ITEMID: 001-61762
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SOMOGYI v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
TEXT: 8. The applicant was born in 1951 and is at present detained in Tolmezzo Prison, Udine.
9. In the course of criminal proceedings concerning an arms trafficking charge, the Rimini preliminary investigations judge set down the preliminary hearing for 23 April 1998.
10. On 30 October 1997 he ordered the notice of the date of the hearing, translated into Hungarian and accompanied by an invitation to appoint a legal representative, to be served by post on the accused, a Hungarian national living in Hungary named Thamas Somogyi, who was born in Miskolc on 23 October 1953. The reply slip acknowledging receipt of the notice reached the Rimini District Court's registry bearing a signature which, according to the applicant, was not his. He asserted that there was a difference between that signature and the one in his passport. Moreover, the forename of the signatory was “Thamas” and not “Tamas”.
11. As the defendant did not appear at the preliminary hearing, he was declared to be wilfully seeking to evade trial (contumace) and the court appointed a lawyer, Mr G., to assist him. From that point on, all notifications of procedural steps were served on Mr G.
12. Mr G. did not plead the nullity of the notice of the date of the preliminary hearing. An order was then made committing Thamas Somogyi for trial.
13. In a judgment of 22 June 1999, the Rimini District Court sentenced the accused to eight years' imprisonment and a fine of 2,000,000 Italian lire (approximately 1,032 euros).
14. That decision was grounded on statements made by certain persons facing charges in related proceedings, particularly a Mrs M. and the S. brothers, corroborated by other evidence. The text of the judgment did not indicate whether the persons in question had recognised the applicant on a photograph or if they had identified him in their statements purely on the basis of his name or personal information they had about him. The Rimini District Court merely said that the applicant had been “recognised and identified”. It further observed that, in view of the gravity of the offences he was charged with and the fact that he had constantly refused to give his version of the facts, he could not be granted the benefit of any extenuating circumstance.
15. The judgment of 22 June 1999 was served on Mr G.
16. On 30 October 1999 the Rimini District Court, having noted that the judgment of 22 June 1999 had become final, ordered the arrest of Mr Thamas Somogyi.
17. On 15 August 2000 the Austrian police arrested the applicant (Tamas Somogyi, born in Budapest on 19 October 1951) and notified the Italian authorities.
18. The Italian authorities opened an investigation which led to the finding that the person convicted on 22 June 1999 was in fact the applicant.
19. In a decision of 17 August 2000, the Rimini District Court ordered that the judgment of 22 June 1999 be rectified by insertion of the applicant's forename and his date and place of birth in place of the information originally recorded. That decision was served on Mr G.
20. The applicant was then extradited from Austria to Italy, where he was deprived of his liberty in execution of the judgment of 22 June 1999.
21. On a date which has not been specified he applied to the Rimini District Court under Article 175 of the Code of Criminal Procedure (“the CCP”), asking it to reopen the time allowed for an appeal (istanza di rimessione in termini). He contended that the judgment of 22 June 1999 was invalid because the summons was null and void, submitting the following arguments:
(a) the identity of the person convicted had not been reliably established, so that the procedure for rectification of an error ought not to have been followed;
(b) he had not been aware of the proceedings against him, and the signature on the envelope containing the notice of the date of the preliminary hearing was not his. In that connection he said that if necessary a handwriting expert should be asked to determine whether the signature was authentic and that if he had to do so he would lodge a complaint alleging forgery (querela di falso);
(c) the notice concerned had not been properly served since the form of service did not comply with the provisions of the Italo-Hungarian agreement signed on 26 May 1977 (and ratified by the Italian parliament in Law no. 511 of 23 July 1980), which required all judicial communications from one of the two signatory countries addressed to individuals in the other country to take the form of a request for judicial assistance. The applicant further asserted that the form of service of the notice in question had in any case been incompatible with the relevant provisions of the Hungarian legislation concerning judicial communications by post.
22. In a decision of 24 October 2000, the Rimini District Court refused the applicant's request.
23. It observed in the first place that the judge responsible for the execution of sentences could not look into grounds for annulment arising out of the proceedings and concerning the merits of the charges. The defects complained of had in any case been cured (sanate) when the judgment of 22 June 1999 became final.
24. Secondly, the identity of the person convicted had been established through an investigation conducted by the Rimini prefecture with the assistance of the Rome branch of Interpol. Moreover, a mere inaccuracy concerning a defendant's date of birth did not constitute a ground for annulment of a judgment, and could properly be corrected via the rectification procedure.
25. Lastly, according to the case-law of the Court of Cassation, a request to reopen the time allowed for an appeal was admissible only where a defendant alleged that he had been prevented from finding out about his conviction by circumstances beyond his control. It would be inadmissible, however, if he pleaded that service of a notice was null and void. In such a case a person convicted at first instance could lodge an appeal out of time, arguing in effect that the time allowed for an appeal had not begun to run.
26. On 27 November 2000 the applicant appealed to the Bologna Court of Appeal against the judgment of 22 June 1999, submitting that as it had been based on invalid procedural steps it could not have become final. He also repeated his request for a report by a handwriting expert and his statement concerning the possibility of lodging a complaint of forgery.
27. In a judgment of 24 May 2001, deposited with the registry on 3 July 2001, the Bologna Court of Appeal declared the applicant's appeal inadmissible. It observed in particular that the evidence against the applicant had been corroborated by two persons charged in related proceedings, who had stated that the weapons in question, which had been brought in from Hungary and then used to commit an armed robbery, a murder and an attempted murder, had been bought at the applicant's house. He had then taken to Hungary a Fiat Uno car which one of the co-defendants had sold him. The District Court had correctly identified the defendant as Tamas Somogyi, a Hungarian national living at 16 Erdo Street, Szigethalom, previously convicted of rape, armed robbery and acts of vandalism. Moreover, on 27 January 1995, Italian Interpol had reported that the applicant was the son of a woman named Maria Jobbik (as his lawyer had confirmed), that he had been born on 19 October 1951 in Budapest and that he lived at “26 ... Erdo Str., Szigethalom/Hungary”. His address had also been confirmed by a co-defendant. In those circumstances, the Court of Appeal ruled that there was no doubt that the applicant was indeed the person sought by the Italian authorities.
28. The Court of Appeal went on to note that notification of the charges had been served on the applicant. An acknowledgment-of-receipt slip dated 16 January 1998 and apparently signed by the addressee proved that this information had been received. The address at which the notice had been served was in most respects correct, the only mistakes being that an extra “h” had been added to “Szigethalom” (making “Szigethalhom”) and the accent had been missed off the place name Ërdo (making Erdo). It was therefore not necessary to compare the applicant's signatures on his passport and certain company documents with the one on the return slip acknowledging receipt.
29. As regards the applicant's argument that the terms of the Italo-Hungarian agreement had not been complied with, the Court of Appeal observed that notification had been properly served on the applicant in accordance with the relevant domestic provisions, since the assistance between States provided for in the agreement was mandatory only if one of the High Contracting Parties requested it. Where, as in the present case, no explicit request to that effect had been made, domestic law had to be applied. In addition, although it was true that under Hungarian legislation registered letters could be delivered only to persons who had first been authorised and designated, it was obvious that those rules applied only where, unlike the position in the applicant's case, the person receiving the letter was not the addressee.
30. The Court of Appeal therefore ruled that, contrary to the applicant's submissions, the first-instance judgment was valid. It followed that the defendant's appeal was out of time, and therefore inadmissible pursuant to Article 591 § 1 (c) of the CCP.
31. On 30 July 2001 the applicant appealed on points of law. He repeated his request for a report by a handwriting expert and again stated that he was minded to lodge a complaint of forgery.
32. In a judgment of 23 April 2002, deposited with the registry on 23 May 2002, the Court of Cassation dismissed the applicant's appeal, holding that the reasons given by the Court of Appeal for all its disputed rulings had been logical and correct. It observed in particular that, in spite of minor clerical errors in the address, the notice sent by the Rimini preliminary investigations judge had obviously reached the person it had been sent to. There was no evidence that it had been received by someone of the same name as the applicant living at a similar or nearly identical address.
33. On 11 December 2001 the applicant asked for a retrial, alleging that certain new information showed that he should have been acquitted. It was submitted that a Hungarian journalist and writer, Mr P., had informed the applicant's lawyer that during a television programme two co-defendants had made statements establishing his client's innocence. In addition, Mr P. had asserted that in his opinion the Italian and Hungarian secret services had intervened in the applicant's case and that a Colonel K., employed in the Organised Crime Unit, knew that the convicted man was innocent.
34. In a decision of 18 July 2002, the Ancona Court of Appeal declared the application inadmissible. It pointed out that, according to the case-law of the Court of Cassation, statements by co-defendants did not justify reopening a trial. Moreover, the evidence of the persons concerned had already been taken by the lower courts. Furthermore, the opinions expressed by Mr P. about the applicant's innocence were completely subjective and unsubstantiated by any evidence.
35. According to the information supplied by the Government, identification of the applicant as an arms trafficker was based on the following evidence:
– the record of an interview with Mrs M. on 20 January 1995 during which she declared that a Tamas Somogyi wished to participate in the criminal activities of the S. brothers and that he had supplied guns to them;
– a handwritten note from Mrs M. giving the applicant's name and address;
– a letter sent by one of the S. brothers to Mrs M. – and received by her – at the applicant's address;
– a receipt for 20,000 German marks, given by Mr Somogyi to Mrs M.;
– a television interview obtained by an Italian journalist on 16 February 1995 at the applicant's home, during which the applicant showed photographs of Mrs M. and one of the S. brothers;
– the fact that Mrs M. had recognised the applicant's face in the video recording of the interview; and
– the fact that the applicant's identity had been checked by the Italian and Austrian police at the time of his extradition, on the basis of a photograph taken from the interview broadcast on 16 February 1995.
36. The relevant passages of Article 175 §§ 2 and 3 of the Code of Criminal Procedure (“the CCP”) provide:
“In the event of conviction in absentia ..., the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no knowledge [of it] ... without any negligence on his part or where, in the case of a conviction in absentia having been served ... on his lawyer ..., he can establish that he did not deliberately refuse to take cognisance of the procedural steps.
A request for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant learned [of the judgment], failing which it shall be declared inadmissible.”
37. Article 130 of the CCP provides:
“Rectification of judgments and decisions affected by errors or omissions which do not entail their nullity, and which may be corrected without requiring a substantial redrafting of the text, shall be ordered, where necessary of his or her own motion, by the judge who gave the decision in question ...”
38. Article 546 of the CCP indicates what elements a judgment must include. Sub-paragraph (b) mentions, among other details, the defendant's particulars or other information by which he can be identified. Article 547 of the CCP provides that, where one of the elements mentioned in Article 546 is missing or incomplete, the judgment must be rectified in accordance with Article 130, and that an order to that effect may be made by the judge even of his or her own motion.
39. Article 552 § 1 of the CCP also provides that a summons must include the applicant's particulars or other information by which he can be identified. Paragraph 2 adds that the decision in question is null and void if the defendant has not been reliably identified.
VIOLATED_ARTICLES: 6


ITEMID: 001-69352
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KRASUSKI v. POLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1;No violation of Art. 13
JUDGES: Nicolas Bratza
TEXT: 10. The applicant was born in 1934. He died on 30 December 2004. He lived in Zielona Góra, Poland.
11. In July 1994 the applicant and his wife concluded a contract with E.W. and W.W., the owners of a company W. Under that contract the company was to carry out building work on the applicant’s house. On 24 November 1994 the applicant, considering that the company was in breach of the contract, withdrew from it.
12. On 1 February 1996 the applicant and his wife (“the plaintiffs”) sued E.W. and W.W. in the Zielona Góra Regional Court (Sąd Wojewódzki), seeking compensation for the serious damage to the house allegedly caused by the defendants.
13. On 13 March and 27 June 1996 the court held hearings and heard evidence from witnesses.
14. On 24 July 1996 the court instructed Poznań Technical University (Politechnika Poznańska) to prepare an expert report. The report was submitted to the court on 4 November 1996. The defendants challenged the report on 2 December 1996.
15. At a hearing on 23 December 1996 the Regional Court ordered the experts to revise their report. On 26 January 1997 they upheld their original conclusions.
16. On 17 July 1997 the plaintiffs modified their claim.
17. The court held a hearing on 29 October 1997.
18. On 31 March 1998 the court ordered the experts to supplement their report.
19. The parties filed their pleadings in March, April and October 1998.
20. On 4 November 1998 the court held a hearing. The Government maintained that in the course of the hearing the plaintiffs had modified their claim. The applicant contested this.
21. On 19 November 1998 the court gave judgment and dismissed the claim. The plaintiffs appealed.
22. On 18 May 1999 the Poznań Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case to the Regional Court.
23. On 30 September 1999 the Regional Court held a hearing. It decided to obtain a fresh expert report. In the meantime, the applicant had made two unsuccessful applications for his claim to be secured.
24. On 20 February 2000 the expert report was submitted to the court.
25. At the hearing held on 9 May 2000 the court heard evidence from the expert.
26. The Government submitted that on 16 May 2000 the plaintiffs had altered the amount of the damages they had sought. Subsequently, they applied for an exemption from the court fee due for the increased claim. On 12 October 2000 the court refused their application. That decision was later upheld by the Poznań Court of Appeal. The applicant denied that they had altered their claim.
27. On 28 February 2001 the plaintiffs again unsuccessfully applied for an exemption from payment of the court fee for the increased claim. Eventually, on 16 March 2001, the particulars of that claim were returned to them on account of their failure to pay the fee.
28. The Government maintained that at the hearing held on 8 May 2001 the plaintiffs had increased their claim and had stated that they would not seek an exemption from the court fee. However, on 4 June 2001 the particulars of the amended claim were again returned to them on account of their failure to pay the fee in question.
29. The applicant stated that this was not true. He maintained that, in a pleading of 11 May 2001, after the experts had again revised their valuation of the damage sustained, he had indeed extended the amount of the damages sought to 300,000 Polish zlotys (PLN), mostly because he had been forced to do so by the court. He had also sought an exemption from court fees since to do otherwise would have been illogical.
30. A hearing scheduled for 12 July 2001 was adjourned at the plaintiffs’ request. A subsequent hearing was held on 6 September 2001.
31. On 4 October 2001 the court heard evidence from the parties and closed the trial. On 11 October 2001 it gave judgment, awarding the applicant PLN 50,000 plus statutory interest.
32. On 30 November 2001 the applicant appealed against the judgment. Shortly afterwards, on 10 December 2001, the Regional Court ordered him to rectify the formal shortcomings in his appeal.
On 8 January 2002 the applicant applied for an exemption from the court fees for lodging the appeal. The Regional Court rejected his application on 23 January 2002. The applicant unsuccessfully appealed against the refusal; eventually, he paid the court fees on 22 February 2002.
33. On 20 June 2002 the Poznań Court of Appeal heard, and dismissed, the applicant’s appeal. Since the applicant refrained from lodging a cassation appeal (kasacja) with the Supreme Court, the judgment became final on that day.
34. 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 performance of the duties entrusted to him.”
35. Article 418 of the Civil Code, as applicable until 18 December 2001 (see paragraphs 38-39 below), provided for the following exception in cases where damage resulted from the issuing of a decision or order:
“1. If, in consequence of the issuing 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 issuing of the decision or order and if that breach is the subject of a criminal prosecution or 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 person’s superior.
2. The fact that such guilt has not been established by means of a criminal conviction or 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 a [statutory] bar to prosecution or disciplinary action.”
36. 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 were in essence aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision being made for the State’s tortious liability for its omission to enact legislation, a concept known as “legislative omission” (zaniedbanie legislacyjne) – they are also to be seen in the context of the operation of a new statute introducing remedies in respect of the unreasonable length of judicial proceedings (see paragraphs 38-41 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 do so, 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 other specific provisions provide otherwise.”
37. However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 34 above) applies to all events and legal situations that subsisted before that date.
38. 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 Article 64 and Article 77 § 1 of the Constitution (see paragraphs 41-42 below).
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 actions of State officials in the performance of their 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 to the personal culpability, established in criminal or disciplinary proceedings, of the State official concerned.
39. 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 the actions of a public authority consisting in the issuing of unlawful decisions or orders will follow from the general principles on State liability as 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 on State liability, as laid down in specific statutes, and not necessarily only those listed in the Civil Code.”
40. Article 45 § 1 of the Constitution states:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
41. Article 64 of the Constitution reads:
“1. Everyone shall have the right to ownership, other property rights and the right of succession.
2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession.
3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.”
42. Article 77 § 1 of the Constitution reads:
“Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law.”
43. 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:
“1. Parties... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”
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. ...”
44. 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 which 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.”
45. 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 three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.”
46. Section 18 of the 2004 Act lays down the following transitional rules in relation to 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, as 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.”
NON_VIOLATED_ARTICLES: 13
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102396
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BALAGUROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Aleksandr Leonidovich Balagurov, is a Russian national who was born in 1972 and lives in Syktyvkar. The Russian Government (“the Government”) were represented by Mr G. Matushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 January 2004 the applicant sued the Government of the Chechen Republic for monetary benefits on account of serious bodily injuries caused by a terrorist attack during his military service in the government’s headquarters in Grozny.
On 4 June 2004 the Syktyvkar City Court found in the applicant’s favour and awarded him 53,048.88 Russian roubles (RUB) in compensation. On 3 July 2004 the judgment became final but the respondent authority delayed its enforcement.
On 23 December 2005 the Syktyvkar City Court awarded the applicant an additional amount of RUB 7,279.19 in compensation for the inflation loss resulting from the enforcement delay (“indexation”). That judgment became final on 11 January 2006.
On 12 October 2006 the total sum of RUB 60,327.00 was credited to the applicant’s bank account.
On 15 January 2009 the Court delivered the Burdov (no. 2) pilot judgment cited above. It ordered the respondent State to set up an effective domestic remedy which would secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments. It also ordered the Russian Federation to grant adequate and sufficient redress, within one year from the date on which the judgment became final, to all victims of non-payment or unreasonably delayed payment by State authorities of a judgment debt in their favour who had lodged their applications with the Court before the delivery of the present judgment and whose applications had been communicated to the Government under Rule 54 § 2 (b) of the Rules of the Court.
The present case was communicated to the Government on 22 April 2008. The Court’s proceedings in the case were thus adjourned until 4 May 2010 pending the implementation of the pilot judgment (see Burdov (no. 2), cited above, § 146, and point 8 of the operative part). The applicant was informed accordingly.
On 19 March 2010 the Government confirmed that both court awards had been paid to the applicant on 10 October 2006 and submitted a unilateral declaration aimed at resolving the issues raised by the application. The authorities acknowledged the excessive duration of the enforcement of the judgment of 4 June 2004 in the applicant’s favour and declared that they were ready to pay the applicant ex gratia the sum of 1,430 euros (EUR) as just satisfaction.
On 4 May 2010 the Government informed the Court that in response to the pilot judgment two federal laws had been enacted, introducing a new domestic remedy in respect of lengthy judicial proceedings and delayed enforcement of domestic judgments against the State. The laws entered into force on the same date (“the Compensation Act”, see part B below).
By letter of 20 May 2010 the applicant considered the Government’s remedial offer insufficient and declared his intention to avail himself of the new remedy.
On 5 July 2010 the Supreme Court of the Komi Republic granted the applicant’s claim for compensation under the Compensation Act. The court acknowledged a violation of his right to enforcement of the judgment of 4 June 2004 within a reasonable time and ordered the Ministry of Finance of the Chechen Republic to pay the applicant RUB 70,000.00 (EUR 1,750) in compensation. The court took account of the enforcement delay, the nature of the award, its significance for the applicant, his state of health and the efforts made to obtain the payment. The court furthermore noted that the absence of domestic enforcement regulations during the relevant period and the complexity of the State’s budgetary system were not the reasons for denying compensation. At the same time, the court held by reference to the Court’s case-law that the period of 5 months from January to June 2004 during which the applicant’s case was examined by the Syktyvkar City Court did not breach his right to a hearing within a reasonable time.
The judgment became final on 18 July 2010 and the writ of execution was transmitted to the respondent authority on the following day.
By letter of 12 July 2010 the Government withdrew their unilateral declaration of 19 March 2010, considering that the applicant was no longer a victim of the violation due to the latest judgment in his favour.
The court award was credited to the applicant’s bank account on 31 August 2010.
On 30 April 2010 Russian Parliament adopted a Federal Law, no. 68-ФЗ, “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). On the same date the Parliament adopted a Federal Law, no. 69-ФЗ, introducing a number of corresponding changes to the relevant federal laws. Both laws entered into force on 4 May 2010.
The Compensation Act entitles a party concerned (“an applicant”) to bring an action for compensation of the violation of his or her right to a trial within a reasonable time or of the right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the State budgets (Section 1, § 1). Such compensation can only be awarded if the alleged violation took place independently of the applicant’s own actions except those taken in the circumstances of force majeure. A breach of the statutory time-limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or right to enforcement of a judgment within a reasonable time (Section 1, § 2). A compensation award is not dependent on the competent authorities’ fault (Section 1, § 3).
The compensation is awarded in monetary form (Section 2, § 1). The amount of the compensation should be determined by courts according to the applicant’
Section 3 sets out the rules of jurisdiction and procedure. It states in particular that a claim for compensation on account of lengthy enforcement of a judgment may be lodged prior to the end of the procedure for enforcement of a judgment but not earlier than six months after the expiry of the statutory time-limit for enforcement and not later than six months after the termination of the procedure for enforcement.
A court decision granting compensation is subject to immediate enforcement (Section 4, § 4). It may be appealed against in accordance with the procedural legislation in force (Section 4, § 5). The costs of payment of compensation awards are included in the federal budget, in the budgets of federal entities and in local budgets (Section 5, § 3).
All individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts under the present Act within six months of its entry into force, provided the European Court has not ruled on the admissibility of the complaint (Section 6 § 2).


ITEMID: 001-98717
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ARTYOMOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 13;Violation of Art. 6-1;No violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1973 and lived until his arrest in the town of Gvardeysk, Kaliningrad Region.
7. On 8 September 1999 the Gvardeyskiy District Court of the Kaliningrad Region found the applicant guilty of aggravated blackmail and sentenced him to five years' imprisonment.
8. In separate proceedings, on 16 November 2000 the Supreme Court of the Russian Federation, in the final instance, convicted the applicant of disruption of order in a detention facility and sentenced him to ten years' imprisonment.
9. From 16 August 1998 to 14 April 1999 the applicant was detained in Kaliningrad no. IZ-39/1 detention facility. According to the applicant, that detention facility was built in 1929 and no construction works to the cells have been carried out since.
10. According to certificates issued on 20 December 2005 by the director of the facility and produced by the Government, the applicant was kept in twenty-two different cells which measured 7.8, 14 and 31.1 square metres. The Government submitted that the information on the exact number of inmates detained together with the applicant was not available. They noted that the cells could have occasionally been overcrowded, but at all times the applicant had had an individual bunk and bedding. Relying on the information provided by the director of the facility, the Government further argued that the sanitary conditions in the cells were satisfactory.
11. The applicant did not dispute the cell measurements. However, he alleged that the cells which measured 14 square metres had had ten sleeping places and usually had housed from 24 to 30 inmates. The smaller cells had either six or eight sleeping places and accommodated from 14 to 22 detainees. Given the lack of beds, inmates had slept in shifts. The applicant further submitted that the sanitary conditions had been appalling.
12. On 12 June 2002 the applicant lodged an action against facility no. IZ-39/1 and the Ministry of Finance, seeking compensation for damage. He described the conditions of his detention in minute detail and claimed that his detention had amounted to torture. He also sought leave to appear before the court.
13. On 17 June 2002 the Tsentralniy District Court of the Kaliningrad Region refused leave to appear because the domestic law did not require the applicant's presence. A month later the applicant again unsuccessfully sought leave to appear and asked to be assisted by legal aid counsel, arguing that he had no means to pay for legal assistance.
14. On 15 July 2002 the Tsentralniy District Court dismissed the action because the applicant had failed to prove that the facility administration had been liable for damage allegedly caused to him and he had not produced evidence showing that his rights had been violated. That judgment was quashed by the Kaliningrad Regional Court on 13 November 2002. The case was remitted for fresh examination.
15. On 21 January 2003 the applicant received a letter from a judge of the Tsentralniy District Court informing him that he could not be granted leave to appear as the law did not allow a transfer of detainees from facilities where they are serving their sentence to enable them to take part in civil proceedings. The judge noted that the District Court had no right to bring the applicant to the hearing, as his regime of detention would be violated. The judge further informed the applicant that he could appoint a representative or authorise the District Court to examine the action in his absence.
16. On 28 February 2003 the Tsentralniy District Court, in the applicant's absence, dismissed the action. The relevant part of the judgment read as follows:
“[The applicant] was not brought to the hearing because the law on civil procedure does not prescribe the transport of prisoners who serve sentence in detention facilities to court hearings to allow them to take part in examination of civil cases. [The applicant] did not want to make use of his right to issue a power of authority to a representative to ensure his participation in the examination of the case; he was duly informed about the date and time of the hearing.
...
As it follows from information presented on 27 February 2003 by the administration of detention facility no. IZ-39/1, cell no. 4/19 [where the applicant was detained] measures 14 square metres; it is impossible to establish how many inmates were detained in the cell as such data were not recorded. Mr S. [who was detained together with the applicant] indicates in his claim that the cells in which he had been detained had been overcrowded. As it follows from [the applicant's] detention record he was detained in 22 different cells during his detention.
The above-mentioned circumstances attest to the fact that there is no objective, true and sufficient evidence corroborating [the applicant's] statement that two square metres [of personal space] were afforded to each three inmates. Moreover, funds were not provided from the federal budget for the construction of the second building of the detention facility between 1998 and 2000.
According to certificate no. 1397 issued on 2 July 2002 by the Department for Execution of Sentences, due to lack of funds reconstruction and major repair works were not carried out in the detention facility in 1998 and 1999.
By virtue of Article 1069 of the Civil Code of the Russian Federation, damage caused to an individual by unlawful actions (omissions) of State authorities, municipal authorities or their officials is to be compensated and is compensated at the expense of the Treasury of the Russian Federation, treasuries of the constitutive entities of the Russian Federation or treasuries of the municipal authorities respectively.
Taking into account the above-mentioned circumstances, the court concludes that having regard to the lack of funds in the federal budget for the reconstruction and major repair works of the detention facility and to the fact that [the applicant's] arrest was authorised by a prosecutor, the actions of the administration of detention facility no. IZ-39/1 pertaining to [the applicant's] placement and detention in the facility had a lawful character and complied with requirements of the law; thus, the respondents do not bear responsibility under Article 1069 of the Civil Code of the Russian Federation.
...
By virtue of Article 151 of the Civil Code of the Russian Federation, if an individual sustained non-pecuniary damage (physical and moral sufferings) as a result of actions which violated his personal non-pecuniary rights or which encroached on his other non-pecuniary interests or in other cases which are prescribed by law, a court may order that the adversary should compensate non-pecuniary damage.
As it was indicated above, the respondents are not those who caused damage due to the overcrowding in the detention facility cells; lack of repair works; [the applicant] contracting a skin rash; the deterioration of [the applicant's] eyesight; as to [the applicant's] allegations of insufficient food, lighting and provision of essentials, they were refuted by the case file materials; accordingly, the court dismisses [the applicant's] action.”
17. The applicant lodged an appeal statement, complaining, inter alia, that he had not been afforded an opportunity to attend the hearings before the District Court and thus he had been unable to argue his case effectively. The applicant sought leave to appear before the appeal court.
18. On 4 June 2003 the Kaliningrad Regional Court upheld the judgment of 28 February 2003, endorsing the reasons given by the District Court. The relevant part of the judgment read as follows:
“As to [the applicant's] claims of overcrowding in the cells in which he was detained and inability to shower at least once a week, as prescribed by the Rules on Internal Order, those allegations were confirmed; at the same time, those violations of the detention rules did not have a gross and malicious character amounting, as [the applicant] claimed, to torture. For instance, [the applicant] could shower every ten days in view of the throughput capacity of the bathhouse; that fact cannot be considered a serious violation of [the applicant's] rights.
As it follows from a certificate submitted by the facility administration to the court, during the period indicated by [the applicant] from 1,600 to 1,800 persons were detained in the facility, while the maximum permitted number of inmates was 1,015. In such circumstances, the cells in fact occasionally accommodated more inmates than was permitted, however the [permitted] number was not exceeded threefold as [the applicant] claimed. At the same time the [District] Court rightfully considered that there was no guilt on the part of the detention facility in such circumstances, as the facility did not have the right not to admit the detainees when the maximum capacity of the facility had been exceeded. The [District] Court lawfully found that there were no grounds for accepting [the applicant's] action for compensation for non-pecuniary damage as the responsibility under Article 1069 of the Civil Code of the Russian Federation only arises on the condition of guilt on the part of the State authorities, which is absent in the present case.
...
The court cannot accept [the applicant's] argument that his right to defence was violated. Norms of the Code of Civil Procedure (in force at the material time) do not require transport of detainees to courts which examine civil cases. The [District] Court informed [the applicant] of his right to participate in a court hearing through his representative, however, [the applicant] did not want to make use of that right. His requests for appointment of legal aid counsel also could not be granted by the [District] Court because there is no norm in the Code of Civil Procedure which requires Bar Associations to represent interests of such persons in civil cases. At the same time, nothing precluded [the applicant] from asking a Bar Association to represent him.”
The applicant was not brought to the appeal hearing.
19. On 19 April 2000 the applicant was transferred from a colony where he was serving his sentence pursuant to the judgment of 8 September 1999 to facility no. IZ-39/1 to take part in the trial on the charge of disruption of order in the colony. He remained in facility no. IZ-39/1 until 26 September 2000.
20. According to the applicant, he was detained in a number of cells. He provided description of the two cells: cell no. 79 which measured 17 square metres, had 10 sleeping places and accommodated 18 to 24 inmates, and cell no. 29, which measured 10 square metres, had six sleeping places and accommodated 15 inmates. The inmates took turns to sleep. The applicant argued that the sanitary conditions in the cells had been unsatisfactory. The ventilation system did not function, making the heat in summer unbearable. The cells were permanently lit by 40-watt bulbs. The toilet was not separated by a partition from the living area. At no time did the applicant have complete privacy. Anything he happened to be doing – using the toilet, sleeping – was subject to observations by the guard. He could shower twice a month. Of the ten shower heads only five worked and a large group of inmates had to fight for a place to shower within the afforded fifteen minutes. The cells were dirty, damp and full of insects.
21. The Government, relying on certificates issued by the director of the detention facility on 15 July 2009, argued that the applicant had been detained in eight different cells, of which six cells measured between 7.7 and 7.9 square metres and had two sleeping places and the remaining two cells measured 13.4 and 16.7 square metres and were fit to accommodate three inmates. The Government submitted that the number of inmates in the cells had always corresponded to the number of bunks. As follows from a certificate issued by the facility director, the information on the exact number of inmates detained together with the applicant was unavailable as the registration logs had been destroyed.
22. The Government further submitted that each cell had a glazed window 1.2 metre high and 0.9 metre wide, which was covered by thick bars with so-called “eyelashes”, that is, slanted plates approximately two centimetres apart welded to a metal screen, which gave no access to natural air or light. In compliance with the recommendations of the Russian Ministry of Justice issued on 25 November 2002, the latter construction was removed from the windows before March 2003. According to the Government the sanitary conditions were satisfactory. The cells were ventilated and had a central heating system, water supply, sewerage, natural and electric lighting and sanitary equipment. The applicant had free access to drinking water. The toilet was separated by a one-metre-high partition from the living area of the cell. The electric lighting was constantly on for surveillance and safety reasons. At night lower-voltage bulbs were used. The cells were disinfected at least once a month. The applicant was afforded an opportunity to shower every ten days for no less than fifteen minutes. He was provided with an individual bed, mattress, pillow and bed linen.
23. On 9 June 2003 the applicant sued facility no. IZ-39/1 and the Kaliningrad Regional Department of the Federal Treasury for compensation for damage. In his statement of claim he gave a detailed account of the conditions of his detention from 19 April to 26 September 2000.
24. On 23 June 2003 the Tsentralniy District Court stayed the adjudication of the action and asked the applicant to indicate possible evidence showing that the alleged violations had in fact occurred. On 6 August 2003 the Kaliningrad Regional Court upheld that decision. There is no indication that the applicant sought resumption of the proceedings.
25. On 19 December 2003 the applicant was taken from the colony to facility no. IZ-39/1 to attend an appeal hearing pertaining to one of his actions. He was sent back to the colony on 12 January 2004.
26. The Government, relying on a certificate issued on 20 December 2005 by the director of facility no. IZ-39/1, submitted that during that period the applicant had been detained in two different cells, each measuring 7.8 square metres. The Government further noted that the sanitary norm of personal space per inmate had not always been complied with, but the applicant had had an individual sleeping place at all times. According to the Government, the applicant was detained with three other detainees in the first cell. They were unable to indicate the exact number of inmates in the second cell. However, as it follows from the above-mentioned director's certificate, the facility did not have any information on the number of inmates in either of the cells in which the applicant had been detained.
27. Citing the information provided by the director of the facility, the Government further submitted that the cells received natural light and ventilation through a large window, which was double-glazed and measured 1.2 square metres. The windows had a casement. Inmates could request warders to open the casement to bring in fresh air. The windows were covered with latticed partitions to ensure “sound and visual insulation”. The cells had ventilation shafts. The cells were equipped with lamps which functioned day and night. Each cell was equipped with a lavatory pan, a sink and a tap for running water. The pan was separated from the living area by a one-metre-high partition. Inmates were allowed to take a shower once in ten days. Each inmate was afforded at least fifteen minutes to take a shower. The cells were disinfected. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”. According to the Government, detainees, including the applicant, were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. The applicant did not ask for particular medical services. The Government furnished a copy of the applicant's medical record and medical certificates.
28. The applicant did not contest the cell measurements. However, he insisted that the cells had been severely overcrowded and he had had less than two square metres of living surface. Inmates had to take turns to sleep. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the administration did not provide any insecticide. The windows were covered with metal blinds which blocked access to natural light and air. It was impossible to take a shower as inmates were afforded only fifteen minutes and two to three men had to use one shower head at the same time. That situation was further aggravated by the fact that inmates could only take a shower once in ten days. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. Inmates were also allowed to smoke in the cells. The lavatory pan was not separated from the living area by any partition. Thus, inmates were afforded no privacy. No toiletries were provided. The food was of poor quality and in scarce supply. The applicant further argued that medical assistance had been unavailable.
29. The applicant complained to various authorities, including the Secretariat of the President of the Russian Federation, the State Duma, the Governor of the Kalinigrad Region, various prosecutors and the USA Embassy in the Russian Federation, about the conditions of his detention. The complaints were to no avail.
30. On 16 January 2004 the applicant lodged an action against facility no. IZ-39/1, seeking compensation for damage caused as a result of his detention in appalling conditions from 19 December 2003 to 12 January 2004. He also sought leave to appear before the court.
31. On 24 March 2004 the Tsentralniy District Court dismissed the action, relying on the same grounds as were cited in the judgment of 28 February 2003. In particular, the District Court noted that Article 1069 of the Russian Civil Code renders authorities amenable to responsibility for causing damage to individuals only if there has been fault in their actions or omissions. As there was no fault on the part of the domestic authorities for “mental and emotional sufferings or other damage” caused to the applicant, his action could not be accepted.
32. The applicant lodged an appeal statement, complaining, among other things, that the District Court had not granted him leave to appear. The applicant asked to be brought to the appeal hearing.
33. On 12 May 2004 the Kaliningrad Regional Court, in the applicant's absence, upheld the judgment, endorsing the reasons given by the District Court. As to the applicant's complaints that he could not attend the hearings before the District Court, the Regional Court noted that the applicant was serving his sentence in a correctional colony and thus it had been impossible to transport him to the hearings. The Regional Court pointed out that the applicant was aware of his procedural rights as a claimant.
34. At the material time the applicant was serving a prison sentence in correctional colony no. OM-216/13 in the village of Slavyanonvka, Bagrationovskiy District, Kaliningrad Region (also known as facility no. OM-216/13, hereinafter “the colony”).
35. In October 2001 a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences (отдел специального назначения Управления Исполнения Наказаний Минюста России по Калининградской области) arrived at the colony for the purpose of “performing searches in the living quarters of the colony”.
36. The applicant submitted that on 23 October 2001, at approximately 10.00 a.m., several officers had entered cell no. 22 where he had been detained. The officers wore balaclava masks. Without warning or any apparent reason they started hitting the applicant and his nine inmates with rubber truncheons and fists. The applicant fell to the floor but was forced to stand up. The officers, hitting and kicking the inmates, forced them to leave the cell.
37. The inmates were lined up in a corridor with their faces to the wall and were ordered to spread their legs, put their hands against the wall and to remain spread-eagled for ten minutes. The beatings continued. Subsequently the applicant and his inmates were taken to the entrance door where they saw two rows of officers wearing balaclava masks. The applicant was told to run between these rows to a car. While he was running, he received several blows to his back and his head with rubber truncheons. On the way back the applicant and other inmates again had to pass between the rows of masked officers, who subjected them to the beatings with rubber truncheons.
38. The applicant and the inmates were lined up with their hands against the wall and their legs wide apart. After three to four minutes of maintaining that position the applicant started feeling dizzy and his legs and arms swelled up. An officer hit the applicant with his fist on the left side of the back. Then several wardens in balaclava masks approached the inmates and started beating them up. The applicant was hit several times on the head, back and legs. He had been pushed strongly against the wall and his forehead was cut and bleeding. The beatings continued for another ten minutes.
39. During the following three days the applicant unsuccessfully requested the colony director to be examined by a doctor. On 26 October 2001 the applicant was visited by a colony doctor, who refused to record his injuries but ordered him to be confined to bed. According to the applicant, that fact was recorded in register no. 29 of the penal ward (журнал учета № 29 ПКТ-ШИЗО).
40. The Government disputed the applicant's description of events. They relied on a handwritten report by the head of the special-purpose unit, Mr M., who stated that no force or special measures had been used on 23 October 2001.
41. The Government submitted that on 23 October 2001 inmates in cell no. 22 had broken the sewage system and had begun “demanding to be detained in satisfactory conditions”. The officers of the special-purpose unit and the colony administration ordered the detainees to leave cell no. 22 and to move to cell no. 3. After the inmates had been body searched, they complied with the order. The unit officers searched the cell and found several forbidden objects, such as a metal pipe and a shaver. The Government noted that the colony doctor present during the search had recorded that the inmates had not had any complaints. The Government did not produce a copy of the relevant part of register no. 29 of the penal ward alleging its destruction in April 2005.
42. In his numerous letters to the Court and complaints to domestic authorities, the applicant provided accounts of events which had occurred on 7 November 2001. Inconsistencies abounded in those various accounts, but, in general, the applicant's version was as follows. He alleged that on 7 November 2001 he had complained to an officer on duty, Mr L., that the injuries sustained by him on 23 October 2001 had not still been properly recorded. Mr L. quickly looked through written complaints given to him by the applicant and started insulting and threatening the applicant. Following a quick argument, Mr L. took the applicant to his office and hit him several times in the hip area. The applicant fell down and the officer hit him twice in the face with his fist. Before placing the applicant back in his cell, the officer again hit him several times on the side of the back and pushed him into the cell. The latter episode was witnessed by six inmates detained together with the applicant in the cell and two warders.
43. The Government, relying on a report written by the officer on duty, Mr L., on 7 November 2001, submitted that the applicant had disobeyed a lawful order by the duty officer and force had been used to suppress the disobedience. The report read as follows:
“[I] report that on 7 November 2001, at 8.50 a.m., during a check-up and examination of cells in the penal ward [I] made a remark to an inmate, [the applicant], as he was dressed improperly ([he] was standing in his underwear). [He] started explaining that he had washed his trousers. He was told to put on clean trousers. In response he began talking in a loud voice. Subsequently he was informed that he would be reported to [the facility administration]. In response he said: “Write twenty of those. ...[obscene language]”). [The applicant] was instructed to go to the duty room for a discussion concerning his dishonourable behaviour. When accompanied to the duty room, he tried to offer resistance. Having pushed me, [he] tried to run to his cell. Subsequently [I] used physical force, put [the applicant] on the floor using a fight method, and [I] gripped his arm, using a fight method.”
44. The applicant was examined by a doctor on the same day. The doctor recorded an abrasion on the side of the applicant's back. The applicant alleged that the doctor had refused to record other injuries. On the following day the applicant applied to the head of the colony seeking a thorough medical examination and asking for his injuries to be properly recorded. According to the applicant, that complaint brought no response.
45. According to the Government, on 18 January 2002 approximately 260 inmates, including the applicant, went on hunger strike. Approximately forty inmates performed acts of self-mutilation. Three days later a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences arrived at the colony to give assistance in “performing searches in the living quarters of the colony” as the hunger strike and self-mutilations continued.
46. The Government further submitted that on 21 January 2002, at about 4.30 p.m., a group of officers had entered cell no. 3, where the applicant had been detained, with the intention of searching it. The applicant refused to leave the cell, used offensive language, insulted warders and pulled their clothes. Following the applicant's refusal to stop his unlawful behaviour, an officer was forced to “use a rubber truncheon” against him. The applicant was taken out of the cell and body searched. A razor from a disposable shaver was seized. Relying on a certificate issued by the head of the colony medical division, the Government noted that the applicant had not applied for medical assistance between 21 January and 20 March 2002.
47. The applicant disputed the Government's version of events, arguing that after he had made known to the colony administration his intention to go on hunger strike, on 21 January 2002 a group of officers wearing balaclava masks had stormed into his cell and had taken inmates, apart from him, into a corridor. Then they hit him twice in the chest and head. The officers accompanied the beating with questions about the applicant's refusal to eat. Afraid for his life, the applicant promised to renounce his intention to take part in the collective hunger strike. He was taken to a corridor where some forty officers in balaclava masks stood. They intimidated and beat the applicant and his inmates. The applicant unsuccessfully asked the colony administration to record injuries sustained as a result of the beating.
48. The applicant submitted several detailed complaints to the Kaliningrad Regional Prosecutor about the events of 23 October and 7 November 2001 and 21 January 2002. He referred to Article 3 of the Convention, urging the prosecutor to institute criminal proceedings against the officers involved in the beatings, and identified witnesses who could have corroborated his complaints. It appears that a number of inmates lodged similar complaints of ill-treatment before the Kaliningrad Regional Prosecutor.
49. On 20 March 2002 the Kalinigrad Regional Prosecutor refused to institute criminal proceedings upon the applicant's and his inmates' complaints, finding no prima facie case of ill-treatment. That decision was based exclusively on statements by warders and officers of the special-purpose unit.
50. On 21 October 2002 the Tsentralniy District Court of Kaliningrad upheld the prosecutor's decision. That decision was quashed on appeal on 24 December 2002 by the Kaliningrad Regional Court on the ground that the applicant had not been allowed to attend the hearing before the District Court or to present his version of events.
51. On 17 March 2003 the Tsentralniy District Court again upheld the prosecutor's decision of 20 March 2002. The District Court's decision was quashed on appeal on 27 May 2003 because the District Court had not examined the complaints pertaining to the events on 7 November 2001.
52. On 25 June 2003 the Tsentralniy District Court quashed the prosecutor's decision and remitted the case for a fresh inquiry. The District Court reasoned that the prosecutor had not addressed the applicant's complaints of ill-treatment which had allegedly occurred on 7 November 2001.
53. Two weeks later, on 9 July 2003, the Kalinigrad Regional Prosecutor dismissed the applicant's ill-treatment complaints, refusing to institute criminal proceedings. The decision, based on the statements by the colony administration, warders and officers of the special-purpose unit, indicated that on 23 October 2001 no force had been applied to the applicant and his inmates because there had been no need to use force and that the applicant had not complained to a doctor about his state of health.
In respect of the events on 7 November 2001 the prosecutor found that the use of force had been necessary because the applicant had disobeyed lawful orders of the officer on duty and had tried to run in the corridor. The applicant had been examined by a prison doctor, who had not recorded any injuries, save for an abrasion on his back which could have been sustained for some other reasons.
As to the events on 21 January 2002, the prosecutor established that the applicant had refused to leave his cell, had sworn obscenely, had threatened wardens and pulled their clothing. The applicant had been hit with a rubber truncheon to stop his unlawful behaviour. The prosecutor concluded that the use of force had been lawful.
54. The applicant appealed against the prosecutor's decision to the Tsentralniy District Court. He furnished a list of inmates who could have corroborated his description of events, asked for them to be heard and also sought leave to appear before the court.
55. On 23 September 2003 the Tsentralniy District Court dismissed the complaint. The relevant part of the decision read as follows:
“[The applicant] was duly informed about the place and time of the hearing; it was explained to him that it was impossible to transport him to the hearing; his absence could not preclude the examination of the complaints by the court.
Having examined the case file materials, the decision of 9 July 2003, materials pertaining to [the applicant's] complaints to supervisory review instances, similar complaints by inmates, Mr B., Mr G., Mr M., and by a lawyer, Mr Me., and having heard the prosecutor who had insisted that the decision of 9 July 2003 and the prosecutor's actions were lawful and well-founded, the court finds as follows.
... The [prosecutor] carried out an inquiry into the three episodes [on 23 October and 7 November 2001 and 21 January 2002] and the court considers it lawful that while examining [the applicant's] new complaints, which did not contain any new information or facts pertaining to those episodes, [the prosecutor] used the findings of the previous inquiry.
... Thus, while carrying out an inquiry a prosecutor has the right to assess the necessity (or its absence) to question an applicant or witnesses, or to take other investigative measures.
The Kaliningrad Regional Prosecutor, Mr Ko., examined [the applicant's] request of 14 July 2003 concerning the necessity to interrogate inmates of detention facility no. OM-216/13, and informed [the applicant] about it.
The court did not establish, and [the applicant] did not present any evidence concerning a violation of his constitutional rights and freedoms or his right of access to a court by the contested decision of 9 July 2003 by which the institution of criminal proceedings had been refused or by other actions (omissions) of the prosecutor.
Having regard to the above-mentioned circumstances, the court dismisses [the applicant's] complaint...
The court does not grant [the applicant's] request for witnesses to be heard, because Article 125 of the Code of Criminal Procedure indicates the exhaustive list of persons who can take part in an examination of a complaint against a prosecutor's decision not to institute criminal proceedings or against other decisions and actions of a prosecutor. Those whose appearance before the court [the applicant] sought are not included in that list; a number of [witnesses] are inmates serving sentences in detention facilities and therefore they may not be transported to the courthouse to take part in the proceedings. [The applicant] was informed that it was impossible for witnesses to be heard.”
56. The applicant appealed, complaining, inter alia, that neither the prosecutor nor the District Court had heard him or other detainees who could have confirmed his statements, that they had not taken medical evidence and had limited their inquiry to statements by the colony officers.
57. On 18 November 2003 the Kaliningrad Regional Court upheld the decision of 23 September 2003, endorsing the reasons given by the District Court. The Regional Court noted that the applicant's presence at the hearings before the courts had not been necessary and that the District Court had rightfully refused to hear witnesses.
58. On 13 February 2006 the Presidium of the Kaliningrad Regional Court, by way of a supervisory review, quashed the decisions of 23 September and 18 November 2003, noting a violation of the applicant's right to take part in the hearings before the courts.
59. On 29 March 2006 the Tsentralniy District Court quashed the prosecutor's decision of 9 July 2003 and ordered a fresh inquiry into the applicant's ill-treatment complaints. The relevant part of the decision read as follows:
“... during an inquiry into a complaint concerning a criminal offence committed, a prosecutor must thoroughly and objectively investigate all circumstances pertaining to the facts indicated in that complaint; this means that he must question all interested parties, in [the applicant's] case [he] must order an independent medical examination of the detainee, following which and having analysed all established circumstances and having performed an evaluation, [he] should issue one of the decisions indicated in Article 145 of the Code of Criminal Procedure of the Russian Federation.
As it appears from the investigation file presented by the prosecutor and from the materials of the supervisory review, the inquiry into [the applicant's] complaints was not performed consistently, it was chaotic, [the applicant] himself and the eyewitnesses, indicated by [the applicant] in his complaints, were not questioned; [the prosecutor] received merely formal explanations from the officers; it is clear from those explanations that the prosecutor himself did not interrogate those officers; an independent medical examination of [the applicant] for a purpose of establishing injuries was not performed.
In such circumstances, [the court] considers that the prosecutor's inquiry into [the applicant's] complaint was performed formally and subjectively, and that the contested decision by which the institution of criminal proceedings was refused is unsubstantiated.
However, it is necessary to take into account that more than four years have passed since the events complained of by [the applicant] and it will be difficult to remedy the insufficiency of the prosecutor's inquiry into the complaints about the crime.”
The applicant attended the hearing.
60. It appears that the investigation is now pending.
61. On 21 February 2002 the applicant and another inmate, Mr B., lodged actions against colony no. OM-216/13 and the Kaliningrad Regional Department of the Federal Treasury, seeking compensation for damage caused by beatings on 23 October and 7 November 2001 and 21 January 2002.
62. In May and June 2002 the applicant submitted several motions to the court, seeking leave to appear, asking to summon witnesses on his behalf and to obtain certain medical documents from the respondents.
63. On 26 April 2004 the Bagrationovskiy District Court, Kaliningrad Region, held a hearing in colony no. OM-216/13. The District Court heard the applicant, his co-plaintiff, the representative of the colony, and a number of witnesses. Both the applicant and his co-plaintiff insisted that the beatings had taken place. The representative of the colony confirmed that on 23 October 2001 physical force and rubber truncheons had been used against the applicant. However, he stressed that the use of the force and special means had been lawful. The head of the medical department of the colony and a prison doctor did not remember examining the applicant after the beatings. Having heard the parties and witnesses, the District Court dismissed the actions, holding, in so far as relevant, as follows:
“At the plaintiffs' request the court heard, as witnesses, inmates who are serving sentences in that colony. Thus, witness T. confirmed that [the applicant] had been beaten by officers of the special-purpose unit on his way to the penal ward and in the walking area, while witnesses Kh. and Ga. (warders in the colony) did not confirm that allegation in the court hearing.
An extract from [the applicant's] medical record confirms that on 26 October 2001 [the applicant] consulted a prison doctor, and an extract from register no. 29 of the penal ward corroborates the fact that the prison doctor, Mr G., had ordered that [the applicant] should be confined to bed until 29 October 2001.
A witness, [the prison doctor], Mr G. stated in the court hearing that there is no information in the [applicant's] medical record pertaining to his applying for medical assistance on 23 October 2001. On 26 October 2001 he ordered [the applicant] to be confined to bed at the latter's request, as [the applicant] claimed that he was tired. [Mr G.] never refused to examine inmates, and in January 2002 he was on leave.
Witnesses Mr Gr., Mr K., Mr Gu. and Mr Ta. testified that in the morning of 7 November 2001 there had been a loud argument between [the applicant], who was not dressed properly, and the officer on duty, Mr L., [and] stated that [the applicant] had been taken out of the cell and that Mr L. had twice hit [the applicant] with his fist on the back when the latter was brought back to the cell.
As it follows from the statements by Mr L., [the applicant] responded rudely to Mr L.'s remark about his clothes; he was taken to the duty room to provide an explanation about the incident. However, [the applicant] pushed Mr L. aside and began running to his cell, screaming that he had been beaten up. Due to such disobedience, physical force in the form of a fight method was applied to [the applicant]. The testimony of this witness is confirmed by his report to the director of colony no. 216/13 made on 7 November 2001.
An act was drawn up on 7 November 2001 as a confirmation of a use of force against [the applicant], on the same day a medical assistant, Ms Lo., recorded an abrasion on the left side of the small of [the applicant's] back.
[The applicant] applied to a Justice of the Peace of the 1st Court Circuit with a complaint, seeking institution of criminal proceedings against Mr L., the warder in colony no. 216/13, alleging that he had committed libel by writing that report.
The above-mentioned Justice of the Peace, in his decision of 20 October 2003, acquitted Mr L. of the charge of libel brought against him by [the applicant]... Thus, the court, in the course of the examination of the case, established that there had existed circumstances caused by [the applicant's] behaviour which had prompted the use of force against [the applicant], and that Mr L.'s report had described the events of 7 November 2001 correctly. The decision of 20 October 2003 was upheld on appeal by the decision of the appellate court on 11 February 2004 and became final on 13 April 2004.
An extract from [the applicant's] medical record certifies that he did not apply for medical assistance between 26 October and 4 December 2001.
On 21 January 2002, on an order of the head of the Kaliningrad Regional Department for Execution of Sentences, officers of the special-purpose unit arrived to colony no. OM-216/13 to give assistance to the colony administration in searching the living quarters and cells, having regard to an ongoing collective hunger strike and self-mutilations. At the same time a number of forbidden objects were seized from the penal ward, where [the applicant and his co-plaintiff] were detained.
A rubber truncheon was used against [the applicant] who tried to resist an officer from the special-purpose unit, which is confirmed by the report and act of application of a rubber truncheon issued on 21 January 2002.
As it follows from [the applicant's] medical record, medical assistance was not provided to him between 17 January and 11 March 2002.
The Kaliningrad Regional Prosecutor's Office carried out an inquiry pertaining to the three episodes of beatings of which [the applicant] complained; as a result of the inquiry the prosecutor issued a decision on 9 July 2003 refusing to institute criminal proceedings as there was no criminal conduct in the actions.
[The applicant] appealed against that decision in compliance with Article 125 of the Code of Criminal Procedure. The Tsentralniy District Court of Kaliningrad, by its decision of 23 September 2003, dismissed [the applicant's] complaint, finding that the disputed decision of the prosecutor was lawful and well-founded. The court decision became final on 18 November 2003.
...
The Court does not have any grounds to doubt the above-mentioned court decisions. [The court] did not establish any instances of unlawful use of physical force against the plaintiffs in the course of the present proceedings, which allows the court to conclude that [the applicant's]... claim is unsubstantiated.”
64. The applicant appealed, also requesting the appeal court to ensure his presence at the hearing.
65. On 13 October 2004 the Kaliningrad Regional Court upheld the judgment of 26 April 2004, endorsing the reasons given by the District Court. Neither the applicant nor the representative of the respondents was present.
66. On 19 May 1999 six HIV-positive detainees arrived at the colony, where they stayed until 26 May 1999. The Government, relying on the information provided by the colony director, submitted that the HIV-positive detainees had been accommodated in a separate colony unit. The colony administration assigned a day when only those detainees could take showers and allocated separate medical equipment to them. Bedding provided for those detainees was changed and washed separately from that of the rest of the detainees. The tableware given to the HIV-positive detainees was also washed and disinfected separately. The colony administration, assisted by medical specialists, organised a meeting with the detainees and lectured them on AIDS and on how the virus could be transmitted. They also warned the HIV-positive detainees that knowingly transmitting HIV was a criminal offence. The Government submitted that the colony administration had taken every necessary precaution to prevent the spread of the disease in the colony. In particular, they prevented the use of drugs, sexual contact between inmates and tattooing. They also provided contraceptives to inmates who were allowed to have long-term meetings with relatives. The Government stressed that as a result of those actions no detainee had contracted HIV.
67. In 2000 and 2003 the applicant unsuccessfully sought institution of criminal proceedings against the colony administration because the HIV-positive detainees had been admitted to the colony.
68. On 20 March 2003 the Kaliningrad Regional Prosecutor sent a letter to the applicant informing him that his request had already been dismissed in 2000.
69. The applicant complained to a court that the prosecutor had failed to discharge his duties by refusing to reconsider his request.
70. On 29 July 2003 the Kaliningrad Regional Court, in the final instance, dismissed the complaint and discontinued the proceedings because an appeal should have been lodged against the decision of 2000 rather than against the letter of 20 March 2003.
71. On 1 March 2002 the applicant lodged an action against the Kaliningrad Regional Prosecutor and the Kaliningrad Regional Department for Execution of Sentences, seeking compensation for non-pecuniary damage. He claimed that he had feared for his life because the HIV-positive detainees had stayed in the colony. He also sought leave to appear.
72. On 20 March 2002 the Tsentralniy District Court informed the applicant that the hearing had been listed for 5 April 2002. The District Court also noted that the law did not provide a detainee with the right to attend a hearing in a civil case and that the applicant could appoint a representative or allow the District Court to adjudicate the action in his absence.
73. On 5 April 2002 the District Court dismissed the action, holding that the colony administration had taken the necessary steps to prevent the risk of HIV contagion and that no-one in the colony had contracted HIV. The administration provided the HIV-positive detainees with separate kitchenware. The detainees took showers separately and medical assistance was provided to them in a separate facility and with separate equipment. The colony administration organised meetings with detainees and lectured them on how AIDS could be transmitted. At the same time the District Court noted that the applicant could not contract HIV by taking showers or eating in the same premises as the HIV-positive detainees.
74. On 24 July 2002 the Kaliningrad Regional Court upheld the judgment. The applicant was not present.
75. On 26 February and 6 March 2002 the applicant lodged two tort actions against the Gvardeyskiy District police department and colony no. OM-216/13. In the first action the applicant claimed that in August 1998 police officers of the Gvardeyskiy District police department had seized his personal belongings and had not returned them to him. He further argued that he had been placed in the facility of that police department, where he had been detained in poor conditions and had only been provided with food once a day. In the second action he complained that the administration of colony no. OM-216/13 had not arranged screenings of films, as provided for by the domestic law.
76. On 13 May 2002 the Gvardeyskiy District Court dismissed the first action, finding that the applicant's allegations of insufficient food were false, and that his personal belongings had been seized lawfully.
77. On 7 August 2002 the Bagrationovskiy District Court dismissed the second action, holding that the domestic law did not provide detainees, including the applicant, with the right to see films.
78. On 21 August and 4 December 2002 the Kaliningrad Regional Court upheld the judgments of 13 May and 7 August 2002 respectively. The applicant was not brought to either the first-instance or the appeal hearings despite his requests.
79. On 31 January 2003 the applicant asked the colony administration to provide him with his medical records. On 5 March 2003 the administration provided him with general information about the state of his health and refused to give him the full record.
80. On 14 March 2003 the applicant unsuccessfully asked a prosecutor to institute criminal proceedings against the administration. On 23 September 2003 the Kaliningrad Regional Court, acting on an appeal by the applicant against the prosecutor's decision, discontinued the proceedings.
81. On 17 February and 25 April 2003 the applicant unsuccessfully asked various prosecutors to institute criminal proceedings against a judge who had determined one of his claims. Subsequently, the applicant complained to a court that the prosecutors had failed to discharge their duties. On 29 June and 29 July 2004 the Kaliningrad Regional Court, in the final instance, disallowed the complaints and discontinued the proceedings.
82. On 1 February 2004 the applicant asked for a transfer to another colony. On 17 August 2004 the Kaliningrad Regional Court, in the final instance, granted the request and held that the applicant should stay in a lower security colony.
83. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ 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.
84. When using physical force, special means or weapons, the penitentiary officers must:
(1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees;
(2) ensure the least possible harm to detainees and provide medical assistance;
(3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28).
85. Rubber truncheons may be used for
(1) putting an end to assaults on officers, detainees or civilians;
(2) repressing mass disorders or group violations of public order by detainees, as well as for apprehension (задержание) of offenders who persistently disobey or resist the officers (section 30).
86. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities' own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate or continue a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Articles 113 and 209).
87. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (“the new CCP”). Article 125 of the new CCP 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.
88. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the 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.
89. Limitation of a citizen's rights and freedoms because of his or her HIV status may be authorised only by federal law (section 5 of the Law on Prevention of Propagation of HIV infection, 38-FZ of 30 March 1995). Detainees are subject to a compulsory medical examination (section 9 of the Law). A person who has tested HIV-positive must be informed thereof, be informed of the need to take precautions for preventing transmission of HIV and warned that contamination of others or exposing others to a risk of contamination is a criminal offence (section 13 of the Law; Article 122 of the Criminal Code).
90. According to the Rules on Compulsory Testing of Prisoners for HIV infection (adopted by the Russian Government on 28 February 1996), the prison administration must take measures preventing transmission of HIV; medical and other staff must not disclose information relating to a detainee's HIV status (Rules 11 and 13).
91. Section 101 § 2 of the Penitentiary Code provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts, alcoholics, HIV and tuberculosis infected prisoners. Federal Law No. 25-FZ of 9 March 2001 repealed that provision in so far as it related to HIV-positive prisoners.
92. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage (section 26 § 1).
93. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to a temporary detention facility if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or defendant.
94. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person's access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant's submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008).
95. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
96. The relevant extracts from the 11th General Report [CPT/Inf (2001) 16] prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning transmissible diseases read as follows:
“31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries....
...[T]he act of depriving a person of his liberty always entails a duty of care...
The use of up-to date methods for screening, the regular supply of medication...constitute essential elements of an effective strategy...to provide appropriate care to the prisoners concerned.
...[T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive.
...[I]t is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. More particularly, the risks of HIV or hepatitis B/C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained...”
97. The relevant parts of the Appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organisational aspects of health care in prison read as follows:
“13. Medical confidentiality should be guaranteed and respected...
38. The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medical reasons.
39. No form of segregation should be envisaged in respect of persons who are HIV antibody positive, subject to the provisions contained in paragraph 40.
40. Those who become seriously ill with Aids-related illnesses should be treated within the prison health care department, without necessarily resorting to total isolation. Patients, who need to be protected from the infectious illnesses transmitted by other patients, should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections...”
98. The relevant part of the Appendix to Recommendation no. R (93) 6 of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison reads as follows:
“9. As segregation, isolation and restrictions on occupation, sport and recreation are not considered necessary for seropositive people in the community, the same attitude must be adopted towards seropositive prisoners.”
99. Detention of HIV-positive persons was also examined in the following Recommendations of the Committee of Ministers to Member States: no. R (89) 14 on the ethical issues of HIV infection in the health care and social settings; and no. R (98) 7 concerning the ethical and organisational aspects of health care in prison.
100. Similar recommendations were made by the 1993 World Health Organisation in the Guidelines on HIV infection and AIDS in prisons:
“27. Since segregation, isolation and restrictions on occupational activities, sports and recreation are not considered useful or relevant in the case of HIV-infected people in the community, the same attitude should be adopted towards HIV-infected prisoners. Decisions on isolation for health conditions should be taken by medical staff only, and on the same grounds as for the general public, in accordance with public health standards and regulations. Prisoners' rights should not be restricted further than is absolutely necessary on medical grounds, and as provided for by public health standards and regulations...
28. Isolation for limited periods may be required on medical grounds for HIV-infected prisoners suffering from pulmonary tuberculosis in an infectious stage. Protective isolation may also be required for prisoners with immunodepression related to AIDS, but should be carried out only with a prisoner's informed consent. Decisions on the need to isolate or segregate prisoners (including those infected with HIV) should only be taken on medical grounds and only by health personnel, and should not be influenced by the prison administration....
32. Information regarding HIV status may only be disclosed to prison managers if the health personnel consider...that this is warranted to ensure the safety and well-being of prisoners and staff...”
VIOLATED_ARTICLES: 13
3
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3
6
NON_VIOLATED_PARAGRAPHS: 6-1