Постановление Европейского суда по правам человека от 13.07.2010 <Дело Лопата (Lopata) против России» [англ.]

after he had been tortured, such as the expert report of 14 - 18 September 2000, had not reflected the truth about his physical condition at that time and that the subsequent medical examination had not indicated the causes of his otitis. The applicant referred to statements by I.R. and V.Z. and to his lawyer's letter of 14 September 2000, which corroborated his version of events and on which the Government had failed to comment. Relying on the Court's judgment in Afanasyev v. Ukraine (No. 38722/02, §§ 62 - 63, 5 April 2005), the applicant argued that the medical evidence confirming the after-effects of the beatings, such as the deafness in the left ear and the otitis; statements by witnesses, such as his cellmates and lawyer; his own detailed and consistent account of events (the fact that he had described in minute detail the ill-treatment he was subjected to, the layout of the rooms, doors, furniture, ranks and names of the police officers); and the authorities' failure to explain the origin of his injuries, had, cumulatively, proven that he had been ill-treated by the police during his detention on 8 - 9 September 2000. Finally, he noted that he had consistently denied his involvement in the murder (during the interviews on 3 August and 5 September and the meetings with his lawyer on 6 and 7 September) and that it was hard to imagine that he would have suddenly decided to confess on 9 September when his counsel had been absent.
104. As regards the procedural requirement of Article 3, the applicant claimed that the investigation carried out into the alleged ill-treatment had been manifestly inadequate and ineffective. There had been no confrontation between him and the police officers. In fact, he had not been questioned in person about the alleged ill-treatment. No specific questions had been put to the police officers. As to the medical report of 18 September 2000, the applicant disagreed with its conclusions and saw as the only possible explanation of it the doctor's bias or pressure from the police officers not to record the actual injuries. The prosecutor had not taken any steps to establish the truth: thus, he had not interrogated possible witnesses about the applicant's state of health at the material time. In any event, the investigation had not been impartial because Kh.A., who had been at the same time responsible for the investigation of the murder, had been aware of the beatings, and had been an official of the prosecutor's office.

B. The Court's assessment

1. The Government's preliminary objection

105. The Court observes that in its decision on the admissibility of the application it decided to join the Government's preliminary objection as to the applicant's failure to exhaust domestic remedies to the merits of the case. The Government claimed, in particular, that the applicant had not exhausted the domestic remedies because he had not appealed to a prosecutor or a court to challenge the prosecutor's refusal to institute criminal proceedings against the police officers.
106. As regards the first limb of the Government's objection, the Court has previously held that an appeal against a refusal to institute criminal proceedings to a higher-ranking prosecutor does not constitute an effective remedy within the meaning of Article 35 of the Convention (see Belevitskiy v. Russia, No. 72967/01, § 60, 1 March 2007). It finds no reasons to depart from those findings in the present case.
107. As to the second limb of their objection, the Court observes that the applicant complained to the trial and appellate courts in detail not only about the alleged police brutality but also about various alleged defects in the investigation (see paragraphs 58, 64 and 68). The courts at two instances did not refuse to entertain his complaints for failure to comply with any formal requ



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