Постановление Европейского суда по правам человека от 16.09.2010 «Дело Дмитрачков (Dmitrachkov) против России» [англ.]

tion, which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Admissibility

35. The Government maintained that the applicant had not instituted any proper court proceedings against the decisions of the prosecutor's office dated 3 May 2001 and 27 July 2001 under Article 113 of the old CCP and thus failed to exhaust the available domestic remedies.
36. The applicant disagreed, having submitted that in view of the circumstances of his case any further complaints would have been ineffective.
37. The Court notes that under Article 113 of the old CCP the decisions referred to by the Government could indeed have been appealed against either to a prosecutor or to a court. The Court further observes that although a court itself had no competence to institute criminal proceedings, its power to annul a refusal to institute criminal proceedings and indicate the defects to be addressed appears to be a substantial safeguard against the arbitrary exercise of powers by the investigating authority (see Trubnikov v. Russia (dec.), No. 49790/99, 14 October 2003). The Court remains unconvinced, however, that in the circumstances of the present case the applicant can be said to have failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.
38. The Court notes that by a decision of 3 May 2001 the Buzuluk Prosecutor's Office examined the applicant's allegations of ill-treatment and refused to institute criminal proceedings against police officers Z. and V. for lack of evidence of a crime. It does not appear that the applicant brought any court proceedings in respect of this decision. After the applicant's criminal case concerning the charges of theft and robbery was transferred to the Buzuluk Town Court for examination, the applicant complained about the ill-treatment at the hands of the police officers before the trial court. In response, on 9 July 2001 the trial court entrusted the Buzuluk Prosecutor with the inquiry and adjourned the proceedings. On 27 July 2001 the Buzuluk Prosecutor's Office refused to institute criminal proceedings against the police officers, referring, among other things, to the previous decision of 3 May 2001. Thereafter the proceedings in the applicant's criminal case resumed and on 4 December 2001 the Buzuluk Town Court convicted the applicant as charged, having specifically rejected the applicant's allegations of ill-treatment as unfounded with reference to the decision of 27 July 2001. This judgment was later upheld by the Orenburg Regional Court on appeal.
39. Regard being had to the fact that the second examination of the applicant's complaints about the alleged ill-treatment had been ordered, examined and accepted by the trial court and later reviewed by the appeal court within the framework of the criminal case in which he took part as a defendant, the Court finds that the applicant made the domestic courts sufficiently aware of his grievances in respect of the alleged ill-treatment episode. The Court is of the view that the courts had been given an ample opportunity to exercise their power to annul a refusal to institute criminal proceedings and indicate the defects to be addressed. In such circumstances, the Court is unconvinced that having additional recourse to the procedure under Article 113 of the old CCP would have made any difference and yielded a different result from the one obtained by the applicant in this respect in the main set of criminal proceedings against him. Accordingly, the Court rejects the Government's objection.
40. The Court finds this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

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