Minor’s exposure to violent arrest of parent
THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 45. The applicant complained that the unjustified use of physical force against her father during his arrest in her presence and her treatment by FSKN officers had breached her rights under Article 3 of the Convention. She further complained under Article 13 of the Convention that there had been no thorough and independent investigation into that incident. Articles 3 and 13 of the Convention 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.” A. The parties ’ submissions 1. The Government 46. The Government contested the applicant ’ s allegations, relying on the results of the pre-investigation inquiry (see paragraph 17 above). They submitted that the applicant ’ s presence during B ’ s arrest at the scene of the crime, immediately after his receiving money for sold drugs, had not been anticipated. The arresting officers had been unable to predict the time and place of the offence committed by B. If B had not been arrested, the evidence of the criminal offence would have been lost. 47. The Government stated that the authorities had conducted a comprehensive and thorough investigation into the applicant ’ s alleged ill ‑ treatment in compliance with Article 3. However, not a single piece of information, apart from what had been provided by the applicant ’ s family members, had demonstrated that force had been used against the applicant ’ s father or that she herself had been subjected to the treatment alleged. The applicant had availed herself of effective domestic remedies. The relevant decisions had not been in her favour because her allegations had been unsubstantiated. 2. The applicant 48. The applicant argued that as an involuntary witness to her father ’ s cruel arrest and beatings, she had not received any support or protection from a State representative. After her father ’ s arrest she had been left alone in his car, had run home alone and by chance had been found by one of her relatives in the street in a condition of profound shock. The incident had had serious consequences for her health and development. Ten years after the events complained of she was still suffering from its consequences. Given that she had been nine years old at the time and therefore more susceptible than an adult to the negative consequences of cruel treatment, and taking into account the long-lasting adverse effects it had had on her, the level of her suffering had been so high that her treatment by the police officers should be classified as torture. 49. The applicant further argued that the authorities should have anticipated her possible presence at the scene of the arrest, since the arrest had been carried out near the school where her father had taken her. They could have, for instance, communicated with the school administration to prevent her from coming out of the school at the time of the arrest, or to ensure the presence of a member of the school staff to provide her with psychological support during the arrest. Afterwards they could have taken her back to the school in order to shorten her presence at the place of the arrest or to avoid her going home unaccompanied. The authorities had had the necessary time but had not taken any measures to prevent or minimise the harm to her health. 50. The authorities had refused to initiate criminal proceedings into the applicant ’ s alleged ill-treatment by the police and, instead of a proper investigation, had carried out a superficial pre-investigation inquiry. Their decision had been based on the FSKN officers ’ statements and had failed to take into consideration evidence supporting the applicant ’ s allegations and the contradictions between the statements of the FSKN officers and the witnesses. B. Admissibility 51. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. C. Merits 1. General principles 52. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000 ‑ XI). 53. Where an individual makes a credible assertion that he or she has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. That investigation should be capable of leading to the identification and punishment of those responsible (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998 ‑ VIII). 54. Allegations of ill-treatment contrary to Article 3 of the Convention must be supported by appropriate evidence. To establish the facts, the Court applies the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161 in fine, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII). 55. In respect of children, who are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge and effective deterrence against such serious breaches of personal integrity. Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see Söderman v. Sweden [GC], no. 5786/08, § 81, ECHR 2013). 56. The Court has previously found in the case of Gutsanovi that the possible presence of children, whose young age makes them psychologically vulnerable, at the scene of an arrest is a factor to be taken into consideration in planning and carrying out this kind of operation (see Gutsanovi v. Bulgaria, no. 34529/10, § 132, ECHR 2013 (extracts)). In that case the Court found that the fact that the police operation had taken place in the early hours of the morning and had involved special agents wearing masks had served to heighten the feelings of fear and anxiety experienced by the children who had witnessed their father ’ s arrest, to the extent that the treatment to which they had been subjected exceeded the threshold of severity required for Article 3 to apply, amounting to degrading treatment (ibid., § 134). 2. Application to the present case (a) The establishment of the facts 57. It is not disputed between the parties that the applicant was present at the place of B ’ s arrest and saw what happened to him, and that shortly after those events she was diagnosed with a number of medical conditions, including a neurological disorder, enuresis and post-traumatic stress disorder. The applicant claimed that her health disorders had been caused by her exposure to a scene of violence against her father, who had not resisted his arrest, involving his being knocked to the ground and beaten up, notably being kicked repeatedly to his torso. The Government contested the applicant ’ s allegations, claiming that B ’ s arrest did not involve any use of force against him and that the authorities could not therefore be held responsible for any harm suffered by the applicant. In doing so the Government relied on the records of B ’ s detention facility and the statements made in the course of the pre ‑ investigation inquiry into the applicant ’ s allegations by: - FSKN officers S.K., V.D., A.O., V.E., E.N. and S.S.; - Federal Security Service officer S.P.; - Apsheronsk police officers K.A. and M.I.; - attesting witnesses A.Sh. and P.M., and - FSKN officer A.Z., who carried out the FSKN internal investigation (see paragraph 17 above). The Court will examine that material, together with the other material in the case file before it. 58. According to the records from the detention facility in which B was detained after his arrest, he bore no traces of injuries and made no complaints (see paragraph 27 below). It is not necessary for the Court to examine the reliability of those records in view of B ’ s own statements that the blows received by him during his arrest did not leave bruises on his body (see paragraph 34 above). It cannot be excluded that the alleged force used against B – notably being knocked to the ground and kicked several times – could have left no visible traces on his body. The Court notes in this regard that – according to B and witness R.G. (see paragraphs 10 and 13 above) – the FSKN officers who arrested B, including the one who allegedly used force against him, were dressed in tracksuits (see also the statements by attesting witnesses A.Sh. and P.M., FSKN officer E.N. and Apsheronsk police officers K.A. and M.I., who mentioned that the arresting officers had been in civilian clothing, paragraphs 31 and 35-37 above). This suggests that they may have been wearing trainers, which might not have caused the same blunt-trauma bruising and abrasions as army-type boots (see, for example, Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § § 39, 43, 45 and 96, 12 December 2017). 59. According to the identical written “explanations” made by FSKN officers S.K., V.D. and A.O., who apprehended B, and senior officer V.E., who was present during the arrest, no physical force was used against B during his arrest (see paragraph 24 above). According to FSKN officer E.N., who acted as a buyer in the undercover operation against B and was also present during B ’ s arrest, no physical force, “strong-arm tactics” or “holds” were used against B (see paragraph 36 above). Apart from the fact that the above-mentioned officers had a direct interest in denying the accusations made against them by the applicant, their statements sit ill with those made by S.P. and R.G. 60. S.P., the Federal Security Service officer present during B ’ s arrest, acknowledged that physical force had been used against B. He contended that it had been necessary because B had tried to escape, and had not been excessive, that is it had not escalated into a beating (see paragraph 39 above). It should be noted that S.P. ’ s statement that B had tried to escape finds no support in the statements of the FSKN officers (see paragraphs 24 and 36 above), the attesting witnesses (see paragraphs 31 and 35 above) or witness R.G. (see paragraph 13 above). Nor was it claimed that B had resisted his arrest by using force. 61. According to R.G., an electrician who had been carrying out maintenance work on the traffic lights near school no. 1 on the morning of 31 May 2008 and witnessed B ’ s arrest, FSKN officer S.K. delivered several blows to B during his arrest (see paragraph 40 above); he knocked B to the ground and kicked him (see paragraph 13 above). FSKN officer A.Z., who carried out the FSKN internal investigation, dismissed R.G. ’ s statements as unreliable. He alleged that R.G. was a drug user who had been arrested in the past for administrative offences of drugs consumption. Moreover, there had been no confirmation from his employer that R.G. had indeed been working in the area on 31 May 2008 (see paragraph 40 above). The Court does not find A.Z. ’ s assessment convincing, since he belonged to the same unit as the FSKN officers who were allegedly at fault, which raises an issue as to the independence of such an investigation. Apart from the fact that R.G. ’ s alleged drugs consumption or his employer ’ s failure to submit the relevant certificate would not as such be sufficient grounds to discard his statements, no details were given as regards any administrative proceedings against him. Furthermore, R.G., whose testimony was very important for establishing the facts, was never interviewed by the investigative committee, which instead relied on A.Z. ’ s assessment. The same is true in respect of a “specialist” (whose name, qualifications and other details were not provided) allegedly consulted by A.Z. and on whose opinion A.Z. had relied in concluding that the applicant had a pre-existing neurological pathology which made her prone to psychological trauma as a result of even a minor stressful situation (see paragraph 40 above), to hold that her health disorders had been caused by her having observed B being arrested without any use of force against him. This conclusion was adopted by the official pre-investigation inquiry without ever questioning the “specialist”. 62. The Court also notes that FSKN officer S.S. arrived at the place of B ’ s arrest after B had been apprehended and therefore did not see his arrest (see paragraph 38 above). The same applies to B ’ s colleagues from the Apsheronsk police department, K.A. and M.I. (see paragraph 37 above). The latter contended that B ’ s shirt had been open and slightly torn, and that the shirt buttons had been missing. K.A. ’ s and M.I. ’ s statements therefore confirm the applicant ’ s allegation that during her father ’ s violent arrest his shirt had been torn and its buttons ripped off. This is also supported by her parents ’ statements (see paragraphs 10, 12 and 34 above), as well as by photographs of the shirt (see paragraph 16 above). 63. Lastly, the Government relied on the explanations by attesting witnesses to the undercover operation against B carried out on 30 and 31 May 2008, A.Sh. and P.M., according to whom no physical force had been used against B during his arrest (see paragraphs 31 and 35 below). However, when examined as a witness a year later in relation to the criminal proceedings against B, P.M. acknowledged that he had testified falsely, at the request of the FSKN officers, that he had seen the transfer of drugs and money. He also acknowledged that on 31 May 2008 he and A.Sh. had been taken to the place of B ’ s arrest after B had been apprehended (see paragraph 43 above). It follows from P.M. ’ s witness statements that neither he nor A.Sh. saw B being apprehended, and the explanations they submitted in the course of the pre-investigation inquiry into the applicant ’ s complaint cannot have any evidentiary value. Furthermore, their statements, together with the findings in the decision terminating the criminal proceedings against B (see paragraphs 43-44 above), which were not disputed by the Government, discredit the explanations made by the FSKN officers, as well as the Government ’ s arguments about the unpredictability of the offence committed by B and the applicant ’ s presence at the “scene of the crime”, and the need to arrest B in order to prevent the loss of evidence (see paragraph 46 above). 64. It transpires that E.N., who acted as a buyer in the FSKN operation against B, learned from a telephone call on the morning of 31 May 2008 that B was at the school (see E.N. ’ s statements and B ’ s statements about informing E.N. that he was at the school with his child, paragraphs 36 and 10, respectively). When B came out of the school together with the applicant, E.N. was waiting for him. Immediately after the meeting between B and E.N., B was arrested by the FSKN officers, who acknowledged in their explanations to the investigative committee that when they apprehended B, he was near his car in which his daughter, A, was sitting (see paragraph 24 above). Federal Security Service officer S.P. ’ s statements also show that the law-enforcement officers participating in B ’ s arrest were aware that B ’ s daughter, A, was present at the place of arrest (see paragraph 39 above). 65. While the Court cannot examine the applicant ’ s allegation that she had been left to go home unaccompanied, which was not raised in the domestic proceedings (see paragraph 23 above), and cannot establish beyond reasonable doubt on the basis of the material before it her allegations about being addressed rudely and held in the car, the above assessment leads the Court to conclude that her allegations concerning her being exposed to her father ’ s arrest, and the violent nature of the arrest, were credible. (b) Compliance with Article 3 66. The Court notes next that the Government ’ s version of the facts was based on the pre ‑ investigation inquiry, the first stage in the procedure for examining criminal complaints. The Court has held, however, that the mere carrying out of a pre-investigation inquiry, not followed by a preliminary investigation, is insufficient for the authorities to comply with the requirements of an effective investigation into credible allegations of ill ‑ treatment by the police under Article 3 of the Convention (see Lyapin v. Russia, no. 46956/09, § 136, 24 July 2014, and, more recently, Samesov v. Russia, no. 57269/14, § 51, 20 November 2018). The Court has no reason to reach a different conclusion in the present case. The authorities responded to the applicant ’ s credible allegations of treatment proscribed by Article 3 by carrying out a pre-investigation inquiry and refused to institute criminal proceedings and carry out a fully-fledged investigation. This was endorsed by the domestic courts, thereby departing from their procedural obligation under Article 3. The pre ‑ investigation inquiry did not provide the Government with a proper basis to discharge their burden of proof and produce evidence capable of casting doubt on the applicant ’ s credible allegations concerning her exposure to the violent arrest of her father, which the Court therefore finds established (see Olisov and Others v. Russia, nos. 10825/09 and 2 others, § 85, 2 May 2017, and Samesov, cited above, § 53). 67. The interests of the applicant, who was nine years old at the time, were not taken into consideration at any stage in the planning and carrying out of the authorities ’ operation against her father. The law-enforcement officers paid no heed to her presence, of which they were well aware, proceeding with the operation and exposing her to a scene of violence against her father in the absence of any resistance on his part. This very severely affected the applicant and, in the Court ’ s view, amounted to a failure on the part of the authorities to prevent her ill-treatment (see paragraph 55 above). 68. There has therefore been a violation of the State ’ s positive substantive obligation under Article 3 of the Convention. 69. There has also been a violation of Article 3 under its procedural limb in that no effective investigation was carried out in that respect. 70. In view of its finding of a violation of Article 3 under its procedural limb the Court does not find it necessary to examine separately under Article 13 of the Convention the applicant ’ s complaint concerning the lack of an effective investigation into the incident of 31 May 2008. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 71. The applicant complained that the use of unjustified force against her father in her presence had also disregarded her feelings towards her beloved father in breach of her rights under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 72. The Government contested that argument. 73. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 74. Having regard to the finding relating to the applicant ’ s complaint under Article 3 (see paragraphs 67-68 above) which was based on the same facts as her complaint under Article 8, the Court considers that this complaint is absorbed by the preceding complaint and it is not therefore necessary to examine whether, in this case, there has also been a violation of Article 8. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 76. The applicant claimed compensation in respect of non-pecuniary damage, leaving it to the Court to determine its amount. 77. The Government submitted that Article 41 should be applied in accordance with the Court ’ s case-law. 78. The Court awards the applicant 25,000 euros (EUR) in respect of non-pecuniary damage. B. Costs and expenses 79. The applicant also claimed EUR 4,500 for the costs and expenses incurred before the Court. 80. The Government stated that Article 41 should be applied in accordance with the Court ’ s case-law. 81. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, notably a legal services agreement concluded by the applicant after lodging her application with the Court, and the above criteria, the Court considers it reasonable to award the sum of EUR 3,500 for costs and expenses for the proceedings before the Court. C. Default interest 82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court found that the applicant’s allegations were credible. It further noted that the law-enforcement officers, who had to have been well aware that the applicant was or would be on the scene of the operation, had taken no account of her interests when planning and carrying out their operation against her father, thus exposing her to a scene of violence. That had very severely affected her, as she had suffered in particular from a neurological disorder and post-traumatic stress disorder for several years afterwards. In the Court’s view, the applicant witnessing such a violent incident had amounted to ill-treatment which the authorities had failed to prevent, in breach of their obligations under Article 3 (prohibition of inhuman or degrading treatment) of the Convention. The Court also held that there had been a violation of Article 3 of the Convention, under its procedural limb, on account of the lack of an effective investigation into the incident. In this respect, it found that the mere carrying out of a pre-investigation inquiry, not followed by a preliminary investigation, was insufficient for the authorities to comply with the requirements of an effective investigation into credible allegations of ill treatment by the police under Article 3 of the Convention.