ITEMID: 001-83150
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KNYAZEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (locus standi, strike-out request, abuse of the right of application, non-exhaustion of domestic remedies);Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - finding of a violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Loukis Loucaides
TEXT: 7. The applicant was born in 1977 and lives in Krymsk, Krasnodar Region.
8. According to the applicant, from 24 March 2005 he served a sentence in Lgov correctional colony OX-30/3, Kursk Region (учреждение ОХ-30/3). On his arrival at the colony, he was called to see the head of the colony, B., who invited him to become a member of a so-called “секция порядка” (literally, an “order section”, an informal category of prisoners who cooperated with the prison administration) and to conclude a written agreement on cooperation with the colony’s officials. The applicant refused. As a result of his refusal he was beaten by D., the deputy head of the correctional colony, K., a colony official, and R., head of the security unit. The beating was continued by other colony officials, who stripped him naked and beat him with rubber truncheons. The applicant was then placed for ten days in a disciplinary cell, where the beating continued. On a number of occasions he was beaten in the presence of an official from the Kursk Prosecutor’s Office. The applicant complained about the events to the Lgov Prosecutor’s Office.
9. On 10 July 2005 the institution of criminal proceedings was refused on the ground that “special equipment” had been used against the applicant in accordance with the law.
10. The applicant claimed to have been systematically beaten for writing complaints against the head of the correctional colony and the colony’s administration to various authorities, and that he had then been forced to eat the complaints he had written. In particular, on 23 May 2005 he was beaten with rubber truncheons and thrown to the ground, and an Alsatian dog was set on him. The dog mostly bit his hands, which he was using to cover his face. According to the applicant, the colony’s doctor noted the bite marks. He alleged that he still had scars on his hands. The head of the correctional colony then threatened the applicant that if he wrote more complaints he would have to spend the night in a cell with the dog.
11. During the night of 26-27 June 2005 the applicant, together with two other inmates, M. and G., was taken to the office of prison official K., who asked him to report on the situation in the correctional colony. The applicant responded that he was not in control of the situation. As a result of this reply he was beaten and escorted to a cell where, it appeared, other inmates had cut their veins and stomachs. As a protest against the actions of the colony’s administration, the applicant also cut the veins on his right arm and, having found an electrode in premises where repair work was being carried out, thrust it in his right side in an attempt to reach the lungs. According to the applicant, after he had inflicted these penetrating wounds on 27 June 2005, he was questioned for the entire day and it was not until the evening that a physician pulled the electrode from his side; however, the glass cap remained in his stomach. The surgeon examined the applicant later and noted that a foreign body was still in his stomach, but did not remove it.
12. On the following day the applicant and other inmates submitted to the Prosecutor of the Kursk Region applications for the institution of criminal proceedings against B., the head of the correctional colony, colony officials D. and R. and others, on account of numerous instances of ill-treatment of prisoners. Criminal proceedings in case file no. 1519 were instituted against two prison officials, D. and R., on account of the alleged beating of inmate Sh. However, no criminal proceedings were instituted into the applicant’s allegations as set out in his complaint to the Prosecutor of the Kursk Region, and he was not granted the status of a victim in the criminal proceedings.
13. According to the Government, the applicant was held in Lgov correctional colony OX-30/3 from 23 March to 29 June 2005. During this period the applicant repeatedly broke prison rules and on a number of occasions was seen by a psychologist, who diagnosed him as suffering from an emotionally unstable personality disorder.
14. On 23 March 2005, in the course of a routine search, the applicant was found to have forbidden items, namely three metal dowels and two razor blades. During the search and seizure of the items the applicant resisted the colony’s officials. In particular, he pushed them, grabbed their clothes and insulted some of them. One of the officials warned him that special equipment could be used against him if he continued behaving in such a way. Since the applicant refused to submit, two of the officials used a rubber truncheon against him. After the incident the applicant was examined by a doctor who found abrasions on his back and soft body tissues.
15. On the same day the deputy prosecutor of the Kursk Region was informed of the incident and a report on the use of the special equipment was drafted. The report stated that the rubber truncheon had been used for three seconds against soft body tissues. Later that day the deputy prosecutor of the Kursk Region personally met the applicant, who told him that he had no complaints against the administration of the correctional colony OX-30/3 and that the application of the special equipment had been justified.
16. On 1 April 2005 the deputy prosecutor of the Kursk Region again met the applicant, this time in relation to the injuries he had self-inflicted on 16 March 2005 while held in a remand prison (SIZO) in Kursk, prior to his transfer to correctional colony OX-30/3. In a written statement the applicant explained that he had thrust an electrode into his left side in order to attract attention, as he had wanted to be moved to a correctional facility closer to his home. He also stated that he had no complaints against the administration of the remand prison.
17. On 8 July 2005 the Lgov Interdistrict Prosecutor’s Office received the applicant’s complaint concerning the alleged beating following his arrival at correctional colony OX-30/3.
18. In explanations given on 9 July 2005, colony officials B., R., D. and Ryz. and the deputy prosecutor of the Kursk Region stated that physical force had never been used against the applicant and he had never been threatened with its application.
19. Following an inspection, on 10 July 2005 the prosecutor refused to institute criminal proceedings into the applicant’s allegations of ill-treatment. He also found that special measures were lawfully applied against the applicant on 23 March 2005. An appeal against that decision lay with a higher prosecutor or a court.
20. The Government submitted that the applicant had not applied for medical aid in connection with the alleged ill-treatment on 23 May 2005. The authorities became aware of these allegations only after the application had been communicated by the Court.
21. On an unspecified date the applicant sent a complaint to the Prosecutor’s Office of the Kursk Region. The complaint was received by the Prosecutor’s Office on 4 July 2005. The applicant alleged that since his arrival at correctional colony OX-30/3 he had been regularly beaten by colony officials. He sought to institute criminal proceedings against them.
22. On 14 July 2005, following an inspection into the applicant’s allegations, the Prosecutor’s Office of the Seymskiy District of Kursk refused to institute criminal proceedings.
23. On 20 August 2005 the Prosecutor of Kursk, who was responsible for supervising penitentiary facilities, quashed the decision and remitted the case for additional inspection.
24. In the course of the initial and additional inspections the officials who were alleged to have beaten the applicant were questioned by the Prosecutor’s Office. In particular, the head of the colony, B., in his statements on 13 July and 3 September 2005 submitted that the inmates, including the applicant, had not been beaten or subjected to degrading treatment and that he had never ordered the use of physical force against them. He regarded the inmates’ complaints as slanderous and aimed at destabilising the situation in the colony. Similar submissions were made by D. on 13 July and 5 September 2002, by R. on 13 July 2005 and by Z. on 2 September 2005.
25. On 5 September 2005 the Prosecutor’s Office of the Seymskiy District of Kursk again refused to institute criminal proceedings. According to the findings of the inspection, the officials of colony OX-30/3 had not abused their official authority and did not use physical force against the applicant. The use of a rubber truncheon against him on 23 March 2005 had been justified since he had resisted the officials who had conducted the routine search. An appeal against the decision lay with a higher prosecutor or a court.
26. During the night of 26-27 June 2005 the applicant self-inflicted a subcutaneous slash wound to his right forearm and subcutaneous slash wounds to the front abdominal wall and inserted a foreign body into the soft tissue of the front abdominal wall. He had no penetrating wounds. At 10.30 p.m. on 26 June 2005 the applicant was examined by a surgeon of the Lgov Central District Hospital, who removed the foreign body from the applicant’s abdominal wall and dressed the wounds. The applicant also underwent an X-ray. No foreign bodies, such as a glass cap, remained in the applicant’s body after he had been provided with medical aid.
27. On 27 June 2005 numerous complaints from inmates of correctional colony OX-30/3 were submitted to the Prosecutor’s Office of the Kursk Region. The inmates, including the applicant, alleged that they had been systematically beaten by the colony’s officials. On the same date criminal investigation no. 1519 was opened into the allegations of ill-treatment. The applicant was not granted the status of a victim in the criminal proceedings.
28. On 19 August 2005, following an inspection, criminal investigation no. 1519 was discontinued in the part related to the complaints lodged by the applicant and two other inmates, M. and G. In the course of the inspection the Prosecutor’s Office examined the relevant medical reports and questioned several officials of the colony, who submitted that no physical force had been applied to the applicant on 26-27 June 2005. The Prosecutor’s Office of the Kursk Region found that the applicant’s injuries had been self-inflicted and his allegations of ill-treatment were unsubstantiated. An appeal against the decision lay with a higher prosecutor or a court.
29. The applicant submitted that on either 29 or 30 June 2005 he had been escorted to Lgov remand prison IZ-46/2 (учреждение ИЗ-46/2 Льгова) under the guise of transportation to the medical unit. There he was questioned as a witness in relation to the allegedly unlawful actions of the administration of prison OX-30/3.
30. In remand prison IZ-46/2 officials from the Kursk Region Directorate of the Federal Service for the Execution of Sentences, including the head of the regional department, P., tried to force the applicant to repudiate his statements concerning the allegedly unlawful actions of the administration of correctional colony OX-30/3. They had threatened to institute criminal proceedings against him on charges of disorganising the work of prison institutions. The applicant lodged a complaint against P. Inmate Sh. was questioned as a witness. Although Sh. confirmed that P. had put pressure on him, trying to force him to repudiate his statements, the Lgov Interdistrict Prosecutor’s Office refused on 18 July 2005 to institute criminal proceedings against P.
31. According to the applicant, he was not provided with adequate medical assistance in remand prison IZ-46/2. Officials from the Prosecutor’s Office showed him entries in his medical file stating that he had been examined by a doctor; however, this was not true. Furthermore, a doctor from the regional hospital at the Federal Service for the Execution of Sentences forced him to refuse operative treatment in writing. The doctor explained that the Federal Service did not have sufficient funds for the operation and the applicant did not have enough money to pay for it either.
32. Between 23 and 24 July 2005 the applicant was allegedly taken out of his cell and placed in a car. He was not informed of either the destination or the purpose of the transportation. In the car he was threatened and insulted by the officials and, unable to bear it any longer, he cut the veins on his right arm. He was then returned to the remand prison. The applicant was not examined by a doctor until lunchtime of the following day, when his wounds were dressed and he was given an analgesic. On 25 July 2005 several prison officials tortured him, forcing him to refuse Ms Liptser’s assistance and to withdraw his complaint to the Court and the statements given in relation to criminal case no. 1519. In particular, they painfully twisted his arms and burnt him with an immersion heater.
33. According to the Government, the applicant’s transfer to remand prison IZ-46/2 was ordered on 28 June 2005 and on 29 June 2005 he was escorted there. He remained in the remand prison until 26 July 2005.
34. On 29 June 2005 the applicant was examined by a medical attendant who noted the subcutaneous wounds inflicted by the applicant himself in colony OX-30/3. The medical attendant prescribed a dressing with antiseptic ointment. The applicant also stated that he had a foreign body in his stomach. An X-ray conducted on 30 June 2005 showed no foreign objects in the applicant’s body. The applicant’s wounds were dressed daily between 30 June and 14 July 2005.
35. On 11 July 2005 the applicant committed another act of self-mutilation. At 8.55 p.m. he was examined by a medical attendant who found subcutaneous wounds to the left elbow and the navel area. The wounds were dressed with an antiseptic bandage. The next day the applicant was again seen by the medical assistant, who dressed the wounds with a bandage and antiseptic ointment.
36. On 16 July 2005 the applicant’s wounds were dressed again. Because of the intumescence on his right forearm the applicant was given antibiotics. On the same date the applicant was examined by the head of the neurosurgical department of the regional hospital at the Federal Service for the Execution of Sentences. He stated that the earlier self-inflicted slash wounds to the applicant’s forearms and the front abdominal wall were infected. The applicant was offered surgical treatment which he refused on the same day in two written statements. The refusal was also reflected in his medical file. The X-ray showed no foreign objects in the applicant’s body.
37. In the night of 23-24 July 2005, on the way to the railway station for transportation to another penitentiary facility, the applicant wounded himself in the area of the right elbow joint. Because of the wound the applicant was not allowed to board the train and was returned to remand prison IZ-46/2. There he stated that he had self-inflicted the injury. The applicant had damaged the epidermis but the veins in the area of the elbow joint were not affected. His wound was dressed.
38. On 25 July 2005 the applicant was examined by a surgeon from the Lgov Central District Hospital, who found a subcutaneous wound in the area of the right elbow joint that was not bleeding. The applicant refused to have the wound stitched.
39. After the applicant had been transferred to remand prison IZ-32/1, Bryansk Region, he complained to the Lgov Interdistrict Prosecutor’s Office that he had been tortured with an immersion heater while held in remand prison IZ-46/2.
40. On 1 September 2005 the Lgov Interdistrict Prosecutor’s Office refused to institute criminal proceedings. The decision was quashed by a higher prosecutor and the case remitted for additional inspection.
41. On 15 September 2005 the Lgov Interdistrict Prosecutor’s Office again refused to institute criminal proceedings. The Prosecutor’s Office questioned officers from remand prison IZ-46/2 and inmates who had been held there at the same time as the applicant. They submitted that they had not seen the applicant being tortured and had not heard of him being ill-treated. The decision noted that on 25 July 2005 the applicant had not applied for medical aid. However, on the next day he had been examined by a doctor in remand prison IZ-46/2, prior to his transportation to remand prison IZ-32/1. No traces of burns had been found in the course of the examination. The Prosecutor’s Office concluded that the applicant had self-inflicted the injuries. An appeal against the decision lay with a higher prosecutor or a court.
42. On 26 July 2005 the applicant was escorted to remand prison IZ-32/1, Bryansk Region (учреждение ИЗ-32/1 по Брянской области).
43. On arrival the applicant was examined by a medical attendant, who noted a slash wound in the area of the right elbow joint, scars in the abdominal area and traces of burns on his body.
44. On 11 August 2005 Ms Liptser visited the applicant in the remand prison. During her visit the applicant made the following statement:
“In remand prison IZ-32/1 I am also subjected to pressure by officials of the Federal Service for the Execution of Sentences from the Kursk and Bryansk regions and their colleague from Moscow [...] They skilfully beat me without leaving any traces: they beat me on the head with books, on the face with their open palms... They are about to become residents here – they have been dealing with me for a week now from dusk till dawn. They say that I am the only one remaining. They let me make phone calls to remand prisons in Orel and Kursk, where other convicts tell me to withdraw [my complaints] and that they have already withdrawn theirs. [The officials] brought letters from others saying that I should withdraw [the complaints], refuse assistance from counsel, that “this must be done”. Then they began to beat me again and to burn me with a boiler forcing me to write [the withdrawal letters]... I read [Sh.’s] withdrawal of his application [before the Court] and his rejection of your services ... and a similar withdrawal written by M.”
“I was forced [under torture] to write dictated statements addressed to Mr Laptev, representative of the Russian Government before the Court, Mr Lukin, Russian Ombudsman, the Prosecutor of the Kursk Region and the European Court saying that I withdrew everything. These statements are dated 8 August 2005 and one [was written] on the same day but is dated 5 August 2005.”
“The statements dated 5 and 8 August 2005 should be considered invalid as they are nothing but a result of torture. Only statements written in the presence of my lawyers should be examined....”
45. The applicant also told his counsel that he had tried to send letters to his lawyers and to submit complaints against the officials who had ill-treated him. However, his complaints had either been returned to him or he had been forced to withdraw them. On 12 August 2005 the applicant’s counsel informed the Prosecutor’s Office of Bryansk Region and the General Prosecutor’s Office of the alleged ill-treatment, and on 15 August 2005 she submitted the same complaints to the Prosecutor’s Office of Kursk Region, asking that criminal proceedings be instituted on account of the use of torture against the applicant. On 12 August 2005 the applicant’s counsel also informed the Court that the applicant had been allegedly forced to write statements on withdrawal of his application to the Court.
46. On 15 August 2005 the applicant was examined by a doctor who noted brown streaks on his neck and back. The applicant refused to provide any explanation as to the origin of the injuries to the officials of remand prison IZ-32/1. The Government submitted that the applicant had committed another act of self-mutilation.
47. In a letter to his counsel dated 16 August 2005 the applicant reiterated his previous statements concerning the events in correctional colony OX-30/3 and the ill-treatment in remand prison IZ-32/1. He also indicated the names of other prisoners who could confirm his statements.
48. On 17 August 2005 the applicant complained about pain in the right side of his stomach. He was examined by a doctor from remand prison IZ-32/1 who suspected that there was a foreign body in the tissues of the front abdominal area. However, the applicant refused to permit palpation of his stomach.
49. In a letter of 18 August 2005 the applicant informed his counsel that the administration of remand prison IZ-32/1 was aware of the contents of the written statements he had addressed to the Deputy Prosecutor of the Bryansk Region. Furthermore, he alleged that he had been placed in a disciplinary cell for making statements to the Deputy Prosecutor.
50. On 22 August 2005 the applicant was seen by a surgeon. However, when asked to lie down for an examination, he refused.
51. On 24 August 2005 the applicant was examined by a doctor who noted a foreign body in the front abdominal wall. The applicant refused to permit palpation of his stomach. He reiterated the refusal at the examination on 26 August 2005. A fluorography conducted on the same date showed a nail measuring six centimetres in the soft tissues of the abdominal area. On 27 August 2005 the applicant agreed to have his stomach palpated. During the examination he stated that he could remove the nail himself; however, he thrust it into a different place. Later that day the applicant was transported to a hospital of the Federal Service for the Execution of Sentences. On arrival he refused any medical examination. On 29 August 2005 the applicant himself removed the nail from the abdominal wall. The doctors dressed his wound with an aseptic bandage.
52. On 31 August 2005 a doctor was called to the applicant’s cell because he had cut his right forearm in another act of self-mutilation. The wounds were dressed with an aseptic bandage.
53. Between 14 and 26 September 2005 the applicant was placed in a hospital at correctional facility OZh-118/5, Voronezh, for removal of another foreign body that he had thrust into the abdominal area and for subsequent treatment of the wound.
54. On 28 September 2005 the applicant arrived at remand prison IZ-46/1, Kursk Region.
55. On 21 October 2005 the Prosecutor’s Office of the Sovetskiy District of Bryansk refused to institute criminal proceedings into the applicant’s allegations of ill-treatment in remand prison IZ-32/1. The decision was based on the following findings.
56. The applicant, who was questioned in the course of the inspection conducted by the Prosecutor’s Office, submitted that during his placement in remand prison IZ-32/1 State agents tortured him with an immersion heater, beat him and forcibly injected drugs into his veins, seeking to force him to withdraw his complaints concerning Lgov correctional colony OX-30/3 and the application to the Court. When he could no longer bear the torture he submitted to the pressure and wrote statements to the Court, the ombudsman, the prosecutor of the Kursk Region and the representative of Russia at the Court, asking that the proceedings following his previous applications be discontinued.
57. The applicant’s cellmate, B., submitted that the applicant had often been taken out of the cell by remand prison officers. He had never complained about ill-treatment on returning to the cell. B. had never seen the applicant with any injuries.
58. Remand prison officers and officials of the Federal Service for the Execution of Sentences submitted that on a number of occasions they “had had conversations” with the applicant because he had been under preventive monitoring as a person inclined to absconding, attacking prison officers, taking hostages, self-mutilation and suicide. However, they had never applied either psychological or physical pressure to the applicant and he had never made any complaints in this regard during the conversations.
59. The inventory of personal items which the applicant had had with him in the remand prison included an immersion heater.
60. The medical attendant who examined the applicant on 26 July 2005 submitted that the applicant had explained that the injuries found had been caused by a dog and by officials from the Federal Service for the Execution of Sentences, who had burned him with an immersion heater. He also noted that the burn marks had been located in places where the applicant could have inflicted them himself.
61. The doctor who examined the applicant on 15 August 2005 submitted that he could not be sure that the injuries found had been burn marks. Furthermore, the applicant had refused to provide any explanation as to their origin.
62. The head of the Bryansk Forensic Bureau submitted that on the basis of the available medical documents and the applicant’s medical file it was not possible to come to any conclusions with regard to the nature of the applicant’s injuries, if any.
63. The Prosecutor’s Office concluded that the applicant’s allegations of ill-treatment were unsubstantiated and the injuries found had been caused by the applicant himself. An appeal against the decision lay with a higher prosecutor or a court.
64. On 11 November 2005 the Government sent the Court a copy of a statement dated 5 August 2005, addressed to the Representative of the Russian Federation at the Court, Mr Laptev, and written and signed by the applicant. The statement read as follows:
“I ask you to examine and accept the statement written in my own hand that I, Knyazev Vitaliy Anatolyevich, ask you, Mr P.A. Laptev, to recall from the European Court of Human Rights the application that I lodged through my counsel E.L. Liptser. I do not want it [the application] to be examined in the present proceedings.”
65. On 11 February 2006 the applicant was transferred to correctional colony no. 11, Khabarovsk Region.
66. Article 125 of the Code of Criminal Procedure of 2001 provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.
67. Article 91 § 2 of the Penal Code, as amended on 8 December 2003, provides that all incoming and outgoing correspondence of detainees is subject to censorship by the administration of the correctional facility. Correspondence with courts, prosecutors, penitentiary officials, the Ombudsman, the public monitoring board and the Court is not subject to censorship. Correspondence of convicted persons with their counsel is not subject to censorship unless the administration of the correctional facility has reliable information to the effect that it is aimed at initiating, planning or organising a crime or involving other people in the commission of a crime. In this case the correspondence is subject to control on the basis of a reasoned decision by the head of the correctional facility or his deputy.
68. Rule 12 of the Internal Regulations of Correctional Facilities adopted by Decree no. 224 of the Ministry of Justice of 30 July 2001 and amended on 8 July 2002, 23 March 2004 and 3 December 2004, provided that letters from detainees should be placed in mail boxes in the facilities or handed over to representatives of the administration in unsealed envelopes. The regulations were repealed by Decree no. 205 of the Ministry of Justice of 3 November 2005, which adopted new regulations. Rule 50 of the new regulations provides that letters from detainees should be placed in mail boxes in the facilities or handed over to representatives of the administration in unsealed envelopes, except for correspondence which is not subject to censorship (that is, with the organisations and persons listed in paragraph 67).
VIOLATED_ARTICLES: 34


ITEMID: 001-70528
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF PALKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;No violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1947 and lives in Warsaw.
7. On 15 April 1992 a certain company U submitted a bill of exchange in the amount of PLN 50,000 signed by the applicant and requested the Warsaw District Court (Sąd Rejonowy) to issue an order for payment against him and other partners in the civil association K (spółka cywilna).
8. On 9 June 1992 the court made the order for payment, allowing the plaintiff’s application. The applicant lodged an appeal against that order.
9. Subsequently, the applicant applied for exemption from the court fees. On 4 July 1996 the Warsaw Court of Appeal (Sąd Apelacyjny) finally allowed his application.
10. The Warsaw Regional Court scheduled hearings for 22 May, 18 September, 23 October and 24 November 1997. However, all of them were adjourned. Between 8 December 1997 and 18 May 1998 five hearings were adjourned.
11. On 18 June 1998 the Warsaw Regional Court gave judgment in which it upheld the Warsaw District Court’s order of 9 June 1992. The applicant lodged an appeal against that judgment.
12. On 12 March 1999 the Warsaw Court of Appeal dismissed the applicant’s appeal.
13. Subsequently, the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).
14. On 13 November 2001 the Supreme Court dismissed the cassation appeal.
15. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.
In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”
16. Article 418 of the Civil Code, as applicable until 18 December 2001 (see “C. Constitutional Court’s judgment of 4 December 2001 below), provided for the following exception in cases where damage resulted from the issue of a decision or order:
“1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person.
2. The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of the [statutory] exception to prosecution or disciplinary actions.”
17. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – which included adding a new Article 4171 and the institution of the State’s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings (see paragraphs 21-24 below).
Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows:
“3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”
18. However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 15 above) shall apply to all events and legal situations that subsisted before that date.
19. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution.
On the same day the court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the state official concerned, established in criminal or disciplinary proceedings.
20. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant:
“The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other principles of State liability laid down in specific statutes and not necessarily only those listed in the Civil Code.”
21. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5 (1) of the 2004 Act.
Section 2, in so far as relevant, reads as follows:
Section 5 provides, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
22. Section 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of section 18 (see paragraph 46 below) in the following terms:
“A party who has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.
23. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:
“1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.”
24. Section 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-102237
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KOZHOKAR v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domesic remedies);Remainder inadmissible;Violation of Art. 13;Violations of Art. 3 (substantive aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1980 and is currently serving a prison sentence in correctional colony no. 7 in the Tula Region.
6. In 2002 the applicant was convicted of drug trafficking and sentenced to seven years and three months' imprisonment. In 2005 he was granted an early release.
7. In the summer of 2006 the police received an anonymous complaint stating that the applicant and his friend Mr O. were making and selling drugs in their flats. The police questioned the applicant's neighbours, who confirmed unanimously that the applicant and Mr O. were drug dealers.
8. The police made a series of test purchases of drugs from the applicant and Mr O. In September and early October 2006 two persons code-named “Shadow” and “Yermak” asked the applicant and Mr O. to make drugs for them. They went on several occasions to Mr O.'s flat accompanied by their acquaintance Ms G. The applicant and Mr O. made opium from the ingredients bought by the applicant with Shadow's and Yermak's money. They then consumed the opium together.
9. On 18 October 2006 Yermak called the applicant, complained of withdrawal symptoms and asked him to procure him drugs. The applicant asked Ms G. to take 500 Russian roubles from Yermak and to change it in a nearby pharmacy. He then bought opium ingredients with that money and made opium in his flat. He met Yermak several hours later, handed a part of the opium over to him and left the remainder for himself. Yermak gave the opium received from the applicant to the police.
10. On the same day the applicant was arrested and charged with drug trafficking.
11. During the trial the Proletarskiy District Court of Tula heard numerous witnesses, including Shadow, Ms G., the applicant's neighbours and the police officers who had supervised the test purchases. Yermak's pre-trial depositions were read out as he had died before the start of the trial. The trial court also examined expert opinions and material evidence, such as the opium received by Shadow and Yermak from the applicant and Mr O. and utensils for making opium found in the applicant's and Mr O.'s flats.
12. On 19 September 2007 the Proletarskiy District Court of Tula acquitted the applicant of drug trafficking in respect of the episodes of September and early October, finding that on those occasions he had made drugs for personal consumption with his acquaintances rather than for sale. It further convicted the applicant of drug trafficking for selling drugs on 18 October 2006. The applicant was sentenced to seven years' imprisonment.
13. On 12 December 2007 the Tula Regional Court upheld the judgment on appeal.
14. From 20 October 2006 to 27 December 2007 the applicant was held in remand centre no. IZ-71/1 in Tula.
15. According to certificates of 23 October 2009 issued by the remand centre administration and submitted by the Government, from 20 October to 13 November 2006 the applicant was held in cell no. 77, which measured 80.4 sq. m and housed thirty-one to forty inmates. From 13 November 2006 to 31 January 2007 he was held in cell no. 76, which measured 37.4 sq. m and housed thirteen to twenty inmates. From 31 January to 26 September 2007 he was held in cell no. 17, measuring 76.9 sq. m and housing twenty-two to forty inmates. The Government also produced the plan of those cells confirming the cell measurements.
16. The same certificates state that the inmates were allowed to take a shower once a week for forty minutes and had an hour-long daily walk. It was not possible to establish the frequency of family visits or of the applicant's meetings with counsel. The applicant was also frequently taken out of the cell to see a doctor. Inmates suffering from infectious diseases, such as scabies, tuberculosis, HIV, hepatitis or sexually transmittable diseases, were held separately from other inmates. The applicant was never held together with anyone suffering from scabies or tuberculosis.
17. According to the applicant, he was held in cells nos. 77, 76, 17 and 117. Cell no. 77 measured 48 sq. m. It was equipped with fifty bunks and housed forty-four to forty-seven inmates. Cell no. 76 measured 24 sq. m, was equipped with twenty bunks and housed thirty to forty-seven inmates. Cell no. 17 measured 48 sq. m. It was equipped with forty-two bunks and housed twenty-seven to fifty-eight inmates. As the number of bunks was often insufficient, inmates had to take turns to sleep. Punishment cell no. 117, where the applicant was held alone from 2 to 17 February 2007, measured 2 sq. m.
18. All cells were insufficiently lit. There was only one 50-watt light bulb in each cell. The windows were small. Some of them were broken and inmates had to cover the holes with cloth. There was no forced ventilation and it was extremely hot in summer and very cold in winter. The cells were stuffy and smoky.
19. Each cell was equipped with a lavatory bowl which had no flush system. This was not separated from the living area and the person using the toilet was in view of the other inmates. The dining table was very close to the toilet.
20. The cells swarmed with rats, bugs, lice, spiders and cockroaches. The walls were covered with mould. Articles of hygiene were sparse. The bedding was dirty and ragged. All complaints to the detention facility administration about poor sanitary conditions went unanswered.
21. The applicant shared his cell with persons suffering from tuberculosis and scabies. He allegedly contracted scabies while in IZ-71/1.
22. Inmates were allowed to take a shower once a week. The entire cell population was taken to the shower hall for a total of twenty or thirty minutes. There were only four shower stands and the inmates had insufficient time to shower.
23. The food was insipid. There was neither fruit nor meat. Vegetables were rarely served. Fish was served in small quantities of no more than 40 grams per person per day. Although the applicant was prescribed a special diet by a doctor, no special food was provided.
24. The applicant submitted written statements by his co-detainees confirming his description of the conditions of detention.
25. The applicant attempted to lodge complaints about the appalling conditions with the prosecutor of the Tula region and the head of the penitentiary department of the Tula region. The remand centre administration did not dispatch his complaints. The warders threatened that he would suffer if he attempted to complain again. He was then put in a punishment cell for ten days.
26. It appears from the decision of 2 February 2007 issued by the acting head of remand centre no. IZ-71/1 that the applicant was put in a punishment cell for wrenching the tap off a drinking water tank and using it to make a hole in the wall through which he communicated with the inmates in the neighbouring cell.
27. The applicant also alleged that during the trial he had been regularly transported to the courthouse in inhuman conditions.
28. According to a certificate of 23 October 2009 issued by the remand centre administration and submitted by the Government, remand centre no. IZ-71/1 in Tula, where the applicant was held from 20 October 2006 to 27 December 2007, had a medical unit. The medical staff consisted of a general physician, a specialist in skin and venereal diseases, a surgeon, an otolaryngologist, a dentist, a radiologist, a tuberculosis specialist, physician assistants and nurses. The unit had all the necessary equipment and medication.
29. On 23 October 2006 the applicant was examined by a physician. He informed the doctor that he had been HIV-positive since 1999 and that he was also infected with hepatitis B and C viruses. On the same day he was examined by a psychiatrist who diagnosed him with drug withdrawal syndrome. An HIV antibody blood test confirmed that the applicant was indeed HIV-positive. A chest photofluorography was also performed.
30. On 13 November 2006 the applicant was examined by a drug addiction specialist from an HIV medical unit. He noted that the disease had attained clinical stage 3, but that the applicant's state of health was satisfactory. He prescribed a special diet. He further recommended that the applicant be held in a special cell for HIV-positive inmates and that general blood and urine tests and chest photofluorography be performed every six months.
31. On 23 January 2007 the applicant was examined by a psychiatrist. He complained of headache and liver pain. The doctor prescribed a pain reliever and liver pills.
32. On 7 March 2007 the applicant was examined by a nurse. He complained of liver pain. The nurse prescribed hepatoprotective herbal pills and antispasmodic pills.
33. On 23 March 2007 the applicant was examined by a surgeon. On 27 March 2007 a chest photofluorography was performed.
34. On 9 April 2007 general blood and urine tests were performed.
35. On 20 April 2007 a hepatitis C antibody blood test confirmed that the applicant was suffering from chronic hepatitis C.
36. On 22 April 2007 the applicant was examined by a psychiatrist.
37. On 25 April 2007 CD4, CD8 and viral load tests were made. The applicant's CD4 count was 0.462 x 109/l (equivalent to 462 cells/mm3), while his HIV RNA (viral load) was 9,215 copies/ml.
38. On 8 June 2007 a nurse explained to the applicant the results of the CD4 and viral load tests.
39. On 22 August 2007 the applicant was examined by a general physician. He complained of pain in his left shoulder joint. He was diagnosed with arthrosis and prescribed anti-inflammatory treatment.
40. On 26 September 2007 a chest photofluorography was performed.
41. On 24 October 2007 CD4 and viral load tests were made for the second time. The applicant's CD4 count was 0.231 x 109/l (equivalent to 231 cells/mm3), while his HIV RNA (viral load) was 5,282 copies/ml.
42. On 25 October 2007 the applicant was diagnosed with dermatitis and prescribed treatment for dermatitis and hepatoprotective pills.
43. On 30 October 2007 the applicant complained about insomnia and was prescribed sleeping pills.
44. At the end of 2007 a treatment schedule for 2008 was prepared. It was recommended that the applicant should be examined twice a year by a general physician, a tuberculosis specialist and an infectious disease specialist. Chest photofluorography and abdominal ultrasound scans were to be performed twice a year and the applicant was to receive a special diet.
45. On 27 December 2007 the applicant was examined by a general physician before being transferred to the correctional colony. The examining doctor confirmed the previous diagnosis. On the same day the applicant was transferred to correctional colony no. 7 in the Tula region.
46. On 17 January 2008 general blood and urine tests were performed.
47. On 20 February 2008 the applicant was examined by the colony's physician assistant. He noted that the applicant's health was satisfactory, his skin was healthy and the lymph nodes were not enlarged.
48. On 22 February 2008 the applicant was admitted to the prison hospital of the Tula region (no. IK-2, hereafter “Tula prison hospital”). He was examined by a neuropathologist and an ophthalmologist and underwent an abdominal ultrasound scan and a general blood test. The doctors prescribed anti-inflammatory treatment for arthrosis, hepatoprotective pills and vitamins.
49. On 27 February 2008 CD4 and viral load tests were performed. The applicant's CD4 count was 0.447 x 109/l (equivalent to 447 cells/mm3), while his HIV RNA (viral load) was 3,377 copies/ml.
50. The applicant was discharged from hospital on 28 February 2008.
51. On 6 March 2008 the applicant was examined by the colony's physician assistant. He complained of an aching shoulder joint and liver pains. The physician's assistant noted that the applicant's health was satisfactory.
52. On the same day the applicant was examined by a psychiatrist who diagnosed him with heroin addiction in forced remission.
53. On 16 June 2008 the applicant complained of dizziness. He was examined by a nurse who diagnosed him with low blood pressure and prescribed vitamins.
54. On 15 September 2008 the applicant was again examined by the colony's physician assistant. The applicant again complained of liver pain and an aching shoulder joint. The physician assistant noted that the applicant's gall bladder was deformed but his health was otherwise satisfactory.
55. On 31 October 2008 the applicant again complained of an aching shoulder joint. He was prescribed pain relievers.
56. On 7 November 2008 the applicant was admitted to the surgery unit of Tula prison hospital. His shoulder joint was X-rayed and general blood and urine tests were made. He was diagnosed with arthrosis and prescribed pain relievers and physiotherapy.
57. On 14 November 2008 the applicant was discharged from hospital.
58. At the end of 2008 a treatment schedule for 2009 was prepared. It was noted that the applicant's HIV condition had attained clinical stage 3. It was recommended that the applicant be examined twice a year by a general physician, a tuberculosis specialist and an infectious disease specialist. He was also to undergo laboratory examinations twice a year, and chest photofluorography and abdominal ultrasound scans were to be performed twice a year. The applicant was also to receive a special diet.
59. On 12 February 2009 the applicant was granted disability status.
60. On 19 February 2009 the applicant was examined by the colony's physician assistant, who found that his health was satisfactory.
61. On 24 September 2009 the applicant was again examined by a physician assistant, who prescribed treatment for a respiratory infection and gum inflammation.
62. On 22 October 2009 the applicant was examined by a physician. He complained of fever, abdomen pains, cough, headache and heartburn. He was prescribed antibacterial pills.
63. On 23 October 2009 general blood and urine tests were made.
64. On 10 November 2009 the applicant was taken to Tula prison hospital for examination. He was examined by an ophthalmologist, a surgeon, a neuropathologist, a dentist, a psychiatrist and a general physician. He underwent general blood and urine tests, an ultrasound scan of the abdominal area and an electrocardiogram. He received vitamins and neuroleptic drugs.
65. On 11 November 2009 CD4 and viral load tests were performed. The applicant's CD4 count was 0.562 x 109/l (equivalent to 562 cells/mm3), while his HIV RNA (viral load) was 7,845 copies/ml.
66. On 20 November 2009 the applicant was discharged from hospital.
67. At the end of 2009 a treatment schedule for 2010 was prepared. It was recommended that the applicant be examined twice a year by a physician, a tuberculosis specialist and an infectious disease specialist. Chest photofluorography, abdominal ultrasound scans and gastro-duodenoscopy were to be performed twice a year and the applicant was to receive a special diet.
68. On 28 January 2010 the applicant was again taken to Tula prison hospital for examination. He was examined by an ophthalmologist, a surgeon, a neuropathologist, a dentist, a psychiatrist, a dermatologist and an otolaryngologist and underwent an ultrasound scan of the abdominal area and a chest photofluorography. General blood and urine tests were also made. He received vitamins and physiotherapy. He was discharged on 10 February 2010. The hospital doctors recommended treatment for arthritis and gall bladder deformation and regular supervision by a general physician and a psychiatrist.
69. On 25 February 2010 the applicant was examined by a physician assistant, who found that his condition was satisfactory.
70. On 10 March 2010 a hepatitis B antibody blood test was performed which established that the applicant did not have hepatitis B.
71. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
72. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice, on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable to all detainees without exception. In particular, section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee. On arrival at a detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates. The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance. Particular attention must be paid to individuals suffering from contagious conditions. No later than three days after the detainee's arrival at the detention facility, he should receive an in-depth medical examination, including fluorography. During the in-depth examination a doctor should record the detainee's complaints, study his medical and personal history, record injuries if present, and recent tattoos, and schedule additional medical procedures if necessary. A doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses.
73. Subsequent medical examinations of detainees are performed at least twice a year or at the detainees' request. If a detainee's state of health has deteriorated, medical examinations and assistance should be provided by medical personnel of the detention facility. In such cases a medical examination should include a general medical check-up and additional methods of testing, if necessary, with the participation of particular medical specialists. The results of the examinations should be recorded in the detainee's medical history. The detainee should be fully informed of the results of the medical examinations.
74. Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake.
75. Section X of the Regulation regulates medical examinations, monitoring and treatment of detainees suffering from HIV. In particular, it provides that medical examinations, monitoring and treatment of detainees infected with HIV should be performed in accordance with the general standards of medical assistance to HIV-positive patients. All HIV-positive detainees should be registered and their condition should be monitored regularly to secure timely diagnosis and treatment of diseases that may accelerate the progression of the HIV infection, timely identification of symptoms of such progression and timely prescription of specific therapy. During the initial examination of an HIV-infected detainee a doctor must confirm his HIV status, identify the clinical stage of the disease, detect possible opportunistic infections and set up an adequate course of treatment. The frequency of subsequent medical examinations depends on the clinical stage of the disease and the detainee's CD4 count. A detainee in clinical stage 3 of the disease and with a CD4 count exceeding 500 cells/mm³ must be examined by a doctor every twenty-four weeks, while a detainee in clinical stage 3 of the disease with a CD4 count lower than 500 cells/mm³ must be examined by a doctor every twelve weeks.
76. Order no. 474, on Standard medical assistance to persons infected with HIV, issued by the Ministry of Health and Social Development on 9 July 2007, provides that a person infected with HIV must be subjected to the following tests and examinations in particular, irrespective of the clinical stage of the disease:
- abdominal ultrasound scan twice a year;
- electrocardiography twice a year;
- chest photofluorography once or twice a year;
- a general blood test three or four times a year;
- a general urine test once a year;
- psychology consultation six times a year;
- HIV RNA (viral load) test twice a year;
- CD4 test four times a year.
77. World Health Organization (“WHO”) guidelines of 2006 “Antiretroviral therapy for HIV infection in adults and adolescents: recommendations for a public health approach” read as follows:
“4.2. Immunological assessment of HIV-infected adults and adolescents
The optimum time to commence ART [antiretroviral therapy] is before patients become unwell or present with their first opportunistic infection. Immunological monitoring (CD4 testing) is the ideal way to approach this situation. A baseline CD4 cell count not only guides the decision on when to initiate ART but is also essential if CD4 counts are to be used to monitor ART. Table 3 summarizes the immunological criteria for the initiation of ART.
Table 3. CD4 criteria for the initiation of ART in adults and adolescents
...
The benchmark threshold marking a substantially increased risk of clinical disease progression is a CD4 cell count of 200 cells/mm3. Although it is never too late to initiate ART, patients should preferably begin the therapy before the CD4 cell count drops to or below 200 cells/ mm3. The optimum time to initiate ART with a CD4 cell count of 200−350 cells/mm3 is unknown. Patients with CD4 cell counts in this range require regular clinical and immunological evaluation.
The treatment of patients with WHO clinical stage 4 disease should not depend on a CD4 cell count determination: all such patients should initiate ART. For WHO clinical stage 3 conditions, a threshold of 350 cells/ mm3 has been identified as a level below which functional immune deficiency is present and ART should be considered... For patients with clinical stage 1 or 2 disease, a CD4 count below 200 cells/mm3 is a clear indication for treatment. Although there are no randomized trial data on the CD4 cell count level at which to start therapy in asymptomatic persons, data from a number of cohorts have been consistent in demonstrating that disease progression is greater in persons who start antiretroviral therapy with CD4 counts below 200 cells/mm3 than in those starting therapy above this level. In general these studies have not been able to detect a difference in outcome between persons who start therapy at CD4 counts of 200−350 cells/mm3 and those who do so at CD4 counts above 350 cells/mm3. However, if the CD4 count is above 350 cells/mm3, ART should be delayed...
Table 4. Recommendations for initiating ART in adults and adolescents in accordance with clinical stages and the availability of immunological markers
...
4.3. Virological assessment of HIV-infected adults and adolescents
Plasma viral load measurement is not necessary before initiating ART. It rarely informs the clinical decision as to when ART should begin if both CD4 testing and the assessment of clinical staging are performed...
13. Considerations in hepatitis B or hepatitis C coinfection
...
In the setting of HIV infection the course of HCV [hepatitis C]-associated liver disease is accelerated. Rates of progression of liver disease in HIV/HCV coinfection are greater. ... there is contradictory evidence on the effects of HCV on HIV disease progression. In the Swiss cohort study the presence of HCV was independently associated with an increased risk of progression to AIDS and death. However, the EuroSIDA cohort analysis found that the overall virological and immunological responses to ART were not affected by HCV serostatus... However, the risk of mortality related to liver disease was markedly increased in HCV-seropositive patients...
Irrespective of whether a patient has HIV infection, the optimal treatment for hepatitis C virus infection is pegylated interferon alpha and ribavirin (RBV)... The initiation of ART in HIV/HCV-coinfected patients should follow the same principles and recommendations as for the initiation of ART in HIV-monoinfected patients. However, the patients should be followed up more closely because of the major risk of drug-related hepatotoxicity and for specific drug interactions of some ARVs with anti-HCV drugs... In patients with high CD4 cell counts it is preferable to treat HCV infection before HIV. While concurrent treatment of both infections is feasible, it may be complicated by pill burden ..., drug toxicities and drug interactions. In patients who need ART it may be preferable to initiate ART and delay HCV therapy in order to obtain better anti-HCV response rates after immune recovery...
15. Clinical and laboratory monitoring
...
Clinical and laboratory monitoring of HIV-infected patients serves two purposes. Firstly, for patients under care who are not yet eligible for ART, regular monitoring is essential for the identification of the point at which they become eligible for ART or for prophylaxis against opportunistic infections... Well-designed monitoring protocols can facilitate the initiation of [opportunistic infections] prophylaxis and ART in the majority of HIV-infected patients before they develop advanced HIV infection.
Secondly, once patients have been initiated on ART, regular monitoring is necessary to assess efficacy, manage side-effects and identify treatment failure...
Because resources are limited, laboratory testing should generally be directed by signs and symptoms and should be done only when the results can be used to guide management decisions. Exceptions are the recommendations to obtain a CD4 cell count every six months...
15.2. Monitoring of patients who are not yet eligible for ART
Patients who are not yet eligible for ART should be monitored for clinical progression and by CD4 count measurement every six months. Clinical evaluation should include the same parameters as are used in baseline evaluations, including weight gain or loss and development of clinical signs and symptoms of progressive HIV disease. These clinical parameters and the CD4 cell count should be used to update the WHO disease stage at each visit and to determine whether patients have become eligible for [opportunistic infections] prophylaxis or ART. Clinical evaluation and CD4 counts can be obtained more frequently as the clinical or immunological threshold for initiating ART approaches (Table 4)...”
78. On 30 November 2009 WHO published a document entitled “Rapid Advice: Antiretroviral Therapy for HIV Infection in Adults and Adolescents”. It revised the previous recommendations concerning the commencement of antiretroviral treatment contained in the 2006 guidelines. It strongly recommended that antiretroviral treatment be started in all patients with HIV who had a CD4 count lower than 350 cells per mm3 irrespective of clinical symptoms. It stressed the necessity of CD4 testing in identifying whether HIV-positive patients at WHO clinical stage 1 or 2 of the disease needed to start antiretroviral treatment. Furthermore, it strongly recommended that antiretroviral treatment be started in all patients with HIV at WHO clinical stage 3 or 4 irrespective of CD4 count.
79. The same recommendations are contained in the WHO's 2010 guidelines “Antiretroviral therapy for HIV infection in adults and adolescents: recommendations for a public health approach”.
VIOLATED_ARTICLES: 13
3


ITEMID: 001-105458
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GADAMAURI AND KADYRBEKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicants were born in 1942 and 1975 respectively and live in Volzhskiy, a town in the Volgograd Region.
6. On 15 September 1999 the applicants, a lawyer and a driver for a private company, both of Chechen origin, were driving back from a business trip when the first applicant felt extreme abdominal pain. He soon felt feverish and dizzy. The applicants decided to stop in the town of Saransk in the Republic of Mordoviya on their way and go to a hospital.
7. However, in Saransk the applicants were stopped by the police (acting in the course of a special operation named “Vikhr [Vortex] - Anti-terror”), allegedly beaten up, handcuffed and brought to a temporary detention centre at the Oktyabrskiy District police station (ИВС Октябрьского РОВД г. Саранска) for identification purposes.
8. On 16 September 1999 charges of hooliganism were brought against the applicants.
9. On 17 September 1999 the applicants’ detention was extended on account of their alleged vagrancy and begging.
10. On the night of 17 September 1999 the applicants were transferred to a Republic of Mordoviya Interior Ministry specialised detention centre (приемник распределитель МВД республики Мордовия).
11. According to the first applicant, throughout his detention from 15 September to 17 September 1999 he constantly asked for medical help. However, the police officers refused his requests. Several times during that period an ambulance was called for him, and the ambulance doctors (among them doctor P.) confirmed that his state of health required urgent hospitalisation and treatment.
12. Finally, on 18 September 1999 the first applicant, unconscious, was taken to the city hospital (3-я городская больница г. Саранска). He was diagnosed with gangrenous perforated appendicitis which had led to peritonitis and he underwent emergency surgery. Throughout his stay in the hospital armed guards were posted at his bedside and at the door to his room.
13. According to the Government, following the applicants’ transfer to the specialised detention centre on 17 September 1999, an ambulance was called for the first applicant upon his request. On 18 September 1999 the first applicant was hospitalised in the city hospital with a diagnosis of “acute gangrenous perforated appendicitis”, on which an operation was performed immediately.
14. On an unspecified date the charges against the applicants were dropped.
15. On 30 September 1999 the second applicant was released.
16. On 1 October 1999, prior to the expiration of the post-operative period, the first applicant was allegedly forced to leave the hospital.
17. The first applicant was later diagnosed with ruptured sutures and other post-operative complications which resulted in him having to undergo several other operations and in his disability. The doctors concluded that the exacerbation of the applicant’s illness and the post-operative complications had been directly caused by his belated hospitalisation and surgery.
18. The first applicant provided the Court with the documents listed below.
(i) A medical assessment issued by surgeon D. from the Volzhskiy Town Clinic no. 5 dated 28 January 2003, which reads as follows:
“[The applicant] ... is being monitored and [is] periodically undergoing inpatient and outpatient treatment for his condition resulting from acute gangrenous perforated appendicitis, caecitis, seropurulent diffuse peritonitis and [an] appendectomy complicated in the post-operative period by suture sinuses, adhesive obstruction of [the] abdominal cavity and secondary bowel dyskinesia.
Analysing the [applicant’s] medical history and [the] complications which he subsequently developed and which fundamentally affected [his] health, it is possible to [understand] the disease pattern.
On 15 September 1999 whilst under arrest in the temporary detention centre at the Oktyabrskiy District police station in Saransk, the Republic of Mordoviya, [the applicant] felt acute abdominal pain. However, despite repeated examinations by the ambulance doctors and their urgent requests for [the applicant’s] hospitalisation in the surgical unit of Saransk town hospital due to acute symptoms [pertaining to his] abdominal cavity and [the] increasing deterioration of [his] state of health, the [applicant] was not taken to hospital.
Only on 18 September 1999, in a serious condition, was [he] taken to the surgical unit of Saransk Emergency Hospital and urgently operated upon. The early post-operative period was complicated by after-surgery wound disruption [and the] appearance of suture sinuses in the abdominal cavity, which necessitated a surgical procedure – a laparotomy [performed] on 9 February 2000 [...]. The latter part of the post-operative period was complicated by [the] development of moderately severe peritoneal commissures in the abdominal cavity [and] secondary bowel dyskinesia, as a result of which within a short interval on 24 October 2002 and on 27 November 2002 [the applicant] was hospitalised in Volzhskiy Town Hospital no. 1 with adhesive obstruction.
From 12 February 2002 [the applicant] underwent a [procedure to] establish [the extent of his] disability.
In view of the foregoing, it is possible to conclude that the exacerbation of the [applicant’s] main disease [...] resulting in complications [...] was directly caused by belated surgical treatment and connected with [the] prevention by the police officers of [the] provision to [the applicant] of timely medical assistance.”
(ii) Notarized statements with similar contents issued by surgeons D. of the Volzhskiy Town Clinic no. 5 (dated 24 July 2003) and K. of the Volzhskiy Town Hospital no. 1. (dated 21 July 2003).
(iii) Various other medical documents confirming the applicant’s operations and subsequent medical treatment.
19. On 16 March 2000 the first applicant complained to the Prosecutor’s Office of the Republic of Mordoviya of his and the second applicant’s unlawful detention on 15 September 1999 and alleged that violence had been used against them by the police officers. The applicant made no specific complaints relating to his allegedly belated hospitalisation for surgery.
20. Following an inquiry into the facts complained of by the first applicant, on 24 March 2000 the Prosecutor’s Office of the Republic of Mordoviya refused to institute criminal proceedings against the police officers in the absence of any indication that a criminal act had been committed.
21. On 8 July 2004 the inquiry materials were destroyed following the expiry of the time-limit for their storage.
22. On 19 September 2000 and 26 January 2001 the first applicant challenged the lawfulness of the actions of the police officers before the internal security department of the Ministry of the Interior of the Republic of Mordoviya. The facts complained of were found to be unsubstantiated.
23. The first applicant subsequently appealed against the refusal to institute criminal proceedings to the Oktyabrskiy District Prosecutor’s Office in Saransk, the Prosecutor’s Office of the Republic of Mordoviya and to the Prosecutor General of the Russian Federation. The results of their inquiries into the applicant’s allegations were held to have not established the grounds required for the institution of criminal proceedings against the police officers.
24. On 20 September 2001 the applicants brought proceedings against the Ministry of the Interior and the Federal Treasury, seeking compensation for pecuniary and non-pecuniary damage resulting from their unlawful detention and the first applicant’s belated hospitalisation for surgery.
25. On 18 April 2002 the Leninskiy District Court of Saransk partly granted the applicants’ claims, declared that their arrest and detention had been unlawful and awarded them 5,000 Russian roubles each in respect of non-pecuniary damage. The court further concluded that the applicants’ allegations of ill-treatment had not been substantiated and that there had been no causal link between the actions of the police and the surgical treatment received by the first applicant.
26. The applicants appealed. The first applicant claimed, in particular, that the District Court had failed to question the ambulance doctor, P., who had examined him and had insisted, in vain, on his urgent hospitalisation. He further claimed that, although his condition had not itself been caused by the actions of the police officers, the severe impact on his health resulting from his belated hospitalisation and surgery had undeniably been directly caused by the actions of the police officers. He relied on the medical documents contained in the case file outlining the complications he had suffered after the first belated operation and also attesting to the ensuing operations.
27. On 23 July 2002 the Supreme Court of the Republic of Mordoviya upheld the judgment on appeal.
28. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to a person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage.
VIOLATED_ARTICLES: 3


ITEMID: 001-114249
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF OSMANOVIĆ v. CROATIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court)
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 4. The applicant was born in 1985 and lives in Pula.
5. On 9 October 2009 the applicant was arrested on suspicion of a breach of public peace and order.
6. On the same day, the Istarska Police Department (Policijska uprava Istarska) indicted the applicant in the Pula Minor Offences Court (Prekršajni sud u Puli) on charges that he had disturbed public peace and order in that he and two others had attacked two off-duty police officers.
7. Still on the same day, the applicant was brought before a judge of the Pula Minor Offences Court who, after she had heard the applicant, remanded him in custody for eight days under Section 135 § 1 of the Minor Offences Act in connection with the above charges. The reasoning reads as follows:
“On 9 October 2009 the Istarska Police Department submitted to this court an indictment in urgent proceedings against the accused, Kabir Osmanović, in connection with a minor offence under section 6 of the Minor Offences against Public Order and Peace Act, with a request that he be remanded in custody because he had repeatedly committed similar offences. Since this case concerns a grave breach of public peace and order, in which N.R. sustained grievous bodily injury, and specific circumstances justify a fear that the accused would commit the same minor offence, the judge agreed to the request [by the police] and remands the accused in custody for a period of eight days.”
8. On 12 October 2009 the applicant lodged an appeal, arguing that the decision remanding him in custody had not been sufficiently reasoned.
9. On 14 October 2009 the High Minor Offences Court (Visoki prekršajni sud Republike Hrvatske) upheld the first-instance decision. The relevant part of the reasoning reads as follows:
“... After considering this case and the allegations in the appeal, this panel of the High Minor Offences Court of the Republic of Croatia, on the basis of section 211(3) of the Minor Offences Act, has found that the first-instance decision on the accused’s detention was correct and lawful.
This court agrees with the first-instance judge who detained the accused for the said period because there was a risk that he might repeat the same minor offence, which arises from the circumstances in which the offence described in the indictment was committed, and from the medical documentation in the case file.
Remanding the accused in custody prevents him from repeating the same minor offence.”
10. On 17 October 2009, when the eight-day time period had expired, the applicant was released from custody.
11. On 20 November 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) arguing that there had been no reason to remand him in custody, that the lower courts had not put forward any such reasons, and that the assertion that there was a risk that he might reoffend had not been substantiated in any way. In particular, he stressed that he had not previously been convicted of the same or similar offences. He also complained that the judge had not heard him prior to ordering his detention.
12. On 25 March 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that the applicant had been released in the meantime. This decision was served on the applicant on 30 April 2010.
13. On 20 April 2010 the Pula Minor Offences Court found the applicant guilty of a breach of the public peace and order and sentenced him to nine days’ imprisonment. The period of detention already served was to be included in his sentence.
14. On 17 May 2010 the applicant lodged an appeal with the High Minor Offences Court against that judgment of the Pula Minor Offences Court, but withdrew it on 1 April 2011.
15. On 21 October 2011 the High Minor Offences Court declared the applicant’s appeal of 17 May 2010 inadmissible on the ground that he had lost interest in pursuing his appeal.
16. The relevant part of the Minor Offences against Public Order and Peace Act (Zakon o prekršajima protiv javnog reda i mira, Official Gazette nos. 5/1990, 47/1990 and 29/1994) reads:
“Anyone who behaves in a particularly offensive or rude manner in a public place by insulting citizens or disturbing the peace shall be liable to a fine ... or to a term of imprisonment not exceeding sixty days.”
17. The relevant part of the Minor Offences Act (Prekršajni zakon, Official Gazette, no. 107/2007) reads:
“1. If a person is indicted for a minor offence which concerns a breach of public order, or domestic violence, or is punishable by imprisonment or a fine above 10,000 [Croatian kunas], the court can, of its own motion or upon a proposal from the prosecutor, and after the defendant has been heard and it has been determined that there are no reasons to dismiss the indictment under Section 161 of this Act, remand that person in custody if:
1. there are circumstances which show that there is a risk hat [the defendant] will abscond (or is in hiding);
2. if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the minor offences proceedings or might suborn witnesses, or where there is a risk of collusion;
3. special circumstances justify the suspicion that the person concerned might reoffend.
18. Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations or suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3