The violent arrest and beating of her father by the police in front of the eyes of the nine-year-old daughter constitutes inhuman and degrading treatment against the minor!

JUDGMENT

Α. v. Russia 12.11.2019 (no.  37735/09)

see here

SUMMARY

The case concerned the applicant’s allegation that she had been traumatised by witnessing her
father’s violent arrest by the police when she was nine years old.

The Court found that the applicant’s allegations were credible, but that the authorities’ only
response had been to carry out a pre-investigation inquiry, which was superficial and ineffective.
Moreover, 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 Article 3.

PROVISION 

Article 3

PRINCIPAL FACTS 

The applicant, Ms A, is a Russian national who was born in 1998 and lives in Apsheronsk (Russia).
In May 2008 Ms A’s father, a police officer at the time, was arrested in the course of an undercover
operation organised by the Federal Service for Drug Control (“the FSKN”). The operation took place
outside her school after her father had accompanied her to an end of year event and she had been
getting into her father’s car to go home. According to Ms A, the police knocked her father to the
ground and repeatedly kicked him in his torso. She eventually managed to open the car door and run
away. She was found in a state of shock in a street by her uncle and taken home.

Shortly afterwards, she was diagnosed with a neurological disorder, enuresis and post-traumatic
stress disorder, which she says only improved several years later.

In July 2008 the applicant’s mother complained to the prosecutor’s office that her daughter being
present at the beating had damaged her health and an inquiry was carried out.

However, the prosecuting authorities refused to institute criminal proceedings, finding that no
physical force had been used against the applicant’s father and therefore that the elements of a
crime were not made out. They relied on statements by those who had been present at the incident,
mainly the FSKN officers and attesting witnesses to the undercover operation, and records from the
detention facility where the father had been held just after his arrest which reported no injuries.

The applicant’s mother appealed to the domestic courts, but in October 2008 they endorsed the
decision not to carry out a fully-fledged investigation.

The criminal proceedings brought against Ms A’s father for selling cannabis were ultimately dropped
in December 2009 because the evidence against him had been obtained unlawfully and was
therefore inadmissible.

THE DECISION OF THE COURT

The Court found that the applicant’s allegation that she had witnessed her father’s arrest, which had
involved him being beaten, was credible.

The Court could not rule out that the alleged force used against the father – notably being knocked
to the ground and kicked several times – had left no visible traces on his body, as he himself had
stated. He and another witness had also said that the FSKN officers had been wearing tracksuits,
which would suggest that they were wearing trainers, rather than army-type boots, which might not
have caused bruising and abrasions.

Furthermore, the statements by the FSKN officers which the prosecuting authorities and the
Government had relied on to conclude that no force had been used against the father, sat ill with
other witnesses’ statements, in particular a Federal Security Service officer present during the arrest,
who had acknowledged that the officers had used force.

The violence of the arrest had also been corroborated by an electrician who had been doing
maintenance work on traffic lights near the applicant’s school. The Court was not convinced by the
internal inquiry’s reason for dismissing the electrician’s statement as unreliable, namely that he was
an alleged drug user. No details were given as regards any administrative proceedings brought
against him for drug consumption. Nor, despite the importance of his testimony for establishing the
facts, had he actually ever been interviewed by the investigative committee which had carried out
the pre-investigation inquiry. Indeed, the person who had carried out the internal inquiry was
himself an FSKN officer, raising issues as to his independence.

Lastly, the Court considered that the statements by the two attesting witnesses to the undercover
operation, according to which no physical force had been used against the applicant’s father, had no
value. One of those witnesses had later acknowledged in the criminal proceedings against the
applicant’s father that he had testified falsely, at the request of the FSKN officers. It also transpired
from what they said that they could not have seen the father being apprehended. Both their
statements, as well as the findings in the decision to terminate the proceedings against the
applicant’s father, had therefore discredited the FSKN officers’ explanations.

The authorities had, however, only responded to the applicant’s credible allegations with a
pre-investigation inquiry, refusing to institute criminal proceedings and to carry out a fully-fledged
investigation. The Court found that the inquiry had not provided the Government with 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 found established.

The authorities had, moreover, not taken into account the interests of the applicant, who was only
nine years old at the time, at any stage in the planning and carrying out of their operation against
her father. The law-enforcement officers, who had been well aware that the applicant was on the
scene of the operation, had proceeded without paying any attention to her presence, thus exposing
her to a scene of violence against her father in the absence of any resistance on his part. That had
very severely affected her and, in the Court’s view, had amounted to a failure on the part of the
authorities to prevent her ill-treatment, in violation of the State’s positive obligation under Article 3.

It held that there had been a further violation of Article 3 as concerned the lack of an effective
investigation into the incident on 31 May 2008. 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.

Given the above findings, the Court held that there was no need to examine separately the
applicant’s complaints under Article 13 of the Convention concerning the lack of an effective
investigation or under Article 8, which were based on the same facts as her complaints under
Article 3.

Just satisfaction (Article 41)

The Court held that Russia was to pay Ms A 25,000 euros (EUR) in respect of non-pecuniary damage
and EUR 3,500 in respect of costs and expenses.

 


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