Постановление Европейского суда по правам человека от 30.07.2009 «Дело Владимир Федоров (Vladimir Fedorov) против России» [англ.]

able that, after being apprised of that decision - in a situation where the trial and appeal courts had analysed the applicant's ill-treatment complaint and the assistant prosecutor's decision of 18 April 2003, which was fairly similar to that of 13 October 2003, being based on the same evidence and containing the same findings - the applicant did not lodge a separate complaint with the same court following the formal procedure as required by the Russian Code of Criminal Procedure (see paragraph 30 above). In circumstances where the domestic courts at two levels of jurisdiction examined and dismissed the applicant's ill-treatment complaints, basing their conclusions on the assistant prosecutor's findings, it is not apparent that a challenge to the assistant prosecutor's decision of 13 October 2003 through the avenue of a separate criminal procedure before the same courts would have been any more successful, or would have been decided on the basis of any other issues. The Court does not lose sight of the fact that the Government did not argue otherwise. In the light of the foregoing, the Court considers that it has not been established with sufficient certainty that the remedy advanced by the Government could have been effective in the particular circumstances of the present case (see, for similar reasoning, Vladimir Romanov v. Russia, No. 41461/02, §§ 50 - 52, 24 July 2008).
50. The Court reiterates that the objection of non-exhaustion of domestic remedies cannot be raised against the applicant if, in spite of the latter's failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the claim (see, mutatis mutandis, Dzhavadov v. Russia, No. 30160/04, § 27, 27 September 2007; {Skalka} v. Poland (dec.), No. 43425/98, 3 October 2002; Metropolitan Church of Bessarabia and Others v. Moldova (dec.), No. 45701/99, 7 June 2001; and Edelmayer v. Austria (dec.), No. 33979/96, 21 March 2000). The Court therefore considers that the circumstances of the present case are similar to those examined by the Court in the Akulinin and Babich case (cited above) and finds that by raising, before the trial and appeal courts, a complaint about ill-treatment and the authorities' failure to investigate, the applicant provided the domestic authorities with the opportunity to put right the alleged violation. It follows that the applicant cannot be said to have failed to exhaust domestic remedies, in so far as he did not lodge a separate judicial complaint against the assistant prosecutor's decision of 13 October 2003, and that this part of the Government's objection as to the non-exhaustion of domestic remedies should be dismissed.
(ii) Civil action
51. The Court observes that the Government, without providing any further explanation, suggested that an action for damages lodged with a court could have been an effective remedy in the applicant's case for his complaints about the alleged ill-treatment in the police station. At the same time, without providing a copy of the relevant judgment, they supplied an example from domestic practice showing that by using the means in question it would have been possible for the applicant to obtain compensation for damage. In this connection, the Court observes that, in the absence of documents supporting the Government's assertion, it is unable to identify the relevance of that judgment to the issue of the effectiveness of an action for damages as a remedy in the circumstances of the present case. Furthermore, in the Court's view, the one case cited by the Government does not suffice to show the existence of settled domestic practice that would prove the effectiveness of the remedy.
52. In any event, the Court reiterates its finding in a number of cases that in situations of wilful ill-treatment the breach of Article 3 cannot be remedied exclusively through an award



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