SECOND SECTION
 
 
 
 
 
 
 
 
CASES OF MILIĆ AND NIKEZIĆ v. MONTENEGRO
 
(Applications nos. 54999/10 and 10609/11)
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
 
28 April 2015
 
 
FINAL
 
28/07/2015
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the cases of Milić and Nikezić v. Montenegro,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Işıl Karakaş, President,
 András Sajó,
 Nebojša Vučinić,
 Helen Keller,
 Egidijus Kūris,
 Robert Spano,
 Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 31 March 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 54999/10 and 10609/11) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Montenegrin nationals, Mr Igor Milić (“the first applicant”) and Mr Dalibor Nikezić (“the second applicant”), on 7 September 2010 and 4 February 2011 respectively. 2. The applicants were represented by Ms A. Jasavić, a lawyer practising in Podgorica. The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin. 3. The applicants alleged, in particular, that they had been tortured and ill-treated by prison guards on 27 October 2009, and complained that there had been no effective official investigation in this regard. 4. On 6 July 2011 the applications were communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1974 and 1981 respectively and live in Podgorica. 6. At the relevant time they were in detention (u pritvoru) at the Institution for the Execution of Criminal Sanctions (Zavod za izvršenje krivičnih sankcija, hereinafter “IECS”), where they shared a cell with five other detainees. A. The events of 27 October 2009 and subsequent events
7. On 27 October 2009 the first applicant was to be transferred to a disciplinary unit (disciplinsko odjeljenje) and the cell in which he was detained was to be searched. The submissions of the applicants and the Government as to what exactly happened on that occasion differ. 8. The first applicant submitted that after having entered his cell, several guards had grabbed him and thrown him on to the concrete floor of the corridor outside the cell. They had handcuffed him, beaten him using batons and their fists, and sworn at him. In addition, two rows of guards positioned along the corridor had beaten him as he was being taken away. 9. The second applicant submitted that he had protested against this abuse. In response, four guards had started to kick him and had beaten him with their fists and batons. After that he had been taken into the corridor outside the cell, where eight other guards had continued to beat him. The beating had continued after he had returned to the cell. 10. The Government, for their part, submitted that the applicants had resisted the actions of the prison guards and had tried to prevent them from performing their duties, which had triggered the guards’ intervention. In particular, when they had entered the cell the second applicant had attacked one of the guards without any reason and had injured him. 11. The first applicant had refused to be examined by a prison doctor as he doubted his impartiality. On the same day, however, he had talked to the doctor and, in answer to the doctor’s question whether he was feeling well and whether he had any injuries, he had apparently said “No, doctor, I am healthy and both physically and psychologically stable, and I do not consent to an examination; there is no need for it as I have not been ill-treated either physically or psychologically by the security forces”. 12. The second applicant had been examined by the prison doctor after the Deputy Ombudsman had made a request to that effect. It would appear that the doctor made two reports in this regard. The Ombudsman, who obtained the reports from the IECS, described them as barely legible and apparently referring to the same subject matter in two different ways. 13. On 30 October 2009 the first applicant’s representative in the domestic criminal proceedings reported the incident to the prison governor and requested that the appropriate responsible bodies be informed, that his client be provided with medical assistance, and that no further punitive measures be taken against him. 14. On an unspecified date before 4 November 2009 the State prosecutor (Osnovno državno tužilaštvo) asked the Court of First Instance (Osnovni sud) in Danilovgrad to establish the elements of criminal offences of torture and ill-treatment (predlog radi utvrđivanja elemenata bića krivičnog djela mučenje i zlostavljanje). Acting upon this an investigating judge (istražni sudija) from the Court of First Instance requested, inter alia, the medical examination of both applicants by an external forensic doctor, and ordered evidence to be heard from a number of individuals, including the prison guards, and the second applicant. 15. On 4 November 2009 an external forensic doctor examined the second applicant. He confirmed in his report that the second applicant had light body injuries, namely a 10-day old haematoma (krvni podliv) measuring 8 x 15 cm on the back of his left thigh and a haematoma on the lower lid of each eye. The doctor added that there was an undated medical report in the second applicant’s file confirming the presence of bruises around his eyes. He emphasised that the medical documentation provided by the IECS was “largely illegible”. The first applicant refused an examination by the external forensic doctor, as the examination had apparently been ordered when his bruises were already fading. 16. On 5 November 2009, the first applicant’s mother – during a visit – observed bruises on his face and haematomas on visible parts of his body. She reported this immediately to the prison administration (Upravi zavoda). On 9 November 2009 she lodged a criminal complaint (krivična prijava) with the competent State prosecutor against persons unknown, stating that the first applicant had two bruises, one on his left temple – which was already fading – and another on one of his legs, and that he had also complained that he was having difficulty sitting. 17. On an unspecified date the second applicant’s mother – who had been informed by one of the detainees about what had happened – reported the incident to the Ombudsman and visited her son. She observed that his eyes were closed and his face and visible parts of his body were covered in bruises. She reported this to the prison administration and asked that it be investigated. On 6 November 2009 she lodged a criminal complaint with the police (Upravi policije) against persons unknown. 18. On 5 November and 10 November 2009 the State prosecutor asked the Court of First Instance in Danilovgrad to investigate the complaints lodged on behalf of the second and first applicants respectively (predlog za preduzimanje istražnih radnji). Acting upon this the investigating judge requested, inter alia, a video-recording from the prison, the identification of all the guards who had been involved in the cell search, and that the evidence be heard from a number of individuals, including the prison guards, other detainees in the cell, the first applicant, and the first applicant’s representative in the domestic criminal proceedings. 19. The requested questioning (see paragraphs 14 in fine and 18 in fine above) took place between 4 November and 9 December 2009. Two of the detainees stated that they had seen the first applicant being beaten. Some of the guards stated that the first applicant had resisted being handcuffed by “attempting to get out of [their] hands, cursing and swearing” and, when on the floor, by kicking out (“gicao se i mlatio nogama i rukama”). One of the guards admitted “hitting [the first applicant] once with a baton, as he continued to resist and kick”. Another guard, who had seen the first applicant several days after the incident, had observed a cut below his left eye as well as a visible injury to one of his legs. 20. When visiting his client several days after the incident, the first applicant’s representative in the domestic criminal proceedings had observed a bruise under one of his eyes, and a bruise on the calf of his left leg with a diameter of about 20 cm. He described him as frightened and “mentally broken”. 21. One of the guards stated that the second applicant had grabbed the collar of one of his colleagues from behind, following which the guard in question had fallen over a bench. The guard had pushed him away and the second applicant had hit the wall and sunk to the floor (pao je na zid i spustio se dolje na sjedalo). The guard stated that his colleague had not hit the second applicant. Three other guards confirmed this. The prison doctor stated that he had noticed a haematoma under the second applicant’s eye. Three detainees confirmed that the second applicant had been beaten by several guards both in the cell and in the corridor. The applicants, for their part, repeated their allegations. 22. On 12 February 2010 the State prosecutor rejected (odbacio) the criminal complaints against two guards, I.M. and R.T., on the ground that even though they had used force by hitting the first applicant three times and the second applicant once with a baton, they had done so in order to overcome the applicants’ resistance and thus acted within their powers (u granicama službenog ovlašćenja). While the first applicant had not been examined by a doctor, the medical documentation of the second applicant confirmed that he had sustained light injuries. That being so, the prosecutor concluded that the force used had not infringed human dignity and that there were no elements of any criminal offence entailing prosecution ex proprio motu. The prosecutor’s decision also identified other guards who had participated in the cell search. At the same time, the applicants were informed that they could pursue a subsidiary prosecution by lodging an indictment (optužni predlog) with the Court of First Instance. 23. On 23 February 2010 the lawyer retained by the applicants in respect of the complaints of alleged ill-treatment lodged an indictment for torture and ill-treatment which had resulted in severe bodily injuries (teške tjelesne povrede) against 16 prison guards named in the previous decision, including I.M. and R.T. 24. On 16 March 2010 the lawyer was informed by the first applicant that the video-recording obtained from the IECS by the Court of First Instance did not show the entire incident, namely it omitted his being beaten by two rows of guards in the corridor. He claimed, however, that another camera in the corridor must have recorded the beating and that the recording should be obtained from the prison authorities. 25. On 30 March 2010 the lawyer asked the court to obtain a recording from another camera, but apparently without success. 26. On 22 April 2010 the Court of First Instance decided that the applicants’ indictment was to be treated as a criminal complaint and, as such, was to be lodged with the State prosecutor. 27. On 10 May 2010 the applicants appealed against the above decision. At the same time they also lodged a criminal complaint with the State prosecutor. 28. On 13 September 2010 the High Court rejected the applicants’ appeal on the ground that the State prosecutor had delivered a decision only in respect of I.M. and R.T. and not the other guards. 29. On 19 October 2010 the State prosecutor rejected the applicants’ criminal complaint on the ground that there were no elements of any criminal offence entailing prosecution ex proprio motu. At the same time the applicants were notified that they could pursue a subsidiary criminal prosecution by lodging a request for an investigation (zahtjev za sprovođenje istrage) with the Court of First Instance. 30. On 12 November 2010 the applicants lodged a request for an investigation with the Court of First Instance. 31. On 10 February 2011 the Constitutional Court rejected (odbacuje se) a constitutional appeal by the applicants against the above decisions of the Court of First Instance and the High Court on procedural grounds. In particular, it considered that the applicants’ complaints were in substance about the criminal prosecution of other individuals and that – pursuant to the Court’s case-law – such complaints were incompatible ratione materiae with the Convention. It was also concluded that the decision of the Court of First Instance did not represent an “individual decision” in respect of which the Constitutional Court would be competent, but rather a procedural decision establishing whether the conditions were met for conducting an investigation in response to a direct indictment lodged by the applicants. In the impugned proceedings the courts had not decided on the merits of the request itself, but rather had ruled that the request should be treated as a criminal complaint. 32. On 18 March 2011 the Court of First Instance dismissed the applicants’ request for an investigation on the grounds of lack of reasonable suspicion (osnovana sumnja) that the guards had tortured and ill-treated the applicants and that the force they had used had been necessary to overcome the applicants’ resistance. On 13 June 2011 the High Court upheld this decision. B. Ombudsman’s involvement
33. On 30 October and 12 November 2009 the Deputy Ombudsman visited the applicants. She also spoke with other detainees from the same cell, who confirmed the first applicant’s allegations. She noted that the second applicant, who had “visible injuries on his head, especially around the eyes” as well as on his legs, had asked that he be allowed to lodge a criminal complaint and to be examined by the prison doctor. 34. In its response to an inquiry from the Ombudsman, the IECS stated that the second applicant had unjustifiably resisted and physically attacked guards who, in response, had used force and a baton to the extent necessary to overcome his resistance. The IECS also provided the doctor’s reports in respect of the second applicant, which were described by the Ombudsman as barely legible and from which it could be concluded that they dealt with the same subject matter, but had a different content. 35. In an opinion of 29 March 2010, the Ombudsman found that the applicants’ rights had been violated on 27 October 2009. The opinion stated that they had offered no resistance and that there had been no justification for the use of force (sredstva prinude), especially not to the extent and in the manner alleged. At the same time the Ombudsman recommended that the IECS institute disciplinary proceedings against the guards responsible and report to the Ombudsman within 20 days on the measures taken. 36. On 1 April 2010 disciplinary proceedings were instituted against three prison guards, I.M., I.B. and R.T. On 31 May 2010 they were found responsible and fined 20% of their salaries in October 2009 for abusing their position or exceeding their authority (zloupotreba položaja ili prekoračenje ovlašćenja) as they had used excessive force disproportionate to the resistance offered by the applicants on 27 October 2009. In particular, I.M. had hit both applicants once with a rubber baton, I.B. had kicked the first applicant, and R.T. had hit the second applicant on the lower part of the body with the baton. The applicants’ families and the Ombudsman were informed about the outcome of the disciplinary proceedings and the applicants’ lawyer attended the hearing before the disciplinary commission. 37. Four other staff members who had participated in the cell search on the stated date, in relation to whom it was not proved that force had been used against the applicants, had apparently been transferred to other posts in other IECS units. 38. On 5 May 2010, during the parliamentary hearing of the prison governor (see paragraph 47 below), the Ombudsman confirmed that the IECS administration had duly acted upon his recommendations within the set time-limit. C. Civil proceedings
39. On 15 March 2011 the applicants lodged a compensation claim against the IECS relying, inter alia, on Article 3 of the Convention, and seeking 15,000 euros (EUR) each for non-pecuniary damage caused by torture on 27 October 2009. 40. On 7 November 2013, after a remittal, the Court of First Instance in Podgorica ruled partly in favour of the applicants by awarding EUR 1,050 each for non-pecuniary damage on account of violations of their rights and EUR 397 for the costs of the proceedings. The court based its decision on section 166 of the Obligations Act (see paragraph 62 below). In its reasoning the court took into account the statements of the applicants and the prison guards, medical findings, the video-recording, the fact that the three prison guards had been found responsible in disciplinary proceedings for the disproportionate use of force and had been fined, and the fact that the applicants had offered resistance, thus contributing to the non-pecuniary damage. The court found that the guards had exceeded their powers but also explicitly held that such actions could not be qualified as torture or inhuman or degrading treatment. 41. On 29 May 2014 the High Court upheld this judgment. In so doing it did not disagree with the conclusion of the first-instance court as to the qualification of the impugned incident. 42. On 23 October 2014 the Supreme Court partly overturned the previous decisions by awarding the applicants 1,500 EUR each for non-pecuniary damage, together with the statutory interest. In so doing the Supreme Court held, inter alia, that the use of force by prison guards could not be justified by the applicants’ resistance and held that such action was in breach of fundamental values of every democratic society and degraded human dignity, but that it did not constitute torture or inhuman treatment. The applicants received this decision on 25 November 2014. D. Other relevant information
43. The applicants also maintain that they were threatened or abused between 23 December 2009 and 15 January 2010, in which regard their mothers lodged criminal complaints on 18 January 2010. On 22 June 2011 the State prosecutor (Osnovni državni tužilac) rejected the criminal complaint as regards the threat against the first applicant on the ground that no such incident had taken place. The criminal complaint in respect of the abuse alleged by the second applicant would appear to be still pending. 44. Between 27 April and 5 May 2010 the first applicant went on hunger strike, the reason being that disciplinary proceedings, with regard to the events of 27 October 2009, had been instituted against only three guards, who – according to him – were those least responsible for what had happened to him. 45. On an unspecified date in early May 2010 the first applicant had a meeting with the prison governor. On that occasion he apparently suggested to show the prison governor the camera which had recorded the entire incident of 27 October 2009. The governor allegedly suggested that the first applicant draw a sketch instead. 46. On at least two occasions the applicants complained to their lawyer that their ill-treatment had been continuous, and on at least one occasion they threatened to commit suicide if the pressure on them did not ease. The lawyer informed the High Court, the Minister of Justice, and the prison governor, requesting that disciplinary proceedings be instituted against those responsible. 47. On 5 May 2010 and 14 June 2011 the prison governor was questioned by the parliamentary Human Rights Committee. 48. On 25 June 2011 the parliamentary Human Rights Committee submitted its report to Parliament, one of its conclusions being that “there had been no torture or systemic violations of human rights in the IECS and that all the reported cases of the use of force and exceeding of powers had been sanctioned”. 49. The applicants also submitted that they had been deprived of an effective domestic remedy because one of the deputy State prosecutors at the time was the prison governor’s daughter and the Deputy Supreme State Prosecutor was his wife. 50. The first applicant is currently serving four prison sentences. He had been convicted eight times prior to this for various criminal offences. During his detention he had been subject to disciplinary sanctions four times, and twice more while serving his prison sentence. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Criminal Code 2003 (Krivični zakonik, published in the Official Gazette of the Republic of Montenegro - OG RM - nos. 70/03, 13/04 and 47/06, as well as in the Official Gazette of Montenegro - OGM - nos. 40/08 and 25/10)
51. Article 166a provides that anyone who ill-treats another person or treats a person in a humiliating and degrading manner will be punished with imprisonment of up to one year. If this offence is committed by an official acting in an official capacity, the official will be punished with imprisonment of between three months and three years. 52. Article 167 provides that anyone who causes severe pain or suffering to another for purposes such as intimidating or unlawfully punishing someone or exerting pressure on him will be punished with imprisonment of between six months and five years. If this offence is committed by an official acting in an official capacity, or with the explicit or tacit consent of an official, or if an official incites another person to commit such an offence, the official will be punished with imprisonment of between one and eight years. 53. Article 183 provides for the official prosecution of the above offences. B. The Code of Criminal Procedure 2003 (Zakonik o krivičnom postupku; published in OG RM nos. 71/03, 07/04 and 47/06)
54. Articles 19, 20 and 44 provide, inter alia, that formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex proprio motu, such as the offences at issue, the authorised prosecutor is the State prosecutor. His authority to decide whether or not to press charges is bound by the principle of legality, which requires that he must act whenever there is a reasonable suspicion that a crime liable to official prosecution has been committed. 55. Articles 19 and 59 provide, inter alia, that should the state prosecutor decide that there is no basis on which to prosecute, he or she must inform the victim of this decision, and the victim then has the right to take over the prosecution of the case on his or her own behalf – in the capacity of a “subsidiary prosecutor” – within eight days of the date of notification of that decision. When notifying the victim of the decision not to prosecute, the State prosecutor must inform the victim what actions he or she may undertake in the capacity of subsidiary prosecutor. 56. Article 229 provides that if a criminal complaint has been submitted to a court, police department or State prosecutor without the requisite jurisdiction (nenadležnom državnom tužiocu), the complaint must be forwarded to the State prosecutor who has such jurisdiction. C. The Criminal Sanctions Enforcement Act (Zakon o izvršenju krivičnih sankcija; published in OG RM nos. 25/94, 29/94, 69/03 and 65/04)
57. Section 14b forbids all acts whereby a convicted person is subjected to torture or ill-treatment. This concerns primarily acts that are disproportionate to the maintenance of order and discipline within the institution or unit. A prisoner subjected to such actions is entitled to compensation. 58. Section 61 provides that force can be used against prisoners only if necessary to prevent resistance to an official executing a lawful order; force includes both physical force and the use of batons. 59. Section 181 provides that section 61 also applies in respect of detainees. D. The Obligations Act (Zakon o obligacionim odnosima; published in the OGM nos. 47/08 and 04/11)
60. Sections 148 and 149 set out different grounds for claiming civil compensation, for both pecuniary and non-pecuniary damage. 61. Section 151 provides, inter alia, that everybody has the right to ask the court or another competent body to order the cessation of any action which violates human integrity, personal and family life and other personal rights. 62. Section 166 § 1 provides that any legal entity – which includes the State – is liable for any damage caused by one of “its bodies”. 63. Sections 206 and 207 provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of the violation of his or her personal rights is entitled, depending on the duration and intensity thereof, to sue for damages in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction. E. Relevant domestic case-law
64. The Government submitted that in 2010 three constitutional appeals had been adopted by the Constitutional Court, 184 were rejected on the merits (odbio) and 144 were rejected on procedural grounds (odbacio). During the same period, proceedings concerning one constitutional appeal were discontinued (obustavio). 65. Between 1 January 2011 and 19 January 2012 a further 247 constitutional appeals were rejected on the merits, 234 were rejected on procedural grounds, three proceedings were discontinued and nineteen constitutional appeals were accepted. 66. No information was provided as to whether any of these decisions was delivered in the context of a subsidiary prosecution by the injured parties. THE LAW
I. JOINDER OF THE APPLICATIONS
67. The Court notes that the applications under examination concern the same issue. It is therefore appropriate to join them, in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
68. The applicants complained under Article 3 of the Convention that they had been tortured and ill-treated by prison guards on 27 October 2009 and about the lack of an effective investigation in that regard. 69. The relevant Article reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The substantive aspect
1. Admissibility
70. The Government submitted that the applicants had failed to exhaust all effective domestic remedies. In particular, the civil proceedings they had initiated and through which they could obtain compensation for non-pecuniary damage for a possible violation of their rights (eventualne povrede prava ličnosti) were still pending. In this respect they referred to the relevant sections of the Obligations Act (see paragraphs 60-63 above). 71. The applicants maintained that the civil claim was not an effective domestic remedy. On 1 December 2014 they notified the Court that the civil proceedings had been concluded on 23 October 2014, and submitted the relevant decision of the Supreme Court (see paragraph 42 above). 72. The Court points out that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are exempted from answering for their acts before an international body until they have had an opportunity to put matters right through their own legal system. The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Selmouni v. France [GC], no. 25803/94, §§ 74-75, ECHR 1999‑V; and Vučković and Others v. Serbia [GC], no. 17153/11, §§ 69-77, 25 March 2014). 73. The Court also recalls that an applicant’s status as a “victim” depends on whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate and sufficient redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004, and Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006‑V). 74. Turning to the present case, the Court notes that the applicants did lodge a compensation claim, and that the proceedings were concluded in October 2014. While the requirement for the applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court (Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V (extracts)), the Court also accepts that the last stage of such remedies may be also reached after the lodging of the application but before the Court determines the issue of admissibility (Karoussiotis v. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts)). Even assuming that a compensation claim in civil proceedings may be regarded as an effective domestic remedy for complaints under the substantive aspect of Article 3 of the Convention, the Court notes that the applicants in the present case have exhausted that remedy proposed by the Government, whose objection in that regard must therefore be dismissed. 75. However, this calls for an examination of whether the applicants may still claim to be victims of the alleged violation. The Court notes in this respect that the domestic courts ruled partly in favour of the applicants, awarding them damages. It further observes that while the Supreme Court referred to the impugned actions of the guards as degrading human dignity, it did not acknowledge a violation of the applicants’ rights as clearly as it would have been necessary in this type of cases, in particular in view of the explicit position of the lower courts in this respect (see paragraphs 40-42 above). In any event, and quite apart from the issue as to whether the domestic courts’ findings were sufficient in terms of acknowledgement of a violation, the Court is of the opinion that the compensation of EUR 1,500 awarded to each applicant in respect of non-pecuniary damage, in the present case, cannot be considered an appropriate redress for the violation complained of (see, mutatis mutandis, Cocchiarella v. Italy [GC], cited above, § 107). 76. In view of the above, the Court considers that the applicants’ status as “victims” within the meaning of Article 34 of the Convention is unaffected. 77. The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits
78. The applicants reaffirmed their complaints. 79. The Government did not contest that the prison guards had used excessive force, which was not proportionate to the measures that had to be implemented. They maintained, however, that the use of force was justified as its aim was to overcome the applicants’ resistance and therefore it could not constitute torture or inhuman or degrading treatment. They further submitted that the applicants had never been denied medical assistance, the first applicant himself having refused medical help. They concluded that there was no violation in this regard. 80. The Court has already held that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being. While it accepts that the use of force may be necessary on occasion to ensure prison security, to maintain order or prevent crime in such facilities, such force may be used only if it is indispensable and it must not be excessive. Any recourse to physical force which has not been made strictly necessary by the detainee’s own conduct diminishes human dignity and is in principle an infringement of Article 3 of the Convention (see Kopylov v. Russia, no. 3933/04, § 157, 29 July 2010, and the authorities cited therein). 81. The Court has further held that 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 respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Vladimir Romanov v. Russia, no. 41461/02, § 58, 24 July 2008). 82. Turning to the present case, the Court notes that the domestic bodies established that the prison guards had hit the applicants with a rubber baton (see paragraphs 22, 35 and 36 above). While the first applicant had refused to be examined by a doctor, the external forensic doctor confirmed that the second applicant had sustained injuries (see paragraph 15 above). Furthermore, the domestic courts accepted that the use of force had been excessive, as acknowledged by the Government as well (see paragraphs 40-42 and 79 above). While the Government do not consider that the impugned actions of the prison guards constituted ill-treatment, the Court does not take the same view.

Article of the Convention at issue: Article 3
Outcome: violation