Communicated on 13 February 2014

FIRST SECTION

Application no. 64418/10 Aleksandr MIHHAILOV against Estonia lodged on 28 October 2010

STATEMENT OF FACTS

The applicant, Mr Aleksandr Mihhailov , is an Estonian national, who was born in 1976 and lives in Narva . He is represented before the Court by Mr A. Gamazin , a lawyer practising in Narva .

A. The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents on the file , may be summarised as follows.

1. The applicant ' s arrest

On 29 April 2009 around 5 .40 p.m. the applicant was stopped by the police officers S.B. and E.V . in Narva on the suspicion of having breached public order in a state of alcohol intoxication. Before his arrest he had been drinking beer with M.Z. in a courtyard in Narva and waiting for Y.B. During his arrest one of the policemen allegedly hit the applicant on the head. He fell and lost consciousness for a moment. Two other police officers arrived at the scene and helped to handcuff the applicant. When being handcuffed while lying on the ground he was allegedly hit again several times. The applicant was then taken to the police department in a police vehicle that the officers had called to the scene. These events were evidenced by the applicant ' s acquaintance M.Z and also by Y.B. as well as by a group of children who had been playing nearby.

2. The applicant ' s detention at the police department

At 7 .45 p.m. a report was drafted that the applicant ha d been taken to sober up.

According to the applicant ' s statements he found himself in a detention room at the police department. Next to that room there were detention cells with several detainees. The applicant was handcuffed and lying on the floor. When he tried to stand up one of the two police officers in the room hit the applicant with a knee in the area of his left ear. When the applicant tried to sit on the chair he was hit in the legs and ordered to sit on the floor. After one of the police officers left the room the other police officer who had black leather gloves started beating the applicant systematically with hands and legs. The applicant stood up and fell several times. He was then taken to the toilet, the tap was opened and his head was put under water. The applicant was then moved back to the detention room and while passing the detention cells he asked the detained persons ( among others A.D., M.S. and A.P.) whether they can confirm anything they had overseen or overheard. In the detention room he was beaten again several times. He started screaming, lost consciousness for a while and was eventually put on a chair. His handcuffs were removed and he was allowed to go to the toilet where he washed himself. He returned to the detention room and was then put in a detention cell. The ambulance arrived shortly after that and took him to the hospital. He was accompanied by other policemen than those who had beaten him.

An ambulance was called to the police department at 1.42 a.m. on 30 April 20 09 . There seems to be no information in the submitted documents about who called the ambulance or for what reasons it was done . A ccording to the ambulance registry card no. 1419 the applicant complained of pain in the left part of the head and in the right wrist, nausea, vomiting and hearing loss in the left ear. Objective findings included bruises in the left part of the cranium, swollen right wrist and alcohol intoxication. He was diagnosed with intracranial injury and fracture in the right hand and wrist. The applicant was hospitalised.

According to the patient registry card no. 4460 dated 30 April 2009 the applicant complained at the hospital about loss of consciousness and vomiting. Objective findings included haematomas, oedema in the area of the left ear and eye. He was diagnosed with concussion and alcohol intoxication.

At 2.15 a.m. on 30 April 2009 police officers different from those who had allegedly beaten the applicant at the police department took statements from him at the hospital. At 2.40 a.m. the police officers drafted a misdemeanour report where they stated that the applicant while being drunk in a public place had been brawling, screaming and using obscene language which amount ed to a breach of public order.

At 6.26 a.m. on 30 April 2009 a computed tomography scan was performed on the applicant. The results showed temporal extracranial swelling on the left side, no haemorrhage, no intracranial pathology or haemorrhage, ventricular system was symmetric, no midline shift, cranial bones intact and paranasal sinuses, middle ear spaces aerated.

On 1 May 2009 the applicant called the ambulance close to his home. The ambulance registry card no. 1454 reveals that he complained of strong headaches, dizziness, nausea, vomiting, pain in the neck. Objective findings included left ear haematoma, oedema in the area of the left eye, alcoholic intoxication. He was diagnosed with concussion and was hospitalised.

At the hospital he was examined by a traumatologist who found paraorbital haematoma, bruises on the neck and upper limbs, smell of alcohol from the mouth, dysartria, staggering. The applicant refused further hospitalisation. He was diagnosed with concussion and alcohol intoxication.

3. The investigation of alleged police violence against the applicant

On 30 April 2009 the applicant complained to the police about his ill-treatment while he was arrested and detained. He alleged that the police had beaten him upon his arrest and also later while he was detained at the police department. The police officer on duty did not accept the complaint and said it had to be submitted to the prosecutor ' s office. The prosecutor did not accept the complaint either because the applicant was drunk, but nevertheless said that the complaint should be submitted to the police. When the applicant went back to the police station, police investigator accepted his complaint.

On 5 May 2009 the applicant complained to the district prosecutor ' s office about the same circumstances. On the same day the police decided to open a criminal investigation based on his complaint. During the investigation the police investigator heard the statements of the applicant, two suspected police officers S.B. and E.V., four other police officers who participated in the arrest (N.S., S.J., J.S. and S.T.), children present during the arrest (A.N., D.K., D.B. and E.G.), two police officers present at the police department during the applicant ' s detention (K.I. and P.S.), witnesses M.Z., M.S., A.P. and R.L. and ambulance doctor V.K. and nurse L.G.

The applicant gave statements to the police on 13 May 2009.

On 15 May 2009 the applicant ' s representative sent a letter to the police requesting among other steps that the police officers be presented to him for identification , that his mother as well as the ambulance doctor and nurse be heard as witness es and a forensic medical examination of his injuries be ordered .

On 2 June 2009 one of the suspects, police officer S.B., was interrogated. He explained that the applicant had behaved aggressively during his arrest and continued to do so at the police department. While sitting on a chair in the detention room the applicant suddenly fell off the chair with his face down. When put back on the chair, he fell for a second time. After the paperwork had been done, he was put in a cell to sober up. He did not have any bodily injuries at the time.

On 6 June 2009 the other suspect, police officer E.V., was interrogated. He explained that the applicant had been aggressive during his arrest. At the police department he was screaming that the police were beating him while in fact this was not true. At some point when E.V. returned to the detention room he saw that the applicant was falling off the chair with his face down and he helped the other police officer to lift he applicant back on the chair. The applicant fell for a second time and was then left sitting on the floor. The suspect expressed a view that as the applicant had earlier been convicted of some crimes he wanted to injure himself so that he could later put the blame on the police. When taken to sober up the applicant went to the cell on his own feet. He did not have any injuries that would have required immediate medical attention. The police officer informed the applicant that in case he had any complaints about his health, an ambulance would be called.

On 8 June 2009 the police investigator ordered a medical expert assessment of the injuries based on documentary evidence (the ambulance cards, patient registry card, statements of the applicant, the suspects and two witnesses (police officers)) .

On 15 June 2009 the applicant ' s representative lodged a complaint against the police to the district prosecutor ' s office. He explained that the procedural steps he had requested earlier had not been taken. He requested the prosecutor to take measures to secure the collection of evidence. The prosecutor dismissed the complaint on 1 July 2009 explaining that the applicant had not challenged any acts or orders of the investigative authority.

On 17 June 2009 the police showed the applicant photos to identify possible suspects.

On 13 August 2009 the forensic medical expert delivered his opinion about the applicant ' s injuries. He concluded that the injuries referred to above had been caused by assault with a blunt object or objects. The way these injuries were exactly inflicted could not be established as their description in the documents was not sufficiently detailed. Nevertheless, the expert concluded that these were inflicted shortly before turning to the doctor, possibly on 29 April 2009. He also noted that as there were no detailed descriptions of the injuries of the upper limbs, it was not possible to conclude whether these injuries were received during self-defence. None of the documents disclosed information about the ethanol content in the applicant ' s blood, but stated simply that the applicant had alcohol intoxication.

On 8 January 2010 the applicant complained to the district prosecutor that he was not informed about the results of the forensic medical examination if there had been any and that he had not been co nfronted with the witness M.Z. and the suspects to eliminate contradictions in their statements . The prosecutor dismissed the complaint on 1 4 J anuary 20 10 explaining again that the applicant had not challenged any acts or orders of the investigative authority.

On 20 January 2010 the police decided to discontinue the investigation concluding that there was no evidence that the suspected police officers had committed a criminal offence. The decision of the police investigator was approved by a district prosecutor on 15 February 2010 .

Regarding the applicant ' s arrest the decision stated that the applicant had not behaved adequately, was aggressively waving his hands, insulting the police, staggering intensively and had not reacted to the lawful orders of the police. He was therefore handcuffed. As the applicant did not calm down even when handcuffed and was still aggressive, the police kept him down on the ground. The applicant continued to behave aggressively and resist the police when he was being moved to the police bus for transportation to the police department. Four children that had been playing nearby gave statements that the applicant was not beaten during his arrest. They explained that the drunken person had resisted the police and he was therefore pushed into the police bus and hit his head against the door of the bus. Witness M.Z. explained that there had been no beating outside during the arrest. The police officers explained that they had not used force that under the circumstances could have been excessive. This was also the conclusion about the circumstances of the applicant ' s arrest in the police investigator ' s decision .

The police investigator concluded from the expert ' s statement referred to above that the applicant ' s allegations about the provenance of his injuries were not true. The police investigator cited the expert opinion that the haematoma around the left eye may have been caused on 29 April or 30 April or 1 May 2009, whereas the expert only concluded that the injuries were caused shortly before turning to the doctor and possibly on 29 April. In support of her conclusions the police investigator also relied on the statements of the ambulance doctor and nurse who hospitalised the patient on 30 April 2009 as well as the confirmations of the suspects that they had not used violence against the applicant. The police investigator discarded as unreliable the statements of M.Z. as he could not have seen what was happening with the applicant in the detention room. Though the door of this room was open, M.Z. was standing further away. Statements of the detainees A.P. and R.L. who confirmed that the applicant was beaten were discarded as they contradicted with the statements of M.S., a third detainee. The police investigator also took statements from four other police officers involved in the arrest and transportation of the applicant and one police officer who had been present at the police department during the applicant ' s detention. They confirmed that applicant was not beaten. The police investigator found in the end that the applicant had been disobedient at the police department and therefore the use of force against him was justified and lawful. It had not been excessive.

On 15 March 2010 the applicant lodged a complaint against the decision to discontinue the criminal investigation. He explained among other things that the statements of witnesses were selectively cited and distorted, that some of the witnesses (his mother and one of the detainees at the time of his beating (A.D.)) had not been heard, and that confrontations had not been performed to eliminate contradictions in statements.

On 23 March 2010 the State Prosecutor ' s Office rejected the applicant ' s complaint against the decision to discontinue the investigation as being out of time. The decision to discontinue the criminal proceedings had indicated that the applicant had to submit the appeal against the decision to the State Prosecutor ' s Office within ten days as of receipt of the relevant decision. The decision had been sent to the applicant ' s address by ordinary mail on 26 February 2010. The Estonian Post has indicated that a standard letter is transmitted to the addressee on the next working day of the post office. Therefore the letter had to reach the applicant on 1 March 2010 and the final day for submitting the complaint was thus 11 March 2010. The applicant submitted his appeal on 15 March 2010. The applicant claimed that he had only received the letter on 5 March 2010 as he had been working in another city. Though the applicant had not requested restoration of the time-limit for appeal, the State Prosecutor ' s Office explained that there were no reasons for such restoration. The State Prosecutor ' s Office was of the view that the applicant had a duty of diligence regarding his mail especially as he knew that there were proceedings pending where decisions concerning his situation might be adopted. The applicant had had several means available to him to avoid exceeding the time-limit.

On 30 April 2010 t his decision was confirmed by the Tartu Court of Appeal.

4. The applicant ' s acquittal of the charges against him

On 17 November 2010 the Viru County Court acquitted the applicant of the charges of breaching public order. In the judgment the court considered as reliable the statements of the witness M.Z. given during the hearing on 4 November 2010 that the police unduly influenced him to give evidence against the applicant by letting him overhear the beating of the applicant. This judgment was not appealed.

B. Relevant domestic law and practice

Article 207 §§ 1 and 2 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ), as in force at the material time, provided:

“(2) A victim may file an appeal with the State Prosecutor ' s Office against a decision to discontinue criminal proceedings under Article 200 of the present Code or against the dismissal of an appeal provided for in paragraph 1 of this Article by a Prosecutor ' s Office.

(3) An appeal specified in paragraph 1 or 2 of this Article may be filed within ten days as of receipt of a notice on refusal to commence criminal proceedings, a copy of an order prepared by a Prosecutor ' s Office on adjudication of an appeal or a copy of a decision to discontinue the criminal proceedings.”

As the Code of Criminal Procedure did not contain provisions on the service of documents, the general provisions of the Administrative Procedure Act ( Haldusmenetluse seadustik ) were applicable by way of analogy . These were interpreted by the Supreme Court to mean that when a document wa s sent by ordinary mail in violation of the general requirement to send it by registered mail, the burden of proof was on the public authority to prove that the person concerned received the letter at a certain time (see the Supreme Court decision of 9 May 2005 in case no. 3-3-1-28-05, §§ 13 and 14) .

In a judgment of 20 October 2010 (case no. 3-1-1-87-10 , §§ 6 and 9 ) the Supreme Court dealt with the interpretation and application of the same wording as in Article 207 § 3 of the Code of Criminal Procedure, though used in Article 208 in the context of lodging an appeal to a Court of Appeal against the decision of the State Prosecutor ' s Office . The Supreme Court rejected in that case the argument that as the postal service promises to deliver ordinary mail the next working day after its postage the complainant could not have received the decision of the State Prosecutor ' s Office almost a month after it had been posted by ordinary mail. The Supreme Court found that the receipt of the decision, which is the starting point of the deadline to lodge a complaint, was not proven.

COMPLAINT

The applicant complains under Article 3 of the Convention about the police violence during his arrest and his detention at the police department.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, h as t he applicant in the light of the Court ' s judgment in D.H. and Others v. the Czech Republic [GC], no. 57325/00 , § 116 , ECHR 2007 ‑ IV , and the Supreme Court judgement of 20 October 2010 (case no. 3-1-1-87-10 , §§ 6 and 9 ) done everything that could have reasonably be expected of him to exhaust domestic remedies ?

2. Has the applicant been subjected to treatment prohibited under Article 3 of the Convention? In particular, did the force used during the applicant ' s arrest and later during his detention amount to treatment in breach of Article 3 of the Convention?

3 . Having regard to the procedural protection from treatment prohibited under Article 3 (see Labita v. Italy [GC], no. 26772/95 , § 131, ECHR 2000 ‑ IV ), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?