Постановление Европейского суда по правам человека от 29.01.2009 "Дело "Поляков (Polyakov) против Российской Федерации" [рус., англ.]

/> 18. According to the RSFSR Code of Criminal Procedure (CCrP), in force at the material time, the bill of indictment should be accompanied by a list of persons who should, in the prosecutor's opinion, be called at the trial (Article 206).
19. When deciding to schedule a court hearing a judge shall examine all applications and decide, inter alia, who shall be called as witnesses (Articles 223 and 228 CCrP). If refused, such applications may be renewed at the hearing; applications to call additional witnesses or adduce evidence shall be granted in all cases (Article 223). At the hearing, the judge shall ask the parties whether they want to call further witnesses or adduce further evidence (Article 276). A party making such an application shall specify the circumstances they intend to determine on the basis of such further evidence; having considered the application, the judge shall either grant it or issue a reasoned decision refusing it (ibid.).
20. A court of appeal is competent to review the lawfulness and reasonableness of the judgment made by the court below on the basis of the case file and any additional materials available to it (Article 332 CCrP). Such review can extend beyond the issues raised by the prosecution or defence in their points of appeal (ibid.). The latter may be supported by additional materials adduced either before or during the appeal hearing, but prior to the prosecution's statement (Article 337).
21. The Code of Criminal Procedure, in force since 2002, provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights (Article 413).

THE LAW

I. Alleged violation of Article 3 of the Convention

22. The applicant complained that he had been beaten up by the police on 21 October 1999, in breach of Article 3 of the Convention, which reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
23. The Government submitted that the applicant had unduly resisted lawful arrest and had thus had to be handcuffed. After the initial refusal to prosecute officers N and O in 2000, the proceedings had resumed in 2005 and were pending.
24. The applicant made no specific submissions on that matter.
25. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Article 3 does not prohibit the use of force for effecting a lawful arrest, but force may only be used if it is indispensable and must not be excessive (see Ivan Vasilev v. Bulgaria, No. 48130/99, § 63, 12 April 2007 with further references; and Peleckas v. Lithuania (dec.), No. 18293/03, 6 November 2007). Recourse to physical force which has not been made strictly necessary by the person's own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among others, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A No. 25, p. 65, § 162). In assessing evidence, the Court has generally applied the standard of proof "beyond reasonable doubt". However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in r



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