant’s brother. D. also asserted that while he had been trying to break free from the applicant’s grip, he had thrown his arms around the applicant and might have hit him on the face and kneed him in his groin. The investigating officer concluded that, considering the established circumstances of the incident, the applicant’s injuries had been inflicted in the course of suppressing his own unlawful actions, and that the police officers had acted in accordance with law and had not exceeded their powers.

11. On 1 June 2017 the Kirovskiy District Court of Kursk dismissed the applicant’s complaint lodged under Article 125 of the Code of Criminal Procedure of the Russian Federation and upheld the refusal of 23 November 2016.

12. On 19 July 2017 the Kursk Regional Court quashed the first-instance decision and discontinued the proceedings as the applicant had been convicted by the Kirovskiy District Court of Kursk (see paragraph 14 below).

13. On 23 November 2016 the investigating authorities opened a criminal investigation against the applicant on suspicion of use of violence against a public official.

14 . On 5 July 2017 the Kirovskiy District Court of Kursk convicted the applicant under Article 318 § 2 of the Criminal Code of the Russian Federation of the use of violence endangering life and health of a public official. In particular, the district court established that on 23 October 2016 the applicant had grabbed D. by his neck and had started to choke him with both hands causing D. physical pain and inflicting two contusions on both sides of the lower third of D.’s neck. The district court relied in its judgement, inter alia , on the testimony of the police officers, video footage, and medical and expert evidence. It also noted, referring to the refusal of 23 November 2016, that the applicant’s complaint about his alleged ill ‑ treatment had already been examined by the investigating authorities and had not been supported by the evidence.

15. On 20 September 2017 the Kursk Regional Court dismissed the applicant’s appeal and upheld his conviction.

THE LAW

16. The applicant complained about the excessive force used in the course of his confrontation with the police officers and the lack of effective investigation in this respect. He relied on Articles 3 and 13 of the Convention which read as follows:

Article 3

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

Article 13

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

17. The Government submitted that, considering the circumstances of the applicant’s arrest, the actions of the police officers had been lawful and proportionate, especially in view of the unexpected developments and the use of violence by the applicant against one of the police officers. They further submitted that the preliminary inquiry into the applicant’s alleged ill ‑ treatment had been thorough and conducted in a timely manner and had therefore satisfied the requirements of Article 3 of the Convention.

18. The applicant maintained his complaints and insisted that the domestic authorities had erred in the assessment of the facts of the case, and had failed to conduct an effective domestic investigation therein.

19. The Court recalls that in cases involving the use of force during the arrest its task is to review whether the force used was strictly necessary and proportionate in view of the circumstances of the case (see Petyo Popov v. Bulgaria , no. 75022/01, §§ 53-57, 22 January 2009, and BerliÅ„ski v. Poland , nos. 27715/95 and 30209/96, § 64, 20 June 2002). In order to answer this question, the Court has to examine the applicant’s injuries and the circumstances in which they were inflicted (see R.L. and M.-J.D. v. France , no. 44568/98, § 68, 19 May 2004). The Court recalls that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, § 88, ECHR 2015). Also, it falls upon the Government to bring the evidence confirming that the use of force was both proportionate and necessary (see Rehbock v. Slovenia , no. 29462/95, §§ 72 ‑ 76, ECHR 2000 XII).

20. Turning to the circumstances of the present case, the Court observes that it is not disputed by the parties that the applicant was stopped by the police officers on suspicion of a road traffic offence and attempted to hide from them in the front yard of a private residence. The Court further notes that it was later established by the investigating authorities and the domestic courts that for at least fifteen minutes the applicant had been locked inside the front yard with his brother, their acquaintance and one of the police officers, D., and had attempted to suffocate D., while other police officers had been trying to get inside. The Court finds nothing in the case-file or in the applicant’s submissions which could enable it to question the findings of the investigation that the applicant’s injuries had been inflicted in the course of his arrest in the circumstances when a police officer’s life had been at risk. In view of the character and location of the applicant’s injuries, there is likewise no reason to doubt the assessment of the domestic authorities which established that most of the applicant’s injuries must have been inflicted by D. while the latter had been trying to release himself from the applicant’s grip, and the rest of them could have been inflicted in the course of the applicant’s handcuffing. The Court concludes that, whilst the applicant suffered several injuries as a result of the incident of 23 October 2016, in the circumstances of this case, the use of force against him cannot be held to have been more than strictly necessary by his own conduct.

21. As regards the alleged lack of an effective investigation, the Court notes that in response to the applicant’s complaint of ill-treatment, the domestic authorities carried out an official inquiry and took all the steps necessary to verify the applicant’s accusations. They questioned the applicant, the six traffic police officers who had carried out his arrest, the applicant’s brother and his acquaintance who had witnessed the applicant’s confrontation with the police officers, and studied the medical and expert evidence, as well as the video footage from the police car and other evidence. The judicial authorities reviewed the material gathered in connection with investigation and questioned the witnesses in the applicant’s criminal proceedings. The Court discerns nothing in the material in its possession to suggest that the domestic authorities’ approach in the present case lacked promptness, expeditiousness or thoroughness. The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicant’s complaint of ill-treatment during his arrest was “effective”.

22. The Court therefore considers that the applicant’s complaint under Article 3 of the Convention both in its substantive and procedural limbs is manifestly ill ‑ founded and must be rejected, in accordance with Article 35 § 3 of the Convention.

23. In so far as the applicant refers to Article 13 of the Convention, the Court, having regard to its conclusion concerning Article 3 of the Convention, finds that no separate issue arises under this provision. It finds that this complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

24. The applicant further complained about the domestic courts’ findings about his guilt and the assessment of evidence in his criminal proceedings.

25. The Court reiterates in this context that both the admissibility of evidence and its assessment are primarily a matter for regulation by national law and that as a general rile it is for the national courts to assess the evidence before them (see Lhermitte v. Belgium [GC], no. 34238/09, § 83, 29 November 2016). The Court should not act as a fourth-instance body and will therefore not question the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017).

26. The Court perceives nothing arbitrary or manifestly unreasonable in the domestic courts’ assessment of the relevant evidence on the matters referred to by the applicant. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with 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 18 November 2021.

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Olga Chernishova Peeter Roosma Deputy Registrar President