Communicated on 27 January 2014

FIRST SECTION

Application no. 6490/08 Magometbashir Rashitkhanovich EKAZHEV against Russia lodged on 18 December 2007

STATEMENT OF FACTS

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

A. The circumstances of the case

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

On 12 March 2005 the applicant, a police officer, was travelling by bus through the checkpoint between Nazran and Nalchik . The bus was stopped. A checkpoint officer told him to show his military certificate. He did it but refused to hand it over to the officer to see it better. The applicant was taken to the checkpoint premises and allegedly beaten up. In April 2005 investigator U. refused to institute criminal proceedings against any checkpoint officers. This refusal was quashed by the supervising prosecutor in September 2005. T he preliminary inquiry was thus resumed (see below).

In the meantime, on 13 October 2005 there was a large-scale terrorist act in Nalchik. On 18 October 2005 the applicant again followed through the checkpoint. He refused to present his bag for inspection. It appears that the officials explained to him that in view of the recent terrorist act, all people including officials should be subject to an inspection. Allegedly, he was then treated as a “traitor” and was beaten up. The applicant sustained a brain contusion and several other injuries. One of the checkpoint officer also sustained injuries. The applicant was charged with causing injuries to a public official in the exercise of his duties. In the meantime, on 23 March 2006 investigator U. refused to institute criminal proceedings against the checkpoint officers, in relation to the applicant ’ s allegation of ill-treatment. On an unspecified date, the applicant obtained a copy of the refusal.

Also, on 28 March 2006 investigator U. also re-examined the facts relating to March 2005 and issued a new refusal to prosecute the checkpoint officials. On an unspecified date, the applicant obtained a copy of the refusal.

On an unspecified date, the criminal case against the applicant was submitted for trial. On 25 January 2007 he was convicted of causing injuries to a public official on 18 October 2005. On 27 July 2007 the appeal court upheld the conviction.

The applicant then sought judicial review of the refusals to prosecute t h e checkpoint officers. On 30 January and 18 February 2008 a judge upheld the refusals of 23 and 28 March 2006 respectively , with a summary reasoning and also noting that the related facts had already been examined at the applicant ’ s own trial. The appeal court upheld the judge ’ s decisions.

B. Relevant domestic law and practice

1. Criminal Code

Article 318 of the Criminal Code punishes recourse to physical force against a public official.

As indicated in the 1999 review of the military courts jurisprudence, the corpus delicti under Article 318 of the Code was constituted if recourse to violence was related to the official ’ s exercise of his official duties. Recourse to force was not punishable (under this Article) if related to unlawful actions of the official.

2 . Code of Criminal Procedure ( CCrP )

Article 125 of the CCrP provides for judicial review of the decisions or (in )actions on the part of an inquirer, investigator or a prosecutor, which has affected constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision /( in)action and to grant the following forms of relief: ( i ) to declare the impugned decision/(in)action unlawful or unreasonable and to order the respective authority to remedy the violation; or (ii) to reject the complaint.

In its Resolution of 10 February 2009 the Plenary Supreme Court of Russia considered that it was incumbent on the judges to verify before processing an Article 125 complaint whether the preliminary investigation has been completed in the criminal case (point 9). If the criminal case has already been set for trial or has been completed, the complaint should not be examined unless i t was brought by a person who was not a party to the main case or if such complaint was not amenable to judicial review at the trial stage of the proceedings. In all other situations, the complaint under Article 125 should be left without examination and the complainant be informed that he or she can raise the matter before the trial or/and appeal courts in the criminal case.

In the same vein, according to the interpretation given by the Constitutional Court, a complaint under Article 125 cannot be brought or pursued after the criminal case, to which this complaint is connected, has been submitted for trial. However, when it is established that a party to the proceedings (including a judge or a witness) has committed a criminal offence, thus seriously affecting the fairness of the proceedings, the Code exceptionally allows for a separate investigation of the relevant circumstances leading to a re-opening of the case (see D ecision no. 1413-O-O of 17 November 2009; see also Ruling no. 20- P of 2 July 1998 and Ruling no. 5- P of 23 March 1999).

COMPLAINTS

The applicant complains under Article s 3 and 13 of the Convention that he was ill-treated by the checkpoint officers and that the investigating authorities and the courts failed to properly establish the relevant circumstances.

The applicant further complains that he was wrongly prosecuted for and convicted of recourse to physical force against a public official. In the applicant ’ s submission, the trial court failed to ascertain whether the officer had acted lawfully when he stopped him, checked his documents and belongings, and then inflicted injuries.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted domestic remedies in respect of his complaints under the substantive and procedural limbs of Article 3 of the Convention? In particular:

- Did the applicant lodge any hierarchical appeals against the decisions not to institute criminal proceedings in relation to his complaints of ill-treatment (“refusals to prosecute”) ? Was any such appeal successful? If yes, has he thereby complied with the exhaustion requirement?

- Was any such refusal issued in the framework of the file relating to the criminal charges against the applicant or in separate proceedings? Did the applicant institute review proceedings under Article 125 of the Code of Criminal Procedure ( CCrP ) in respect of any such refusal to prosecute (see Trubnikov v. Russia ( dec. ), no. 49790/99, 14 October 2003)? Had the applicant received access to texts of the refusals to prosecute well before his trial started? If not , given the intertwined nature of the charge against him and the subject-matter of the refusals to prosecute, was the remedy under Article 125 of the CCrP no longer available to him because his own criminal case was already pending before a trial court (see “Relevant domestic law and practice”) (see also Nikolay Fedorov v. Russia , no. 10393/04 , § 46, 5 April 2011)? Did the procedure under Article 125 of the CCrP lose any prospect of success, following the applicant ’ s conviction in 2007 in respect of the related facts?

- Was the above judicial procedure an effective remedy to be exhausted, noting that the reviewing court was not empowered to require any specific investigative measures to be carried out; there was no time-limit for lodging the complaint under Article 125 of the CCrP ; there was no procedure for ensuring compliance with the court ’ s order issued under Article 125 of the CCrP ; this remedy is , arguably, rendered devoid of purpose as soon as the criminal case in respect of the person concerned has been submitted for trial? Did the applicant have a privately-retained or legal-aid counsel during the preliminary investigation against him? Did the mandate of such counsel require him to bring review proceedings under Article 125 of the CCrP in respect of the alleged ill-treatment and ineffective investigation of the related complaint (cf. Dedovskiy and Others v. Russia ( dec. ), no. 7178/03, 12 October 2006, and Belevitskiy v. Russia , no. 72967/01, §§ 64 and 65, 1 March 2007)?

- Were the issue of ill-treatment (use of force) and the issue of an effective investigation of the related complaint examined in substance during the applicant ’ s trial and on appeal against the trial judgment? Was the trial court empowered to afford any adequate redress in respect of these two issues? If yes, has the applicant thereby complied with the exhaustion requirement (see Belevitskiy , cited above, §§ 62-67; Vladimir Romanov v. Russia , no. 41461/02, §§ 50-52, 24 July 2008; Akulinin and Babich v. Russia , no. 5742/02, § 33, 2 October 2008; Samoylov v. Russia , no. 64398/01, §§ 43-44, 2 October 2008; Vladimir Fedorov v. Russia , no. 19223/04 , §§ 44-50, 30 July 2009; Toporkov v. Russia , no. 66688/01 , §§ 28-35, 1 October 2009; and Lopata v. Russia , no. 72250/01 , § 107, 13 July 2010)?

2. With due regard to the parties ’ submissions in relation to the questions under section 1 above, did the applicant comply with the six-month time-limit for complaining before the Court under the substantive and procedural limbs of Article 3 of the Convention?

If yes:

3. Has the applicant been subjected to inhuman or degrading treatment on 12 March and 18 October 2005 , in breach of Article 3 of the Convention?

The parties are requested to make submissions, inter alia , on the following points:

(a) Did the officer(s) make any reports concerning use of force in respect of the applicant?

(b) Did the authorities make sure that the applicant be timely examined by a medical professional in relation to the circumstances of the arrest; that he be provided with first medical aid?

(c) Did any public authority, including courts, determine whether the officers ’ orders to or actions vis-à-vis the applicant were lawful under Russian law?

4. Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention? In particular:

(a) When did the authorities become aware or ought to be aware of the presence of i njuries on the applicant ’ s body, use of force against him or possible ill-treatment ? When did the se authorities open a preliminary inquir y ( доследственн ая проверк а ) ?

(b) Was the “effectiveness” of this inquiry undermined in the absence of a decision to initiate criminal proceedings ( возбуждение уголовного дела ) in reply to the applicant ’ s allegations? Was the official or authority, who carried out the inquiry, independent of the alleged authors of ill-treatment? Did Article 3 of the Convention also require that the above official or authority be independent of the authority which was responsible for investigating the criminal case against the applicant?

(c) Was the applicant , any officer or other persons interviewed during the inquiry? Were those persons liable for perjury or for the refusal to give evidence? Was any medical evidence obtained and assessed during the inquiry ?

(d) Was the applicant given a possibility to participate effectively in the inquiry (for instance by lodging motions, obtaining copies of procedural decisions, including a possibility to seek judicial review of the refusal to prosecute the officers)?

Having regard to Article 38 of the Convention, the respondent Government are requested to submit a copy of the file(s) relating to the inquiry in relation to the applicant ’ s allegations of ill-treatment.

5. Was it indispensable under Russian law, in a case under Article 318 of the Criminal Code, for the domestic courts to determine whether the applicant ’ s alleged recourse to violence against a public official related to the official ’ s exercise of his official duties and whether the official ’ s actions were lawful or unlawful? Did the domestic court delve, in any sufficient manner, into these questions? If not, did this omission constitute a violation of Article 6 of the Convention?

6. Also, was the offence under Article 318 of the Criminal Code clearly defined in law (with due regard to the applicable jurisprudence of Russian courts, if any)? Was it clear from the wording of Article 318 of the Criminal Code and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable? Could the applicant foresee , if need be with appropriate advice, the consequences which a given course of conduct (for instance, resistance to what he considered to be an unlawful action on the part of a public official) may entail? If not, was there a violation of Article 7 of the Convention?