ITEMID: 001-68548
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BUBBINS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 2 as regards the State's alleged failure to protect the right to life;No violation of Art. 2 as regards the effectiveness of the investigation;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The application is brought on behalf of Michael Fitzgerald, a deceased British national, by his sister, Theresa Bubbins, who lives in Bedford, England.
9. The facts of the case, as submitted by the parties, may be summarised as follows.
10. On 26 February 1998, the applicant's brother, Michael Fitzgerald, was shot dead by an armed police officer at his flat in Clarendon Street, Bedford, following a siege.
11. At about 6.25 p.m. on 26 February 1998 Melanie Joy, Michael Fitzgerald's girlfriend, drove to Michael Fitzgerald's flat. As she entered the rear car park she saw a pair of legs disappearing through the ground floor kitchen window of the premises. Melanie Joy did not recognise the person entering the flat and assumed that the person, who was male, was an unauthorised intruder.
12. Melanie Joy was concerned for the safety of Michael Fitzgerald and, although she did not know whether or not he was in the flat, she shouted his name through the letterbox on the front door of the premises. She obtained no response.
13. At about 6.28 p.m. Melanie Joy used her mobile telephone to report to the police a burglary in progress. The police gave this report an 'immediate response' within the criteria fixed by the Bedfordshire Police.
14. The first police officers to arrive at the scene were Acting Sergeant Phillips and Acting Sergeant Morris. They arrived at 6.33 p.m.
15. Acting Sergeant Phillips went to the kitchen window at the rear of the premises. The window was open. Acting Sergeant Phillips was able to move the venetian blinds and identified himself as a police officer. He was confronted by a man from within the shadows of the room. Acting Sergeant Phillips thought the man to be a few inches shorter than his own height of 6' 1”. The man, who was in fact Michael Fitzgerald, adopted a double-handed extended arm stance, and pointed what appeared to be a handgun at the officer.
16. Acting Sergeant Phillips, fearful for his safety, shouted to his colleague, Acting Sergeant Morris: “He's just pointed a gun at me, get back.”
17. The two police officers and Melanie Joy then withdrew to what they believed to be a safe distance from the premises and Acting Sergeant Phillips summoned assistance, including Armed Response Vehicles (“ARV”). This request was timed at 6.34 p.m.
18. During the course of the incident which followed, radio traffic was monitored within the Bedfordshire Police Force Incident Room (“FIR”).
19. The FIR log indicates that at 6.38 p.m., Acting Sergeant Morris transmitted the following message:
“Michael Fitzgerald according to his ex that lives at this location knows him to have a replica firearm. She's not aware of him having a firearm itself but he does have a drink problem.”
20. Within a short time, other police officers arrived at the premises. Police Constables Evans and Newton, both unarmed, positioned themselves behind the rear wall of the rear garden. They both reported seeing a man in the kitchen pointing a gun at them.
21. At 6.40 p.m. Inspector Linda Kelly arrived and took front line charge of the situation.
22. Radio communication between Police Constable Evans and Acting Sergeant Phillips on 'talk-through' mode, so that the FIR would hear, conveyed the wrong impression that the premises in question were confined to the ground floor. There was in fact an upper floor. This erroneous impression prevailed until it was corrected as a result of information provided by Melanie Joy at 7.09 p.m.
23. In 1998, Bedfordshire Police Force had two nominated ARVs on duty at all times. In order to provide maximum cover, they were deployed to the north and south of the county. Their primary role was to contain spontaneous firearm situations until the arrival of tactical firearms personnel.
24. At about 6.42 p.m. the North ARV, containing Officer C and Officer B, arrived at the scene. They were briefed on the incident by Inspector Kelly and Acting Sergeant Phillips. By the time the North ARV arrived, an unarmed outer containment of the premises had been put in place. Officer B asked Inspector Kelly to close the road to vehicular and pedestrian traffic. The South ARV was still on its way to the scene.
25. As the two ARV officers were discussing the incident at the front of the premises, the front door opened and the occupant appeared in the doorway.
26. In accordance with his training, Officer B shouted: “Armed Police. Drop the gun and go back into the house.”
27. The occupant raised his hand which appeared to contain a handgun and, almost immediately, went back into the flat. Seconds later he again appeared at the doorway and raised the gun. Officer B issued the same instruction. The occupant appeared to take no notice of the command to drop the handgun and returned to the inside of the flat.
28. At about 6.51 p.m. the armed officers decided that the only way to contain the building, and also to provide armed support to their unarmed colleagues, was to deploy one of them at the front of the premises and the other at the rear. Officer B positioned himself behind the high brick wall at the rear car park and erected a makeshift platform on which to stand and observe the rear of the premises. This platform was later replaced by a police car. Officer B was about 25 yards from the premises.
29. Officer C positioned himself at the front of the building. Both officers were armed with Steyn AUG .223 calibre carbines. Officer B saw the occupant enter the kitchen, raise his gun and point it towards him. Officer B shouted: “You're surrounded by armed police, leave the gun inside and come out slowly.” The occupant left the kitchen and Officer C, at the front of the premises, issued a similar command. These commands, which were repeated at intervals throughout the incident, had no apparent effect.
30. At about 7.01 p.m. the South ARV arrived at the scene. It contained Officers D and A. Officer D joined Officer B at the rear of the premises. Officer A joined Officer C at the front of the premises.
31. Following the arrival of Officer D, Officer B reviewed his position and decided that he was not ideally placed to deal with the occupant should he decide to leave the premises. Officer B decided that it would be better to take up a position behind two cars parked in the courtyard car park on the other side (the premises/courtyard side) of the rear wall. According to the applicant, Officers B and D did not consult the senior officers present on their decision to forsake their protected position behind the wall and move to the courtyard side.
32. Both Officers B and D moved to a position behind the two vehicles, situated within a few feet of the rear wall. This was at about 7.05 p.m.
33. They were joined by Police Constable Cattanach, a police dog handler, to add the further tactical option of using a police dog should the occupant attempt to escape. Police Constable Cattanach arrived at about 7.17 p.m.
34. The police traffic department provided flood lighting on an extended mast powered by a generator. This lighting considerably enhanced the vision of the police officers in the rear car park.
35. At intervals, the occupant pointed his gun out of the rear kitchen window at the officers at the rear of the premises. Officers B and D repeatedly issued instructions for him to put down his gun and come out from the premises.
36. With the siege of the premises continuing, attempts were made to trace Michael Fitzgerald. Acting on information provided by Melanie Joy, two detective officers, Detective Constable Ellson and Detective Constable Route, visited local public houses.
37. A photograph of Michael Fitzgerald was obtained from the file relating to a previous court appearance following his arrest in September 1997 for a drink-driving offence. This photograph was provided to the officers who visited the local public houses.
38. Investigations into Michael Fitzgerald's whereabouts led to the police officers at the scene being told, erroneously, that Michael Fitzgerald was 5'8” tall. He was in fact 5'11”. This information was derived from the details in the case file concerning his arrest in September 1997.
39. With the safety of the public in mind, officers maintained a cordon around the premises and arranged for the evacuation of children, whose parents were arriving to meet them, from a nearby school swimming pool. Occupants of other houses were instructed to remain within their homes.
40. Shortly after the arrival of Police Constables Evans and Newton, Melanie Joy was approached by Kate Bellamy, a neighbour of Michael Fitzgerald, who was in the company of another neighbour, Amanda Parkin. Melanie Joy went with the two women to Amanda Parkin's flat a safe distance away. The three women, for reasons of safety, were later taken by police transport to Greyfriars Police Station in Bedford. They arrived there at about 8 p.m.
41. At 7.02 p.m. Inspector Kelly requested a negotiator to attend the premises.
42. At about 7.09 p.m. the officers at the rear of the premises queried whether the flat premises in fact extended to the first floor. Acting Police Sergeant Morris obtained information from Melanie Joy that the flat did extend over two floors: the ground floor and the first floor.
43. At about 7.30 p.m., Officer A, at the front of the premises, was in communication with the FIR operator and said:
“Can you put on the incident scene log that he's still coming to the front door and he is brandishing a handgun. He is not opening the door but he is making sure that it's pointed towards us through the glass ... ”
44. Within minutes a similar report was made by Acting Police Sergeant Phillips, who was positioned at the rear of the premises:
“... he's peering round the door we think heads into the kitchen and he's just pointed the gun out towards the officers now – over.”
45. At about 7.45 p.m. Superintendent Battle, the Deputy Divisional Commander at Greyfriars Police Station, Bedford, arrived on the scene. He was a member of the cadre of police officers in Bedfordshire trained to deal with firearms incidents. He was briefed by Inspector Kelly and assumed the role of Incident Commander. According to the applicant, Inspector Kelly informed Superintendent Battle that there was a suggestion that the man in the premises might be Michael Fitzgerald who owned imitation firearms, although this could not be confirmed.
46. At about 8.01 p.m. Police Constable Wright arrived at the scene. He was the Tactical Firearms Adviser (a functionary required on all police firearms operations). Both Superintendent Battle and Police Constable Wright reviewed the plan adopted by the ARV teams, and their deployments, and were satisfied with the decisions taken.
47. Following his arrival Superintendent Battle telephoned the flat on his mobile telephone to establish that the telephone inside was working and that the number obtained did indeed relate to the premises: he thought such information would be of benefit to negotiators when they arrived at the scene. This took place at about 8.15 p.m.
48. At first Superintendent Battle obtained the answer machine. The second time the occupant answered. Superintendent Battle (who, according to the Government, had considerable knowledge of the principles of negotiations) said: “I'm Steve. I'm a police officer.” He told the occupant that the house was surrounded by armed officers and requested that he should not go to the window or doors with a weapon, but that he should put the weapon down.
49. During the course of this telephone call Superintendent Battle asked the man his name and received the answer “Mick”. Superintendent Battle formed the impression that the man was drunk. Despite efforts to engage him in further conversation, the man put the telephone receiver down and the call was concluded.
50. The Government informed the Court in a letter of 9 September 2002 that when the occupant identified himself to Superintendent Battle as “Mick”, this information was relayed over the police radio and the officers at the scene used this name in their various challenges to the deceased. The applicant's legal representative, on receipt of this information, noted in the applicant's observations that this “fresh information” had not been disclosed to them at the time of the inquest.
51. During the incident (but unknown to the police) two other telephone calls were made to the premises. The first was made by John Fitzgerald, Michael Fitzgerald's brother. The second, at about 7.35 p.m., was made by Sean Murray, a friend of Michael Fitzgerald.
52. Neither John Fitzgerald nor Sean Murray reported their telephone conversations with Michael Fitzgerald to the police, even though it was clear from the conversations that Michael Fitzgerald realised that he was surrounded by police. According to Sean Murray, Michael Fitzgerald sounded tired and said: “I think they are going to storm the house.” The telephone then went dead.
53. Inspector Kelly was of the opinion that the incident was likely to become protracted and shortly after 8 p.m. she gave instructions over the radio for night duty personnel to be called out and requested a log to be brought to the scene.
54. At about 8.15 p.m. a message was received by FIR from Detective Constable Ellson, who had obtained information to the effect that at about 6.40 p.m. Michael Fitzgerald had been in the Blarney Stone public house. It was reported that he had been very drunk, wearing blue jeans, a grey shirt and no coat. This information was passed on to Inspector Kelly by the Information Room Staff, but in doing so they transmitted the time of the sighting as 6.30 p.m. This information reinforced the belief that the person within the premises was not Michael Fitzgerald since Melanie Joy had called the police at about 6.28 p.m.
55. At about 8.19 p.m. the occupant of the flat moved from the ground floor to the rear first floor bedroom. He opened the casement window and pointed his gun from just over the windowsill in the direction of Officer D, who was at the rear of the premises behind a vehicle. Both Officers D and B became very concerned by this development. The occupant pushed his handgun through the open window and then withdrew it after shouts from the officers.
56. Within seconds of this first incident the occupant reappeared at the window, but this time stood up in full view of the officers. He was naked from the waist up.
57. The occupant adopted a two-handed stance through the open window with his arms outstretched. He was holding what appeared to be a gun. He aimed the gun at the officers at the rear of the premises. Police Constable Cattanach thought that he was going to be shot and dived to the ground. In his statement made after the event, he stated:
“...the man held his arms and pistol in front of him and as he deliberately brought the gun up to his eyes (...) I looked and could see that I was looking down the bore of the barrel his eyes were on the sights and he appeared to be pointing the weapon directly at me. I instinctively ducked as I was convinced the man was aiming directly at me and I was convinced I was going to be shot.”
58. Officer B observed through his gun sight that the barrel of the handgun appeared to be pointing directly at him. He was afraid for his own safety and shouted: “Armed police. Drop the gun or you will be shot.”
59. The occupant remained in his threatening stance. Officer B then squeezed the trigger of his carbine and fired one shot which hit the occupant in the chest.
60. Officer B was interviewed on 3 March 1998 at Bedfordshire Police Headquarters. He said:
“And he aims the gun, looking through the scope, I see the barrel of the gun and he's, the best way I can describe it, just like a police target, the same we are taught to shoot, he's got a solid base, he's got both hands on the gun, it's in front of his eyes, I can see the barrel of the gun, through my scope, and I can see the barrel lined up with him and it was aimed straight down my gun sight. Erm, and I say to be honest it frightened me to death (...) I shouted 'ARMED POLICE DROP THE GUN OR YOU WILL BE SHOT' I shouted that very loudly and clearly at him. Erm he just continued staying in the same position, rock steady, erm, and then I took the decision to squeeze the trigger and shoot and I shot him. (...)
I thought if that gun goes off I'm gonna be seriously injured or killed 'cos you could see the size of the barrel, it was a large calibre weapon, hand gun, that was all I could see. Erm and I thought was gonna be shot, if I didn't do something.”
61. The applicant draws attention to the fact that Officer B's statement was never disclosed and was never subjected to forensic scrutiny or comment in any public forum.
62. One civilian witness, David Hanlon, a local resident, heard the police command: “Drop your gun or we will shoot”, followed by a single shot. The shot was fired at about 8.21 p.m.
63. Officer D, who was with Officer B, was on the verge of shooting at the time the shot was fired. In a statement made after the event he stated:
“I then saw that the gun was still in his hand and he was holding it with both hands with arms straight out, this conveyed to me that he was going to take aim to fire the weapon at [Officer B]. I took the safety off my weapon and took sight on him and put pressure on the trigger and was going to fire when I heard a bang.”
64. The officers, together with paramedics already at the scene, entered the building at 8.29 p.m. They found Michael Fitzgerald lying face down on the bed in the rear bedroom. They rendered first aid, but at 8.47 p.m. Michael Fitzgerald was pronounced dead.
65. The scene was preserved as a major crime scene.
66. The armed officers went to the Police Headquarters firearms range where they separately compiled their pocket book notes and gave their firearms for forensic examination. The examination revealed that a bullet had been discharged from the weapon belonging to Officer B. No other weapons had been fired.
67. The Home Office pathologist confirmed that the cause of death was a single gun shot wound to the chest and that the pattern of injuries was consistent with having been shot in the manner described by Officer B. A sample of Michael Fitzgerald's blood revealed 352 mgs of alcohol per 100 ml of blood. This would have made an individual of moderate drinking habits either extremely drunk or comatose.
68. Michael Fitzgerald's handgun was a replica Colt .45 calibre self-loading pistol. It had the appearance of an authentic weapon and only very close examination reveals it to be a replica.
69. Following the shooting it was discovered that Michael Fitzgerald had spent the afternoon drinking. He had left his jacket with the keys to his home in a public house. He was seen walking in the direction of his home by a taxi driver, at about 5.45 p.m., who described him as very drunk.
70. On being informed of the fatal shooting of Michael Fitzgerald, the Deputy Chief Constable of Bedfordshire Police, David Stevens, voluntarily referred the matter to the Police Complaints Authority in order that it might supervise the investigation into the killing.
71. Mr Robert Davies, Assistant Chief Constable of Thames Valley Police, was appointed as the Investigating Officer. The essential purpose of the investigation was to inquire into the facts of the incident and to establish whether or not there had been a breach of the criminal law or police discipline. At the outset of the investigation the Thames Valley Police appointed a family liaison officer to assist Michael Fitzgerald's next-of-kin. During the investigation, a senior member of the investigation team visited the family on several occasions to keep them up-to-date on the progress in the investigation.
72. Officers B and Wright as well as Superintendent Battle were interviewed in the course of the investigation. The other officers who attended the scene or had a part to play in the incident made witness statements outlining their roles and responsibilities. The civilian employees of Bedfordshire Police also made witness statements, as did members of the public including the family of Michael Fitzgerald. Radio traffic within the FIR, which is tape-recorded, was transcribed, as was the control room tape. A crime analyst from Thames Valley Police was employed to scrutinise all the witness statements, the interviews taken under caution and the tape recording transcriptions.
73. The report prepared by Mr Davies was submitted to the Police Complaints Authority on 15 May 1998. A copy of the report and evidence was sent to the Deputy Chief Constable of Bedfordshire Police and to the Director of Public Prosecutions. The latter later concluded that there was no evidence to justify any criminal proceedings against any police officer.
74. On 23 June 1998 the Police Complaints Authority sent a copy of an Interim Statement on the investigation to Michael Fitzgerald's brother. This Interim Statement had been issued shortly after the submission of the report by Mr Davies. The Interim Statement recorded that Mr Davies' final report had been received on 15 May and was supported by 160 statements, 49 documents and 11 appendices including photographic evidence and plans of the scene of the incident. The Interim Statement concluded that “the investigation into the death of Mr Fitzgerald [had] been undertaken to the satisfaction of the Police Complaints Authority”. Also in June 1998, the Police Complaints Authority notified Mr Fitzgerald's brother that a review of the case would be carried out by one of its members at the conclusion of the inquest.
75. In his report, Mr Davies concluded that Officer B had not committed a criminal offence and stated:
“I have examined the circumstances of this incident in detail and made two visits to the scene. I have read all the accounts of the officers present and other relevant witness statements including the forensic analysis. I have examined the transcription of the Information Room tape recording and other relevant documents. I am satisfied that [Officer B] genuinely believed he was facing an intruder armed with a firearm and that his life was in imminent danger. He did not know that the weapon was incapable of being discharged and he gave the man the chance to withdraw in a pressurised situation.”
76. Mr Davies investigated the reason why a negotiator had not been present at the scene and stated:
“Difficulty was experienced during the early stages in obtaining a trained negotiator. The Bedfordshire Police have a cadre of six 'Tier One' negotiators trained to a national standard ... and six 'Tier Two' negotiators, who have been selected as being suitable to attend the National Negotiator's Course but who are, as yet, untrained. The Force policy is that one 'Tier One' and one 'Tier Two' negotiator will be available at all times including 'call out' times. Unfortunately on the 26th February 1998 there was a Negotiator's Conference being held at Brighton. Five of the six 'Tier One' negotiators were at the Conference. The remaining Tier One negotiator D.I. McCart was, according to the log, uncontactable. The Information Room log indicates that he was playing five-a-side football ... The frustration of the situation is all too evident when the log is scrutinised. At 1944 hours the log reads: 'No tier one negotiator available they all are at a conference according to info. from other. There is no tier one call out at all.' At 1954 hours the log reads: 'Unable to raise the negotiator other than by going through list one by one until finding someone willing to attend – call out totally useless or most recent update inaccurate. No response from any of the pager messages sent.' Timed at 1956 hours the log reads: 'Insp. Nethersole and Insp. Seamarks, both tier two negotiators, on route to GPS.' The Information Room Inspector states that an attempt was made to contact D.I. McCart both on his home number and on his pager. D.I. McCart states that he had both his mobile phone and his pager with him, that they were both switched on, and that he did not receive a call on either of them. I have been unable to resolve this issue ... The difficulty experienced in contacting a 'Tier One' negotiator is a serious example of how poor co-ordination and planning can lead to real operational difficulty. The difference in skill levels between a Tier One and Tier Two negotiator should, in normal circumstances, be significant. The early arrival of a 'Tier One' negotiator might have made a difference.”
77. Mr Davies concluded his report by stating:
“This was a tragic incident. Michael Fitzgerald had been suffering from a number of personal pressures including unemployment, rising debt and the grief of his mother's death. He turned increasingly to drink and was an alcoholic. It is very sad that on the night of the 26th February a series of unusual events came together and led to his death. First, Michael left his jacket and keys behind in a pub; second, unusually, he attempted to gain entry to his flat by the window; third, his girlfriend happened to arrive just as he was disappearing into the kitchen; fourth, his girlfriend mistook him for a burglar; fifth, neither Michael's brother, John, nor friend Sean Murray reported their telephone conversations with Michael to the police; sixth, no clear information emerged about Michael's identity prior to his death; and seventh, Michael, for whatever reason, we will never know, decided to aim a replica firearm to challenge armed police.”
78. During the investigation witness statements were taken from approximately 138 witnesses.
79. The applicant stresses that the radio logs/transcripts and transmissions referred to were never disclosed, despite requests for them during the subsequent inquest. Furthermore, Mr Davies' report and conclusions were never disclosed to the applicant or to the deceased's family or made available for public scrutiny at the inquest. In addition, she and the deceased's family were at all times unaware that 138 witnesses had been heard. The Coroner disclosed only 29 witness statements to the family, and the family was therefore unable to consider whether other potential witnesses should have been called.
80. By a letter dated 17 September 1998, the Police Complaints Authority confirmed the findings of the police investigation that there was no wrongdoing on the part of the Bedfordshire police officers involved in the incident. The Police Complaints Authority was satisfied with the thoroughness of the investigation.
81. The death was reported to Mr David Morris, the Bedfordshire and Luton Coroner, by the police.
82. The inquest was opened on 27 February 1998 and then adjourned sine die to allow the Police Complaints Authority to complete its investigation into the circumstances surrounding the death.
83. On 28 July 1998, at a preliminary hearing to which all the interested parties including the press were invited, the Coroner ruled that the four armed officers should remain anonymous and should not be identified by the media. They were to be known as A, B, C and D, of whom B had fired the fatal shot.
84. Counsel representing Michael Fitzgerald's family firmly objected to the grant of anonymity to these officers, arguing that the inquest was meant to be a forum subject to public scrutiny and that justice should be seen to be done in an open manner, particularly where citizens die at the hands of agents of the State.
85. In deciding to direct that the armed officers should be known as A, B, C and D, the Coroner accepted that there was a genuine concern on the part of each of the officers, and particularly Officer B, that he and his family could be exposed to verbal and physical abuse if his name were to be disclosed, having regard to the fact that he lived near the scene of the incident. The Coroner (according to the Government, without objection from any party) also used his knowledge of previous threats and abuse directed against Officer B and his family following another incident, not involving a shooting, where he had been acting in accordance with his police duties. The applicant points out that it was never raised as a ground at the hearing on 28 July 1998 (nor at the actual inquest) that any officer had suffered any threat, and that in any event the previous threats to Officer B were not in relation to a shooting and could not be construed as serious.
86. The Coroner made it clear that it was open to any party, including the press, to make an application to lift the anonymity order if further information or circumstances warranted it.
87. The Coroner was provided with the witness statements and exhibits gathered in the course of Mr Davies' investigation. The Coroner decided that there should be disclosure of the statements made by 29 witnesses whose evidence he considered material to establishing the relevant facts. According to the applicant, the Coroner misled the family as to the number of witnesses by informing their counsel at the preliminary hearing on 28 July 1998 that there were only approximately 80 witnesses to the incident of whom only 29 witness statements were relevant and were to be disclosed for the full inquest hearing on 24 November 1998.
By a letter dated 17 November, the family's legal representative sought disclosure of further materials. The report prepared by Mr Davies was not among the documents sought. The Coroner decided that the family should be provided with the witness statements of Officers C and D and Superintendent Battle as well as a schedule containing the times of all the important events derived from the radio logs.
88. On 24 November 1998 the inquest proper began. The Coroner made a further decision to the effect that A, B, C and D should remain anonymous. The Coroner gave his reasons for this decision in writing and included among his reasons the following:
“The predominant reasons for granting anonymity for the particular officers beyond my own local knowledge and experience are
a) Bedfordshire police is a small force with a handful only of armed response officers. The naming of officers 'A', 'C' and 'D' would be likely to identify by default officer B.
b) All four officers have expressed fear if their names are made public in this context the privacy and safety of both themselves and their families could be at risk. Some officers live near the locus in quo.
c) Whilst there may be no threat emanating from the deceased's family there are serious and violent criminals living and operating within the locality and identification of members of the armed response team would not be either in the interest of those individuals or in the public interest.”
89. The Coroner also ruled that the officers could give evidence from behind a screen. They would, however, be seen by the Coroner, the legal representatives for each of the parties and the jury.
90. The inquest continued for four days.
91. During the course of the inquest the Coroner summoned witnesses to give evidence of the events leading to Michael Fitzgerald's death. These witnesses, who included police officers B, C and D, were cross-examined by counsel representing the family. The jury visited the scene of the incident.
92. The Coroner refused to accede to the family's request to call the police negotiator at the inquest, stating that his evidence was irrelevant since he had played no part in the incident. He further declined to allow in evidence the police radio logs on communications passing between the officers on the night of 26 February 1998 as well as the computer printouts since these materials, like the police negotiator, “would not have added to the knowledge and understanding of those matters which the jury were obliged by law to address.” However, at the request of the jury and counsel for the family, Detective Sergeant Denton provided a statement setting out the times of the material events derived from the radio logs and the transcripts of the transmission.
93. The applicant points out that Superintendent Battle conceded at the inquest when cross-examined by the family's legal representative that it might not have been wise of him to have identified himself to the deceased as a police officer, bearing in mind that negotiators should have the appearance of being neutral so that some trust is built up between the person under siege and the negotiator.
94. At the conclusion of the evidence the Coroner summed up the case to the jury and, after hearing submissions from counsel representing the parties, the Coroner's direction on the law included the following:
“I find, as a matter of law, for reasons which I do not need to explain to you, that the only verdict that you can come to in this inquest – and I so direct – is a verdict that Michael James Fitzgerald was lawfully killed.”
95. The Coroner went on to explain that any explanation of the verdict was a matter for the jury to decide.
96. The jury returned a verdict of lawful killing and added a recommendation to their verdict that the Home Secretary should ban replica firearms of the type found in Michael Fitzgerald's possession.
97. On 29 November 1998 an article entitled “Cops knew that gun was replica” was published in the 'Bedfordshire on Sunday' newspaper. It was reported that a laboratory technician, Kate Bellamy, a neighbour of Michael Fitzgerald's, had informed the police at about 7.45 p.m. on the night of the incident that Michael Fitzgerald had two replica guns at his home. The Coroner was in possession of a statement made by Kate Bellamy, dated 27 February 1998. This statement, made the day after the incident, had been provided to the Thames Valley investigation. Kate Bellamy did not mention in her statement that she had told the police at the relevant time that Michael Fitzgerald possessed replica firearms. She stated that she had heard and seen an incident developing outside Michael Fitzgerald's flat. She had been in her premises with Amanda Parkin and:
“... both of us decided to go down and see if we could help. When we went out onto the street, Melanie [Joy] was still crying. We were asked by an officer if we could look after Melanie which we agreed and we were advised not to go into my flat and keep away from the windows. Due to this Amanda, Melanie and myself went into Amanda's flat ... after this we all began ringing the local pubs of Michael's to try and locate him. The only positive reply we got was from the Blarney Stone pub who said he'd been in there and left with two blokes from the Grafton pub.”
98. In relation to her knowledge of Michael Fitzgerald, she stated:
“I personally have been into Michael's flat on numerous occasions, but not so much recently due to his increasing drinking, the last time I was in there was about a week ago. I was aware that Michael possessed two imitation firearms which were displayed on the wall of his lounge above the stairway recess ...”
99. Amanda Parkin had provided a statement to the police investigation, also dated 27 February 1998. This statement was consistent with Kate Bellamy's and it also contained no suggestion that Kate Bellamy had told the police officers at the time of the incident that the guns in Michael Fitzgerald's home were replicas or that the occupant of the premises possessed a replica firearm.
100. On 17 February 1999, Local Sunday Newspapers Limited, the proprietor and publisher of “Bedfordshire On Sunday”, which is a weekly newspaper circulating in the Bedford area, applied for judicial review of the Coroner's decision to grant anonymity to Officers A, B, C and D.
101. On 29 October 1999, the application for judicial review was dismissed by Mr Justice Burton, who stated:
“... in relation to officer B the Coroner was taking into account ... the fact that there was a public interest and also a special need for care and a potential risk of injury and danger in relation to B as a member of the armed response group, in addition to the other ground ... namely his fear in relation to the previous incident amounting to a reasonably objective, attested ground for fear in relation to his particular safety and that of his family.
Once there were two such grounds that in my view enabled the Coroner to say that there was sufficient reason for anonymity provided that he then carried out ... a balancing exercise.”
102. Mr Justice Burton concluded that the Coroner had correctly carried out the balancing exercise and that there had been evidence which entitled the Coroner to conclude that anonymity was necessary in the interests of justice and in order to avoid any risk of injury.
103. The applicant sought legal aid to pursue proceedings for judicial review of the inquest verdict. This request and a subsequent appeal were refused by the Area Committee of the Legal Aid Board on 9 March 1999.
104. Following the inquest, in a letter dated 17 December 1998, the Police Complaints Authority informed the applicant that the investigation had been thorough and had addressed the family's concerns that the police had acted too quickly and had not explored all the options. The letter continued:
“(...) neither the investigation nor the subsequent inquest has disclosed evidence on which to seriously challenge any of the police actions. At the time Michael died, police operations were being managed by a senior officer with considerable experience in firearms incidents who described the attention and planning which he gave to the various decisions needed.
There was clear evidence that the situation could not have been effectively contained if officers were placed behind the brick wall at the rear of the house. This view was supported by Thames Valley Police's own firearms experts and is consistent with national guidelines and training. The repeated giving of warnings is required under the manual and I have to say the police would be at risk of very serious criticism if none or fewer warnings had been given.
There was no evidence that the presence of a top level trained negotiator would have caused a different outcome to what actually happened. The evidence suggests the contrary - that even if one had been present at the time of the shooting, he or she would not have been prevented the train of events which led to your brother's death.
Bedfordshire Police accept that there was confusion on the night as to which officers with level 1 negotiating training were available to go to the scene. I am told that call-out rotas are now entered on the force command and control computer, which should reduce the chances of delays in the future due to difficulties in contacting the necessary staff. The problems arose due to a poor information system which has now attracted the required management response. I do not consider that this is a matter which justifies any disciplinary action.
(...)”
105. Inquests are governed by the Coroners Act 1988 (“the Act”) and Coroners Rules 1984 (“the Rules”). Under section 8 of the Act, an inquest must be held if a person has died “a violent or an unnatural death”. It is the function of an inquest, as defined by section 11 (5)(b) of the Act and Rule 36 of the Rules, that a coroner and a jury shall look into and determine four essential matters: who the deceased was, and where, when and how the deceased came by his/her death.
106. There is no legal aid for representation at inquests. Prior to April 1999, there was no right to disclosure of documents. In R. v. Hammersmith ex parte Peach ([1990] QB 211), the Divisional Court held that as no allegation was made against the family natural justice did not require disclosure of documents to the family and the Coroner had no power to hand over material against the wishes of those who supplied him with it. Since April 1999, and as regards inquests into deaths occurring in police custody, there is a presumption in favour of disclosure of information held by authorities in advance of the inquest hearing. According to paragraph 11 of the new voluntary protocol on disclosure, disclosure of the investigating officer's report as part of a supervised Police Complaints Authority investigation will not normally be expected to form part of the pre-inquest disclosure. That does not mean, however, that it is impossible for such a report to be disclosed where a chief officer considers it would be right to do so. Pursuant to the protocol “he or she should seek the views of the Police Complaints Authority and others with an interest in the report.” If disclosure of the report is ordered “the views and expressions of opinion of the investigating officer should be redacted.”
107. It has been consistently emphasised in the domestic case-law that an inquest is an inquisitorial fact-finding exercise, and not a method of apportioning guilt. For example, Lord Justice Bingham declared in R. v. North Humberside Coroner, ex parte Jamieson [1995 QB 1]:
“It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. This principle is expressed in Rule 42 of the 1984 Rules.”
108. In R. Inner South London Coroner, ex parte Douglas-Williams ([1999] 1 ALL E R]), the Court of Appeal clarified the extent of the discretion of a Coroner not to leave to the jury what is, on the evidence, a possible verdict. Lord Woolf MR stated -p. 348):
“If it appears there are circumstances which, in a particular situation, mean in the judgment of the coroner, acting reasonably and fairly, it is not in the interest of justice that a particular verdict should be left to the jury, he need not leave that verdict. He, for example, need not leave all possible verdicts just because there is technically evidence to support them. It is sufficient if he leaves those verdicts which realistically reflect the thrust of the evidence as a whole. To leave all possible verdicts could in some situations merely confuse and overburden the jury and if that is the coroner's conclusion he cannot be criticised if he does not leave a particular verdict.”
109. There is no right of appeal in relation to an inquest and the High Court's role is limited to review, which may be by way of judicial review, or statutory as contained in sections 13 (1) and (2) of the Act. This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner either -
“(a) that he refuses or neglects to hold an inquest which ought to be held; or
(b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts of evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held.
The High Court may –
order an inquest or, as the case may be, another inquest to be held into the death...”
110. The Government and the applicant draw attention to case-law developments in the light of the entry into force in the United Kingdom of the Human Rights Act 1998, in particular: R. (Amin) v. Secretary for State for the Home Department ([2003] UKHL 51(House of Lords)); R. v. Her Majesty's Coroner for the Western District of Somerset and Other, ex parte Middleton ([2004] UKHL 10 (House of Lords)); R. v. Secretary of State for Health ex parte Mohammed Farooq Khan (Court of Appeal); R. v. Her Majesty's Coroner for Inner North London, ex parte Stanley (Court of Appeal).
111. The Amin case concerned the wanton killing of a prisoner by a fellow cell-mate suffering from an untreatable mental condition. No public inquest was ever carried out into the circumstances of the killing. An investigation was conducted by a serving official of the Prison Service as well as by the Commission for Racial Equality. Both investigations were conducted in private with minimal or no participation by the family of the deceased. Having reviewed the case-law of the European Court of Human Rights under Article 2, Lord Bingham of Cornhill concluded that the minimum standards laid down by the Court had not been complied with. The form of the investigation was deficient, regard being had in particular to the absence of public scrutiny of the investigation, the lack of involvement of the deceased's family and, as regards the official investigation, the lack of independence of the official in charge of the inquiry.
112. The Khan case concerned the death of a three-year old child as a result of grossly negligent medical treatment, which was later admitted by the hospital authorities following an internal investigation. Subsequent to an extensive police investigation, the Crown Prosecution Service decided that no criminal proceedings should be taken in respect of the child's death. The family were not permitted to participate effectively in either the internal or police investigation. The Court of Appeal (Lord Justice Brooke) found that neither of the investigations conducted satisfied the minimum procedural obligations under Article 2 of the Convention. Lord Justice Brooke further stated that an independent judicial inquest procedure into the death of the child could fulfil the State's procedural obligations, but only if it allowed the family effective participation with the help of legal aid funding.
113. The Stanley case concerned the killing of a civilian by police officers in the mistaken belief that he was armed. An inquest was held into the circumstances of the killing. The jury recorded an open verdict. Following an application for judicial review by the deceased's family, the High Court ordered that the verdict be quashed and that a new inquest be held before a different Coroner. The High Court (Mr Justice Silber) found a number of deficiencies in the way in which the proceedings had been conducted; firstly, the Coroner had allowed evidence of the deceased's criminal convictions, although irrelevant, to be heard by the jury; secondly, the Coroner had allowed the jury to be apprised of the Crown Prosecution Service's conclusion following a police investigation into the killing to the effect there was insufficient evidence to justify the bringing of criminal proceedings against the officers involved; thirdly, the Coroner should have heard independent expert evidence on whether the use by the police officers of their firearms had been justified in the circumstances; fourthly, in the light of the credible accusation of at least manslaughter by the officers involved, the Coroner failed to justify his decisions by explaining, even briefly, why he was not prepared to leave to the jury the verdicts which the family wished the jury to consider. On this point, Mr Justice Silber held that “it will be exceptional for a coroner not to explain, albeit briefly, why he is not prepared to allow the jury to consider a verdict sought by the deceased family's and in relation to which there has been some relevant evidence”.
114. The Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(1) provides:
“If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”
However, the statutory right of action is reserved to the deceased's dependants (section 1(2) which allows the recovery of their pecuniary loss). If there are no dependants, there is no pecuniary loss to recover as damages. Bereavement damages (fixed at GBP 7,500) are only available to the parents of a child under the age of 18 (section 1A(2)). Funeral expenses are recoverable (section 3(5)).
115. There is no claim under the Fatal Accidents Act for a deceased who leaves no dependants, or who does not fall into the limited category of persons mentioned above. English law does not recognise a tort of wrongful death.
116. The Law Reform (Miscellaneous) Provisions Act 1934 provides for the survival of causes of action for the benefit of the deceased's personal estate. The relevant part of section 1(1) provides:
“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.”
This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died, including any non-pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act and the only recoverable amount would be funeral expenses.
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-93500
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GENERALOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);No violation of Art. 13;No violations of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1967 and lives in the village of Ferzikovo in the Kaluga Region.
7. Between 24 August 2001 and 27 December 2002 the applicant served a sentence for theft in detention facility ZhH-385/5 (hereinafter referred to as “ZhH-385/5” or “the prison”) in the village of Lepley in the Republic of Mordovia.
8. During his imprisonment the applicant was detained in the following units of the prison:
(i) from 24 August 2001 to March 2002 in unit no. 6;
(ii) from March to August 2002 in a high-security unit;
(iii) from September to December 2002 in unit no. 2.
9. The parties’ descriptions of conditions in ZhH-385/5 differ on a number of counts.
10. The applicant stated that unit no. 6 measured 336 sq. m, which included a dormitory, a storage room, a dining room and a common room. The unit housed approximately 200 inmates, and since there were not enough sleeping places the applicant had to sleep in the common room on several stools put together. The unit was equipped with only five washbasins, sometimes with no water in them.
11. Unit no. 2 measured 280 sq. m, which included a dormitory, a storage room, a dining room and a common room. The unit housed approximately 200 inmates, and since there were not enough sleeping places the applicant was again given a sleeping place in the common room, consisting of several stools put together. The unit was equipped with only five washbasins.
12. The toilet facilities, consisting of five cubicles, were shared by four units (nos. 2, 6, 7 and 9) which housed about 700 inmates in total.
13. There were no water-heating facilities in the units that inmates could access.
14. The water in the shower was usually lukewarm; the inmates had to wait for hours for their turn to take a shower. The inmates did not have enough space for their personal belongings and had to dry their washed clothes in their living premises as well, resulting in constant stuffiness and an unpleasant smell. The living premises and canteen were shared with inmates suffering from tuberculosis, and this caused outbreaks of the disease. The authorities did not comply with the prison regulations on food supply and the provision of clothing and toiletries. The inmates had pearlbarley mush three times a day for months, but received no vegetables, fish or meat at all and sometimes no tea for several weeks. The applicant was provided with a mattress, two sheets and a sweater, but the prison authorities failed to provide him with a blanket, towels, underwear, other clothing, shoes or toothpaste.
15. During his detention the applicant was placed in a disciplinary cell on several occasions. In the disciplinary cell his head was shaved weekly, and when being inspected by the warder he had to stand up facing the wall holding his hands up with the palms turned outwards.
16. In support of his allegations about conditions in the facility the applicant submitted a number of written statements by other inmates of ZhH-385/5, dated 2-4 November 2002, which had been produced for the domestic proceedings (see subsection 3 below). In so far as relevant these statements may be summarised as follows.
17. Mr Kh. wrote that, starting in December 2001, he had been detained in unit no. 10. The unit contained 170 inmates of whom some, including Mr Kh. himself, were infected with tuberculosis and some were not; inmates were allowed about 1.4 sq. m of personal space. Only six washbasins were available for all the inmates of the unit; the kitchen measured 2 sq. m; there was a common room, but it was also turned into a dormitory because of overcrowding. Mr Kh. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection 2 below).
18. Mr I. alleged overcrowding in unit no. 7, claiming that inmates were allowed no more than about 0.5 sq. m of personal space.
19. Mr N., who was detained in unit no. 10, wrote that the inmates of two units (that is, about 320 people in total) had to share toilet facilities comprising only eight cubicles and that the number of washbasins was insufficient (about 40 inmates per washbasin). He also alleged severe overcrowding, the presence of inmates infected with tuberculosis in the communal units and poor catering.
20. Mr B. submitted that unit no. 6, which housed about 200 inmates, had only six washbasins. The inmates of units nos. 2, 6, 7 and 9 (about 600 people in total) had to share toilet facilities comprising only seven cubicles, making it difficult to get access to them. He also alleged overcrowding in unit no. 6, claiming that inmates were allowed less than 1 sq. m of personal space, and complained about the extremely poor supplies.
21. Mr S., who was detained in unit no. 10, referred to extremely poor catering, a failure to supply him with any clothes or shoes and a scarcity of toiletries. He also alleged overcrowding, claiming that inmates were allowed about 1.4 - 1.5 sq. m of personal space and that inmates infected with tuberculosis were accommodated together with the other prisoners. He contended that the unit of over 170 inmates had only seven washbasins and that the toilet facilities shared by two units (about 350 inmates) had only eight cubicles. The shower facilities were also scarce, so that five or six inmates had to use one shower-head at a time. Mr S. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection 2 below).
22. The Government stated that on admittance to ZhH385/5 on 24 August 2001 the applicant had been placed in unit no. 6. The dormitory of the unit measured 336 sq. m. It was intended for 183 detainees but was used by no more than 180 inmates. According to the certificate issued by the prison governor in 2005, it was equipped with six taps, and there were seven more taps in a heated washstand in the yard. Another certificate issued by the prison governor in 2007 stated that the unit was equipped with 14 taps.
23. Between March and August 2002 the applicant was placed in a highsecurity unit measuring 98 sq. m, intended for 49 detainees. However, only 21 inmates were held there.
24. Between September and December 2002 the applicant was held in unit no. 2. The dormitory of the unit measured 280 sq. m. It was intended for 140 detainees but was used by 125 inmates; each detainee was thus allowed 2.24 sq. m. According to the certificate issued by the prison governor in 2005, it was equipped with seven taps, and there were seven more taps in a heated washstand in the yard. Another certificate issued by the prison governor in 2007 stated that the unit was equipped with six taps.
25. The water was supplied from four artesian wells which produced 120 cubic metres of water per hour. The average consumption of ZhH-385/5 was 63.35 cubic metres per hour. Cold water was always available in the taps except on three occasions, on 25 June, 20 July and 21 October 2002, when it was cut off for several hours for maintenance; during these times drinking water was provided from other sources.
26. Every unit had facilities for boiling water. Inmates had free access to such facilities. Once a week they took hot showers. The units had toilets in outhouses with sumps. The inmates of units nos. 2, 6 and 7 shared access to 13 toilet cubicles.
27. Every unit had a room for drying clothes and a dining room equipped with food storage facilities, tables and stools.
28. The applicant was at all times provided with an individual bed, bedding and clothes in accordance with prison regulations. According to the prison records, on 25 August 2001 the applicant received two sheets, one pillow and one pillowcase, and on 29 August 2001 he received a mattress, a winter coat and a set of clothes. He was also offered a pair of boots but he signed a form refusing them. The meals provided to the inmates included meat, fish, milk, cereals and vegetables. The nutritional value met the required standards. The prison authorities had received no complaints concerning the quality of the catering.
29. The applicant never shared accommodation with inmates infected with tuberculosis. Detainees who had undergone treatment for tuberculosis were placed separately, in unit no. 10, and they were always catered for separately.
30. Owing to numerous breaches of prison discipline the applicant was placed in a disciplinary cell a number of times. In particular, he was in the disciplinary cell in December 2001, February 2002 and November 2002. According to the prison regulations, when an official entered a disciplinary cell the detainee had to stand up holding his hands behind his back. Since the applicant had shown a tendency to self-harm he was also required to turn his palms upwards so that the inspector could see that he was not hiding any objects that could be used for causing injuries. All inmates were required to keep their hair cut short. Only those suffering from head lice were advised to shave their hair. However, this was not the applicant’s case and he did not have to have his head shaved.
31. On 17 November 2004 the Government questioned Mr S., who repudiated his 2002 statement, saying that he had written it at the applicant’s request and that any allegations he had made in it about unsatisfactory conditions of detention were untrue. On the same day they questioned Mr Kh., who stated that he had not written the statement submitted by the applicant dated 2002, claiming that the handwriting and the signature on it were not his.
32. Following his release on 27 December 2002, the applicant sent a complaint to the Chief Penitentiary Directorate of the Ministry of Justice of the Russian Federation on 17 February 2003 in which he set out, inter alia, the shortcomings in the conditions in ZhH385/5. He also addressed similar complaints to the Prosecutor General and to the Speaker of the State Duma, both of which were forwarded to the Penitentiary Directorate.
33. On 26 March 2003 and on 5 May 2003 the Penitentiary Directorate sent replies to the applicant dismissing his complaints; however, it acknowledged that there had been certain shortcomings with regard to the conditions in ZhH385/5. The latter reply stated, in particular, that “the shortcomings in catering, the irregular water supply in the units and the breaches of sanitary regulations were due to [external reasons] related to the excessive number of inmates and have now been overcome”.
34. On 15 September 2003 the applicant brought proceedings for damages against the administration of ZhH-385/5, alleging poor conditions in the facility, unlawfully imposed disciplinary measures and degrading treatment in the disciplinary cell, including regular head shaving; he also alleged that he had sustained damage to his health and complained about the refusal to deliver one of his parcels in May 2002. The Zubovo-Polyanskiy District Court scheduled a hearing for 11 November 2003.
35. On 1 November 2003 the applicant asked for the hearing to be postponed on account of a medical emergency. On 12 November 2003 the Zubovo-Polyanskiy District Court stayed the proceedings pending the applicant’s recovery.
36. On 12 February 2004 the proceedings in the case were stayed again on account of the applicant’s failure to pay the court fees or submit any documents justifying a fee waiver. The applicant was given until 10 March 2004 to pay the fees or request a fee waiver and provide the supporting documents. The applicant did not pursue these proceedings.
37. The applicant submitted that during his detention in ZhH-385/5 he had been examined several times by medical specialists who failed to diagnose his tuberculosis.
38. Immediately after his release, on 4 January 2003, the applicant underwent a medical examination at the local clinic. Among other ailments he was diagnosed with “infiltrative pulmonary tuberculosis in the destructive phase”.
39. The Government submitted that, on 16 August 2001, the applicant had undergone an x-ray of his heart and lungs which showed no anomalies.
40. On arrival in ZhH-385/5 the applicant underwent a medical examination. His state of health was found to be satisfactory, and the checks for tuberculosis, skin diseases, scabs and lice did not reveal any such conditions.
41. On 11 September 2001 he underwent another x-ray of his heart and lungs which also showed them to be normal.
42. On 6 February 2002 another x-ray was made, and the applicant was sent for a further medical examination because of suspected tuberculosis. Further x-rays on 26 February 2002 and clinical tests on 27 February 2002 revealed some pathology in the lungs, but the tuberculosis specialist found that there was no tuberculosis. He recommended monitoring the applicant’s condition with an x-ray every 6 months.
43. From 26 February 2002 to 12 March 2002 the applicant was placed in a medical institution for prisoners in order to undergo examination for tuberculosis and other diseases.
44. On 11 March 2002 a further two-projection x-ray revealed changes in the pattern of the lungs and pleural thickening. However, the phlegm test did not confirm tuberculosis.
45. From 13 March 2002 to 3 April 2002 the applicant was in the medical ward of ZhH-385/5 for treatment of a duodenal ulcer, hepatitis, gastritis and furunculosis.
46. On 6 June 2002 the applicant was sent for a regular medical checkup which included an x-ray and gave results similar to those of February 2002, showing no clear indications of tuberculosis. On 14 June 2002 the tuberculosis specialist concluded that there was no evidence of tuberculosis.
47. On 28 September 2002 the phlegm test for tuberculosis proved negative.
48. In December 2002 the applicant’s next regular check-up was due, but he was released on parole before the scheduled date.
49. The applicant stated that on 28 December 2001 he had been placed in a disciplinary cell. Handcuffs were put on his hands behind his back and locked to a water pipe about 40 cm above the floor. On the following day he was beaten up by the officers on duty. His request to have his injuries recorded by medical personnel was refused.
50. On 6 February 2002, when the applicant was detained in the disciplinary unit, a search was conducted in ZhH-385/5. The applicant claimed that a special forces’ squadron (OMON) had been brought in for this purpose. He was severely beaten during the search and allegedly received injuries including bruises and abrasions on his left side. However, immediately after the incident the applicant was refused permission to see a doctor.
51. The applicant also claims that a foreign body was found in his left side and was extracted later.
52. The applicant submitted that on 10 February 2002 he had lodged a complaint with the prosecutor’s office about having been beaten during the search of 6 February 2002. In February-March 2002 other inmates of ZhH385/5 wrote statements to the prosecutor’s office in support of the applicant’s complaint; these may be summarised as follows.
53. Mr L. wrote that on 10 February 2001 he had seen in the shower that the applicant had bruises on his left side, loin and buttock. He also alleged that the applicant had repeatedly asked the prison authorities to have the traces of beating recorded.
54. Mr A. wrote that during the search of the disciplinary unit on 6 February 2002 he had heard cries and sounds from which he concluded that the applicant was being beaten. He also stated that on 10 February 2001 he had seen in the shower that the applicant had bruises on his left side, loin and buttock. Mr A. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection (2) below).
55. Mr K. wrote that on that day he had seen the applicant in the prison medical ward and noticed traces of beating on his left side and traces of handcuffs. He also alleged that the applicant had repeatedly requested the medical personnel to record the traces of beatings. Mr K. later repudiated these submissions (see his statement of 2004 among the documents submitted by the Government, subsection (b) below).
56. Mr G. wrote that on the same day he had been in the disciplinary cell and had seen bruises on the applicant and traces of handcuffs.
57. The applicant submitted that on 11 November 2002, when he was again in the disciplinary cell, he had felt sick and demanded to be seen by a doctor. The warders ignored him at first, but then came into his cell and beat him up. His request for medical assistance for his injuries was refused and he was left in the cell, handcuffed.
58. On 30 November 2002, still in the disciplinary cell, the applicant refused to go to work because he had not been provided with winter shoes. The warders threatened him and then beat him up while the head medical officer was present.
59. The Government contended that the applicant had not been beaten or otherwise ill-treated in ZhH-385/5. Although he was regularly examined and treated in hospital for various diseases, none of his ailments had been caused by any injuries other than self-inflicted ones.
60. Owing to numerous breaches of prison discipline the applicant was placed in a disciplinary cell a number of times.
61. The applicant was handcuffed on two occasions, first on 28 December 2001 and then on 11 November 2002, as described below.
62. On 28 December 2001 when he was brought before a prison official for a breach of prison discipline, the applicant broke a window and with a splinter of glass made several scratches on his left forearm. He was therefore handcuffed for three hours from 3 p.m. to 6 p.m. After the handcuffs had been removed, he was placed in a disciplinary cell. The governor of ZhH-385/5 investigated the incident and concluded that the injuries were self-inflicted and were not the result of any criminal act. On 4 January 2002 the prosecutor’s office endorsed the decision not to conduct a criminal investigation into the incident.
63. Between 26 February 2002 and 12 March 2002 the applicant was held in a medical institution for prisoners, and was then transferred, until 3 April 2002, to the medical ward of ZhH-385/5 for further treatment of a duodenal ulcer, hepatitis, gastritis and furunculosis. There are no records of any injuries dating from this period.
64. On 18 May 2002 the applicant inflicted a slash wound on his left forearm and was provided with medical aid.
65. On 6 June 2002 the applicant underwent a medical examination in the medical institution for prisoners. He was diagnosed with a hernia and was admitted to hospital. On 5 July 2002 the applicant underwent a surgical operation for the hernia. At the same time a foreign body was found in his left side and was removed.
66. On 11 November 2002, when the applicant was being held in a disciplinary cell, he made a written statement threatening to injure himself as a protest against the authorities’ refusal to place him in a medical institution for treatment of his “worsening disorders”. To restrain him, the prison warder handcuffed him between 11.30 a.m. and 6 p.m. On 13 November 2002 the governor of ZhH-385/5 investigated the incident and concluded that the handcuffing had been lawful and justified in the circumstances.
67. On 30 November 2002 the applicant was in the disciplinary cell. No force or special restraint measures were used against him on that day.
68. On 17 November 2004 the prison authorities questioned 13 inmates of ZhH-385/5 who had been serving their sentences at the same time as the applicant about the acts of ill-treatment alleged by the applicant. Two of the inmates questioned, K. and A., were those on whose earlier statements the applicant had relied. The statements submitted by the Government may be summarised as follows.
69. Mr S. wrote that he knew the applicant personally and that relations between them had been friendly. The applicant often revolted against the prison regulations and discipline. Mr S. had never heard that the applicant had been beaten in the facility, or that other inmates had been ill-treated in any way.
70. Mr K. stated that he had not written the statement of 26 February 2002, and that the handwriting and the signature on it were not his. He had never seen any injuries on the applicant, although he had met him in the medical ward when they were held in the same unit for one day.
71. Mr Kh. stated that he had not written the statement dated 2002 submitted by the applicant, claiming that the handwriting and the signature on it were not his. He had not seen any injuries on the applicant.
72. Mr A. wrote that he had had friendly relations with the applicant and that the latter had often disobeyed the lawful orders of the prison authorities and breached discipline. The applicant was placed in the disciplinary cell, but even then continued to disobey. In February 2002 Mr A. was detained in a disciplinary cell next door to the applicant, but he had not heard evidence of any violent acts against him. In the shower, he had not seen any traces of beating on the applicant. He repudiated his 2002 statement, pointing out that he had written it at the applicant’s request because of their friendly relations.
73. Mr Shch. wrote that in February 2002 he had been placed in the disciplinary unit. During his detention there a search was conducted, but no force was applied. He did not hear any cries or other violent sounds during the search, although audibility in the unit was very high. He met other detainees from the disciplinary unit during walks, but nobody mentioned any beatings or other use of force against inmates. He did not know the applicant personally.
74. According to the Government, similar submissions had been written by Mr Ya.; however, they did not attach a copy of his statement.
75. Mr Sh. wrote that he knew the applicant but did not have a personal relationship with him. In February 2002 he was detained in a disciplinary cell next door to the applicant, but did not hear him being beaten, though audibility in the disciplinary unit was very high. In the shower, he had not seen any traces of beating on the applicant. He did not hear the applicant complaining about having been beaten.
76. According to the Government, similar submissions were written by Mr Ab. and Mr V.; however, they did not attach a copy of their statements.
77. The Government also referred to statements made by Mr T. and Mr R., who submitted that they did not know the applicant and could not provide any relevant information, and by Mr Kr., who submitted that he knew the applicant but had had no contact with him. No copies of these statements were made available to the Court.
78. On an unspecified date the applicant complained to the Dubravnyy district prosecutor’s office, alleging that on 28-29 December 2001 he had been ill-treated. On 10 February 2002 he also lodged a complaint alleging that he had been beaten during the search on 6 February 2002. The latter complaint was accompanied by four statements from his fellow inmates, summarised above (see paragraphs 52-56 above).
79. On 31 May 2002 the applicant complained to the ZubovoPolyanskiy District Court concerning his alleged ill-treatment and the disciplinary sanctions imposed on him by the authorities of ZhH-385/5. He claimed damages in the amount of 45,000 roubles. He sent an additional complaint to the court on 22 June 2002. The complaints were received by the court on 10 July 2002.
80. On 16 July 2002 the Zubovo-Polyanskiy District Court declined to accept the applicant’s complaints for consideration, having found that they had been submitted neither through the prison postal service nor through an authorised representative outside the prison, and were therefore in breach of Article 91 of the Penitentiary Code. Its decision was based on Article 129 of the Code of Civil Procedure. The applicant received this decision on 6 August 2002, but did not lodge an appeal against it. Instead he filed numerous petitions with various judicial bodies requesting the quashing of the decision of 16 July 2002 in supervisory review proceedings. None of the petitions was successful.
81. On 17 July 2002 the prosecutor’s office decided not to conduct a criminal investigation into the alleged ill-treatment of 28-29 December 2001 and 6 February 2002, having found the complaints unsubstantiated. It was noted, in particular, that during his detention in the disciplinary cell between 28 December 2001 and 12 January 2002 the applicant had not applied to the medical unit in order to have any injuries recorded. As regards the alleged ill-treatment of 6 February 2002, the prosecutor’s office questioned three other inmates (A., L. and V.) who had been detained in the same disciplinary unit as the applicant, and two prison officers. They all stated that “nobody from OMON [had] threatened to murder [the applicant]” during the search. The prosecutor’s office therefore concluded that the applicant’s allegations of ill-treatment were not supported by any evidence and that no further investigation was necessary.
82. On an unspecified date the applicant challenged the decision of the prosecutor’s office of 17 July 2002, claiming that the failure to investigate the events of 6 February 2002 had been unlawful. He supported his complaint by written statements from inmates L., G., K. and A. confirming that several days after the search of 6 February 2002 they had seen bruises on his body and abrasions left by handcuffs on his wrists and that inmate A. had heard the applicant being beaten and crying for help.
83. On an unspecified date the applicant complained to the prosecutor’s office about the alleged ill-treatment of 30 November 2002. On 13 February 2003 the prosecutor’s office declined to institute criminal proceedings, having found the allegations of ill-treatment unsubstantiated.
84. On 18 April 2003 the Zubovo-Polyanskiy District Court examined a complaint by the applicant concerning the decision of the prosecutor’s office of 17 July 2002. At the hearing the public prosecutor referred to the investigation conducted into the allegations of ill-treatment which had turned out to be unsubstantiated as there were no witnesses and no record of the applicant’s supposed requests for medical aid or his complaints in this respect. Three officials who had been implicated were questioned in court and denied the allegations. Statements by inmates L. and A. were produced, asserting that they had never written any statements concerning the alleged beating of the applicant and that they had neither seen any bruises on him nor heard any cries from his cell on the relevant date. Neither the applicant nor any other inmates were present in the courtroom. The court dismissed the complaint and found the decision by the prosecutor’s office not to conduct a criminal investigation to be lawful and reasonable. The applicant did not appeal against this judgment.
85. On an unspecified date the applicant challenged before the court the alleged failure of the prosecutor’s office to register his complaint of illtreatment on 30 November 2002. On 20 February 2004 the ZubovoPolyanskiy District Court examined the claim and found that not only had the complaint been registered with the prosecutor’s office, but an official decision had been taken on 13 February 2003 not to conduct a criminal investigation into the allegations. The applicant had been informed of it. Having noted that the applicant had not challenged the merits of the latter decision, the court rejected the claim. No appeal was lodged against this decision.
86. On 26 August 2004 the applicant brought new proceedings for damages against the authorities of ZhH-385/5. He alleged ill-treatment in the prison and in the disciplinary cell and complained of unlawfully imposed disciplinary measures and damage to his health.
87. On 31 August 2004 the Zubovo-Polyanskiy District Court stayed the proceedings until 27 October 2004 and ordered that the applicant comply with the formal requirements for lodging a claim by attaching the originals or copies of the documents he referred to in his complaints and paying the full amount of the court fee, or providing reasons justifying a fee waiver. The applicant did not pursue these proceedings.
88. On 19 November 2004 the applicant lodged a new claim with the Zubovo-Polyanskiy District Court, similar to that of 31 August 2004. On 24 November 2004 the court stayed the proceedings because the applicant had again failed to pay the court fee or file a waiver application, and to attach copies of the relevant documents and the required number of copies of his writ. The applicant was given until 13 December 2004 to rectify the shortcomings. The applicant did not pursue these proceedings. Apparently he lodged a new claim of similar content, failing once again to pay the court fee or request a waiver and to provide the required copies. On 11 January 2005 the Zubovo-Polyanskiy District Court stayed the proceedings and gave the applicant until 10 February 2005 to comply with these requirements. The applicant did not pursue these proceedings either. Likewise, he did not appeal against the stay of any of the above-mentioned proceedings.
89. Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space for male prisoners in correctional colonies.
90. Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment (Article 286 § 3 of the Criminal Code).
91. The RSFSR Code of Criminal Procedure (in force until 1 July 2002) established that a criminal investigation could be initiated by an investigator following a complaint by an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He or she could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be served on the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Article 113).
92. On 29 April 1998 the Constitutional Court of the Russian Federation held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court.
93. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, in force from 1 July 2002), states that a criminal investigation may be initiated by an investigator or prosecutor on a complaint by an individual (Articles 140 and 146). Within three days of receipt of such a complaint, the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to decline to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The decision not to open criminal proceedings is amenable to appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148).
“A single judge shall decide whether to accept a civil claim.
The judge shall reject the claim:
(1) if the claim is not eligible for examination by a court;
(2) if the plaintiff has not pursued the out-of-court settlement established by law for this category of cases;
(3) if there exists a final judgment resolving a dispute between the same parties on the same subject matter and on the same grounds, or a judicial decision accepting the plaintiff’s repudiation of the claim or a friendly settlement;
(4) if another case between the same parties on the same subject matter and on the same grounds is pending before a court;
(5) if there has been a decision taken by a [lay arbitration body] within its competence resolving a dispute between the same parties on the same subject matter and on the same grounds;
(6) if the parties have agreed to submit the case to arbitration;
(7) if the court has no jurisdiction over this claim;
(8) if the claim was submitted by a person whose legal capacity has been limited [owing to disability];
(9) if the claim was submitted on behalf of the interested person by a person without due authority to conduct the case.
...”
95. Article 91 of the Penitentiary Code and paragraph 12 of the Internal Regulations of Correctional Institutions (Order no. 224 of the Ministry of Justice of 30 July 2001) provide that all incoming and outgoing correspondence of detainees, other than correspondence with courts, prosecutors, penitentiary officials, the Ombudsman and counsel, is subject to censorship by the colony officials. Letters are to be put in mailboxes or given to officials in an unsealed envelope. Paragraph 13 requires detainees to submit all complaints through the colony officials.
96. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows:
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘because they know that all complaints usually pass through the colony’s administration’.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
97. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows:
“10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.
13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.
14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.
...
15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.
...
19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.
20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.
(2) Drinking water shall be available to every prisoner whenever he needs it.
21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.
...
45. (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited ...”
VIOLATED_ARTICLES: 3
6
NON_VIOLATED_ARTICLES: 13
3