ITEMID: 001-76341
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF POPOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-2;No violation of Art. 6-1;No violation of Art. 6-3-c+6-1;Violation of Art. 6-3-d+6-1;Violations of Art. 3;Failure to comply with obligations under Art. 34;Not necessary to examine other complaint under Art. 34;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1978 and lives in Moscow. He is currently serving his sentence in the YaCh-91/5 prison in Sarapul.
10. On 26 September 2001 at around 2 p.m. four teenagers attending a school for children with impaired hearing, while walking in Sokolniki park towards a tram stop, saw two young men fighting. One of the youths was later found dead. It was established that his death had occurred on the aforementioned date. The schoolboys described the event to their teacher. They noted that the alleged offender had been wearing a ponytail and a leather jacket.
11. On 14 May 2002, at 12 noon, police officers came to the applicant's flat and asked him to accompany them to the police station. The applicant complied with the request. In the police station he was searched and placed in a cell. At 2 p.m. he was interviewed as a witness. The applicant stated, inter alia, that he did not know the victim and had never heard his name. At 3 p.m. the applicant took part in an identification parade before two of the four schoolboys, Z. and M., who identified him as a person they had seen fighting on 26 September 2001. At 4 p.m. the investigator ordered the applicant's detention. According to the applicant, the detention order was not given to him for his signature. In the order it was indicated that the applicant's mother had been notified about his detention.
12. At 6.50 p.m. the investigator started the search in the applicant's flat. The applicant's desktop PC, mobile phone, photo album, notebook, a bag with diskettes, a leather jacket, two pairs of boots and two pairs of jeans were seized in the course of the search.
13. Between 8.40 p.m. and 9.45 p.m. the applicant was interviewed as a suspect in connection with the murder committed on 26 September 2001.
14. On 15 May 2002 the applicant was transferred to the temporary detention centre IVS Sokolniki.
15. On 17 May 2002 the investigator ordered the applicant to be taken into custody as a preventive measure.
16. On 21 May 2002 the applicant took part in another identification parade before the other two schoolboys who had also witnessed the fight on 26 September 2001. One of the boys, F., stated he was not sure he had seen the applicant. The other boy, Sh., submitted that he had never seen him before.
17. On 24 May 2002 the applicant was charged with murder. On the same date he was interviewed as the accused. He was assisted by an advocate K., appointed by the investigator.
18. On 25 May 2002 the applicant was transferred to remand prison SIZO 77/1 in Moscow.
19. On 21 June 2002 the advocate K. filed a complaint with the prosecutor concerning the conduct of the investigation. He alleged, inter alia, that the identification parades had been in breach of procedural requirements. In particular, the persons lined up with the applicant had been much older and the applicant had been the only one wearing a ponytail, which significantly decreased the evidential credibility of the identification. He further complained that the investigator had taken no steps to verify the applicant's alibi. In particular, Mrs R., the applicant's neighbour, who claimed to have seen him during the day on 26 September 2001, Mr Kh., the carpenter, who was performing work at the applicant's flat on that date, and Mrs K., the applicant's girlfriend's mother, had not been questioned.
20. On 2 July 2002 the Prosecutor allowed the advocate K.'s motion to have Mrs R., Mr Kh. and Mrs K. examined as witnesses. However, neither Mrs R. nor Mr Kh. were examined in the course of the investigation.
21. On 8 July 2002 the Preobrazhenskiy District Court of Moscow extended the term of the applicant's pre-trial detention until 13 September 2002 on the grounds that, being accused of a grave offence, he might abscond during the investigation and interfere with the establishment of the truth in the case.
22. It appears that between July and September 2002 the applicant appointed as his representative advocate A. instead of advocate K., previously appointed by the investigator. Advocate A. assisted him throughout the rest of the proceedings.
23. On 10 September 2002 the Preobrazhenskiy District Court extended the term of the applicant's pre-trial detention until 14 November 2002 on the same grounds as those indicated in its ruling of 8 July 2002.
24. On 12 November 2002 the Preobrazhenskiy District Court extended the term of his pre-trial detention until 14 January 2003 on the same grounds as those indicated in its ruling of 8 July 2002. At the same hearing the court granted the applicant leave for his uncle's participation in the proceedings as his representative.
25. On 21 November 2002 the applicant appealed against the extension of the term of his detention.
26. It appears that on 2 December 2002 the order of 12 November 2002 was upheld on appeal.
27. On 18 December 2002 the applicant was notified about the termination of the preliminary investigation. The applicant was again notified about the termination of the preliminary investigation on 30 December 2002.
28. On 10 January 2003 the Prosecutor drew up a bill of indictment and referred the case to court. The bill of indictment stated that, on 26 September 2001 at around 2 p.m., near the entrance to the Sokolniki park, the applicant had quarrelled with the victim for unidentified reasons. The quarrel had turned into a fight. Due to “sudden personal hostility” the applicant had struck the victim at the nape with an unidentified blunt, hard object and had then cut his throat with an unidentified sharp object. The bill of indictment enumerated the items of evidence with reference to the pages of the case file. It contained no clarification as to their relevance.
29. On 4 February 2003 the Preobrazhenskiy District Court scheduled the hearing for 17 February 2003 and ordered the preventive measure of restraint applied to the applicant to remain unchanged. The applicant appealed against the ruling.
30. On 17 February 2003 the Preobrazhenskiy District Court allowed the advocate A.'s motion to call Mrs R. as a witness at the hearing. The court refused leave for the applicant's uncle to participate in the proceedings as his representative since he was represented by a lawyer. Mr Kh. appeared at the hearing among other witnesses. However, none of them was examined because the court adjourned the hearing on the merits owing to the appeal lodged against the ruling of 4 February 2003.
31. On 22 April 2003 the Moscow City Court quashed the ruling of 4 February 2003 and remitted the matter for a fresh examination.
32. On 10 May 2003 the Preobrazhenskiy District Court ruled that it would hold a preliminary hearing of the case on 19 May 2003 and ordered the preventive measure applied to the applicant to remain unchanged.
33. On 19 May 2003 the Preobrazhenskiy District Court ruled that it would hold a hearing on the merits on 12 June 2003. On the same date the applicant filed a motion for the record of his interview on 14 May 2002 and the records of the identification parades to be excluded from the body of evidence as inadmissible. The prosecutor stated that he would leave it for the court to decide. The court held as follows:
“[Mr] Popov's motion ... should be dismissed because the case has not yet been considered on the merits, the judicial investigation has not been conducted, therefore the assessment of all the evidence in the case, including the documents that [Mr] Popov seeks to have excluded, shall be made when the case is considered on the merits.”
The court scheduled the next hearing for 12 June 2003.
34. The hearings of 12 and 18 June 2003 were adjourned. On 18 June 2003 the Preobrazhenskiy District Court extended the term of the applicant's detention until 18 September 2003 and refused leave for his uncle to participate in the proceedings as his representative on the ground that he was represented by a lawyer. The applicant appealed against the ruling.
35. On 8 September 2003 the Preobrazhenskiy District Court held a hearing on the merits. The minutes of the hearing stated that witnesses had appeared and had been removed from the courtroom. The names of the witnesses were not specified. The applicant's counsel filed a motion to call Mrs R., the applicant's neighbour, at the hearing in order to confirm his alibi and provide information about his personality. The prosecutor objected on the grounds that the information about the applicant's personality would be obtained from his relatives. The court dismissed the motion without giving any reasons.
36. At the hearing of 8 September 2003 the court heard evidence from three of the four schoolboys who had witnessed the events of 26 September 2001. M. confirmed that he had seen the applicant that day. Z. stated that although he had identified him at the identification parade, he could not at present remember exactly what the offender had looked like. F. submitted that he did not recognise the applicant. Their teacher, examined at the hearing, submitted that the schoolboys had good eyesight, although owing to the particularities of their mental state suffered from certain lapses of memory or forgetfulness, because of which they could not adequately recollect a situation after half a year. The court also heard evidence from the victim's parents. His father stated that he had received an anonymous call and had been told that the applicant had murdered their son. At 3.56 p.m. the judge adjourned the hearing until the next day.
37. On 9 September 2003 the hearing continued. The record of the hearing did not contain information as to whether particular witnesses had attended. It appears that Mrs R. was present at the hearing because she placed her signature on a document dated 9 September 2003 to confirm that she had been notified of criminal responsibility for giving false evidence. The document was also signed by the trial judge. However, Mrs R. had not been examined at the hearing.
38. At the hearing the Preobrazhenskiy District Court heard evidence from Mrs P., the applicant's mother, who submitted that on 26 September 2001 the applicant had stayed at home until the evening and had also been seen by their neighbour Mrs R. and the carpenter Mr Kh. Miss K., the applicant's girlfriend, submitted that on 26 September 2001 between 9 p.m. and 12 midnight she and the applicant had walked her dog. Mrs K., her mother, submitted that between 1.30 p.m. and 3.30 p.m. on 26 September 2001 she had spoken to the applicant on the telephone a number of times and he had been at home. The court also heard evidence from a computer expert, Mr G., and from the applicant's friend, Mr B.
39. The applicant's counsel filed a motion to supplement the pleadings by summoning and examining Mr Kh. The court dismissed the motion on the grounds that Mr Kh. had been notified of the hearing but had failed to appear.
40. On 10 September 2003 the Preobrazhenskiy District Court convicted the applicant of murder and sentenced him to ten years' imprisonment. The court held that on 26 September 2001 at around 2 p.m. near the entrance to Sokolniki park the applicant had quarrelled with the victim for unidentified reasons. The quarrel had turned into a fight. Due to “sudden personal hostility” the applicant had struck the victim at the nape with an unidentified blunt, hard object and then cut his throat with an unidentified sharp object.
41. The court found that the applicant's guilt was confirmed by the statements of M. and Z., who had identified him as the person they had seen fighting with the victim, and by a similar statement from F., who, however, noted that he was only fifty per cent sure that it was the applicant he had seen. The court noted the schoolboys' teacher's statement to the effect that they had no mental abnormalities. The court further stated that the applicant's guilt was also confirmed by Mr G., who submitted that a password and log-in identification for each user were personal and allowed the location of the user and his correspondence with other users to be determined; by Mr B., who submitted that he was aware that the applicant had used the nickname “Spencer” on the Internet and that he had a black leather jacket; by the victim's post-mortem; by the crime scene reports; by the inspection reports concerning the victim's computer and diskettes and a computer and diskettes belonging to a certain Mr X., it was not specified who he was; by inspection reports in respect of the applicant's personal items; by references from two Internet providers; by a reference from the Internet provider MTU-Intel, stating that on 12 September 2001 at 11.16 p.m. a user accessed the Internet from the applicant's mother's telephone.
42. The court dismissed the applicant's motion to exclude the reports of identification parades as inadmissible evidence. Having regard to the witness statements made at the hearing and to the case file, the court found that the identification parades had been conducted in accordance with procedural rules. The court further found that no credence could be given to the submissions of Mrs P., Miss K. and Mrs K. because, being the applicant's relatives, they had sought to help him.
43. The applicant appealed against the judgment on the grounds, inter alia, that the trial court had relied on inadmissible evidence, had dismissed his motion to call Mrs R. at the hearing and had refused to adjourn the hearing in order to call Mr Kh.
44. On 4 November 2003 the Moscow City Court examined the applicant's appeal against the ruling of 18 June 2003 concerning the extension of his pre-trial detention. The court upheld the ruling. The applicant and his counsel were present at the hearing.
45. On 6 November 2003 the Moscow City Court addressed the Preobrazhenskiy District Court in a letter stating that the appeal against the ruling of 18 June 2003 lodged by the applicant on 24 June 2003 had not been transmitted for examination in due course and that the case-file had been received by the Moscow City Court only on 4 November 2003. The Moscow City Court further noted that appeals against rulings concerning the application of a preventive measure should be transmitted immediately to the appeal court and failure to do so entailed a limitation of the right of access to a court.
46. On 20 January 2004 the Moscow City Court upheld on appeal the judgment of 10 September 2003. The court, inter alia, stated:
“The crime was committed in Moscow in the circumstances set out in the [trial] court's judgment.
...
The [trial] court was right to base its conclusions concerning the guilt of [the applicant] on the statements of [the witnesses]. The [appeal court] finds that such assessment ... corresponds to the body of evidence in the case: ...the computer databases, where the correspondence between the [applicant] using the nickname “Spencer” and the victim is recorded, and the relevant statement of [Mr B].
...
The argument [put forward in the applicant's appeal] that his version about his being at home on the date of the crime was not duly examined is unsubstantiated.
...
The lawfulness of the procedural actions taken in the present case was checked, and the court's findings were not based on any evidence [the lawfulness] of which would give rise to doubts. ... ”
47. On an unspecified date the applicant challenged the constitutionality of Article 49 § 2 of the Code of Criminal Procedure in the Constitutional Court. The applicant claimed that the trial court had based on that provision its refusal to allow his uncle's participation in the proceedings as his defence counsel. The trial court had thus infringed his rights enshrined in Article 45 § 2 of the Constitution, which provided that everyone was entitled to defend his or her rights by any lawful means.
48. On 22 April 2004 the Constitutional Court dismissed the complaint as inadmissible. It held that Article 49 § 2 of the Code of Criminal Procedure did not provide any limitations as regards participation of the accused's relatives in the proceedings. Therefore, it did not violate the applicant's rights protected by Article 45 § 2 of the Constitution. Inasmuch as the applicant's rights could have been infringed by the court's arbitrary refusal to admit his relative to participate in the proceedings, he should have had recourse to remedies available under the laws on criminal procedure.
49. Between 24 May 2002 and 15 February 2004 the applicant was detained in remand prison SIZO 77/1 in Moscow.
50. Between 24 May and 14 June 2002 the applicant had been held in cell no. 236. 10 inmates were held in a cell measuring approximately 5 sq. m with 6 beds. The lavatory pan was placed a meter away from the dining table and was not separated by a partition. Food was provided twice a day. There was a very small window which did not let the daylight in and the artificial light was never turned off. The inmates were allowed to take a walk of 40 minutes per day.
51. Between 14 June and approximately 15 December 2002 the applicant had been held in cell no. 118. Between 75 and 90 inmates were held in a cell measuring approximately 25-30 sq. m with 24 beds in two tiers. The inmates had to sleep in three or four shifts. There was a very small window with no glass and the artificial light was never turned off. The temperature in the cell was +30-35º C. in summer and –10-12º C. in winter. The cell was always very damp. The lavatory pan, placed two to three meters from the dining table, always stank and there was no partition to separate it from the living area and the table. Food was provided twice a day. The cell was overrun by cockroaches, lice and bugs. Sometimes the applicant had had to share the cell with inmates infected with tuberculosis and HIV. He had had to sleep without appropriate bedding. All his personal belongings and food sent to him by his mother had been taken away from him by other inmates allegedly with the consent of the prison authorities.
52. Between 15 December 2002 and 15 January 2003 the applicant had been held in cell no. 143. He submitted that the conditions of detention had been similar to those in cell no. 118. There were 26 beds for 60 inmates.
53. Between 15 and 30 January 2003 the applicant had been held in cell no. 127. The conditions of detention were similar to those in cell no. 118. There were 22 beds for 60-70 inmates.
54. Between 30 January and 10 March 2003 the applicant had been held in cell no. 739, which belonged to the medical unit. In the cell measuring approximately 6 sq. m there were 4 beds for 4 inmates. Walks were not allowed. Food was provided twice a day. There was no dining table. The lavatory pan was not separated from the living area. There was no hot water in the cell. No medical treatment was offered.
55. Between 10 March and 15 September 2003 the applicant had been held in cell no. 113. The conditions of detention were similar to those in cell no. 127. 50 inmates were held in a cell measuring approximately 30 sq. m with 26 beds.
56. Between 15 September 2003 and approximately 10 January 2004 the applicant had been held in cell no. 115. The conditions of detention were similar to those in the cell no. 127. 50 inmates were held in a cell measuring approximately 25 sq. m with 18 beds.
57. Between 10 January and approximately 14 February 2004 the applicant had been held in another cell, possibly no. 152. 60-70 inmates were held in a cell measuring approximately 20 sq. m with 15 beds. The inmates had to sleep in four shifts. The cell was in a basement with no window and no ventilation. The walls of the cell were wet with condensation, the cell was always very damp and there was water on the floor. The temperature in the cell was always very low. The lavatory pan was placed half a meter from the dining table and there was no partition to separate it from the living area.
58. The applicant submitted that between December 2002 and September 2003 he had filed a number of complaints concerning various aspects of his detention in remand prison SIZO 77/1, inter alia, with the Prosecutor's Office of Moscow and the General Prosecutor. However, he had received no reply.
59. Between 24 and 26 May 2002 the applicant had been in cell no. 119, which measured 52.6 sq. m and held 39 inmates simultaneously. Between 26 May and 5 June 2002 the applicant had been in cell no. 236, which measured 18.72 sq. m and held 8 inmates. Between 5 June and 9 July 2002 he had been in cell no. 119, which measured 52.6 sq. m and held 37 inmates. Between 9 July and 25 November 2002 the applicant had been in cell no. 120, which measured 53.8 sq. m and held 37 inmates. Between 25 November 2002 and 4 January 2003 he had been in cell no. 143, which measured 53.4 sq. m and held 46 inmates. Between 4 and 23 January 2003 he had been in cell no. 127, which measured 51.2 sq. m and held 55 inmates. Between 23 January and 21 March 2003 he had been in cell no. 739, which measured 21.6 sq. m and held 4 inmates. Between 21 March and 6 August 2003 the applicant had been in cell no. 122, which measured 52.6 sq. m and held 40 inmates. Between 6 and 21 August 2003 he had been in cell no. 714, which measured 24.5 sq. m and held 5 inmates. Between 21 and 25 August 2003 the applicant had been in cell no. 122, which measured 52.6 sq. m and held 58 inmates. Between 25 August and 10 September 2003 he had been in cell no. 711, which measured 24.5 sq. m and held 1 inmate. Between 10 September 2003 and 15 February 2004, when the applicant was transferred to the YaCh-91/5 prison in Sarapul, he had been in cell no. 115, which measured 40 sq. m and held 29 inmates.
60. During the applicant's detention in remand prison SIZO 77/1 he had been provided with a bed and bedding in accordance with prison standards. He had been provided with clothing appropriate to the season. He had received hot meals three times a day (breakfast, dinner, supper) in accordance with prison standards. He had undergone hygienic procedures (санитарная обработка) once a week. The applicant had never been placed in the same cell as inmates infected with tuberculosis or HIV.
61. The applicant asserted that in the remand prison he had been regularly beaten by his cellmates and threatened with murder, allegedly with the consent or even under the instructions of the prison and investigative authorities, with a view to forcing him into self-incrimination. In August 2002 he had been hit with a heavy metal rod against his head. He had fainted, had sustained concussion of the brain and his right ear had been badly cut. In August, September and November 2002 the applicant had sustained multiple fractures in his nose and haematomas on his face. He submitted that his face and ears had been black and blue and he could hardly open his eyes. His nasal bones did not knit properly and the nasal partition had collapsed leading to disfiguration of his face. The applicant could not breath through one of his nostrils, always had a runny nose and almost lost his sense of smell. His ears often ached and his hearing was impaired. His sight had also worsened. The applicant also alleged that he had been regularly kicked, which had caused internal bruising and blood in his urine.
62. On 24 October 2002 the applicant's mother wrote to the Director of remand prison SIZO 77/1 concerning the applicant's correspondence from the remand prison. She stated that in mid-September the applicant had sent complaints about various aspects of the conditions of detention in the remand prison to the Ministry of Justice and to an NGO Committee for Civil Rights. However, he had not received notification that the complaints had been sent or any replies. The applicant's mother asked to be informed whether the complaints had been sent and why the applicant had not received notification. The letter was received by the remand prison on the next day. It appears that there was no reply.
63. The applicant submitted that he had applied a number of times to the medical unit of the remand prison, but had never been duly examined by a doctor. At the same time, the entry of 1 November 2002 in his medical file stated that he had “fading haematomas”.
64. On 26 August 2004 the applicant sent a letter to his representative describing, inter alia, his beating by his cellmates. He wrote that he had not made any complaints in this regard because he had been threatened with murder.
65. The Government submitted that during his detention in remand prison SIZO 77/1 the applicant had not been subjected to any forms of ill-treatment and sustained no injuries.
66. Since 1994 the applicant had been suffering from cancer of the urinary bladder. In 1999 he underwent a resection of the cancerous tumour and subsequent chemotherapy. Despite the operation, his condition requires permanent medical supervision and specialised treatment.
67. According to the applicant, during his detention in remand prison SIZO 77/1 in Moscow, he had been subject to paroxysms of pain in his kidneys and stomach, together with a high temperature of 39.8º C. He had applied for medical assistance almost every week. However, either he was provided with no medical assistance at all or it was offered to him a week after the paroxysm. The only medicine the applicant had received was an analgesic. He had not been given the specialised medicine prescribed by his uro-oncologist and bought for him by his mother at the request of the remand prison medical unit. On a number of occasions the applicant had undergone blood and urine tests and ultrasound scans. In 2003 he had been placed in the medical unit several times. However, the medical unit did not have facilities to perform specialised tests, e.g., a cystoscopy. The applicant had refused to undergo certain tests because the personnel of the medical unit was not qualified to perform them. The unit did not have a uro-oncologist and the applicant had never been examined by a qualified specialist. The ultrasound scan performed in August 2003 had revealed a new tumour in his prostate measuring eight millimetres. The diagnosis had been confirmed by the ultrasound scan performed in September 2003. A scan performed in December 2003 showed that the tumour had grown up to nine millimetres. The doctors of the medical unit had consulted by telephone the uro-oncologist, Dr M., who used to supervise the applicant. However, the medical unit had never provided Dr M. with the information about the new tumour, as confirmed by his report of 9 September 2004.
68. According to the Government, upon the applicant's admission to remand prison SIZO 77/1 on 24 May 2002 he had informed the medical unit about the operated cancer of his urinary bladder.
69. On 23 January 2003 he had been placed in the surgical department of the remand prison medical unit, where he was examined by a urologist, a surgeon and a physician and underwent a blood test, an electrocardiogram and two ultrasound scans. The applicant had been subjected to antibacterial, antiphlogistic and tonic treatment. He had been released from the medical unit on 21 March 2003 in a satisfactory state of health. Between 6 and 19 August 2003 the applicant had again been placed in the surgical department of the medical unit where he underwent a similar course of treatment. On 15 August 2003 he had been examined by a urologist. Between 25 August and 3 September 2003 the applicant had been placed in a therapeutic department of the medical unit. The results of the tests and examinations showed no signs of recurrent cancer.
70. In 2002 and 2003 the applicant's mother filed a number of complaints concerning the allegedly inadequate medical assistance available to the applicant in the remand prison.
71. On 30 July 2002 the Head of the medical unit of remand prison SIZO 77/1, Ms E., wrote to the applicant's mother that her son had been examined on 14 June and 30 July 2002 and that his condition had been found to be satisfactory. He was under the constant supervision of the medical unit's personnel and would be provided with medical aid if required.
72. On 4 February 2003 the Head of the surgical department of the medical unit informed the applicant's mother that the applicant had been placed there for a regular check-up on 23 January 2003. He had been diagnosed with chronic pyelonephritis and urine acid diathesis and his condition was satisfactory.
73. On 27 May 2003 the Head of the medical unit informed the applicant's mother that the applicant had undergone a medical examination. The results of the examination were communicated to the uro-oncologist Dr M., who recommended another examination within three months.
74. On 5 June 2003 the Head of the medical unit sent the applicant's mother a letter, the contents of which were similar to the letter of 27 May 2003.
75. On 1 August 2003 the Head of the medical unit again wrote to the applicant's mother. Ms E. informed her that the applicant's medical records had been transmitted to the uro-oncologist Dr M., and that the recommended examination as well as treatment with medication containing iron would be conducted in the near future. For this purpose Ms E. asked the applicant's mother to supply the medication containing iron and vitamins. She noted that the applicant's condition was satisfactory.
76. On 13 August 2003 the applicant's mother sent a letter to the Head of the Department for the Execution of Sentences asking him to transmit the results of the applicant's medical examination in the remand prison's medical unit to oncological dispensary no. 3.
77. On 19 August 2003 the applicant's mother wrote to the Director of remand prison SIZO 77/1. She asked him to explain why the applicant had not received treatment with the medication containing iron that she had obtained upon the request of the medical unit.
78. On 1 September 2003 the Head of the therapeutic department of the medical unit informed the applicant's mother, inter alia, that the blood tests performed between 6 and 19 August 2003 had shown no signs of anaemia. Therefore, treatment with medication containing iron was not required. Check-ups by a uro-oncologist and ultrasound scans were recommended once a year.
79. On 2 September 2003 the applicant's mother again wrote to the Director of remand prison SIZO 77/1. The content of the letter was similar to that of 19 August 2003.
80. On 4 September 2003 the Head of the therapeutic department of the medical unit re-sent its reply of 1 September 2003.
81. On 17 September 2003 the Head of the Moscow Directorate of the Department for the Execution of Sentences, Mr Z., replied to the applicant's mother. He stated, inter alia, that the applicant was under the constant medical supervision of the medical unit and did not require specialised in-patient treatment in an oncological hospital. He further noted that the administration of the detention facility could invite external medical specialists only when it was necessary, that is when specialised supervision or treatment was not possible in the detention facility.
82. On 18 September 2003 the Deputy Head of the medical unit of remand prison SIZO 77/1 informed the applicant's mother that the applicant's examination between 6 and 19 August 2003 and between 26 August and 2 September 2003 had revealed no signs of anaemia. The treatment with medication containing iron was not required. The medication supplied by the applicant's mother had been stored at the medical unit and would be returned upon her first request.
83. Between 15 February and 18 March 2004 the applicant was transferred to the YaCh-91/5 prison in Sarapul.
84. On 18 March 2004 the applicant was admitted to the prison. He informed the prison medical unit about the cancer of the urinary bladder operated in 1994. According to the applicant, no relevant tests had been performed for lack of required facilities and he had not been provided with any medical assistance. According to the Government, the applicant had refused to undergo any tests, which was confirmed by the statement of the medical personnel.
85. According to the applicant, owing to the constant pain in his loins and stomach he had had to refuse to perform certain compulsory work in the prison.
86. On 19 March 2004 the applicant was examined by a doctor with regard to his refusal to perform prison work. He complained of pain in his loins and strangury. The prison doctor diagnosed pyelonephritis and concluded that his state of health permitted him to perform prison work excluding hard labour.
87. On the same date, because of his refusal to perform prison work, the applicant was placed in disciplinary cell no. 5, where he remained for 15 days. According to the applicant, the cell measuring approximately 4 sq. m held 4 inmates. There were bunk beds in the cell that were unfolded only for seven hours at night, the rest of the time being folded up against the walls. The lavatory pan was placed within 0.5-1.5 metres of the dining table and there was no partition between them. There was no ventilation and very faint artificial light. The average temperature in the cell was +9-12ºC. It was forbidden to boil water and to have food other than that provided by the prison administration three times a day. The inmates were also forbidden to wear clothes other than those provided by the prison, which were not warm enough. They were forbidden to wear wristwatches and glasses, although the applicant's sight was -4. The inmates were taken for a walk once a day. The applicant's state of health worsened and the paroxysms of pain became more frequent. He had blood pressure boosts and drops, difficulties with movement; his hands and his head started to shake.
88. According to the Government, disciplinary cell no. 5 measured 6.1 sq. m and held 3 inmates simultaneously. It was equipped with four collapsible metal bunk beds with wooden cladding, a table, two benches, a lavatory pan, a wash-basin, a metal shelf for keeping items of personal hygiene and a radio.
89. On 3 April 2004 the applicant was placed in disciplinary cell no. 6, where he remained for 5 days. According to the applicant, the conditions of detention were similar to those in disciplinary cell no. 5. According to the Government, disciplinary cell no. 5 measured 6.1 sq. m and held 2 inmates simultaneously. It was equipped in the same manner as disciplinary cell no. 5.
90. On 9 April 2004 the applicant was examined with regard to his refusal to perform morning exercises. The prison doctor found him able to perform them.
91. On the same date he was placed in disciplinary cell no. 7, where he remained for 15 days. According to the applicant, in the cell measuring approximately 8 sq. m there were 6 inmates. Otherwise the conditions of detention were similar to those in cells no. 5 and no. 6. According to the Government, disciplinary cell no. 7 measured 11.8 sq. m and held 5 inmates simultaneously. It was equipped with six collapsible metal bunk beds with wooden cladding, a table, two benches, a lavatory pan, a wash-basin, a metal shelf for keeping items of personal hygiene, a wooden cupboard and a radio.
92. On 26 April 2004 the applicant was again examined with regard to his refusal to perform morning exercises and found able to perform them.
93. On 27 April 2004 the applicant sent a letter to his mother. He described his poor state of health which included pains in his kidneys, unstable blood pressure, shaking hands and head, difficulties with movement. He wrote that he was not being properly treated in the prison and asked her to send him some medication.
94. On 12 May 2004 the applicant sent a complaint to the Main Department for the Execution of Sentences concerning the lack of adequate medical treatment in the YaCh-91/5 prison and his placement in a disciplinary cell for refusing to perform prison work because of his poor state of health.
95. On 7 June 2004 the applicant sent a similar complaint to the Main Department for the Execution of Sentences.
96. On 30 August 2004 the Head of the prison medical unit stated that it was impossible to examine the applicant in the prison because of the absence of qualified specialists, e.g., urologists and oncologists, and that all required tests could be performed only in the hospital at the YaCh-91/8 prison.
97. Between 3 and 13 September 2004 the applicant was placed in the hospital of the Department for the Execution of Sentences at the YaCh-91/8 prison for examination. An ultrasound scan revealed numerous concretions in his kidneys and diffuse changes and cysts in the prostate. In the applicant's medical file it was stated that he had refused operative treatment.
98. On 10 September 2004 the applicant's mother wrote to a medical officer of the Republic of Udmurtia Directorate of the Department for the Execution of Sentences. She sought the applicant's placement for examination in a hospital within the jurisdiction of the Department for the Execution of Sentences, because he had not been receiving adequate medical supervision and treatment since his detention in the remand prison.
99. On 28 September 2004 the applicant's representative wrote to the Ministry of Health regarding the possibility of examining the applicant in institutions within its jurisdiction.
100. On 25 October 2004 the applicant wrote to his representative that he had had paroxysms of pain after having performed prison work and morning exercises. He also stated that medical assistance in the prison was inefficient and that the entries in his medical file did not reflect his actual condition.
101. On 28 October 2004 Dr L., the Director of the Institute of Urology of the Ministry of Health, gave a written opinion concerning the possibility of recurrent cancer of the applicant's urinary bladder, in response to a request by the applicant's representative dated 2 September 2004. Dr L. noted that a lack of regular medical supervision of the patient by a uro-oncologist had led to belated diagnosis and had increased the risk of recurrent tumours spreading to adjacent organs, when radical surgery would no longer be possible. He concluded that the possibility of recurrent cancer of the urinary bladder could not be excluded. However, an exact diagnosis could only be made upon the applicant's physical examination in a specialised uro-oncological hospital. A cystoscopy and a biopsy were indispensable for this purpose.
102. On 1 November 2004 the Head of the Medical Department of the Udmurtia Directorate of the Department for the Execution of Sentences replied to the applicant's mother's letter of 10 September 2004. He noted that in September 2004 the applicant had been examined in the hospital at the YaCh-91/8 prison. The examination had shown no sign of disease of the uro-genital system, and the applicant had refused further treatment. He concluded that the applicant's condition was satisfactory and that no further examination in the medical institution within the jurisdiction of the Department for the Execution of Sentences was required.
103. On 17 November 2004 the Ministry of Health forwarded the applicant's representative's letter of 28 September 2004 to the Medical Directorate of the Ministry of Internal Affairs. The letter stated that in the present case the prison administration should either refer the applicant to a medical institution within the jurisdiction of the Ministry of Health or place him in a correctional institution which had the necessary facilities for medical examination and treatment.
104. On 29 November 2004 a medical officer from the Central Directorate of the Department for the Execution of Sentences informed the applicant's representative, inter alia, that convicts who required medical aid, including in-patient treatment, were referred to medical institutions attached to the system of execution of sentences or, if required, to institutions within the healthcare system. It was further stated that cystoscopy and biopsy might be carried out by any surgeon. Should any oncological symptoms be revealed, the detention facility where the patient was held should provide the required consultations.
105. On 11 September 2005 Dr D., a urologist of Sarapul Town Hospital No. 1, arrived at the medical unit of the YaCh-91/5 prison. The applicant refused physical examination on the grounds that the medical unit was not licensed to practise urology. It appears that Dr D. made certain conclusions on the basis of the applicant's medical records.
106. On 23 October 2004 the applicant received a postal packet from his representative. According to the Government, a prison official opened it in the applicant's presence in order to check whether it contained forbidden items. As the postal packet only contained documents, they were handed over to the applicant without having been read by any prison official.
107. According to the applicant, on 25 and 27 January 2005 certain prison officials tried to force him to withdraw the complaints made before the Court inasmuch as they concerned the YaCh-91/5 prison. They threatened him with placement in worse conditions of detention. Furthermore, on 27 January 2005 the applicant was visited by an official of the Udmurtia Directorate of the Department for the Execution of Sentences, who refused to identify himself. He had asked the applicant about the medical assistance available to him in the prison and had said that should the applicant continue to complain about his health the required tests would be performed by non-specialists.
108. On 29 January 2005 the applicant sent a letter to his representative. He wrote that all correspondence from the representative was opened and censored by the prison administration. He also described the events of 25 and 27 January 2005.
109. On 14 February 2005 the applicant was contacted by certain State officials. According to the applicant, on that date he was first visited by an official of the Department for the Execution of Sentences, who questioned him about his application before the Court. The applicant confirmed his complaints about the conditions of detention and medical assistance in the YaCh-91/5 prison. He was later called by an official of the prison's operational department, who demanded that he state in writing that he had not been subjected to any pressure on the part of the prison administration. The applicant refused. According to the Government, the applicant had been contacted by officials of the YaCh-91/5 prison, who had questioned him in relation to the questions concerning the conditions of detention in the YaCh-91/5 prison put by the Court to the Government. The applicant had stated that the administration had been treating him on an equal basis with everybody else and that no restrictions had been applied to his correspondence.
110. On the same date the applicant sent a letter to his representative, which contained his account of the events.
111. On 17 February 2005 the applicant was again contacted by State officials. According to the applicant, the same official of the Department for the Execution of Sentences who had approached him three days before talked to him again in the presence of an official from the prison's operational department. The applicant had been asked whether the prison administration or any other State officials had put any pressure on him in connection with his complaints before the Court. He had refused to answer without first consulting his counsel. He had then been asked whether his correspondence with his counsel had been subjected to censorship, which he confirmed. He had also been asked about his relations with the prison administration and other inmates. He had stated that as regards general conditions of detention, leaving aside the issue of the pressure put on him in connection with his application before the Court, he had been treated in the same way as other inmates. As for his relations with other inmates, there had been no conflicts. According to the Government, the applicant had been contacted by officials of the YaCh-91/5 prison, who had questioned him in relation to the Court's request for factual information. The applicant had refused to answer questions concerning alleged threats on the part of the prison officials without first consulting his lawyer.
112. On 18 February 2005 the applicant sent a letter to his representative describing his meeting with the authorities the previous day.
113. According to the applicant, during his detention in the YaCh-91/5 prison several letters sent to his representative had not reached their addressee and a number of letters from his representative had been opened and read by prison officials. According to the Government, there had been no interference with the applicant's correspondence by the prison authorities. All the letters from the applicant's representative had been handed over to him unopened.
114. On 1 September 2005 the Court, under Rule 39 of the Rules of Court, indicated to the Government not to require the applicant to perform any physical activity in the YaCh-91/5 prison in Sarapul, including physical labour and physical exercises, until further notice. Furthermore, the Government were invited to take the initiative of securing an independent medical examination of the applicant in a specialised uro-oncological institution within one month after receipt of the notice in question and further to secure such medical treatment that might be required according to the results of the examination. The Government were requested to inform the Court of the measures thus taken.
115. On 7 October 2005 the Government informed the Court that on 16 September 2005 the applicant had been examined at the oncological dispensary in Izhevsk. They submitted that according to the results of the examination there had been no development of the oncological disease and the applicant did not require special medical treatment.
116. On 7 October 2005 the applicant's representative sent a report of the examination to the Court.
117. On 24 November 2005 the Court decided to lift the interim measure previously indicated on 1 September 2005 under Rule 39 of the Rules of Court in the part related to the medical examination, and to prolong until further notice the interim measure in the part related to the exempting of the applicant from any physical activity in the YaCh-91/5 prison in Sarapul.
118. On 30 December 2005, upon a request from the applicant's representative, Dr S., Deputy Chief Medical Officer of the Institute of Urology gave a written opinion concerning the possibility of recurrent cancer of the applicant's urinary bladder. The opinion was approved by Dr L., Director of the Institute of Urology of the Ministry of Health. Dr S. studied the results of the applicant's examination on 16 September 2005 and concluded that the results of the cystoscopy and the cytological research were inconclusive and could not exclude the possibility of recurrent cancer of the urinary bladder or continued tumour growth. He also stated that regular outpatient examination of patients with musculo-invasive cancer included a cystoscopy and a biopsy at least once a year, computer tomography of the abdominal cavity and the small pelvis, ultrasound scanning of the kidneys, urinary bladder, prostate and liver, and radiography of the thorax.
119. The Government submitted a collection of the applicant's medical records. In so far as the copies are legible, they contain the following relevant entries.
120. Between 2 and 16 February 1994 the applicant was placed in the resuscitation unit of hospital no. 52 in Moscow where he underwent a resection of the cancerous tumour of the urinary bladder and was recommended supervision by a uro-oncologist.
121. On 16 March 2002 (the date is not clearly legible) the applicant was examined by his uro-oncologist, Dr M., who recommended a cystoscopy.
122. During the applicant' detention in remand prison SIZO 77/1 the following entries were recorded.
On 29 July 2002:
“Following a request, a urine test was recommended. [Mr Popov] refused to undergo the test.”
On 30 July 2002:
“Examination by a medical attendant. At the time of the examination [Mr Popov] has no active complaints. Satisfactory condition...”
On 1 September 2002:
“The physical examination revealed healing paraorbital haematomas.”
3 November 2002:
“Examination by a medical attendant. Complaints about periodical pains in the stomach... Satisfactory condition...”
23 January 2003 (several entries, in one of them the date is misrecorded as 23 January 2002):
“[Examination by a] physician. Complaints about pain in the kidneys. [Mr Popov] stated that he had had an operation for cancer of the urinary bladder in 1994. [He] had undergone chemotherapy in 1994-1995. There is an extract from [a medical file kept at] the oncological dispensary obtained from his relatives... Stable condition. Diagnosis: tumour of the urinary bladder... [The patient is to be] placed in the surgical department.”
“[Department of] surgery. Complaints about pain in the loins... Satisfactory condition... Diagnosis: ..., chronic pyelonephritis, ...”
“[The applicant is recommended] urine and blood tests, cystoscopy, ultrasound scanning of kidneys and urinary bladder ... furazolidon, analgin, butadion ... biochemical blood test... papaverin...”
27 January 2003:
“Routine report by the Head of the surgical department. Satisfactory condition. No complaints. The patient has chronic pyelonephritis, in remission... He received analgesics, antiphlogistics, uroantiseptics.”
30 January 2003:
“Satisfactory condition. No complaints...”
30 January 2003, results of the ultrasound scan of the abdominal cavity:
“...Conclusion: altered shape of the gall-bladder.”
3 February 2003 (two entries):
“Routine report by the Head of the surgical department. Satisfactory condition. Complaints about the feeling of weight in the loins. The patient has chronic pyelonephritis in remission. He is undergoing regular examination.”
“[The applicant is recommended] a urine test.”
5 February 2003:
“Satisfactory condition. The same complaints...”
7 February 2003:
“Satisfactory condition. The same complaints...”
8 February 2003:
“[The applicant is recommended] ... papaverin, furazolidon, analgin, blood biochemistry test.”
10 February 2003:
“Routine report by the Head of the surgical department. Satisfactory condition. Complaints about the feeling of weight in the loins. The patient has chronic pyelonephritis in remission. He is undergoing regular examination.”
13 February 2003 (two entries):
“Satisfactory condition. No complaints...”
“[The applicant is recommended] a urine test.”
17 February 2002:
“Routine report by the Head of the surgical department. Satisfactory condition. No complaints. As a result of the conducted examination no signs of the recurrent cancer of the urinary bladder have been revealed.”
20 February 2002 (two entries):
“Satisfactory condition. No complaints...”
“[The applicant is recommended] papaverin, analgin, furazolidon.”
24 February 2003:
“[The applicant is recommended] ultrasound scanning of kidneys and ureters.”
28 February 2003 (two entries):
“Routine report by the Head of the surgical department. Satisfactory condition. Complaints about the feeling of weight in the loins. The patient still has microhaematuria and pain syndrome. It is planned to conduct ultrasound scanning of kidneys and ureters.”
“Satisfactory condition. Complaints about the feeling of weight in the loins...”
3 March 2003 (two entries):
“Satisfactory condition. The same complaints...”
“[The applicant is recommended] papaverin, furazolidon, analgin.”
6 March 2003:
“Satisfactory condition. The same complaints...”
8 March 2003:
“[The applicant is recommended] papaverin, furazolidon, analgin.”
11 March 2003:
“Routine report by the Head of the surgical department. Satisfactory condition. Complaints about the feeling of weight in the loins. A cystoscopy and an examination by a uro-oncologist are planned for 13 March 2003.”
13 March 2003:
“Satisfactory condition. The same complaints... The examination by a uro-oncologist did not take place for objective reasons... (impossibility of arranging transport...).”
17 March 2003:
“Routine report by the Head of the surgical department. Satisfactory condition. No complaints... Cystoscopy and examination by a uro-oncologist were not conducted for objective reasons...”
19 March 2003:
“Satisfactory condition. No complaints... The patient left in order to attend a court hearing. Transport for cystoscopy and examination by a uro-oncologist is impossible.”
21 March 2003:
“Taking into account the absence of the patient [who has to attend a court hearing] and the impossibility of arranging transport for the examination since 13 March 2003 it is decided to release him... and recommend the examination in one month.”
25 March 2003, results of the ultrasound scan of kidneys:
“...Conclusion: liquid mass in prostate. Pyelonephritis on left.”
3 April 2003, it appears that the entry relates to a telephone consultation with a uro-oncologist:
“Consultation with the uro-oncologist. Recommended: ciprofloxacin, urine test, ultrasound scan of the urinary bladder.”
8 April 2003:
“Urine test performed.”
28 April 2003, results of the ultrasound scan of the urinary bladder:
“...in the left half of the [prostate] there is a round ... echo-producing mass ... of 7 mm. Conclusion: a mass in the prostate.”
The next entry is dated 24 April 2003, although in the records it follows the entry of 28 April 2003:
“Placed under supervision on account of the oncological illness.”
The next entry is again dated 3 April 2003 although in the records it immediately follows the entry of 24 April 2003:
“At the time of the examination there are no complaints. The patient refuses to be examined by a uro-oncologist. Satisfactory condition... Diagnosis: cancer of the urinary bladder. Condition after the resection of the urinary bladder in 1994. [Recommended:] Cystoscopy in oncological dispensary no. 3.”
30 April 2003:
“Conclusion: a mass in the prostate. [Recommended:] consultation of an oncologist.”
8 May 2003:
“Telephone consultation with the uro-oncologist [Dr M.]. Taking into account the clinical information, results of the urine test and ultrasound scan, there are no signs of oncological processes. Recommended: ultrasound scan within three months.”
14 July 2003:
“Urine and blood tests are performed.”
31 July 2003:
“Medical documents are submitted for a consultation with the uro-oncologist.”
31 July 2003, entry by the uro-oncologist Dr M. following the examination of the medical documents:
“...Recommended: ultrasound scan of the urinary bladder and the small pelvis, medication containing iron.”
5 August 2003:
“Ultrasound scan not conducted for technical reasons. A course of injections of ferum lex to be started on 6 August 2003.”
6 August 2003:
“[The patient is] hospitalised for a course of treatment for anaemia...”
15 August 2003, examination by a urologist:
“At present treatment by medication containing iron is not required since there are no symptoms of ... anaemia. Recommended: medical supervision..., ultrasound scan of the urogenital system within three months.”
22 August 2003:
“As agreed with [Dr M.], [the patient] is repeatedly placed in the therapeutic department ... for antiphlogistic treatment and ultrasound scanning. To be hospitalised on 25 August 2003.”
4 December 2003, examination before transfer to prison:
“Complaints about weakness, tickling in the throat, aching in the whole body, pain in the loins, strangury..., temperature 38o C.... Diagnosis: acute respiratory disease, condition after the resection of the tumour of the urinary bladder in 1994. Transfer postponed, [the patient is to be placed in the] contagious-diseases ward.”
15 December 2003 (two entries):
“[Mr] Popov was placed in the contagious-diseases ward between 4 and 15 December 2003... He received treatment with aspirin. He is released in a satisfactory condition...”
“No complaints. Satisfactory condition...”
24 December 2003, results of the ultrasound scan of kidneys:
“Urinary bladder: symmetrical shape, ... irregular internal contour, homogeneous contents. Prostate: ... heterogeneous structure, increased echogenicity, echo-free mass of 8 mm. Conclusion: symptoms of chronic cystitis, a mass in the prostate.”
Unspecified date, results of the ultrasound scan of the abdominal cavity:
“...Conclusion: symptoms of chronic cholecystitis.”
123. During the applicant' detention in the YaCh-91/5 prison in Sarapul the following entries were recorded.
18 March 2004, entry upon the applicant's arrival at the YaCh-91/5 prison:
“[Mr Popov] underwent sanitary treatment...
19 March 2004, examination concerning the refusal to perform prison work:
“At present [Mr Popov] can perform prison work excluding hard labour.”
19 March 2004, examination by a physician:
“Complaints about pain in the loins, strangury... In 1994 [Mr Popov] underwent surgery for cancer of the urinary bladder... Diagnosis: chronic pyelonephritis? Incomplete remission. Disease of the urinary bladder? Operated urinary bladder.”
9 April 2004, examination concerning the refusal to perform prison work and morning exercises:
“Chronic cystitis. [Mr Popov] is able to perform morning exercises.”
9 April 2004, a document signed by the staff of the prison medical unit to the effect that the applicant refused to undergo a urine test.
26 April 2004, examination concerning the refusal to perform morning exercises:
“Chronic cystitis... [Mr Popov] is able to perform morning exercises.”
3 September 2004:
“[Mr Popov] is placed in the therapeutic department of [the hospital of the Department for the Execution of Sentences at the YaCh-91/8 prison] for examination (ultrasound scan and...). Diagnosis: a neoplasm in the prostate.”
7 September 2004, two documents signed by the prison surgeons to the effect that the applicant refused to undergo treatment on the grounds that at the moment he had no complaints.
3-13 September 2004:
“Chronic prostatitis... Diagnosis: a cyst of the prostate (diameter 0.8 cm), urine acid diathesis... According to the ultrasound scan conducted on 7 September 2004: symptoms of numerous concretions in both kidneys; symptoms of chronic cholecystitis, diffuse changes in the prostate, cysts of the prostate. [Mr Popov] refused operative treatment... Satisfactory condition at the moment of release [from the medical unit]. Recommended: diuretic tea, uroseptics...”
Unspecified date, examination by a physician:
“Complaints about frequent urination... Diagnosis: chronic pyelonephritis, ..., chronic prostatitis, cyst of the prostate. Recommended: prophylactic treatment in case of exacerbation.”
13 December 2004:
“[Mr Popov] submitted a written opinion of Dr L., the Director of the Institute of Urology of the Ministry of Health. He made no complaints about the state of his health and did not apply to the medical unit [for treatment].”
28 January 2005, a document signed by an attendant of the prison medical unit to the effect that the applicant had refused to be transported for an examination at the hospital of the Department for the Execution of Sentences in the YaCh-91/8 prison.
124. The Government submitted the following medical-practice licences and certificates pertaining to the medical institutions that provided the applicant with medical assistance and their personnel.
125. Licence for the medical unit of remand prison SIZO 77/1, valid from 24 July 2003 to 24 July 2008, with its appendix. The medical unit is licensed to provide the following types of medical care: pre-doctor care, including medical practice, roentgenology, paramedical practice; outpatient care, including neurology, therapeutics, stomatology; inpatient care, including anaesthesiology, resuscitation, dermatovenereology, infectious diseases, clinical laboratory diagnostics, roentgenology, therapeutics, ultrasound diagnostics, phthisiology, surgery, endoscopy.
126. Certificates confirming the qualification of the physician and specialist of the medical unit of remand prison SIZO 77/1, valid from 11 December 1998 to 11 December 2003, and from 27 October 1998 to 27 October 2003, respectively.
127. Appendix of 14 July 2004 to the licence of the medical unit of the YaCh-91/5 prison in Sarapul. The medical unit is licensed to provide the following types of medical care: pre-doctor care, including medical business; outpatient care, including psychiatry, roentgenology, therapeutics, stomatology; inpatient care; other types of work and services, including public healthcare, temporary disability examination, medical examination of drivers.
128. List of staff of the medical unit of the YaCh-91/5 prison in Sarapul dated 27 January 2005. The staff includes the Deputy Head of the prison responsible for medical treatment and prophylactics, who previously worked in resuscitation and therapy, a psychiatrist, a physician, a dentist and three medical attendants.
129. Licence of the medical unit and the hospital of the YaCh-91/8 prison in the village of Khokhryaki, Republic of Udmurtia, valid from 24 January 2002 to 24 January 2007, and a certificate dated 24 January 2002 pertaining to the same institution. The medical unit and the hospital are licensed to provide the following types of medical care: pre-doctor care, including laboratory diagnostics, medical practice, paramedical practice, examination of drivers; diagnostics, including laboratory diagnostics, non-invasive tests, haematological tests, biochemical tests, immunological tests, radiodiagnostics, roentgenology; outpatient care, including psychiatry, stomatology, therapeutics, surgery, therapy; inpatient care, including anaesthesiology, resuscitation, clinical transfusiology, therapy, surgery.
130. Licence of the oncological dispensary in Izhevsk, valid from 10 March 2005 to 10 March 2010. The dispensary is licensed to provide the following types of medical care: pre-doctor care, including laboratory diagnostics, operating treatment, roentgenology, nursing, anaesthesiology and resuscitation, histology, dietology; outpatient care, including clinical laboratory diagnostics, roentgenology, oncology, ultrasound diagnostics, endoscopy; inpatient care, including anaesthesiology and resuscitation, clinical laboratory diagnostics, pathological anatomy, radiology, roentgenology, ultrasound diagnostics, oncology, endoscopy; other types of work and services, including temporary disability examination, control of the quality of medical aid, epidemiology.
131. Documents confirming the qualification of Dr K., the uro-oncologist of the oncological dispensary in Izhevsk who examined the applicant on 16 September 2005, including a diploma in medicine issued on 30 June 1993, a qualification certificate in oncology valid for five years from 22 October 1999, employment record.
132. 16 September 2003, a certificate issued by the Deputy Head of the medical unit of remand prison SIZO 77/1:
“During his detention in [remand prison] SIZO 77/1 [Mr Popov] was examined and treated in the medical unit a number of times: between 23 January and 21 March 2003 with the diagnosis of cancer of the urinary bladder, condition after the resection; between 6 and 19 August 2003 with the diagnosis of chronic cystitis in remission, condition after the resection of the urinary bladder because of the tumour in 1994, chronic prostatitis in remission; between 25 August and 2 September 2003 with the diagnosis of chronic cystitis in remission, condition after the resection of the urinary bladder because of the tumour in 1994, chronic prostatitis in remission. Satisfactory condition at the time of the examination. [Mr Popov] can participate in investigative and judicial proceedings.”
133. 19 March 2004, a certificate issued by a physician of the YaCh-91/5 prison in Sarapul:
“[Mr Popov] is examined as regards his refusal to perform [prison] work (because of personal convictions). Complaints: about pain in the loins, strangury. Conclusion: chronic pyelonephritis (operated urinary bladder in 1994). His state of health allows his detention in the disciplinary cell.”
134. 30 August 2004, a letter of the Head of the medical unit of the YaCh-91/5 prison:
“There is no possibility to examine [Mr Popov] in the medical unit of the YaCh-91/5 prison (there are no urologists, oncologists or other specialists except for a physician). All types of examination, including ultrasound scanning, cystoscopy and biochemical blood tests can only be carried out at the hospital of the prison [YaCh-91/8].”
135. 7 September 2004, a written opinion of the uro-oncologist Dr M.:
“...Chronic pyelonephritis and anaemia may be a consequence of the treatment conducted. Conclusive answer as to the presence (absence) of recurrent cancer may only be given by cystoscopy.”
136. 9 September 2004, a statement of the uro-oncologist Dr M.:
“...The information concerning neoplasm in the urinary bladder [ultrasound scan] was not provided by the [remand prison SIZO 77/1]. The [applicant's] medical file was provided by the medical unit, the information was incomplete.”
137. 28 October 2004, a written opinion of the uro-oncologist Dr L., Director of the Institute of Urology of the Ministry of Health, obtained upon the request of the applicant's representative:
“As regards your request of 2 September 2004 concerning the possibility of suspecting that at present the patient [Mr] Popov may have recurrent cancer of the urinary bladder at stage T3 or T4, I have studied the following materials provided by you:
1. Epicrisis ... according to which in 1994 the patient ... underwent resection of the urinary bladder...;
2. Certificate of 17 March 1995 ... about the results of the histological study... Cancer of the urinary bladder T3N0M0 was diagnosed, adjunctive chemotherapy was recommended.
3. Extract from the patient's ... medical file of 10 August 2004, from which it follows that the patient is supervised by [oncological dispensary no. 3] since 1994, he underwent regular medical examinations once every three months, but has not been examined since May 2002.
4. Extract from the patient's ... medical file kept in [remand prison] SIZO 77/1, from which it appears that in [the remand prison] between May 2002 and March 2004 the patient was examined only by physicians and surgeons, who at different times diagnosed him with anaemia, signs of chronic cystitis, pyelonephritis and prostatitis. This extract unequivocally shows that over the last two years the patient [Mr] Popov has not been physically examined by a uro-oncologist. Doctors of [remand prison] SIZO 77/1 consulted the uro-oncologist [Dr M.] by telephone. At the same time in January-February 2003 the ultrasound scan of the abdominal cavity showed an altered shape of the urinary bladder, pyelectasis on the left, and liquid masses in the prostate of 6-7 mm. The patient also complained about blood in his urine. Another ultrasound scan conducted in December 2003 showed thickening of the walls of the urinary bladder up to 8 mm.
5. Written opinion of the uro-oncologist [Dr M.] of 7 September 2004 to the effect that the signs of chronic pyelonephritis and anaemia might be a consequence of the treatment conducted. Conclusive answer as to the presence (absence) of recurrent cancer might only be given by cystoscopy. In the opinion of 9 September 2004 [Dr M.] clarified that the doctors of the medical unit of [remand prison] SIZO 77/1 did not inform him about the suspicion of a neoplasm in the urinary bladder according to the results of the ultrasound scan.
6. Certificate of the Head of the medical unit of [the YaCh-91/5 prison] of 19 March 2004 concerning [Mr] Popov's complaints about the pain in his loins and strangury, and [a certificate] of 30 August 2004 concerning the impossibility of examining [Mr] Popov in [the prison] conditions because of the absence in the medical unit of a urologist, an oncologist and other specialists.
Before coming to a conclusion, it should be noted that at the current stage of development of medical science no treatment of cancer of the urinary bladder at the T3N0M0 stage can guarantee ... [absence of] recurrent cancer of the urinary bladder or of ... remote metastasis. In case of a lack of regular medical supervision of the patient by an ... uro-oncologist after the special treatment of cancer of the urinary bladder, belated diagnosis increases the chances of finding recurrent cancer spreading to adjacent organs, i.e., when radical surgery would no longer be possible.
In the present case, on the basis of the [above] documents, taking into account that [the patient] had haematuria, secondary anaemia, thickening and deformation of the walls of the urinary bladder according to ultrasound scanning and pyelectasis on the same side, the recurrent cancer of the urinary bladder can not be excluded. More accurate conclusions concerning the state of health of the patient [Mr] Popov may only be made upon his physical examination in a specialised uro-oncological institution with compulsory cystoscopy and biopsy.”
138. 11 September 2005, consultation of Dr D., a urologist of Sarapul Town Hospital No. 1, at the medical unit of the YaCh-91/5 prison.
“At the time of the examination of 11 September 2005 – no complaints. On 7 September 2005 there was frequent urination with strangury (from [the applicant's] words – with concretion). [The applicant] refused physical examination. Taking into account the anamnesis and the entries in the medical file the patient might have urolithiasis, secondary chronic pyelonephritis, chronic prostatitis, cyst of the prostate.
According to the latest urine tests ... there is an exacerbation probably related to the discharge of the concretion.
Recommended: antibacterial therapy; uroseptics; control urine tests; ultrasound scanning of kidneys, urinary bladder, prostate; consultation of a uro-oncologist. Recommended treatment: notroxolin..., furadonin...
As regards the refusal of a physical examination [the patient] wrote a statement in the presence of [the prison officials].
139. 16 September 2005, consultation of Dr K., a uro-oncologist of the oncological dispensary in Izhevsk:
“...Fibrocystoscopy: The urinary bladder stretches satisfactorily. On the left wall there is a postoperative scar – no special characteristics. Mucosae around the neck of urinary bladder is moderately hyperaemic. The orifices of the ureters have no special characteristics. No areas of tumour growth can be determined visually. The urethra has no special characteristics. Conclusion: no indication of recurrent tumour of the urinary bladder. Sign of chronic cystitis outside exacerbation (lavage fluids are sent for oncocytological research).
Results of the oncocytological research: quantity 200 ml, yellow colour, neo elements (neoplasm) not found, insignificant quantity of epithelial cells with no special characteristics. Recommended: dispensary supervision with control cystoscopy once a year.
Ultrasound scan... conclusion: no sonographic signs of a tumour of the urinary bladder. Echo-producing dredge of the urinary bladder. Ultrasonic signs of the chronic prostatitis. Cyst of the prostate...
Conclusion: Cancer of the urinary bladder. Condition after the combined therapy. No signs of progressing oncological disease. At present [the patient] does not require treatment in a specialised institution.”
140. 30 December 2005, written opinion of Dr S., Deputy Chief Medical Officer of the Institute of Urology approved by Dr L., the Director of the Institute of Urology of the Ministry of Health, obtained upon the request of the applicant's representative:
“Further to your request of 30 December 2005 I have studied the following documents:
1. A copy of a protocol of the fibrocystoscopy of 16 September 2005.
2. A copy of the research of the lavage fluids ... of 16 September 2005.
3. A copy of the protocol of the ultrasound scan of the urinary bladder and prostate of 16 September 2005.
4. A copy of the opinion of [the uro-oncologist of the oncological dispensary in Izhevsk] of 16 September 2005.
5. A copy of the certificate ... of 30 September 2005 signed by [the uro-oncologist of the oncological dispensary in Izhevsk].
Having regard to the information contained in your request and on the basis of the submitted documents I can inform you of the following:
1. It is not possible to make a judgment concerning the possibility of transformation of the internal contour of the urinary bladder and changes to the thickness of the walls of the urinary bladder only on the basis of the ultrasound scan since there is no data on the ultrasound scan dynamics. The protocol does not contain information about the size of the pelvis of the left kidney. The most objective information about the condition of the wall of the urinary bladder and surrounding tissues may only be obtained from computer or magnetoresonance tomography.
2. The submitted results of the cystoscopy and the cytological research ... may not constitute a sufficient basis to exclude recurrent cancer of the urinary bladder or continued tumour growth.
3. Regular outpatient examination of patients with musculo-invasive cancer (stage T2-T4) includes mandatory performance of the following examinations: cystoscopy and biopsy at least once a year, computer tomography of the abdominal cavity and the small pelvis, ultrasound scanning of the kidneys, urinary bladder, prostate and liver, and radiography of the thorax.”
141. Article 49 § 2 of the Code provides that an advocate is admitted to participate in the proceedings as defence counsel. At the same time a court may admit the accused's close relative or other person indicated by him to act as his counsel along with the advocate.
142. Article 220 provides that a bill of indictment should contain information about, inter alia, the place and time of the offence, the manner in which it was committed, the motives, the aims and consequences of the offence and other relevant circumstances. It should also list prosecution and defence evidence.
143. Article 234 concerns preliminary hearings. Paragraph 5 provides that when a party moves to exclude certain evidence and the other party has no objections, the judge should grant the motion.
144. Under Article 118 of the Code, detainees held in a disciplinary cell should be allowed a one-hour daily walk outside the cell.
145. Under Article 17 of the Federal Law on Licensing of Certain Types of Activity, medical activity is licensed. Under the Regulations on Licensing of Medical Activity adopted by Government Decree no. 499 of 4 July 2002, a licence is required for each type of medical activity listed in the nomenclature. The nomenclature of medical work and services was adopted by the Ministry of Health Decree no. 238 of 26 July 2002. According to the nomenclature, urology and oncology are separate types of medical activity requiring a licence.
146. Article 61 of the Fundamentals of Legislation on the Protection of Citizens' Health no. 5487-1 of 22 July 1993, provides that information about a person's state of health and other information obtained as a result of his examination and treatment constitute medical secrets. Such information may be disclosed without the person's consent, inter alia, upon a request of the investigating authorities, a prosecutor or a court in connection with an investigation or judicial proceedings.
147. The relevant extracts from the General Reports by the European Committee for the prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“43. ...The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling. ...
46. Overcrowding is an issue of direct relevance to the CPT's mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.”
“a. Access to a doctor
...35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...
37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee's mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...”
“189. ...cell occupancy rates [in the investigative isolators] should be reduced, with the objective of offering at least 4 m² of living space per prisoner.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-87354
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF CHEMBER v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1982 and lives in Shakhty in the Rostov Region.
7. On 19 and 23 December 2000 the applicant was examined by two medical commissions and found to be in good health and fully fit for military service.
8. On the basis of the medical reports, the decision was made to call the applicant up for two years of mandatory military service in the Ministry of Internal Affairs forces.
9. The applicant was assigned to serve in military unit no. 5464 in Kislovodsk. In the unit he was allegedly harassed and ill-treated by senior conscripts and the unit sergeant on account of his Moldovan ethnic origin.
10. According to the applicant, in late January 2001 he attended a drivers’ training course. In the car park the commander told the applicant and three other conscripts to take the back axle of a ZIL lorry to another place. The applicant injured his spine and later on the same day he was also severely beaten and kicked by senior conscripts for failing to bring the axle close enough to the lorry. On the course the following morning he asked for medical assistance, but the commander refused his request. The applicant did not complain about these events to a prosecutor or any other official.
11. On 8 February 2001 the applicant was transferred to military unit no. 6794 in Astrakhan (later renumbered as no. 3025). According to the applicant, a medical officer noted his complaint of pains in his knees, but did not prescribe any treatment. It subsequently transpired during an inquiry that the applicant had complained about recurrent pains in his knees to his superior, Lieutenant D., who had exempted him from physical exercise (see paragraph 20 below).
12. In March 2001 Junior Sergeant Ch., the platoon commander, made the applicant and other servicemen do 350 knee bends outdoors as punishment for their failure to scrub the barracks spotless. Lieutenant D. was present but did not contradict the order. After several hundred knee bends, the applicant collapsed and other soldiers took him by the armpits and dragged him into the medical unit.
13. Between 6 and 26 March 2001 the applicant received emergency treatment in military unit no. 52218, and then in unit no. 3057 until 17 April 2001. He could not stand on his own and crawled out of bed propping himself up on the bedposts.
14. Between 17 April and 23 May 2001 the applicant was treated in the neurosurgery clinic of the Rostov-on-Don State Medical University. When he was discharged he was diagnosed with a “closed injury of the spine combined with an impairment of blood circulation at the level of the lower thoracic part of the spinal cord” and found unfit for work.
15. On 5 June 2001 the medical commission of military unit no. 3057 examined the applicant at the request of the commander of unit no. 6794 and diagnosed him with “consequences of an acute interruption to the blood flow to the spinal cord in the form of cicatrical-commissural epiduritis, arachnoiditis with a disturbance of the flow of cerebrospinal fluid and minor impairment of sensitivity in the lower extremities”. It also established that the condition had been “acquired during military service” and discharged the applicant as “partially fit for military service”.
16. On 28 June 2001 the applicant was discharged on account of his disability.
17. On an unspecified date the applicant’s mother complained to the military prosecutor of Rostov-on-Don of an abuse of power committed by Lieutenant D. and Junior Sergeant Ch.
18. On 10 May 2001 her complaint was forwarded to the military prosecutor of the Astrakhan garrison who in turn sent it on 21 May 2001 to the military prosecutor of the Caspian Fleet.
19. In their observations on the admissibility and merits of the case, the Government enclosed copies of statements by Lieutenant D. and Junior Sergeant Ch., as well as by Privates A.L., A.Sh. and V.P., who had started their service on 1 February 2001.
20. On 22 May 2001 Lieutenant D. stated as follows:
“In February 2001 Private Chember was transferred to our unit ... He was assigned to serve in my sub-unit, that is, in the first platoon of the seventh company. Since his transfer into our unit he has started complaining about recurrent pains in his knees. On that ground I exempted him from physical exercise; he stayed within the premises of the company and did not go anywhere. Some two weeks later Private Chember was sent for treatment to the sanitary unit because of acute pains in his knees; I cannot tell why it happened. Some time later he was transferred to a hospital in another town ... I have never applied any unlawful methods to Private Chember.”
21. On the same date Junior Sergeant Ch. testified as follows:
“I have known Private Chember since February 2001; he served in the seventh company of military unit 6794, in which I acted as the section commander. I point out that Chember often went to the medical unit. I do not know what he complained about. Every time I acted as the officer-on-duty in the platoon, Chember was usually in for treatment in the medical unit. I think he complained about pains in his legs. I did not know Chember very well because he was not from my platoon ...”
22. In their similarly worded statements, Privates A.L., A.Sh. and V.P. indicated that the applicant had complained about his “weak legs” since his arrival at military unit no. 6794, that for that reason he had been exempted from physical exercise and squad drill, and that he had often been treated in the medical unit for pains in his legs.
23. On 31 May 2001 Captain S., a senior investigator with the military prosecutor’s office of the Caspian Fleet, issued a decision not to initiate criminal proceedings. The reasoning read as follows, in full:
“The inquiry established that the fact of abuse of power by Lieutenant D. and Junior Sergeant Ch. had not actually taken place in reality.
It follows from the statement by Lieutenant D. that Private Chember serves under his command. Neither he nor Junior Sergeant Ch. ever abused their power over or used violence against Private Chember or any other military personnel of unit 6794.
It follows from the statement by Junior Sergeant Ch. that neither he nor Lieutenant D. ever abused their power over or used violence against Private Chember or any other military personnel of unit 6794.
All the servicemen of the seventh company of military unit 6794 – where Chember serves – have been questioned. They stated that no one had harassed Private Chember, and that neither Junior Sergeant Ch. nor Lieutenant D. had ever abused their power over him or any other military personnel of unit 6794.
Thus, the inquiry has established that Junior Sergeant Ch. and Lieutenant D. did not abuse their power over Private Chember or any other military personnel of unit 6794, and accordingly no criminal case may be instituted against them because there was no criminal offence.”
The decision indicated that an appeal against it lay to a higher prosecutor or to a court.
24. On 30 September 2002 the applicant’s mother complained to a higher prosecutor. She wrote, in particular, that her son had never had pains in his knees. She also pointed out that the investigator had not heard the soldiers P., S., C. and Sh., who had been eyewitnesses to the ill-treatment.
25. On 8 October 2002 Colonel M., the military prosecutor of the Caspian Fleet, replied that her complaint could not be examined because the materials of the inquiry had been forwarded, on 8 August 2002, to the Shakhty Town Court. He indicated that the complaint would be considered upon the return of the materials. The applicant did not receive any further information concerning that complaint.
26. On 17 March 2002 the applicant lodged a civil action against military units nos. 3025 and 5464 and the North Caucasian Command of the Ministry of Internal Affairs forces for compensation for non-pecuniary damage. He submitted that the injury he had received during his military service caused him physical pain, restricted his day-to-day activities, impaired his career and life plans, and brought feelings of frustration and injustice.
27. The applicant and his counsel asked the court to appoint a forensic medical examination with a view to determining the origin and nature of his injuries.
28. On 9 April 2003 the Shakhty Town Court of the Rostov-on-Don Region refused their request by an interim decision:
“Having heard the parties and studied the case materials, the court finds that the request is unsubstantiated ... because the period when the injury was received is stated in the medical record and that is the period of military service. The establishment of the origin and nature of existing diseases will not help to find those responsible or [to elucidate] the circumstances. The case file contains the decision not to initiate criminal proceedings against Sergeant Ch. and Lieutenant D., dated 31 May 2001.”
29. On the same day the Town Court delivered judgment, by which the applicant’s claim was dismissed. The Town Court examined medical evidence produced by the applicant and interviewed his fellow serviceman P. who confirmed that Junior Sergeant Ch. had forced the applicant and other conscripts to do 350 or more knee bends and that the applicant had collapsed during that exercise. It found as follows:
“Assessing the collected evidence as a whole, the court finds that the claim is unsubstantiated ... because the [applicant] did not show that the damage to his health had been caused by servicemen of the [Ministry of Internal Affairs]; according to his own statements, he fell ill because of excessive (in his opinion) physical activity (physical exercises, carrying the axle of a ZIL lorry in his hands) and because of ill-treatment by senior conscripts and by Sergeant Ch. However, the case materials contain the decision not to initiate criminal proceedings against Sergeant Ch. and Lieutenant D., dated 31 May 2001 ... because there was no indication of a criminal offence. Under the current laws, one of the mandatory conditions for tort liability for non-pecuniary damage is the fault of the tortfeasor ...”
30. The applicant appealed against the interim decision and judgment of 9 April 2003.
31. On 25 June 2003 the Rostov Regional Court dismissed his appeal:
“The [first-instance] court dismissed the claim because it established that the defendants’ liability for causing damage to the [applicant’s] health had not been proven. The [regional] court finds this conclusion correct. On 31 May 2001 an investigator ... refused to initiate criminal proceedings ... The causal link between the defendants’ actions and the [applicant’s] disability is not established. Experts may not establish the causal link between the defendants’ actions and consequences thereof, only a court is competent to do so.”
32. Following the applicant’s discharge, on 29 August 2001 he was diagnosed with a second-category disability and became entitled to a civilian disability pension.
33. The applicant unsuccessfully attempted to claim a military pension. On 21 May, 11 June, 29 July and 25 December 2002, his mother received negative responses from the Central Military Medical Commission of the Ministry of Internal Affairs. The claims were rejected because he had not produced documents showing that he had injured his spine during military service. According to these replies, the report of 5 June 2001 only established that the condition had been diagnosed during his military service and not that it had been acquired during his military service.
34. In their observations on the admissibility and merits of the case, the Government submitted a report produced by two medical experts (one military and one civilian) on 10 March 2005. The report had been commissioned by the assistant to the Chief Military Prosecutor on 9 March 2005 with a view to determining the nature of the applicant’s disability, its causes and origin. The experts made their findings on the basis of the criminal case file and the applicant’s medical records of 2001. In particular, they found as follows:
“It transpires from the available medical documents that Mr Chember’s conditions were chronic. Having regard to Mr Chember’s young age, his medical history (pains in the legs from the age of ten), and chronic development of the condition, the osteochondrosis of the lumbar spine was contracted in childhood as a result of a metabolic disturbance (dystrophy) ... The existing inflammatory processes in the spine (epiduritis and arachnoiditis) could have appeared ... as a complication of an infectious disease that Mr Chember may have contracted in childhood, such as influenza, tonsillitis, pharyngitis, and so on. These spinal conditions were also of a chronic and continued nature ... which is confirmed by the presence of cicatrical-commissural epiduritis and commissural arachnoiditis, and complaints of pains in the legs from the beginning of military service and before conscription.
No objective confirmation that these conditions had been caused by trauma could be found in the available medical records or case-file materials.
Mr Chember’s diseases were chronic and continuing and could have been caused by hereditary factors (according to the materials, his uncle suffered from a similar condition) ...”
35. The general provisions on liability for damage read as follows:
“1. Damage inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the damage ...
2. The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his own ...”
36. Complaints about the acts or decisions of a prosecutor may be lodged with a higher prosecutor (Article 220). Within three days of receipt of a complaint, the prosecutor must examine it and give a response to the complainant (Article 219).
37. If criminal proceedings are discontinued at the stage of the investigation, a victim or a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that (a) the alleged offence had not been committed or (b) the suspect had not been involved in its commission (Article 213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)).
VIOLATED_ARTICLES: 13
3