Постановление Европейского суда по правам человека от 18.03.2010 «Дело Максимов (maksimov) против России» [англ.]

Город принятия

(Application No. 43233/02)
(Strasbourg, 18.III.2010)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Maksimov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Andre}*Wampach, Deputy Section Registrar,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 25 February 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 43233/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Vladimir Vladimirovich Maksimov ("the applicant"), on 22 November 2002.

2. The Russian Government ("the Government") were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that the domestic courts had refused to award him sufficient compensation for the damage caused as a result of the unlawful actions of police officers in April 2000, and that police officers had ill-treated him in December 2001.

4. On 20 May 2005 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

5. The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismisses it.

I. The circumstances of the case
6. The applicant was born in 1963 and lives in Krasnoyarsk.

A. Attempt to search the applicant's country
house in March 2000
7. On 2 March 2000 two police officers came to the applicant's country house, intending to search it. The applicant objected and the police officers left. According to the applicant they returned later that day, climbed over the fence and broke it.

8. On 23 December 2001 the applicant, having been unsuccessful in his attempts to initiate criminal proceedings against the police officers, lodged an action against the local prosecution authorities seeking compensation for damage resulting from their refusal to open a criminal case.

9. On 10 September 2002 the Krasnoyarsk Regional Court, at final instance, dismissed the action, finding that the prosecution authorities had no cause to institute criminal proceedings as the police officers had not searched the applicant's house.

B. Ill-treatment on 24 April 2000
1. Events on 24 April 2000
10. On 24 April 2000, at 2.30 a.m., two police officers, Mr N. and Mr Ne., and officer N.'s relative, Mr V., acting on information that the applicant owned an unregistered weapon, broke into his country house. The applicant and his fifteen-year-old daughter were in the house. The officers told the applicant that a man had been killed in a nearby house and demanded that the applicant hand over his hunting rifle and cartridges.

11. In response to the applicant's assertion that he did not own a weapon, officer N. twice hit him in the head with the hilt of his gun. Threatening to use a gun, he then ordered the applicant to stand with his face to the wall, his hands against the wall and his legs spread. Having learnt that the applicant's daughter was also in the house, officer N. ordered her to come downstairs. When she refused, officer N. shot into the air. As the applicant's daughter still refused to comply, officer N. approached and hit her at least four times in the head with the hilt of his gun. According to the applicant, having dragged the girl downstairs, officer N. continued beating him and his daughter, threatening them with murder.

12. The police officers and Mr V. searched the house. Having found no weapons, officer N. again beat the applicant up. The applicant alleged that officer N. had pressed the gun against his head and had pulled the trigger. No shot was fired because the gun was not loaded. More murder threats followed.

13. The police officers tied the applicant's hands behind his back and took him to another house where the beating and threats continued. The applicant was released several hours later after having promised to come to a police station on the following day.

2. Criminal proceedings
14. On 25 April 2000 the applicant lodged a complaint with the Yemelyanovskiy district prosecutor, describing the events of the previous night. Criminal proceedings were instituted.

15. On 24 July 2000 an investigator discontinued the criminal proceedings, finding that the applicant's complaints were manifestly ill-founded. The investigator observed that medical experts had examined the applicant and his daughter and had diagnosed both of them with closed craniocerebral injuries and concussion. The experts also recorded compound wounds in the parietal region of the applicant's head and four tear-contused wounds on his daughter's head. However, the investigator concluded that there was no evidence in support of the applicant's allegations that the injuries had been caused by officer N.

16. Four days later the Yemelyanovskiy district prosecutor quashed the decision and reopened the investigation.

17. On an unspecified date officer N. was served with the bill of indictment and committed to stand trial before the Yemelyanovskiy District Court of the Krasnoyarsk Region.

18. The applicant and his representative attended the trial hearings. On 4 June 2002 the District Court found the applicant's representative in contempt for having offended the presiding judge and excluded the representative from the courtroom.

19. On 6 June 2002 the Yemelyanovskiy District Court, having established that on 24 April 2000 Mr N. had broken into the applicant's country house, had severely beaten the applicant and his daughter and had searched the house, found him guilty of unlawful breaking and entering into a dwelling and gross abuse of position, and sentenced him to three years and six months' imprisonment. The District Court, without supporting its decision by any reasoning, also awarded 25,000 Russian roubles (RUB, approximately 840 euros) in compensation for non-pecuniary damage to be paid to the applicant and his daughter by Mr N. At the same time the District Court instructed the applicant to bring a separate action for compensation for damage caused to his and his daughter's health by Mr N.'s unlawful actions.

20. The applicant appealed, complaining, inter alia, about the unfavourable outcome of the proceedings.

21. On 27 August 2002 the Krasnoyarsk Regional Court, noting that the District Court had not committed any gross violations of the law, upheld the judgment of 6 June 2002. The applicant was present at the appeal hearing.

22. The judgment of 6 June 2002, as upheld on appeal on 27 August 2002, was not enforced in the part concerning compensation for damage, because Mr N. did not have any assets.

3. Tort action against the State authorities
23. On 4 November 2002 the applicant and his daughter lodged an action against the Russian Ministry of Finance, the Krasnoyarsk regional treasury and the Krasnoyarsk regional and Yemelyanovskiy district police departments, seeking compensation for non-pecuniary damage. The applicant argued that the State should bear responsibility for the unlawful actions of its agents, in this case police officer N., who had broken into his house and beaten him and his daughter. He also contended that the compensation awarded to him by the judgment of 6 June 2002 was insufficient and had not even been paid to him.

24. On 3 April 2003 the Sverdlovskiy District Court of Krasnoyarsk dismissed the action, reasoning as follows:

"Having heard the parties and having studied the case materials, the court makes the following findings.

On 6 June 2002 the Yemelyanovskiy District Court of the Krasnoyarsk Region found Mr N. guilty [of the criminal offences] proscribed by Article 139 § 3 and Article 286 § 3 (a) and (b) of the Russian Criminal Code and sentenced him to three years and six months' imprisonment. [The court] awarded 25,000 roubles in compensation for non-pecuniary damage to [the applicant] (10,000 roubles in his favour and 15,000 roubles to be paid to [his daughter]).

It was established in the court's judgment that on 24 April 2000 Mr N., acting against [the applicant's] will, had entered his dwelling (a country house), where he had fired his gun a number of times. Mr N. had twice hit [the applicant] in the head with the hilt of his gun, causing an abrasion to the applicant's scalp... Mr N. had hit [the applicant's daughter] at least four times in the head with the hilt of his gun, causing a closed craniocerebral injury accompanied by concussion, and four tear-contused wounds...

By virtue of Article 254 of the Russian Code of Civil Procedure an individual has a right to appeal to a court against the actions (inactions) of a State body, a municipal authority or their officials.

According to Article 1069 of the Russian Civil Code damage caused to an individual or a legal entity by the unlawful actions (inactions) of State [and] municipal bodies or their officials... must be compensated. The compensation is to be paid out of the funds of the Treasury of the Russian Federation, the treasury of the constituent element of the Russian Federation or the treasury of the municipal entity respectively.

Article 1069 does not cover the unlawful actions of all employees of a State or municipal body but only those of the officials defined in the annotation to Article 285 of the Russian Criminal Code. Officials are persons who permanently, temporarily or on the basis of a specific authorisation perform functions of public agents or perform managerial, regulatory, administrative or economic functions in State and municipal bodies or State and municipal entities. For liability under Article 1069 of the Russian Civil Code to be invoked the official must have caused the damage in the performance of his duties.

By virtue of Article 49 of the Russian Constitution any person accused of having committed a criminal offence is considered innocent until his guilt is proven according to a federal law and established by a final court judgment.

It was established in the court hearing that after the judgment [of 6 June 2002] had become final, Mr N. was dismissed from [the police service].

By virtue of Article 1070 of the Russian Civil Code damage caused to an individual as a result of his unlawful conviction, the unlawful institution of criminal proceedings against him, his unlawful detention on remand, the unlawful application of a written undertaking not to leave his place of residence or the unlawful imposition of an administrative sanction such as arrest or correctional works should be compensated in full, irrespective of the guilt of the officials of the [police], investigating, prosecuting or judicial authorities, in a procedure established by law and out of the funds of the Treasury of the Russian Federation or, if prescribed by law, the funds of the treasury of the constituent element of the Russian Federation or the municipal entity.

Compensation for damage caused to an individual or a legal entity as a result of the unlawful actions of the [police], investigating or prosecution authorities which did not produce any of the consequences described in paragraph 1 of [Article 1070] should be awarded on the basis of and in line with the procedure established by Article 1069 of [the Russian Civil Code]...

The legal relations between claimants and defendants do not fall within the ambit of Article 1070.

Therefore, [the court] dismisses [the claimant's] claims that the actions (inactions) of the authorities of the Yemelyanovskiy district and Krasnoyarsk regional police departments and the Ministry of the Interior of the Russian Federation were unlawful.

By virtue of Article 151 of the Russian Civil Code a court may order perpetrators to pay monetary compensation for non-pecuniary damage (psychological and physical suffering) to individuals who sustained such damage through actions which violated their personal non-pecuniary rights or otherwise encroached on their non-pecuniary interests, as well as in other cases envisaged by a federal law.

Article 150 of the Russian Civil Code lists life, health, human dignity, personal safety... among those non-pecuniary interests.

No compensation should be awarded for non-pecuniary damage because, by virtue of the judgment of the Yemelyanovskiy District Court of the Krasnoyarsk Region, the applicant was awarded compensation for non-pecuniary damage to be paid by Mr N., the direct tortfeasor.

The present judgment has not established responsibility on the part of any officials in causing damage to [the applicant].

In such circumstances the court considers [the claimant's] claims manifestly ill-founded and dismisses them in full."
25. On 16 July 2003 the Krasnoyarsk Regional Court upheld the District Court's judgment, finding that:

"...in view of the fact that [the applicant] and [his daughter] made use of their right and lodged a claim for compensation for non-pecuniary damage by the direct tortfeasor and that their claims were allowed by the court in the course of the examination of the criminal case; that compensation for non-pecuniary damage constitutes one-off redress; and that dual compensation for non-pecuniary damage caused by the same actions of the person concerned is impossible, the [District] court lawfully dismissed the plaintiffs' claims for compensation for non-pecuniary damage in connection with the unlawful actions of Mr N."
C. Car hijacking in 2001
26. On 2 August 2001 the applicant's car was stolen. On the same day two individuals were arrested and charged with theft. The car was returned to the applicant. On 28 May 2002 the Krasnoyarsk Regional Court, at final instance, found the individuals guilty of the unlawful removal of a car without intent to steal it, acquitted them of a charge of theft and sentenced them to