Постановление Европейского суда по правам человека от 01.10.2009 "Дело "Топорков (Toporkov) против Российской Федерации" [рус., англ.]

onvention 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."
61. On 4 December 2008 the Court invited the applicant to submit his claims for just satisfaction. The applicant did not submit any such claims. Accordingly, the Court makes no award in this respect.
62. The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the Government's objection as to the exhaustion of domestic remedies in respect of the applicant's complaint about ill-treatment;
2. Holds by six votes to one that there has been no violation of Article 3 of the Convention on account of the applicant's allegations of ill-treatment by the police;
3. Holds unanimously that there has been a violation of Article 3 of the Convention on account of the authorities' failure to carry out an effective and thorough investigation into the applicant's allegations of ill-treatment by the police;
4. Holds unanimously that there is no need to examine the complaint under Article 13 of the Convention.

Done in English, and notified in writing on 1 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Andre} WAMPACH
Deputy Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:
(a) concurring opinion of Judge Malinverni;
(b) partly dissenting opinion of Judge Spielmann.

C.L.R.

A.M.W.

CONCURRING OPINION OF JUDGE MALINVERNI

(Translation)

1. I voted in favour of finding no violation of Article 3 in its substantive aspect, but only after having hesitated for a long time. I am not certain that, in the instant case, the applicant was not a victim of a violation in this respect also. In addition to the blows allegedly inflicted on him, he complains of having been subjected to a whole series of other forms of ill-treatment while in police detention. In particular, he alleges that he was obliged to undress completely, although there was a woman among the police officers present. He was also allegedly threatened with rape with a "rubber truncheon" (see paragraph 8). A few days later, he spent the entire night sitting in a chair, handcuffed to a radiator (paragraph 12).
2. In concluding that there was no violation of Article 3 in its substantive aspect, the judgment has focused on "the contusion diagnosed by the doctors who examined the applicant", which "indicate[s] that [these] injuries were sufficiently serious to amount to ill-treatment within the scope of Article 3" (paragraph 42). The Court concludes, however, that "the material in its possession does not elucidate the disputed facts as to the time and cause of the applicant's injuries" (paragraph 44). Consequently, "the Court cannot but conclude that there has been no violation of Article 3 of the Convention under its substantive limb" (paragraph 45). The Court thus limits its examination to "visible injuries on the victim's body".
3. I am not entirely convinced by this method of proceeding. By focusing exclusively on ill-treatment that leaves visible traces on the victim's body, does the Court not run the risk of passing over treatment which does not leave such traces, and which is equ

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