5.The applicant was born in 1976 and lives in Kriva Palanka.
A.The applicant’s transfer to Bardovci hospital on 29 October 2009
6.On 24 April 2009 the applicant was operated on for stomach cancer and subsequently underwent chemotherapy.
7.On 29 October 2009 she had been feeling anxious and distressed, and her husband requested medical assistance from Kriva Palanka hospital (110 km from Skopje). Dr M., a general practitioner, gave an instruction that the applicant was to be transferred to a psychiatric clinic in Skopje. Dr C.T., a specialist in neuropsychiatry in Kriva Palanka hospital, also gave instructions for her to be transferred to that clinic with police assistance.
8.Still on 29 October, at around 5 pm., an ambulance arrived at the applicant’s house in the village of Uzem. Two police officers, who were later identified as M.N. and I.A. in the subsequent criminal proceedings, assisted with the applicant’s transfer to the Bardovci psychiatric hospital in Skopje, where she remained until 31 October 2009.
9.The relevant parts of a notice of her discharge, dated 2November 2009 from Bardovci hospital provide as follows:
“[This is the] first admission of (the applicant) to this hospital; it was carried out with the assistance of the police from Kriva Palanka.
According to the limited information obtained from (the applicant’s) husband by telephone, (it is known) that since summer this year, when she was diagnosed with and treated for stomach cancer, (the applicant) had become ... melancholic, lethargic, and had threatened with committing suicide.
When admitted, [the applicant] was malnourished, dehydrated, and had several haematomas of different sizes, most probably of recent date (најверојатно од понов датум) ... Concerning her psychological state she was depressed, anxious, tearful, and fixated on her poor state of health (cancer) ...she was burdened with depressive ideas and had a paranoid attitude towards her husband, which may be well-founded ...
She is discharged without having been examined or treated, at her husband’s request.”
10.Following her discharge from the hospital in Skopje, the applicant was on the same day admitted to the Kriva Palanka hospital. A handwritten medical certificate was issued and entered in the hospital’s records under no. 2131. At the applicant’s request a transcript of this certificate was made by Dr G.S. The relevant parts of this certificate state that:
“[According to the applicant] she was handcuffed by the police during her transfer to Bardovci psychiatric hospital, as instructed by a doctor. Objectively: haematoma measuring 2 x 6 cm on both forearms around the wrist joints; 3 hematomas measuring 1 x 2 cm on both lower legs. On the right hip, (a haematoma) measuring 1 x 2 cm.
Regarding these injuries, [the applicant] says that they were inflicted by kicks and blows.”
11.Still on 31 October 2009 the applicant was also examined by Doctor M. (see paragraph 7 above). The relevant parts of the medical certificate issued on that date read as follows:
“On 29 October 2009 at about 5 pm., on a request by (the applicant’s) husband and as suggested in (a neuropsychiatric opinion), the patient was transported to Skopje psychiatric clinic. The applicant states that she was abused during the transfer: she was hit and punched on the legs, [a third person] sat on her legs, and her hands were handcuffed behind her back. When she arrived she was treated violently by hospital staff.
When examined ... [the following] is observed: [she] is upset; a haematoma and a scratch on the lower legs, thus 4-5 scratches on the right side measuring 1 x 2 cm; on the left side 4-5 (scratches) measuring 1 x 2 cm and 2 x 2 cm; haematomas and (two) scratches on the stomach measuring 3 x 1 cm; 5 scratches on the back measuring 5 x 6 cm; some small haematomas ...
The patient has visible injuries caused by a trauma, namely hitting and punching.
Opinion: light bodily injury.”
12.On 15 February 2010 Doctor M. issued a certificate that on 29October 2009 the applicant had been examined and that an instruction had been given for her to be transferred to Skopje psychiatric clinic.
13.In support of the application before the Court, the applicant provided four photographs of her, showing the following injuries: five scratches on the lower and middle part of the back; two scratches and a haematoma on her stomach, and several haematomas on the lower legs.
B.Police reports regarding information obtained from third parties
1.Statement by S.V., a doctor at Kriva Palanka hospital
14.On 21 November 2009 the police drew up an official note (службена белешка) regarding information obtained from Dr S.V. As indicated in the note, S.V. decided, “for the sake of truth”, to provide relevant information in reaction to a television interview broadcasted on 3November 2009 in which the applicant had stated that she was ill-treated by police officers during her transfer to Bardovci hospital. During the interview she showed the injuries that she had allegedly sustained. The relevant parts of the note read as follows:
“... I want to say that on 27 October 2009 at 9 pm., I was called, through the duty medical centre of Kriva Palanka hospital, to intervene in an urgent case reported by (the applicant’s) husband. I arrived at a pensioners’ home in Kriva Palanka, where (the applicant and her husband) were waiting. (The husband) told me that (the applicant) had injured herself, namely that she had hit her body and head against a wall and a bed; her face was covered with blood, and there was blood on the floor in front of the door. That suggested that she had had a nervous breakdown, for which I prescribed treatment.
In my opinion and in view of the foregoing, it is most likely that the injuries she showed to the cameras were self-inflicted on the date indicated above, which was when I intervened.”
2.Statement by L.S., a neighbour of the applicant
15.On 3 December 2009 L.S. provided information to the police in relation to media statements by the applicant and her husband that the applicant had been ill-treated by the police. L.S. stated that the applicant’s husband had beaten the applicant on three occasions (she did not specify the exact dates when the alleged beatings had happened, but she confirmed that it had been on “the nights of Thursday, Friday and Saturday”). She further stated:
“During the Sunday night two women, most likely journalists, visited [the applicant’s husband]. On the Tuesday [the applicant’s husband] invited residents to watch on television ‘how do the police from Kriva Palanka work. I put them in a mould; I’ll take a lot of money from them’.
I personally believe that [the applicant’s] injuries were inflicted by [her husband] who, while intoxicated, beats her up every day in front of their children.”
16.The note further indicated that four individuals (whose identity was specified), together with other residents in the building in which the applicant lived, could be interviewed regarding the case.
3.A letter regarding L.S.’s statement
17.On 11 January 2010 the police informed the applicant’s husband that on 3 December 2009 L.S. had made a complaint against him, and that an official note had been drawn up. As stated in the letter, both the applicant’s husband and L.S. had been advised to stop arguing in future. The letter further indicated that L.S. had been warned that in the event of false reporting a misdemeanour complaint would be lodged against her.
C.Criminal proceedings instituted by the applicant
18.In submissions of 27 January and 18 February 2010 the applicant brought criminal charges of medical malpractice against Dr C.T. alleging that he had instructed her to undergo a psychiatric examination without examining her, against V.S., a nurse who had accompanied the applicant during her transfer to Skopje (she had been sitting in the front passenger seat), and against M.N. and I.A., the police officers, for inflicting ill-treatment and mild bodily injury. She alleged that on 29 October 2009 she had been distressed. In the circumstances, her husband had gone to Kriva Palanka hospital, where Dr C.T. had decided that she be transferred to Skopje psychiatric clinic with assistance from the police. Doctor M. had also issued a recommendation in this respect (see paragraph 7 above). The applicant claimed, inter alia, that M.N. and I.A. had forcibly put her in the ambulance, stating that they had grabbed her arms and dragged her to the ambulance, ignoring her cries of pain from the surgery. After she had been put in the ambulance, she had been forcibly made to lie on a bed with her hands handcuffed behind her back. I.A. sat on her legs. They had gone, firstly, to Kriva Palanka hospital where Dr C.T. had given instructions, by telephone, to V.S. to administer an injection. The applicant alleged that on the way to Skopje she had been hit, punched and threatened by the police officers. As a result, she had “several injuries (haematomas) all over the body and limbs and five to seven marks on the back from the handcuffs, of which I have photographs”. In support of her complaint she attached medical certificates (see paragraphs 9, 10, 11 and 12 above).
19.On 31 March 2010 the public prosecutor contacted the Ministry of the Interior with a request for further information regarding the incident. In reply, on 26 May 2010 the Sector for Internal Control and Professional Standards within the Ministry of the Interior submitted a “special report” regarding the case. It referred to statements (which it submitted in support) which Dr C.T., the applicant and her husband had given to the police between 13 and 15 April 2010.
20.Dr C.T. confirmed that on 29 October 2009 the applicant’s husband had told him that they lived in the pensioners’ home in Kriva Palanka; that the applicant’s mental health was poor; that she had arrived at their family house in the village of Uzem (see paragraph 8 above) without his consent; that she had broken a window to get in; that she had been aggressive and was capable of killing herself, their children or himself; that she had been uncooperative; and that she had refused to sleep or eat.
21.In the statement, the applicant’s husband confirmed that the applicant’s mental health had deteriorated since the stomach surgery, and that he had explained “her condition” to the doctors M. and C.T. during his visit of 29 October 2009. He also informed the police officers M.N. and I.A. about her state of health while he was in the ambulance with them on the way to their family house. When they got to the house he had asked the police officers to wait outside so that he could explain to the applicant that she was going to be taken to a psychiatric hospital. When the police officers had entered the house their children had started crying and putting their arms around the applicant. The police officers had forcibly separated the children from the applicant; they had grabbed her by the arms and dragged her (while she was on her knees) towards the door. After the situation had calmed down and in order not to harm the applicant, he had taken her by the legs, and he and the police officers had taken her to the front of the ambulance. Then the police officers had put her in the ambulance; they had handcuffed her hands behind her back and made her lie on a bed. To keep her still, I.A. had sat on her legs. The police officers had remained with the applicant in the rear of the ambulance, while V.S. had sat in the front passenger seat. While he had been occupied with the children in the house, the ambulance had left the scene. The next day he had found out that the applicant had been taken to Bardovci hospital; he went there, but no visits were allowed that day.
22.In depositions made on 15 April 2010 the applicant confirmed that on 29 October 2009 she had consented to be taken to Skopje psychiatric clinic; that the police officers had grabbed her hands and dragged her; that before she got into the ambulance M.N. had hit her on the back with a baton; and that her husband had helped M.N. and I.A. to bring her to the front of the ambulance. She also stated that no infusion or injection had been administered when they had stopped at Kriva Palanka hospital; that during the transfer to Skopje hospital (the ambulance had been driven at excessive speed) her hands had been handcuffed behind her back; that I.A. had been sitting on her legs and that she (I.A.) had hit her on the legs and head with a truncheon; that M.N. had grabbed her hair and had tightened up the handcuffs; that both M.N. and I.A. had punched her and hurt her legs. When she was admitted to Bardovci hospital she was bleeding and had bruises.
23.The “special report” of the Ministry further referred to statements given by doctors S.V. and L.S. (see paragraphs 14 and 15 above). It also specified that the police officers concerned had denied that they had used any force against the applicant, and that the applicant had used offensive language against them and had been screaming loudly. The record also stated that V.S. (the nurse) and J.D. (the driver of the ambulance), had also denied that the police officers had used any force against the applicant. The report went on to state:
“when (the police officers) arrived at (the applicant’s) house, they were warned by the (applicant’s) husband to be cautious because Marina had a knife with which she might assault them. For that reason, he proposed going into the house first to tell (the applicant) that she was going to be taken to Skopje for medical treatment. After five minutes, (the applicant’s husband) went out and called (the police officers) into the house. The police officers went in and told Marina that they would have to transfer her by ambulance to a health institution in Skopje. In response to that, Marina said to (her husband): do I deserve this from you, being taken for medical treatment; I do not belong there, you should go there because you are drunk every day and you constantly abuse and hit me and the children; I’m covered in bruises because of you ...
Throughout the journey, (the applicant) used offensive language against the police officers and the nurse, she [the applicant] was very aggressive and angry, and she was screaming loudly and trying to hurt herself by hitting her head against the window of the ambulance. The police officers and the nurse had been forced during the entire transfer to hold her hands in order to prevent her from hurting herself or some of them”.
24.On 8 June 2010 the Kriva Palanka public prosecutor’s office, referring to the Ministry’s “special report” and the discharge notice from Bardovci hospital, rejected the applicant’s complaint against the accused (the decision noted that the nurse V.S. had died in the meantime), finding that the alleged offences were not subject to State prosecution. On 14June2010 the applicant, in the capacity of a subsidiary prosecutor, took over the prosecution and brought private charges before the Kriva Palanka Court of First Instance (“the trial court”) on the same charges as above (see paragraph 18 above).
25.On 6 October 2010 the trial court heard Dr C.T., M.N., I.A., the applicant, who was not legally represented, and her husband. According to the transcript of the court hearing, Dr C.T.’s statement was consistent with the statements he had made to the police (see paragraph 20 above).
26.The relevant parts of M.N.’s statement, as described in the court record, read as follows:
“(the applicant’s husband) arrived at the police station and said in front of colleagues and himself (M.N.) that he had been afraid that something could happen to his children or (to the applicant), because, when she had gone to Uzem she had taken a knife and a telephone wire; they went by ambulance to Uzem ... [when they went into the house] (the applicant) became upset and grabbed one of the minor children in her arms; (the applicant’s) husband took the child away, and because she did not want to get into the vehicle he (M.N.) took her arms and her husband took her legs and they put her in the ambulance.”
27.I.A. confirmed M.N.’s statement, and stated that she had held the applicant down with her hands to prevent her from standing up. Both M.N. and I.A. denied that they had used force or handcuffs against the applicant. They also stated that a tranquilliser had been administered to the applicant before they had left for Skopje.
28.The applicant objected to the defendants’ statements. She further denied that her husband had helped the police officers to take her to the ambulance; on the other hand, she reiterated that the police officers had grabbed her and put her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon; that I.A. had sat on her legs during the transfer; that I.A. had held her mouth closed to stop her talking, and had hit and punched her.
29.The applicant’s husband confirmed that he had requested that DrC.T. give an instruction for the applicant to have treatment. When the applicant had refused to get into the ambulance the police officers had grabbed her by the arms and dragged her towards the ambulance. In order not to hurt her, he had grabbed the applicant by the legs and put her in the vehicle. M.N. had handcuffed the applicant. The applicant’s husband denied saying that the applicant had a knife and a wire.
30.On 6 October 2010 the trial court delivered a judgment acquitting C.T., M.N. and I.A. for lack of evidence. It also discontinued the proceedings against V.S. The trial court established that:
“The accused doctor C.T. ... acted conscientiously and in accordance with his duty, and at the request of [the applicant’s] husband who had informed him about [the applicant’s] condition, he provided appropriate treatment; he drew up a report and instructed that she be transferred with police assistance to Skopje psychiatric clinic. [The applicant] was not examined by a specialist (не и бил извршен специјалистички преглед) because she was brought [to the hospital] outside working hours (and) [Dr C.T.] was far away from the office; after [V.S.] had told him by telephone about [the applicant’s] condition, he instructed that a tranquilliser injection be given and that [the applicant] be transported to Skopje. The accused M.N. and I.A., police officers in Kriva Palanka police station called to provide assistance during [the applicant’s] transfer by ambulance to Skopje psychiatric clinic, acted professionally and in accordance with the law and their powers; they did not use any physical force against the applicant and they did not inflict any injuries on her.
The court established the above on the basis of evidence admitted at the trial, namely: oral evidence from the accused, who did not admit the alleged criminal offences, as well as the material evidence from the case file ... of the Kriva Palanka prosecutor’s office which ... [on the basis of the Ministry’s special report] rejected [the applicant’s] criminal complaint ...
All these items of evidence are clear, undisputable, categorical, and inter-related; there is no reason for the court to question their reliability ... relying on [this evidence] the court delivers judgment, finding that [the evidence] does not prove that the accused committed the criminal offences with which they are charged.
The court examined [the applicant’s] statement that ... the police officers had dragged her into the ambulance; that she had been handcuffed, and that M.N. had hit her with a truncheon ... that during the transfer she had been restrained with handcuffs; that police officer I.A. had been sitting on her legs and had closed her mouth to stop her talking; and (that I.A.) had hit and punched her ...
The court examined the statement of [the applicant’s husband] that ... the police officers had grabbed [the applicant] by the arms and dragged her towards the ambulance, and in order not to hurt her, because she had recently had surgery, he had taken her legs and helped to put her in the ambulance; that police officer M.N. had put her head between her legs and had handcuffed her ...
The court examined evidence submitted with the criminal complaints (medical reports described in paragraphs 7, 9, 10, 11 and 12 above), and photographs, but they did not contain anything that could lead to a different assessment of the facts from that established [by the court]. (This evidence) is medical evidence, on the basis of which the court established that there had been an instruction for the applicant to be treated at Skopje psychiatric clinic, and a medical certificate had been issued for the visible injuries that she had; that on 29 October 2009 she had been admitted to (Bardovci) hospital; that (at that time) she had been depressed and had a depressive and paranoid attitude towards her husband; that [she] had several haematomas of recent date ... four photographs showed bruises and scratches on her legs and body.
It is undisputed that owing to [the applicant’s] condition she needed to be transferred for treatment with assistance from the police; this was also what her husband had asked for. She was admitted to an appropriate institution for treatment and was then discharged at the request of her husband; the injuries described in the medical certificate and visible in the photographs – a haematoma and scratches, which were noted in the discharge notice upon [the applicant’s] admission, were of recent date. However, this evidence cannot lead to a conclusion that [the injuries] were inflicted during the transfer, namely on the day when [the applicant] was transferred by ambulance with assistance from the police.”
31.The applicant appealed against the judgment and reiterated her argument that she had been ill-treated, and complained that Dr C.T. and M.N. had given false statements; that the trial court’s judgment had been delivered after the trial court had held only one hearing; and that her husband had not given oral evidence before the trial court.
32.On 15 December 2010 the Skopje Court of Appeal upheld the facts established and the reasoning given by the trial court. The court reiterated that on the basis of a request by the applicant’s husband and in view of the applicant’s state of health Dr C.T. had correctly ordered urgent medical treatment with police assistance. The fact that the applicant had been hospitalised in Bardovci hospital instead of in Skopje psychiatric clinic, as instructed by Dr C.T., was irrelevant, as the medical care she had received was appropriate. The court confirmed that the police officers had acted in accordance with the law and their duties as police officers.
33.On 9 March 2011 the public prosecutor informed the applicant that there were no grounds for lodging a request for review of the legality of the judgments.
34.According to the applicant, she has never suffered from any mental disorder, nor was she receiving any medical treatment in that respect.

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5.With the exception of the first applicant, a legal entity registered under Georgian law on 8 November 2010, the remaining fourteen applicants live in Tbilisi. Their dates of birth are indicated in the attached annex.
A.Peaceful demonstration of 17 May 2012
1.Prior arrangements
6.The first applicant, a Georgian non-governmental organisation set up to promote and protect the rights of lesbian, gay, bisexual and transgender (LGBT) people in Georgia, planned to organise a peaceful march on 17May 2012 in the centre of the capital city to mark the International Day Against Homophobia.
7.In advance of the march, on 8 May 2012 the first applicant gave the Tbilisi City Hall and the Ministry of the Interior prior notice of its intention to hold a peaceful demonstration on the above-mentioned date. It informed the authorities of the planned route of the march, which would start from the grounds of the Tbilisi Concert Hall and proceed to Orbeliani Square, and the approximate number of participants. In addition, in the light of a foreseeable protest from those opposed to the LGBT community in Georgia, given the general background of hostility towards the sexual minorities, the applicant organisation specifically requested that the authorities provide sufficient protection from possible violence.
8.On 14 May 2012 the Tbilisi City Hall acknowledged receipt of the first applicant’s request and explained, in reply, the rights and responsibilities of demonstrators, as provided for by the relevant law.
9.On 15 May 2012 the applicant organisation was contacted by a senior officer of the Ministry of the Interior, who clarified the details of the planned march and confirmed to the organiser that police forces would be deployed to ensure that the procession took place peacefully.
2.Clashes with counter-demonstrators
10.The second to fourteenth applicants submitted written statements describing the exact circumstances surrounding the incident.At around 1p.m. on 17 May 2012, members of the LGBT community, staff members of Identoba and other LGBT activists, including the thirteen above‑mentioned applicants – approximately thirty people in total (“the LGBT marchers”) – gathered in the grounds adjacent to the Tbilisi Concert Hall. They were holding banners with slogans such as “I am gay”, “I love my gay friend”, “Love is love” and “Get colourful”, as well as rainbow flags and umbrellas. A police patrol was present, as agreed, near the Tbilisi Concert Hall.
11.Shortly before the beginning of the demonstration, members of two religious groups, the Orthodox Parents’ Union and the Saint King Vakhtang Gorgasali’s Brotherhood, arrived in the Tbilisi Concert Hall area. Journalists were also present, recording interviews with the LGBT marchers.
12.Approximately 200 metres from the starting point of the march, members of the two above-mentioned religious groups (“the counter‑demonstrators”) stopped some of the LGBT marchers and started arguing with them. The counter-demonstrators claimed that nobody was entitled to hold a Gay Pride Parade or to promote “perversion”, as it was against moral values and Georgian traditions. In reply, the marchers tried calmly to explain that it was not a Gay Pride Parade but a public event dedicated to supporting the fight against homophobia, and continued to walk.
13.When the LGBT marchers reached Rustaveli Avenue, they were met there by a hundred or more counter-demonstrators, who were particularly aggressive and verbally offensive. The counter-demonstrators blocked the marchers’ way, made a human chain and encircled the marchers in such a way as to make it impossible for them to pass. The marchers were subjected to threats of physical assault and to insults, accused of being “sick” and “immoral” people and “perverts”. Further pejorative name-calling such as “fagots” and “sinners” was also repeated. At that moment, the police patrol cars which had been escorting the marchers from the Tbilisi City Hall suddenly distanced themselves from the scene.
14.The LGBT marchers, feeling threatened, immediately telephoned the police, alerting them to the danger and requesting the immediate dispatch of additional forces. While waiting for the arrival of the requested police support, the marchers noticed a few police officers present at the scene. However, when they approached them and asked for help, the officers replied that they were not part of the police patrol and it was not their duty to intervene.
15.The aggression towards the LGBT marchers continued to escalate and after approximately twenty to thirty minutes, the counter-demonstrators grabbed the banners from the hands of several activists and tore them apart. The counter-demonstrators then resorted to physical attack by pushing and punching the marchers in the front row. As a result of that assault, the sixth applicant (Mr G. Demetrashvili), who was in the front line of the march, was knocked down, beaten and kicked. Shortly afterwards, several police patrol cars arrived at the scene. Some of the law-enforcement officers intervened by stopping the beating of the sixth applicant. The police officers then separated the opposing parties by standing between them. At that time, the aggressive and agitated counter-demonstrators were still making particularly vitriolic threats, including that the marchers “should be burnt to death” and “crushed”.
16.The third applicant (Mr L. Berianidze), who was standing on the pavement with other LGBT marchers, asked the police to take more active measures to protect the demonstration. The police responded by forcing him into a patrol car and driving him to the Old Tbilisi Police Department of the Ministry of the Interior, where he was detained for some twenty minutes. He was given no official explanation for his arrest at that time. However, as subsequently explained by the Government, the police had simply sought to distance him from the scene in order to protect him from the angry counter-demonstrators.
17.Three other employees of Identoba – the sixth, seventh and tenth applicants (Mr G. Demetrashvili, Ms G. Dzerkorashvili and MsM Kalandadze) – were also arrested by the police when they moved from the pavement to the road. They were forced into police patrol cars and driven around the city for some twenty minutes before being returned to Rustaveli Avenue. As subsequently explained by the Government, the aim of the applicants’ short-term retention was twofold: to prevent them from committing an administrative offence – impeding road traffic – and to protect them from the counter-demonstrators’ assault.
18.Later on 17 May 2012, the third and sixth applicants (MrL.Berianidze and Mr G. Demetrashvili) sought medical help for their injuries. The third applicant had a bruised left knee, grazes on his left palm and fingers, a haemorrhagic forearm and a haematoma on the right eyebrow. The sixth applicant had a closed head trauma, cerebral contusions, and bruises on the left side of his chest. Two days later, on 19 May 2012, the fourteenth applicant (Ms M. Tsutskiridze) also visited a doctor. She was diagnosed with a contusion of the left wrist.
19.The clashes between the marchers and counter-demonstrators were recorded by journalists present at the scene and broadcast in the evening of 17 May 2012 by a number of national television channels. The faces of the applicants who had been attacked and the assailing counter-demonstrators were clearly recognisable.
B.Subsequent investigation
20.On 18 May 2012 members of the board of the applicant organisation filed several complaints with the Ministry of the Interior and the Chief Public Prosecutor’s Office concerning the violent acts committed during the march of 17 May 2012 by representatives of the two religious groups. The complaints were mostly based on the account of the circumstances as described in the thirteen individual applicants’ written statements (see paragraphs 10-19 above).
21.On 19 May 2012 a criminal investigation was launched into the infliction of light bodily harm on the fourteenth applicant (MsM.Tsutskiridze) by unidentified persons. When questioned as a witness the same day, she stated that unidentified men had grabbed her poster and hit her with the handle of the poster. On 23 May 2012 the eighth applicant (Ms E. Glakhashvili) was also questioned about the fourteenth applicant’s injury to her hand. Subsequently, on 21 June 2012 a forensic medical examination was commissioned by the investigation, the results of which suggested that the bruising and excoriation the fourteenth applicant had sustained on her wrist represented light bodily injuries. The fourteenth applicant was not granted victim status within the framework of that criminal investigation at that time.
22.On 26 June 2012 the first applicant received a letter from the deputy director of the police patrol department of the Ministry of the Interior in response to the board members’ complaints of 18 May 2012. The response stated that, as there were no signs of illegality in the actions of the police during the demonstration, there was no need to launch an investigation against them for abuse of power. As to the counter-demonstrators’ actions, two of them had indeed been arrested for transgression under Article 166 of the Code of Administrative Offences – minor breach of public order – and fined 100 Georgian laris (some 45 euros (EUR)) each.
23.On 3 and 5 July 2012 the first applicant and thirteen individual applicants in the present case (from the second to the fourteenth) filed additional criminal complaints with the Chief Public Prosecutor and the Minister of the Interior. The applicants specifically requested that criminal investigations be launched on account of two factual situations: firstly, the verbal and physical attacks perpetrated against them by the counter-demonstrators with clear discriminatory intent; and, secondly, the acts and/or omissions of the police officers who had failed to protect them from the assaults. The applicants emphasised that criminal inquiries should be conducted with due regard to Article 53 of the Criminal Code, which provided that the existence of homophobic intent was an aggravating circumstance in the commission of a criminal offence.
24.The criminal complaints of the third, sixth, seventh and tenth applicants focussed on the attacks against them by the counter‑demonstrators and the lack of police protection. Those applicants did not request an inquiry into the alleged restriction of their liberty by the police during the incident of 17 May 2012 (Article 147 of the Criminal Code, see paragraph 33 below).
25.By a letter of 17 July 2012, the Ministry of the Interior replied to the first applicant and the relevant thirteen individual applicants that during the incident of 17 May 2012 the police had called upon both the LGBT marchers and the counter-demonstrators to exercise their right to demonstrate in a peaceful manner. The Ministry’s letter then reiterated the information concerning the imposition of administrative sanctions on two of the counter-demonstrators (see paragraph 22 above).
26.On 24 October 2012 a criminal investigation was opened into the alleged beating of the sixth applicant (Mr G. Demetrashvili) by unidentified persons on 17 May 2012. On the same day that applicant was interviewed as a witness. He stated that he had been encircled and insulted by five or six counter-demonstrators. The attackers then started kicking and hitting him. The ill-treatment lasted for a few minutes, until a police officer finally intervened and removed him from the scene. On 6 November 2012 a forensic medical expert issued an opinion confirming that the sixth applicant had sustained a contusion and closed head trauma. He was not granted victim status at that time.
27.In September 2014 the two counter-demonstrators who had previously been fined for administrative misconduct were examined as witnesses in relation to the beating of the sixth applicant.The latter, questioned again in September 2014 about the incident of 17 May 2012, stated that he could no longer remember certain circumstances due to the significant lapse of time. Nevertheless, he confirmed that he would still be able to recognise the faces of those individuals who had assaulted him.
28.According to the latest information available in the case file, the two criminal investigations opened on 19 May and 24 October 2012 into the light bodily injuries sustained by the sixth and fourteenth applicants are still pending, and the two applicants have never been granted victim status.

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A.The applicant’s name and nationality
9.The applicant, Mr Lutpiddin Bakhritdinovich Mukhitdinov (a.k.a. Sattarov, see below), was born in 1967 in the Uzbek SSR of the USSR. He claims to have lived in Uzbekistan until 1992 when he left for Saudi Arabia.
10.Since 1997 the applicant has been living in Russia. In 2001, he acquired Russian nationality and changed his name to Sattarov.
11.On 7 May 2013 the Tyumen division of the Federal Migration Service determined that the applicant had obtained Russian nationality by fraud and cancelled his Russian passport. On 25 December 2013 the Tyumen Regional Court upheld, in the final instance, the decision of the Migration Service.
12.According to the letter from the police chief in Namangan, Uzbekistan, dated 8 April 2013, the applicant forfeited his Uzbek nationality because of his unaccounted absence from the country for more than fiveyears.
B.The charges against the applicant in Uzbekistan
13.On 7 May 1998 a criminal case was instituted against the applicant in Uzbekistan on the charge of illegal crossing of the Uzbek State border, an offence under Article 223 of the Uzbek Criminal Code.
14.On 15 December 2009 further charges were levelled against the applicant under Article 159 §3 of the Uzbek Criminal Code (“Infringement of the constitutional order of Uzbekistan”) and Article242§1 (“Organisation of a criminal enterprise”). The charges related to the applicant’s alleged participation in the religious terrorist organisation The Islamic Movement of Uzbekistan (Wahhabii); he was suspected of meeting with its representatives during his stay in Saudi Arabia and of spreading the ideas of the organisation.
15.On 16 December 2009 the Namangan Criminal Court issued an arrest warrant.
C.The extradition proceedings in Russia
16.On 30 June 2013 the applicant was arrested in Tyumen, Russia.
17.On 2 July 2013 the Kalininskiy District Court of Tyumen issued a detention order valid until 30 July 2013. On the latter date the District Court extended the authorised detention period until 30 December 2013. The extension was upheld by the Tyumen Regional Court on 15 August 2013.
18.On 11 December 2013 the Russian Prosecutor General approved the applicant’s extradition in relation to the offence of organising, and taking part in, the activities of the Islamic Movement of Uzbekistan, an extremist organisation (Article 244-2 § 1 of the Uzbek Criminal Code). It was noted that “the [applicant’s] extradition ... in relation to the extremist charges ... cannot be regarded as an obstacle for extradition since no procedural decision was taken in this respect by the competent Russian authorities” and further that the Uzbek authorities had provided “diplomatic assurances that [the applicant] ... would not be subject to torture, violence, other cruel or degrading treatment”.
19.On 26 December 2013 the District Court approved a further extension of the detention period until 30 March 2014. The applicant challenged the extension before the Regional Court, claiming that the maximum detention period in case of a medium-gravity offence, for which his extradition had been approved, was set by law at six months. By decision of 13 February 2014, the Regional Court quashed the extension order of 26 December 2013, finding that the District Court did not give any specific reasons for extending the applicant’s detention, and remitted the detention matter to the District Court. It directed that the applicant should remain in custody until 24 February 2014.
20.In the meantime, on 21 January 2014 the Tyumen Regional Court upheld the extradition order as being lawful and justified. The court noted that the Uzbekistan Prosecutor’s Office provided the appropriate assurances, that the Russian Ministry of Foreign Affairs had no information capable of preventing the applicant’s extradition, that the Russian Federal Security Service had no information about the applicant’s persecution in Uzbekistan for political motives and that counsel’s allegations of a real risk of ill‑treatment or torture in Uzbekistan were “unsubstantiated” (голословные).
21.On 21 February 2014 the District Court issued a new extension order by which the applicant’s detention was extended until 30 March 2014. The applicant challenged it on the same grounds as before. On 11 March 2014 the Regional Court granted the applicant’s complaint and released him from custody, finding that by virtue of Article 109 of the Code of Criminal Procedure his detention could not have been extended beyond the initial six‑month period.
22.On 19 March 2014 the Supreme Court rejected at final instance the applicant’s challenge to the decision on his extradition to Uzbekistan. It stated that the arguments about a real risk of torture and political persecution were “unconvincing”.
D.The applicant’s disappearance
23.In the early morning of 22 July 2014 the applicant was taken away from his home by seven uniformed officers of the Federal Migration Service. The applicant’s lawyer arrived immediately on the scene and attempted to follow them but was stopped by the traffic police.
24.When the applicant’s wife and son arrived at the local office of the Migration Service later on that day, they were told that he had already been released.
25.On 27 July 2014 the applicant’s representative before the Court sent a faxed letter to the Federal Security Service, the Border Control and the Prosecutor General’s Office, asking them to stop the applicant’s unlawful transfer to Uzbekistan. She stated that she had information that the applicant was detained in a police ward in Tyumen and that he might be placed on the next flight to Tashkent.
26.Further to the Court’s request for factual information (see paragraph7 above), on 7 August 2014 the Government replied that the applicant’s current whereabouts were not known, that he had not been detained or transferred outside of the Russian territory by State agents and there was no information about him crossing of the State border.
27.On 20 August 2014 the Tyumen Regional Prosecutor’s office advised the applicant’s representative as follows:
“As regards [your] allegation about an unlawful arrest of Mr Mukhitdinov, I inform you that on 22 July 2014 the officers of the Tyumen regional branch of the Federal Migration Service conducted, in accordance with the approval plan on combating illegal migration, checks in the places where foreign nationals and stateless persons live, including the premises of a mosque at 9, Zhdanova street, Tyumen. Following the check, three persons, including Mr Mukhitdinov, were brought to the immigration control department. Upon identification, he was released.
According to the information provided, Mr Mukhitdinov (Sattarov) was not arrested by the police on 22 July 2014 or any other date; the police has no information about his whereabouts.”
28.On 1 September 2014 the Tyumen Regional Prosecutor’s office additionally informed the counsel that on 25 August 2014 the Tyumen Regional Investigations Committee instituted a criminal case into the applicant’s disappearance.
32.For the most recent relevant reports on Uzbekistan by the international non-governmental human rights organisations, see Egamberdiyev v. Russia, no. 34742/13, §§ 31-34, 26 June 2014.
33.On 6 November 2014 the Amnesty International released a call for urgent action against an unfair trial of an extradited refugee Mirsobir Khamidkariev (EUR 62/008/2014):
“Mirsobir Khamidkariev, a producer and businessman from Uzbekistan, is currently held in a pre-trial detention centre (SIZO), in Tashkent. On 9 June [2014] he was reportedly abducted by officers of the Russian Federal Security Service (FSB) from a street in central Moscow, Russian Federation, and forcibly returned to Uzbekistan the following day. He was held incommunicado in a basement in an unidentified location in Moscow for a day, forced to wear a bag over his head, and subjected to repeated beatings. He was then handed over to Uzbekistani law enforcement officers at an airport in Moscow. Mirsobir Khamidkariev’s wife and his lawyer in Moscow were unable to establish contact with him and did not know his whereabouts until he re-appeared in the basement of a detention facility run by the Ministry of Internal Affairs (MVD) in Tashkent two weeks later. According to his Russian lawyer, who was able to get access to him in Tashkent on 31 October, upon return to Tashkent Mirsobir Khamidkariev was subjected to torture and other ill-treatment by law enforcement officers for two months to force him to confess to fabricated charges. He was tied to a bar attached to the wall with his head facing down and beaten repeatedly. The officers knocked out seven of his teeth and broke two of his ribs.
The authorities in Uzbekistan have accused him of creating a banned religious extremist organization, Islam Jihadchilari, a charge he has strongly denied. According to his Russian lawyer, the charges against Mirsobir Khamidkariev refer to a conversation he had had with acquaintances at an informal gathering in Tashkent during which he allegedly expressed concern about the oppression of Islam and stated his support for women wearing headscarves. Court hearings have been postponed several times and the next one is scheduled for 13 November [2014].”
34.The Committee of Ministers’ Interim Resolution CM/ResDH(2013)200, concerning execution of the Court’s judgments in the Garabayev group of cases against the Russian Federation (see Garabayev v. Russia, no. 38411/02, 7 June 2007), was adopted on 26September 2013 at the 1179th meeting of Ministers’ Deputies. It reads as follows:
“The Committee of Ministers ...
Considering the cases decided by the Court, in which the latter found violations by the Russian Federation due to the applicants’ abductions and irregular transfers from the Russian Federation to States where the applicants face a real risk of torture and ill‑treatment, and in breach of an interim measure indicated by the Court under Rule39 of its Rules of Procedure;
Recalling that given the number of communications received, including from the Court, relating to alleged similar incidents that have been reported, revealing an alarming and unprecedented situation, the Committee has been calling upon the Russian authorities to adopt as a matter of urgency special protective measures for applicants exposed to a risk of kidnapping and irregular transfer;
Noting that the Russian authorities have taken a number of general measures to prevent abductions and illegal transfers from the Russian territory of persons in whose respect extradition requests were filed and the Court has indicated an interim measure under Rule 39 of its Rules;
Deeply regretting that these measures do not appear to have been sufficient to address the need for urgent adoption of special preventive and protective measures that are effective;
Deploring that to date, no reply has been received to the letter sent on 5April 2013 by the Chairman of the Committee of Ministers to his Russian counterpart conveying the Committee’s serious concerns in view of the persistence of this situation and its repeated calls for the urgent adoption of such protective measures;
Underlining that in its judgment in the Abdulkhakov case, the Court noted that “any extra-judicial transfer or extraordinary rendition, by its deliberate circumvention of due process, is an absolute negation of the rule of law and the values protected by the Convention”;
Stressing that this situation has the most serious implications for the Russian domestic legal order, the effectiveness of the Convention system and the authority of the Court,
CALLS UPON the Russian authorities to take further action to ensure compliance with the rule of law and with the obligations they have undertaken as a State party to the Convention,
EXHORTS accordingly the authorities to further develop without further delay an appropriate mechanism tasked with both preventive and protective functions to ensure that applicants, in particular in respect of whom the Court has indicated an interim measure, benefit (following their release from detention) from immediate and effective protection against unlawful or irregular removal from the territory of Russia and the jurisdiction of the Russian courts.”
35.The Parliamentary Assembly’s Resolution 1991 (2014), entitled “Urgent need to deal with new failures to co-operate with the European Court of Human Rights”, was adopted on 10 April 2014. It reads as follows:
“Parliamentary Assembly
1.Recalling its Resolution 1571 (2007) on member States’ duty to co-operate with the European Court of Human Rights and Resolution 1788 (2011) “Preventing harm to refugees and migrants in extradition and expulsion cases: Rule 39 indications by the European Court of Human Rights”, the Parliamentary Assembly stresses the importance of the right of individual application to the European Court of Human Rights (“the Court”). The protection of this right is the purpose of individual measures indicated by the Court under Rule 39 of its Rules of Court, which are designed to prevent the creation of a fait accompli.
2.The Assembly considers any disrespect of legally binding measures ordered by the Court, such as interim measures indicated under Rule 39, as a clear disregard for the European system of protection of human rights under the European Convention on Human Rights (ETS No. 5, “the Convention”).
3.The Assembly therefore calls on all States Parties to the Convention to respect interim measures indicated by the Court and to provide it with all the information and evidence it requests.
4.The Assembly strongly condemns instances of outright violations by several States Parties to the Convention (Italy, the Russian Federation, the Slovak Republic and Turkey) of the Court’s interim measures aimed at protecting applicants from extradition or deportation to countries where they would be at risk of, in particular, torture, as well as of the interim measures in relation to Russia’s military actions in Georgia (see Georgia v. Russia II).
5.The Assembly insists that international co-operation between law-enforcement bodies based on regional agreements, such as the Shanghai Cooperation Organisation, or on long-standing relations, must not violate a State Party’s binding commitments under the Convention.
6.The Assembly is therefore particularly concerned about the recent phenomenon, observed in the Russian Federation, of the temporary disappearance of applicants protected by interim measures and their subsequent reappearance in the country which had requested extradition. The clandestine methods used indicate that the authorities had to be aware of the illegality of such actions, which can be likened to the practice of “extraordinary renditions” repeatedly condemned by the Assembly.
7.The Assembly welcomes the increasing use, by the Court, of factual presumptions and the reversal of the burden of proof in dealing with refusals of States Parties to co-operate with it, which consist in their failure to provide full, frank and fair disclosure in response to requests by the Court for further information or evidence.”
36.On 5 June 2014 during the 1201st meeting of the Minister’s Deputies, the Committee of Ministers adopted the following decision:
“The Deputies
1.noted with grave concern that yet another applicant in this group of cases, MrYakubov, had allegedly been abducted in Moscow in April 2014 despite the repeated calls by the Committee of Ministers on the Russian authorities to take the necessary measures to prevent such incidents (see, in particular, Interim ResolutionCM/ResDH(2013)200);
2.urged the Russian authorities to continue their investigation into Mr Yakubov’s disappearance in order to shed light on the circumstances of this incident, taking into account the findings of the European Court of Human Rights as regards the involvement of the State authorities in other cases, notably in the case of Savriddin Dzhurayev;
3.noted, with concern, that this incident casts doubts on the soundness of the preventive and protective arrangements set up by the Russian authorities in response to the Committee’s call in September 2013, and requested, in this context, the Russian authorities to ensure that relevant individuals are informed of the protective measures available;
4.further noted, with concern, that no information about any progress in the investigations into similar previous incidents in this group of cases has been provided;
5.invited the Russian authorities to provide information on the different issues raised in this group of cases in good time for their 1208th meeting (September 2014) (DH).”

***

1. The applicant, Ms Neslihan Olsoy, is a Turkish national, who was born in 1952 and lives in Diyarbakır. She was represented before the Court by Ms Rehşan Bataray Saman and Mr Serdar Çelebi, lawyers practising in Diyarbakır.
2. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. At the time of the events the applicant ’ s son, Fırat Olsoy, who was born in 1976, was serving a prison sentence in the Diyarbakır Prison.
5. On 24 January 2009 the applicant ’ s son asked to see the prison doctor. The doctor examined him, diagnosed him with myalgia (muscle pain) and anxiety and gave him medication to treat his problems.
6. At around 3 p.m. on 23 March 2009, suffering from severe chest pain and shortness of breath, the applicant ’ s son went to the prison infirmary. According to the applicant, the doctor was about to leave for the day and therefore hastily examined her son and gave him painkillers and a sleeping pill before sending him back to his cell.
7. At around 5 p.m. the same day the applicant ’ s son ’ s condition worsened and he had difficulty breathing. He told the other inmates in his wing that he had severe pain in his chest. Some of the inmates carried him to the infirmary but it was closed. Subsequently, a prison warden arrived and called an ambulance. The applicant ’ s son died on the way to the hospital.
8. On the same day an autopsy was conducted by a forensic pathologist at the Diyarbakır State Hospital in the presence of the Diyarbakır prosecutor. Since the cause of death could not be determined during that autopsy, blood samples and tissue samples taken from the heart, brain, lungs, liver, kidneys, spleen and the coronary arteries were sent for histopathological and toxicological examinations at the Forensic Medicine Institute ’ s headquarters in Istanbul.
9. The following day the prosecutor initiated an ex officio investigation into the death of the applicant ’ s son. He asked the prison administration to forward him the applicant ’ s son ’ s medical file and the names of the prison personnel who were on duty at the time of the events, as well as the names of the inmates detained on the same wing as the applicant ’ s son. That information was provided to the prosecutor on 25 March 2009.
10. On 26 March 2009 the prosecutor took a statement from the prison doctor. The doctor told the prosecutor that at around 2.30 p.m. on 23 March 2009 he had examined the applicant ’ s son who had come to the prison ’ s infirmary with pain in his chest and shoulder and complained of difficulties in sleeping. The doctor told the prosecutor that he had prescribed four medicines to the applicant ’ s son, namely “Zedprex, Cdoral, Voltaren and Duzyl”, to relax his muscles, relieve his pain and calm him down. However, as he had examined a total of eighty-four prisoners that day, he did not have any further recollection of the applicant ’ s son or his problems.
11. The same day the prosecutor took a statement from the prison director who explained that, according to the closed circuit video recordings showing the inside of the prison, the applicant ’ s son had been brought to the infirmary at 5.1 9 p.m. by his fellow inmates. An ambulance had then been called and a prison guard had administered first aid. The ambulance had arrived at 5.45 p.m. and taken the applicant ’ s son to the hospital.
12. The prison guard who had administered first aid to the applicant ’ s son was also heard by the prosecutor on the same day and told the prosecutor that he had been asked to go to the prison ’ s infirmary some time between 5.25 p.m. and 5.30 p.m. When he had arrived the applicants ’ son was still alive but having difficulties in breathing. He had then called the ambulance again and urged them to come at once because the state of the applicant ’ s son ’ s health had become critical. The ambulance had arrived at 5.45 p.m. When put in the ambulance on a stretcher the applicant ’ s son had been alive but his condition had been critical. His body had started to take on a “purple colour”. The prison guard had also got in the ambulance and the doctor in the ambulance had carried out cardiac massage. However the applicant ’ s son had died on the way to hospital.
13. On 27 March 2009 the prosecutor took statements from nineteen inmates who had witnessed the incident on 23 March 2009. The inmates told the prosecutor that they had been aware that the applicant ’ s son had been suffering from chest pains. They had also been aware that the applicant ’ s son had gone to the infirmary earlier that day to see the prison doctor. One of the inmates stated that he had accompanied the applicant ’ s son to the infirmary at around 3 p.m. but that the prison doctor had been about to leave for the day and had hastily prescribed him painkillers without giving him a proper medical examination. The applicant ’ s son ’ s condition had deteriorated after his return from the infirmary and he had been unable to get out of his bed for the roll call which took place at 5 p.m. After the roll call the inmates had carried him to the infirmary because he had been unable to walk unaided.
14. Two of the inmates who had carried the applicant ’ s son out of his wing told the prosecutor that the infirmary had been closed at the time and that they had instead taken him to the dentist ’ s office where they had waited for 15-20 minutes for a prison warden to arrive. They also stated that the telephones in the infirmary had not been working. When the prison warden arrived he tried to put an oxygen mask on the applicant ’ s son but then quickly took it off when the applicant ’ s son felt worse with the mask. The inmates then “put pressure on the prison warden to call an ambulance” and they waited a further 15-20 minutes for the ambulance to arrive.
15. On 30 March 2009 the applicant ’ s other son, Mr Orhan Olsoy, filed a petition with the prosecutor ’ s office and informed the prosecutor that his brother had had no previous health problems and that during his frequent visits to the prison his brother had told him that he was well and would be released soon. Mr Olsoy asked the prosecutor to find out why his brother had lost his life and requested that an investigation be conducted to establish whether the death had been due to anyone ’ s negligence. He also asked the prosecutor to determine whether there had been any delays in calling the ambulance and requested the prosecutor to secure in evidence the recordings from the prison ’ s security cameras.
16. Between 22 and 28 April 2009 the prosecutor questioned the deputy director of the prison and four other prison guards. They explained to the prosecutor how they had been informed about the deterioration of the applicant ’ s son ’ s condition and how they had then called the ambulance and sent him to hospital.
17. At the request of the prosecutor, the footage recorded by the prison ’ s security cameras was examined by crime scene examination experts from the Diyarbakır police headquarters on 5 May 2009. According to the report prepared by these experts, two persons could be seen carrying another person in their arms at between 5.19 p.m. and 5.38 p.m. The person was put on a stretcher at 5.45 p.m. and put in an ambulance at 5.46 p.m.
18. The applicant and her husband were questioned by the prosecutor on 8 May 2009. They both told the prosecutor that they had not been aware that their son had had any health problems. The applicant added that on one occasion some ten days before her son was imprisoned he had told her that “he was not well”, but had not elaborated as to the nature of his problem.
19. On 9 June 2009 the prosecutor wrote to the Forensic Medicine Institute in Istanbul and urged it to carry out the necessary examinations of the blood and tissue samples taken from the body of the applicant ’ s son. The prosecutor sent another reminder to the Forensic Medicine Institute on 16 July 2009.
20. The doctor and the paramedic who had taken the applicant ’ s son to the hospital were questioned by the prosecutor on 29 June 2009. They told the prosecutor that they had been called to the prison at 5.31 p.m. and that they had arrived there at 5.39 p.m. When they had put the applicant ’ s son in the ambulance he had stopped breathing and his heart had stopped beating. They had tried to resuscitate him and had arrived at the hospital at 6.10 p.m. where they had handed the applicant ’ s son to the doctors waiting by the main entrance.
21. The doctor working at the accident and emergency department of the hospital made a statement on 13 July 2009 and told the prosecutor that the applicant ’ s son had already died on his arrival at the hospital. He and his colleagues had then unsuccessfully tried for approximately thirty minutes to resuscitate him.
22. The Forensic Medicine Institute in Istanbul prepared its report on 13 August 2009 and stated that according to the toxicological examinations there was no alcohol, drugs or other substances in the samples taken from the body. The Institute considered it necessary to seek the opinion of its specialist board on the cause of death.
23. On 25 November 2009 the Expertise Board of the Istanbul Forensic Medicine Institute, which consisted of eight medical experts, issued its report. It confirmed the findings of the toxicology report summarised in the preceding paragraph and added that during the autopsy no signs of traumatic changes on the body had been observed. According to the report, the eight experts unanimously concluded that the exact cause of death could not be determined.
24. On 19 February 2010 the Diyarbakır prosecutor delivered a decision of non-prosecution and concluded that there was no evidence to show that an offence had been committed. The prosecutor also added that the applicant ’ s son had died of natural causes and that there had been no fault or negligence attributable to another person in his death.
25. The applicant lodged an objection against the prosecutor ’ s decision and argued, inter alia, that the fact that there had been no signs of trauma on the body of her son and that the toxicology reports had not shown any harmful substances in his body did not exclude that someone ’ s negligence or fault had caused his death. She submitted that the prosecutor should have made attempts to establish whether or not the prison authorities had shown due care and attention and whether the prison doctor had examined him adequately. In this connection, she also argued that the role played in her son ’ s death of the infirmary being closed when his condition worsened and the appropriateness of the medicines prescribed by the prison doctor, should also have been examined by the prosecutor.
26. The applicant added in her objection petition that, according to the eyewitnesses, her son had been complaining about having breathing problems as well as pain in his chest, heart and muscles. However the doctor, instead of at least referring her son to a hospital for a detailed examination and further tests, had given him painkillers. The fact that her son ’ s condition had worsened after having taken the painkillers showed that the doctor had acted negligently. Finally, she alleged that the ambulance had not been called immediately.
27. On 14 May 2010 the Siverek Assize Court dismissed the applicant ’ s appeal. That decision was served on the applicant ’ s lawyer on 15 June 2010.
28. According to a report drawn up and signed by a doctor on 13 March 2013, at the time of his entry into the prison a medical examination had been carried out on the applicant ’ s son and no medical problems had been observed during that examination.

***

5.The applicant was born in Ukraine in 1987 and arrived in Slovenia in 2000 with her sister and mother, who had married a Slovenian.
6.Between July and December 2001, at the age of 14, she was allegedly repeatedly sexually assaulted by a family friend, X, 55 years old at the time, who together with his wife often took care of her and helped her in preparations for beauty contests.
7.In July 2002 the applicant told her mother about the alleged sexual assaults by X, but was unwilling to talk about them with anyone else.
8.On 15 July 2002 a priest gave a statement to the Maribor police, in which he said that the applicant’s mother had told him about her concern that the applicant had been raped by X.
9.On 16 July 2002 the applicant’s mother lodged a criminal complaint against X, in which she alleged that X had forced the applicant to engage in sexual intercourse with him on several occasions.
10.On 17 July 2002 the applicant was questioned by Maribor police officers and described how X had forced her to engage in various sexual activities. As regards the time frame of the assaults, the applicant stated that X had first attempted to kiss her before July 2001, when she had started modelling for fashion shows. She proceeded to give an account of a number of occasions when X had sexually assaulted her. On one occasion X had lain on top of her while she was sleeping at his house and had attempted to have sexual intercourse with her, spreading her legs with one hand and putting his other hand over her mouth to prevent her from screaming, but he was interrupted by his younger son coming up the stairs. On another occasion, when they were at a swimming pool, he had groped her in the water. On yet another occasion X had allegedly taken the applicant to an abandoned workshop owned by his family and performed oral sex on her. Moreover, according to the applicant, X had forced her to perform oral sex on him at least three times, once at his home, once at his company’s garage, and the third time in his van, which he had parked in woods near the town. On that last occasion the applicant had allegedly tried to escape; however, being unfamiliar with the surroundings, she had come back to the van. The applicant stated that X had on several occasions attempted to have intercourse with her, but that she had not been certain whether he had managed to achieve penetration. She further stated that she had tried to defend herself by crying and pushing X away, but without success.
11.The applicant was also examined by an expert in gynaecology, who found that her hymen was intact. Moreover, in the course of July and August 2002 the police questioned X, who denied any sexual relations with the applicant, and three other people.
12.Following a series of unsuccessful attempts to obtain specific information from the police as regards the progress of the investigation, the applicant’s mother complained to the Maribor District State Prosecutor’s Office (hereinafter “the State Prosecutor’s Office”).
13.On 27 June 2003 the State Prosecutor’s Office sent a letter to the Maribor police, urgently requesting a copy of the criminal complaint lodged against X.
14.On 18 August 2003 the police sent a report to the State Prosecutor’s Office stating that the applicant had failed to provide a detailed account of her allegations or to indicate the locations where the alleged rapes had taken place. The police noted that the applicant had given the impression of being under severe psychological stress and in fear of her mother’s reaction. They concluded that it was impossible to confirm her allegation of rape, and equally impossible to establish the reasons for her serious emotional distress.
15.On 28 August 2003 the State Prosecutor’s Office lodged a request for a judicial investigation in respect of X based on charges of sexual assault on a minor below the age of fifteen. The request alleged that X had forced the applicant to engage in oral sex and had had sexual intercourse with her on at least three occasions, despite her refusal and attempted resistance.
16.On 7 January 2005 X was summoned to appear before the investigating judge of the Maribor District Court. He refused to give an oral statement. On 10 March 2005 X, represented by a lawyer, submitted a written statement in which he denied the charges. He also submitted a medical report which indicated that his left arm had been disabled since birth.
17.On 26 May 2005 the investigating judge issued a decision to open a criminal investigation in respect of X. An appeal by X against this decision was rejected by the pre-trial panel of the Maribor District Court.
18.On 17 October 2005 the applicant was examined as a witness before the Ljubljana District Court, which had been asked to carry out the witness examination because the applicant lived in the area. The examination resumed on 8November 2005. Neither X nor his counsel was informed of this examination. The applicant testified in detail as to when, where and how the alleged offences had taken place. She first described the assault which had occurred in X’s house, while she had been sleeping there, reiterating that X had been disturbed by his son. According to the applicant’s statement, the second assault had occurred when, instead of driving the applicant home, X had parked in the woods and started to kiss her forcefully. X had then undressed the applicant, parted her legs with one hand and held her wrists with the other and again attempted to have intercourse with her, but there had been no penetration. The applicant further recounted that X had on another occasion taken her to the family’s abandoned workshop and had performed oral sex on her. She stated that she had attempted to free herself of his grip, but that X had again pinned her wrists down and also slapped her across the face. Again, vaginal intercourse had been attempted but had not actually occurred. X had ordered her not to talk to anyone about this, or he would have her and her family deported from Slovenia. The applicant added that she remembered these three occasions well and the events had occurred just as she described them, and that there had been a number of other similar incidents between July and December 2001.
19.On 13 and 20 December 2005 X’s wife and another witness were examined by the investigating judge of the Maribor District Court.
20.On 13 January 2006 the Koper District Court, at the request of the Maribor District Court, examined witness D., who testified that the applicant had told her of the alleged rape.
21.On 14 April 2006 the investigating judge examined witness H., who was an employee of the company owned by X and his wife. H. testified that she had not seen X behaving improperly towards the applicant on the company’s premises.
22.On 16 May 2006 the investigating judge appointed an expert in gynaecology, B., in order to establish the probability that the applicant had engaged in sexual intercourse in the period between July and December 2001. The latter carried out a consultation with the applicant, who refused a clinical examination. She told B., among other things, that despite the attempts made by X there had been no actual sexual penetration. During the consultation, B. confronted the applicant with an orthopaedics report stating that X could not have used his left arm in the ways described by her, to which the applicant answered that she had seen X use it to lift heavy items. B. also presented the applicant with the police report stating that she had not been able to give a detailed account of the sexual assaults and specific locations, and asked her why she had not defended herself against X, for instance by scratching or biting. The applicant replied that she had not defended herself and had been unable to do so. On 19June 2006 the expert prepared his report, which was based on the evidence in the file, including a gynaecological report from 2002 which showed that the applicant’s hymen was intact at that time, and the conversation with the applicant. He found that there was nothing to indicate with certainty that the applicant had had sexual intercourse with X at the material time. In addition to his medical opinion, the expert commented that there were certain inconsistencies in the applicant’s account of the events in issue. It can be seen from the report that neither of the alleged inconsistencies was related to any medical issue.
23.On 20 June 2006 the investigating judge appointed an expert in clinical psychology, R. The latter, after holding a consultation with the applicant, submitted her report on 4 July 2006, and concluded as follows:
“Since 2001 Y. has shown all the symptoms of a victim of sexual and other kinds of abuse (emotional, behavioural and physical symptoms) ...
In addition to the emotional consequences, the girl shows very typical behavioural patterns relating to the abuse experienced by her, and also some physical symptoms (disturbed sleep, nightmares, collapsing). The symptoms are indicated in the report ...
The gravity of the consequences – physical and sexual in particular – is difficult to assess at the present time. But, like the short-term ones, the long-term consequences can be predicted. Their real extent will become apparent at key stages of the girl’s life and in stressful situations ...
Because of these effects, which are most serious in her psychological sphere ... it is of very marginal importance whether during the perpetrator’s violent behaviour the child victim experienced hymen defloration or not ...
Sexual behavioural patterns can only be assessed properly by an expert in clinical psychology ...”
24.On 15 September 2006 the Maribor district prosecutor’s office indicted X for sexual assault of a child below the age of fifteen under Article 183 §§ 1 and 2 of the Criminal Code. An objection by X to the indictment was rejected by the pre-trial panel of the Maribor District Court on 20October 2006.
25.The Maribor District Court scheduled a hearing for 27 June 2007. However, the hearing was adjourned at X’s request on the basis of a document which showed that he was now on sick leave for several weeks.
26.A hearing was then scheduled for 3 October 2007, but adjourned at X’s counsel’s request. The next hearing was to be held on 12 November 2007. However, owing to the absence of a jury member, the hearing was adjourned. Subsequently, X informed the court that he was about to go on a business trip, for which reason the next hearing was postponed until 16January 2008.
27.On 16 January 2008 X failed to appear before the court. On 17January 2008 he submitted a sick-leave certificate.
28.On 25 January 2008 X’s counsel informed the court that X had revoked his power of attorney and that he would be represented by another lawyer, M., from then on. However, the court received no new power of attorney authorising M. to act as X’s counsel. Since X was accused of a criminal offence requiring mandatory representation, on 28 January 2008 the court appointed M. as counsel for X .
29.On 14March2008 the court held a hearing, from which the public was excluded on the grounds of protection of privacy and public morals. The court heard evidence from X. At the hearing the applicant’s counsel sought to have M., X’s counsel, disqualified on the ground that in 2001 the applicant and her mother had sought advice from him on the matters in issue. Furthermore, the applicant’s mother had been intimately involved with him. M. denied that he had ever seen the applicant or her mother and said that he only knew that the lawyer at whose firm he had been working at that time had represented the applicant’s mother’s estranged husband in divorce proceedings. The panel dismissed the application, ruling that no statutory grounds existed for disqualifying M. as counsel.
30.On 14March2008 X submitted written pleadings, claiming that he would have been unable to use physical force on the applicant, as his left arm had been seriously disabled since birth and was 15 cm shorter than his right arm. X alleged that he had practically no use of his disabled arm. Moreover, he asserted that he and his family had been helping the applicant and her sister to integrate into their new community and learn Slovene, while their mother had been busying herself with her private activities. According to X, the charges of sexual assault were prompted by the applicant’s mother, who wished to extort money from him.
31.On 14 April 2008 the court held a second hearing in the case. X was questioned by the State prosecutor, mostly about the use of his left arm, and in this connection conceded that, although he usually drove automatic cars, he did occasionally drive a smaller manual transmission car. However, when asked whether he had ever driven a truck, X replied that this had no bearing on the case, acknowledging nevertheless that he had a licence to drive all categories of road vehicles. Then the applicant was summoned to testify, the court granting her request for X to be absent from the hearing room. While recounting the instances of sexual abuse by X, the applicant cried repeatedly and the hearing was adjourned for a few minutes on that account. X’s counsel M. then questioned the applicant, asking her how tall she had been and how much she had weighed at the material time. The applicant became very agitated and asked M. why, having been the first to hear her story, he was asking those questions and was now acting as X’s counsel. M. commented that this was part of the tactics. The hearing was then adjourned owing to the applicant’s distress.
32.On 9 May 2008 the court held a third hearing. The questioning of the applicant continued in the absence of X. When asked how she felt about the situation with hindsight, she cried and said that no one had helped her and that the proceedings had been dragging on for several years, during which she had had to keep reliving the trauma.
33.On 27 August 2008 the applicant lodged a supervisory appeal under the Protection of the Right to a Hearing without Undue Delay Act of 2006 (hereinafter “the 2006 Act”) with a view to accelerating the proceedings.
34.On 26 September 2008 the court held a fourth hearing, from which the public was excluded, at which X personally asked the applicant over a hundred questions, starting with a comment in the form of a question “Is it true that you have told and showed me that you could cry on cue and then everybody would believe you?” It does not appear from the record of the hearing that the applicant made any reply. X then asked the applicant a series of questions aimed at proving that they had seen each other mainly at gatherings of their families or when the applicant, in need of transport or other assistance, had actively sought his company. Among the questions asked by X were the following: “Is it true that I could not have abused you on the evening of the event as you stated on 14 April?”, “Is it true that if I had wished to satisfy my sexual needs, I would have called you at least once?”; “Why did you call me in September and ask me to take you out of town if I had already raped you five times before that date?”, “Why were you calling me, because I certainly never called you?”, or “Is it true that you specifically asked that we drive out of town alone, because you wished to talk to me and to celebrate your success at a beauty pageant?” The applicant insisted that she had not called X, nor had she initiated any outings with him, but that he had called her. X also asked the applicant whether she had told him that, once she had a boyfriend, she would always be on top, as she wanted to be the mistress.
35.Moreover, X claimed that the charges of rape were fabrications by the applicant’s mother. Hence, he asked the applicant numerous questions about her mother, including about her knowledge of Slovene, her work, and her personal relationships. Further, X confronted the applicant with the medical report which indicated that his left arm was seriously disabled. The applicant insisted that she had seen X using his left arm in his daily life, including driving cars, lifting and carrying his children and their school bags, and carrying boxes and bottles. Throughout the questioning, X disputed the accuracy and credibility of the applicant’s answers, extensively commenting on the circumstances described by her and rejecting her version of events. He continued to do so even after the presiding judge explained to him that he would have the opportunity to make his comments after the applicant’s questioning.
36.During the cross-examination, X repeated a number of questions and was eventually warned against doing this by the presiding judge. Moreover, the presiding judge ruled out of order seven questions that she perceived had no bearing on the case in issue.
37.On three occasions, when the applicant became agitated and started crying, the court ordered a short recess. After one of these recesses X asked the applicant whether she would feel better if they all went to dinner, just as they used to, and maybe then she would not cry so much.
38.At one point the applicant requested the court to adjourn the hearing as the questions were too stressful for her. However, after being told by X that the next hearing could not be held until after 19 November 2008 when he would be back from a business trip, the applicant said, while crying, that he should continue with his questioning as she wanted to get it over with. Eventually, after four hours of cross-examination of the applicant, the presiding judge adjourned the hearing until 13 October 2008.
39.X’s wife, mother-in-law and an employee of his company were examined at the next hearing, all three of them asserting that X had very little use of his left arm and certainly could not lift any burdens.
40.On 24 November 2008 a sixth hearing was held. The questioning of the applicant by X took an hour and a half. When questioned by X’s counsel M., the applicant again asserted that she had told him the whole story a long time ago. M. denied this, stating that if he had been informed he would have advised the applicant to go to hospital and to the police. Once the applicant’s questioning was over, her mother was questioned, mostly about her private relationships.
41.At the end of the hearing X’s counsel M. confirmed that he had encountered the applicant’s mother when he was working at a law firm with a lawyer who had represented her in certain court proceedings. He also stated that he would inform the court within three days as to whether he would request leave to withdraw from representing X in the proceedings in issue. On 25 November 2008 M. requested leave from the court to withdraw from the case, as he had been personally affected by certain statements made by the applicant’s mother.
42.At a hearing of 15 December 2008 the court dismissed the request by X’s counsel M., finding that there were no statutory grounds disqualifying him from representing M. The gynaecologist, B., was examined as a witness. He acknowledged that in order to clarify the circumstances he had also addressed certain issues in his report that had not been part of the investigating judge’s request. Moreover, he reiterated that the applicant’s hymen had been intact at the material time.
43.On 22 January 2009 the court held an eighth hearing in the case and examined the expert in clinical psychology, R., who again stated that sexual abuse which had happened long ago could not be proved by any material evidence, and that only the psychological consequences could be assessed. She further reiterated that the applicant displayed clear symptoms of sexual abuse.
44.On 20 February 2009 the court appointed T., another expert in gynaecology, to give an opinion on whether the applicant could have had sexual intercourse at the material time, given the results of her medical examination (see paragraph 11 above). On 10 March 2009 the expert submitted his report, which stated that those results were not inconsistent with the applicant’s account of the events in issue.
45.On 16 March 2009 the court held a hearing at which it appointed N., an expert in orthopaedics, to prepare an opinion as to whether, in view of his disabled left arm, X could have performed the acts described by the applicant.
46.On 5 May 2009 N. submitted his report, in which he found that X’s left arm was severely disabled, and that for those reasons some of the events could not have happened in the way described by the applicant.
47.On 8 June 2009 the court held a hearing at which N. was questioned. Further to questions put by the applicant’s counsel, N. explained that he had based his opinion on the documents in X’s medical file, the X-rays brought to him by X, and an examination of X.
48.A hearing was held on 9 July 2009. The applicant requested that N. be questioned further.
49.On 29 September 2009 the court held the twelfth and last hearing in the case. At the hearing the applicant and the State Prosecutor questioned N., who stated, inter alia, that X could only use his left arm to assist the right arm in carrying out specific tasks, and that he had practically no strength in his left arm. In the expert’s opinion, X would not have been able to spread the applicant’s legs with his left arm, and neither would he have been able to take off his trousers as alleged by her. After being asked by the prosecutor whether his assessment was based on the assumption that the applicant had used all her strength to resist X, N. stated: “I did not base my conclusion on that assumption, as I did not know whether she had resisted or whether she had willingly submitted.” After being asked whether the applicant, who was 14 years old at the time, could have resisted X, who had allegedly been lying on top of her, he said he believed so. N. also testified that although X had more than ordinary strength in his right arm, he could not have assaulted the applicant in the way she alleged.
50.After the examination of N., the applicant, who had sought and obtained an opinion from another orthopaedist outside the court proceedings which indicated that X might still have limited use of his left arm, asked for another orthopaedics expert to be appointed, on the grounds that there was doubt about N.’s conclusions. This request was rejected by the court as unnecessary, as was the applicant’s request for the court also to call as witnesses her sister and her mother’s former husband, who had allegedly seen X rowing with both arms. A request by the prosecutor for the applicant to be examined again was also rejected.
51.At the end of the hearing the court pronounced judgment, acquitting X of all charges. In view of this verdict, the court recommended that the applicant pursue her claim for damages, which she had submitted in the course of the proceedings, before the civil court.
52.On 15 December 2009 the applicant lodged a new supervisory appeal under the 2006 Act. On 22 December 2009 she received a reply from the court informing her that the reasoning of the judgment had been sent to her that day.
53.In the written grounds the court explained that the expert orthopaedics report contested X’s ability to carry out certain acts described by the applicant, for which he would have had to use both arms. As explained by the expert, X was not capable of even moving his left hand in a position which would have allowed him to take his trousers off or spread the applicant’s legs. According to the court, the fact that some of the applicant’s allegations were disproved by the expert raised some doubts as to her entire version of the events. On the basis of the principle that any reasonable doubt should benefit the accused (in dubio pro reo), the court had acquitted X. As regards the report by the expert in psychology R., which found that the applicant had suffered sexual abuse, the court noted that it could not ignore the judgment delivered in another set of proceedings concerning the applicant’s mother’s estranged husband, in which the competent court had accepted that he had engaged in sexual activity in front of the applicant and her sister and had also behaved inappropriately towards the applicant.
54.On 30 December 2009 the State Prosecutor lodged an appeal, in which she criticised the court for not considering the fact that owing to his age, gender and body mass X was much stronger than the applicant, and was also in a position of power on account of his economic and social status. Moreover, she pointed out that X had operated manual transmission vehicles, which required him to use both his arms. The prosecutor further argued that the criminal offence in question did not require the sexual act to have been committed by force; it was sufficient that the applicant opposed it. She also stressed that the proceedings had already been pending for eight years, which had aggravated the trauma suffered by the applicant.
55.The appeal was dismissed by the Maribor Higher Court on 26 May 2010, which found that the reasoning of the first-instance court’s judgment was clear and precise regarding the doubt that X had committed the alleged criminal acts.
56.The applicant subsequently asked the Supreme State Prosecutor to lodge a request for the protection of legality (an extraordinary remedy). On 28 July 2010 the Supreme State Prosecutor informed the applicant that the aforementioned request could only concern points of law and not the facts, which the applicant had called into question.
57.On 11 February 2011 the applicant and the Government reached an out-of-court settlement under the 2006 Act in the amount of 1,080 euros (EUR), covering all pecuniary and non-pecuniary damage incurred by the applicant as a result of a violation of her right to a trial without undue delay in the criminal proceedings in issue. The applicant also received EUR129.60 in respect of the costs incurred in the proceedings.
58.Article 183 §§ 1 and 2 of the Criminal Code regulating the criminal offence of sexual assault on a person younger than 15 years, as in force at the material time, reads as follows:
“(1) A person who engages in sexual intercourse or any other sexual act with a person of the opposite or same sex who is not yet fifteen years old, and where the maturity of the perpetrator and that of the victim are obviously disproportionate, shall be punished with imprisonment of one to eight years.
(2) A person who commits the above act against a person who is not yet ten years old, or against a vulnerable person who is not yet fifteen years old, or by using force or threat to life or limb, shall be punished with imprisonment of three years or more ...”
59.Section 148 of the Criminal Procedure Act, as in force at the material time, provides that the police, having concluded the preliminary investigation of an alleged criminal offence, will draw up a criminal complaint based on the information collected and send it to the State Prosecutor’s Office. However, even if the information gathered does not appear to provide any grounds for such a criminal complaint to be made, the police must submit a report on their actions to the State Prosecutor.
60.As regards the protection of under-age victims of criminal offences of a sexual nature during judicial investigations, the Criminal Procedure Act includes a number of provisions aimed at protecting under-age victims of or witnesses to criminal proceedings. In proceedings regarding criminal offences against sexual integrity, minors must, from the initiation of the criminal proceedings onwards, have counsel to protect their rights. Under-age victims who have no lawyer are assigned one by the trial court. Moreover, the defendant cannot be present during the examination of witnesses below the age of 15 years who claim to be victims of criminal offences against sexual integrity. In this regard, section 240 of the Act provides that minors, especially those who have been affected by the criminal offence, should be examined with consideration for their age, to avoid any harmful effects on their mental state.
61.In order to ensure the smooth running of a judicial investigation, the parties and the victim may, under section 191 of the Criminal Procedure Act 1994, complain to the president of the court charged with the investigation about any delays or other irregularities. Upon the examination of the complaint, the president is required to inform the complainant of any steps taken in this regard.
62.As to the time frame for scheduling a criminal trial, section286(2) of the Criminal Procedure Act provides that the presiding judge shall schedule a first hearing within two months of receipt of an indictment. If he fails to do so, he must inform the president of the court accordingly, and the latter is required to take the necessary steps to schedule a hearing.
63.As regards the conduct of the hearing, section 295 of the Criminal Procedure Act provides that the public may be excluded from the hearing if so required, for example for the protection of the personal or family life of the defendant or the victim. In accordance with section 299 of the Act, the presiding judge conducts the hearing, grants the parties the right to address the court, and questions the defendant, witnesses and experts. Moreover, it is the presiding judge’s duty to ensure that the case is presented fully and clearly, that the truth is established, and that any obstacles protracting the proceedings are eliminated.
64.The defendant may be temporarily removed from the courtroom if a witness refuses to testify in his presence. The witness’s statement is then read to him and he is entitled to put questions to him or her. Nonetheless, pursuant to section 334(2) of the Criminal Procedure Act the presiding judge will prohibit any questions that have already been asked, that bear no relation to the case, or that in themselves suggest how they should be answered.
65.Article 148 of the Code of Obligations regulating the liability of legal persons for damage inflicted by one of their subsidiary bodies, which also applies to the determination of the State’s liability for damages, provides that a legal person is liable for damage inflicted on a third party by one of its subsidiary bodies in the exercise of its functions or in connection therewith. In order for a claimant to be awarded compensation for damage inflicted by the State, he or she is required to prove all four elements of the State’s liability, that is, unlawfulness of the State’s action, existence of damage, causal link, and negligence or fault on the part of the State.
66.By virtue of Article 179 of the Code of Obligations, which constitutes the statutory basis for awarding compensation for non-pecuniary damage, such compensation may be awarded in the event of the infringement of a person’s personality rights, as well as for physical distress, mental distress suffered due to the reduction of life activities, disfigurement, defamation, death of a close relative, or fear, provided that the circumstances of the case, and in particular the level and duration of the distress and fear caused thereby, justify an award.
67.According to the decision of the Supreme Court no. II Ips 305/2009, an award of compensation for non-pecuniary damage is strictly limited to the categories of damage specified in the Code of Obligations, adhering to the principle of numerus clausus. The Supreme Court thus decided that non-pecuniary damage resulting from excessive length of proceedings could not be classified among the categories of damage recognised by the Code of Obligations, as the right to trial within a reasonable time could not be interpreted as a personality right.
68.Under section 1 of the 2006 Act, any party to court proceedings – including a victim of a criminal offence – is guaranteed the right to have his or her rights decided upon by the court without undue delay.
69.The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the United Nations General Assembly resolution 40/34 of 29 November 1985 provides that victims of crime should be treated with compassion and respect for their dignity (Annex, Article 4). Moreover, the responsiveness of judicial and administrative processes to the needs of victims should be facilitated by, inter alia, taking measures to minimise inconvenience to victims, protecting their privacy when necessary, and ensuring that they and their families and witnesses on their behalf are protected from intimidation and retaliation (Annex, Article 6 (d)).
70.Victims of criminal offences further enjoy protection under the legislation of the European Union. In 2001, a Council Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA) was adopted with a view to introducing minimum standards on the rights and protection of victims of crime. Article 2 of the Framework Decision requires the Member States to ensure that victims have a real and appropriate role in its criminal legal system and that they are treated with due respect for the dignity of the individual during proceedings. Moreover, Article 3 provides that victims must be afforded the possibility to be heard during proceedings and to supply evidence; however, appropriate measures must be taken to ensure that they are questioned by the authorities only in so far as necessary for the purpose of criminal proceedings. Article 8 requires the Member States to provide a number of measures aimed at protecting the victims’ safety and privacy in the criminal proceedings. Among others, measures must be taken to ensure that contact between victims and offenders within courts premises may be avoided, unless such is required in the interests of the criminal proceedings. Also, the Member States must ensure that, where there is a need to protect victims – particularly those most vulnerable – from the effects of giving evidence in open court, they may be entitled to testify in a manner which enables this objective to be achieved, by any appropriate means compatible with its basic legal principles.
71.Moreover, the EU Member States’ ambition to reinforce the rights of the victims of crime led to the adoption, on 25 October 2012, of the Directive of the European Parliament and of the Council (2012/29/EU) establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. The relevant part of the Directive, which is to be implemented into the national laws of the EU Member States by 16 November 2015, provides as follows:
Recital 19
“A person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them ...”
Article 20 – Right to protection of victims during criminal investigations
“Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations:
(a)interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority;
(b)the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation;
...
(d)medical examinations are kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal proceedings.”
Article 22 – Individual assessment of victims to identify specific protection needs
“1.Member States shall ensure that victims receive a timely and individual assessment, in accordance with national procedures, to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings, as provided for under Articles 23 and 24, due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation.
2.The individual assessment shall, in particular, take into account:
(a)the personal characteristics of the victim;
(b)the type or nature of the crime; and
(c)the circumstances of the crime.
3.In the context of the individual assessment, particular attention shall be paid to victims who have suffered considerable harm due to the severity of the crime; victims who have suffered a crime committed with a bias or discriminatory motive which could, in particular, be related to their personal characteristics; victims whose relationship to and dependence on the offender make them particularly vulnerable. In this regard, victims of terrorism, organised crime, human trafficking, gender-based violence, violence in a close relationship, sexual violence, exploitation or hate crime, and victims with disabilities shall be duly considered.
...”
Article 23 – Right to protection of victims with specific protection needs during criminal proceedings
“1.Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings.
2.The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1):
...
(b)interviews with the victim being carried out by or through professionals trained for that purpose;
...
3.The following measures shall be available for victims with specific protection needs identified in accordance with Article 22(1) during court proceedings:
(a)measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology;
(b)measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology;
(c)measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and
(d)measures allowing a hearing to take place without the presence of the public.”
72.On 5 May 2011 the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014. The Convention was signed by Slovenia on 8 September 2011, but has not yet been ratified. The relevant part of the Convention provides as follows:
Article 49 – General obligations
“1.Parties shall take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.
2.Parties shall take the necessary legislative or other measures, in conformity with the fundamental principles of human rights and having regard to the gendered understanding of violence, to ensure the effective investigation and prosecution of offences established in accordance with this Convention.”
Article 54 – Investigations and evidence
“Parties shall take the necessary legislative or other measures to ensure that, in any civil or criminal proceedings, evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary.”
Article 56 – Measures of protection
“1.Parties shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and judicial proceedings, in particular by:
(a)providing for their protection, as well as that of their families and witnesses, from intimidation, retaliation and repeat victimisation;
(b)ensuring that victims are informed, at least in cases where the victims and the family might be in danger, when the perpetrator escapes or is released temporarily or definitively;
(c)informing them, under the conditions provided for by internal law, of their rights and the services at their disposal and the follow‐up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein, as well as the outcome of their case;
(d)enabling victims, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and have their views, needs and concerns presented, directly or through an intermediary, and considered;
(e)providing victims with appropriate support services so that their rights and interests are duly presented and taken into account;
(f)ensuring that measures may be adopted to protect the privacy and the image of the victim;
(g)ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided where possible;
(h)providing victims with independent and competent interpreters when victims are parties to proceedings or when they are supplying evidence;
(i)enabling victims to testify, according to the rules provided by their internal law, in the courtroom without being present or at least without the presence of the alleged perpetrator, notably through the use of appropriate communication technologies, where available.
2.A child victim and child witness of violence against women and domestic violence shall be afforded, where appropriate, special protection measures taking into account the best interests of the child.”

***

A. The circumstances of the case
18. While most events are relevant for all applicants, their situation in the domestic proceedings has somewhat differed. However, given the number of applicants, the extent of the domestic procedures and difficulties associated with the establishment of each applicant ’ s procedural role, the present decision refers to them collectively as the “applicants”. This is based on the assumption that their position in the domestic proceedings has been relatively similar, whether or not each of them participated in the given procedural step, either directly or through their representatives (see Abuyeva and Others v. Russia, no. 27065/05, § 181, 2 December 2010 ).
19. The voluminous materials of the case files lodged by the applicants and submitted by the Government include documents from four criminal investigation proceedings, three criminal trials, two sets of civil proceedings for compensation, two reports by the parliamentary groups and one dissenting opinion, books and articles written in the aftermath, copies of forensic and expert reports in respect of each applicant and/or their relatives, and the applicants ’ own statements to the Court. The statement of facts below is a succinct summary of the documents mentioned above as well as other publicly available information.
1. Situation prior to the hostage-taking on 1 September 2004
(a) Terrorist attacks in 2004
20. The year 2004 saw a surge of terrorist acts in Russia entailing numerous civilian victims. Mr Shamil Basayev, the underground leader of the Chechen separatist movement, either claimed or was attributed responsibility for these acts.
21. On 6 February 2004 a suicide bomber killed over forty persons and wounded over 250 in a crowded underground train in Moscow.
22. In February and March 2004 several explosions in the Moscow Region damaged gas pipelines, a water - heating station and electricity pylons.
23. On 9 May the President of Chechnya, Mr Akhmat Kadyrov, and several senior officials were killed by a bomb placed under their tribune in a stadium in Grozny.
24. On 21-22 June a large group of armed rebel fighters attacked Nazran, Ingushetia ’ s largest town. They primarily targeted police stations and security offices; over ninety persons were killed and an ammunition warehouse was looted.
25. On 24 August two civilian planes which had departed from the Moscow Domodedovo airport simultaneously exploded in mid-air; ninety persons lost their lives.
26. On 31 August a suicide bomber exploded at the entrance to an underground station in Moscow, killing ten and wounding about fifty persons.
(b) Evaluation of the terrorist threat in North Ossetia
27. On 18 August 2004 the North Ossetian Ministry of the Interior issued the following telex no. 1751 to all local departments of the interior:
“[The North Ossetian Ministry of the Interior] has received information indicating movements of participants of [illegal armed groups] from the plains of [Ingushetia] and [Chechnya] to the mountainous and forested area along the border of [Ingushetia] and [North Ossetia]. The fighters ’ meeting is presumably planned for mid-August of the current year, following which they are intending to commit in [North Ossetia] a terrorist act similar to that in Budennovsk. According to the available data, the fighters envisage capturing a civilian object with hostages in the territory of [North Ossetia], and then submitting demands to the country ’ s leadership for withdrawal of troops from [Chechnya]. A large sum of money in [foreign] currency has apparently been transferred from Turkey. [This information is] transmitted in order for preventive measures to be taken.”
28. On 27 August 2004 the North Ossetian Ministry of the Interior issued decree no. 500 “About the protection of public order and security during the Day of Knowledge in the educational facilities of North Ossetia”, which was sent to all district police stations. The plan provided for heightened security awareness and an increase in the number of mobile posts and police officers near public gatherings, as well as ordering a series of measures aimed at the prevention of terrorist acts and hostage-taking during public gatherings on the Day of Knowledge in the settlements situated along the administrative border with Ingushetia. The plan further stipulated that each head of the district departments of the Interior should inform accordingly the administrations of educational facilities, put in place working plans for every such gathering and personally instruct the police staff about their functions, to carry out hourly updates of the situation at public gatherings, to ensure immediate feedback to the North Ossetian Ministry of the Interior and to provide for contingency staff in each police department.
29. On 25, 27 and 28 August 2004 the North Ossetian Ministry of the Interior issued three other telexes to the local departments, concerning security measures to be taken during the Day of Knowledge, heightened terrorist risks in the region and the prevention of possible attacks. The personnel of the Ministry of the Interior had been put on high alert (“ усиленный режим несения службы” ).
(c) Preparations for the hostage-taking in Beslan
30. As revealed by subsequent investigations, in the last days of August 2004 a sizeable group of terrorists (no less than thirty persons) camped and trained between the villages of Psedakh and Sagopshi in the Malgobek district of Ingushetia. Early in the morning on 1 September 2004 this group crossed the administrative border between Ingushetia and North Ossetia, driving a GAZ-66 utility truck.
31. On 1 September 2004 at 7.30 a.m. Major S.G. from the North Ossetian Ministry of the Interior stopped the vehicle for inspection at the administrative border in Khurikau. The terrorists unarmed him, placed him in the back seat of his own white VAZ-2107 and thus drove to Beslan. Major S.G. escaped there and later testified about these events.
2. Hostage-taking
32. At 9 a.m. on 1 September 2004 school no. 1 in Beslan, North Ossetia, held a traditional Day of Knowledge ceremony to mark the opening of the academic year. Over 1,200 persons gathered in the courtyard of the E ‑ shaped two-storey building located in Kominterna Street in the centre of the town, having a population of 35,000. The school was situated next door to the district police station of Pravoberezhny (the “Pravoberezhny ROVD”). The gathering included schoolchildren (859), teachers and staff of the school (about 60 persons) and members of their families. Dozens of children aged below six were present in the crowd with their parents, since several kindergartens in Beslan were closed on that day for various reasons. One unarmed police officer Ms Fatima D. was present at the ceremony.
33. According to some sources, in the morning of 1 September 2004 Beslan ’ s traffic police were called to secure the passage of Mr Dzasokhov, the North Ossetian President, through the town. The applicants referred to the testimony of the traffic policemen and servicemen of the Pravoberezhny ROVD to the effect that they had been instructed to take various positions along the route of Mr Dzasokhov ’ s convoy, and thus leave the school unprotected.
34. In the first minutes of the ceremony, at about 9.05 a.m., a group of at least thirty-two persons (the number of terrorists is disputed – see below), armed with various weapons, including machine guns, explosives and handguns, encircled the persons in the school courtyard and, shooting in the air, ordered them to enter the school through the main door and through the smashed windows on the ground floor. A GAZ-66 vehicle entered the yard through the main gates and a group of terrorists jumped out of it; according to some witnesses other terrorists came from behind the school and yet another group was already in the building.
35. The terrorists in the main courtyard fired into the air and there was an exchange of fire with the local residents or police. At least two local residents were killed (Mr R. Gappoyev and Mr F. Frayev) and some were wounded during the skirmish. It also appears that two terrorists were wounded. About one hundred persons, mostly adults and senior students, managed to escape at this point. Another fifteen persons hid in the boiler building, from where they were rescued later in the day.
36. Despite the initial chaos, the terrorists managed to round up the majority of those present in the courtyard – 1,128 persons (the exact figure is disputed by some sources), including about 800 children aged between several months and eighteen years. Several groups of hostages initially tried to hide inside the school or to escape through the fire exits, but the terrorists were in firm control of the building and escorted everyone to the gymnasium.
37. The hostages were assembled in the gymnasium located on the ground floor in the central part of the building and measuring about 250 square metres. The terrorists informed them that it was a terrorist act and that they had to obey. The hostages ’ personal belongings, mobile phones and cameras were confiscated, and they were ordered to sit on the floor.
38. Then the attackers proceeded to arrange a system of improvised explosive devices (IEDs) around the gymnasium, using basketball hoops and gymnasium ladders for support. Male hostages were forced to assist them in this task, which was completed within about two hours. A single chain connected several smaller IEDs hanging above the hostages ’ heads, two large IEDs attached to basketball hoops on the opposite walls of the gymnasium and several heavier ones placed on the floor. Some IEDs were filled with parts such as metal pellets, screws and bolts. They were connected by wire to pedal detonators (“dead man ’ s switch”) constantly held by two terrorists in turns. Two women wearing ample black clothes with explosive belts underneath – suicide bombers – remained in the gymnasium among the hostages.
39. The attackers smashed the windows of the gymnasium, to allow air and probably to avoid the use of gas as a means of attack. Several rooms around the school building were turned into firing points, with windows smashed and stocks of food, water and ammunition arranged. During the day on 1 September 2004 the terrorists kept shooting out of school windows in the direction of military personnel and civilians gathered outside.
40. At 9.25 a.m. the Ministry of the Interior in Vladikavkaz received information about the seizure of the school; it was immediately transmitted to the North Ossetian President Mr A. Dzasokhov and the Federal Security Service (the “FSB”).
3. Events of 1-2 September 2004
(a) The hostages ’ situation
41. The hostages were forced to sit in very cramped conditions on the floor of the gymnasium. During the first hours of captivity some families remained separated, but they were allowed to reunite later during the day of 1 September.
42. The hostages were ordered to keep quiet and not to speak in languages other than Russian. Mr Ruslan Betrozov, father of two sons present in the gymnasium, repeated the captors ’ orders in Ossetian. One of the terrorists walked up to him and executed him in full view of the persons present in the gymnasium by shooting him in the head; his body was removed only several hours later. Mr Betrozov ’ s sons, Alan (born in 1988) and Aslan (born in 1990) witnessed the execution; both boys died on 3 September 2004 during the storming. Another father of three, Mr Vadim Bolloyev, was shot in the shoulder in the first hours of the crisis apparently because he refused to obey the terrorists ’ orders. He died in the gymnasium by the end of 1 September. His younger son Sarmat (born in 1998) survived the attack; his two daughters Zarina (born in 1993) and Madina (born in 1995) died during the storming.
43. During the day on 1 September 2004 the attackers allowed groups of children, under their escort and accompanied by adults, to access the toilets outside the sports hall, to drink tap water. They also ordered senior students to bring water into the hall in buckets and to distribute it among the hostages by small portions. Also on 1 September the terrorists brought into the gymnasium a large TV screen and on several occasions turned on the radio, so that some hostages could hear the news about the events.
44. On 1 September the terrorists allowed the elderly and sick hostages, as well as some mothers with nursing babies, to stay in the smaller adjacent weights room, where they could stretch on the floor. Later these persons were brought into the sports hall.
45. Starting from 2 September the terrorists refused to allow the hostages water and ordered them to use buckets to relieve themselves and to drink their own urine. They announced to the hostages that the tap water had been poisoned and that they had declared a “dry hunger strike” in support of their captors ’ demands. Some of the hostages chewed leaves of the interior plants in order to relieve their thirst. The survivors later complained of exasperating thirst and heat prevailing on the 2nd and especially on the 3rd of September 2004.
(b) Execution of male hostages
46. From the outset the terrorists separated most men and forced them to perform various tasks in order to fortify the building or to place IEDs. They were told that their disobedience would lead to execution of women and children in the hall.
47. Thus, in the morning of 1 September, two male hostages were ordered to lift floorboards in the library. Floorboards were also lifted in the corners of the gymnasium. Others were ordered to move furniture and blackboards to the windows of various classrooms and corridors.
48. In the afternoon of 1 September several men were lined up in the corridor of the ground floor. An explosion occurred there at 4.05 p.m., as a result of which several male hostages were killed or injured. One (or two) women suicide bombers and one terrorist of Arab descent were killed by this blast. Several explanations of that explosion were put forward; the criminal investigation accepted that the terrorist in charge of the operation, “ Polkovnik ” (Colonel), had executed the male hostages whom the terrorists no longer needed and at the same time activated the suicide bomber ’ s explosive belt because the women had objected to the treatment of children. Some of the surviving hostages testified that there had been an attack from the outside, as a result of which the explosive belt had detonated and killed the woman bomber, the Arab terrorist and several hostages.
49. Male hostages who survived the explosion in the corridor were finished off by automatic rifles. Karen Mdinaradze survived the explosion as well as the ensuing execution. When the terrorists discovered that he was still alive, he was allowed to return to the gymnasium, where he fainted. He later testified about these events. At about 4.30 p.m. on 1 September the terrorists forced two men to throw the bodies out of a window on the first floor. One of them, Aslan Kudzayev, jumped out the window; he was wounded but survived. His wife is an applicant, she and her infant daughter were released on 2 September; their other daughter remained in the gymnasium and received injuries during the storming.
50. According to the investigation, sixteen men were killed by the terrorists on 1 September. Another sixteen persons were wounded on 1 September as a result of shots fired by the terrorists.
51. On 2 September at about 3 p.m. the terrorists fired several rounds from automatic weapons from the windows of the school, although it appears that no one was hurt and that no return fire followed.
(c) Negotiation attempts
52. At around 11 a.m. on 1 September the terrorists transferred a note to the authorities via one of the hostages, ambulance doctor Mrs Larisa Mamitova. She walked to the school gates, handed the note to a man who approached her and returned; in the meantime her minor son was held at gunpoint inside the building. This note contained a mobile telephone number and the names of persons with whom the terrorists wanted to negotiate: the North Ossetian President Mr Dzasokhov, the Ingushetian President Mr Zyazikov and paediatrician Mr Roshal. The note also stated that the school building had been mined and would be blown up in case of an attempt to storm it and that the terrorists would shoot fifty hostages for any one of them killed. However, it appears that the mobile telephone number was either wrongly noted or had been switched off, and no telephone contact could be established at that time.
53. At 1 p.m. on 1 September the Russian State TV programme “ Vesti ” announced that the attackers had transmitted a videotape to the authorities, containing their demands and images filmed inside the school. One hour later it was announced that the videotape was empty. Later on, the very existence of this videotape remained disputed.
54. Around 4 p.m. on 1 September Mrs Mamitova brought out a second note, containing a corrected mobile telephone number and the name of another possible negotiator, aide to Russia ’ s President, Mr Aslakhanov. She also told the person who collected the note that there were over 1,000 hostages inside the building.
55. The authorities contacted the terrorists through a professional negotiator, FSB officer Mr Z. His attempts to discuss proposals aimed at alleviating the hostages ’ conditions, the possibilities of exit or surrender or the removal of the bodies from the school courtyard remained futile.
56. Mr Roshal arrived in Beslan in the afternoon of 1 September 2004. When he called the hostage-takers, on 1 and 2 September, they were hostile and told him that they would enter into negotiations only if all four persons demanded by them arrived at the school. They told him that if he attempted to enter alone, he would be killed. They also refused to accept food, water or medicines, as well as to permit him to enter the building and examine the sick and wounded.
57. On 2 September the former President of Ingushetia, Mr Ruslan Aushev, arrived in Beslan on the invitation of the operative headquarters (OH). It appears that at about 3 p.m. he, for the first time, contacted by telephone Mr Akhmed Zakayev, the head of the self-proclaimed Chechen separatist government, living in London. He told Mr Zakayev about the siege and said that the number of hostages exceeded 1,000 persons.
58. Following a telephone contact with the terrorists, at 3.30 p.m. on 2 September Mr Aushev was allowed to enter the school. He was the only person whom the terrorists agreed to let inside during the siege. Mr Aushev was led to the gymnasium and then had a meeting with the leader of the terrorists, Mr Khuchbarov (“ Polkovnik ”).
59. Following negotiations, Mr Aushev was permitted to leave with twenty ‑ six (other sources indicate twenty-four) persons – nursing mothers and their babies; all women had elder children in the school and were forced to leave them behind.
60. Mr Aushev brought out a message addressed to the Russian President Mr V. Putin from Mr Shamil Basayev. It demanded the pulling of troops out of Chechnya and the official recognition of Chechnya as an independent state. In return, it promised cessation of terrorist activities in Russia “for the ensuing ten or fifteen years”. It bore no mention of the school siege. It appears that the terrorists also gave Mr Aushev a videotape depicting part of his visit, the gymnasium with the hostages, explosive devices and one terrorist holding his foot on the “dead man ’ s switch”. It also contained Mr Khuchbarov ’ s statement that the negotiations should involve Mr Aslan Maskhadov, the President of the self-proclaimed independent Chechen State, who had been in hiding at the time.
61. On 2 September and in the morning of 3 September the attackers tried to contact the authorities of North Ossetia with the assistance of the school director, Mrs Tsaliyeva. Two hostages – children of the North Ossetian Parliament ’ s speaker, Mr Mamsurov, – were allowed to call their father on his mobile telephone and to tell him that they were suffering without water and food. It appears that family members of other possible contacts among officials and public figures (district prosecutor, a well-known sportsman) were singled out by the terrorists but that no contact was established.
62. In parallel to the negotiations carried out through Mr Z., on 2 September direct contact with the terrorists was established through Mr Gutseriyev, an influential businessman of Ingush origin. The latter supplied Mr Aushev with the requisite telephone numbers, participated in the conversations with Mr Akhmed Zakayev and eventually tried to liaise with Mr Maskhadov.
63. Thus, as can be judged from various information sources, at around 5 p.m. on 2 September Mr Aushev, Mr Dzasokhov and Mr Zakayev held a telephone conversation during which Mr Zakayev promised to involve Mr Maskhadov in the negotiations (see paragraphs 139, 321, 331, 339 below). Some sources indicated that these talks had apparently resulted in Mr Maskhadov ’ s agreement to come to Beslan.
(d) Coordination of the authorities ’ actions and involvement of army and security detachments
64. At about 10.30 a.m. on 1 September 2004 the crisis OH was set up on the premises of the Beslan town administration. The exact composition, leadership and powers of this structure remain disputed. According to most sources, initially it was headed by Mr A. Dzasokhov, the North Ossetian President, and as of 2 September by General V. Andreyev, the head of the North Ossetian FSB. It was later established that the OH included the deputy head of the counter-terrorism commission of North Ossetia Mr Tsyban, the head of the North Ossetian Ministry of Emergency Situations (“Emercom”) Mr Dzgoyev, the North Ossetian Minister of Education Mrs Levitskaya, deputy head of the Information programme departments of the State Telecommunication corporation Rossiya Mr Vasilyev and the commander-in-chief of the 58th Army of the Ministry of Defence General Sobolev (see paragraphs 140, 168, 193, 312 - 333 below).
65. The detachments of the 58th Army started to arrive in Beslan in the afternoon of 1 September. On 2 September 2004 eight armoured personnel vehicles (APCs) and several tanks of the 58th Army arrived in Beslan. They were placed under the command of the FSB special purpose units and positioned around the school but out of the terrorists ’ sight.
66. Early in the morning of 3 September the FSB special purpose units went to Vladikavkaz for joint training with the Ministry of the Interior and the Ministry of Defence to prepare for a possible storming.
(e) Situation with the hostages ’ relatives outside the school
67. Thousands of people in Beslan were directly concerned with the crisis.
68. Despite the attempts of the authorities to clear the area, local residents, as well as ethnic Ossetians from outside Beslan, some of them armed, remained around the school building throughout the siege.
69. In the afternoon of 1 September the hostages ’ relatives were invited to the building of the town Cultural Centre. Until the end of the siege the Cultural Centre remained a hub for communicating with the relatives and for the provision of medical and psychological assistance to them.
70. At 7 p.m. on 1 September the North Ossetian President Mr Dzasokhov, the deputy speaker of the North Ossetian parliament Mr Kesayev and the North Ossetian Deputy Minister of the Interior Mr Sikoyev met with the relatives in the Cultural Centre. During this meeting Mr Sikoyev informed them that the terrorists had not put forward any demands and that they had refused to accept food, water or medicine for the hostages.
71. At about 9.30 p.m. on 1 September Mr Roshal participated in the meeting at the Cultural Centre. He assured the gathering that the conditions in the school were “acceptable” and that the hostages could survive several days without food or water. He also stated that the terrorists had not put forward any demands to the authorities.
72. On 2 September a psychological aid unit was set up at the Cultural Centre.
73. Late in the evening on 2 September Mr Dzasokhov held another meeting with the relatives at the Cultural Centre.
74. At 11.15 a.m. on 3 September Mr Dzasokhov announced to the relatives that there would be no storming and that “new personalities” had appeared in the negotiation process.
75. Some of the applicants were among the relatives who gathered outside the school building or stayed at the Cultural Centre and have submitted written statements describing these events.
(f) Information about the crisis
76. From the outset the information about the hostage-taking was strictly controlled by the authorities. Mr Vasilyev, a member of the OH and senior employee of the State TV company Rossiya was put in charge of contacting the journalists.
77. In the afternoon of 1 September the media announced referring to the official sources that about 250 persons had been taken hostage. Later on the same day the media reported a “corrected” number of hostages: 354 persons. According to some hostages, this news outraged the terrorists and prompted them to execute or at least throw out of the window the bodies of the executed men. It also transpires from the hostages ’ statements that after these announcements the terrorists refused to allow them to drink or go to the toilet, saying that “there should anyway be no more than 350 of you left” (see paragraph 285 below).
78. In the evening of 2 September Mr Roshal held a press-conference. He announced that he had talked on the telephone with a terrorist nicknamed “ Gorets ” (highlander) who had put forward no demands.
79. At 1 p.m. on 3 September the State TV showed terrorists ’ relatives of Ingush origin who asked them to release the hostages. One woman, the wife of a presumed hostage-taker, said that she and her children were being held somewhere “against their will” and asked her husband to do everything “to avoid harming the children”.
4. Storming and rescue operation
(a) Morning of 3 September 2004
80. The hostages in the gymnasium were extremely exhausted and suffered from thirst and hunger. They had spent two days without sleep, in cramped conditions and the physical state of many had worsened: people started to lose consciousness; some children were hallucinating, having seizures and vomiting.
81. Early in the morning the terrorists lifted the IEDs in the gymnasium from the floor, hanging them along the walls.
82. At 11.10 a.m. the terrorists agreed with Mr Aushev and Mr Gutseriyev to allow “Emercom” to collect the bodies from the school courtyard.
83. At about noon Mr Dzasokhov informed the OH that he had reached some sort of agreement with Mr Zakayev (see paragraph 331 below). According to some sources, that agreement could have extended to a possibility of Mr Maskhadov ’ s arrival in Beslan.
84. At 12.55 p.m. an “Emercom” truck and four officers entered the school courtyard. The men had Mr Gutseriyev ’ s mobile telephone to communicate with the terrorists. One of the terrorists came out and supervised their work. The explosions inside the gymnasium at 1.03 p.m. came unexpectedly to this group. The ensuing exchange of gun fire resulted in two officers ’ deaths.
(b) The first three explosions in the gymnasium
85. At 1.03 p.m. a powerful explosion occurred in the upper eastern part of the gymnasium. Part of the roofing was destroyed, the insulation caught fire, and fragments of the burning ceiling and roof fell into the gymnasium, killing and injuring people seated underneath. Many of the surviving hostages described the first explosion as a “fire ball”, or a “column of fire”, followed by white/silver powder falling from the ceiling. It appears that this explosion caused fire in the roof-space of the gymnasium (see paragraph 288 below). Twenty-two seconds later another explosion ripped through the lower part of the wall under the first window on the north-eastern side. The nature and origins of these explosions are disputed (see documents referred to below).
86. These two explosions killed both terrorists holding the detonators; however most of the IEDs remained intact (see paragraph 307 below). Dozens of people were killed, others were wounded or received burns of varying degrees, and almost everyone was shell-shocked. Many applicants submitted witness statements about these events.
87. Those hostages who could move and were able to reach the opening in the wall on the northern side started to climb through it and run outside. The terrorists fired at them from the upper floor, this prompted an exchange of gunfire between the terrorists and the security forces.
88. At this point General Andreyev issued an order to storm the building and to proceed with the rescue operation and neutralisation of the terrorists.
89. Several terrorists were killed or wounded during the first two explosions, however the majority of them survived, including “ Polkovnik ”. They rounded up the survivors in the gymnasium (about 300 persons) and forced them to walk to other premises of the main building, mostly in the southern wing: canteen, kitchen, meeting room and handicraft classrooms. Some hostages remained in the premises adjacent to the gymnasium (weights room, shower room).
90. The dead, injured and shell-shocked remained in the gymnasium, where the fire continued to spread in the roof-space.
91. At about 1.30 p.m. a third powerful explosion occurred in the southern part of the gymnasium. It appears that it was caused by one of the large IEDs which had caught fire. Soon afterwards flames spread around the gymnasium, taking to the floor and walls of the premises. Some hostages continued to escape through the openings in the walls.
92. Between 1.30 p.m. and 2.50 p.m. servicemen of the security services and local residents broke the western wall of the gymnasium and entered the hall. They helped to evacuate survivors. Their movements were covered by an APC which came close to the school. No terrorists were found there, but the gymnasium was under fire, probably from terrorist snipers on the first floor.
93. At about 1.40 p.m. part of the burning roofing collapsed.
94. Hundreds of wounded hostages and servicemen were taken to the Beslan hospital in private cars and ambulances. An “Emercom” field hospital had been spread out in tents in the hospital courtyard in order to sort out the wounded and cope with the influx. Many injured were taken to the hospitals in Vladikavkaz. The hostages ’ relatives were not allowed to enter the hospital. Over 750 civilians and over 50 servicemen received medical help on 3 September 2004 (see paragraphs 242 below and subsequent).
(c) Hostages in the southern wing
95. Over 300 hostages who had survived the explosions and fire in the gymnasium were taken by the terrorists to the canteen and kitchen situated on the ground floor in the southern wing. Other hostages were taken to the main meeting room situated above the canteen on the first floor. There they found stocks of water and food and could relieve their thirst for the first time in two and a half days.
96. The women and children in the canteen and meeting room were forced by the terrorists at gunpoint to stand in the windows and wave their clothes; some were killed or wounded by gunfire and explosions.
(d) Ensuing fighting
97. As shown by many witness statements, but not corroborated by the results of the criminal investigation, after 2 p.m. a tank with hull number 320 entered the school yard and fired several rounds at the canteen. It appears that another tank, with hull number 325 or 328, also fired at the school from a distance of about 20-30 metres. Some of the rounds were fired with solid shots, while others were probably done with ammunition (see paragraphs 294, 298, 303, 411 below).
98. Two APCs entered the school yard and took part in the fighting with their large-calibre machine guns.
99. The army and FSB assault troops were positioned on the roofs of the five-storey apartment blocks, nos. 37, 39 and 41 of Shkolny Lane, located on the eastern side of the school. These servicemen fired at the school with portable grenade-launchers and fire-launchers, although the exact timing of these attacks is disputed (see paragraphs 152, 293, 300, 408, 410 below). Two MI-24 helicopters circled above the school. According to some sources, although not corroborated by the official investigation, at least one rocket was launched from a helicopter on the school ’ s roof (see paragraph 410 below).
100. At 3.10 p.m. the OH ordered fire brigades with water cannons to intervene, by which time the gymnasium was ablaze and other parts of the building were on fire (see paragraphs 160, 209, 304 below). At the same time the head of the OH ordered the servicemen of the FSB special forces units Alfa and Vympel to enter the building.
101. At about 3.30 p.m. the entire roof of the gymnasium collapsed. After 4.30 p.m. the fire was contained; the servicemen of the special forces and firefighters entered the gymnasium, but found no survivors there.
102. It appears that the servicemen of the special forces entered the canteen at about 4 p.m. through the openings in the walls and through the windows, once the metal bars blocking them had fallen inside as a result of an explosion or had been pulled out with an APC. Amid fierce fighting they evacuated the surviving hostages.
103. Numerous bodies of terrorists and hostages were found in the canteen, the meeting room and rooms and corridors of the southern wing.
104. At about 5 p.m. a strict security perimeter was established around the school. All civilians, “Emercom” staff, firefighters and servicemen of the army were ordered to leave, leaving only the FSB special forces inside. At about 5.25 p.m. the servicemen of the FSB special units held a minute ’ s silence in the corridor of the southern wing in order to honour the memory of their comrades: ten members of the elite Vympel and Alfa units, including three group commanders, had lost their lives and about thirty were wounded – the biggest losses ever sustained by these units in a single operation.
105. After 6 p.m. several shots were fired at the southern wing of the building from anti-tank missiles and flame-throwers.
106. At about 9 p.m. two tanks fired at the school. There followed several powerful explosions which completely destroyed the walls and roofing of the handicraft classrooms in the southern wing.
107. The gunfire and explosions at the school continued until past midnight.
108. One terrorist, Nurpashi Kulayev, was captured alive. The rest, it appears, were killed during the storming. Consistent rumours circulated that some terrorists had escaped or were captured clandestinely.
5. Events of 4 September 2004, identification of bodies and burials
109. In the night of 4 September Russian President Putin arrived in Beslan for several hours. He visited the town hospital and administration.
110. The school building remained encircled by soldiers throughout the day of 4 September.
111. At 7 a.m. “Emercom” staff started to collect the bodies and to clear the debris. Between 112 and 116 charred bodies were found in the gymnasium, and about 80 bodies in the adjacent premises (changing rooms, weights room). It appears that between 106 and 110 bodies were found in the southern wing of the school and on other premises, although no exact information has been recorded in this respect (see paragraphs 130-133 below). 18 bodies of men were collected in the courtyard. About 330 bodies (including over 180 children) were placed in the school yard and then taken to the Vladikavkaz morgue.
112. During the day on 4 September bulldozers and trucks arrived at the school. The remaining debris was loaded onto trucks and taken to the town rubbish dump. The victims alleged that they and other locals later found a number of important items of evidence among this rubbish, including the terrorists ’ personal belongings such as backpacks and razor blades, human remains, hostages ’ clothes, parts of IEDs.
113. At 6 p.m. on 4 September the security lines in Beslan were lifted. On the same day after 8 p.m. the units of the 58th army withdrew from the town.
114. On 5 September 2004 the first funerals took place. Over the following days collective burials of over 100 people followed. The local cemetery was too small and had to be extended; later a special memorial was erected there (see paragraph 425 below).
115. However, many bodies were charred beyond recognition. On 17 September 73 bodies were taken to the forensic laboratory in Rostov ‑ on ‑ Don for identification through DNA tests. The identification and burials continued throughout December 2004 (see paragraphs 340- 341 below).
116. The 5th and 6th of September 2004 were declared days of national mourning. On 6 September 2004 Russian President Putin spoke in a televised address to the nation announcing future measures to improve agencies ’ cooperation in counter-terrorism measures. He called the attack a “direct intervention of international terrorism against Russia”.
6. Assuming of responsibility for the terrorist act
117. On 5 September 2004 the website Chechenpress.org published a message signed by “the President of Ichkeria” Mr Aslan Maskhadov, condemning the hostage-taking and terrorist attacks against civilians, but blaming the Russian authorities for the radicalisation of the Chechens.
118. On 17 September 2004 the website Kavkazcenter.com disseminated an e ‑ mail, allegedly from Mr Shamil Basayev, a leader of the radical wing of the Chechen separatist movement, who used the titles of “ Amir of Riyad ‑ us Saliheen Brigade of Martyrs” and “the chief of the high military madjlisul shura of the united Caucasus mujahidin ”. Mr Basayev, who at the time lived clandestinely in the Russian Northern Caucasus, claimed that his “martyrs ’ battalion” had carried out the attack in Beslan, as well as the explosions in Moscow and the plane crashes in August 2004.
119. The e-mail alleged that the special forces had started the storming and that the IEDs set up by the attackers in the gymnasium had not exploded. Mr Basayev further claimed that the following demands had been put to the authorities: that military actions in Chechnya be stopped, that troops be pulled out and that President Putin step down from his post. The note stated that all hostages, including children, had declared a “dry hunger strike” until these demands were granted. The letter contained details about the number and types of IEDs used, indicated the ethnic origin of thirty ‑ three “ mujahedin ” who had taken part in “Operation Nord-West” (as they named the attack at the school) and alleged that the group had gathered and trained for the preceding ten days under Mr Basayev ’ s personal leadership near the village of Batako-Yurt [near Psedakh in Ingushetia]. The letter also mentioned the message to President Putin, which had been transmitted through Mr Aushev, and contained its full text. Mr Basayev alleged that the only surviving terrorist, Mr Nurpashi Kulayev, had been taken into the group on the night preceding the operation. The document further stated that the leader of the operation, “ Polkovnik ”, had called him after the storming had started to say that they had counterattacked, and that the last call from him had been received at 2 a.m. [on 4 September]. Finally, the letter cited the alleged costs of the terrorist attacks of August-September 2004: 8,000 euros (EUR) for “Operation Nord-West”, 7,000 US dollars (USD) for the explosions in Moscow and USD 4,000 for the planes.
120. In August 2005 the same website published another message signed by Mr Shamil Basayev. This message contained passages suggesting that a member of the group which had seized the school, Mr Vladimir Khodov, had been a double agent of the FSB and of Mr Basayev and that he had ensured the group ’ s “coverage” during the preparation for the attack and their unhindered passage to North Ossetia.
121. On 10 July 2010 Mr Basayev was killed by an explosion in Ingushetia. It was announced that his death was a result of a special operation by the Russian security services; it was also reported that the blast had resulted from mishandling of explosives.
7. Criminal investigation file no. 20/849
122. On 1 September 2004 the North Ossetian Prosecutor opened criminal investigation no. 20/849 concerning a terrorist attack at the school by an armed group and the murder of twelve male hostages.
123. On 2 September 2004 Mr Fridinskiy, Deputy General Prosecutor, ordered the transfer of the investigation concerning the hostage-taking of over 600 persons to the General Prosecutor ’ s Office in the Northern Caucasus. On the same day Mr Fridinskiy appointed a group of over sixty investigators from the prosecutors ’ offices from the Southern Federal Circuit to take over the investigation, under the command of a special investigator of the General Prosecutor ’ s Office in the Northern Caucasus.
124. This investigation has been extended on several occasions and is still pending (adjourned).
125. Many important investigative steps aimed at establishing the exact circumstances of the preparation and carrying out of the terrorist act, as well as the explosions in the gymnasium and the ensuing storming, have been taken in the course of these proceedings. The applicants claimed that in the course of proceedings they have not been allowed full access to the documents of this file and challenged this aspect of proceedings. Upon the Court ’ s requests, the Government submitted the list of documents contained in this criminal case. According to this list, by 2012 the case-file contained 235 volumes, each ranging, on the average, between 200 and 350 pages. The available information may be summarised as follows.
(a) Reconstruction of the events preceding the hostage-taking and identification of the organisers of the crime
126. The investigation found out that the group which had committed the terrorist act had been organised by Mr Aslan Maskhadov, Mr Shamil Basayev, “a mercenary of Arab descent” called Taufik-al-Jedani (Abu-Dzeyt), and their entourage. The aim of the group was “to break public peace and to scare the population, to put pressure on the State authorities in order to achieve withdrawal of troops from Chechnya”. In July-August 2004 the said persons had put together a plan to seize a large number of hostages among pupils and parents of school no. 1 in Beslan, as well as to commit murders of civilians, police officers and military servicemen.
127. In the second half of August 2004 the said persons put together an organised criminal group (gang), comprising over thirty persons. Its members included residents of Chechnya, Ingushetia, other regions of Russia and foreign mercenaries. The organisers of the terrorist act entrusted the command of the operation to an active member of the gang, Mr Khuchbarov from Ingushetia, who used the nickname “Rasul” and radio call “ Polkovnik ” (colonel). Twenty-four terrorists were identified by their names, while at least six persons remained unidentified.
128. On 31 August 2004 the gang gathered in the vicinity of Psedakh in the Malgobek District of Ingushetia. They carried the following arms and ammunition (partly originating from the attacks in Ingushetia on 21-22 June 2004): no less than twenty Kalashnikov assault rifles, four Kalashnikov machine guns (RPK-74 and PKM), one tank machine gun (PKT), two portable anti-tank missile launchers (RPG-7v), four hand pistols and corresponding ammunition, including cartridges of different calibres and grenades of various modifications. In addition, the group carried two identical IEDs comprised of plastic explosives and hexogen, filled with metal pellets and electro detonators, with an impact radius of no less than 200 metres; six IEDs made of OZM-72 anti-personnel circular fragmentation mines; and so-called “suicide bomber belts” – IEDs containing plastic explosives and projectiles made of cut metal wires and metal sheets. The gang also used mobile telephones, a radio station and portable radio transmitters. The members were supplied with camouflaged clothes, balaclava masks and gas masks. They used a GAZ-66 vehicle to travel.
129. On 31 August 2004 Mr Khuchbarov informed the members of the gang about the forthcoming attack and distributed the roles between them. Early in the morning of 1 September 2004 they travelled towards Beslan; in the village of Khurikau along the way they captured local policeman S.G., also seizing his handgun and vehicle.
(b) Examination of the crime scene
130. Between 7 a.m. and 6.25 p.m. on 4 September 2004 a group of investigators and experts, in the presence of twelve attesting witnesses, compiled a report of the school building and courtyard. The examination of the site was conducted simultaneously with the clearing of the debris and rescue operation. It ran to forty-three pages and was accompanied by video and photo materials (over 150 pages).
131. The report mostly concentrated on the descriptions of the items found in the school, including personal belongings and documents of the hostages, the terrorists ’ equipment and ammunition, damage to the structures of the building, as well as the terrorists ’ bodies. Very little information was given about the location and state of the hostages ’ bodies; most notably, page 24 of the report contained the following passage: “[in the gymnasium] from the floor up to 40-50 centimetres high there are found hundreds of burnt bodies of women, children and men, occupying about half of the gymnasium ’ s surface”. The report noted that the bodies were being carried out by the “Emercom” staff into the courtyard.
132. The description of the canteen on page 15 failed to mention the state of its two windows facing the railway line or to give any details about the nature and extent of damage to its walls other than “signs of damage from firearms on the walls [entailing] falling off of whitewash”.
133. The description of the southern wing on page 23 was limited to the following: “the said wing is almost destroyed and the “Emercom” servicemen are clearing the debris, as a result of which no examination of this wing is carried out”.
(c) Expert report no. 1
134. Upon the investigation ’ s requests of October and November 2004, on 23 December 2005 an “all ‑ round forensic expert examination no. 1” (“ комплексная судебная экспертиза ”, hereinafter “expert report no. 1”) was produced. The request was to evaluate the conduct of the OH and of various military and security agencies on 1-3 September 2004. The experts visited the sites in Beslan and examined numerous items of evidence, including testimony of servicemen and other witnesses, photographs, graphic tables, and tapes of telephone and radio conversations. The report comprised over seventy pages. It concluded that the actions of the officials had been lawful and reasonable in the circumstances. In particular, it found that the members of the OH and the servicemen of the Ministry of the Interior, the Internal Troops, the FSB and the “Emercom” “had not committed any offences which could bear a causal relationship with the negative consequences resulting from the terrorist act of 1-3 September 2004 in Beslan”.
135. This document was extensively cited and relied upon in the subsequent proceedings, even though it was later declared invalid (see paragraph 166 below).
136. The report focused on several questions.
(i) Actions of the Operative Headquarters (OH)
137. First, the report found that the actions of the OH had been focused on negotiations with the terrorists in order to obtain release and safety for a maximum number of persons. The terrorists ’ demands transmitted through Mr Aushev could not have served as the subject-matter of negotiations, since they threatened the basis of the Constitutional order and Russia ’ s territorial integrity.
138. The involvement of Mr Aushev and Mr Gutseriyev as negotiators, as suggested to the OH by the FSB, and the success of Mr Aushev ’ s mission when he took out twenty-six persons, had served as an antidote against the escalation of the ethnic Ossetian-Ingush conflict.
139. In respect of Mr Maskhadov ’ s involvement in the negotiations, the report found that Mr Dzasokhov and Mr Aushev had talked to Mr Zakayev on 3 September in the morning and that the latter had told them that his connection with Mr Maskhadov had remained at a one-way level. They suggested to Mr Zakayev that he contacted Mr Shamil Basayev, but he refused in view of their past conflict.
140. The report also covered the question of Mr Dzasokhov ’ s involvement in the OH. It stated that on the morning of 1 September 2004 Mr Dzasokhov had taken an active part in the work of the OH. Under his command the officials had ensured a security perimeter around the school, informed the public about the measures taken, supplied the local population with the necessary provisions in the Cultural Centre, and set up a field hospital. The information to the inhabitants was provided hourly through Mr Dzugayev, the North Ossetian President ’ s press-secretary. Mr Dzasokhov took care of the immediate needs of the first day of the siege, coordinating various agencies involved, increasing the security of other vital objects in the Republic. When the terrorists named him as a negotiator, Mr Dzasokhov had been prepared to go ahead, but the OH formally prohibited him from doing so.
141. Having scrutinised the taped conversations between the hostage ‑ takers and the OH, as well as between the terrorists inside the building and their collaborators outside (namely several conversations with someone using the call-name “Magas” recorded after the start of the storming), the experts found that the terrorists had unconditionally refused to discuss any measures aimed at alleviating the hostages ’ situation, or any other arrangements except for political demands relating to the situation in Chechnya, and insisted that the hostages had voluntarily joined them in declaring a “dry hunger strike”. The telephone conversations were often ended by them in an aggressive manner and without apparent reason. Furthermore, they had anticipated and planned their own deaths, as well as numerous deaths among the hostages, as attested by the cheers and support received by them from “Magas” once the storming had started. These later conversations contained references to the “meeting in heaven”, “fulfilling the duty”, becoming martyrs ( Shahid ), welcomed the killing of infidels and referred to the situation of the storming as “going normal”.
(ii) Prevention of the terrorist act
142. The report relied on numerous telexes, orders and directives issued by the Ministry of the Interior and the FSB in July – August 2004, indicating a heightened terrorist threat in the Northern Caucasus and ordering various measures to be taken by the local police and security forces. As of 22 August all forces of the Ministry of the Interior in the Southern Federal Circuit had been put on alert (“ усиленный вариант несения службы ”). On 24 and 31 August special measures were requested from the local police offices to prevent terrorist acts from taking place during the Day of Knowledge on 1 September.
143. In respect of the Pravoberezhny ROVD of Beslan (situated next to the school building) the report concluded that the commanding officers had failed to take certain preventive steps. In particular, the personnel of the ROVD had not been instructed about the actions to be taken in case of emergency, and no plan had been put in place to ensure additional security during the ceremonies in the schools. The only police officer present at school no. 1 was unarmed, namely Mrs D. Two other police officers who had been scheduled to guard the school during the ceremony were absent. Two patrol officers of the transport police had been transferred elsewhere to ensure the passage of Mr Dzasokhov ’ s convoy along the “Kavkaz” federal highway. As a result, the terrorists had unhindered access to the school and were able to force a large number of hostages inside. No reaction from the local law-enforcement bodies had been forthcoming during the first fifteen minutes of the attack.
144. The servicemen of the Pravoberezhny ROVD, having received no instructions beforehand and having no preliminary plan of action in the event of a terrorist act, had received arms and ammunitions at the ROVD and by 10 a.m. had set up a security cordon around the school. Information about the school siege had been immediately transmitted to the North Ossetian Ministry of the Interior. The report found that the actions of the senior staff of the Pravoberezhny ROVD had amounted to professional negligence.
145. In respect of the situation in the Malgobek district of Ingushetia, the report concluded that the local police had failed to prevent the members of the gang from assembling and training there at the end of August. Reference was made to the pending criminal case against the senior officers of the Malgobek ROVD (see paragraph 363 below).
(iii) Actions of the Internal Troops
146. The report concluded that the servicemen of the Internal Troops had been employed only in the outer security perimeter around the school, the first one being ensured by the FSB special forces. They had taken no part in the fighting; their actions and equipment had been in full compliance with the relevant legal acts and pertinent to their tasks.
(iv) Actions of the special units of the FSB
147. Servicemen of the FSB special forces had taken part in the operation. They were armed with customary weapons, as well as special equipment such as RPG-26 portable grenade-launchers and RPO ‑ A “Shmel” portable flame-throwers.
148. Turning to the events of 3 September 2004, the report presented the following chronology. By 1 p.m. no plan existed to start the storming. Two special forces ’ groups had been out of Beslan training for the possible development of the situation; snipers and intelligence groups kept monitoring the object from their positions; an emergency group of thirty ‑ two persons was positioned behind the housing blocks; and the remaining servicemen stayed at the assembly point.
149. The explosions which occurred at 1.05 p.m. were caused by two IEDs. No shots were fired at that time, as the “Emercom” staff were working in the front yard of the school. In any event, the place of the explosion was invisible from the snipers ’ positions.
150. No flames appeared in the gymnasium after the two explosions. The hostages started to run out through the openings ripped in the walls. The terrorists opened fire on the escaping people using automatic rifles and machine guns. Pursuant to the instruction of the head of the OH, the servicemen of the special forces were ordered to save the hostages. The terrorists were aimed at by the fire-support group and under cover of three APC-80s.
151. A group of servicemen entered the weights room and evacuated from it several women with small children. This group then entered the gymnasium and started to take out the hostages. The terrorists opened fire at them. Two servicemen took positions on the floor and returned fire, while the rest continued to lead the hostages out. At about 1.40-1.50 p.m. the terrorists fired several shots from portable grenade-launchers (RPG ‑ 18 “ Mukha ”) at the gymnasium, killing and injuring several hostages, wounding two officers of the special forces and starting a fire in the gymnasium.
152. The rescue operation lasted until 2.40 p.m., at which time all available FSB forces had been regrouped pursuant to a previously adopted plan. At 3 p.m., upon an order from the commander, they stormed the building. Their movements inside the building were slowed down by low visibility from smoke and whitewash powder and the presence of hostages whom the terrorists were using as human shields. The terrorists employed automatic weapons, hand grenades and portable grenade-launchers, while the FSB forces were constrained to fire single shots, to avoid excessive harm to the hostages. By 6 p.m. no hostages remained in the building. Only once this had been ensured did the forces of the FSB use heavy weapons against the terrorists who had refused to surrender. Hand grenades, RPG ‑ 20 portable grenade-launchers and “Shmel” flame-throwers were used for the first time after 6 p.m. At 9 p.m. a T-72 tank was used to make openings in the walls and to suppress enemy fire points, since further movements in the building were impossible because of mines laid by the terrorists. The records of the site examinations and video materials showed that no bodies of hostages were found in places where the terrorists were killed by heavy arms and team weapons.
153. Ten servicemen of the special forces were killed during the operation, and eleven received injuries. The fatal casualties included two lieutenant-colonels [group commanders], one of whom had died in the first minutes of the storming when he rushed to the school covering the escaping hostages; the second died in the main meeting room while trying to release the hostages detained there.
154. The report analysed the circumstances of the deaths and injuries of each serviceman of the special forces which occurred between 1.20 p.m. and 3 p.m. on 3 September and concluded that their actions had been lawful and adequate and had demonstrated their high professionalism, courage and self ‑ sacrifice.
(v) Actions of the army
155. The commander of the 58th army of the Ministry of Defence, General Sobolev, was informed of the hostage taking at 9.38 a.m. on 1 September. On the same day, by 1.30 p.m. the third ring of the security perimeter had been set up around the school by the 58th army servicemen. The servicemen were armed with various automatic weapons and portable grenade and mine launchers, but they did not use any of them since their task was limited to maintaining the security line.
156. As to the use of military vehicles, the report found, on the basis of various descriptions, plans, logbooks and servicemen ’ s testimony, that on 2 September three T-72 tanks with hull numbers 320, 325 and 328 had been transferred under the command of the FSB officers. Tanks with hull numbers 320 and 328 manoeuvred around the school following the commands of the FSB officers but did not open fire. Tank with hull number 325 fired seven high-fragmentation shots, calibre 125 millimetres, at the canteen situated in the right wing of the school, following the directions of the FSB officer in charge. The shots were fired between 9 p.m. and 9.30 p.m. on 3 September 2004. The report concluded that the use of the tank had occurred after the end of the rescue operation at 6 p.m., when no harm could have been caused to the hostages and was guided by the need to suppress enemy fire in the most efficient way.
157. Several other military vehicles were used during the operation, also under the command of the FSB officers. Eight APC-80s were stationed at various points around the school from 1 or 2 September 2004 onwards. Of them two, with hull numbers 823 and 824, took part in the storming operation. APC number 823 used a heavy machine gun (calibre 7.62 millimetres) between 2 p.m. and 2.20 p.m. to suppress terrorists ’ firing positions on the school ’ s roof. At the same time an APC with hull number 824 fired several rounds from a heavy machine gun at the windows of the first floor, covering the Alpha servicemen who had entered the building. The remaining military vehicles took no active part in the fighting. The experts concluded that the use of the machine guns in the circumstances was fully appropriate and could not have entailed injuries or deaths among the hostages.
(vi) Actions of “Emercom”
158. From 9.35 a.m. on 1 September, various services of “Emercom” from North Ossetia and neighbouring regions began to arrive at school no. 1. They included brigades specialising in extinguishing major fires and fire engines with water tanks or cisterns. Rescue workers arrived with special equipment and search dogs. At 5 p.m. on 1 September 2004 fourteen psychologists started working with the relatives; by 4 September 2004 fifty ‑ one psychologists were working in Beslan. The centre of psychological assistance was in the Cultural Centre, where ambulance doctors were called whenever necessary. In total, between 1 and 4 September 2004, 254 persons and seventy vehicles of “Emercom” were deployed in Beslan.
159. At 12.40 p.m. on 3 September four servicemen of the “Emercom” rescue team were instructed to retrieve bodies from the school ’ s courtyard. They received safety guarantees and a mobile telephone to communicate with the terrorists in the school. Following the explosions in the gymnasium, chaotic firing from the upper floor and roof by the terrorists left two servicemen dead and two injured.
160. The report then focussed on the actions of the fire brigades on 3 September. At 2.51 p.m. a fire alert was given to the firefighting service. At 3.20-3.25 p.m. fire brigades arrived at the scene. The delay in arriving was caused by the order of Mr Andreyev, who had considered that the firemen and their engines could have been attacked by the terrorists, rendering the rescue operation more complex. At 3.26 p.m. two brigades rolled out fire hoses and proceeded to extinguish the fire. Each cistern contained about 2,000 litres of water, which was its full capacity, used within three to five minutes. The fire hydrant in the school could not be used, as it was located in the military engagement area. At 3.35 p.m. two other fire units arrived and were stationed on the northern and eastern sides of the gymnasium. Deputy North Ossetian “Emercom” Minister Colonel Romanov assumed the role of incident commander. Five fire hoses were deployed. A supply of water from a water hydrant situated within 200 metres was ensured; the firemen also used water from newly arrived tanks.
161. The fire was contained and extinguished by 9.09 p.m. The operation was protracted since on two occasions the firemen were removed from the school upon the special forces ’ orders.
162. In the meantime, the “Emercom” rescue workers evacuated hostages from the school building. By 4 p.m. they took out over 300 persons, including 100 children. After the fire was extinguished, rescue teams started to search the debris in the gymnasium. They had to stop at 10.25 p.m. when unexploded IEDs were discovered and sappers were called in.
163. Immediately after midnight on 4 September a fire started in the southern wing of the school building, on the premises occupied by the canteen, handicraft classrooms, library and meeting room. Four firefighting brigades arrived on the spot and the fire was contained and extinguished by 3.10 a.m.
164. At 7 a.m. on 4 September “Emercom” rescue workers, assisted by military servicemen, started to clear the debris and search for the bodies. 323 dead bodies were collected and sent to the forensic unit in Vladikavkaz. At 7 p.m. the search and rescue operation in the school was over.
165. The report concluded, with reference to the evidence contained in the case file, that the deaths of 112 persons whose bodies were found in the gymnasium had been caused by the explosions of the IEDs. The bodies found there had between 70% and 100% of their surface carbonised; the carbonisation had occurred post-mortem. The firefighters had to act in extreme conditions, under threat to their lives. The organisation and equipment supplied were sufficient to ensure the carrying out of their tasks.
(vii) Challenge to the report ’ s conclusions
166. On 9 November 2006 the Leninskiy District Court of Vladikavkaz, upon the applicants ’ application, declared the expert report no. 1 invalid owing to a number of grave breaches of the procedural legislation governing the appointment of experts and the carrying out of expert evaluations.
(d) Chronology of the OH ’ s actions
167. The investigation established the following time-frame of the action of the OH (as set out in expert report no. 1 and subsequent documents):
(i) 1 September 2004
168. At about 10.30 a.m. the OH was set up, in accordance with the plan of action in case of terrorist threat issued on 30 July 2004. Initially it was headed by the President of North Ossetia Mr Dzasokhov, the head of the North Ossetian FSB Mr Andreyev and the North Ossetian Minister of the Interior Mr Dzantiyev. Prior to his appointment, on 2 September 2004, as head of the OH, Mr Andreyev had been in charge of coordinating the actions of various law-enforcement and military structures, including the FSB units arriving in Beslan. Two deputy directors of the FSB, Mr Pronichev and Mr Anisimov, who had arrived in Beslan on 2 September, acted as consultants and did not interfere in the command of the operation.
169. Between 11 a.m. and 2 p.m. the operative headquarters ensured the evacuation of residents from adjacent premises, as well as cordoning off the school. The police and security forces searched basements and attics of the nearby buildings, cleared the adjacent streets of parked vehicles and closed them to traffic, closed the local railway line and took other necessary measures. In order to avoid harm to the hostages and other civilians, it was also ordered not to respond to the random shots fired by the terrorists. Scanning of radio frequencies in the vicinity of the school had been put in place by the Ministry of the Interior, the FSB and the army.
170. At 11.05 a.m. the terrorists transmitted the first note, containing a telephone number and naming possible negotiators. However, the telephone number had been indicated incorrectly and no contact could be established.
171. Between 11.30 a.m. and 13.30 p.m. two safety perimeters were put around the school, composed of police and army servicemen, using seventeen APCs. At noon on that day the APCs were withdrawn out of the terrorists ’ view, in order to avoid provocation.
172. At 11.40 a.m. the OH started compiling a list of the hostages.
173. At 12.35 p.m. the OH invited the North Ossetian mufti to take part in the talks; but the terrorists opened fire on him when he tried to approach the seized building.
174. At 1.55 p.m. all reserve forces of North Ossetia ’ s police, including local policemen in towns and villages along the administrative border with Ingushetia and police academy students, were placed on high alert.
175. At 4.05 p.m. hostage Mrs Mamitova brought out a second note with a corrected telephone number.
176. Between 4.05 p.m. and 5 p.m. a series of gunshots and explosions were heard inside the school. The OH instructed Mr Z., a professional negotiator from the North Ossetian FSB, to contact the terrorists by telephone. The hostage-taker presented himself as “ Shakhid ” and said that he had executed ten persons and blown up twenty others because the authorities had been slow in contacting them. Then he insisted that the men indicated in their note (Mr Zyazikov, Mr Dzasokhov, Mr Aslakhanov and Mr Roshal) should arrive at the school together. Mr Z. pleaded for time to bring the four men to Beslan. The terrorist said that the gymnasium had been mined and would be blown up in case of storming.
177. At 4.30 p.m. Mr Kastuyev escaped from the school by jumping out of the first floor window. He identified a photo of one terrorist from Ingushetia; on the same day his relatives were brought from Ingushetia by the FSB. However it transpired that the identification was incorrect. This man was killed in Ingushetia later while actively resisting the authorities.
178. During the day the OH collected information about possible hostage ‑ takers and their relatives, so as to involve the latter in the negotiations.
179. At 5 p.m. the terrorists fired several random shots from automatic weapons and portable grenade-launchers. About a dozen bodies were thrown out of the window. The OH took steps to prepare for the evacuation of injured persons to the local health establishments; psychological support had been called in for the hostages ’ relatives.
180. At 5.45 p.m., in order to prevent dissemination of incorrect information, it was decided that all contacts with the media should be carried out by Mr Andreyev, Mr Dzantiyev and Mr Dzugayev; Mr Peskov from the Russian President ’ s Administration was given the task of liaising with journalists.
181. At 6 p.m. the North Ossetian Ministry of Health designated hospitals to be on stand-by; twenty-eight ambulance vehicles were deployed.
182. At 6.30 p.m. special forces of the FSB (“ подразделения центра Специального назначения (ЦСН) ФСБ России ”) arrived in Beslan and set up their headquarters. They started contemplating various possibilities of liberating the hostages and neutralising the attackers.
183. At 7.20 p.m. hundreds of bottles of water, juice and food rations were stocked by the headquarters for the hostages ’ eventual needs.
184. At 9.30 p.m. Mr Roshal arrived in Beslan. The terrorists refused to accept water or food through him. They continued to insist that all four men indicated by them should arrive. Mr Roshal was permitted to talk on the telephone with the school director, who described the situation inside.
185. At 9.36 p.m. the OH continued talks with the attackers. They tried to involve journalists of an Arab TV company in the negotiation process, but this was rejected by the terrorists. At the same time, they contacted former President of Ingushetia Mr Aushev and an influential businessman Mr Gutseriyev.
186. At 10.20 p.m. the OH tried to arrange the liberation of hostages against payment of money and unhindered passage to Chechnya or Ingushetia; twenty buses were called in case the terrorists agreed.
187. By the end of that day, six hostages who had escaped from the school had been questioned in order to obtain information about the number and location of the terrorists and hostages inside the school, as well as to draw a plan of the IEDs.
(ii) 2 September 2004
188. At 9.30 a.m. some hostages were allowed to call their relatives, in order to put pressure on the authorities.
189. At 10 a.m. the OH authorised Mr Gutseriyev ’ s participation in the negotiations. His offers of money and guarantees of unhindered passage were rejected by the hostage-takers.
190. At 1 p.m. Mr Andreyev spoke in front of the hostages ’ relatives and assured them that no storming would take place. This was done in view of the rumours circulating among the local population and the ideas of forming a “life ring” around the school by civilians.
191. At 1.50 p.m. religious Muslim leaders of Chechnya, Ingushetia and North Ossetia spoke in a televised address, calling for peace and trying to prevent further ethnic clashes.
192. At 2.40 p.m. Mr Aslakhanov spoke to the attackers on the telephone; he assured them that their demands would be transmitted personally to Russia ’ s President. The terrorists insisted that he arrive in Beslan together with Mr Aushev.
193. At 2.45 p.m. the FSB of Russia, by a coded message, appointed Mr Andreyev the head of the OH; the list of members of the headquarters included Mr Dzasokhov, the head of Ingushetia ’ s FSB Mr Koryakov, commander of the 58th army General Sobolev, deputy commander of the Internal Troops of the Ministry of the Interior Mr Vnukov and other officials. All members of the OH were informed of their positions.
194. At 3.23 p.m. Mr Aushev was permitted to enter the school. Between 4 p.m. and 4.30 p.m. he negotiated with the terrorists; as a result of his mission twenty-six persons were released: babies aged under two and their mothers. Mr Aushev also brought out a letter signed by Mr Shamil Basayev with a demand to withdraw troops from Chechnya.
195. At 5.30 p.m. an additional debriefing of former hostages took place, in order to obtain more information about the positions of hostages and terrorists and the locations of IEDs.
196. At 5.40 p.m. the OH ordered measures aimed at identifying and neutralising possible terrorists ’ accomplices outside the school.
197. At 6.05 p.m. Mr Aushev proposed to the terrorists that the bodies be collected. They agreed to consider this proposal.
198. At 7.20 p.m. the attackers told Mr Roshal, Mr Gutseriyev and Mr Z. that the hostages had refused to accept food, water or medicine.
199. At 8 p.m. the terrorists fired random shots from automatic rifles and portable grenade-launchers out of the school ’ s windows. The OH ordered that the surrounding territory be cleared of parked vehicles.
(iii) 3 September 2004
200. In the morning an agreement was reached, through Mr Aushev and Mr Gutseriyev, to evacuate the bodies from the school yard.
201. At 12 noon the “Emercom” officers were appointed and necessary transport was arranged. They received appropriate instructions and means of communication. At 12.40 p.m. the officers started to collect the bodies. One terrorist descended to the courtyard and supervised their work.
202. At 1.05 p.m. two powerful explosions occurred in the gymnasium. Part of the wall collapsed and the hostages, in panic, started to exit through the opening. The terrorists opened fire on them from automatic rifles and RPG ‑ 18 portable grenade-launchers from the windows of the first floor. Twenty-nine persons were killed as a result of gunshot wounds.
203. At 1.10 p.m. the head of the OH, Mr Andreyev, gave written orders to the units of the FSB special forces to commence the operation aimed at saving the hostages and neutralising the terrorists.
204. At 1.15 p.m. the first hostages were taken to hospitals in Beslan and Vladikavkaz.
205. At 1.20 p.m. one terrorist - Mr Kulayev - was detained, and handed over to the investigators.
206. As a result of the explosions and the ensuing fire at least 250 hostages died; the rest were forced by the terrorists to move to the meeting room and other premises of the school.
207. At 2.50 p.m. a fire broke out in the gymnasium. The expert report on fire and explosions established that the epicentre of the fire was located in the roofing of the gymnasium, above the exit.
208. Mr Andreev ordered the firemen not to intervene immediately, in view of the continuing fighting, the risk to the firemen ’ s lives and the danger of delaying the rescue operation, thus entailing more victims.
209. The OH ordered the firefighters to intervene at 3.10 p.m. They arrived at 3.20 p.m. and proceeded to extinguish the fire.
210. At 6 p.m. the rescue operation was over. The OH ordered the deployment of heavy weaponry to neutralise the terrorists.
211. At 0.30 a.m. on 4 September the sweeping of the school building was over and a security cordon was set up. At 1 a.m. demining started.
(e) Information about FSB actions and questioning of senior FSB officers
212. The investigation established that two deputy directors of the FSB, Mr Pronichev and Mr Anisimov, had been present in Beslan during the crisis.
213. A number of high-ranking FSB servicemen were questioned in the course of the investigation, including General Andreyev (questioned on 29 September 2004), General Koryakov (30 September 2004), Generals Anisimov and Pronichev (October 2005). The documents of the criminal investigation submitted by the Government do not contain the record of questioning of General Tikhonov, the head of the FSB Special forces centre, deputy head of the OH in charge of the storming operation. His name is not listed among witnesses – members of the OH in volume 124 of file no. 20/849; the list of documents examined by the experts who had produced the expert report no. 1 does not mention his testimony either.
214. In July 2007 the applicants wrote to the FSB director and referred to the meeting they had had with the Deputy General Prosecutor in charge of the case who had told them that the relevant video and audio materials could not be found. In December 2006 State TV aired a film “The Final Assignment” containing video and audio materials made by the special forces in Beslan on 1-3 September 2004. They sought to ensure that these records would be given to the General Prosecutor ’ s Office. They also asked that the members of the special forces be questioned during the investigation. In September 2007 the FSB informed the applicants that any such actions would be done in response to the relevant requests by the prosecutor ’ s service and in line with the legislation.
(f) Information about the arms and ammunition employed, explosives, fire and ballistics expert reports
215. The investigation file contains a number of documents concerning the use of arms and ammunition by various State bodies; some of them are cited in other documents (see below). Dozens of various experts ’ reports were commissioned by the investigation. The victims challenged certain procedural steps related to the commissioning of some of the reports and complained that they had not been allowed to take copies of them but were able to assess them in the prosecutor ’ s office for a limited amount of time. These reports have been submitted to the Court by the Government, most relevant ones are summarised below.
216. Dozens of witness ’ statements were collected by the investigation between September 2004 and August 2007 from the military and police servicemen, officers of the “Emercom”, fire-fighters, members of the OH. These statements, consistently and in details, denied the use of grenade-launchers, flame-throwers and tank cannon prior to 6 p.m. on 3 September 2004.
217. According to a document of 9 September 2004 (act no. 3), one military unit of the 58th army of the Ministry of Defence deployed in Beslan used about 6,500 cartridges for automatic weapons and machine guns (5.45 and 7.62 mm), 340 tracer bullets (5.45 mm T), 450 armour-piercing and incendiary charges (14.5 mm BZT and B-32) and ten hand-grenades (RGD-5).
(i) Fire experts report of 22 December 2005
218. On 22 December 2005 the Russian Federal forensic expert centre produced a fire expert ’ s report ( заключение пожаро-технической судебной экспертизы ) no. 2576/17, 320-328/18-17. The voluminous report consisted of 217 pages, accompanied by about 60 pages of tables and photographs. The report started by reviewing a number of relevant evidence, including extracts from the witness statements, expert reports, information about the arms and ammunition used, examination of the building materials, review of available photo and video materials.
219. In particular, the report cited a “joint act” of 10 September 2004 of the arms and ammunitions used by the military servicemen, which included about 7,000 cartridges for automatic weapons and machine guns (5.45 mm PS, 7.62 mm LPS), 2,160 tracer bullets (5.45 mm T), 10 disposable anti-tank rocket launchers (RPG-26), 18 disposable propelled anti-tank grenade-launchers (PG-7VL), 8 high fragmentation warheads for tank gun calibre 125 millimetres (125 mm OF) and 90 smoke grenades (81 mm ZD6) (page 128 of the report). The same report contained reference to the expert examinations of a number of parts of used flame-throwers RPO-A “ Shmel ” (at least five) and a list of six empty tubes from RPO-A “ Shmel ” collected by the members of the Parliamentary Commission citing their serial numbers (batch 3-02, nos. 109-113 and 116) (see paragraph 409 below). It further mentioned document dated 25 September 2004 and signed by Lieutenant-Colonel V. from the 58th army. This document stated that the FSB units had received from the military storage seven RPO-A flame-throwers and listed their serial numbers (batch 4-96, nos. 945-948, 486-488). After the operation two flame-throwers with the indicated numbers, plus one with a different batch and number (batch 1-0, no. 12), had been returned to storage. On 25 September 2004 Lieutenant-Colonel V. from the 58th army was questioned and stated that he had received back five flamethrowers (batch 4-96, nos. 947, 948, 486, 487 and 488), plus one from another batch, which had not been issued from that storage (batch 1-03, no. 12); Major Ts. from the FSB “ Vympel ” group explained that the others had been used (pages 129-130 of the report).
220. The report further mentioned witness statement of Colonel K. who explained that he had directed a group of officers who had taken part in the storming of the school building. The group had used RPG-26 and RPO-A, but not at the premises where the hostages had been present (page 131 of the report). Witness M.K. who had been a member of a storming group stated on 23 November 2004 that he had used RPG-26 and RPO-A upon “enemy firing points which had been designated in advance and identified during the storming”. The firing points identified in advance were located in the window of the attic area and the third window on the first floor of the main building. No hostages were located there at that time. For the second time the flamethrower was used during night time, at about midnight, upon a group of terrorists in the handcraft classes on the ground floor. At that time the rest of the building had been in firm control of the security forces and the “Emercom” personnel was finishing carrying the bodies out of the gymnasium (page 183 of the report). The report also referred to the records of two experiments carried out on 13 October 2005 whereby disused buildings had been fired at with RPO-A flamethrowers, as a result of which the buildings had been demolished but no fire had started (page 183 of the report). The report concluded as follows on the use of flamethrowers (pages 185 and 217 of the report):
“RPO-A ‘ Shmel ’ were used during the special operation aiming to liberate the hostages. The criminal case file no 20/849 contains no materials to conclude that the flamethrowers RPO-A ‘ Shmel ’ had been used upon the roof and the structure of the gymnasium of school no 1. The use of flamethrower RPO-A ‘ Shmel ’ upon the roof of the gymnasium could not have led to fire in its wooden parts”.
221. In so far as the first explosions were concerned, the report concluded that the explosions in the gymnasium which had occurred within several seconds at about 1.05 p.m. on 3 September 2004 had resulted from the IEDs attached to the basketball hoop near the western wall (equivalent to about 1.2-1.3 kilograms of TNT) and located on a chair placed about 0.5 metres away from the northern wall under the window (and equivalent to 5.2 kilograms of TNT). Both IEDs were filled with multiple small metal objects. The third explosion resulted from the IED placed under the basketball hoop at the northern wall catching fire, its metal filling simply fell on the floor and the explosion, as a result of exposure to heat, of small amount of explosives (about 100 grams of TNT equivalent) (see pages 170-173 of the report).
222. The experts considered and accepted as “probable” the hypotheses that the fire in the gymnasium had started as a result of use of armour-piercing and incendiary charges, which could have been employed by the terrorists (page 185 of the report). As to the place where the fire had started, having analysed the extent and degree of damages to various constructions of the gymnasium, the experts concluded that it had been most probably located in the attic area located more or less above the basketball hoop in the northern part of the room; the fire on the floor started only after the burning parts of the ceiling and roof had fallen down. The extent of damage caused by fire and explosions prevented any detailed analysis of the number of places where the fire had started, its exact cause and distribution in the building (pages 215-217 of the report).
(ii) The expert report no. 4-106
223. On 30 December 2005 the FSB ’ s Institute of Forensic Studies ( Институт Криминалистики ФСБ РФ ) produced expert report no. 4/106. The report focused on the examination of the IEDs used by the terrorists in the gymnasium. In concluded that the terrorists had placed no less than 16 IEDs in the gymnasium, joined into a single chain through electric cables and detonators. On 3 September no less than three IEDs had exploded in the north-western part of the gymnasium: one at the basketball hoop on the western wall (based on anti-personnel mine OZM-72, about 0,66 kilograms in TNT equivalent), the second on the right-hand jamb of the door leading into the gymnasium on the western wall (a sphere-shaped IED, no less than 0,5 kilograms in TNT equivalent) and the third on the window pane of the first window on the north-western wall (IED in a plastic bottle, no less than 1 kilogram in TNT equivalent). The summary power of the explosions had been no less than two kilograms in TNT equivalent, however it was impossible to establish their exact timing and sequence. The most likely cause of the explosions lied in intentional or non-intentional impact upon the detonator pedal; the reasons why the whole chain had failed to react were unclear but it could be suggested that the first explosions had damaged the electric cables connecting the rest of the IEDs (pages 18-29 of the report).
(iii) The expert report no. 16/1
224. On 25 October 2006 an all-round forensic report on the explosions ( комплексная криминалистическая экспертиза математического моделирования взрывов ) was commissioned from the experts of the State ‑ owned scientific and production company Bazalt ( ФГУП ГНПП “Базальт ”) and the Central Research and Testing Institute, named after Karbyshev, of the Ministry of Defence ( Центральный Научно-исследовательский испытательный институт им. Карбышева Министерства Обороны РФ ). The applicants submitted that this document in its entirety was unavailable to them prior to the exchange of the parties ’ observations in 2012.
225. In January 2007 Mrs Tagayeva applied to the prosecutor ’ s office to have the experts of Bazalt dismissed, as they had been administratively dependent on the Ministry of Defence. Her application was rejected on 30 January 2007 because no subjective bias of the experts could be discerned and, objectively, the Ministry of Defence had not been a party to the criminal proceedings.
226. The expert report no. 16/1 was produced on 14 September 2007 and run to over 300 pages, accompanied by detailed schemes and photos. It appeared to dismiss the doubts expressed, notably, by a member of the State Duma investigative committee and a renowned expert in the field of explosions Mr Savelyev about the external origins of the first two explosions in the gym (see paragraphs 406, 408, 410 below ). The conclusions of report no. 16/1 are found on pages 264-273. They can be summarised as follows: the first explosion was the result of detonation of a large IED, measuring between three and six kilograms in TNT equivalent. The origin of this explosion was not linked to the electric wires and detonator, but resulted, most probably, from mishandling of the device by the terrorists guarding it. This IED exploded in the north-eastern part of the gymnasium, at the spot located about one metre away from the northern wall and five metres away from the eastern wall. The second explosion occurred about 20 seconds later and consisted of simultaneous detonation of several (between five and ten) smaller IEDs in the north-western part of the hall; this explosion most probably resulted from intentional or unintentional use by one of the terrorists of the detonator pedal. It could not have been caused by a cumulative charge launched from the outside. The report also concluded that out of all the recorded damages to the gymnasium ’ s walls, only two marks could have been caused by either a thermobaric charge or a cumulative charge projected from outside. These projectiles could not have been launched from the roofs of houses nos. 37, 39 or 41 of the Shkolny Lane (as alleged by some experts). The damage caused to the southern wing of the school could have been caused by the use of various weapons and explosives, including tank cannon, flame-throwers and grenade-launchers, however the extent of destruction excluded any detailed reconstruction of the events. The report dismissed as improbable the launching of a thermobaric charge from the helicopter pointing that it could lead to the destruction of the helicopter and death of the crew. Finally, the report listed the following types of weapons used by the members of the counter-terrorist operation, reconstructed on the basis of video materials and the documents contained in criminal case-file no. 20/849:
“- portable grenade-launchers RPG-7V and their modifications with anti-tank charges PG-7VL, PG-7VM, PG-7VS, fragmentary warhead OG-7V;
- disposable anti-tank rocket launchers RPG-26, RPG-27;
- propelled attack grenades RShG ‑ 1 with thermobaric warhead;
- flame-throwers RPO-A “Shmel” with thermobaric warhead;
- light infantry flamethrowers LPO-97 with thermobaric charge (probably);
- firearms and portable grenade-launchers.”
Based on the same sources, the report concluded that the terrorists had used portable grenade-launcher RPG-7V with anti-tank charges PG-7VL; disposable anti-tank rocket launchers RPG-26, possibly a grenade-launcher with thermobaric charge; no less than ten IEDs type “bottle”, no less than two IEDs made out of anti-personnel mines MON-90 and no less than four IEDs made out of anti-personnel mine OZM-72; as well as firearms and portable grenade-launchers (pages 263-273 of the report).
227. As a follow up to that report, on 14 October 2007 the North Ossetia Ministry of the Interior ’ s expert lab examined the explosion marks on the gymnasium southern walls and confirmed the above conclusions about the possible trajectory of the charges having been fired from the first floor of the southern wing of the school and that these shots could not have been fired from houses nos 37, 39, 41 or the garage roof (report no. S-I-63, page 12).
(iv) The expert report no. 16/2
228. The expert report no. 16/2 was commissioned by the investigation in April 2007 in order to dispel Mr Savelyev ’ s allegations about the origin of the second explosion in the gymnasium which had resulted in the destruction of a section of the wall under the window on the northern side. It was completed on 11 December 2009 (see paragraph 406 below). Like report 16/1, it was carried out by the experts of the State-owned scientific and production company Bazalt. The experts tested all the possibilities suggested by Mr Savelyev, including the employment of various types of grenade-launchers and flame-throwers upon a similar construction and concluded that their impact was incompatible with the damages in the gymnasium. The report ran to over 130 pages and concluded that the “the origin of the hole in the north-western wall of the gymnasium ... lied in the detonation of an IED with TNT equivalent of about six kilograms, put on the height of about 500 millimetres from the floor, near the radiator... The power of this explosion ’ s impact upon the wall was exasperated by almost simultaneous explosion of several other IED ’ s located in the north-western part of the gymnasium, further away from the first explosion” (pages 99-100 of the report).
(g) Decision not to charge servicemen with crimes
229. On 3 December 2004 the Vladikavkaz deputy military prosecutor issued an order not to prosecute unnamed military servicemen of the 58th army of the Ministry of Defence and of the Internal Troops of the Ministry of the Interior. The document stated that the investigation had established that the personnel of the army and the Ministry of the Interior had used automatic weapons, RPG-25 grenade-launchers, RPO-A “ Shmel ” flame- throwers and T ‑ 72 tanks. The document then proceeded to describe the events of the siege and storming, in line with witness statements of General Sobolev of the 58th army. In particular, the document stated that on 1 September 2004, during the first meeting of the OH, it had been decided that Mr Dzasokhov ’ s involvement in the negotiations was “devoid of purpose” (“ нецелесообразно” ) since there was a threat of his being taken hostage too. It further stated that although the decision to clear the area around the school of civilians and armed “volunteers” had been taken at about 12 noon on 1 September, it had not been implemented until 3 September. Furthermore, on 2 September the terrorists demanded that Mr Dzasokhov, Mr Zyazikov, Mr Aslakhanov and Mr Roshal arrive for negotiations, but the OH had decided that such talks were also “devoid of purpose”. After the first explosions at 1.10 p.m. the terrorists opened fire at the hostages running out of the gymnasium, following which the servicemen of the second security perimeter opened return fire. At 2 p.m. a group of sappers under the command of Colonel Nabiyev started to demine the gymnasium; at the same time he called for firemen to extinguish the fire. The first fire vehicle arrived at 2.45 p.m. and contained 200 litres of water; the second vehicle arrived at 3.45 p.m. and proceeded to extinguish the fire. At 9 p.m. the storming of the building was over; the search and elimination of terrorists continued until 0.30 a.m. on 4 September 2004.
230. The document then summarised the witness statement of Mr Tsyban, who explained that the OH had officially been created on 2 September 2004 at about 12 noon under the command of General Andreyev. The OH decided that Mr Dzasokhov ’ s involvement in the negotiations could not be authorised in view of the threat of his being taken hostage.
231. The document then related the witness statements of about a dozen servicemen from the 58th army – sappers, tank and APC commanders. They stated that the tanks had fired seven shots in the evening of 3 September 2004 and that none of them had fired at the school during the daytime.
232. The document then referred to several hundred names of military servicemen who had been employed in the security perimeter. Their statements were summarised in the following manner:
“while securing the area no instances of any loss or stealing of arms or ammunition were noted, and there were no attempts by the terrorists to break through or to get away. Since the commanders had issued an order not to open fire unless there was an open breakthrough of the terrorists, no fire was opened and the use of firearms was regulated by section 11 of the [Army Manual]. There were no noted instances of breaches of order or unauthorised use of firearms. No ammunitions were used”.
233. The document concluded that the servicemen of the Ministry of the Interior and the Ministry of Defence had used “personal, authorised, small ‑ arms weapons, engineering hardware and chemical weapons, destined to cause harm to manpower, but this ammunition was used in line with the [appropriate] legislative acts and owing to the inability to prevent the terrorists ’ actions by any other means; the use of the above weapons resulted in the terrorists ’ extermination or detention”. The document further stated that the investigation had obtained no evidence that the use of the above-listed weapons had resulted in harm to any of the hostages. Accordingly, there was no evidence of an offence having been committed.
234. The decision of 3 December 2004 was quashed on 12 September 2005 due to certain technical deficiencies. It appears that this investigation is still pending.
(h) Results of internal inquiries and decisions not to charge officials with crimes
(i) “Emercom” staff
235. On 29 October 2004 a commission of the North Ossetian “Emercom” carried out an internal investigation into the actions of the “Emercom” staff during the hostage crisis. According to its findings, the firefighters were aware in advance of the locations of the fire hydrants in the vicinity of the school, but could not use them since they could have been shot at by the terrorists. Hence, they started to use mobile cisterns first. The responsible staff had drawn up a plan of access of the fire engines to the school, but it was not within the firefighters ’ powers to ensure that these routes would be accessible – that work should have been coordinated by OH on the basis of that plan. The failure to intervene during the initial stage had been based on the OH directions. Finally, the use of more powerful hydraulic cannons has been deemed impractical by the commission, in view of limited choice of location where such cannon could be placed, distance to the source of fire of about 60 metres, narrow access to the fire and the danger to the persons who could still be alive in the burning building from the “hot vapour”. The commission concluded that the actions of the “Emercom” staff had been correct and justified.
236. On 10 December 2004 an investigator of the General Prosecutor ’ s Office Department in the Northern Caucasus ruled not to charge the North Ossetian “Emercom” Minister Mr Dzgoyev and his deputy, head of the firefighting service, Mr Romanov, with crimes under section 293 of the Penal Code – criminal negligence. The decision referred to the witness statements made by Mr Romanov, Mr Dzgoyev and a number of other firefighters and officials of the service. They confirmed that the information about the fire first came in after the first explosions, soon after 1 p.m., but that the OH had only allowed the firefighters to intervene after 3.20 p.m. They noted that seven fire engines were ready to take part in the operation, but that the access routes to the school remained busy with cars and persons. Two closes fire hydrants were not accessible; at first the engines used cisterns to extinguish fire from two water cannons; later a contour to the next hydrant had been made. The decision discussed the question whether the firefighters could have used a more powerful hydraulic water cannon, but the firefighters argued that it could only have produced the desired effects if used from a distance of less than 30 metres to the source of fire, which could not have been ensured in view of the ongoing fighting. The decision concluded that at the time when the firefighters were intervening, the general direction of the operation had been taken by the OH headed by the FSB, without whose permission no actions could have been taken. The FSB did not allow the firefighters to intervene for about two hours, in view of lack of special equipment for them, and thus their members could have been injured or died. In such circumstances, the actions of the “Emercom” officials contained no elements which could lead to the conclusion that a crime had been committed. It is unclear when the applicants had been informed of this decision and whether they had appealed against it.
237. In March 2006 the victims lodged an application to have the competent officials, including Mr Dzasokhov, Mr Andreyev, Mr Popov and Mr Romanov charged with criminal negligence and withholding of information entailing danger to persons ’ lives and health, with serious consequences (sections 293 part 2 and 237 part 2 of the Penal Code). In particular, they argued that no necessary preventive measures had been taken prior to the terrorist act; that the OH had remained passive and failed to ensure meaningful negotiations with the hostage-takers; that as a result of the inaction of the OH the hostages ’ conditions on 1-3 September 2004 had deteriorated and thus rendered them weak by the time of the storming; that the failure of Mr Dzasokhov, Mr Zyazikov and Mr Aslakhanov to appear for negotiations had excluded the possibility of a dialogue; that the security perimeter around the school had not been properly ensured; and that the storming operation had not been thoroughly prepared. The victims alleged further that the military and security forces had acted without a plan and employed excessive and indiscriminate weapons after 1 p.m. on 3 September. In respect of this last assertion they referred to several dozen witness statements collected during the trial of Mr Nurpashi Kulayev and attesting to the use of flame-throwers, grenade-launchers, tanks and APCs. They further alleged that the delay between the start of the fire in the gymnasium and the commencement of the extinguishing operation had taken one and a half hours, and that the firefighters had been unprepared since they lacked water. As a result, dozens of hostages including children in the gymnasium had been burnt alive, since they were injured, shell ‑ shocked, disoriented or too weak to leave it on their own.
238. On 14 March 2006 the Deputy General Prosecutor rejected this application, having found that the decisions of the investigating officers had been lawful and that the actions sought by the victims were not necessary as the relevant facts had been established through other steps. On 26 June 2007 the Promyshlenny District Court of Vladikavkaz granted the victims ’ appeal against the said decision and ordered the Deputy General Prosecutor to examine the victims ’ applications in detail and to provide them with reasoned answers to each of their arguments. On 15 August 2007 the North Ossetia Supreme Court quashed and remitted the District Court ’ s decision. On 24 August 2007 the District Court confirmed the validity of the decision of 14 March 2006. It was then approved by the North Ossetia Supreme Court on 3 October 2007. The victims ’ subsequent requests for supervisory review proved futile.
239. In the meantime, and in parallel to the above-mentioned proceedings, on 20 April 2006 the chief of the investigative group, an investigator of the General Prosecutor ’ s Office Department in the Southern Federal Circuit, decided not to open a criminal investigation, under the same sections of the Penal Code, in respect of the head and members of the OH. The investigator found that there were no constituent elements of an offence in the officials ’ actions. He relied heavily on the conclusions of expert report no. 1 to the effect that the actions of the OH had been in conformity with the relevant rules and regulations. The victims appealed, and on 3 April 2007 a judge of the Leninskiy District of Vladikavkaz quashed the said decision of the investigator, since expert report no. 1 had been found unlawful. On 2 May 2007 the North Ossetia Supreme Court quashed and remitted the District Court decision, having found that it was not based on all the materials available. In a new set of proceedings on 6 June 2007 the Leninskiy District Court rejected all the applications and found that even though expert report no. 1 had been invalidated, the evidence on which it had relied remained valid and supported similar conclusions. On 15 August 2007 the North Ossetia Supreme Court upheld this decision.
240. In a separate decision, also dated 20 April 2006, the same investigator ruled not to open criminal proceedings against the first deputy of the Southern Ossetian “Emercom”, head of the fire service Mr Romanov and the head of the fire-fighting service of the Pravoberezhny District Mr Kharkov. The decision referred to sections 293 part 2 of the Penal Code, which concerned criminal negligence. The decision referred to witness statements confirming that the first information about the explosions and fire in the gymnasium has been received soon after 1.00 p.m. on 3 September; as well as to the fact that Mr Romanov had, on several occasions between 1.20 and 3.20 p.m., ordered the firefighters to intervene and then cancelled his orders due to lack of authorisation by the head of the OH. At 3.25 two fire engines arrived to the school with full load of water, which could last for about 3-5 minutes. Once it was exhausted, two other fire engines were called in; later on water has been obtained from a fire hydrant, because the closest hydrants could not be used. The decision referred to the expert report no. 1 and to the fire experts report no. 2576/17, 320-328/18-17 (see paragraphs 218 and subsequent).
(ii) Health Ministry officials
241. On 30 September 2005 the Russian Health Ministry informed the General Prosecutor ’ s office of the results of its internal inquiry into the actions of its staff on 1-3 September. The Ministry conceded that the scale and circumstances of these events had been unprecedented even for its most experienced staff, and that the situation had been “exasperated by lack of verifiable information about the number of hostages, unpredictability of the events and the difficulty in predicting the types of injuries”. The report noted that the situation at the site of the field paediatric hospital set up in Beslan on 2 September 2004 had been made difficult by the presence of a large number of local residents, who had “sometimes turned into a mob displaying signs of emotionally-psychic instability”. The work of a mobile group of psychologists had aided to dispel the pressure and create the conditions necessary to carry out legal aid. The overall input of the Zaschita centre has been described as important and proven its importance.
242. The Government in their submissions made in September 2013, have summarised the documents contained in file 20/849 relating to the work of the medical staff as follows.
243. On 1 September 2004 the Ministry of Health set up a coordination cell, joining the forces of the local and federal ministries of health, “Emercom”, the Zaschita centre and the centre of forensic examinations. As of 1 September evening, special units of psychological aid were put in place for the relatives. A number of other urgent steps were taken, such as putting medical personnel in a number of local hospitals on standby, preparing contingents of necessary equipment and materials, including blood for transfusion, ensuring the preparedness of the local intensive care and surgery units.
244. On 2 September an emergency paediatric field hospital was set up in Beslan. The “federal and local headquarters” worked out access to the school and evacuation routes, instructed the drivers and medical and para-medical personnel involved.
245. On 3 September an additional hospital was set up in Beslan, equipped to perform urgent surgical operations and other types of emergency care. Measures were taken in order to assist a large number of injured persons. 1300 places were reserved at various hospitals in the region. Both before and after the storming medical teams had been brought in from other regions, including highly qualified doctors from Moscow.
246. Thus, by the time of the first explosions, over 200 doctors, 307 medical staff, 70 ambulances were located in Beslan. This made 94 mobile medical brigades, including 14 reserve ones.
247. Between 1.15 and 6.30 p.m. on 3 September 2004, 556 injured persons, of them 311 children, were transferred to the local hospitals. By 7 p.m. on the same day all patients had been placed in hospitals in Beslan and Vladikavkaz; 47 urgent surgeries had been performed.
248. Over one thousand persons had been provided with psychological aid.
249. As of 4 September 2004 special medical brigades visited families at homes, assisting those hostages and their family members who had gone home. Between 5 and 15 September over 200 patients (including 137 children) were transferred for treatment to Moscow by special flights.
250. In total, between 3 September and 16 December 2004 about 800 patients received medical aid. 305 died at the school, 26 persons died in hospitals. By 16 December 2004 26 patients (of them seven children) continued to receive medical aid in hospitals, others had been checked out. North Ossetia received 26 tons of medical equipment and supplies in relation to the crisis.
(iii) Other officials and members of the OH
251. In May 2007 the applicants applied to the General Prosecutor ’ s Office in the Southern Federal Circuit to have Mr Dzantiyev, the North Ossetian Minister of the Interior, charged with criminal negligence. On 1 June 2007 that application was dismissed. Upon the victims ’ appeal, on 18 February 2008 the Promyshlenny District Court of Vladikavkaz, then on 27 March 2008 the North Ossetia Supreme Court, upheld that decision.
252. In July 2007 the applicants applied to the prosecutor ’ s office to “evaluate” the actions of the North Ossetian senior officials who had failed to prevent the terrorist act and to inform the population about the imminent threat or to ensure a proper security perimeter around the school, also seeking to verify the lawfulness of their actions as members of the OH who had authorised the use of indiscriminate weapons and had failed to ensure that the fire was promptly extinguished. They referred to the information contained in the Federal Assembly report (see paragraphs 398 and subsequent), also seeking the questioning of the officials concerned and the victims. On 2 August 2007 this application was partly dismissed by the investigator, who found that the questions raised by the victims were the subject of the pending criminal investigation.
(i) Establishing the cause of deaths and injuries
253. On the basis of the medical documents and forensic reports, the causes of death were established for 215 persons; the exact cause of death of 116 persons could not be established due to extensive post-mortem burns. As to the injuries, 79 persons received gunshot wounds, 91 shrapnel wounds, 302 persons suffered from the consequences of explosions, 10 persons received concussions, 83 persons suffered from fractured bones and contusions, 36 persons received thermal injuries and 109 persons suffered from psychological and neurological troubles.
254. The investigation concluded that the deaths and injuries of the victims were not connected with any actions or omissions of the State agents, including use of firearms.
255. The applicants in their numerous complaints stressed that the forensic expert reports had been carried out without the extraction of bullets, shrapnel and other objects from the bodies. They also stressed that the forensic reports for many persons failed to establish the cause of death all together, due to extensive burns.
(j) The victims ’ applications and complaints
256. In the course of the domestic proceedings the victims lodged several hundred applications with the prosecutor ’ s office seeking various procedural steps. They appealed against the results of most of these applications to district courts. Copies of most of the applications and complaints, as well as of the authorities ’ reactions, have been submitted to the Court or described by the applicants in their submissions.
257. Thus, in July 2006 the victims requested the investigator in charge of the case to find out who had decided against presenting the four men sought by the terrorists for negotiations; to hold confrontations between the civilian and police witnesses, on the one hand, and the army servicemen, on the other, to find out about the use of tanks and flame-throwers during the day of 3 September 2004. On 24 July 2006 the investigator rejected the application and stated that the decision to employ the appropriate weapons had been taken by the OH; witness confrontations were not considered useful by the investigation.
258. In January 2007 the applicants asked the investigator to find out the following: who had decided that the four men demanded by the terrorists should not participate in the talks; who had authorised the use of tanks and flame-throwers during the storming. On 30 January 2007 the investigator in charge granted the application and informed the applicants that they would be kept up to date with the investigation results.
259. In August 2007 the applicants requested the investigation to find out the number of hostages that had been communicated by the OH to the FSB, the Ministry of the Interior and the Russian President on each day of the crisis and to question the relevant officials. On 14 August 2007 this application was granted.
260. In November 2007, referring to the results of the forensic reports and witness statements obtained during the trial of Nurpashi Kulayev (see paragraphs 269 and subsequent), the victims argued that the bodies of 116 persons had been severely burned, rendering it impossible in most cases for the cause of death to be established. However several forensic reports indicated extensive burns as the cause of death. The victims sought to find out who had ordered the delay in the firefighters ’ intervention in the gymnasium and whether they had been properly equipped upon arrival. On 16 November 2007 the investigator dismissed the application to bring charges against several officials, referring to the pending investigation.
261. Following the victims ’ request, on 23 November 2007 the investigator appended to the file the records of the trials of the officers of the Pravoberezhny and Malgobekskiy ROVDs.
262. In December 2007 the investigator granted the victims ’ applications, based on the information obtained during the trial of Mr Nurpashi Kulayev, to question a number of senior officials about the steps taken in August 2004 with the aim of preventing the terrorist act, in order to clarify the extent of local police involvement in the security of Mr Dzasokhov ’ s passage on the morning of 1 September and in order to find out how the OH had come up with the figure of 354 hostages that was aired during the crisis. The investigator also granted the victims ’ application to question General Tikhonov, the head of the FSB Special Forces Centre, in order to find out the details of the use of indiscriminate weapons upon the school.
263. On 10 May 2007 the Promyshlenny District Court of Vladikavkaz reviewed, upon the applicants ’ request, about 120 applications lodged by them with the investigator between December 2005 and March 2007, the results of which they found unsatisfactory. The complaints mostly concerned the following points: the applicants ’ attempts to obtain additional evidence about the exact cause of their relatives ’ deaths and injuries, information about the reasons for the first three explosions in the gymnasium, the details of involvement of various military and security units in the storming, information about the types and results of examination of the weapons found in school, evidence related to the actions of the OH, information about the actions of firefighters immediately after the first explosions, the extent of the officials ’ responsibility for the outcome of the crisis and the victims ’ demands to acquaint themselves with various documents in the file. The applicants ’ complaint was dismissed in full; the District Court found that the investigators had acted lawfully and within the limits of their professional discretion. The court also noted that the proceedings were still pending. The applicants appealed, but on 13 June 2007 the North Ossetia Supreme Court upheld the decision of 10 May 2007.
264. On 23 October 2007 the Promyshlenny District Court of Vladikavkaz rejected the victims ’ complaint about the investigators ’ decisions in response to their seven applications to ascertain the reasons for the first explosions and the origin of the firearms which caused the hostages ’ deaths and injuries, to find out more about the communications with the terrorists, to identify the person who ordered the deployment of tanks, APCs, flame ‑ throwers and grenade-launchers, and to establish the reason for the carbonisation of 116 bodies. The court also rejected the victims ’ complaint about alleged inefficiency and delays on the part of the prosecutor ’ s office. On 8 February 2008 the North Ossetia Supreme Court upheld this decision.
265. On 10 January 2008 the Promyshlenny District Court rejected another complaint by the victims in relation to five applications lodged with the investigator. These applications concerned the victims ’ access to the expert report on the explosions, and ballistics reports and documents relating to the existence of a real threat of a terrorist act prior to 1 September. The District Court, referring to Article 161 part 3 of the Code of Criminal Procedure, concluded that the limitations on the victims ’ access to the documents had been justified. The remaining actions in the investigation were also found lawful. This decision was upheld on appeal on 27 February 2008.
266. According to the decision of the Promyshlenny District Court of 13 March 2008, sixty-two victims and their representatives had complained to the General Prosecutor ’ s Office and then to the court about the investigators ’ decisions to reject twelve applications lodged between December 2007 and January 2008. These applications concerned the following issues: to find out the exact reasons for the victims ’ deaths where the conclusions of the post mortem reports had been incomplete; to ascertain whether the carbonisation of the bodies had been caused prior to or after death; to seek an explanation for six victims as to why the conclusions about the reasons for their relatives ’ deaths had been based on external inspection without forensic reports; to establish the causal relationships between the use of flame-throwers, grenade-launchers, tanks and APCs during the storming and the hostages ’ deaths; to obtain additional questioning of the servicemen of the Malgobek ROVD and of a military unit stationed in the Malgobek District about the prevention of the terrorist act; to clarify the reasons for the appointment of Mr Andreyev as the chief of the OH on 2 September 2004; and to obtain full access to the materials of the case file and copies of the complex expert report (including mathematical computation of the explosions, ballistics and explosion examinations). The victims further alleged that they had received no timely responses to their applications and requests, that the investigation had been protracted and lacked in objectivity and in particular that they had not had access to the most important case documents. The Promyshlenny District Court dismissed all the applications, having found that the victims ’ demands had been satisfied by the investigation wherever possible, or had not been based on the pertinent legislation. On 23 April 2008 the North Ossetia Supreme Court upheld that decision on the victims ’ appeal.
267. On 10 December 2008 the Promyshlenny District Court dismissed another complaint lodged by a group of victims against the decisions taken in response to their applications to the investigators. Eleven applications, lodged between February and September 2008, concerned the victims ’ access to the results of ballistics reports and the records of negotiations with the terrorists, with a request to obtain copies of certain documents in the case file and the decisions ordering expert reports. The victims also alleged that the investigation had been unnecessarily protracted, with important steps being delayed, which in turn could lead to a loss of evidence and make the judicial examination of the matters less effective. They asked for the actions of the investigators to be declared unlawful in so far as they had not conducted an effective investigation, had refused to allow victims access to the case file and had failed to establish the degree of responsibility of the officials. The court found that some documents requested by the victims were secret, while access to others was based on Article 161 part 3 of the Code of Criminal Procedure. The North Ossetia Supreme Court upheld the District Court ’ s decision on 11 February 2009.
268. The victims ’ subsequent attempts to seek supervisory review of these decisions have proved futile.
8. The criminal investigation in respect of Mr Nurpashi Kulayev
269. The applicants submitted voluminous documents related to the criminal investigation and trial concerning Mr Nurpashi Kulayev, the only terrorist captured alive. In particular, they submitted four volumes of the trial records (about 2,000 pages), copies of the trial court judgment (319 pages) and the cassation court decision, as well as their appeals to the cassation and supervisory courts. The most relevant documents and the applicants ’ submissions can be summarised as follows.
(a) Investigation and trial before the North Ossetia Supreme Court
270. On 19 January 2005 the criminal investigation in respect of the only surviving terrorist, Mr Nurpashi Kulayev, was separated from criminal case no. 20/849 and assigned number 20/870.
271. On 17 May 2005 the North Ossetia Supreme Court opened the trial of Mr Nurpashi Kulayev. He was charged with aggravated murder, terrorism, taking of hostages, membership of a criminal gang, illegal handling of firearms and attempts on the life of law-enforcement personnel (sections 105, 205, 206, 209, 222 and 317 of the Penal Code). Between May 2005 and February 2006 the trial court held sixty-one sessions.
(b) Statements by Mr Nurpashi Kulayev
272. In the courtroom Mr Kulayev stated that he had joined the group on 31 August 2004. His brother, Mr Khanpash Kulayev, had been a clandestine fighter since the early 1990s, but had lost his arm and lately lived in Psedakh, their home village. On 31 August 2004 a group of armed men arrived in VAZ-2110 and accused his brother of working for the FSB. Both brothers and two of their friends went with the armed men to a camp situated about 300 metres away from the road. Late at night on 31 August 2004 the man in charge of the camp, “ Polkovnik ”, told all those present to get into the GAZ-66 truck. There were thirty-two persons, including two women wearing masks. The explosives and arms in backpacks were placed under the benches and the men took seats on the floor of the truck. Responding to the victims ’ questions, Mr Kulayev stated that he had not seen wooden boxes for cartridges, which had later been found in the school canteen.
273. They spent the night in the valley and early in the morning travelled further. The truck ’ s body had been covered with canvas and they could not see outside. At some point the vehicle stopped and Mr Kulayev heard someone asking for the driver ’ s documents. Then they were told that a policeman had been captured and they travelled further. Later this policeman was released because he was a relative of one of the fighters. The ride lasted around two and a half hours. During the capturing of the school one fighter was fatally injured and “ Polkovnik ” ordered the killing of twenty male hostages. In the school Mr Kulayev was assigned to the canteen. On 1 September there was a dispute among the fighters and “ Polkovnik ” detonated the explosive device on a woman suicide bomber. This explosion fatally wounded the other woman and another fighter of Arab origin. According to Mr Kulayev, many members of the group, including himself and his brother, had been unaware of the nature of their mission, but “ Polkovnik ” referred to Basayev ’ s orders and executed those who attempted to object. The terrorists talked in Ingush between themselves and “ Polkovnik ” called someone to receive instructions in Russian.
274. Referring to the conversations among the terrorists, Mr Nurpashi Kulayev said that “ Polkovnik ” had told Mr Aushev that if the four men indicated by them came to the school, they would release 150 hostages for each of them. He also understood that some hostages and fighters would be able to move in buses to Chechnya, if the Russian troops had pulled out of the mountainous districts.
275. Speaking about the first explosions in the gymnasium, Mr Kulayev testified that “ Polkovnik ” had said that a sniper had “killed the man [holding the switch]”, then he cried to someone over the telephone “What have you done!” and broke his mobile telephone; after that he encouraged the terrorists to fight until the bitter end. Mr Kulayev jumped out of the canteen window and shouted to the soldiers that they should not shoot there because there were women and children. He denied that he had used his machine gun and that he had walked into the gymnasium while the hostages were detained there.
276. Two persons convicted earlier for terrorist activities had testified that they had known Mr Khanpash Kulayev, the defendant ’ s brother, as an active member of the terrorist underground and that in 2003 both brothers and several other members of the armed group, together with their families, had lived in a rented house in Ingushetia (Ganiyev R., volume 4 page 1562 of the trial records, Muzhakhoyeva Z., v. 4 p. 1611).
(c) Reconstruction of the events preceding the hostage-taking and identification of the leaders
277. Some local residents stated in court that they had seen unknown men and suspicious boxes at the school prior to 1 September 2004 (Tomayev V. v. 1 pp. 360-363; Gutnova L. v. 1 p. 458; Levina Z. v. 1 p. 474; Kokova R. v. 3 p. 1243; Rubayev K. v. 3 p. 1305). During August 2004 the school building was partially renovated, but the teachers and director denied that anyone except the school staff and their families had been involved (Guriyeva N., v. 2 p. 542; Ganiyeva Ye. v. 3 p. 1157; Digurova Z. v. 3 p. 1238). Teachers testified that they had inspected the school early in the morning on 1 September and that there was no one there (Tsagolov A. v. 1 p. 265; Avdonina Ye. v. 2, p. 871; Komayeva ‑ Gadzhinova R. v. 2, p. 874; Shcherbinina O. v. 2 p. 931).
278. The police officer who had been seized by the terrorists on the administrative border in the morning of 1 September 2004 testified that he had stopped the GAZ-66 vehicle between 7 a.m. and 8 a.m. The armed men had taken his service pistol, VAZ vehicle and police cap and had driven to Beslan, where he escaped as soon as the shooting started. He denied having known any of the terrorists; he confirmed that the terrorists spoke Ingush between themselves and to him (G.S., v. 4 p. 1546).
279. As to the prevention of the terrorist act, a senior police officer of the Pravoberezhny ROVD testified in court in November 2005 that at about 8 a.m. on 1 September the school had been inspected, possibly with a service dog. He admitted that, unlike previous years, no police had been deployed to the school (Khachirov Ch. v. 3 p. 1215). Mr Aydarov M., the former head of the Pravoberezhny ROVD was aware that the school had been inspected with service dogs in the morning of 1 September, but no copies of the appropriate records had been provided (v. 3 p. 1410).
280. The trial court noted that criminal proceedings in respect of the organisers of the terrorist act were the subject of a separate criminal investigation (no. 20/849, see above). The court cited statements and documents from investigation file no. 20/849. It identified nineteen terrorists (including Mr Kulayev) and referred to thirteen unidentified persons (including “Abu-Radiy” and “Abu-Farukh”).
(d) Questioning of the hostages and granting of victim status
281. It transpires that between October and December 2004 numerous hostages and the victims ’ relatives were questioned and accorded victim status. By the opening of the trial several hundred persons were granted the status of victim in the proceedings. Over 230 victims were questioned during the trial; statements by others given to the investigation were read out.
282. The victims questioned in the courtroom mostly denied having seen Mr Kulayev in the gymnasium, although several hostages had seen him in the gymnasium, in the corridor on 1-3 September and in the canteen during the final stage of the assault. Most of the hostages had not seen Mr Kulayev ’ s brother Khanpash, who had his right arm missing. Several of them also referred to one particular terrorist: a shaven man with a large scar on his neck, who had been particularly cruel to the hostages and whom they had not identified after the siege was over (witness Mitdziyeva I. v. 2 p. 520). Most hostages saw two women suicide bombers, although some hostages referred to seeing another woman of Slavic appearance on the first floor of the school on 2 September and possibly a fourth one also on 2 September (Mitdziyeva I. v. 2 p. 518; Misikov K. v. 2 p. 571; Scherbinina O. v. 2 p. 935). One woman told the court that on 2 September the terrorist “Abdulla” had asked her if she was Ingush and suggested that they would let her family members go free if she agreed to act as a suicide bomber, since “their two girls had been killed by an ammunition round” fired from the outside (Kudziyeva L. v. 2 p. 525). The hostages estimated the number of terrorists at between 30 and 70 persons.
283. In respect of the taking of the school, many hostages testified that as soon as the fighters had encircled the gathering in the courtyard and started to shoot in the air, another group of fighters had fired from the top of the building. Some witnesses stated that when the shooting started some children tried to escape through Shkolny Lane, but there were fighters there who had forced them to return. Many saw fighters running to the school from the railway line (Kusayeva R. v. 1 p.147; Misikov Yu. v. 1 p. 471; Daurova M. v. 2 p.574). Others said that when they entered the school there were already armed fighters guarding the stairs to the first floor. One boy aged nine at the time testified that on 2 September he and about ten elder boys had been forced to take boxes with grenades and mines from an opening under the stage in the meeting hall (Khudalov S. v. 2 p. 866), but no one else from this group could be identified. One witness testified that when the fighters had broken the floors in the gymnasium on 1 September they had taken out a long tube which she supposed had been a grenade launcher (Tsakhilova A. v. 2 p. 896).
284. Police officer Fatima D. gave detailed submissions about the hostage taking and subsequent events. According to her, the second police officer had not arrived at the school. At about 8.50 a.m. one mother told her that a strange truck had been parked near the school. When she went out to check, she heard a suspicious noise. She ran to the teachers ’ room on the first floor to alert the police but as soon as she took the telephone, she was surrounded by several fighters wearing camouflage uniforms. They told her that “everything would be serious this time” and led her to the gymnasium. She estimated that there were about seventy fighters (v. 1 p. 365).
285. On 1 September, under the terrorists ’ orders, the teachers drew up lists of children aged below seven, although these lists were never used (Levina Z. v. 1 p. 475; Shcherbinina O. v. 2 p. 937). Numerous hostages told the court that the terrorists had been extremely annoyed by the information about the number of persons being held in the school and that their attitude had become harsher after the figure of 354 persons had been announced. They testified that the terrorists had refused to allow them to drink or to go to the toilet since “nobody needed them anyway and there would be only 350 of them left” (Kokayeva I. v. 1 p. 413; Kaloyeva F. v. 1 p. 448; Pukhayeva Z. v. 1 p. 461; Daurova Z. v. 1 p. 481). The hostages complained about mocking, insults and ill-treatment, related how the terrorists had hit the elderly and children, subjected them to false executions, held parents and grandparents at gunpoint in the children ’ s view, and had fired into the air in order to keep them quiet.
286. The hostages saw the terrorists ’ attitude deteriorating further on 2 September after Mr Aushev had left the school. Several of them said that on 2 and 3 September the terrorists attempted in vain to liaise with the authorities through those who had relatives among officials or public figures.
287. The school director Mrs Tsalitova was a hostage, together with her family members. She stated that she had inspected the school in the morning of 1 September; she denied allegations that anyone except staff and their relatives had been involved in the renovation. Mrs Tsalitova was called by the fighters to negotiate; she testified that they had been annoyed by the absence of contact with the authorities. On 3 September she attempted to involve the children of Mr Taymuraz Mamsurov and a prosecutor ’ s mother in the negotiations, but to no avail (Tsalitova L., v. 1 p. 432).
288. Many hostages testified about the explosions in the gymnasium. They said that prior to the explosions the fighters had behaved in a relaxed manner and were preparing lunch. Others mentioned some agitation probably caused by electricity failure in the gymnasium. Some hostages testified that they had seen the explosion of an IED fixed to the basketball hoop (Dzarasov K. v. 1 p. 213; Archinov B. v. 1 p.274). Others insisted that when they had been leaving the gymnasium they could still see the large IEDs intact on the basketball hoops (Sidakova Z. v. 1 p. 315) or that only the third explosion had come from that IED (Bekuzariva I. v. 2 p. 962). Some described the first blast as a “fireball” (Dzestelova A. v. 2 p. 538). Many testified about the fire and heat emanating from the explosions, enflaming their clothes and hair and causing burns (Agayeva Z. v. 2 p. 600; Dzheriyeva S. v. 2 p. 614; Kochiyeva F. v. 2 p. 631; Tsgoyev A. v. 2 p. 748; Bugulova F. v. 2 p. 764; Makiyev V., v. 2 p. 826; Khanikayev Sh. v. 2 p. 831; Kokova T., v. 2 p. 884). Many testified that the fire could have killed injured and shell-shocked persons who were unable to leave the gymnasium on their own (Tomayeva L. v. 1 p. 357; Gagiyeva I. v. 1 p. 444; Kudziyeva L. v. 2 p. 526; Fidarova S., v. 2 p. 584; Skayeva T. v. 3 p. 1001; Mitdziyeva Z., v. 3 p. 1043; Alikova F. v. 4 p. 1577). Some hostages described how they had been saved by local men from the gymnasium and adjacent premises after the explosions (Gagiyeva I. v. 1 p. 444). Numerous witnesses also gave evidence that when the hostages started to run from the gymnasium through the opening in the wall they had been shot at from the first floor of the school, and many women and children were wounded.
289. Those hostages who had been taken by the fighters to the canteen and the meeting room testified about the fierce fighting which had taken place there. They stated that the fighters had tried to force the hostages – women and children – to stand in the windows and to wave their clothes, and some had been killed by shots fired from the outside and by powerful explosions (Kusayeva R., v. 1 p. 152; Sidakova Z., v. 1 p. 313; Urmanov S. v. 1 p. 426; Daurova Z., v. 1 p. 483; Badoyeva N. v. 2 p. 823; Makiyev V. v. 2 p. 826; Svetlova T. v. 2 p. 956; Katuyeva V. v. 2 p. 971).
290. Many also stated that they had not been satisfied with the results of the criminal investigation and that they did not intend to seek damages from the accused, since they considered that the State officials had borne responsibility for the deaths and injuries.
(e) Testimony of the Pravoberezhny ROVD police officers
291. Mr Aydarov M., former head of the Pravoberezhny ROVD, was questioned in court (v. 3 pp. 1394-1414) while under investigation in criminal case no. 20/852 for criminal negligence (see paragraph 355 below). He explained that he had only been appointed in mid-August 2004. The administrative border with Ingushetia in the district was 57 kilometres long and was mostly unguarded. Many small roads through the fields were formally closed and rendered impassable in view of the heightened terrorist threat; however this did not suit the locals, who very often removed the barriers. In August 2004 some information had been reported about a gathering of armed groups in the Psedakh district in Ingushetia and a number of steps had been taken on both sides of the administrative border, but at the time these measures had produced no known results.
292. He also explained that out of 53 officers of the ROVD who were present on 1 September over 40 were women. It was difficult to maintain the staff on alert for long time. As soon as the shooting was heard from the school, at about 9.15 a.m. on 1 September, he ordered his staff to maintain security around the building. Two servicemen of the ROVD had witnessed the hostage-taking and exchanged fire with the terrorists.
293. Mr Murtazov T., deputy head of the Pravoberezhny ROVD, at the time of questioning was also under investigation for criminal negligence. Mr Murtazov gave detailed submissions about the use of “Shmel” flame ‑ throwers upon the school from three snipers ’ positions situated on the roofs of a technical building in Lermontova Street, a five-storey housing block on the corner of Shkolnaya and Batagova Streets and the gatekeeper ’ s house (v. 3 p. 1418). He did not know where the snipers came from. He witnessed the tank shooting at the school and the use of grenade-launchers by the military; these events occurred between 2 p.m. and 4 p.m. The officer remarked that not a single bullet had been extracted from the bodies of the deceased hostages which could have led to the identification of the servicemen of the Ministry of the Interior (v. 3 p. 1424).
294. Mr Dryayev, another senior ROVD officer, testified that immediately after the first explosions on 3 September he had seen soldiers [of the army or Internal Troops] firing with automatic weapons upon the school in response to enemy fire. Soon after 3 p.m. the witness saw the tank stationed in Kominterna Street firing about ten shots at the school corner from a distance of about 30 metres. These shots, possibly carried out without explosive heads, damaged the wall and the roof (v. 3 p. 1428).
295. Police officers of the Pravoberezhny ROVD testified that by the evening of 1 September they had carried out a house-to-house inspection of the district and had a list of 900 hostages ’ names which they had submitted to the officer on duty of the ROVD (Khachirov Ch. v. 3 p. 1212; Friyev S. v. 3 p. 1217).
296. The policemen also explained that two men had been beaten by the crowd on 2 September and detained at the ROVD on suspicion of aiding the terrorists. They turned out to be civilians from a nearby town; both men had been identified and testified in court about this incident.
(f) Statements by civilians and police officers who participated in the rescue operation
297. The court questioned several civilians who had helped to evacuate hostages from the gymnasium. Mr Dudiyev testified that he had entered the gymnasium after the first explosions, together with the special forces units, searching for his wife and three children. Mr Dudiyev brought out his wounded wife and the body of his daughter, while his brother evacuated his injured son; his eldest child had also been killed (Dudiyev A. v. 1 p. 251). Other witnesses, both civilian and police, told the court that they had entered the burning gymnasium several times, taking out injured women and children before the roof had collapsed (Adayev E., v. 2 p. 659, Totoonti I., v. 4 p. 1595). One policeman witnessed the fire spreading very quickly on the roof of the school, while the firemen failed to intervene (Badoyev R. v. 3 p. 1295).
298. Some witnesses saw the tanks shooting at the school soon after the explosions (Khosonov Z. v. 3 p. 1110); one man was injured by an explosion while taking a child out of the gymnasium (Gasiyev T. v. 2 p. 676). Witness E. Tetov explained that he had served in the army as a tank crew member and was well acquainted with the tanks and the ammunition used by it. Shortly after 1 p.m. on 3 September he had counted between nine and eleven shots without explosive heads fired from a tank gun. He was also of the opinion that the first explosions and the fire had been started from the outside, either from a flame-thrower or a tracer bullet (v. 2 pp. 729 ‑ 730). One civilian witness stated that he had served in the army as a grenade launcher operator and that he had identified at least two shots fired from grenade- or flame-throwers between the second and third major explosions in the gymnasium (Totoonti I., v. 4 p. 1603).
299. Several police officers testified that the storming of the building had started unexpectedly and that this explained the casualties. Some of them did not have time to don the protective gear and rushed to the school as soon as they had heard the shooting. Some servicemen described the situation after the first explosions as “chaotic”, when various forces shot at the school building using automatic weapons and other arms (Khosonov Z., v. 3 p. 1109). They referred to the terrorists ’ high level of training and preparedness, which allowed them to mount resistance in the face of the elite Russian units (Akulov O., v. 1 p. 492).
300. An officer of the Pravoberezhny ROVD testified that while he was ensuring the security cordon around the school, on 3 September at about 9 a.m. he saw two full carloads of portable grenade launchers (RPG) and flame-throwers (RPO “Shmel”) delivered by servicemen of the Ministry of the Interior driving a white Gazel vehicle. He estimated that at least twenty flame-throwers had been unloaded and taken to the snipers ’ positions, located about 200 metres from the school. The snipers and the forces of the Ministry of the Interior used these flame-throwers soon after the explosions at the school, responding to enemy fire from grenade-launchers and machine guns (Khachirov Ch. v. 3 p. 1212). Up to ten shots from flame ‑ throwers were counted by another policeman at around 2 p.m. in the direction of the gymnasium roof (R. Bidzheov, v. 3 p. 1222). Other policemen testified that between 3 p.m. and 5 p.m. they had seen a tank firing at the school (Friyev S. v. 3 p. 1218; Khadikov A. v. 3 p. 1224; Khayev A. v. 3 p. 1227; Karayev A. v. 3 p. 1231;) and that shots were fired from grenade-launchers (Karayev A. v. 3 p. 1231; Aydarov M. v. 3 p. 1400).
(g) Statements by local residents
301. The hostage-taking and subsequent events were witnessed by numerous local residents; some of them were questioned in the courtroom. Several passengers of vehicles who had found themselves in the morning on 1 September in the street in front of the school had seen the GAZ-66 truck arriving in the school yard and some of them said that they had seen three or four women jumping off the vehicle. Mr K. Torchinov had been a teacher at school no. 1 and a former investigator of the prosecutor ’ s office; he lived in the house opposite the school and watched the ceremony from his window, from a distance of about 200 metres. He gave detailed explanations about the hostage-taking. In particular, he had counted the men who jumped out of the GAZ-66 vehicle and said that there had been twenty-seven, he also saw two other fighters in the school yard and between seven and eight who had run from the railway lines; at the same time there were shots fired from the roof and the first floor of the school; he thus estimated the number of fighters at no less than forty or forty-five persons. Mr Torchinov also stated that on 1-3 September there were no soldiers or police lined up along the backyard of the school and that it was possible to walk there to and from his house (v. 2 pp. 847-859).
302. Numerous local residents whose relatives were held in the school stated that they had been appalled by the announcement of the number of hostages. They said that the school had about 900 students – lists could have been obtained in the local department of education – and that numerous parents and relatives had also been captured. Officials from the local department of education testified that in the morning of 1 September the number of students (830) had been transmitted to the administration, with an indication that many relatives could be present at the ceremony (Dzukkayeva B. v. 3 p. 1334; Burgalova Z. v. 3 p. 1349). Moreover, on 1 September volunteers and police drew up lists of hostages which counted over 1000 persons. In view of this they could not explain how the officials had arrived at the figure of 350 persons (Khosonov Z. v. 3 p. 1107).
303. Many local residents testified that they had seen or heard the tank shooting at the school after the explosions (Duarov O. v. 3 p. 1083; Pliyev V. v. 3 p. 1085; Dzutsev Yu. v. 3 p. 1121; Gagiyev E. v. 3 p. 1300; Malikiyev A. v. 3 p. 1308; Savkuyev T. v. 3 p. 135; Ilyin B. v. 1 p. 1453). Mrs Kesayeva E. remained outside the school, where four members of her family had been held hostage. She testified that a tank positioned in Kominterna Street had fired several rounds between 1 p.m. and 4 p.m. (v. 1 p. 325). One local resident saw a tank enter a courtyard in Pervomayskaya Street and heard it shooting at the school before 3 p.m. on 3 September. The witness was about 50 metres away from the tank (Khabayeva A. v. 3 p. 1289). All those witnesses described the tank cannon shots as being particularly strong and clearly identifiable despite the overwhelming noise of fierce fighting.
304. Several residents testified about the firemen ’ s actions. They alleged, in particular, that the firemen had lost time before intervening in the gymnasium and that once the fire engines had arrived, they were of little use since the water in the cisterns was quickly exhausted; moreover the water hoses had been weak and could not reach the gymnasium from where the machines were stationed. Some witnesses deplored the lack of preparedness by the firemen who had failed to find out beforehand where to find water locally around the school rather than bringing it in cisterns (Tetov E. v. 2 p. 729; Katsanov M. v. 2 p. 802). Other witnesses told the court that they had seen a fire engine stuck in the courtyard and trying to find water for the cistern (Pliyev V. v. 3 p. 1086).
(h) Statements by the servicemen of the Internal Troops, army and FSB
305. Colonel Bocharov, brigade commander of the Internal Troops deployed in Beslan on 1-4 September, testified in November 2005 that servicemen under his command had ensured the security cordon. Their task was to prevent the terrorists from breaking through. Four APCs from his brigade had been transferred to the FSB forces on 2 September (v. 3 p. 1209).
306. Officers of the 58th army testified that their task had been to ensure the “third ring” of security around the school. One officer explained that General Sobolev, the commander of the 58th army, had instructed him to follow the orders of the FSB officers. Each army vehicle deployed in Beslan had been completed by an officer of the FSB who had given orders and coordinated the crews ’ actions (Isakov A. v. 3 p. 1260; Zhogin V. v. 3. p. 1265). They denied having heard or seen grenade-launchers, flame ‑ throwers or tanks being used prior to late in the evening on 3 September. The tank unit commander stated that between 8.56 p.m. and 9.30 p.m. one tank had fired seven high-fragmentation shells at the school (the seventh shell had failed to explode), following orders of the FSB officer in charge. No shots had been fired from the tank guns before or after that (Kindeyev V. v. 3 p. 1277).
307. One officer, a sapper, testified that he had entered the gymnasium at around 2.40 p.m. on 3 September and deactivated one IED attached to the basketball hoop. Most IEDs had not exploded and were deactivated on the following day. This officer testified that he had entered the gymnasium in a group of seven servicemen and fifteen or twenty civilians who had evacuated the hostages for about one hour. Initially there was no fire there, but the premises were under attack from the northern wing of the school. Soon afterwards he noted fire starting in the roof, above the entrance to the gymnasium from the side of the weights room (Gagloyev A. v. 4 pp. 1715, 1733).
308. Mr Z., a professional negotiator from the North Ossetian FSB, was called to Beslan at 9.30 a.m. on 1 September. He had a meeting with Mr Andreyev and then informed him of the talks and received instructions from him. He was placed in a separate room, with a psychologist, and maintained telephone contact with the terrorists with an interval of 30 ‑ 35 minutes. His efforts to establish psychological contact with his interlocutor who called himself “ Shahid ” were unsuccessful and he failed to obtain any concessions aimed at alleviating the hostages ’ situation. The conversations were conducted in a rude manner; the gangsters insulted him and Mr Roshal. The terrorists repeatedly said that they would talk to the four men enumerated by them and did not present any other demands. They did not specify the number of hostages they were holding, saying only that they had “enough”; they spoke of about twenty people shot dead on the first day and said that they had three days to wait for the authorities to bring the four men together. When asked if Mr Dzasokhov could come alone, the terrorists refused. The first telephone conversation took place on 1 September at about 4 p.m., the last one – after 1 p.m. on 3 September immediately following the first explosion. The witness recalled saying “What have you done?!” and “ Shahid ” responded “We have fulfilled our duty”. Responding to the victims ’ questions, Mr Z. admitted that the negotiations involving Mr Aushev and Mr Gutseriyev had been carried out independently of him and that he had only been informed of these developments after they had occurred (v. 4 pp. 1819 -1843).
309. The head of the FSB department in Beslan at the relevant time stated in court in January 2006 that he had not been aware of the information and telexes sent by the Ministry of the Interior in August 2004 about the heightened terrorist threat during the Day of Knowledge. The FSB had not been involved in the protection of the administrative border, but their services cooperated with the Ministry of the Interior in examining the area around the border (Gaydenko O. v. 4 pp. 1847-1854). He did not have any information about the possible fleeing of terrorists from the school after the storming had started.
310. The former head of the FSB department in Ingushetia, Mr Karyakov, confirmed that there was sufficiently precise information about the activities of terrorist groups in Ingushetia in the summer of 2004, a number of successful special operations had been carried out, but there was no information about the armed group in the Malgobekskiy district. The witness testified that he had arrived in Beslan in the morning of 1 September and remained there for three days, working in close cooperation with Mr Andreyev. He was not certain if he had been a member of the OH, but was fully aware of its work. In the morning of 1 September Mr Karyakov called Ingushetia ’ s President Mr Zyazikov and informed him about the terrorist act; at that time no demand to involve Mr Zyazikov in the negotiations had been made. Later on he could not reach Mr Zyazikov since his mobile telephone had been switched off. By questioning the escaped hostages they tried to identify terrorists from Ingushetia and to involve their relatives in the negotiations. Thus, they brought the wife and children of a presumed terrorist, but her appeal had had no effect. The witness was not aware of the note taken out by Mr Aushev (v. 4 pp. 1841-1890).
311. Most of the army and Internal Troops servicemen had failed to testify in the courtroom; their witness statements collected during the investigation of criminal case no. 20/849 were read out (see paragraph 216 above).
(i) Statements by members of the OH and other senior officials
(i) Mr Tsyban
312. On 15 November 2005 the court questioned Lieutenant-Colonel Tsyban (v. 3 pp. 1192-1203), who at the relevant time had headed the operative direction group at the Ministry of the Interior of North Ossetia ( начальник группы оперативного управления по РСО при МВД РФ ). The group was created on 11 August 2004 by an order of the Minister of the Interior with the mission to prevent terrorist acts, plan and carry out special operations, and control and direct resources allocated for counter-terrorism activities. When asked about the meetings, functions and actions of this commission prior to 1 September 2004, Mr Tsyban could not recall any details.
313. Mr Tsyban learnt of the hostage-taking at 9.30 a.m. on 1 September and went to Beslan. There, by late morning, he had organised the security perimeter around the school. As of noon on 1 September he reported to the deputy chief of the Internal Troops of the Ministry of the Interior, General Vnukov. Although he was a member of the OH, he stated that his participation had been limited to ensuring the second security perimeter. He was not aware of the number of hostages, the nature of the terrorists ’ demands or the negotiation attempts. He had not taken part in any meetings or discussions of the OH. As to the rescue operation, Mr Tsyban stated that the servicemen of the Internal Troops had not used weapons, had not approached the school and had not taken part in the rescue operation. He was not present at the school on 3 September. He refused to answer the question whether any terrorists could have permeated the security perimeter.
(ii) Mr Sobolev
314. General Sobolev, the commander of the 58th army of the Ministry of Defence, was questioned in November 2005 (v. 3 pp. 1316-1330). Mr Sobolev was a member of the OH as the most senior officer from the Ministry of Defence. He described the OH ’ s principal strategy as negotiation with the hostage takers. However, these attempts were futile because the terrorists had been prepared to talk only if the four persons designated by them arrived. Mr Roshal attempted to contact the terrorists, but they refused to talk to him; Mr Dzasokhov had been prevented by the OH from going to the school; no contact had been established with Mr Zyazikov. The danger to the lives of the four men had been too high in the absence of any goodwill shown by the terrorists. In General Sobolev ’ s view, no negotiations were possible under the circumstances; the storming of the school should have taken place immediately, before the IEDs had been assembled. He believed that the terrorists had been supported and funded by foreign services, including the Central Intelligence Agency (of the United States). His task had been mostly limited to ensuring the security perimeter around the school and to providing the necessary equipment; he was not aware of the number of hostages, negotiation strategies or the rest of the plan drawn up by the OH.
315. He enumerated the forces and equipment brought in by the army. Eight APCs and three tanks had been transferred under the FSB command to be used as cover in case of storming. A group of sappers demined the gymnasium in the afternoon of 3 September; they found four mines and ten smaller IEDs connected by a “double chain” which allowed them to be activated all at once or one by one. Three IEDs had exploded prior to demining; in one of them only the detonator had exploded without causing any harm.
316. Turning to the storming, General Sobolev explained that it had started unexpectedly. Officers of the FSB ’ s Alpha group had been training in Vladikavkaz and had to be brought in urgently; many of them had no time to prepare. This had led to extremely high casualties: one third of the elite troops storming the building had been injured or killed. General Sobolev was not aware of the use of flame-throwers or grenade- launchers. The tank cannon fired seven shots after 9 p.m. He was of the opinion that the army has successfully concluded its mission.
(iii) Mr Dzantiyev
317. Mr Dzantiyev testified in November 2005 that at the relevant time he had been the North Ossetian Minister of the Interior. He arrived in Beslan at about 10 a.m. on 1 September and followed Mr Dzasokhov ’ s orders. As of 3 p.m. on 1 September Mr Andreyev, the head of the North Ossetian FSB, had taken over the command of the operation. The witness ’ s primary task was to ensure security around the school and to evacuate civilians from the area. The victims referred to the decree of the Chairman of the Russian Government of 2 September 2004 by which Mr Dzantiyev had been appointed deputy head of the OH; however the witness insisted that he had not been informed of this, had not assumed such responsibilities and had been excluded from the OH meetings. Mr Dzantiyev received orders from the Russian Minister of the Interior and his deputy Mr Pankov who had arrived in Beslan; on two occasions the deputy head of the FSB Mr Anisimov had asked him to check the situation in two villages. Mr Dzantiyev had been aware by the evening of 1 September, from the lists drawn up by the local police, that the number of hostages had been no less than 700 persons. He did not know where the figure of 354 had come from. The Minister had no information about the use of heavy weapons during the storming except that after 3 September a number of empty tubes from “Shmel” flame-throwers had been found on the nearby roofs (v. 3 pp. 1371 ‑ 1394).
(iv) Mr Dzugayev
318. In November 2005 the court questioned Mr Dzugayev (v. 3 pp. 1430 ‑ 1445). At the relevant time Mr Dzugayev had been the head of the information and analytical department of the North Ossetian President ’ s Administration. He testified that he had arrived in Beslan on 1 September 2004 at about 10 a.m. He was instructed by Mr Dzasokhov and Mr Andreyev to liaise with the press. He was not aware of the OH ’ s work, composition and strategy. Mr Dzugayev was asked a number of questions about the figure of 354 hostages which he had consistently announced to the press on 1 -3 September. He explained that he had been so informed by Mr Andreyev, who had referred to the absence of exact lists. He had always underlined the preliminary nature of this information.
(v) Mr Andreyev
319. Mr Andreyev, who at the relevant time was the head of the North Ossetian FSB and head of the OH, was questioned in court in December 2005 (v. 3-4, pp. 1487-1523). He gave a detailed account of his actions and of the work of the OH during the crisis. According to him, no formal leadership over the operation had been assumed prior to 2 p.m. on 2 September, but informally all the responsible persons – members of the operative directions group – had carried out their tasks under the guidance of Mr Dzasokhov and his own. According to Mr Andreyev, as of 2 September the OH included seven officials: himself as the head, Mr Tsyban as his deputy, Mr Dzgoyev, Mr Goncharov, Mrs Levitskaya, the Minister of Education of North Ossetia, and Mr Vasilyev from the State TV.
320. Mr Pronichev, deputy director of the FSB, had assisted the OH in a personal capacity but had assumed no formal role. Mr Andreyev referred to the Suppression of Terrorism Act, which stipulated the plan of action in case the hostage-takers had put forward political demands. The same law excluded political questions from the possible subjects of negotiations. He believed that the terrorists ’ primary aim had been to achieve a resumption of the Ossetian-Ingush ethnic conflict, of which there existed a real threat. From the first hours of the crisis, work had been carried out in close cooperation with the head of the FSB department in Ingushetia.
321. Mr Andreyev enumerated the authorities ’ unsuccessful attempts to negotiate with the terrorists: their mobile telephone had initially been switched off, and the school telephone was disconnected. The terrorists often interrupted the contacts and said that they would call back. The OH involved a professional negotiator, who was a staff member of the FSB. The terrorists had behaved in an aggressive and hostile manner and refused to discuss any proposals unless the four men indicated by them arrived in Beslan. Mr Andreyev insisted that Mr Zyazikov, Ingushetia ’ s President, could not be found, while the three other men had been in contact with the OH (Mr Aslakahnov talked to the terrorists over the telephone and arrived in Beslan in the afternoon of 3 September). The OH had invited two influential persons of Ingush origin – Mr Aushev and Mr Gutseriyev – to take part in the negotiations. The terrorists had been inflexible and refused to consider any proposals aimed at aiding the hostages or the possibility of ransom and exit. No written demands had been issued and a number of political demands had been made orally through Mr Aushev. Responding to the questions about the number of hostages, Mr Andreyev insisted that no exact lists beyond the 354 names had existed and the OH did not want to air unreliable information. Responding to the victims ’ questions he reiterated that the terrorists in the course of the negotiations had not referred to the number of hostages and that in his opinion they were not particularly interested in the figure announced. The witness testified that in the evening of 2 September Mr Gutseriyev had talked to Mr Zakayev in London and the latter had promised to establish contact with Mr Maskhadov. However, no direct line of communication with Mr Maskhadov had been established.
322. The OH ’ s strategy had been to negotiate, and no plan consisting of resolving the situation by force had been considered. Mr Andreyev explained that the involvement of the special forces had been foreseen only in case of massive killing of the hostages.
323. Turning to the special forces of the FSB, Mr Andreyev clarified that the FSB Special Services Centre ( ЦCН ФСБ России ) under the command of General Tikhonov had their own temporary headquarters, located on the third floor of the Beslan administration building on the premises of the local department of the FSB. Questions concerning the types and use of special weapons, such as flame-throwers, lay within the competence of that Centre. Mr Andreyev issued an order to start the operation aimed at liberating the hostages and at neutralising the terrorists as soon as the latter had started to shoot at hostages escaping from the gymnasium. He conceded that at the beginning of the operation there had been shots fired by other servicemen and the FSB forces were in danger of friendly fire. He insisted that the tanks and flame-throwers had been used only after 9 p.m. on 3 September when there were no hostages still alive left in the school. Mr Andreyev stated that two terrorists had been captured alive, but one of them had been lynched by the locals.
324. During the questioning, the victims openly accused Mr Andreyev of incompetence, concealing the truth and of bearing responsibility for the fatalities. They were called to order by the presiding judge.
(vi) Mr Dzgoyev
325. The court heard the statement by the Ossetian “Emercom” Minister Mr Dzgoyev (v. 4 pp. 1523-1544). He explained that he had been informed that he was a member of the OH in the evening of 2 September; however both before and after that time he had functioned semi-autonomously. He had estimated the number of hostages at around 800 persons and on 2 September Mr Aushev informed him personally that there were over 1000; this information was sufficient to provide for the rescue operation.
326. Mr Dzgoyev answered numerous questions about the extinguishing of the fire in the gymnasium. He stated that the information about a fire at the school (but not in the gymnasium) had been noted by their service at 1.05 p.m. on 3 September. The message that the roof of the gymnasium was starting to collapse had been noted at 2.40 p.m. General Tikhonov, the commander of the Special Services Centre, authorised the firemen to move in at 3.10 p.m. and at 3.20 p.m. they arrived at the scene. Mr Dzgoyev was told that by that time there were no hostages still alive in the gymnasium; this information was later confirmed by the forensic reports. Five fire brigades had been involved. By 4 p.m. the fire had been contained. Later the fire brigades had been ordered by the FSB to leave the gymnasium. Then they entered again and left the building at 6 p.m.
327. The witness explained that another fire vehicle had been brought in by a relative of a hostage from the nearby factory; it had been seen by many witnesses but was not an “Emercom” car. He also insisted that the vehicles and cisterns had been fully prepared, that hoses had been laid from the nearest water hydrants and that the fire equipment had been sufficient.
328. At 7 a.m. on 4 September the “Emercom” teams started the clearance operation. They worked in parallel with the staff of the FSB, army sappers and the prosecutor ’ s office. They collected the remains of 323 hostages, of which 112 had been found in the gymnasium and adjacent premises. 31 terrorists ’ bodies were also found. During the day the “Emercom” staff cleared the debris with the use of cranes, bulldozers and excavators; the debris was first shifted manually to collect human remains and other relevant items. Only after sifting was the rubble loaded onto the trucks supplied by the local administration. Mr Dzgoyev had personally inspected the destroyed wing of the school, where two floors had collapsed onto the cellar. He saw the terrorists ’ bodies but no hostages ’ remains. “Emercom” had finished the clearance work by 7 p.m. on 4 September, after which the building was rendered to the local administration.
(vii) Mr Dzasokhov
329. Mr Dzasokhov was questioned on 27 December 2005 (v. 4 pp. 1562 ‑ 1690). Then President of North Ossetia, he stated that at about noon on 1 September Mr Andreyev had received an oral instruction from the FSB, with reference to the Russian Government, to head the OH. Mr Dzasokhov was not a member of the OH, which he considered had been a mistake. However he did whatever he thought was right and within his powers. Mr Dzasokhov was prepared to go and negotiate with the terrorists, but he had been told that he would be placed under arrest if he did so. Nor did he talk to the terrorists over the telephone, since this was done by a professional negotiator. He participated in the meeting with the relatives at the Cultural Centre on 1 and 2 September. He also had several talks with the head of the FSB Special Services Centre General Tikhonov, who shared his concerns about the use of force.
330. Mr Dzasokhov believed that too much operative information of low quality had been sent around prior to the terrorist act, which made it difficult to react. In particular, there was insufficient clarity about the terrorists ’ plans in the summer of 2004, although the heightened security threat was evident.
331. Turning to the negotiations, Mr Dzasokhov testified that he had seen the handwritten note allegedly signed by Mr Basayev which Mr Aushev had taken out of the school. Mr Dzasokhov also explained that on 2 September he had talked to Mr Zakayev in London. At 12 noon on 3 September Mr Zakayev confirmed that the request to take part in the negotiations had been transmitted to Mr Maskhadov. Mr Dzasokhov had informed the OH accordingly.
(viii) Other officials
332. A former member of the counter-terrorism commission of North Ossetia and secretary of its security council testified that the OH appointed on 2 September had excluded from its meetings all other persons. He had had no access to the OH, and Mr Dzasokhov and Mr Mamsurov had only been invited on two occasions to its meetings (Ogoyev U. v. 3 p. 1362). Mr Ogoyev could not recall the work of the counter-terrorism commission of North Ossetia created on 23 August 2004 and of which he had been a member.
333. Mrs Levitskaya had been the Minister of Education of North Ossetia at the relevant time. She had come to Beslan on 1, 2 and 3 September, was present at the town administration and had a number of discussions with Mr Dzaskohov and several other Ossetian officials. She had not participated in any OH sessions or other meetings. She learnt that she had been a member of the OH on 10 September 2004 during a meeting of the North Ossetian Parliament (v. 4 p. 1696). She was informed on 1 September by the local department of education about the number of pupils at the school; she was also told that this information had already been transferred to the district authorities.
334. The North Ossetian Deputy Minister of the Interior admitted that their resources had been insufficient to monitor the border-crossing points with Ingushetia. He was also aware of the attempts to block small roads in the Pravoberezhny district and the problems that had been encountered in August 2004 – lack of staff, sabotage by the locals and absence of funds to pay for the works (Popov V., v. 4 p. 1807).
(j) Questioning of doctors
335. The director of the All-Russia Centre of Disaster Medicine at the Ministry of Public Health ( Zashchita ) Mr Goncharov (v. 3 pp. 1166-1178) testified that on 2 September he had been told that about 300 persons were being held hostage and that the medical assistance had been planned accordingly. Only after he had met with Mr Aushev on 2 September had he realised that the number of hostages was actually much higher. On the same day, in the evening, he set up emergency paediatric brigades, assembled ambulances from the region, carried out training and prepared for the arrival of patients. They mostly expected victims of injuries; the probability of gas poison was considered low. Mr Goncharov testified that though he was a member of the OH as an official of the Ministry of Public Health, he had not taken part in any meetings or discussions. He did not receive any information from the OH, as, in his view, the number of hostages was the only relevant factor and that was communicated to him personally by Mr Aushev. His own experience and available resources had been sufficient. Being highly experienced in providing emergency treatment to large number of victims, his work had been relatively independent from the rest of the OH. Besides, his previous experience had shown that the “power structures” would not share their plans with the medics, out of a need to keep such considerations secret.
336. Turning to the organisation of medical assistance, Mr Goncharov explained that by the morning of 3 September they had on standby in Beslan about 500 persons, including 183 doctors, over 70 ambulances, one field paediatrician hospital and several reanimation units. “Carriers” with stretchers were grouped about 700 metres from the school, with ambulances and sanitary vehicles placed in several spots around the building. The idea was to bring the injured to the Beslan hospital where the sorting would take place, urgent operations and life-saving measures would be carried out in the field paediatric hospital and, for adults, in the Beslan hospital and then those who could be transported to Vladikavkaz would be taken there (about 20 kilometres).
337. Immediately after the explosions on 3 September at 1 p.m. Mr Goncharov received a call from the OH to bring in the medical rescue team. For four hours on 1 September the sorting centre at the Beslan hospital treated 546 patients and carried out 76 urgent surgeries. Five persons were brought to the hospital in agony and died within a few hours; 14 other patients died within 24 hours. 199 adults were evacuated to other hospitals after urgent medical assistance; 55 children were in life ‑ threatening condition and had to be treated on the spot, seven children had emergency surgery. On the night of 3 to 4 September six children in critical condition were taken to Moscow in a specialised plane. Mr Goncharov mentioned difficulties in maintaining the necessary security around the school, and later around the hospital, in order to avoid disruption of services by the relatives.
338. Mr Soplevenko, then North Ossetian Minister of Public Health was questioned in court on 15 November 2005 (v. 3 pp. 1179 – 1191). He also testified that on 1-3 September he had not received any particular instructions, except rather general indications by Mr Dzasokhov that “adequate medical aid” should be provided. He had not been part of the OH or any other body during the crisis. He learnt that more than 1,000 persons were being held in the school from the nursing mothers who had walked out with Mr Aushev on 2 September. In cooperation with Mr Goncharov he prepared the hospitals in Vladikavkaz to admit patients: beds were freed at five hospitals, surgery and reanimation brigades were put on standby, stocks of medical and dressing material were set aside.
339. Dr Roshal, director of the Moscow institute of emergency paediatric surgery, was questioned in February 2006. He stated that he had been informed by journalists on 1 September about the hostage-taking and immediately went to Beslan. There he was taken to the town administration where the OH and other officials were stationed. He was taken to the room with Mr Z. and received brief instructions from him. On several occasions he called the terrorists; each time they reacted in a hostile manner and refused to discuss anything unless all four men demanded by them arrived. His attempts to convince them to accept water, food, medicines or to allow him to examine and treat the wounded and sick were flatly rejected, moreover, the terrorists said that all hostages had declared a “dry hunger strike” in support of their demands. On 2 September at about 11 a.m. the terrorists called him and let him talk to the school director, who pleaded with him to intervene since their situation was dire. On 2 September Dr Roshal personally telephoned Mr Zakayev in London and let Mr Dzasokhov talk to him (v. 4 pp. 1900 – 1925).
(k) Information about forensic reports
340. In December 2005 the court, upon the victims ’ application, questioned a senior expert of the State forensic centre in Rostov ‑ on ‑ Don, who on 13 September 2004 had been appointed the chief of the group in charge of identification of the remains by DNA tests. The expert explained that their centre was the best equipped in Russia and that the delay in genetic tests was between three days and five weeks, depending on the quality of the material under examination. All work in the Beslan cases had been completed within a month and a half. Mr Korniyenko stated that the results obtained through genetic pairing had been final and allowed no disputes about possible misidentification. He admitted that many relatives had refused to believe in the deaths of their loved ones and that on some occasions they had carried out second rounds of tests with other relatives ’ genetic material, primarily out of respect for the relatives ’ doubts. The expert cited difficulties in the identification of the remains which had been burnt “to the ashes” and in the identification of body fragments which had lasted until summer 2005. The same expert group had worked with the terrorists ’ remains: twenty-three had been identified, while eight remained unidentified (v. 3 p. 1469).
341. Hundreds of forensic reports on the victims had been examined by the court. They included examinations of bodies, results of identification of the remains through DNA tests, conclusions of experts on the level of damage to the health of the surviving hostages and other documents. Over 110 forensic reports concluded that the cause of death could not be established in view of extensive charring and burning of the remains and the absence of other injuries; other reports named extensive burns, gunshot wounds, traumatic amputation of extremities, and injuries to the head and body as the causes of death. Injuries from gunshots and explosions, burns and psychological traumas were recorded for the surviving hostages.
(l) Additional requests and applications lodged by the victims
342. In the course of the proceedings the victims lodged several hundred applications. Some of them were lodged with the district courts in Vladikavkaz, where the investigation was being conducted, while others were lodged directly with the North Ossetia Supreme Court. Some of them have been submitted to the Court, others are mentioned in the statement of facts or in the trial records.
343. Thus, on 29 September 2005 the victims requested the withdrawal of the State prosecutor heading the investigation team, Deputy Prosecutor General Mr Shepel. They argued that the investigation had been incomplete and failed to take into account all the relevant information about the crime. They indicated that the copies of expert reports ordered in the case had been unavailable to them, that the prosecutor ’ s office had ignored numerous facts and statements which had differed from the facts “selected” to form the basis of Mr Kulayev ’ s indictment, and that the role of various officials in the hostages ’ deaths had not been clarified. This application was dismissed.
344. In January 2006 the victims applied for the withdrawal of the prosecution and the judge presiding in the case, referring to the incomplete nature of the investigation and the repeated dismissal of their applications by the judge. They also questioned the logic behind separating the investigation concerning the terrorist act and its consequences into several sets of criminal proceedings. These applications were also dismissed (v. 4 p. 1801).
345. In November to December 2005 and January 2006 the victims applied to the trial court for permission to call and question a number of additional witnesses: members of the OH, senior civilian and FSB officers who had been present in Beslan during the operation, members of the Ossetian Parliament ’ s investigative commission on Beslan, and persons who had negotiated with the terrorists, including Mr Gutseriyev, Mr Roshal, Mr Z. and Mr Aslakhanov. The court granted the applications concerning several Ossetian officials who were members of the OH, but refused to call other officials, negotiators and members of the Ossetian Parliament. It also refused to include the results of the investigation of the Ossetian Parliamentary Commission in the case file (v. 3 pp. 1311-1312, v. 4 pp. 1570, 1589, 1651, 1778-1783, 1796, 1929). In January 2006 the court granted the victims ’ application to question Mr Z., Mr Roshal and some senior FSB officials.
346. In February 2006 the victims again sought the withdrawal of the prosecutor in the trial. They argued, with reference to the European Convention on Human Rights, that the investigation had been ineffective and incomplete in ascertaining the most important elements of the crime. They sought to appoint independent experts in order to clarify key questions concerning the preparation of the terrorist act, the composition and powers of the OH, the reasons for the first explosions, the use of flame-throwers, grenade launchers and tank guns, and the belated arrival of the firefighters. This application was dismissed (v. 4 p. 1936).
347. In July 2006 the victims sought to acquaint themselves with the entire set of documents in the criminal case and to be allowed to take copies. Similar requests were lodged in March and July 2007, but apparently to no avail.
(m) The judgment of 16 May 2006
348. In his final submissions of February 2006 the prosecutor requested the court to apply the death penalty to the accused. The victims argued that the investigation and the trial had failed to elucidate many key elements of the events and that the officials responsible should be prosecuted for their actions which had led to the tragedy.
349. On 16 May 2006 the North Ossetia Supreme Court found Mr Nurpashi Kulayev guilty of a number of crimes, including membership of a criminal group, unlawful handling of arms and explosives, aggravated hostage taking, murder, and attempts to kill State officials. The 319-page judgment summarised witness and victim statements, and referred to forensic reports and death certificates, expert reports and other evidence. The court found that 317 hostages, one Beslan civilian and two “Emercom” workers had been killed; 728 hostages had received injuries of varying degrees (151 – grave injuries; 530 – injuries of medium gravity; and 102 – light injuries). Ten servicemen of the FSB had been killed and fifty-five servicemen of the army and law-enforcement bodies wounded. The actions of the criminal group had caused significant material damage to the school and private property in Beslan. Mr Kulayev was sentenced to life imprisonment.
(n) Cassation at the Supreme Court
350. The victims appealed against the court ’ s decision. In particular, in their detailed complaints of 30 August and 8 September 2006 they claimed that the court had failed to undertake a thorough and effective investigation into the crime and that its conclusions had not been corroborated by the facts. They argued that the court had failed to investigate the authorities ’ failure to prevent the terrorist attack, to apportion responsibility for the decisions taken by the OH, to establish the exact places and circumstances of the first explosions in the gymnasium, and to assess the lawfulness of the use of indiscriminate weapons by the security forces. They also complained that the court had not allowed them full access to the case materials. Their complaints were supplemented by reference to the relevant statements and documents.
351. On 26 December 2006 the Supreme Court held a cassation review. Four victims and the defendant ’ s lawyer, as well as the prosecutor, addressed the court. The Supreme Court slightly amended the characterisation of one offence imputed to Mr Kulayev; the remaining part of the parties ’ complaints had been dismissed. In particular, the Supreme Court found that the questions raised by the victims had no bearing on the characterisation of Mr Kulayev ’ s deeds and that the victims had been allowed full access to the case documents after the completion of the investigation.
352. On the same day the Supreme Court issued a separate ruling (“ частное определение ”) in respect of Deputy General Prosecutor Mr Shepel, who had acted as the State prosecutor in the trial. The Supreme Court noted that his request to the trial court to apply the death penalty to Mr Kulayev had been contrary to the applicable legislation and as such incited the court to adopt a manifestly illegal decision.
(o) The applicants ’ view of the investigation
353. The applicants in application no. 26562/07 Tagayeva and Others submitted that during the trial they had heard testimony and examined other evidence. It had allowed them to draw conclusions about the actions of the OH and other officials, most of which could not be elucidated within the course of the trial. Referring to the case materials and other evidence the applicants made the following inferences:
- on 1-3 September the hostages had been detained in inhuman conditions, subjected to intense physical and emotional stress including deprivation of food and water, humiliation, the witnessing of suffering and deaths of family members, and a feeling of helplessness in the absence of meaningful negotiation attempts from the outside world;
- the conclusion that the IEDs had been the origin of the first explosions was not supported by the hostages ’ statements and the state of the gymnasium;
- after the first explosions the servicemen of the army and FSB had employed heavy indiscriminate weapons including a tank gun, APC machine-guns, flame-throwers and grenade-launchers;
- the OH had not made the saving of hostages its primary aim and had authorised the use of heavy weapons during the storming;
- the firefighters ’ intervention had been significantly delayed, entailing additional victims in the gymnasium.
9. Criminal proceedings against police officers
354. In parallel to the proceedings in criminal case no. 20/849 and that concerning the actions of Mr Kulayev, two additional criminal investigations were conducted against police officers on charges of professional negligence.
(a) Criminal proceedings against the servicemen of the Pravoberezhny ROVD
355. On 20 September 2004 the Deputy General Prosecutor Mr Kolesnikov ordered the opening of a separate criminal investigation for negligence on the part the head of the Pravoberezhny ROVD, Mr Aydarov, his deputy on issues of population security, Mr Murtazov, and the ROVD ’ s chief of staff, Mr Dryayev. This criminal case was assigned number 20/852.
356. The police officers were charged with negligence entailing grave consequences and the death of two or more persons under section 293-2 and 293 ‑ 3 of the Penal Code. They were accused of having failed to properly organise an anti-terrorist defence and to prevent terrorist attacks in August 2004, despite the heightened terrorist threat and the existence of relevant telexes and orders of the North Ossetian Ministry of the Interior.
357. Over 180 persons were granted the status of victim in the proceedings. Although no procedural documents have been submitted, it appears from the cassation appeal by the victims that only those whose relatives had died were granted victim status in the proceedings, while other hostages had been refused this status.
358. On 20 March 2006 the Pravoberezhny District Court of North Ossetia started hearing the case. The applicants submitted four volumes of trial records, comprising about 1,500 pages and covering sixty-nine court sessions.
359. On 29 May 2007 the court terminated the criminal proceedings against the three officials, having applied to them the provisions of the Amnesty Act of 22 September 2006. The officers agreed to the application of the Amnesty Act, which absolved them from criminal responsibility for the acts committed during the period covered by it (see paragraph 437 below). The prosecutor ’ s office supported the application of the amnesty, while the victims objected. The victims present in the courtroom, outraged by the verdict, ransacked the premises.
360. On 5-8 June 2007 seventy-five victims appealed against this decision. They challenged the applicability of the Amnesty Act to the circumstances of the case at issue and, in particular, noted that the counter ‑ terrorism operation in Beslan had started after the commission of the crime in question. They also complained that the court had refused to consider civil claims at the same time, that many other hostages and relatives of injured persons had been refused the status of victim in the proceedings, that one volume of the criminal investigation file (no. 43) had been declared secret by the trial court and thus the victims were denied access to it, that a number of material witnesses had not been called, and that the trial court had refused to take into account additional evidence such as the report of the North Ossetian Parliament about the investigation into the terrorist act.
361. On 2 August 2007 the Supreme Court of North Ossetia at last instance upheld the judgment of 29 May 2007. It found the victims ’ allegations about procedural deficiencies to be irrelevant to the conclusion and confirmed the applicability of the Amnesty Act.
362. The victims appealed against the above decisions through the supervisory review procedure, but to no avail.
(b) Criminal proceedings against the servicemen of the Malgobekskiy ROVD
363. On 7 October 2004 a separate criminal investigation was opened in respect of the head of the Malgobekskiy ROVD, Mr Yevloyev, and his deputy, Mr Kotiyev, for negligence entailing grave consequences (section 293 ‑ 2 and 293-3 of the Penal Code). It appears that at least about one hundred former hostages or their relatives were granted victim status in these proceedings.
364. The applicants submitted various documents related to this trial, including about 200 pages of the trial court records, the victims ’ corrections to these records, copies of their complaints and other documents. As shown by these documents, the officials of the Malgobek ROVD had been charged with failure to spot the terrorists who had gathered and trained in the district and had travelled on 1 September 2004 to North Ossetia. The investigation obtained a number of documents which contained sufficiently clear and precise information about the possible terrorist threat and the actions to be taken to counter it. In particular, on 22 August 2004 the Ingushetian Ministry of the Interior had issued order no. 611 concerning a terrorist threat to public security, putting all staff of the Ministry on heightened alert until further notice. This document instructed all heads of district departments of the interior, inter alia, to contact the local municipalities, hunters and forest workers, in order to keep track of movements of suspicious men, and to check all trucks and other vehicles capable of transporting illicit cargo, if necessary using service dogs. On 23 August 2004 Mr Yevloyev issued a corresponding order on measures to be taken in the Malgobek District.
365. On 25 August 2004 the Ingushetian Ministry of the Interior issued order no. 617 about security measures in schools and educational facilities. By this order the police were called to take special measures aimed at the protection of educational facilities against possible terrorist acts. On 28 August 2008 Mr Yevloyev issued a corresponding document for the Malgobek District.
366. On 31 August 2004 the Ingushetian Ministry of the Interior sent a directive to all district departments, citing operative information about a possible terrorist act in educational facilities on the opening of the academic year. Again, a number of urgent steps involving the local self-government and the schools administration were recommended.
367. The trial was conducted by the Supreme Court of Ingushetia in closed sessions in Nalchik, Kabardino-Balkaria. The defendants opted for jury trial. On 5 October 2007 the jury declared the defendants not guilty. On the same day the Supreme Court of Ingushetia fully acquitted the defendants and rejected the civil suits lodged by the victims within the same proceedings.
368. The victims appealed, and on 6 March 2008 the Supreme Court confirmed the validity of the judgment. The victims ’ subsequent appeals for supervisory review were futile.
10. Civil proceedings brought by the victims
(a) First group of claimants
369. In November 2007 a group of victims submitted a civil claim directed against the Ministry of the Interior, seeking to obtain compensation for the damage caused by the terrorist act. The victims referred to the judgment of the Pravoberezhny District Court of 29 May 2007 in respect of the officers of the Pravoberezhny ROVD of Beslan. They argued that the application of an Amnesty Act did not exclude the possibility of claiming damages in civil proceedings. Arguing that the Ministry of the Interior had failed to take steps to prevent the terrorist act, they sought financial compensation in respect of each family member who had died or had been a hostage.
370. The Pravoberezhny District Court, on several occasions, requested the applicants to supplement the claims. On 22 May 2008 the Pravoberezhny District Court ordered the case to be transferred to the Leninskiy District Court of Vladikavkaz, at the location of the North Ossetian Ministry of the Interior. On 26 September 2008 the Leninskiy District Court ordered the case to be transferred to the Zamoskvoretskiy District Court of Moscow, at the location of the Ministry of the Interior of Russia. On 21 October 2008 the North Ossetia Supreme Court, upon the applicants ’ appeal, quashed the District Court ’ s ruling and remitted the case to the Leninskiy District Court.
371. On 10 December 2008 the Leninskiy District Court of Vladikavkaz dismissed the applicants ’ civil action against the Ministry of the Interior. It explained that the Suppression of Terrorism Act, relied on by the claimants, did not provide for compensation for non-pecuniary damage by a State body which had participated in a counter-terrorism operation. As to the applicants ’ attempt to link the compensation claim to the decision not to prosecute the officers of the Pravoberezhny ROVD, the court dismissed it as addressed to another defendant.
372. On 24 February 2009 the North Ossetia Supreme Court rejected the applicants ’ appeal against the above decision. The applicants ’ subsequent attempts to obtain supervisory review of these decisions proved futile.
(b) Second group of claimants
373. In separate proceedings another group of victims attempted to sue both the Russian and the North Ossetian Ministry of the Interior for non ‑ pecuniary damage caused to them by the terrorist act. With similar reasoning, on 9 December 2009 the Leninskiy District Court of Vladikavkaz dismissed the claim. On 17 March 2009 the North Ossetia Supreme Court upheld this decision at last instance.
11. Report prepared by the North Ossetian Parliament
374. On 10 September 2004 the North Ossetian Parliament put together a Commission to examine and analyse the events in Beslan on 1 ‑ 3 September 2004. In its work the Commission relied on the available materials, including official documents, photographs, video footage and audio materials, press articles, witness statements and their own information sources. The Commission ’ s report was published on 29 November 2005. The report was forty-two pages long and contained chapters on the chronology of the terrorist act, facts and analysis of the events preceding the hostage-taking, the actions of the OH and various State agencies involved, examination of the reasons for the first explosions in the gymnasium, detailed information about the fighters involved in the crime and various statistical information relevant to the act. The report ended with recommendations to the authorities.
(a) Prevention of terrorist act
375. The Commission strongly criticised the local police and FSB branches in Ingushetia and North Ossetia. It expressed particular dismay at the fact that despite a “heightened security threat” the terrorist group had been able to gather and train unnoticed in the vicinity of a village and a major local road; as well as the group ’ s unhindered passage to the school in the centre of a town across the administrative border, which was supposed to be under special protection. The Commission argued that the police ’ s attention had been diverted to the presidential elections in Chechnya which had taken place on 29 August 2004 and following which no real attention had been paid to other security threats.
(b) The work and composition of the OH
376. Turning to the work of the OH, the report was highly critical of its composition and functioning. It concluded that the “first, so ‑ called ‘ republican ’ OH” had been created on 1 September 2004 at 10.30 a.m., in line with the Suppression of Terrorism Act and the preliminary plan dated 30 July 2004. It comprised eleven persons under Mr Dzasokhov ’ s command and included the heads of the North Ossetian FSB, Ministry of the Interior and other officials. In the presence of the OH members, Mr Roshal and a number of other public figures, Mr Dzasokohov announced that he was prepared to go to the school; however, the deputy Minister of the Interior of Russia, Mr Pankov, responded that in such case he would be authorised to arrest him. Mr Dzasokhov himself confirmed that he had been informed by senior officials in Moscow that he should not take “any steps which could lead to further complications of the operation aimed at liberation of the hostages”. This “republican” OH continued to consider possible strategies aimed at liberating the hostages throughout the crisis. They also considered the possibility of inviting Mr Maskhadov to negotiate.
377. In the meantime, in the afternoon of 1 September 2004 the President of Russia, pursuant to a secret order of the Russian Government (no. 1146-rs), determined the composition of the OH under the command of General ‑ Major V. Andreyev, the head of the North Ossetian FSB. This OH included the commander of the 58th army of the Ministry of Defence, General-Lieutenant V. Sobolev, the head of the North Ossetian “Emercom”, Mr Dzgoyev, the North Ossetian Education Minister, Mrs Levitskaya, the director of the Zashchita Centre for Disaster Medicine, Mr Goncharov, and the deputy head of the information programmes department of the Rossiya State TV company, Mr Vasilyev. The report criticised the composition of the OH, which had excluded not only Mr Dzasokhov – North Ossetia ’ s President – but also a number of other high-level officials from the Republic. It further noted that two deputy directors of the FSB who had arrived in Beslan – Mr Anisimov and Mr Pronichev – had not been officially designated to take on any tasks in the OH. This had led to a situation of a multitude of “leaderships”.
378. The report described the situation as follows:
“The striking disunity of the headquarters is further proved by their locations. The Beslan administration building saw the following distribution of bodies and officials.
In the left wing of the ground floor – FSB (Generals V. Andreyev and T. Kaloyev). In the office next to them – Mr Pronichev and Mr Anisimov. On the third floor, in the left wing were situated the Republic ’ s President, Mr Dzasokhov, Parliament ’ s speaker Mr Mamsurov, Representative plenipotentiary of Russia ’ s President in the Southern Federal Circuit, Mr V. Yakovlev, and a group of Duma deputies headed by Mr D. Rogozin. In the right wing of the third floor worked the commanders of the Alfa and Vympel special forces ’ units under the leadership of General Tikhonov.
However, the most closed and mysterious structure was situated in the southern wing of the ground floor of the [administration building], keeping its work secret from all members of the above-listed headquarters. In it worked persons who did not belong to any official headquarters structure: Mr Anisimov and Mr Pronichev, Mr Pankov, Mr Kaloyev and others.
Another mysterious structure was located on the second floor of the building, in the centre. This was a sort of ‘ ideological headquarters ’ where all information going public was verified and edited prior to publication. Most probably, the announcement of the figure of 354 hostages had been decided there. ...
In addition, the commander of the 58th army, Mr Sobolev, had set up his headquarters outside the administration building. Mr Dzgoyev, who, according to his own statement, had been “in reserve”, was also stationed outside the building; as was the North Ossetian Minister of the Interior. ...
The formal nature of Mr Andreyev ’ s appointment as OH commander is supported by well-known facts. The head of the North Ossetian FSB had left the headquarters on dozens of occasions and thus lost control over the situation: he talked to the Beslan citizens outside the OH, met with journalists, accompanied Mr Aushev to the school on 2 September and the “Emercom” group on 3 September. How could the General, on whose decisions the lives of hundreds of persons depended, behave in this way? This is either excluded or, to the contrary, quite possible, if real decisions for Mr Andreyev had been taken by his immediate superiors – Mr Pronichev, Mr Anisimov and, probably, the head of the North Caucasus department of the FSB, Mr Kaloyev.
There are reasons to believe that Mr Andreyev ’ s orders and directives were not formally recorded, that no meetings of the OH had taken place, and that everything was decided in oral form in the course of working discussions with various agencies. ...
One gets the impression that the OH under Mr Andreyev ’ s command oscillated between two extremes: on the one hand, without making public the terrorists ’ demands, it was searching (or pretending to search) for negotiators who would be able to participate in such talks; on the other hand it constantly announced the impossibility of a forced solution, while at the same time being obliged not simply to consider this option but to take steps in order to implement it. ...
By the end of the second day, not a single federal official who could at least partially discuss the terrorists ’ demands had contacted them with the aim of negotiating. Becoming more and more convinced that their demands were not being considered and that the topic of negotiations remained the hostages ’ supply with food and water, liberation of the infants and elderly, an ‘ escape corridor ’ to Chechnya and the like, the terrorists hardened the hostages ’ conditions. As to the terrorists ’ agreement to allow the evacuation of two dozen bodies from the school courtyard, it was probably caused by the fighters ’ wish to scare the population and to make the OH more flexible, since one could easily predict the impression on the relatives of an “Emercom” truck loaded with corpses.
Incomplete information about the development and content of the negotiations, and the lack of clarity about the videotape transmitted to the headquarters, leave many questions unanswered. ...
Without questioning the principle of non-compliance with the terrorists ’ demands, although the Suppression of Terrorism Act speaks about minimal concessions to the terrorists, it appears that it would have been much more reasonable if the federal authorities, to whom the terrorists ’ demands had been directed, had undertaken to implement it, rather than delegating this problem to the regional authorities or even a paediatrician. It is obvious that any promises of the regional authorities not supported by appropriate guarantees by the highest officials could not have inspired the fighters ’ confidence, and they could not have taken seriously the so called ‘ security corridor ’ .”
(c) The first explosions
379. The report argued that the first two explosions could not have come from the IEDs. The first explosion, according to the hostages ’ testimony, had occurred in the northern part of the gymnasium ’ s roofing space; it had destroyed part of the roof and created a mushroom-shaped smoke cloud above the explosion. The report argued that this could not have been the result of an IED explosion for a number of reasons: the terrorists had not mined the roof or the roofing space of the gymnasium, not a single electric cable had led there; a mine in the gymnasium could not have destroyed the ceiling and roof six metres above; there should have been several simultaneous explosions because they had been connected in a single chain; the mushroom-shaped cloud could not have risen within seconds to about 13 ‑ 15 metres above the roof from an IED explosion inside the gymnasium; the damage to the basketball hoop and the brick wall of the gymnasium bore evidence of the passage of an externally fired device. The second explosion, which had created a half-metre-wide opening in the brick wall under the window, had not been the result of an IED either, since the floorboards immediately near the hole had not been damaged; unlike the floorboards under the basketball hoop where the IED had later detonated.
380. The report stated that the video-recording of the events had captured not only the smoke cloud from the first explosion, but also the sounds of both explosions, leading to the conclusion that the shots had been fired from a grenade-launcher or a flame-thrower. The report considered that the nature of the destruction was consistent with this version. The choice of targets inside the gymnasium was determined by the presence there of the pedal ‑ holding fighter; since the sniper could not have reached him, the grenade had resolved this situation.
381. The report found that the third explosion most probably resulted from an IED being affected by spreading fire, following which the fire spread from the ceiling to the floor of the gymnasium.
382. The document concluded by saying that the exploration of the first explosions should have been carried out properly within the framework of the criminal investigation. The report deplored the hasty clearing of the site, which had been opened to the public on 5 September 2004 and referred to “hundreds of people who had found objects which should have been of interest to the investigation”. A number of items had apparently been collected at the rubbish dump where the debris had been taken on 4 September in trucks.
383. In a separate conclusion, the report stated that the active involvement of civilian volunteers immediately after the explosions had saved many hostages ’ lives. The evacuation had been carried out by those persons who had taken on “the functions of police, firemen and emergency workers”.
(d) The actions of rescue and security forces
384. The report evaluated the number of army and police forces (excluding the FSB) deployed within the security perimeter around the school at about 1,750 persons. Three security lines were judged to be of little effect and had basically fallen apart once the operation had started. Hundreds of civilians and dozens of private cars had circulated without hindrance through the lines; filtration groups, formed in advance out of servicemen of the police special forces (OMON) and the Pravoberezhny ROVD, had not stopped for identity check any of the volunteers who had helped to evacuate the hostages. The report remarked that many men had arrived from elsewhere in Ossetia and spent two days around the school; they were often unshaven, dirtied with blood and soot, and could not have been distinguished from terrorists.
385. The report then addressed the problem of ambulance and fire ‑ brigade access to the school, commenting that it was made difficult by the vehicles parked in the adjacent streets and which had not been towed away. The first fire vehicle which arrived at the school at about 2 p.m. had not carried a full load of water in its cistern. Other fire brigades which arrived even later had allowed civilian volunteers to operate the water hoses.
386. The report found it established that on 3 September between 2 p.m. and 2.30 p.m. a tank with hull number 328, stationed behind the railway line, had fired several times at the canteen and kitchen with non-explosive warheads; around 4.30 p.m. tank with hull number 325 in Kominterna Street had fired from a close distance at the canteen, at the area immediately above the entrance to the cellar. The Commission ’ s members could not agree that the use of the tank to fire at the canteen before 5 p.m. had been justified in view of the probable presence of the last group of hostages with the terrorists. The Commission had entered the cellar and found it entirely intact and bearing no traces of the terrorists ’ alleged stay there. No complete information could be obtained about the use of tanks, helicopters, flame ‑ throwers or other heavy weapons.
387. The document separately noted the multitude of responsibility lines within the various agencies involved. Thus, according to the Commission ’ s information, the commander of the 58th army had regularly reported to the Chief of Staff of the Ministry of Defence in Moscow and had obtained directions from him in return. The Ministry of the Interior had commanded the largest contingent in Beslan and it had initially followed the orders of its own headquarters based in the administration building; later it followed the directions issued by the FSB.
388. Turning to the role of the FSB, the report stated the following:
“The Russian FSB has remained the most closed structure in terms of the Commission ’ s efforts to obtain information in order to find out about its actions on 1 ‑ 3 September 2004. Therefore it is very difficult to accept, without further verification, the statement that, according to the operative groups of the Special Services Centre, by 6 p.m. there remained no living hostages with the terrorists (in the classes, cellar and roofing space).”
(e) The fighters ’ identities
389. The report devoted some attention to the number of fighters and their identities. It noted discrepancies in the names and number of identified and non-identified terrorists in the documents issued by the prosecutor ’ s office in relation to the investigation in criminal case no. 20/849. Relying on the information provided by the General Prosecutor ’ s Office, the report listed 38 names or aliases; of them 22 persons (including Mr N. Kulayev) were identified by their full name, date of birth, ethnic origin and place of residence, and 14 persons were identified provisionally. In the list of 38 persons, at least nine had previously been detained by the law-enforcement authorities; some of them had been released for unknown reasons. Thus, according to the report, Mr Iliyev had been detained in 2003 in Ingushetia on charges of illegal handling of weapons and ammunitions, but the case had been closed two months later; Mr Khanpash Kulayev had been sentenced to nine years in prison in 2001; Mr Shebikhanov had been charged with attacking a military convoy in August 2003 and released by jury in July 2004; Mr Tarshkhoyev had been convicted at least three times and given suspended sentences for illegal handling of arms and theft, most recently in March 2001; Mr Khochubarov (“ Polkovnik ”) had been on trial for illegal handling of arms; Mr Khodov had been wanted for a number of serious crimes including terrorist acts and had been detained in 2002 but released. Most other identified terrorists were known to the law ‑ enforcement authorities, who had retained their fingerprints, on the basis of which their bodies were identified. Many were on wanted lists for various crimes.
390. Some persons initially announced by the General Prosecutor ’ s Office as identified bodies in Beslan had later been killed in other places. Thus, Mr Gorchkhanov ’ death had first been announced in Beslan; in October 2005 his name was again announced by the Deputy General Prosecutor Mr Shepel among the organisers of the attack at Nalchik, Kabardino ‑ Balkaria, who had been killed. Mr Kodzoyev was first identified among the terrorists in Beslan and apparently had a telephone conversation with his wife, whom the authorities had brought to the school on 2 September; then his death had been announced in an anti-terrorist operation in Ingushetia in April 2005. The report deplored the lack of clarity in such an important aspect of the investigation and called the prosecutor ’ s office to issue clear and exhaustive information in this regard.
(f) Statistical information
391. The report contained a table, composed on the basis of information provided by the General Prosecutor ’ s Office, with various figures related to the total number of hostages, the number of killed and injured, persons liberated as a result of the anti-terrorist operation, etc. In this respect the Commission noted that the causes of death for 331 persons were distributed as follows: 20 persons had died in hospital; 51 persons (including 21 men killed on 1 September) had died of gunshot wounds; 150 had died of shell wounds; 10 of fire injuries; and 4 of blunt injuries. In 116 cases the cause of death could not be established owing to extensive fire damage. 83 bodies were identified through DNA matching; six cases called for exhumation and a DNA test; these procedures lasted until April 2005. The Commission concluded that the real reasons for many victims ’ deaths and injuries had not been established: the bullets and shell fragments had not been extracted from the bodies; no ballistics reports had been made to analyse the bullets and cartridges found at the scene. Thus, concluded the report, the real reasons for many victims ’ deaths had not been established.
(g) The report ’ s publication, reactions and further information
392. The Commission ’ s report was made public in December 2005. Mr Torshin stated that the report posed more questions than it gave answers; its findings and conclusions were not mentioned in the report prepared by the Federal Assembly (see part L below).
393. In 2007 the report was published as a separate book. By that time the authors had prepared additional statistical data. It included a complete list of hostages, with indications of injuries and dates of death, and other important findings. Many figures arrived at by the authors of the report differed from those used by the prosecutor ’ s office.
394. In particular, the authors stated that 1,116 persons (not 1,127 as indicated by the General Prosecutor ’ s Office) had been taken hostage; three persons had escaped on 1 September; 17 (not 21) men had been shot dead on 1 September; 24 (not 26) persons had been led out by Mr Aushev on 2 September. By 1 p.m. on 1 September 1,072 hostages remained alive in the school; 284 had been killed during the storming; ten died in hospital within two months and three more by 2006. 10 special forces servicemen were killed, two servicemen of “Emercom” and seven civilians: three were killed on 1 September by the assailants and four more during the storming, while evacuating the hostages. 35 civilians were wounded, the majority of them while evacuating the hostages from the school.
395. The publication gave a list of the servicemen of the FSB, the Ministry of the Interior and “Emercom” who had been killed (12 persons) and injured (52) during the terrorist act.
396. Turning to the causes of death, the publication stated that the Commission had examined over 300 orders for forensic expert reports issued by the prosecutor ’ s office on 3-4 September 2004 and the forensic reports issued by the North Ossetia State Forensic Bureau ( Бюро Судебно ‑ медицинской экспертизы, БСМЭ ). The document recalled that the investigation ’ s orders had suggested that the experts should examine the bodies externally, and carry out a full forensic report only “where necessary”. Only a few cases had thus entailed a full forensic examination; one third of the expert reports had concluded that “the cause of death could not be established”. In total the document stated that signs of burns were noted on 159 bodies out of 333, although for most cases the experts had noted that the carbonisation had most probably occurred post mortem. They also noted the disproportionally high number of victims who had died of gunshot wounds: 44 civilians, including 11 women and 9 children; while only 7 servicemen out of 11 had died of gunshot wounds.
397. Finally, the report noted that nine (and not six as indicated in the official documents) exhumations for additional verification of remains had been carried out. The report listed these cases.
12. The Federal Assembly report
(a) Report prepared by the Commission chaired by Mr Torshin
398. On 20 and 22 September 2004 both chambers of the Federal Assembly (the Russian Parliament) – State Duma and Federation Council – decided to create a joint commission in order to investigate the reasons for and circumstances of the terrorist act in Beslan. About twenty members of both chambers were appointed to the Commission, chaired by Mr Aleksandr Torshin, Deputy Speaker of the Federation Council. The Commission undertook a number of investigative measures, including several visits to Beslan as well as to Ingushetia, Chechnya and Rostov-on-Don.
399. The Commission questioned 45 high-ranking officials, including the Prime Minister, several federal ministers, Mr Aslakhanov, aide to Russia ’ s President; Mr Patrushev, Mr Pronichev and Mr Anisimov - the head of the FSB and his two deputies; General Tikhonov, head of the FSB Special Services Centre; several high-ranking officials from the General Prosecutor ’ s Office, including four deputies to the General Prosecutor; North Ossetian and Ingushetian officials, including Mr Dzasokhov and Mr Zyazikov; and persons who had negotiated with the terrorists: Mr Aushev, Mr Gutseriyev and Mr Roshal. The Commission received several hundred telephone calls to a special line and letters.
400. On 22 December 2006 the Commission ’ s report was presented to the Federal Assembly. The written report ran to 240 pages. It included a chronology of the terrorist act, chapters on the actions of the State authorities, a historical and political analysis of terrorism in the Northern Caucasus and a number of legislative recommendations. Two Commission members refused to sign it; one of them, Mr Savelyev, prepared an alternative report (see below).
401. The report ’ s main conclusions were principally in line with the conclusions of the criminal investigations. In particular, the report noted the following:
- Prior to the terrorist act, a number of security measures had not been taken by the local administration and police forces in North Ossetia and Ingushetia. The conduct of police in the Malgobek district was described as professional negligence and the actions of police in Ingushetia in general – as “keeping aloof” from following orders from the Ministry of the Interior (pages 107-108 of the report). The police force of North Ossetia failed to comply with certain precautionary measures and this had facilitated the terrorists ’ attack at the school.
- The actions of the federal authorities were adequate and correct.
- The OH had been correct in its actions aimed at negotiations with the terrorists, however a number of weak points had been identified in the composition of the OH, the conducting of its work, and the informing of the population about the developments (pp. 84, 94).
- The first explosions in the gymnasium were caused by two IEDs (p. 87).
- The use of flame-throwers and the tank gun against the school had been authorised by the head of the FSB Special Services Centre after 6 p.m. on 3 September and had not caused any harm to the hostages, who by that time had been evacuated (p. 89).
(b) Separate report by Mr Yuriy Savelyev
(i) The report
402. Mr Yuriy Savelyev, a deputy of the State Duma elected in 2003 from the Rodina party, was a member of the Parliamentary Commission headed by Mr Torshin. Mr Savelyev is a rocket scientist by profession, holds a doctorate in technical sciences, was the director of the St Petersburg Military Mechanics Institute, and is the author of numerous scientific works and training manuals on rocket construction, ballistics, thermodynamics and pertinent fields.
403. In the summer of 2006 Mr Savelyev announced a serious disagreement with the report drafted by the Commission. Later that year he published a separate report, based on the examination of the materials to which he had access as a Commission member. The report, entitled “Beslan: The Hostages ’ Truth” (“ Беслан: Правда Заложников ”), contained seven parts:
- Part 1. The first explosions in the gymnasium, 259 pages with 58 photos.
- Part 2. The origin and development of the fire in the gymnasium, 133 pages with 43 photos.
- Part 3. Use of portable fire-launchers and grenade ‑ launchers, 97 pages with 49 photos.
- Part 4. Use of T-72 tanks and APC-80 military vehicles, 140 pages with 52 photos.
- Part 5. Women in the terrorist group, 69 pages with 12 photos;
- Part 6. Losses among hostages sustained outside the gymnasium, 145 pages with 54 photos.
- Part 7. The circumstances of the seizure of hostages, 296 pages with 21 photos.
404. This report was submitted to the Court, its entire content being published on the Internet site pravdabeslana.ru.
405. Although based on the same factual materials, the report also relied on the author ’ s own technical expertise and drastically differed in its presentation and conclusions from the document signed by the majority of the Parliamentary Commission and thus from the conclusions reached by that time by the criminal investigation.
406. To sum up the most important distinctions, in Part 1 Mr Savelyev concluded that the first explosion had resulted from the detonation in the attics over the north-eastern part of the gymnasium of a thermobaric grenade launched by a portable grenade-launcher from the roof of house no. 37 in Shkolny Lane. The terrorist holding the “dead man ’ s switch” right under the detonation had been killed instantly. The explosion created a zone of powerful smouldering combustion in the wood and insulation material of the attics, which later turned into fire. The second explosion occurred twenty-two seconds later under the first window of the northern side of the gymnasium, destroying the brick wall and throwing the bricks outside, while the window pane situated immediately above the opening had remained intact. Mr Savelyev concluded that the nature and extent of destruction in this particular area ruled out the idea that it came from an IED inside the gymnasium. He argued that the explosion had been caused from the outside, probably by a portable anti-tank missile fired from the roof of house no. 41 in Shkolny Lane. The projectile had entered the gymnasium from the opposite window and created the opening in the wall.
407. Mr Savelyev further argued in Part 2 that the fire which had been triggered by the first explosion in the attics had continued to spread unabated until 3.20 p.m. The broken windows of the gymnasium and the opening torn in the roof by the explosion had created a powerful draught, feeding the smouldering insulation with oxygen. The fire raged in the attics with sufficient force to destroy the wooden beams holding the roof slates, which finally collapsed by 3.20 p.m., burying under the burning fragments those hostages who were unable to leave. The firemen intervened after 3.20 p.m., when the fire from the collapsed roof had spread to the floor and walls of the gymnasium.
408. Part 3 of the report included detailed information and analysis of the type and number of arms and ammunitions used between 1 and 4 September 2004. This information was made available to the Commission, whilst the victims had no direct access to it. According to the report, volume 1 of the criminal investigation file no. 20/849 contained a “joint record of use of arms and ammunition during military operation” (“ cводный акт об израсходовании боеприпасов при выполнении соответствующей боевой задачи ”) no. 27 of 10 September 2004. Pursuant to this record, various military units had used over 9,000 cartridges for automatic weapons (5.45 mm PS, 7.62 mm LPS, 5.45 mm T), 10 disposable anti-tank rocket launchers (RPG-26), 18 disposable propelled anti-tank grenade-launchers (PG-7VL), 8 high fragmentation warheads [for tank gun] calibre 125 millimetres (125 mm OF) and 90 smoke grenades (81 mm ZD6) (see paragraphs 217 and 219 above).
409. The report further noted that on 20 September 2004 the members of the Parliamentary Commission had discovered in the attics of house no. 39 in Shkolny Lane six empty tubes from RPO-A flame-throwers and three empty tubes of disposable RPG-26 anti-tank rocket launchers, the serial numbers of which had been noted by the Commission members in an appropriate record on 22 September 2004. These tubes were transmitted to the prosecutor ’ s team carrying out the criminal investigation. According to the report, volume 2 of criminal case file no. 20/849 contained a document dated 25 September 2004 and signed by Lieutenant-Colonel Vasilyev from military unit no. 77078 of the 58th army. This document stated that the FSB units had received from the military storage seven RPO-A flame-throwers and listed their serial numbers. After the operation two flame-throwers with the indicated numbers, plus one with a different serial number, had been returned to storage (see paragraph 219 above) At the same time, Mr Savelyev noted that the serial numbers of flame-throwers noted in the Commission ’ s record of 22 September 2004 and in the document issued by Lieutenant-Colonel Vasilyev on 25 September 2004 differed. He referred to other contradictory evidence given by military servicemen and the statements by the Deputy General Prosecutor in relation to the use of flame-throwers and concluded that no less than nine disposable RPO-A flame-throwers had been used by the special forces. Mr Savelyev also referred to the witness statements of one serviceman of the FSB given to the investigation and contained in volume 5 p. 38 of file no. 20/849, according to whom the RPG-26 and RPA had been used during the storming (in daytime) (see paragraph 220 above) and the statement of FSB General Tikhonov to the Commission made on 28 October 2004 that the RPG and RPO-A had been used at 3 p.m.
410. Mr Savelyev listed detailed characteristics of each type of projectile in question. According to his conclusions, after the first two explosions at 1.03 p.m., the school building was exposed to the following assault: between 1.30 p.m. and 2 p.m. the windows of the first floor of the southern wing were fired at with portable grenade launchers, probably types RPG ‑ 26 and RShG ‑ 2; between 2.50 p.m. and 3.05 p.m. flame-throwers (RPO-A) were used upon the roof of the main building, RPG-26 and RShG-2 grenade-launchers were fired at the south-facing windows of the first floor of the southern wing and a RPO-A flame-thrower upon the roof of the southern wing at the point where it joined the main building. He also argued that at least one thermo-baric explosive grenade had been launched from a MI ‑ 24 helicopter at the target in the central area of the main building ’ s roof above the Ossetian language class, at the position of a terrorist sniper which could not have been suppressed by any other means.
411. Part 4 concentrated on the use of tanks and APCs during the storming. Having analysed numerous witness statements and material evidence, the report drew the following conclusions: three tanks with hull numbers 320, 325 and 328 took positions around the school. Tanks with hull numbers 325 and 328 were positioned near house no. 101 on Kominterna Street. These two tanks repeatedly fired at the school building at 2.25 p.m. and then between 3 p.m. and 4 p.m. on 3 September. Seven additional shots were fired from tank with hull number 325 at the canteen windows and the wall and stairwell of the southern wing.
412. Part 5 of the report was devoted to the analysis of the witness statements and other evidence about the number of women in the terrorist group. Mr Savelyev concluded that the group had counted five women: four suicide bombers who changed places with each other so that two of them remained at any one time in the gymnasium, while the fifth woman was probably a sniper and remained on the top floor of the school.
413. Part 6 of the report examined the situation of the hostages whom the terrorists had forced to move from the gymnasium to the southern wing after the first explosions. From the photographs and video footage of the events and the witness ’ accounts, Mr Savelyev construed that between 1.05 p.m. and 2.20 p.m. the terrorists had evacuated about 300 persons to the southern wing. There the hostages were distributed in more or less equal numbers between the premises of the canteen and kitchen on the ground floor and the main meeting room on the first floor. The southern wing became the area of fierce fighting between the terrorists and the assault troops; eight out of ten FSB elite officers died there. The presence of hostages in that wing was not taken into account by the assaulting troops, who had employed indiscriminate weapons. Mr Savelyev noted the absence of a detailed description of the location of the hostages ’ bodies, whereas this could have allowed the circumstances of the hostages ’ deaths in the southern wing to be established. He argued that the bodies in the gymnasium had been exposed to fire; the number of persons who had been found dead on the premises adjacent to the gymnasium was known. He thus estimated the number of hostages who had lost their lives during the fighting in the southern wing at about 110 persons.
414. To Part 6 was appended a “study case” – a document prepared by several authors including the head of the North Ossetian State Forensic Bureau, summarising their experience in the Beslan terrorist act and the completion of forensic reports. The document listed various problems related to the collection, transportation and storage of remains, the organisation of the identification process and the compiling of forensic reports. In view of the large number of remains, many with extensive injuries and difficult to identify, together with the presence of numerous aggrieved relatives, on 4 September the prosecutor ’ s office had taken the decision first to permit identification of the remains by the relatives and then to carry out forensic examinations. As a result, there were a number of incorrect identifications which later had to be corrected. Furthermore, in view of these constraints most identified bodies were subjected only to an external examination. The exact cause of death had been established in 213 cases: of those, gunshot wounds in 51 cases (15.5 %), shell wounds in 148 cases (45%), burns in 10 cases (3%), and blunt injuries in 4 cases (1.2%). The cause of death had not been established in 116 cases (35.6%) due to extensive injuries by fire. The document concluded by giving a number of recommendations for the future, including establishment of a single information centre and careful compliance with various procedural stages, with persons responsible for each stage.
415. Part 7 of the report covered the first moments of the school seizure on 1 September. On the basis of witness accounts, Mr Savelyev construed that a small group of terrorists – between five and seven persons – had been present in the crowd by 9 a.m. Upon the signal of one of them, who started to shoot into the air, another group of ten to twelve persons entered the school building from Shkolny Lane and other sides. Some of them ran to the first floor while others broke windows and doors on the ground floor so that the hostages could enter the building. At this point the GAZ-66 vehicle stationed in Kominterna Street near the school fence approached the main school entrance and up to fifteen persons descended from it. This vehicle left after the fighters had descended. Finally, the second GAZ-66 vehicle with a different registration plate entered from Lermontovskaya Street to Kominterna at high speed, raising a large column of dust noted by many witnesses. Over twenty fighters, including four women, descended from it and ran towards the school; the vehicle then broke the school gates and stopped in the courtyard. The overall number of terrorists in the school was between 56 and 78.
(ii) Official and public reaction
416. In response to Mr Savelyev ’ s allegations about the origins of the first explosions and the use of indiscriminate weapons upon the gymnasium, the Prosecutor ’ s Office commissioned expert reports. In 2007 and 2008 the experts of the State-owned scientific and production company Bazalt and the Ministry of Defence Central Research and Testing Institute, named after Karbyshev, produced two criminalist expert report on the explosions (see paragraphs 224 and 228 above). Its results were not published, but were cited by several Internet sites and by Mr Savelyev. The reports ruled out the idea that the first explosions came from externally delivered sources such as thermo-baric grenades or projectiles.
417. In March 2008 Mr Savelyev published an extensive interview in the Novaya Gazeta, illustrated by diagrams of the gymnasium that indicated four different places and origins of the first explosions in the gymnasium: three from expert reports commissioned by the investigation and his own. He argued that the results of the three experts ’ reports differed to such an extent that it was impossible to reconcile them. He further argued that the conclusions about the reasons and yield of the explosions contained in the latest expert report were inconsistent with the witness statements and material evidence. Finally, he drew attention to the fact that the remaining parts of his report concerning issues other than the first explosions had not been addressed by the investigation.
13. Other relevant developments
(a) Political consequences
418. In September 2004 the entire North Ossetian government was dismissed by Mr Dzasokhov.
419. On 6 September 2004 Russia ’ s President Putin appeared in a televised address to the nation. He referred to the events in Beslan as an “attack on Russia”, called for mobilisation of society and promised a series of radical measures to improve security, both internally and at an international level.
420. On 13 September 2004 the President signed a decree aimed at setting up a more efficient system of anti-terrorist measures in the North Caucasus region. On the same day, at a joint meeting of the Government of Russia and heads of Russia ’ s regions, President Putin announced the following measures aimed at achieving greater national unity and better representation of the population ’ s concerns: cancellation of direct elections of the regional heads of the executive, who would be elected by the regional parliaments upon the Russian President ’ s nomination; the setting up of a purely proportional system of parliamentary elections; establishment of a consultative body comprised of representatives of non-governmental organisations – a Civic Chamber (“ Общественная Палата ”); reinstatement of a special federal ministry charged with inter-ethnic relationships; implementation of a plan for social and economic development of the North Caucasus region, and some other steps. By the end of 2004 these administrative and legal measures had largely been implemented.
(b) Humanitarian relief
421. Pursuant to Russian Government order no. 1338-r of 11 September 2004, the victims of the terrorist act were awarded the following compensation: 100,000 roubles (RUB) (approximately 1,520 euros (EUR)) for each person who had been killed, RUB 50,000 for each person who had received serious and medium gravity injuries and RUB 25,000 for each person with minor injuries. Persons who had been among the hostages but escaped unharmed received RUB 15,000 each. In addition, the families received RUB 18,000 for each deceased person in order to cover funeral expenses.
422. The President of North Ossetia ordered, on 6 and 15 September 2004 (orders 58-rpa and 62-rp), the payment of RUB 25,000 in funeral costs for each person who had died, RUB 100,000 for each deceased, RUB 50,000 to each person who had suffered serious and medium injuries and RUB 25,000 to each of the other hostages.
423. The terrorist act in Beslan triggered a major humanitarian response, resulting in collections of significant sums of money.
424. Pursuant to Ossetian Government decree no. 240 of 17 November 2004, the North Ossetian Ministry of labour and social development distributed the funds paid into their account devoted to humanitarian relief to the victims in the following manner: RUB 1,000,000 for each person who had died; persons who had received grave injuries were granted RUB 700,000; persons with medium gravity injuries received RUB 500,000 each; persons who had minor injuries or were among the hostages received RUB 350,000 each. In addition, each child who had lost their parents received RUB 350,000 and other persons who had been briefly detained but were not among hostages, received RUB 75,000 each. Similar sums were allocated to the families and victims among the servicemen of the FSB and “Emercom” who had been killed or wounded.
425. In 2005 a memorial complex “City of Angels” was opened at the Beslan town cemetery. It comprised a single monument to the victims, individual burials of over 220 persons and a monument to the FSB servicemen who had died on 3 September 2004.
426. In 2004-2008 there followed a number of other measures by the Russian and Ossetian Governments, aimed at covering additional medical and social costs for the victims, as well as financing other projects in Beslan. Thus, in November 2004 the Russian Government Decree no. 1507 ‑ r provided for the construction of two new kindergartens and schools in Beslan, a multi ‑ functional medical centre, an institute of social support to children and families and a number of housing projects aimed specifically at the victims ’ families. Most of these projects, financed from the federal budget, were completed by 2010.
427. One sports boarding school opened in Beslan was constructed with the participation of Greece and was named after Mr Ivan Kanidi (also spelled Yannis Kannidis), a sports teacher from school no. 1. Mr Kanidi, a Greek and Russian national, was 74 years old at the time and refused the terrorists ’ offer to leave the school. After the explosions in the gymnasium on 3 September he struggled with an armed fighter while trying to rescue children and was killed. In December 2004 he was posthumously awarded a Golden Palm Order by the Greek Prime Minister.
(c) Media and public reactions, most important publications
428. During and after the Beslan terrorist act, numerous journalists from all over the world covered the events.
429. On 1-3 September 2004 a number of incidents occurred with journalists who had been in Beslan or were attempting to get there. Thus, on 2 September Mr Babitskiy, a correspondent of Radio Free Europe, was detained in a Moscow airport while boarding a plane to the Northern Caucasus; on the following day he was sentenced to fifteen days ’ detention for an administrative offence. On the same day, a journalist from the Al ‑ Jazeera TV company was arrested in the Mineralnye Vody airport in the Stavropol Region, on charges of possession of ammunition. Also on 2 September a well-known Russian journalist Anna Politkovskaya, who had written about the conflicts in the Northern Caucasus and who had acted as a negotiator during the “Nord-Ost” hostage crisis in Moscow in 2002, was severely poisoned in a plane travelling to the Rostov-on-Don airport. She fell into a coma and was treated over the following days in Rostov, and then in Moscow. A number of other Russian and foreign journalists were questioned, had their materials confiscated or were detained briefly while in Beslan. The editor-in-chief of the influential Russian daily Izvestia, Mr Raf Shakirov, was dismissed immediately after publishing explicit photos from the school on 4 September 2004.
430. In January 2005 the US network CBS in their programme 48 hours aired a film about the hostage-taking. In it, for the first time, was shown an extract filmed by the terrorists. The network alleged that the tape had been found by locals among rubble on the site and thus obtained by their journalist. The tape was made on 2 September 2004 inside the school and showed the fighters ’ leader, “ Polkovnik ”, about a dozen other terrorists in full military gear and the talks with Mr Aushev. It also showed the mothers with nursing babies being led out by Mr Aushev. At the last moment one baby girl (the youngest hostage aged six months) was handed to Mr Aushev by her mother who could not force herself to part with her two elder children (aged three and ten, only the three-year-old boy survived). The extract ended with the school door being closed and locked by the terrorists filming from inside. The extract was tagged by the operator “Fun Time ‑ 2/09/2004”.
431. Several large reports were produced by the journalists who had been in Beslan during the siege and by those who had investigated the tragedy afterwards. Notably, over the years the Moscow-based Novaya Gazeta and Moskovskiy Komsomolets ran a series of reports dedicated to the hostage-taking and the investigation; Der Spiegel published a large report in its December 2004 issue; The Esquire published a story entitled “The School” in March 2007.
432. A significant number of other TV productions, documentary films and books have covered the subject. The applicants in the present cases, in particular, have referred to the relevant chapter from Mr Rogozin ’ s book “Public Enemy”. An Internet site http://pravdabeslana.ru is dedicated to the tragedy and subsequent proceedings.
(d) Victims ’ organisations
433. The relatives and victims of the terrorist act have joined efforts, striving primarily to obtain a comprehensive investigation into the events of 1 ‑ 3 September 2004 and to determine the degree of the officials ’ responsibility.
434. In February 2005 the victims set up a non-governmental organisation Materi Beslana ( “ Beslan Mothers ” ). Today this organisation counts about 200 members – former hostages and relatives of the victims. It is headed by Mrs Dudiyeva.
435. In November 2005 several hundred victims set up another organisation, Golos Beslana ( “ The Voice of Beslan ” ), chaired by Mrs Ella Kesayeva. In November 2005 the NGO issued a public statement labelling the criminal investigation inefficient and fraudulent. It called anyone who could assist them with obtaining or gathering factual information about the events to do so. On 15 October 2009 the Pravoberezhny District Court of Vladikavkaz found that it had contained statements defined as “extremist” pursuant to The Suppression of Extremism Act (Federal Law no. 114-FZ of 25 July 2002) and put it on the federal list of extremist materials, making it an offence to diffuse it by any means.
436. These organisations have played an important role in collecting and publishing materials about the terrorist act in Beslan, advocating the rights of victims of terrorist acts in general, supporting victims in similar situations, and organising public gatherings and events. On two occasions – in September 2005 and in June 2011 – their representatives met with the Russian Presidents; they also regularly meet with local and federal officials and high-ranking international visitors.
B. Relevant domestic law and practice
The Amnesty Act of 22 September 2006 enacted by the State Duma
437. The Amnesty Act of 22 September 2006 was passed in respect of perpetrators of criminal offences committed during counter-terrorism operations within the territory of the Southern Federal Circuit. It applied to military servicemen, officers of the Ministry of the Interior, the penal system and other law-enforcement authorities, and covered the period from 15 December 1999 to 23 September 2006. It extended to criminal proceedings, whether completed or pending.

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5.The applicant, Mr Yuriy Vitaliyovych Lutsenko, is a Ukrainian national who was born in 1964.
A.Background of the case
6.The applicant was the Minister of the Interior. He occupied this post from 2005 to 2006 and from 18December 2007 to 11March 2010. Since 27August 2014 he has been the leader of the Bloc of Petro Poroshenko party.
7.On 2 November 2010 the General Prosecutor’s Office (hereinafter “the GPO”) instituted criminal proceedings against the applicant and another individual, Mr P., on suspicion of abuse of office under Article 191 §3 of the Criminal Code. On 5 November 2010 the applicant was formally charged. On the same day he gave a written obligation not to abscond.
8.On 11 December 2010 the GPO instituted another criminal case against the applicant for exceeding his official powers under Article 365 § 3 of the Criminal Code, on the ground that he had arranged for the allocation of a one-room apartment to his driver, Mr P.
9.The two criminal cases were joined together.
10.On 13 December 2010 the GPO completed the investigation in the case and formally charged the applicant with both offences, having reclassified his actions specified in the first charge under Article 191 § 5 of the Criminal Code (misappropriation, embezzlement, and conversion of property by malfeasance).
11.On 26 December 2010 the applicant was arrested and detained in the Security Service Detention Centre (Слідчий Ізолятор Служби Безпеки України).
12.On 27 December 2010 the Pechersk District Court (Печерський районний суд) (hereinafter “the Pechersk Court”) ordered that the preventive measure in respect of the applicant be changed from a written obligation not to abscond to remand in custody.
13.On 28 December 2010 the applicant was transferred to Kyiv Pre-Trial Detention Centre no. 13 (Київський Слідчий Ізолятор №13) (hereinafter “the SIZO”).
14.On 17 May 2011 the GPO submitted the applicant’s criminal case to the Pechersk Court which, on 27 February 2012, rendered a judgment sentencing the applicant to four years’ imprisonment. The case received extensive attention in both national and international media which were present at court hearings. Photographs depicting the applicant behind metal bars were published soon after the court hearings.
15.On 7 March 2012 the applicant appealed, seeking the quashing of the first-instance judgment on the ground of lack of guilt.
16.On 16 May 2012 the Kyiv Court of Appeal (Апеляційний суд міста Києва) upheld the judgment of the Pechersk Court.
17.On 31 August 2012 the applicant was transferred to Mena colony in Chernihiv Region to serve his prison sentence.
18.In a judgment of 3 April 2013 the Higher Specialised Court of Ukraine for civil and criminal cases (Вищий спеціалізований суд України з розгляду цивільних і кримінальних справ) upheld the applicant’s prison sentence slightly reducing the amount of compensation that he had to pay.
19.On 7 April 2013 the former President of Ukraine issued a decree of pardon in respect of a number of individuals, including the applicant, who was released the same day.
B.The applicant’s health and the medical care provided to him
20.Prior to his arrest the applicant was diagnosed with diabetes mellitus type 2 and chronic gastritis and pancreatitis.
21.Upon his admission to the SIZO on 28December 2010, the applicant was examined by the head of the medical unit and a duty doctor. He underwent clinical, laboratory and X-ray examinations. On the basis of those examinations and the applicant’s anamnesis, he was diagnosed with symptomatic hypertension and it was recommended that his arterial pressure be constantly monitored. According to the applicant, the prison doctors did not pay attention to his chronic diseases which were mentioned in the medical report submitted to the Pechersk District Court and indicated orally by him on a number of occasions.
22.According to the Government, during the period from December 2010 to April 2011 the applicant was under constant supervision by doctors of the SIZO medical unit who visited him on 29, 30 and 31 December 2010, 1-9, 17 and 24 January, 10, 18 and 25 February, 1, 10 and 20 March and on 1 April 2011. During this period, no complaints were received from him and his state of health remained satisfactory. Doctors regularly measured his blood pressure and pulse rate and carried out his general examination. The applicant denied that he had not complained about problems connected with his state of health. According to him, during the three first months of his detention, he lost more than 20 kilograms, his low-grade fever and spastic stomach pain was constant.
23.Following the applicant’s complaints about the deterioration of his health, on 24February 2011, a private medical laboratory took blood samples from him for analysis. Inflammation was diagnosed as a result. The doctor who arrived at that conclusion presumed that it was probably a mixed viral and bacterial infection. A provisional diagnosis of rheumatoid arthritis was also made. For more specific diagnoses, further specialist examinations were required.
24.On 9 March 2011 the applicant was diagnosed with arthritis by SIZO doctors.
25.On 15 March 2011 a new blood analysis showed some negative changes in the applicant’s immune system. His requests for examination by the cardiologist/rheumatologist who issued the above conclusion were without success.
26.According to the Government, on 6 and 13 April 2011 the applicant was examined by the head of the SIZO medical unit. He complained of pain in the joints. He was diagnosed with symptomatic hypertension and generalised osteoarthritis, and blood pressure monitoring was recommended.
27.On 21 April 2011 the applicant went on hunger strike in protest at his continued pre-trial detention.
28.According to the Government, between 22 April and 10 May 2011 the applicant was under daily supervision by doctors of the SIZO medical unit. From time to time he complained of dizziness and general weakness. His state of health remained satisfactory during this period.
29.On 29 April 2011 the SIZO administration placed him in a solitary-confinement cell and demonstrated forced-feeding facilities (such as handcuffs, a mouth widener and a rubber tube). Those were apparently never applied to him.
30.According to the Government, on the same day, the applicant was examined by the head of the SIZO medical unit. He complained of heart pain, which he said was worse when he made turning movements. The applicant was diagnosed with symptomatic hypertension, generalised osteoarthritis, and myositis of the left major pectoral muscle. At the same time, he informed the doctor that he had eaten no food for several days and had only had tea without sugar and coffee with sugar. An analysis of the applicant’s urine was carried out. There was a one-plus reaction for acetone. General monitoring of the applicant’s state of health, of the acetone level in his urine, and of his blood pressure was recommended.
On 1 May 2011 the applicant was examined by a panel of doctors from the State Prison Service of Ukraine (Державна пенітенціарна служба України) (hereinafter “the SPS”). He was prescribed an “anti-starvation food mixture” (semolina or oatmeal, butter, sugar, milk, eggs, boiled meat, salt, and ascorbic acid, with a total caloric content of 1,638.5 kcal) and the following medication: NaCL solution, vitamins Bl and B6, and Riboxin solution. On the same date a general blood analysis, a blood sugar-level test and a urine acetone test were carried out for the applicant - (a “three-plus” reaction was obtained). On the same date the applicant consumed 500 ml of “anti-starvation food mixture”.
On 2 May 2011 the SPS medical panel found his general state of health stable and held that positive progress was being made in overcoming dizziness and general weakness. A urine test for acetone was carried out for the applicant (a “three-plus” reaction was obtained).
On 3 May 2011, upon another examination by the SPS medical panel, a urine acetone test was carried out for the applicant. A “three-plus” reaction was obtained. On the same date the applicant consumed 400 ml of “anti-starvation food mixture”. It was recommended that he undergo further biochemical and general blood tests, a general urine analysis, a blood-sugar-level test and a urine acetone test, and also ultrasonic examinations of his abdominal cavity and kidneys. Injections of Reosorbilact solution and of glucose in solution were given to the applicant.
On 4 May 2011 the SPS medical panel saw the applicant again. He was found to have moderate diffuse changes in the liver, chronic cholecystitis and chronic pancreatitis. On the same date the applicant consumed 500 ml of “anti-starvation food mixture”. Injections of Reosorbilact solution and of glucose in solution were given to the applicant.
31.On 5 May 2011 the applicant’s wife asked the SIZO administration to carry out medical examinations of her husband in her presence. By that time, the applicant had lost about fourteen kilograms in weight. On the same day, according to the Government, the applicant was examined by the SPS medical panel. A general blood test, a blood-sugar-level test and a test of the urine for acetone were carried out at the Dila Laboratory. The test results were low-grade positive. The applicant was diagnosed with chronic cholecystitis and chronic pancreatitis. It was also found that the applicant’s state of health reflected his starvation. On the same date, the applicant refused to eat food or to undergo fluid-maintenance therapy to restore the balance of water, protein, and electrolytes in the body.
32.On 6 May 2011 the applicant was transferred to the SIZO medical unit. According to the Government, he was examined by a panel of doctors from civilian medical institutions. He was diagnosed with hypertension of the 1st degree, cardiac insufficiency, type 2 diabetes mellitus in a mild form at the compensation stage, chronic cholecystitis in unstable remission, chronic pancreatitis in unstable remission, osteoarthritis without exacerbation, disseminated osteochondrosis of the spine, and thoracic kyphosis. It was recommended that the applicant: (1) undergo an exercise electrocardiography (ECG) test and ultrasonic examination of the heart in order to exclude ischaemic heart disease; (2) take antihypertensive medication (Prestarium Combi) when the blood pressure was higher than 140/90 mm Hg; take Metoprolol in order to stop the tachycardia which occurred when the pulse rate was higher than 100 beats per minute. The applicant received this medical treatment in full.
33.According to the Government, on 7 May 2011 he was once again examined by the SPS medical panel. A check test of the urine for acetone was carried out (a “two-plus” reaction was obtained) and a general urine test was also done for the applicant. The panel confirmed the previous diagnosis. The applicant refused to consume any of the “anti-starvation food mixture” or to undergo fluid maintenance therapy.
On 8 May 2011 he was examined by a panel of doctors from Kyiv-based medical institutions of the Ministry of Health. The previous diagnosis was confirmed and it was additionally found that the applicant had chronic gastritis in unstable remission. The panel noted that the applicant’s hunger strike was significantly affecting his general state of health. Electrocardiography and echocardiography tests were carried out for the applicant. The urinary reaction for acetone was one-plus. The applicant was refusing to consume the “anti-starvation food mixture”. He was subjected to fluid-maintenance therapy with Aminoven. It was also recommended that the applicant broaden the variety of foods he ate, limiting the consumption of easily digestible carbohydrates (sugar, honey, and sweets); consistently take graduated physical activity; take Duphalac or Guttalax (to normalise bowel function) and probiotics (Lacium or Symbiter).
On 9 and 10 May 2011 the applicant was examined by the SPS medical panel. The urinary reaction for acetone was low-grade positive. He refused to consume “anti-starvation food mixture”. He was subjected to fluid-maintenance therapy with a physiological solution, vitamins Bl, B6, C, Riboxin, and Reosorbilact.
34.According to the applicant, before 10 May 2011 his medical monitoring had been limited to measuring his blood pressure and weighing him, along with a superficial examination by the SIZO doctor.
35.On 10 May 2011 he was taken to the Kyiv Clinical Emergency Hospital (Міська клінічна лікарня швидкої медичної допомоги) (hereinafter “the Emergency Hospital”). On the following day, the management of the hospital informed the investigator that the applicant was suffering from chronic pancreatitis in the aggravated stage, chronic gastroduodenitis, cardial-type neurocirculatory dystonia, and type 2 diabetes. His condition was evaluated as moderately serious.
36.On 18 May 2011 the deputy medical director of the Emergency Hospital gave additional details to the applicant’s wife as regards his health. In addition to the aforementioned diagnoses, he noted the following illnesses: chronic cholecystitis, gall bladder polyposis, autoimmune thyroiditis, euthyroidism, seborrheic dermatitis, myopia, osteochondrosis, chronic sinusitis, right-ear deafness, duodenal ulcer, gastric erosion and duodenogastric reflux.
37.On 23 May 2011 the applicant ended his hunger strike.
38.According to the Government, on 24 May 2011 he was examined by doctors of the SIZO medical unit. On the same date he ate gruel. He was also subjected to fluid-maintenance treatment with Aminoven and Pariet. Generally, although he continued to complain of general weakness, his condition improved considerably once he had ended the hunger strike.
The SIZO doctors saw the applicant also on the next day. They concluded that the applicant was suffering from the following illnesses: exacerbated chronic pancreatitis, chronic cholecystitis, gall-bladder polyposis, chronic duodenal ulcer, autoimmune thyroiditis, euthyroidism, type 2 diabetes mellitus, cardial-type neurocirculatory dystonia of medium severity, seborrheic dermatitis, cervical osteochondrosis, toxic-dyscirculatory encephalopathy of endogenic origin (degree I-II), duodenal ulcer, papillomatous gastropathy, and gastric erosions. On the same date the applicant ate gruel and drank water and carrot juice. The applicant underwent fluid-maintenance treatment and anti-ulcer treatment.
On 26 and 27 May 2011 the doctors of the SIZO medical unit confirmed the previous diagnosis. The applicant received fluid-maintenance and anti-ulcer treatment and underwent a urine test (which indicated no acetone), a blood test for sugar, and biochemical analysis of the blood. A consultation with a gastroenterologist was also scheduled for the applicant.
On 28 May 2011 the applicant was examined by a panel of doctors from civilian medical institutions. As a result of the examination, the panel found the applicant’s general state of health to be satisfactory. The applicant was diagnosed with the following conditions: peptic duodenal ulcer, post gastrointestinal haemorrhage condition, erosive gastritis, and mild post haemorrhagic anemia. It was recommended that he receive anti-ulcer treatment as an in-patient basis at a gastroenterology clinic. If it was impossible to arrange in-patient treatment for him, he would have to continue to take Pariet; again undergo a fibrogastroscopy with biopsy, a general blood test, electrolytes (potassium, phosphorus, fecal occult blood test) and eat five small meals a day, sticking to a diet with a high protein content.
39.According to the applicant, on 28 May 2011 he was examined in the SIZO and diagnosed with a duodenal ulcer in the progressing phase, gastrointestinal bleeding, erosive gastritis, and toxic-metabolic encephalopathy. Moreover, all his previously diagnosed diseases were confirmed.
40.According to the Government, on 29 May 2011 he was examined by SIZO doctors, who confirmed the previous diagnoses. He continued to receive the anti-ulcer treatment and multiple small-portion meals.
41.On 30 May 2011 the applicant underwent a urine acetone test, which revealed no acetone, a blood test for sugar, and a general blood test. The examination results confirmed the previous diagnoses.
42.On 31 May and 1 June 2011 he was examined by SIZO doctors who confirmed the previous diagnoses. Analyses of his blood and urine were carried out. He continued to receive the anti-ulcer treatment and appropriate diet.
43.On 8 June 2011 the governor of the SIZO informed the President of the Pecherskyy Court of some further diagnoses regarding the applicant’s health, established during his examination of 28 May 2011, and sought leave for him to be examined in the Emergency Hospital. According to the Government, the letter was sent to the court only on 9 June 2011.
44.In his reply of 14 June 2011 the judge of the Pechersk Court stated that the court did not object to the applicant’s being examined in a civilian hospital. A copy of this letter was sent to the Convoy Service of the Ministry of the Interior with a request for escorted transport for the applicant.
45.On 23 June 2011 the Convoy Service replied that the applicant’s medical care was the responsibility of the SIZO administration.
46.On 24 June 2011 the applicant’s wife and his legal representative made a new request to the court that he be hospitalised. They alleged that the applicant had constant stomach pain and had lost more weight, 24kg in total. On 29 June 2011 the judge replied that the court had no objection.
47.According to the Government, from 2 June to 2 July 2011 the applicant was examined daily by SIZO doctors. In line with the instructions given following the previous examination by the medical panel, the applicant had regular clinical, biochemical, and general blood tests and urine analyses (these took place on 7, 8, 15, 18, 19, and 30 June 2011). The applicant was receiving anti-ulcer treatment, the recommended diet, and the prescribed outpatient treatment. During this period, the above-mentioned diagnoses remained valid. Furthermore, on 24 June 2011 the doctors found that his peptic duodenal ulcer had begun to cicatrise, which indicated a gradual improvement in his state of health.
48.According to the Government, the court gave its permission for the applicant’s examination at the Emergency Hospital on 14 July 2011.
49.On 15 July 2011 the applicant was examined at the Emergency Hospital. Fibrogastroscopy and ultrasonic scans were performed for the applicant. The examination revealed that he had esophageal varicose veins with 1st degree dilatation, moderate portal hypertensive gastropathy, chronic cholecystitis, gall-bladder polyposis, chronic pancreatitis, and urolithic diathesis. It was recommended that the applicant undergo a biochemical blood test, a general blood test, analyses for hepatitis B, C, and D antibody titers, abdominal ultrasonic scanning with Doppler sonography. According to the applicant, he did not receive any of the prescribed medicines.
50.On 21 July 2011, blood samples were taken from the applicant in the presence of his lawyer for complex liver function tests (hepatitis B, C, and D). At the applicant’s request, in order to ensure an objective analysis, the samples were sent to two laboratories: Eurolab and Synevo.
51.On 22 July 2011 the applicant underwent abdominal ultrasonic scanning with Doppler sonography at the Emergency Hospital. On the basis of the examination, the following diagnosis was made: signs of diffuse damage to the liver in a chronic hepatosis pattern, portal hypertension of the P’ degree, splenomegaly of the lst degree, and chronic cholecystitis. In pursuance of the recommendation, the applicant was tested for hepatitis B, C, and D markers, and liver function tests were done.
52.On 23 July 2011 the applicant was prescribed the following medication: Ursofalk, Essentiale Forte, Primer, Chophytol, and Duspatalin.
53.According to the Government, from 2 to 30 August 2011 the applicant was under daily supervision by SIZO doctors. His state of health remained unchanged. He continued complaining of discomfort in the upper abdomen. He received the medical treatment prescribed for him earlier.
54.On 30 August 2011 two senior civilian doctors examined the applicant in the SIZO. They diagnosed cirrhosis of the liver supposedly triggered by the earlier hunger strike. Furthermore, two internal haemorrhages were noted. It was recommended that the applicant undergo a more thorough examination in a specialist civilian hospital. In the meantime, he needed to get proper nutrition.
55.According to the Government, on 2 September 2011, following a court decision, the SIZO was visited by a panel of doctors (gastroenterologists, an endoscopist, and an ultra-sonographer). The applicant refused to be medically examined, to have blood samples taken, or to undergo ultrasonic examinations and fibrogastroduodenoscopy, which had been recommended by the medical panel.
56.On 6 September 2011 a commission of the Ministry of Health examined the applicant in the SIZO. It recommended that he undergo examination with special equipment so that specific diagnoses could be made.
57.On 7 and 8 September 2011 blood samples and faeces were taken from the applicant for laboratory tests.
58.On 13 September 2011 the applicant’s wife again requested the Pechersk Court to allow her husband to be hospitalised and given proper treatment.
59.On 15 September 2011 the applicant was hospitalised and examined in the Kyiv City Diagnostic Centre, which diagnosed the initial signs of portal hypertension, as well as signs of chronic cholecystitis, angiomyolipoma of the right kidney, and parenchymatous cyst of the left kidney. On the same date the applicant underwent an abdominal ultrasonic scan, which discovered signs of gall-bladder polyps and pancreatic diffuse changes, and confirmed the aforementioned kidney pathologies.
60.On 20 September 2011 the applicant underwent a colonoscopy which showed sigmoid colon diverticulitis. On the same day a newly appointed commission of the Ministry of Health examined him and diagnosed fatty liver disease. Dietetic therapy, mineral-vitamin complex, proton pump blockers and hepato-protectors were prescribed.
61.According to the Government, on 22 September 2011 the applicant consulted a haematologist. In view of a decreased number of white blood cells (leukocytes) and thrombocytes in his blood, it was recommended that he again undergo a general blood test at two independent laboratories, to be identified by the Ministry of Health. Once the results of those examinations were known it was recommended that the applicant again consult a haematologist.
62.On 23 September 2011 the applicant’s blood samples were sent to the laboratory for a general blood test. On 26 September 2011, following the haematologist’s recommendation, a blood sample was sent to the Sinevo laboratory for a coagulation profile test.
63.On 28 September 2011 the applicant again consulted the haematologist. The results of the previous examinations led the doctor to find that he had no blood system disorders.
64.On 24 October 2011 the applicant completed the course of medical treatment prescribed by the panel of doctors from civilian medical institutions on 20 September 2011.
65.On 29 September 2011 it was proposed that he undergo a liver biopsy, which he declined.
According to him, the biopsy is a surgical intervention, after which the patient should stay in the medical institution under medical supervision for a period the doctor considers necessary to monitor any post-operative complications. However, the applicant was not provided with guarantees that the medical care would be adequate and that he would stay in the hospital after the biopsy. He considered that removing him immediately to the SIZO would hurt his state of health. Besides, the applicant feared that proper medical care would not be provided to him in the SIZO if there were complications after the biopsy. He referred in this connection to his previous experience.
66.On 4 October 2011 the applicant’s relatives brought him the proton pump blockers and hepato-protectors which had been prescribed by the Ministry of Health commission specialists as early as 20 September 2011.
67.According to the Government, on 2 November 2011 the applicant was examined by SIZO doctors. When examined, he complained of general weakness, dragging pain in the right hypochondrium, and discomfort in the upper abdomen and in the intestine area. He was diagnosed with fatty liver disease, signs of incipient portal hypertension, erosive haemorrhagic helicobacter-associated gastritis, and diverticular disease of the sigmoid colon. As the applicant had completed the prescribed course of outpatient treatment, it was proposed that he undergo laboratory and instrumental tests. The applicant submitted a written statement refusing to undergo fibrogastroduodenoscopy and rectosigmoidoscopy.
68.On 3 November 2011 blood samples were taken from the applicant for laboratory examination at the Kyiv diagnostic centre. In particular, he underwent clinical, general, and biochemical blood tests and a coagulation profile test.
69.On 5 November 2011, upon a court decision, the applicant was examined by a panel of doctors from civilian medical institutions. He was diagnosed with the following conditions: fatty liver disease, signs of incipient portal hypertension, chronic helicobacter associated gastritis, and diverticular disease of the sigmoid colon. It was recommended that the applicant undergo an abdominal ultrasound scan, a faecal occult blood test, and a faecal analysis for helminth eggs and protozoa, consult a urologist, receive diet-based treatment, take a mineral-vitamin complex, and continue to take proton-pump inhibitors.
70.On 8 November 2011 the applicant underwent abdominal ultrasonic scanning at the Kyiv City Diagnostic Centre. He was diagnosed with gall bladder polyp signs, moderate pancreatic changes, angiomyolipomas of the right kidney, and small cysts of the left renal sinus. However, he refused to consult a urologist.
71.On 9 November 2011 he received a parcel with the necessary medication.
72.According to the Government, during November 2011 the applicant’s state of health remained satisfactory. From time to time he complained of general weakness, discomfort in the large intestine area, and pain in the right hypochondrium. During that period, he was examined daily by doctors of the SIZO medical unit, and regularly provided with the prescribed medical treatment. The diagnosis remained unchanged.
However, the applicant continued to complain of periodic discomfort in the large intestine area. He received the medical treatment prescribed by the panel of doctors from civilian medical institutions on 5 November 2011.
73.On 14 December 2011 the applicant was examined by a panel of doctors from civilian medical institutions. The results of the earlier examinations led the doctors to diagnose the applicant with the following conditions: fatty liver disease, signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticular disease of sigmoid colon, but no signs of blood disorder were found. The doctors recommended that the applicant undergo some additional examinations: electrocardiography, irrigoscopy, and an analysis of faeces for dysbiosis, to determine pancreatic (faecal) elastase, and a faecal occult blood test. Also, the applicant was prescribed the following medical treatment: diet-based treatment; Spasmomen or Meteospasmyl; Posterisan suppositories; Kreon; Validolum, to stop pain in the stomach; Chophytol, to continue to take from 19 December 2011. However, on 19 December the applicant on his own initiative refused to start the medical treatment prescribed.
74.In early January 2012 the applicant complained to the SIZO administration of stomach and intestinal pains.
75.On 5 and 14 January 2012 he underwent various laboratory tests in respect of his chronic gastrointestinal diseases, and on 11 January 2012 an ultrasonic examination of his abdominal cavity was conducted.
76.On 19 January 2012, during a court hearing, the applicant complained that he did not feel well. An ambulance was therefore called. The doctor diagnosed exacerbation of chronic pancreatitis and administered some medication to the applicant. The applicant’s overall state of health was assessed as satisfactory.
77.On 20 January 2012 the applicant was examined by a panel of medical specialists delegated by the Ministry of Health which established the following diagnoses: fatty liver disease (steatosis), signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticulosis of sigmoid colon. While the commission acknowledged a deterioration of the applicant’s health due to “nutrition-regime disturbance and psycho-emotional overload”, it found his health generally satisfactory and not warranting in-patient treatment in a specialist civilian hospital. The physicians recommended normalisation of the nutrition regime and reduction of the psycho-emotional pressure. They also prescribed some medication.
78.On 23 January 2012 the Ministry of Health delegated another panel, of three gastroenterologists, to examine the applicant in the SIZO. The doctors found him to be in a generally satisfactory state of health, and concluded that he did not require hospitalisation. They also specified the medication to be administered to the applicant, and repeated the earlier recommendation regarding his nutritional needs.
79.On 24 February 2012 the applicant was examined by a panel of doctors from civilian medical institutions. They noted that his state of health had improved. The applicant was diagnosed with fatty liver disease (steatosis), signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticulosis of sigmoid colon. It was advised that he receive rational nutrition diet, continue to take Duspatalin and take Kreon, Valeriana extract, and suppositories with belladonna. The applicant received that medication in full.
80.On 6 April 2012 he was transferred from the SIZO to the Emergency Hospital for further examination.
81.According to the applicant, despite numerous check-ups, there was no proper medical treatment or medicine available to him in the SIZO. He received proper medical treatment in the Emergency Hospital on 10 May 2011 and 6April 2012, but was discharged from the hospital on 23 May 2011 and 20 April 2012 respectively, upon an arbitrary decision by the Prison Service authorities, rather than upon a decision of the doctors treating him at the hospital. He was provided with medication which was incompatible with his general state of health, and although they treated his immediate health problem they contributed to the deterioration of his general state of health.
C.Material conditions of the applicant’s detention in the SIZO
82.Upon his admission to the SIZO, the applicant was placed in cell no.158, measuring 8.58 square metres. He shared the cell with one or two other inmates. According to him, the cell had poor ventilation and lacked personal hygiene facilities. Its walls had mould traces. Furthermore, there was no access to drinking water. Except for period from 28 April to 8 May 2011 (see paragraph 110 below), he shared this cell with two other detainees.
83.According to the Government, the cell had a proper ventilation system and natural lighting. The applicant had had daily exercise in the fresh air, except on days when lengthy court hearings were held. He was permitted to receive drinking water from relatives. He was allowed to take a shower once or twice a week.
84.From 8 to 10 May 2011, the applicant was held in cell no. 257 in the SIZO medical unit, which measured 23.21 square metres.
85.From 10 to 23 May 2011 he was a patient in the Emergency Hospital.
86.On 23 May 2011 the applicant was transferred to cell no. 260, measuring 22.32 square metres, in the SIZO medical unit, which he shared with another person. He remained there until 1 July 2011.
87.On 1 July 2011 he was transferred to cell no. 158, which he shared with another inmate.
88.On 27 March 2012 he was moved to cell no. 136.
89.On 6 April 2012 the applicant was transferred to the Emergency Hospital. He returned to cell no. 136 on 20 April 2012.
D.Conditions of the applicant’s detention during the court hearings
90.From the documents provided by the Government, in particular the minutes of the hearings held before the Pechersk Court (see annex), it appears that between 23 May 2011 and 16February 2012 the court held seventy-nine hearings at which the applicant was present. At the hearing of 27 February 2012, it pronounced the judgment convicting the applicant. During thirty-five hearings, the court did not withdraw for deliberation on intermediate procedural issues but at least one break was announced, during twelve hearings the court both withdrew to deliberate and announced at least one break, and eleven hearings were interrupted by deliberations on intermediate procedural issue of the court but otherwise were carried out without a proper break. On 14 and 19 July, 22 August and 29 September 2011, 17, 27 and 31 January, 1, 2, 6, 7, 9, 14 and 15 February 2012 the court announced breaks for lunch. However, on 14 July 2011 the applicant had been removed from the courtroom for the rest of the hearing because of his improper behavior before the lunch break was announced.
Moreover, eighteen hearings were carried out without any deliberation and the court did not announce any break. In particular, on 12 October 2011 the hearing lasted two hours and 51 minutes, on 18 October 2011 it took three hours and 36 minutes, and on 16 and 21November 2011 the hearings lasted almost three hours.
91.The applicant continued his hunger strike up to 23 May 2011. He was informed beforehand that the preliminary hearing would be held on that day. According to him, he was woken up at 4.30 a.m. to be taken to the court building for a hearing which started at about 11 a.m. He had to wait in a small convoy room of about 1.5 square metres. Overall, for about twelve to fourteen hours, he was allegedly held without food and drinking water, in poorly ventilated premises. On the same day, he terminated the hunger strike, which had lasted for about a month.
92.According to the Government, this information was incorrect. The applicant left the hospital at 7 a.m., reaching the court-house at 7.20 a.m. At 10.30 a.m. he was transferred to the courtroom.
93.According to the applicant, he was brought to the court hearing with an open bleeding stomach ulcer, although this condition required immediate hospitalisation. After the eight-hour hearing he was driven to the SIZO. He was transferred to the medical unit of the SIZO only after he had lost consciousness. Despite this, no treatment was recommended for him. Late at night the applicant’s state of health suddenly worsened.
94.According to the Government, as long as the applicant was in hospital, his health was under constant supervision by medical specialists there. In the event that his state of health did not permit him to take part in a hearing, this would be notified by the medical staff and the applicant would not then have been convoyed to the court hearing.
95.According to the applicant, he suffered from the absence of drinking water and nutrition, as well as the lack of rest, during the later court hearings too, while being kept in a metal cage in the courtroom.
96.On 20 January 2012 the applicant, in his requestunder Rule 39 of the Rules of Court, which was subsequently not granted, maintained that on 17and 18January 2012 the Pechersk Court had held the hearings daily despite his complaints of deteriorating health and acute pain in his stomach. According to him, the hearings had lasted from 9 a.m. until 6:30 p.m. usually with one thirty-minute break. On 19 January 2012 the court hearing had lasted from 9 a.m. until 11:30 p.m. The applicant stated that after having left the SIZO, he had not been provided with any food or water until his return. Moreover, on 19January 2012 the court called the ambulance for him four times.
97.According to the information submitted by the Government, on the days of the hearings detainees received food packs from the prison authorities: the applicant refused these in writing on 1December 2011 and11, 19 and 20 January 2012, noting that he had his own food supply.
98.The Government submitted tables of the schedule of the hearing days (see annex) containing the information about the time when the applicant was put in the car and reached the courtroom, when the hearings started and were closed and the time when the applicant was put in the car and arrived back in the SIZO. They also submitted the minutes of the court hearings held before the Pechersk Court.
104.Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”)
Which provide a framework of guiding principles for conditions of detention and health services. The relevant extracts from the Rules read as follows:
“Allocation and accommodation ...
18.1The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2In all buildings where prisoners are required to live, work or congregate:
a.the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b.artificial light shall satisfy recognised technical standards; ...
18.4National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.
18.5Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation ...
Hygiene
19.1All parts of every prison shall be properly maintained and kept clean at all times.
19.2When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean.
19.3Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.
19.4Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.
19.5Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy.
19.6The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials.
19.7Special provision shall be made for the sanitary needs of women.
Clothing and bedding
20.1Prisoners who do not have adequate clothing of their own shall be provided with clothing suitable for the climate.
20.2Such clothing shall not be degrading or humiliating.
20.3All clothing shall be maintained in good condition and replaced when necessary.
20.4Prisoners who obtain permission to go outside prison shall not be required to wear clothing that identifies them as prisoners.
21.Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness ...
Health care
39.Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1Every prison shall have the services of at least one qualified general medical practitioner.
41.2Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency ...
41.4Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary ...
42.3When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to ...
b.diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ...
f.isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment ...
43.1The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed ...
Health care provision
46.1Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison.
46.2Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
105.The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 September 2009 (published on 23 November 2011) read as follows:
“5.Conditions of detention of the general prison population
a.pre-trial establishments (SIZOs)
i)the SIZO in Kyiv
100.The SIZO in Kyiv occupies a complex of buildings in one of the central areas of Kyiv. Some of the detention buildings had been constructed some 140 years previously. Three smaller, more recent blocks provided accommodation for sentenced working prisoners, women and juveniles. A new block for women was in the process of construction, but that process had virtually been halted due to lack of resources.
With an official capacity of 2,950 places, on 8 September 2009 the establishment was holding 3,440 inmates, including 217 women and 69 juveniles. The vast majority of the inmate population was on remand. The establishment was also holding 297 inmates awaiting the outcome of their appeal (including 41 life-sentenced prisoners), 93 prisoners in transit and 100 sentenced inmates assigned to work in the prison’s general services and maintenance. Further, there were 11 inmates who had been subject to forensic psychiatric assessment and who were awaiting a final decision concerning their criminal responsibility. The prisoner population comprised 210 foreign national prisoners (of whom 170 were from countries of the Commonwealth of Independent States).
Since 2001, following amendments to the CC, a section referred to as an “arrest house” had been set up for first-time offenders serving sentences of up to 6 months ...
103.Material conditions prevailing in the section for women were somewhat better [than those in the section for men]. In particular, the cells were less overcrowded (e.g. 6 inmates in a cell measuring 8 m²; 16 prisoners in a cell measuring 27 m²). The cells had good access to natural light, but ventilation was inadequate and prisoners complained that in the summer the cells became very hot. The in-cell sanitary annexes were fully partitioned and had both cold and hot water taps. Some of the cells had been decorated by the inmates themselves and gave a homely impression ...
104.The section for sentenced working prisoners provided the best conditions of detention in comparison with the other sections. The dormitories were adequately lit, well ventilated and clean. They were suitably furnished (beds, tables and chairs or stools, some shelves and lockers) and inmates could have their own radio or television. Further, the section comprised a sports hall, a spacious “club” where prisoners could watch films and play table tennis, and a chapel.
105.The prison did not provide inmates with personal hygiene products other than soap. As mentioned in paragraph 88, access to the shower was limited to once a week.
As regards food, prisoners were provided with three meals a day. The quantity of the food appeared to be sufficient, but many prisoners complained about its poor quality and lack of variety. In particular, there was no fresh fruit, eggs or milk (not even for juvenile prisoners). To supplement their diet, prisoners relied to a great extent on food parcels from their families and purchases from the prison shop ...
The SIZO had a library with a collection of some 27,000 books. The delegation was surprised to learn that remand prisoners were not allowed to receive books (other than the Bible) or newspapers from outside. The CPT would like to receive the Ukrainian authorities’ comments concerning this prohibition.
The only regular out-of-cell activity was outdoor exercise of one hour per day, which took place in a series of exercise yards located on the top of the accommodation blocks. By virtue of their size and configuration, these high-walled, bare areas (measuring between 16 and 60 m²) did not allow prisoners to exercise themselves physically.
The CPT recommends that the Ukrainian authorities make strenuous efforts to offer organised out-of-cell activities (work, recreation/association, education, sport) to prisoners at the Kyiv SIZO. Further, the Committee recommends that steps be taken to construct more appropriate exercise yards which allow prisoners to exert themselves physically, as well as indoor and outdoor sports facilities ...
6.Health care
a.introduction
123.In the course of the 2009 visit, the delegation was informed of a proposal to set up a working group to study the transfer of prisoners’ health care to the Ministry of Health. The CPT can only encourage this initiative, which is consistent with the remarks made in paragraph 142 of the report on its 1998 visit, namely that a greater involvement of the Ministry of Health in the provision of health-care services in prison will help to ensure optimal health care for prisoners, as well as implementation of the general principle of the equivalence of health care with that in the outside community. The Committee wishes to be informed of the action taken on the above‑mentioned proposal.
In this context, the CPT also wishes to stress the need for continued professional training for prison health-care staff, with a view to enabling them to perform their duties satisfactorily. The Committee would like to be informed of the national policy in this respect.
124.The reports on previous visits by the CPT to Ukraine contain a number of recommendations, comments and requests for information in the area of provision of health care to prisoners. Despite efforts made by the Ukrainian authorities in recent years and the goodwill and commitment of health-care staff at the penitentiary establishments visited, the provision of health care to inmates remains problematic, due to the shortage of staff, facilities and resources. During the visit, the delegation heard a number of complaints from prisoners at the establishments visited concerning delays in access to a doctor, lack of medication, and the inadequate quality of care.”
106.The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 29 November to 6 December 2011 [CPT/Inf (2012) 30] read as follows:
“... 48.On the occasion of this visit and in the light of reports recently received by the CPT, the delegation also examined in detail the health care being provided to certain persons who were being held at the Kyiv SIZO and, in particular, Mr Valeriy IVASHENKO, Mr Yuriy LUTSENKO and Ms Yulia TYMOSHENKO.
In this connection, the CPT would like to stress that the role of medical members of a visiting delegation is not that of a treating doctor; their task is to assess the quality of health care and, more specifically, the access to medical treatment of detained persons. The Committee also wishes to recall that the prison authorities are responsible for the health care of all prisoners; all efforts possible must be made to ensure that a precise diagnosis is promptly established and that adequate treatment required by the state of health of the person concerned is provided to all prisoners.
The CPT must express its concern that in respect of each of the three above-mentioned persons, considerable delays occurred – for various reasons – in arranging specialised medical examinations outside the SIZO. Problems of this kind have repeatedly been observed by the CPT during all previous visits to the Kyiv SIZO as well as to other penitentiary establishments in Ukraine. The Committee urges the Ukrainian authorities to take all the necessary measures to ensure that in future, all prisoners who are in need of specialist treatment/examinations are transferred to an outside hospital without undue delay.”
107.On 9 June 2011 the European Parliament adopted a resolution on Ukraine. The relevant part of the resolution reads as follows:
“The European Parliament,
... G.whereas 12 former high-ranking officials from the Tymoshenko government are in pre-trial detention, including the former Interior Minister, Yuri Lutsenko, one of the leaders of the People’s Self-Defence Party, who has been charged with abuse of office and misappropriation of funds and was arrested on 26 December 2010 for alleged non-cooperation with the prosecution, ...
H.whereas Mr Lutsenko was not released from pre-trial detention when his trial opened on 23 May 2011, despite the fact that detention for alleged non-cooperation in the investigation of his case is an extremely disproportionate measure,
I.whereas a preliminary report of the Danish Helsinki Committee for Human Rights on the Lutsenko ... trials has listed massive violations of the European Convention on Human Rights ...
1.Stresses the importance of ensuring the utmost transparency in investigations, prosecutions and trials, and warns against any use of criminal law as a tool to achieve political ends;
2.Is concerned about the increase in selective prosecution of figures from the political opposition in Ukraine as well as the disproportionality of measures applied ...
3.Reminds the Ukrainian authorities that the principle of collective responsibility for the decisions of the government does not permit the prosecution of individual members of the government for decisions that were taken collegially ... ”

***

6.The applicant was born in 1942 and lives in Nalchik. She is the mother of the late Ms Madina Eneyeva, who was born in 1972 and died in2007.
A.The events of 26 May 2007
7.On 26 May 2007 Ms Eneyeva was at a local market together with MrA, her brother-in-law. One of the stall-holders, MsG.Zh., suspected that MsEneyeva was planning to steal a skirt from her market stall. The twowomen started a fight and exchanged a few blows. The police arrived and arrested the applicant’s daughter on suspicion of theft. Ms Eneyeva and MrA. were both put into a police vehicle.
8.The parties have presented different accounts of the subsequent events.
9.According to Mr A., after Ms Eneyeva had been put into the police vehicle, an unknown police officer with the rank of lieutenant approached the vehicle, kicked Ms Eneyeva fifteen times on her legs and then left. Once at the police station, MrA. was released. According to the applicant, upon arrival at the police station, her daughter was taken to the interrogation room situated on the second floor (in Russian referred to as the “thirdfloor”) of the police station and was beaten by the police officers until she fainted. While MsEneyeva was unconscious, unspecified police officers threw her out of the window.
10.In the Government’s submission, it was alleged that during the drive to the police station Ms Eneyeva had unsuccessfully tried to escape from the police vehicle. Upon arrival at the police station, she had been escorted to the office of Lieutenant A.Zh. She had refused to answer his questions and had asked for permission to use a lavatory. Since there were no female police officers in sight, A.Zh. escorted her to the lavatory on the second floor of the police station himself and waited for her in the corridor outside the locked door. Being unguarded, Ms Eneyeva jumped out of the window in an attempt to escape from police custody.
11.Ms Eneyeva was then taken to hospital by ambulance. She underwent urgent surgery. At 10.45 p.m. on 26 May 2007 Ms Eneyeva died of complex internal injuries to her head, body and extremities.
12.The applicant then sought an investigation into her daughter’s suspicious death and ill-treatment. According to the applicant, her daughter had no suicidal tendencies; she had three young children and a good home in recently obtained social housing.
B.Subsequent investigative proceedings
13.On 26 May 2007 the prosecutor’s office of Nalchik (“the town prosecutor’s office”) were notified that Ms Eneyeva had jumped out of the window of the police station and then died.
14.On an unspecified date the town prosecutor’s office opened pre‑investigative inquiry no. 663-07 into the circumstances of MsEneyeva’s death.
15.On 28 May 2007 a forensic expert issued a post-mortem report, according to which ‒ apart from various injuries ‒ Ms Eneyeva had bruises and scratches on her legs, those injuries being unrelated to the fall.
16.On 4 June 2007 the deputy town prosecutor received and examined the applicant’s complaint, in which she alleged that her daughter had been thrown out of the window by the police officers. He stated that the investigator in charge of pre-investigative inquiry no. 663-07 had not yet carried out all requisite investigative measures, in particular, that he had not questioned a number of persons: the police officers who had arrived at the market once Ms G.Zh. had reported the theft, those who had arrested MsEneyeva, the ambulance crew members and Mr A. Nonetheless, the deputy town prosecutor concluded that “there is nothing to suggest that MsEneyeva’s death on 26 May 2007 in Nalchik was a violent one, as suggested in the complaint; moreover, there is no proof that the police officers of Nalchik were implicated in her death ...” and decided to dismiss the applicant’s complaint.
17.After a pre-investigation inquiry, on 5 June 2007 an investigator from the Nalchik prosecutor’s office concluded that the applicant’s daughter “had made another attempt” to escape from the police station, and refused to institute criminal proceedings in relation to Ms Eneyeva’s death.
18.The above decision was later quashed by the Nalchik prosecutor who considered that it was established that the applicant had sustained injuries at the hands of an unspecified police officer.
19.On 17 June 2007 the investigator again refused to open a criminal investigation into the applicant’s daughter’s death. The decision was quashed by the deputy town prosecutor on 20 June 2007.
20.On 7 July 2007 the investigator from the Nalchik prosecutor’s office refused to institute a criminal case to investigate the circumstances of MsEneyeva’s death.
21.On 27 July 2007 the Kabardino-Balkariya prosecutor’s office quashed the decision of 7 July 2007 refusing to open an investigation into Ms Eneyeva’s death. However, no further investigation into the circumstances of the death appears to have taken place and no further decision regarding this appears to have been taken after 27 July 2007. On11August 2007, however, Lieutenant A.Zh. was subjected to disciplinary measures for failure to comply with the procedure concerning escorting detainees.
22.For reasons unknown, on 27 July 2007, while quashing the refusal to investigate the death of Ms Eneyeva, the Kabardino-Balkariya prosecutor’s office opened criminal proceedings in case no. 25/35-07 to investigate an alleged abuse of powers by an unidentified police officer who had hit MsEneyeva on her legs inside the police vehicle at the market on 26 May 2007. They referred to the medical expert report (see paragraph 15 above) according to which there had been bruises on MsEneyeva’s legs which had not been caused by the fall out of the window. The authorities relied on Article286 of the RussianCriminal Code (“abuse of power by a public official”). The circumstances of MsEneyeva’s death lay outside the scope of the investigation in question.
23.On 13 September 2007 the applicant was granted victim status in case no. 25/35-07.
24.On 22 October 2007 a forensic expert carried out another examination of Ms Eneyeva’s body to establish the origin of the scratches and bruises on the legs and concluded that the injuries in question had been inflicted by blunt objects.
25.On 27 October 2007 the investigation into the abuse of power was stayed for failure to identify those responsible. On 19 November 2007 the investigation was resumed and eventually stayed again on 28 February 2008.
26.In view of the authorities’ failure to institute a criminal investigation into Ms Eneyeva’s death, the applicant brought court actions on 31January 2008 and on 26 February 2008. Eventually, on 23 June 2008 the Nalchik Town Court held in favour of the applicant, finding that the investigator’s failure to investigate had been unlawful.
27.On 8 April 2009 the applicant again complained about the investigator’s lack of action. On 14 May 2009 the Nalchik Town Court granted the applicant’s claim and held that the investigator’s continued failure to comply with the judgment of 23 June 2008 was unlawful.
28.On 23 March 2010 the deputy prosecutor of Nalchik quashed the ruling of 28 February 2008 staying the investigation (see paragraph 25 above).
29.Accordingly, on 31 March 2010 the investigation was again resumed.
30.On 11 April 2010 Mr K., a police officer on duty on 26 May 2007, was questioned as a witness. No essential information was obtained as a result of the interview.
31.In April 2010 the investigators tried to find eye-witnesses who had seen Ms Eneyeva at the market on 26 May 2007, but in vain. Also in April2010 the certificate of death of Mr A. was included in the case file.
32.On 15 April 2010 the investigators decided to carry out a forensic medical examination of the injuries found on Ms Eneyeva’s body by a group of experts on the basis of the documents in the case file. However, no information on the results of the examination had been made available by 29January 2015.
33.On 25 April 2010 Mr Ch., a police officer on duty on 26 May 2007, was questioned as a witness. He did not provide any relevant information.
34.On 8 May 2010 two shop assistants were questioned as witnesses and submitted that they had not seen the police using any force on MsEneyeva.
35.On 8 May 2010 the investigation was suspended owing to failure to find those responsible.
36.On 28 August 2010 the investigation was resumed.
37.On 22 September 2010 the investigators questioned Ms B. as a witness. Ms B. was the wife of Mr O., a forensic expert who had examined Ms Eneyeva’s dead body in 2007. Ms B. stated that her husband had left for Moscow for a lengthy period of time.
38.On 30 September 2010 the investigation was again suspended.
39.On 21 January 2015 the investigation was resumed. An internal inquiry was instituted by the Investigative Committee of Russia regarding poor supervision of the investigation of case no. 25-35/07. The investigation appears to be still pending.
40.The applicant stated that after 23 March 2010 she had not received any update on the progress of the investigation from the domestic authorities.

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5.The applicants are a married couple. They were born in 1976 and 1988 respectively. The first applicant is serving a sentence of imprisonment in Kholodnogirska penitentiary no.18. The second applicant lives in Kharkiv.
A.Background facts
6.At the time of the events the applicants lived in a two-room apartment together with Ms S., the second applicant’s mother.
7.Ms S. had a pending judicial dispute with a certain Mr L. regarding the inheritance of a house. The applicants, being interested in improving their living conditions, provided her with various support in those proceedings.
8.In April 2008 the first applicant visited Mr L. with a view to dissuading him from pursuing the mentioned dispute.
B.Events between 27 June and 2 July 2008
9.On 27 June 2008 Mr L. was found dead in his house. His throat was cut and there were multiple stabs and cuts on his body. One of the windows was broken, and there was a hoe lying nearby on the floor.
10.On the same day a criminal investigation was opened into the murder.
11.At about 10 p.m. on that same day the applicants came home where several police officers were waiting for them. The applicants were taken to the Kharkiv Frunzenskyy District Police Department (Фрунзенський районний відділ Харківського міського управління Головного управління внутрішніх справ МВС України в Харківській області). According to the applicants, this was done under the pretext that they needed to be questioned in respect of the first applicant’s debt vis-à-vis some third persons. As submitted by the Government, the police apprehended the applicants on suspicion of the murder of Mr L.
12.The applicants were questioned regarding their whereabouts and actions on 26 and 27 June 2008. They stated that they had been together shopping, going to the cinema, having meals and so on.
13.Both applicants were held in the police station during the night on 27-28June 2008. They stated in their submissions to the Court that they had not been subjected to any ill-treatment at that stage.
14.On 28 June 2008 the first applicant underwent a forensic medical examination. According to its report, which was completed on 1 July 2008, the examination revealed multiple bruises and sores on virtually all the body of the first applicant. They included about thirty multidirectional sores on his back and about the same number of sores on his hips, buttocks and knees. The expert gave the following possible dates of the injuries: a bruise on the left shoulder and a sore on the torso – between 22 and 24 June 2008; bruises on the right part of the torso – between 25 and 27 June 2008; sores on the torso, the back and the legs – between 25 and 27June 2008. Those sores were assessed as having possibly originated from the impact of some protruded blunt objects, such as glass fragments.
15.According to the first applicant, he sustained the injuries discovered on 28 June 2008, having accidentally fallen a day before.
16.The first applicant submitted the following account of the subsequent events. After the aforementioned examination, he was taken to the criminal investigation department, where one of the officers suggested that he should confess to the murder of Mr L. As the first applicant refused to do so, some officers brought in a dirty mattress and a gas mask. They put wet cloths around his wrists and handcuffed him. One of the officers punched him in the solar plexus and pushed him on the mattress. The others twisted his arms behind his back and made him split his legs while beating him to his torso and genitals. The gas mask was then put on the first applicant’s face and the vent was blocked. He fainted several times and was made regain consciousness with cold water. The gas mask was repeatedly put on his face, and he was made inhale cigarette smoke. At the same time, his genitals were being twisted. The first applicant’s ill-treatment continued as described above in several rounds. The officers threated him that they would bring his wife and do the same with her in front of him. He then signed a confession to the murder of Mr L. He had, however, to adjust it many times as dictated by the police. The first applicant was made memorise his confession.
17.The Government maintained that the first applicant had not been subjected to any ill-treatment.
18.According to the detention logbook of the police station, the first applicant was detained at 8.15 p.m. on 28 June 2008 as a criminal suspect.
19.On the same date, 28 June 2008, the investigator appointed a lawyer, MrM., for the first applicant. He maintained his initial confession during his questioning in the presence of the lawyer. According to the first applicant, he did so fearing further ill-treatment and not having the possibility to talk with the lawyer in private prior to the questioning.
20.As regards the second applicant, in the morning on 28June 2008 she was taken from the police station to her home, where a search was conducted. The police allegedly threatened her that if she did not testify against her husband, they would accuse her of a drug-related offence having previously planted drugs in her apartment.
21.Thereafter the second applicant was taken back to the police station, where she made a statement, allegedly under coercion, that her husband had admitted to her having murdered Mr L. More specifically, the second applicant submitted that three police officers had hit her several times on the head and had pulled her by the hair.
22.On 30 June 2008 a reconstruction of the crime was conducted in the presence of the first applicant’s lawyer, during which the first applicant confessed again to the incriminated crime. About forty minutes later he, however, retracted his confession as made under duress and complained of his ill-treatment by the police. According to the first applicant, he did so after his first confidential conversation with his lawyer, which had taken place only after the aforementioned event. His lawyer subsequently stated that he had had his first confidential meeting with the first applicant prior to the latter’s questioning on 28 June 2008 (see paragraph 65 below).
23.On 1 July 2008 the investigator submitted for approval to the Frunzenskyy District Prosecutor’s Office (“the Frunzenskyy Prosecutor’s Office”) an application for the first applicant’s pre-trial detention as a preventive measure pending trial. The prosecutor decided to question the first applicant himself before taking a decision. He saw that the first applicant had multiple injuries and concluded that his confession had been extracted by force. Furthermore, the prosecutor noted a number of discrepancies between the confessions of the first applicant and the autopsy report in respect of the victim. The second applicant was questioned too. She submitted that she had incriminated her husband under duress.
24.As a result, the prosecutor refused to approve the investigator’s application, quashed the latter’s decision on bringing the charges against the first applicant and released him. The prosecutor also directed his subordinates to question both applicants about their ill-treatment in police custody and to duly report their submissions.
25.While the applicants were making written statements in the office of the deputy prosecutor, at about 10.30 p.m., four officers of the Frunzenskyy District Police Department, namely, the first deputy head of the department (перший заступник начальника райвідділу) Mr K. (see also paragraphs68 and 83 below for additional information about this police officer), the head of the criminal investigation department (начальник сектору карного розшуку) MrPap., his deputy (заступник начальника карного розшуку) Mr Par., and the chief of the investigation unit (начальник слідчого відділу) Mr M., broke in. Disregarding the objections of the deputy prosecutor and constraining him by force, they took the applicants out. There were more police officers waiting in the corridor.
26.The applicants were handcuffed and taken to the Frunzenskyy Police Department, located near the prosecutor’s office. On the way, one of the officers allegedly hit the first applicant in the right hip.
27.The first applicant was taken to an office on the ground floor where he was made sit quiet with one of the police officers. The office was locked from inside, and the light was switched off. About an hour later, he was taken to another office where the bars on the window could be removed. He was made write a note that he had left the police station at 10.30 p.m. The first applicant was then taken outside through the window behind the building of the police station. The police officers placed him a car, parked that car in a nearby yard and waited there till 3 or 4 a.m. It is not known what happened thereafter. It appears that the first applicant remained detained (see, in particular, paragraph 31 below).
28.After the police had taken the applicants from the prosecutor’s office, at 11.15 p.m. the deputy prosecutor visited the Frunzenskyy Police Department. According to the visitors’ logbook, the applicants had entered the building at 10.30 p.m. and had been remaining there. Having searched the premises, the prosecution officials found the second applicant in tears in one of the offices. The first applicant could not be found. Police officer K. submitted to the prosecutor a note on behalf of the first applicant, but without his signature, that he had left the police department at 10.30p.m. The prosecution officers went to the applicants’ home, but the first applicant was not there.
C.Investigation of the applicants’ allegations of ill-treatment and related events
29.On 30 June 2008 the first applicant complained to the prosecution authorities that he had been ill-treated by the police (see also paragraph22 above). It appears that the second applicant raised a similar complaint too.
30.On 2 July 2008 the Frunzenskyy Prosecutor’s Office opened a criminal case against the police officers K., Pap. and Par. under Article365§ 2 of the Criminal Code (exceeding power by engaging in the violent or degrading treatment of a victim) in respect of the events of the evening of 1July and the night from 1 to 2 July 2008.
31.On the same date the applicants were assigned victim status and questioned. Also on that day the first applicant underwent a forensic medical examination, after which he was released.
32.On 4 July 2008 a report of the first applicant’s examination was delivered. It documented multiple bruises on his shoulders, torso, back, chest, arms, hips, thighs and legs. Their colouring varied from yellowish to violet and purple. The first applicant also had crust-covered sores and bruises on both wrists. The expert concluded that most of the injuries had originated from the impact of blunt objects between 23 and 27 June 2008. One bruise on the first applicant’s back below the left shoulder blade was assessed as sustained between 30 June and 1 July 2008. Lastly, according to the report, some sores on the right forearm, the left elbow and the right ankle had been inflicted on the first applicant on 1 July 2008.
33.On 2 July 2008 the second applicant underwent a medical examination too, which did not reveal any injuries. According to the second applicant, she complained to the expert that she had headaches and was advised to apply for help to a hospital.
34.On 5 July 2008 she was examined by a neurosurgeon in the local hospital who reported that she had bruises of the head soft tissues.
35.On 8 and 9 July 2008 the applicants were questioned in respect of their alleged ill-treatment by the police. They recognised the officers K., Pap. and Par. at the photos shown to them.
36.On 11 and 14 July 2008 a reconstruction of the events of 28 June and 1-2 July 2008 was conducted with the applicants’ participation.
37.On an unspecified date the Frunzenskyy Prosecutor’s Office directed the management of the police department to establish the whereabouts of the officers K., Pap. and Par., who had not complied with the prosecutor’s summonses.
38.On 18 July 2008 the Chief of the Frunzenskyy Police Department wrote to the prosecutor that all those three officers were on sick leave and that their whereabouts were being established.
39.On 21 August 2008 the police officers K., Pap. and Par. were questioned in respect of the alleged ill-treatment of the applicants. K. and Pap. refused making any statements. It is not known what Par. stated.
40.On 2 September 2008 the Kharkiv Regional Prosecutor’s Office discontinued the criminal investigation in respect of the aforementioned police officers, having concluded that the wrongdoings imputed to them were to be qualified as interference with the activity of a law-enforcement official (the Frunzenskyy Prosecutor) rather than exceeding power by engaging in the violent or degrading treatment of a victim. Accordingly, a different criminal case was opened, with a new charge.
41.On an unspecified date in October 2008 K., Pap. and Par. were questioned again. They denied any ill-treatment of the applicants. As to their behaviour on 1 July 2008, they submitted that they had believed that the applicants had posed a danger to the deputy prosecutor.
42.On 21 October 2008 the prosecutor, who had been involved in the events of 1 July 2008, gave detailed statements regarding those events, when questioned as a witness in the framework of the criminal investigation against the police officers.
43.Between 19 and 23 December 2008 the first applicant underwent a forensic medical examination with a view to establishing the origin of his injuries documented earlier.
44.On 23 December 2008 the examination report was completed. It reiterated the findings of the first applicant’s examinations of 28June and 2July 2008 (see paragraphs 14, 31 and 32 above). Furthermore, it noted that the sores on the first applicant’s wrists could have been caused by his handcuffing. The report stated that the findings of the earlier examinations did not contradict the other materials in the case file.
45.On 30 December 2008 the Kharkiv Regional Prosecutor’s Office terminated the criminal investigation into the applicants’ allegations of ill-treatment, for the lack of corpus delicti in the actions of the police officers. The prosecutor noted a contradiction in the first applicant’s submissions, according to which his only injury as of 28 June 2008 had been a bruise on his right hip from an accidental falling the day earlier, and the forensic medical examination report of 28 June 2008, which had established many others injuries. The expert who had examined the first applicant on 2July and 23December 2008, had stated during his questioning by the prosecutor that the injuries sustained by the first applicant after 28 June 2008, were located in the body parts accessible for self-infliction, apart from the bruise below the left shoulder blade. It appeared impossible to establish the origin of that bruise. The expert had also noted that no injuries on the first applicant’s genitals had been revealed. Overall, the prosecutor concluded that those few injuries which were dated later than 28 June 2008 “could have been sustained [by the first applicant] in circumstances unrelated to any use of force by the police against him”. It was also noted in the ruling that the first applicant had never raised any complaints before the medical personnel of the detention facility. Lastly, as regards the allegations of the second applicant that she had been ill-treated by the police, the prosecutor noted that her medical examination of 2 July 2008 had not revealed any injuries. In sum, the ill-treatment allegations of both applicants were found to be without basis.
46.On 9 October 2009 the Kharkiv Chervonozavodskyy District Court (“the Chervonozavodskyy Court”) quashed the above decision and directed the prosecution authorities to carry out an additional investigation. It noted, in particular, that the contradictions between the first applicant’s submissions that he had had no injuries as of 28 June 2008 and the forensic medical examination report of that date, according to which he had had numerous injuries, had to be clarified.
47.On 27 May 2010 a reconstruction of the events of 28June and 1‑2July 2008 was conducted with the participation of the first applicant. He maintained the allegations of his ill-treatment by the police.
48.On 27 and 28 May 2010 a forensic medical expert examined the available documents in respect of the first applicant with a view to clarifying the origin of his injuries. The case file does not contain a copy of the respective report. It appears that, according to the expert’s conclusions, only some of the first applicant’s injuries could have originated in the circumstances as described by him.
49.On 31 May 2010 the Kharkiv Regional Prosecutor’s Office once again terminated the investigation initiated on 2 July 2008 for the lack of corpus delicti in the actions of the police officers concerned. The prosecutor noted that, even though the first applicant had sustained some injuries while in detention, the exact time and circumstances of their infliction remained unknown. Furthermore, the location of some of the injuries allowed to presume that they could have been self-inflicted. The prosecutor also noted that the first applicant had not “personalised” his injuries: in other words, that he had not specified who exactly of the police officers had inflicted each specific injury on him. The investigator had also questioned the forensic expert who had conducted the examination of the first applicant on 28 June 2008 who had confirmed her findings.
50.On the same date, 31 May 2010, the Regional Prosecutor’s Office delivered two additional rulings refusing to open a criminal case following the complaints of ill-treatment by each of the applicants.
51.On 29 November 2010 the Kharkiv Regional Court of Appeal, acting as a court of first instance in the first applicant’s trial, ordered the Kharkiv Regional Prosecutor’s Office to investigate the first applicant’s allegation of ill-treatment by the police. It noted that, according to the first applicant, the presence of his fingerprint on the hoe seized at the crime scene was explained by the fact that the police officers had put that hoe in his hands by force during his ill-treatment.
52.On 28 December 2010, 25 April and 5 May 2011 the Frunzenskyy Prosecutor’s Office, to which the investigation was re-assigned, refused to open a criminal case against the police, having mainly relied on the respective rulings of 31May 2010 (see paragraphs 49 and 50 above). All those decisions were, however, quashed as premature.
53.On 18 May 2012 the Frunzenskyy Prosecutor’s Office again refused to open a criminal case against the police officers allegedly involved in the applicants’ ill-treatment.
54.On 11 June 2012 the Kharkiv Regional Prosecutor’s Office ordered a forensic medical examination of the first applicant by an expert panel with a view to clarifying his injuries and the possible circumstances of their infliction. The investigator noted that similar examinations, which had been carried out earlier, were inconsistent in their conclusions.
55.On 12 July 2012 a panel of experts issued a forensic medical examination report, in which they stated, in particular, that the first applicant might have sustained all the injuries (with the exception of two bruises and one sore) at the time and under the circumstances as indicated by him during the reconstruction of the events conducted on 27 May 2010 (see paragraph 47 above).
56.On 6 August 2012 the Kharkiv Regional Prosecutor’s Office, which was apparently investigating the matter in parallel, refused to open a criminal case against the police officers too. On the same day it terminated, on similar grounds as earlier, the criminal investigation initiated on 2July 2008. On 5 September 2012 the Chervonozavodskyy Court quashed both aforementioned rulings as based on an incomplete and one-sided investigation.
57.On 8 October 2012 the Kharkiv Regional Court of Appeal upheld that decision.
58.On 22 October 2012 the Kharkiv Regional Prosecutor’s Office refused to open a criminal case against the police officers in respect of the second applicant’s allegations of ill-treatment. On the same date it discontinued the criminal investigation against the police officers in respect of the first applicant’s allegations of ill-treatment, which had been launched on 2 July 2008 (see paragraph 30 above).
59.The first applicant unsuccessfully challenged the aforementioned decision before the domestic courts.
D.The first applicant’s trial
60.On 11 November 2008 the first applicant was committed for trial.
61.On 18 May 2009 the Kharkiv Regional Court of Appeal (“the Kharkiv Court”), sitting as a court of first instance, remitted the case for additional investigation. It noted, in particular, that the first applicant’s initial confession could not be relied on because he had later retracted it as obtained under duress and given that his ill-treatment complaint had not been duly investigated. The court also indicated a number of contradictions between the first applicant’s confessions and the case-file materials.
62.On an unspecified date the additional investigation was completed and the case was referred to the trial court again.
63.On 26 January 2011 the Kharkiv Court found the first applicant guilty of murder for profit and sentenced him to fourteen years’ imprisonment with confiscation of all his personal property. It relied, in particular, on the first applicant’s initial confessions, which he had later retracted. Furthermore, the court referred to certain material evidence inculpating the first applicant (such as the hoe with his fingerprint found at the scene of the crime, and his shorts with a blood stain possibly originating from the victim). His allegations that he had been ill-treated and that the evidence against him had been fabricated were dismissed as unsubstantiated.
64.On 20 September 2011 the Higher Specialised Civil and Criminal Court quashed the above judgment mainly on the ground that Article3 of the Convention and the Court’s case-law required a proper investigation of the first applicant’s allegations of ill-treatment, which had not been done. The Higher Court also remitted the case to the first-instance court for fresh examination.
65.On 4 July 2012 the Kharkiv Court once again found the first applicant guilty of murder for profit and sentenced him to fourteen years’ imprisonment with confiscation of all his personal property. The court relied, inter alia, on his confessions made on 28 June 2008 and further reiterated on 30 June 2008 in the presence of his lawyer (see paragraphs19 and 22 above). It was noted in the judgment that the first applicant’s lawyer, who had represented him on the aforementioned dates, had been questioned and had stated that he had had a confidential conversation with the first applicant prior to the first questioning and that there had been no violations of the criminal procedure.
66.As regards the first applicant’s allegation that he had been ill-treated on 28June 2008, the court noted that the prosecution authorities had thoroughly investigated the matter and had decided not to institute criminal proceedings against the police officers concerned. The Kharkiv Court referred in this connection to the prosecutor’s decision of 18 May 2012 (see paragraph 53 above). At the same time, having regard to the ill-treatment allegation on the part of the second applicant, which was still under investigation, the Kharkiv Court decided not to rely on her statements incriminating the first applicant, which she had made during the pre-trial investigation.
67.In so far as the first applicant complained of his kidnapping by the police from the prosecutor’s office on 1 July 2008, the trial court noted that the investigation was ongoing and that it was not necessary to wait for its outcome for the pronouncement of the judgment.
68.The first applicant challenged the judgment on points of law. He submitted, in particular, that that there was no solid evidence proving his guilt and that the trial court had wrongly relied on his self-incriminating statements obtained under duress, without any adequate investigation of his ill-treatment complaint. He referred in this connection to the Court’s judgment in the case of Savin v. Ukraine (no. 34725/08, 16 February 2012), which concerned that applicant’s torture by K., the same police officer who was involved in the alleged ill-treatment of the applicants in the present case.
69.On 22 January 2013 the Higher Specialised Civil and Criminal Court upheld the judgment of the first-instance court and its reasoning.

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5.The applicant was born in 1966 and is currently being detained in Giurgiu Prison. He is married and has four children. His wife resides in Turkey together with their children.
6.On 28 June 2005 the Bucharest County Court convicted the applicant of aggravated murder and sentenced him to eighteen years’ imprisonment. The Bucharest County Court also decided that the applicant would be deported to Turkey at the end of his prison term.
A.Conditions of the applicant’s detention
1.The applicant’s account
7.In his letters to the Court, which he began sending on 15 July 2008, the applicant complained of the inhuman conditions in which he was being detained, first in Rahova Prison and then in Giurgiu Prison. He described a severe lack of hygiene in both prisons, with insufficient cleaning and personal hygiene products being provided by the prison authorities. He alleged that he could not sleep at night because of bed bugs. He also complained that the food was not adapted to his diabetes.
8.The applicant further alleged that throughout his detention in both prisons he had not been included in any educational activities and had notbeen allowed to do any work. He had thus been unable to integrate, to be re-educated or to have the term of his prison sentence reduced.
9.In 2008 the applicant was diagnosed with type II diabetes and a sleep disorder.
2.The Government’s account
(a)Rahova Prison
10.In Rahova Prison the applicant was detained in cells measuring 21sq.m, which he shared with seven other prisoners (2.62 sq. m of personal space). The cells contained eight beds, a window measuring 1.2 by 1.2 m and their own bathroom with a shower, a sink and a toilet. Cold water was always available and hot water was available twice per week. Heating was provided during the winter up to a maximum temperature of 18oC.
11.The Government submitted that, whenever the presence of bugs was noticed, disinfection operations took place without delay. They submitted documents showing that disinfection had been performed two or three times per year in 2005, 2007 and 2008 in the cells occupied by the applicant in Rahova Prison.
12.The food provided to the applicant was adequate and adapted to his diabetes by substituting pork with beef.
13.The applicant participated in educational and recreational activities whenever necessary. The Government further indicated that the applicant’s reduced participation in the above-mentioned activities was due to his state of health.
(b)Giurgiu Prison
14.The Government submitted that on 17 January 2009 the applicant had been transferred to Giurgiu Prison where he was currently being held in a cell measuring 21.47 sq. m together with five other prisoners (3.57 sq. m of personal space). The cell contained six beds, three bedside tables, one bench, one table and a box for shoes. It had a window measuring 1.5 by 1.8m and a bathroom with a shower, a sink and a toilet. During the winter, a temperature of 19oC was ensured in all the cells. Hot water was provided twice per week.
15.With respect to the prisoners’ personal hygiene, once per month the prison administration provided each prisoner with two bars of soap, onetube of toothpaste, one tooth brush, one tube of shaving cream, onerazor, and toilet paper. Concerning the hygiene in the cell, the Government submitted that prisoners were responsible for cleaning the cells and were provided with cleaning products by the prison administration. Regular disinfection was conducted once every three months.
16.The applicant received a menu adapted for his diabetes, which included 125 grams of meat per day.
17.With respect to activities in Giurgiu Prison, the Government submitted that in December 2011 the applicant had watched a folk music concert and in December 2012 he had taken part in a discussion on religious themes conducted by the orthodox priest. Also, once in 2013 and once in 2014 the applicant had taken part in a quiz on Romanian history.
B.The applicant’s requests for transfer to Turkey
18.In 2007 the applicant lodged a request with the Romanian Ministry of Justice based on the provisions of the Convention between Romania and Turkey on the transfer of convicted persons, seeking to serve the rest of his sentence in a Turkish prison. According to the applicant, he wanted the transfer in order to be closer to his family, who lived in a Turkish village in humble conditions and did not have the means to travel to Romania.
19.The Romanian Ministry of Justice acted on the applicant’s request and initiated the transfer proceedings. As a result, on 5 June 2007 the Ankara District Court acknowledged the judgment of the Romanian court which had convicted the applicant and decided that the rest of the applicant’s sentence should be served in Turkey.
20.On 4 February 2008 the applicant’s transfer request was brought before the Bucharest Court of Appeal. The applicant claimed before the court that such a transfer would be in accordance with the convention signed between Romania and Turkey and would allow him to see his children and to receive visits from his family, who would provide him with adequate food and treatment for his diabetes.
21.In a judgment of 4 April 2008 the Bucharest Court of Appeal rejected the applicant’s transfer request, on the ground that Turkey had less severe legal provisions on conditional release, which might lead to the applicant’s release in a shorter period of time. The punitive and educational purpose of his sentence would thus fail to be achieved.
22.On 15 December 2011 the Bucharest Court of Appeal rejected with the same reasoning a new transfer request lodged by the applicant.

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5.The applicant is a Syrian national of Kurdish origin. He was born in 1988 and currently lives in Geneva. On an unknown date he entered Swizerland from Italy, where he had arrived also on an unknown date. On 18 February 2013 he sought asylum in Switzerland.
6.On 8 May 2013 the Federal Office of Migration (the “FOM”) rejected the applicant’s asylum request on the basis of the fact that his fingerprints had already been registered in EURODAC, in Greece, on 16 August 2012, and in Italy, on 21 January 2013. Furthermore, the Italian authorities had accepted the Swiss authorities’ request of 17 April 2013 to take the applicant back into their territory by virtue of Article 10 § 1 of Regulation no. 343/2003/EC (the “Dublin Regulation”). The FOM further ruled that the applicant’s two sisters, who were living in Switzerland respectively since 2006 and January 2012, did not fall under the category of “family members” as provided in Article 2 (i) of the Dublin Regulation. Regarding the back problems alleged by the applicant, it considered that Italy was obliged to grant him access to medical treatment and that nothing indicated that those health problems impeded the transfer of the applicant to Italy.
7.The applicant appealed against the FOM’s decision to the Federal Administrative Court (the “FAC”). He maintained that he had fled his home country Syria because he had been persecuted, detained and tortured there. As established by medical certificates, he had been diagnosed with severe post-traumatic stress disorder, for which he was receiving medical treatment. He was also receiving medical treatment for his back problems. He claimed that the FOM’s decision was in breach of Article 10 § 1 of the Dublin Regulation because Greece was the first member State he had entered less than twelve months before. Thus it was the Greek authorities which were theoretically responsible for examining his asylum request. It could not, however, be derived from the fact that he could not be returned to Greece as established in M.S.S. v. Belgium and Greece ([GC] no. 30696/09, ECHR 2011) that Switzerland could return him to Italy. Therefore, the Swiss authorities’ request for his return to Italy was in breach of the law because they had known that the Italian authorities were not competent in that matter, and Italy had erroneously accepted the request. According to the applicant, the FOM’s decision also violated Article 15 § 2 of the Dublin Regulation which provided that persons who were dependent on relatives who were residing in a member State should be kept together with them. In this regard he established that two of his older sisters were legally residing in Switzerland with their families. He claimed that owing to the presence of his sisters he had regained a certain emotional stability in his life. His expulsion to Italy, where he had no family member to care for him, would therefore aggravate his mental health problems in such a way that he would be at risk of irreparable harm contrary to Articles 3 and 8 of the Convention.
8.On 13 June 2013 the FAC dismissed the applicant’s appeal. It ruled that according to the Dublin Regulation the applicant had to return to Italy, whose authorities had, prior to accepting the Swiss request for return, been informed by Switzerland that the applicant had first entered the “Dublin area” in Greece. Furthermore, the FAC considered that in view of the dates of arrival in the respective countries it could not be excluded that on leaving Greece the applicant had left the “Dublin area” before entering Italy. Furthermore, it established that the applicant was not so severely ill that he was dependent on the assistance of his sisters. Therefore, Article 15 § 2 of the Dublin Regulation was not applicable in his case and neither was Article8 of the Convention. Moreover, the FAC held that with regard to the asylum procedure and the availability of medical treatment for asylum seekers it had not been established that there were structural deficiencies in the Italian reception system and that Italy failed to respect its international obligations in respect of asylum seekers and refugees. Therefore, nothing indicated that the applicant would suffer treatment contrary to Article 3 of the Convention in the event of expulsion to Italy. Finally, the FAC stated that it was up to the Swiss authorities to inform their Italian counterparts about the applicant’s health problems when they were executing the expulsion.
9.Before this Court the applicant produced in particular a medical report dated 6 June 2013 establishing that, as a result of trauma allegedly suffered in detention in Syria, he had back problems and showed severe symptoms of post-traumatic stress disorder. As a result, the applicant was put on a course of twice monthly psychotherapy sessions with a general practitioner and was prescribeda daily dose of Sertraline, an anti-depressant, as well as sleeping pills (Zolpidem) and pain-killers for his back (Tilur).
The report also stated that in the absence of medical treatment the applicant’s health status would deteriorate quickly and put him at a high risk of alcohol or drug abuse as well as suicide. The risk of suicide would be greater should the applicant be returned to his country of origin.
Moreover, according to the report, the involvment of the applicant’s sisters was “an absolute necessity” (absolument nécessaire) for him to gain some emotional stability in order to overcome the multiple traumas suffered.
Upon the recommendation of his doctor, the applicant was allocated an individual apartment unit for asylum seekers. The applicant also submitted his sisters’ declarations, according to which he was virtually spending the whole time with their families, he was in great emotional need, could not be left alone and spent only the nights alone in his apartment. They added that they were willing and able to provide him with emotional support so that he could recover from his trauma.
14. A detailed description of the asylum procedure and the legal framework and organisation of the reception system for asylum seekers in Italy is also set out in the Tarakhel judgment (§§ 36-50).

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6.The applicants, Mr V.M. and Mrs G.S.M., and four of their children were born in 1981, 1977, 2001, 2004, 2007 and 2011 respectively and live in Serbia. Their eldest daughter, who was also an applicant, was born in 2001 and subsequently died on 18 December 2011 after the application had been lodged.
A.The applicants’ movements prior to their arrival in Belgium
7.The applicants are of Roma origin and were born in Serbia, where they spent the greater part of their lives. They explained that they decided to leave their country for Kosovo because of the discrimination and ill‑treatment they had suffered on account of their origin in every sphere: access to the employment market, medical care, schooling difficulties and so forth.
8.The eldest daughter of the first two applicants had been physically and mentally disabled since birth and had suffered from epilepsy.
9.After failing to obtain a more secure situation for themselves in Kosovo, in March 2010 the applicants travelled to France, where they lodged an application for asylum. Their application was rejected by a final decision on 4 June 2010.
10.The applicants stated that in the meantime they had returned to Kosovo, and then to Serbia, in May 2010 owing to the precariousness of their situation in France and their inability to provide for their essential needs.
11.In March 2011, as their situation had not changed, the applicants decided to go to Belgium, where they lodged an asylum application on 1April 2011.
B.“Dublin” procedure in Belgium
12.During their interview with the “Dublin” department of the Aliens Office on 4 April 2011 the applicants gave an account of their movements to date and expressed their fears in the event of a return to Serbia. The first applicant stated that he had chosen to seek asylum in Belgium because he had been told that he could obtain better treatment for his disabled daughter there. He said that he was suffering from psychological problems. The second applicant said that Belgium had been the choice of the smuggler. When asked about her health, she replied that she was six months’ pregnant. She also mentioned their eldest daughter’s health problems.
13.The applicants maintained that they had explained the reasons why they refused to return to France, where they had been living in extremely precarious conditions. They submitted that they had not been asked to provide any evidence of having left the territory of the Member States of the European Union (“EU”) or regarding the family members’ state of health.
14.On 12 April 2011 the Belgian authorities sent France requests to take the applicants back on the grounds that the latter had been unable to prove that they had left the territory of the Member States of the EU for Serbia since their stay in France.
15.On 22 April 2011, relying on Article 16(3) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third‑country national (“the Dublin II Regulation”), France refused to take charge of the applicants on the grounds that the couple were considered to have disappeared since May 2010 because they had not collected the notice of final refusal of their asylum application dated 4 June 2010 and this corroborated their statements to the Aliens Office according to which they had left the Schengen Area in 2010 and re-entered it in March 2011, thus leaving for a period of more than three months.
16.On 2 May 2011 the Belgian authorities asked the French authorities to reconsider their position given that there was no conclusive evidence that the family had left the territory of the Member States for more than three months since their stay in France and the applicants were clearly aware of the rejection of their asylum application in France.
17.On 6 May 2011 France accepted the request to take the family back pursuant to Article 16(1)(e) of the Dublin II Regulation.
18.On 17 May 2011 the Aliens Office issued decisions refusing the applicants leave to remain and ordering them to leave the country for France on the grounds that under Article 16(1)(e) of the Dublin II Regulation Belgium was not responsible for examining the asylum application and that France had agreed to take charge of the family. The decisions indicated among other things that the family, who were originally from Kosovo, “had not furnished evidence of their stay” in Kosovo after staying in France nor any certificates regarding any medical treatment or care in respect of the pregnancy, or concerning the child or the father. Considering that France was a country which respected human rights, had democratic institutions, had ratified the Convention and the Geneva Convention on the Status of Refugees, and was bound to implement the directives of the European Union on asylum and that if a return were to raise a problem under Article 3 of the Convention, the family could always lodge an application with the Court for interim measures, the Aliens Office considered that the Belgian authorities did not have to use the sovereignty clause provided for in Article3(2) of the Dublin II Regulation.
19.Accordingly, the applicants were ordered to leave the country within seven days and to report to the French authorities at the border crossing. On the same day the applicants were issued with laissez-passer.
20.On 19 May 2011 the applicants, through their legal representative, contacted the Aliens Office for the purposes of providing it with evidence that they had left the territory of the European Union for more than three months (gynaecologist’s certificates, the second applicant’s health card and proof of enrolment at school of one of their children).
21.On 25 May 2011 execution of the orders to leave the country were extended until 25September 2011 on account of the fact that the second applicant was soon due to give birth.
22.On 16 June 2011 the applicants lodged an application with the Aliens Appeals Board for the decisions refusing them residence permits and ordering them to leave the country to be set aside and for a stay of execution. They argued that the decisions, with the reasons given therein, had not provided them with the examination required by Article 13 taken together with Article3 of the Convention (M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 336, ECHR 2011) of their fears regarding a return to Serbia and of their health problems. Firstly, the reasoning was erroneous and incomplete (error as to their nationality, identifying them as Kosovars instead of Serbs, failure to mention their return to Serbia and their Roma origin). Secondly, they could not be blamed for having failed to provide, during their Dublin interview, documents certifying their health problems and their movements to date or for not having substantiated their fears regarding a transfer to France. Like all Dublin asylum-seekers at that time, when they had attended those interviews they had not been assisted by a lawyer or informed of the documents that they should bring and no document had been requested of them. As they had expressed their fears, the Belgian authorities should have asked the appropriate questions and requested the relevant documents in order to ensure that their return did not infringe their fundamental rights. The applicants also argued that France should not have been determined as the State responsible for examining their asylum applications. Under Article 16(3) of the Dublin II Regulation, the obligations regarding the determination of the State responsible ceased where the third-country national had left the territory of the Member States for at least three months. That was precisely the position the applicants had been in on account of their return to Serbia from May 2010 to March 2011 as certified by the documents subsequently sent to the Aliens Office (see paragraph 20 above). Lastly, they submitted that the Belgian authorities should have used the sovereignty clause or the humanitarian clause both on account of their special vulnerability and of the notoriously difficult situation of the Roma minority in Serbia and of the conditions for the reception of asylum-seekers in France.
23.The hearing before the Aliens Appeals Board took place on 26August 2011.
24.On 23 September 2011 the applicants unsuccessfully sought a further extension of the order to leave the country pending the outcome of the proceedings before the Aliens Appeals Board.
25.On 27 September 2011 the applicants lodged an application with the Court for interim measures suspending their transfer to France pending the outcome of the proceedings before the Aliens Appeals Board.
26.On 28 September 2011 the Court refused to indicate an interim measure.
27.In a judgment of 29 November 2011 the Aliens Appeals Board ruled on the application to have the decisions refusing residence permits and ordering the applicants to leave the country set aside and for a stay of execution.
28.The Aliens Appeals Board dismissed the ground of appeal regarding the conditions of reception in France and based on the risk alleged by the applicants of being exposed to treatment contrary to Article 3 of the Convention. It found as follows:
“... the Board cannot but observe that the applicants have failed to show that they encountered difficulties in their dealings with the French authorities regarding access to health care for their child or their conditions of reception as asylum-seekers. They have not adduced so much as a shred of evidence regarding the circumstances of the ill-treatment they have allegedly suffered and have merely asserted in their application, without substantiating this with the slightest evidence that could corroborate the facts,“that they found themselves in an extremely precarious situation at the time of lodging their application for asylum and that their only refuge was a night hostel that they had to leave the next morning”. Moreover, although their daughter’s disability had been specified in the “Dublin form”, the parties have not made any allegation whatsoever before the Aliens Appeals Board of encountering particular difficulties in the reception of asylum-seekers as organised by the relevant French authorities.”
29.The Aliens Appeals Board also criticised the applicants for failing to produce in full the NGO reports that they had cited in support of their application, which had prevented it from checking whether the extracts produced did actually concern France.
30.The Aliens Appeals Board set the decisions aside, however, on the ground that the Aliens Office had not established the legal basis on which it considered that France was the State responsible for examining the applicants’ asylum application.
31.On 23 December 2011 the Belgian State lodged an appeal on points of law with the Conseil d’État against the Aliens Appeals Board’s judgment. It disputed the Aliens Appeals Board’s analysis of the applicable legal basis.
32.In an order of 12 January 2012 the Conseil d’État declared the appeal admissible. In a judgment of 28 February 2013 it rejected it for lack of current interest on the grounds that the operative provisions of the Aliens Appeals Board’s judgment were no longer a source of complaint for the applicants because they had returned to Serbia and had left the territory of the Member States for more than three months with the result that Belgium was relieved of any obligation in the process of determining which Member State was responsible for their asylum application.
C.Application for regularisation of residence status on medical grounds
33.In the meantime, on 22 September 2011, the applicants had lodged an application for leave to remain on medical grounds under section 9ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15December 1980 (“the Aliens Act”) on behalf of their eldest daughter. They referred to the extreme precariousness of their position and the discrimination they had suffered as Roms in Serbia and Kosovo. Citing several international reports in support of their submissions, they argued that for that reason they had no guarantee that they would be able to obtain the necessary treatment for their daughter’s health condition. They sought temporary leave to remain pending the outcome of the asylum proceedings they had instituted in Belgium.
34.On 30 September 2011 the Aliens Office declared their application inadmissible on the grounds that the medical certificate of 26 June 2011 (see paragraph 38 below), produced in support of their application to have their residence status regularised, certified the existence of a medical problem and stipulated the treatment considered necessary but, contrary to the requirements of section 9ter § 3, 3o of the Aliens Act, did not specify the degree of seriousness of the condition.
35.The applicants indicated in their observations in reply that they had learnt of the existence of that decision during the proceedings before the Court.
D.Reception in Belgium and medical care
36.On 1 April 2011 the Federal agency for the reception of asylum-seekers (“Fedasil”) assigned the applicants a reception facility as their mandatory place of registration, namely, Morlanwez asylum-seekers’ reception centre.
37.The social worker from the centre took down the following account by the applicants of the conditions of their reception in France:
“The family decided to leave France because they had no means of subsistence. They were living in a night shelter which they had to leave in the day. They and the children were out on the streets from 7 a.m. They had to use a pushchair as a wheelchair for S., who is disabled. They had no information of any kind apart from the status of asylum-seeker which had been given to them on their arrival. No doctor, no social worker, no lawyer, no interpreter. They had absolutely no means of communication. They had no idea what they should do or what to expect. S. was not receiving any medical treatment of any kind. When her health deteriorated and she had to be taken to hospital, it was the mother’s sister who drove her to the emergency ward at the hospital and acted as interpreter. Once at the hospital the little girl had [epileptic] fits and her hair fell out. That was what decided the family to return to Serbia”.
38.The eldest daughter was examined on 26 June 2011 by a neuro‑psychiatrist at Jolimont-Lobbes Hospital and a medical certificate was drawn up on that day certifying the child’s disabilities.
39.In that certificate, which was sent to the Aliens Office on 1 July 2011, the doctor noted that the child had “cerebral palsy with epilepsy”, suffered from “severe axial and peripheral hypotonia”, that she could not sit up unassisted and soiled her underwear, that she could not talk and appeared not to understand others. He also noted that the child was taking medicines and that she required physiotherapy and appropriate equipment (orthopaedic braces, seat-brace). Those medical findings were confirmed by a neurological examination carried out on 1 July 2011.
40.The eldest daughter was admitted to hospital on 7 and 8 July 2011 for her epileptic fits and a neurological report drawn up.
41.After the second applicant gave birth on 26 July 2011 the family were assigned a new reception centre on 5 August 2011 in an open centre suitable for families, in Saint-Trond in the province of Limbourg.
42.On 26 September 2011, when the order extending execution of the order to leave the country expired, and as they could no longer benefit from material assistance for refugees, the applicants were removed from the Saint-Trond reception centre.
43.The applicants travelled to Brussels, where voluntary associations indicated a public square in the municipality of Schaerbeek, in the centre of the Brussels-Capital administrative district, where other homeless Roma families were also staying. They stayed there from 27September to 5October 2011.
44.On 29 September 2011, through their legal representative, the applicants asked the French-speaking community’s General Delegate to the Rights of the Child to intervene urgently with the national authorities responsible for the reception of asylum-seekers.
45.On the same day the General Delegate sent a letter to the Director-General of Fedasil requesting that accommodation be found urgently.
46.A signed statement by the General Delegate dated 2 October 2011 indicated that he also contacted the municipality of Schaerbeek in an attempt to find urgent accommodation for the family. According to the General Delegate, the municipal authorities stated that they did not have power to make a decision and that it was for the federal authorities to decide, and Fedasil declared that it did not have power on account of the decision taken by the Aliens Office regarding France’s responsibility for processing the asylum request (see paragraph 18 above). Fedasil also stated that the application to the Aliens Appeals Board (see paragraph 22 above) was not of suspensive effect, which was why the reception centre had applied the rules terminating the right to material assistance.
47. On 5 October 2011, following the intervention of the General Delegate, the Secretary of State’s office for Asylum and Migration, Social Integration and the Fight against Poverty instructed Fedasil to designate a reception centre as a matter of urgency.
48.After spending two days at the transit centre of the Woluwe‑Saint‑Pierre municipality, also in the Brussels-Capital administrative district, on 7October 2011 the applicants were assigned a new reception centre as a mandatory place of registration: the Bovigny reception centre for asylum-seekers in the province of Luxembourg approximately 160 km from Brussels.
49.The Government maintained that the applicants had failed to register at the centre. The applicants, for their part, stated that they had gone there by train and a special bus but had been sent back to Brussels to Fedasil’s Dispatching Department on the grounds that their “annex 26quater [order to leave the country] was invalid.”
50.When they got back to Brussels on 7 October 2011 the applicants got off the train at the Brussels Gare du Nord, where they remained without any means of subsistence and with no accommodation despite the very cold weather for nearly three more weeks until their return to Serbia was organised via a charitable organisation as part of the Fedasil return programme. The applicants left Belgium for Serbia on 25 October 2011.
51.In the meantime, on 12October 2011, the applicants’ mandatory place of residence had been changed to code 207 “no-show” (see paragraph 81 below) and on 25 November 2011 the applicants’ names were deleted from the waiting register.
E.Return to Serbia
52.After their return to Serbia their eldest daughter’s health deteriorated, forcing the applicants to leave the room they had rented on account of the insalubrious conditions. They went to stay with a relative in Novi-Sad and then to the suburbs in Belgrade.
53.The applicants’ eldest daughter was admitted to hospital on 4December 2011 suffering from a lung infection. She died on 18December 2011.
54.In a letter to their lawyer of 21 November 2012 the applicants stated that they had been attacked by Serbs on a number of occasions: among other incidents, some men had driven by in a car and broken the windows of their home by throwing stones, and had uttered threats, complaining of their links with the “Belgians” and ordering them to leave Serbia. The first applicant had attempted to defend himself and been beaten up twice by his attackers.
A.European Union law
1.Dublin Regulation
100.At the material time the“Dublin” procedure was governed by Council Regulation (EC) No343/2003 of 18February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“Dublin II Regulation”).
101.The main relevant provisions of the Dublin II Regulation are set out in M.S.S. v. Belgium and Greece, cited above (§§ 65-76). Article 16(1) of that Regulation also provides that the Member State responsible for examining an asylum application under the Regulation must take back, firstly, an applicant whose application is under examination and who is in the territory of another Member State without permission (Article 16(1)(c)) and, secondly, a third‑country national whose application it has rejected and who is in the territory of another Member State without permission (Article16 §1e)). The obligations specified in paragraph 1 cease where the third‑country national has left the territory of the Member States for at least three months (Article 16(3)).
102.The Dublin II Regulation was recast by Regulation (EU) No604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, known as the “Dublin III Regulation”. The main lines of the recast are set out in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 35-36, ECHR2014 (extracts).
2.Reception Directive
103.Council Directive No 2003/9 of 27January 2003 laying down minimum standards for the reception of asylum-seekers in the Member States (“the Reception Directive”) provides that the States must guarantee asylum-seekers
– certain material reception conditions, including housing, food and clothing, in kind or in the form of financial allowances; the allowances must be sufficient to protect the asylum-seeker from extreme need;
– arrangements to maintain family unity;
– medical and psychological care;
– access for minors to the education system, and to language classes where necessary for them to undergo normal schooling.
104.The Reception Directive was recast by Directive No2013/33 of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, with a view to guaranteeing a common European system for the physical reception conditions and fundamental rights of asylum-seekers, and ensuring that the administrative detention of asylum-seekers is used only as a last resort.
105.In Cimade and Gisti (C-179/11, judgment of 27September 2012), the Court of Justice of the European Union (“CJEU”) specified that a Member State in receipt of an application for asylum was obliged to grant the minimum conditions for reception of asylum-seekers laid down in the Reception Directive even to an asylum-seeker in respect of whom it decided, under the Dublin II Regulation, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant (§ 50). That obligation ceased only when that applicant had actually been transferred by the requesting Member State (§ 58).
106.In the case of Federaal agentschap voor de opvang van asielzoekers v. Selver Saciri, Sanijela Dordevic, Danjel Saciri et Sanela Saciri (C-79/13, judgment of 27 February 2014), a request for a preliminary ruling was made to the CJEU by the Brussels Employment Tribunal concerning the arrangements for providing the physical reception conditions.Basing its answer on the text of the Reception Directive and its scheme and purpose and stressing the importance of respect for fundamental rights, in particular respect for human dignity, the CJEU said that the asylum-seeker could not be deprived – even temporarily after an asylum application had been lodged and before being actually transferred to the responsible Member State – of the protection of the minimum standards laid down by that directive (§ 35). With regard to the level of the physical reception conditions, the CJEU said that this must be sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence (§ 40). Furthermore, the Member States were required to adjust the reception conditions to the situation of persons having specific needs. The financial allowances also had to be sufficient to preserve family unity and the best interests of the child (§ 41). The CJEU specified that where a Member State provided these conditions in the form of financial allowances, those allowances had to be sufficient to enable them to obtain housing, if necessary, on the private rental market (§42). Where families were concerned, those allowances had to enable minor children of asylum-seekers to be housed with their parents (§ 45).
3.Return Directive
107.Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (“the Return Directive”) governs removal and placement in detention where necessary and provides for procedural guarantees.
B.The European Social Charter
108.Belgium ratified the European Social Charter on 16October1990 and the revised European Social Charter (“the revised Charter”) on 2March 2004. It accepted Article 17 of the revised Charter which is worded as follows:
“With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-operation with public and private organisations, to take all appropriate and necessary measures designed:
1.a.to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose;
b.to protect children and young persons against negligence, violence or exploitation;
c.to provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family’s support;
2. ..”
109.The European Committee of Social Rights (“ECSR”) ruled on Belgium’s compliance with its obligations under Article 17 of the revised Charter regarding the reception conditions of unlawfully present unaccompanied and accompanied foreign minors in the decision of 23October 2012, Defence for Children International (DCI) v.Belgium, complaint no.69/2011. The relevant extracts of the decision read as follows:
“56.According to the DCI, however, because of the saturation of the reception network, FEDASIL has since 2009 been refusing to take in illegally resident families, as they are not prioritises as compared with asylum-seekers and are not registered on any waiting list. As a result of this situation, many families are forced to live in the street with their children. The public social welfare centres, which are competent at the municipal level, have also refused to intervene, referring the responsibilities to FEDASIL. The only legal possibility involves lodging a judicial appeal with the Labour Court in order to force FEDASIL to accommodate them. According to the organisation, 1773 illegally resident families had still not been granted accommodation on 30 September 2010.
57.The DCI also alleges a targeted refusal to accommodate these families, such refusal being systematic even when the network is not saturated. ...
...
82.[The] Committee considers that the fact that the Government has, since 2009, no longer guaranteed accompanied foreign minors unlawfully present in the country any form of accommodation in reception centres (through either through the FEDASIL network or other alternative solutions) breaches Article 17§1 of the Charter. The persistent failure to accommodate these minors shows, in particular, that the Government has not taken the necessary and appropriate measures to guarantee the minors in question the care and assistance they need and to protect them from negligence, violence or exploitation, thereby posing a serious threat to the enjoyment of their most basic rights, such as the rights to life, to psychological and physical integrity and to respect for human dignity. Similarly, the fact that at least 461 unaccompanied foreign minors were not accommodated in 2011 and the problems posed by inappropriate accommodation in hotels lead the Committee to the conclusion that the Government failed to take sufficient measures to guarantee non-asylum seeking, unaccompanied foreign minors the care and assistance they need, thereby exposing a large number of children and young persons to serious risks for their lives and health.
83.Consequently, the Committee holds that there is a violation of Article 17§1 of the Charter.”
110.The European Commission against Racism and Intolerance (“ECRI”) made the following findings in a report on Serbia (fourth monitoring cycle, CRI(2011)21), published in May 2011:
“62.NGOs estimate that two-thirds of the Roma population continue to live in informal settlements lacking schools, medical care, water, electricity and sewage facilities. These settlements are overpopulated and are at a great distance from basic facilities and services. In addition, the majority of Roma who live in these settlements do not have the relevant ownership documentation for their homes or land, thus compounding their housing problems. There are Roma settlements in all parts of Serbia with the majority being in Belgrade and in other larger cities and municipalities. The improvement of the living conditions in the settlements is one of the stated goals of the Strategy for Improvement of the Status of Roma and ECRI therefore hopes that the necessary resources will be allocated to measures taken to that end.
63.ECRI notes with concern that there is strong public opinion against relocating Roma. One specific problem is that when the Serbian authorities propose that Roma will be relocated to appropriate housing, the local population protests and refuses to agree to a Roma population moving into their neighbourhood. It thus appears that measures are still necessary to combat the intolerance and racism faced by Roma in the housing sector.
64.ECRI notes with concern that there have been many forcible evictions of Roma in and around Belgrade since its first report ... .
...
69.ECRI notes with concern that in many respects, the hygienic and sanitary conditions in many Roma settlements have not improved since ECRI’s first report. The health situation of Roma, in particular Roma women, children and elderly is particularly alarming and there is a difficulty in access to health care in the absence of the necessary medical registration. The mortality rate of Roma children in Serbia is four times higher than that of the general population.”
111.In its concluding observations on the initial report of Serbia (CERD/C/SRB/CO/1; 78th session, 14 February-11 March 2011), the Committee on the Elimination of Racial Discrimination expressed the following concerns and made the following recommendations:
“14.The Committee is concerned that the Roma population, in many cases, lives in segregated settlements and experiences discrimination in respect of adequate housing and, in particular, is often subject to forced eviction with no provision of alternative housing, legal remedies, or compensation for damage and destruction of personal property. While noting with interest the Law on Social Housing, the Committee expresses concern about the particular difficulties faced by the Roma when applying for social housing programmes, resulting in a perpetuation of discrimination (arts. 2, 3, 5 (e) (iii) and 6 ).
The Committee urges the State party to ensure that any resettlements do not involve further forced evictions and that procedural protections which respect due process and human dignity be put in place. It recommends that the State party strengthen the measures aimed at improving the housing conditions of the Roma, and in this regard, recommends that it accelerate the implementation of the National Plan for Housing of Roma adopted in 2009. In light of the Committee’s general recommendations 27, paragraphs 30-31 (2000), on discrimination against Roma, and 32 (2009) on the meaning and scope of special measures, it also recommends that the State party intensify efforts to avoid residential segregation of minorities and encourages it to consider developing social housing programmes for the Roma.
15.The Committee expresses its concern that members of the Roma minority continue to experience segregation with regard to access to education. It is also concerned by the fact that Roma children returnees, upon readmission agreements from Western European countries, face additional difficulties in entering the Serbian educational system, due to inter alia enrolment and placement procedures (art. 3 and 5(e) (v)).
Bearing in mind its general recommendations 27, paragraphs 17-26 (2000) on discrimination against Roma, 32 on the meaning and scope of special measures, the Committee strongly urges the State party to address de facto public school segregation, and carry out the necessary measures to facilitate access to quality education including through anti-discrimination training for school staff and awareness-raising for parents, increasing the number of Roma teaching assistants, preventing de facto segregation of Roma pupils, and other measures for the promotion of inclusive education. It also encourages the State party to develop specialized and appropriate procedures for the reception, assessment and placement of children returnees and to increase the awareness of school teachers of the importance of such procedures.
16.While noting with appreciation the efforts taken by the State party to improve the situation of Roma, Ashkali and Egyptians and to prevent and combat racial discrimination against persons belonging to these groups, the Committee is concerned that they are subject to discrimination, prejudice, and stereotyping, in particular in access to employment, health care services, political participation and access to public places (Article 2, paragraph 2, and Article 5 of the Convention).
Bearing in mind its general recommendations No. 27 (2000) on discrimination against Roma and No. 32 (2009) on the meaning and scope of special measures, the Committee encourages the State party to intensify its efforts to prevent and combat racial discrimination against Roma, Ashkali and Egyptians. It recommends that the State party ensure effective implementation of policies aimed at the equal enjoyment by Roma, Ashkali and Egyptians of the rights and freedoms listed in article 5 and special measures to advance their effective equality in employment in public institutions and adequate political representation at all levels. The Committee also encourages the State party to actively carry out campaigns that raise awareness of the difficult position of these groups, in particular the Roma, and build solidarity.”
112.In his report published on 22 September 2011 following his visit to Serbia from 12 to 15 June 2011 (CommDH(2011)29), the Commissioner for Human Rights of the Council of Europe made the following findings and expressed the following concerns:
“3.Human rights of Roma
82.In the 2002 census 108.193 persons, approximately 1.44% of the total population, identified themselves as Roma. The actual number is deemed to be much higher. According to the Serbian government’s estimates the actual number of Roma ranges from 250 000 to 500 000.
...
85.Notwithstanding the government’s efforts to improve the human rights of Roma, the problems facing Roma remain some of the most serious human rights challenges. The Commissioner underlines that the Roma-related projects must be accompanied by resolute efforts to combat prejudice and deep-seated stereotypes against Roma. Efforts are necessary to raise awareness among the Roma population on available mechanisms to combat discrimination. In this context, the Commissioner welcomes the Equality Commissioner’s activities organised in Roma settlements which aim to raise their awareness about the work of her office.
...
3.a.Access of Roma to health care
...
89.Despite the progress made in the area of health care, Roma still face barriers due to lack of information, lack of personal identity documents and poverty. The 2005 Law on Health Insurance aims to enhance access of Roma to health care, as well as to improve their living conditions. This law provides for the right to health care for members of vulnerable groups, including Roma.
90.In 2011 ECRI noted with concern that in many respects, the hygienic and sanitary conditions in many Roma settlements have not improved since ECRI’s first report in 2008. The health situation of Roma, in particular Roma women, children and elderly persons is particularly alarming due to the absence of necessary medical registration. According to UNICEF, although the official estimates show a decrease in Roma child mortality rates since 2005, this rate is still at least four times higher than the national average.
3.b.Access of Roma to quality education
...
94.However, it is estimated that the number of Roma children attending pre-school education is between 4% and 7%, while 66% of Roma children (as opposed to 94% of the total population) enrol in primary school. According to the Ministry of Education only 16% of Roma enrol in secondary schools, and less than 1% of young Roma attend college or university.
...
96.The Commissioner is seriously concerned by the fact that the number of Roma children enrolled in schools for children with mild mental disabilities increased from 26.7% in 2002/2003 to 31% in 2008/2009.
97.In 2011 ECRI expressed concerns that Roma children still face hidden and overt forms of discrimination by school authorities, school staff, teachers, other children and non-Roma parents. Reportedly, as teachers have lower expectations of Roma pupils, there is a tendency to use lower criteria when assessing their performance. The Commissioner is concerned by reports indicating that due to the increase in Roma children attending schools, there is a tendency among non-Roma parents to transfer their children to other schools with fewer Roma children.
...
3.c.Access of Roma to employment
99.ECRI reported in 2011 that Roma in Serbia continue to suffer from a high unemployment rate, low economic activity and almost total exclusion from the public sector. There are almost no Roma in public and state-owned companies, indicating a pattern of discrimination. There are cases where Roma who present themselves for job interviews are informed that the position has been filled, and a few cases of discriminatory job advertising. The majority of Roma are outside the employment system, employed illegally and mostly registered as unemployed.
3.d.Access by Roma to adequate housing
100.The majority of Roma in Serbia live in very poor housing conditions. The problems that Roma face in this field are related to the overpopulation of settlements due to the small number of available housing units, unresolved property issues and illegal constructions, and lack of access to public infrastructures. Some studies have indicated that out of the 593 existing Roma settlements in Serbia, 72% have not been legalised, while in Belgrade alone there are 137 informal settlements.
...
102.The Commissioner has noted with concern reports on the increased number of forced evictions of Roma from informal settlements in Belgrade. He is particularly concerned by the reported failure by the authorities to comply with legal safeguards during evictions. Physical attacks by state officials during evictions and destruction of personal property without compensation have also been reported in various cases such as the one concerning the evictions in the informal Roma settlement Gazela, Belgrade, on 31 August 2009. Following these evictions 114 Roma families were provided with accommodation in metal containers in settlements scattered around the outskirts of Belgrade.
...
106.The Commissioner is particularly concerned by the housing situation of the Roma displaced from Kosovo, and Roma who are being forcibly returned from Western European countries. Reportedly they make up around 17% of the Roma populations in informal settlements. They face the harshest living conditions. Their difficult situation is aggravated by the lack of personal identity documents (see also below, sub-section on lack of birth registration and personal identification documents among Roma). Prospects for their local integration are generally bleak.
107.The Commissioner noted that the living conditions in the informal Roma settlement in Marija Bursać, Blok 61, Belgrade, which he visited on 14 June, are clearly sub-standard and may be qualified as degrading. The settlement hosts approximately forty Roma families and consists of wooden barracks, some of which have been severely damaged due to bad weather. The settlement is not connected to the public utilities system and there are no electricity, water and sanitary facilities. Parents told the Commissioner that because of these living conditions sending children to school is a very difficult task. The Commissioner saw children from the settlement washing their faces with dirty water from a nearby polluted stream. The presence of rats was also reported by inhabitants. On the positive side, the Commissioner has noted that almost all of the inhabitants had obtained personal identity documents through the UNHCR’s EU-funded Roma Inclusion Project.”

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5.The applicant was born in 1982 and is currently serving a prison sentence in Lepoglava.
A.Background to the case
6.On 23 October 2008 I.P., a well-known Croatian journalist, and his business associate N.F. were killed by the explosion of an improvised device placed under I.P.’s car, which was parked in front of his publishing company. The explosion also caused injuries to two employees of the publishing company and considerable material damage on the surrounding buildings and nearby parked cars.
7.On 23 October 2009 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Organised Crime Office”) indicted several persons in the Zagreb County Court (Županijski sud u Zagrebu) on charges of conspiracy to kill I.P. and for putting that into action. The applicant was indicted for having participated in the group by aiding and abetting the direct perpetrators.
8.On 3 November 2010 the Zagreb County Court found the applicant guilty as charged and sentenced him to sixteen years’ imprisonment.
9.The applicant’s conviction was upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 8 February 2012.
B.The applicant’s alleged ill-treatment by the police
10.Following the attack against I.P. and his publishing company, the intelligence available to the police showed that the applicant and several other persons could be implicated in the events and it was therefore decided to arrest them.
11.The Police Director (Glavni Ravnatelj Policije) issued an oral order that the arrests be carried out by an antiterrorist team of the Special Police Forces (Specijalna policija, Antiteroristička jedinica Lučko; hereinafter: the “ATJ”).
12.On 29 October 2008, at around 6.05 p.m., the ATJ stormed into the applicant’s flat, where he was at the moment together with his sister and grandmother.
13.According to the applicant, immediately after breaking into the flat, the AJT officers threw him on the floor and started punching him over the head and body.
14.According to the Government, an ATJ team of six officers broke into the applicant’s flat and ordered him to lie down. As he started resisting, the police officers applied the throwing technique of “foot sweep”, which made the applicant to lose his balance and while falling on the ground he hit the table with his head. He was immediately offered medical assistance but he refused.
15.A report available to the Court signed by the Commander-in-chief of the Special Police Forces (Zapovjednik Specijalne Policije) of 30 October 2008, which is essentially a verbatim of a report of one of the arresting ATJ officers (see paragraph 36 below), in its relevant part concerning the circumstances of the applicant’s arrest, reads:
“... the intervention with a view to arrest [the applicant] started by the ATJ officers forceful breaking the front doors using the [battering ram]. Inside the flat they found the suspect and an older woman to whom they issued several orders: “Police, lie down on the floor”. As the suspect resisted, two officers approached him and grabbed him by the arms but he continued to resist. [The officers] then applied the technique of foot sweep and pulled him to the ground. As he was still trying to set himself free he was handcuffed. While he was falling on the ground he hit the table with his face ... Afterwards ... [the officers] offered to the suspect medical assistance but he refused it saying that he felt good.”
16.According to the applicant, following his arrest he was blindfolded and taken to a remote place by a river, where he was again beaten up and his head was immersed in the water, forcing him to confess to the murders of I.P. and N.F. and some other crimes. The police officers also continued to beat him up while taking him to the police station.
17.According to the Government, following the applicant’s arrest he was taken to the parking area of the police station used by the Organised Crime Unit of the Zagreb Police Department (Policijska uprava zagrebačka, Sektor kriminalističke policije, Odjel organiziranog kriminaliteta; hereinafter: the “police”) where he was kept in the minivan of the ATJ in the period between 6.45 and 8.30 p.m., awaiting other suspects to be arrested and brought to the police station.
18.The available report of the arresting ATJ officer (see paragraph 36 below) in this respect indicates that the applicant was brought to the parking area of the police station at 7.00 p.m. where he was kept in the minivan of the ATJ until 7.40 p.m. and then surrendered to the police inspectors.
19.Once when he was brought to the police station on 29 October 2008 at around 8.30 p.m. the applicant was placed in a room under the control of two police inspectors M.A. and M.M.
20.According to reports of these two police inspectors dated 18 April and 14 May 2012 respectively, the applicant was for a while guarded by an ATJ officer but then, at unspecified time, they requested that officer to leave the room. The police inspectors also submitted that the applicant had been handcuffed when he was brought to the police station and then, at unspecified time but sometimes soon after his arrival, the handcuffs were taken off. They also acknowledged that they had seen visible injuries on the applicant’s head and nose for which he had been allegedly offered medical assistance but he had refused it. The emergency had been called in only after the order of their superiors.
21.The emergency service came to the police station on the same day at 10.55 p.m. The relevant record of the applicant’s examination, in so far as legible, reads:
“Brought to the police station. Visible open injury above the left eye; 1,5centimetre long. Contusion and haematoma of the nose with the possible fracture. Regular general status. The patient refuses to go to the hospital and further treatment.”
22.The applicant stayed in the police station until 30 October 2008 at 8.30 p.m. During that period he was taken to searches of his house and car and he was questioned by the police inspectors M.A. and M.M. in the presence of a lawyer and a Deputy at the State Attorney’s Organised Crime Office.
23.According to the applicant, throughout his stay in the police station he was tightly constrained, beaten and threatened that he should make no problems concerning his injuries.
24.According to the Government, during his stay in the police station the applicant was kept in one of the offices ordinarily used by the police officers. Apart from several minutes upon his arrival to the police station, the applicant was not handcuffed. He also had access to the toilet and drinking water. He was obliged to sit on a chair as there were no beds but it was impossible to take him to the detention unit as the investigative actions were still ongoing. In any case, he had an opportunity to ask for a rest and food but he did not make any such request.
25.On 30 October 2008, at around 8.30 p.m., the applicant was taken to the Police Detention and Escort Unit (Jedinica za zadržavanje i prepratu; hereinafter: “JZP”) for a rest. A report accompanying his transfer, signed by the Chief of the police and dated 30 October 2008 indicated, inter alia, that he had no visible injuries.
26.A report signed by the on-duty officer at JZP, dated 30 October 2008, indicated that the applicant was admitted to the detention unit with visible injuries of his face.
27.According to the applicant, during his stay in JZP he was offered a sandwich but he could not eat due to a strong jaw pain.
28.According to the Government, during his stay in JZP the applicant was placed in a room which was equipped with beds and sanitary facility. The room was appropriately heated and ventilated and had access to natural and artificial light. The hygiene and sanitary conditions were good and the applicant was provided with food and water.
29.On 31 October 2008 at 9.15 a.m. the police took the applicant from JZP to participate in a further search of his premises.
30.On the same day, at around 6.45 p.m., the applicant was brought for questioning before an investigating judge of the Zagreb County Court. He decided to remain silent concerning the charges held against him, but with regard to his injuries the applicant stressed:
“The only thing I would point out is that before I was taken in [to the police station] I fell in my flat and according to the findings of the doctors who were called in to the police station, I sustained a nose fracture, most probably with dislocation. I refused the medical assistance in order to get out from the police station as soon as possible.”
31.The investigating judge put no additional questions concerning this matter nor did he take any further actions in that respect.
32.Following the applicant’s questioning, an investigation into the explosion was opened in respect of him and several other persons. At the same time, an investigating judge of the Zagreb County Court ordered his pre-trial detention.
33.On 3 November 2008 the applicant was examined in Zagreb Prison Hospital (Zatvorska bolnica u Zagrebu) and several medical records were drafted.
34.One medical record available to the Court indicates that the applicant sustained his injuries after a fall on 30 October 2008, whereas two other medical reports refer to several blows on the applicant’s head and nose.
35.Based on his medical examination in Zagreb Prison Hospital, the applicant was diagnosed with contusions of head, nose and shoulder and a nose fracture without dislocation, as well as a distortion of a metal implant in his hand related to an old injury. His general medical condition at the time was regular and he had a smaller hematoma on the left side of his head and nose and smaller hematomas below both eyes. He also had a smaller hematoma on the left shoulder and a visible dislocation of the metal implant in his hand but without a fresh fracture. In July 2009 the applicant again saw a doctor who indicated testicular problems.
C.Investigation into the applicant’s alleged ill-treatment
36.On 29 October 2008 one of the arresting ATJ officers reported on the applicant’s arrest to the Commander of the ATJ. In his report, he indicated that the ATJ had been requested to arrest the applicant in connection with a suspicion of double murder. The report also provides the details of the arrest already observed above (see paragraphs 15 and 18 above).
37.On 30 October 2008 the Commander of the ATJ requested the Commander-in-chief of the Special Police Forces to assess the lawfulness of the ATJ’s actions; and the latter forwarded that request to the Police Director.
38.On the same day the Police Director assessed the reports concerning the ATJ actions by indicating the following:
“This is to inform you that I find the use of force, namely the physical force and the measures of restraint, used by the ATJ team on 29 October 2008 during the arrest of Amir Mafalani ... lawful within the meaning of sections 54, 55 and 57 of the Police Act and sections 30, 31, 32 and 35 of the By-law on the police conduct.”
39.In October 2011 the applicant, through lawyers, requested Zagreb Prison Hospital and the emergency services to provide him the relevant medical records concerning the injuries he had sustained during his arrest on 29 October 2008. He also requested the police to provide him the relevant documents related to his arrest.
40.On 2 November 2011 the police replied that all relevant reports were confidential and could not be disclosed. This reply was forwarded for information to the State Attorney’s Organised Crime Office.
41.On 11 November 2011, after receiving the reply, the applicant complained to the State Attorney’s Organised Crime Office asking why an effective investigation, within the meaning of Article 3 of the Convention, had not been conducted.
42.The State Attorney’s Organised Crime Office replied on 16November 2011, indicating that the applicant should consult the relevant domestic law on the use of police force and that, in case of any complaint to that effect, he could always lodge a criminal complaint with the competent State Attorney’s Office.
43.In the meantime, the applicant obtained the requested medical records.
44.On 15 February 2012 the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) against unidentified perpetrators alleging ill-treatment during his arrest and stay in the police station.
45.On 20 February 2012 the Zagreb Municipal State Attorney’s Office informed the applicant that his criminal complaint had been forwarded to the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) for further examination.
46.On 3 March 2014 the Zagreb County State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that there was no reasonable suspicion that a criminal offence had been committed. It relied on a written report of the Police Director and written reports of the police inspectors M.A. and M.M. It also observed the applicant’s medical documentation and search and seizure records as well as the interrogation records in the criminal proceedings against him.
D.The applicant’s civil proceedings against the State
47.On 31 January 2012 the applicant instituted civil proceedings in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) against the State claiming damages in connection with his alleged ill-treatment by the police during his arrest and stay in the police station.
48.The Zagreb Municipal State Attorney’s Office, representing the State, challenged the applicant’s civil action on the grounds that the police had acted in accordance with the law and that their use of force had been caused by the applicant’s conduct.
49.During the proceedings, the Zagreb Municipal Civil Court heard the applicant and several witnesses, including the applicant’s sister and grandmother, one of the applicant’s co-suspects and the police inspectors M.A. and M.M. , as well as the Police Director.
50.The applicant’s grandmother testified that she had seen the police officers immediately attacking and hitting the applicant as they had entered the flat, and his sister confirmed that she had heard him screaming and had also seen him being dragged around by the police.
51.The applicant’s co-suspect in his testimony submitted that he had seen the applicant seriously injured in the police station, while the police inspectors M.A. and M.M. denied any ill-treatment, as did the Police Director who also stated that the police had monopoly of the use of force.
52.In his statement of 14 January 2015 the applicant contended that during his arrest he had been severely beaten by the ATJ officers all over his head and body. Afterwards he had been taken near a river and again beaten, subjected to mock execution and immersed in the water. When he was finally brought to the police station, the uniformed police officers continued to beat him with the acquiescence of the police inspectors M.A. and M.M. He was also tightly constrained to a chair and at one point, while he was dragged from one office to another, he felt strong pain in his shoulder. Later on, during his transfer to the investigating judge, two uniformed police officers who escorted him said that he should say nothing about the ill-treatment and that he would soon go home. In the ensuing period, he started feeling various health problems related to the ill-treatment and has been seeing doctors regularly.
53.The civil proceedings are still pending.
A.The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment visit to Croatia in 2007
63.The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) visited Croatia from 4 to 14 May 2007. The relevant part of its report CPT/Inf (2008) 29 of 9October 2008 reads:
“2. Ill-treatment
13.At the outset of the 2007 visit, the CPT’s delegation was informed of various measures taken by the Ministry of the Interior with a view to putting an end to ill-treatment by the police. In particular, instructions had been adopted aimed at ensuring that police staff strictly observe the relevant legislation and regulations when dealing with persons in custody. Efforts had also been made to step up professional training in order to improve the attitude of police officers towards detained persons. Nevertheless, the information gathered during the visit suggests that continued determined action is needed to combat ill-treatment by the police. The CPT recommends that a clear message of “zero tolerance” of ill-treatment (whether of a physical or verbal nature) be delivered, from the highest level and through ongoing training activities, to all police officers. Police staff should also be reminded that no more force than is strictly necessary should be used when bringing persons presenting violent and/or agitated behaviour under control, be it at the time of apprehension or in a detention facility; once such persons have been brought under control, there can never be any justification for their being struck.
14. It is equally important to promote a culture respectful of the law, where it is regarded as unprofessional – and unsafe from a career path standpoint – to work and associate with colleagues who have resort to ill-treatment. This implies the existence of a clear reporting line, including the adoption of effective safeguards for protecting whistle-blowers. Police officers interviewed on this matter during the 2007 visit generally indicated that if they had reason to believe that colleagues had ill-treated a detained person, they would inform the head of the police station where the possible ill-treatment had occurred, despite the existence of special investigation teams whose task was to inquire into such cases. The CPT recommends that the Croatian authorities establish, within the police, a clear reporting line for information indicative of ill-treatment (which implies the obligation for staff to immediately forward such information to the competent authorities and services).
15. The CPT must also stress that, if the emergence of information indicative of ill-treatment is not followed by a prompt and effective response, those minded to ill-treat persons deprived of their liberty will quickly come to believe that they can perpetrate such acts with impunity.
From the information collected during the 2007 visit, it would appear that judges and prosecutors do not always pay sufficient attention to allegations of ill-treatment and frequently fail to take action. At best, the head of the police station where the person making the allegation had been detained would be asked to provide information concerning the alleged ill-treatment. The CPT recommends that whenever a detained person brought before a judge alleges ill-treatment by police officers, these allegations be recorded in writing, a forensic medical examination be immediately ordered, and the necessary steps be taken to ensure that the allegations are properly investigated. Such a procedure should be followed whether or not the person concerned bears visible external injuries. Moreover, even in the absence of an express allegation of ill-treatment, judges and prosecutors should adopt a proactive attitude; for instance, whenever there are other grounds to believe that a person could have been the victim of ill-treatment, a forensic medical examination should be requested. If necessary, the law should be amended to reflect these principles.”
B.The CPT visit to Croatia in 2012
64.The CPT visited Croatia from 19 to 27 September 2012. The relevant part of the report CPT/Inf (2014) 9 of 18March 2014 provides:
“2. Ill-treatment
The Committee recommends that the Croatian authorities reiterate the message that all forms of ill-treatment (be they at the time of apprehension or transportation or during subsequent questioning) are absolutely prohibited, and that the perpetrators of ill-treatment and those encouraging or condoning such acts will be punished accordingly.
4. Conditions of detention
23.With the entry into force of the CCP in 2009, the Detention and Escort Units are now the primary facilities for holding criminal suspects overnight and for stays of more than 24 hours. The detention and escort unit of Oranice served as the main law enforcement holding facility for the County of Zagreb and offered accommodation of a good standard. Each of the ten cells measured around 30 m2 and was designed to accommodate up to six persons. For this purpose, they were equipped with two long plinths and mattresses/blankets. The cells had access to natural light, sufficient artificial lighting and ventilation and possessed a functioning call-bell. All cells were under CCTV supervision. Detained persons were provided with basic hygiene items and could access a shower room and toilets upon demand. However, there was no outdoor exercise facility, although it would be feasible to create one given that the detention unit is located within a large, secure police compound. The CPT recommends that the Croatian authorities take the necessary steps to offer outdoor exercise to all persons held in police custody for longer than 24 hours.
24.As already indicated above, persons deprived of their liberty by law enforcement officials are usually detained in police stations in temporary detention cells (smještaj za zadržavanje) before being transferred to the competent detention and escort unit or administrative detention centre. The temporary detention cells visited by the delegation displayed a number of shortcomings such as limited access to natural light and poor artificial lighting (at Zagreb VIII and Petrinja Police Stations respectively) and inadequate ventilation (at Zagreb VIII, VII, IV and Petrinja Police Stations). Steps should be taken to remedy these deficiencies.
Each of the cells was equipped with a small wooden bench and a plastic chair and could be considered as acceptable for stays of a few hours. However, some of the temporary detention cells were inadequate for use as overnight accommodation due to their limited size (e.g. a mere 4m2 at Zagreb VIII and Petrinja Police Stations). Despite this, it was clear from custody registers that persons were on occasion held overnight in such cells.
The CPT recommends that the Croatian authorities take the necessary steps to ensure that temporary detention cells of less than 5m² are never used for overnight accommodation and that persons held overnight in larger temporary detention cells are provided with a mattress and blankets.
25.A number of persons met by the delegation who had recently been held in different police stations complained that they had received no food despite being held in these places for several hours. The CPT notes that in accordance with the relevant Rulebook, detained persons are offered three meals a day once they have been transferred to a detention and escort unit. Nevertheless, persons may be kept in police stations for up to 24 hours (or 48 hours in the case of foreign nationals staying irregularly), during which time they should be offered something to eat and drink at regular intervals. The CPT recommends that the Croatian authorities take the necessary steps to ensure that persons detained in police stations for more than a few hours are provided with food.”

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4.The applicants, two brothers, were born in 1982 and 1974 respectively and live in Tautii Magheraus.
A.The drug transactions between the applicants and the undercover agent
5.According to the first applicant, in the summer of 2004 he was contacted on several occasions by an undercover police agent who wanted to buy ecstasy from him, brought into the country from the Netherlands.
According to the prosecutor’s report, the police gained knowledge of the first applicant’s alleged involvement in drug trafficking at the beginning of September 2004.
6.It was established by the prosecutor and domestic courts that some time in September the first applicant brought a batch of drugs into the country and sold ten tablets to the undercover agent on 26October 2004 and 115 tablets on 29 October 2004. According to the transcripts of the conversations intercepted between the first applicant and the police agent, on 28 October the latter called the first applicant, asked him if he had “any left” and at the applicant’s confirmation that some 150 remained, the undercover agent calculated their price at 1,000 euros, and advised the applicant on where and how to meet the next day for him to buy them all.
7.On 29 October 2004 the police intercepted a conversation between the undercover agent and the first applicant when they met for the drug transaction. The police agent told the applicant that the day before he had been offered a batch of “1,000 pieces” (1,000 de bucăţi) which would be available the next week, and that he would not want to miss such an opportunity. The applicant offered to bring the same amount for him. The police agent agreed, and asked how much more he could bring. They settled for 5,000 pieces. The undercover agent warned the first applicant repeatedly during their conversation that if he did not receive his supply from the applicant he would go to the other provider. During the conversation it appeared that the applicant had meanwhile sold some twenty more tablets. The first applicant called someone on his mobile phone and discussed in English getting 5,000 or 10,000 tablets. He then reported to the agent that he could get him some stronger tablets, and described the sensations he had had when he had used them himself. The agent proposed the place and arrangements for their next transaction.
8.The new transaction was postponed for various reasons and was finally planned to take place on 23 December 2004 in Baia Mare. That day the first applicant informed his brother for the first time that he had brought drugs into the country and about the deal. After having initially refused and argued extensively about it with his brother, the second applicant agreed to help, in order to save the family from potential retaliation by the Dutch seller. That evening he took the drugs to an agreed location while the first applicant negotiated the terms of the transaction with the undercover agent.
9.The first applicant and the undercover agent then joined the second applicant; the agent was offered an ecstasy tablet for testing and then left with the first applicant in order to set out the details of the transaction. The second applicant was to wait at the same location for the buyer to return with the money to pay for the drugs. Meanwhile, the second applicant saw police agents approaching in a taxi. He threw the bag containing the drugs into a nearby bush and phoned his brother to warn him. The first applicant told the undercover agent that the transaction was cancelled.
10.Police agents apprehended the two applicants and later recovered a bag containing 4,409 ecstasy tablets from the bushes.
11.The applicants were taken to the police station for further questioning. After consultation with their counsel they refused to make any statements. They were arrested.
B.The criminal prosecution
12.On 25 October 2004 the organised crime and terrorism division of the prosecutor’s office attached to the Cluj Court of Appeal (“the prosecutor”) identified the first applicant as being apparently involved with trafficking in drugs and drug consumption, the merchandise being brought from the Netherlands.
13.On 26 October 2004 the prosecutor authorised the use of an undercover police agent to infiltrate the applicants’ circle in order to obtain information and evidence about the drug trafficking. It also authorised the undercover agent to purchase 150 ecstasy tablets. After each transaction the undercover agent wrote a report on the meeting with the first applicant. The prosecutor noted as follows:
“there are strong indications that the crime of drug trafficking has occurred/is about to occur ... as Ciprian Vlăduț Pop bought in 2004 high-risk drugs from the Netherlands, namely ecstasy tablets (MDMA), which he is selling in Baia Mare and Cluj-Napoca.”
14.On 29 October 2004 the prosecutor started criminal prosecutions against the first applicant on suspicion that he had both consumed and sold drugs. On 23December 2004 the prosecution was extended to the second applicant.
15.On 27 October and 11 and 18 November 2004 the Cluj County Court authorised for a period of thirty days, at the prosecutor’s request, the tapping of the first applicant’s telephone and that of the undercover police agent. On 24 November and 22 December the authorisation was extended by thirtydays on each occasion. Some 100 CDs were recorded in the process.
16.The prosecutor asked for the tablets purchased by the undercover agent to be tested by the police laboratory for physical and chemical analysis (“the police laboratory”). On 28 October, 2 November, and 27December 2004 the police laboratory submitted its reports on the three batches of tablets, concluding that they contained methylenedioxymethamphetamine (MDMA). The tablets remaining after the laboratory test were sealed and stored in a special police depository.
The applicants and two taxi drivers who transported the police agents to the crime scene were interviewed by the prosecutor.
17.On 11 January and 10March 2005 the first applicant stated that he had visited the Netherlands in the summer of 2004 and met P., who had afterwards visited Romania and spent a few weeks at the applicant’s home. P. found out that ecstasy sold very well in Romania, and offered to obtain some for the first applicant. The applicant brought a first batch of 250tablets and sold some of them to the undercover police agent; the remaining tablets he either consumed himself or gave away to others. During the night of 22/23 December 2004 the applicant returned from the Netherlands with a batch of 5,000 ecstasy tablets from P. He contacted several individuals to offer to sell them tablets, but the undercover police agent offered to buy them all.
18.The second applicant gave statements on 11 January 2005. He declared that before 23 December 2004 he had not known of any dealings in drugs that his brother might have had, that during the night of 22/23December he had returned with his brother from the Netherlands but had not been aware until later that day that his brother, who had crossed the border on his own on foot, had brought drugs into the country. He further explained that he had agreed to help his brother because he feared his brother was in danger of being attacked and killed by the drug dealers, given the large amount of money involved in the transaction. He further explained that it was morally impossible for him, at the time of the crime, to denounce his brother to the authorities. He also explained that he had never taken drugs himself.
19.On 2 March 2005 the prosecutor presented the transcripts of some of the recorded conversations, along with forty CDs, to the Maramureş County Court. He sought confirmation from the court that the evidence produced before it was relevant to the case (procedure under Articles 913 and 915 of the CCP). The hearing took place on 9 March 2005. Defence counsel asked for an adjournment to allow her to study the evidence and form an opinion on the relevance of the CDs. She also expressed the wish to examine the remaining recordings which had not been produced before the court by the prosecutor. The court dismissed the requests and accepted the evidence in the file, as proposed by the prosecutor. It agreed with the prosecutor’s opinion and ruled that the remaining CDs were not relevant to the case.
20.On 10 March 2005 the applicants, in the presence of their counsel, acquainted themselves with the prosecution file.
21.On 15 March 2005 the prosecutor committed the applicants to trial for trafficking in drugs, under Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143/2000”). The prosecutor noted that the first applicant was also a drug user, whereas his brother, the second applicant, was not and had had no knowledge of his brother’s dealing before 23 December 2004. The prosecutor also noted that the first applicant had a prior conviction for theft and breach of firearms regulations (nerespectarea regimului armelor).
C.The first-instance court proceedings
22.The case was heard by the Maramureş County Court. The applicants’ detention pending trial was extended at regular intervals by the court.
23.On 5 April 2005 the applicants gave statements before the court, reiterating their declarations from the prosecution phase. It appears that at that time the first applicant was suffering from withdrawal symptoms and was under sedatives prescribed by the prison doctors to alleviate his symptoms.
24.The applicants’ counsel asked for an expert evaluation of the tablets to establish whether they contained MDMA or a lighter drug. Relying on the principle of equality of arms, defence counsel requested that the expert examination be performed by experts from the Ministry of Justice and not by experts from the Forensic Institute, as the latter institution was attached to the police. The prosecutor advised that the Police Forensic Institute was normally responsible for such analyses. On 11July 2005 the Ministry of Justice informed the court that it would not be possible for their experts to perform the requested tests.
25.The second applicant also asked the court to hear evidence from the undercover police agent. His request remained unanswered.
26.On 26 July 2005 the first applicant, who was suffering from withdrawal symptoms, became ill in the court building and had to be taken to hospital. Defence counsel asked for a medical assessment of his client. Despite repeated requests by the court, the prison authorities later failed to take the first applicant to hospital so he could receive the expert examination ordered by the court.
27.On 10 August 2005, at the court’s request, the Police Forensic Institute re-examined the drugs and in a comprehensive report confirmed that the tablets contained MDMA.
28.On 8 November 2005 the court heard pleadings from counsel for the prosecution and the defence. The applicants did not deny the substance of the charges. The first applicant admitted that the police operation respected the domestic legislation, but doubted its morality; in particular, he argued that if it had not been for the undercover police agent’s insistence he would not have bought ecstasy in the first place. In his view the undercover police agent asked on purpose for a high-risk drug to attract a heavier penalty for the applicants, whereas if he had requested a milder drug the sentencing would have been consequently lighter. The prosecutor replied that as it was known that the first applicant had brought ecstasy into the country in the summer of 2004, the undercover agent had done no more than follow that lead; it would have made no sense for him to ask for another drug so long as there was no indication that the applicant had dealt in any other type of drugs.
The second applicant pointed out that he had only been informed about the drug dealing on the very day when the last transaction had taken place, and that by telephoning his brother that day he had in fact prevented the crime from being committed.
29.The County Court rendered its judgment on 25 November 2005, based on the evidence in the file, namely the police reports from the undercover operation, witness statements (the two taxi drivers who had brought the police officers to the scene of the transaction and who had seen the applicants handcuffed and the police retrieving the bag containing the drugs from the bushes), the transcripts of the intercepted telephone calls and the expert reports concerning the content of the tablets. It reiterated the history as it had been established in the bill of indictment, and concluded that the applicants were guilty of the offences they had been accused of. The court gave no further answers to the arguments raised by the defence. It convicted both applicants and sentenced the first applicant to seven years and six months’ imprisonment and the second applicant to three years and six months’ imprisonment.
D.The appeal proceedings
30.The applicants reiterated their complaints concerning breach of the principle of equality of arms, in that the tablets had been analysed in police laboratories and not by an independent expert. Finally they renewed their request to have all the transcripts of the intercepted conversations produced before the court, and complained that they could not have access to them as the remaining recordings had been destroyed. Before the court, they also argued that the unlawfully obtained evidence should be removed from the file and reiterated that the police operation had started only from a suspicion that the first applicant was a drug user.
Throughout the proceedings, the second applicant made repeated requests to be allowed to study his file, but received no answer from the court.
31.On 5 October 2006 the Mina Minovici National Forensic Institute examined the first applicant and his medical record. On 19 January 2007 it rendered its medical report, which was examined at the court hearing held on 31 January 2007. The experts concluded that the applicant’s drug addiction could be treated in the prison hospitals and that the medication he had received so far had been adequate; as he was not experiencing withdrawal symptoms, he did not need to be placed in a special drug withdrawal programme; they also considered that his medical condition was compatible with detention.
32.The Cluj Napoca Court of Appeal delivered its decision on 7February 2007. Concerning the defence’s arguments about lack of access to the transcripts of the intercepted telephone calls the court reiterated that on 9 March 2005 it had decided which transcripts were useful to the case. The court dismissed their complaints concerning the secret police operation; in doing so, it relied on the report drafted by the undercover agent and by the prosecutor, and observed that the applicants’ own statements to the police and before the courts corroborated those reports.
The court of appeal substantially maintained the conclusions of the first‑instance court.
33.The applicants appealed on points of law and reiterated their main defence arguments. However, their appeal was dismissed in a final decision rendered on 29 March 2007 by the High Court of Cassation and Justice.
E.The conditions of the second applicant’s detention
34.The second applicant described his detention as follows. He was arrested on 23 December 2004 and remained imprisoned until 1 May 2007. He spent the first three months of detention in police detention facilities, the following eight to nine months in Baia Mare Prison, then thirteen months in Gherla Prison; he spent the remaining time in Jilava Prison.
35.He had to share cells with smokers, although he was a non-smoker himself. He repeatedly asked the prison administration to place him in a cell with non-smokers. No such arrangements could be made for him, as the pre‑trial detention facilities were already overcrowded and there were no places available in the non‑smoking cells; according to the applicant, in Baia Mare Prison the ratio was of thirty-nine bunk beds, placed on threelevels, for sixty inmates. When in Baia Mare Prison the applicant went on hunger strike from 13 to 16 April 2007 because he was placed in smoking cells despite being a non-smoker; he ended his protest when a non‑smoking cell became available after refurbishment.
36.When he was detained in Gherla Prison, he complained about being placed with smokers and about overcrowding in prison, notably that he did not have 4 sq. m of personal living space in the cell. On 5 February 2007 his complaint was dismissed by the judge delegated by the court to supervise the observance of the prisoners’ rights, under Law no. 275/2006 on the execution of sentences (“the post-sentencing judge”). The post-sentencing judge noted that there was no obligation in Romanian law to place a detainee in a non-smoking cell or to provide him with a certain amount of living space. According to the applicant, the cells were all dirty and infested with bugs.
37.According to information provided by the prison service, during his detention the applicant occupied altogether eleven cells in three prisons(Baia Mare, Gherla, and Jilava), sharing with between five and forty-three others; his personal living space was on average 1.91 sq. m at all times. In addition he spent three days in a cell alone in Baia Mare when he was on hunger strike, and two days alone in Gherla Prison infirmary; on those two occasions his living space was 16 sq. m.
38.The second applicant also described an episode where he was hit by a prison guard; he explained that he had got scared and become agitated because he had seen his brother suffering from withdrawal and was sure that his brother was about to die without anybody willing to come to his rescue. He pressed charges against the guard, and on 31 March 2006 the prosecutor decided not to prosecute.
39.He tried on two occasions to commit suicide by hanging himself (13September 2005 and 2 December 2005). As a consequence of his attempted suicide of 2 December 2005, the second applicant was handcuffed to his bed for a month, according to his statements. The prison service explained that on 2 December 2005 he had been handcuffed to his bed as a means of preventing him from repeating his suicide attempt; he had been kept thus handcuffed while he remained “agitated and psychologically vulnerable”. On 2 December 2005 he was seen by the prison doctor, who noted his agitation, lack of cooperation and headache, and concluded that he could be treated in the medical infirmary. He was not known to have a mental disorder, and no recurrence of the suicidal behaviour was recorded while he was in detention.
40.On 9 March 2006 the second applicant complained before the Cluj Court of Appeal, within the appeal proceedings on the merits of the accusations against him, about the conditions of his detention, in particular the fact that he shared a large dormitory with smokers. He requested to be medically examined in order to demonstrate the negative consequences of the passive smoking on his health. He also complained of lingering pain in his right leg on which he had fallen from a three-metre height on 2December 2005, when he had tried to hang himself from a suspended bar; he had sought medical examination, which he alleged had been refused by the prison doctors until 23 December 2005. The applicant made full statements about his attempted suicide on 2 December 2005, and described how he had been handcuffed to his bed and left without medical care.
He received no answer to these complaints.

***

5.The applicants were born in 1983, 1985, 1937 and 1947 respectively and live in Villepinte, apart from the second applicant, who lives in Drancy. The second, third and fourth applicants are the first applicant’s brother, mother and father, respectively.
A.The first applicant’s arrest
6.During the afternoon of 30 November 2004 the first applicant, who was smoking a cigarette in the Mitry-Villeparisis railway station, was identity-checked by officers of the General Security Service (“SUGE”) of the French National Railway Company (“SNCF”).
7.Just before 8 p.m. on the same day two police officers from the Mitry Mory police station, S.D. and S.G., were called out to that railway station after a report that an individual had been throwing stones at the trains. Arriving at the railway station, they saw a man who did not correspond to the description provided, who appeared to be drunk, and who reacted aggressively when approached. They called for reinforcements just as five SUGE officers arrived on the scene. The individual in question, who was later identified as the first applicant, ran off towards an underground passageway.
8.The SUGE officers, who included L.P., Y.F. and O.D.B., stopped and questioned the first applicant. The latter put up no resistance to his arrest. The SUGE officers then took him outside the main entrance to the railway station had placed him against a wall.
9.The statements given by witnesses to that scène diverge concerning the subsequent events (see paragraphs 15 to 18, 20 and 34 to 44 below).
10.The first applicant was forced to the ground by the SUGE officers, who handcuffed him behind his back, before frisking him. He was then placed in a police vehicle parked nearby. The operation ended at 7.59 p.m.
11.During his transport to and arrival at the police station, the first applicant complained of nausea, and had to be helped out of the vehicle by the police officers. The latter mentioned that he was bleeding profusely from the chin.
12.Having arrived in the police cells, the first applicant lost consciousness and went into a coma. A doctor present in the police station administered first aid, before the arrival of the fire brigade ambulance at 8.14 p.m. and then the emergency medical services (SMUR) at 8.45 p.m. He was then transferred to the Lagny-sur-Marne hospital, and later, to the Beaujon hospital in Clichy.
13.The first applicant was remanded in custody at 8.15 p.m. on charges of insulting members of the police force and deliberate violence against a public-service employee, although the measure could not be notified to him owing to his state of alcoholic intoxication, according to the police report. The police custody was terminated at 10.10 p.m. on the instructions of the State Prosecutor.
B.Flagrante delicto procedure
14.The duty officer at the Meaux public prosecutor’s office was advised of the case at 8.40 p.m. He ordered the opening of a flagrante delicto procedure on charges of deliberate violence against persons performing public duties, assigning the task to the Versailles Regional Police Department (“DRPJ”).
15.The police and SUGE officers who had been involved or present during the first applicant’s arrest were questioned. Their versions contradicted each other: the SNCF employees spoke of a model arrest, whereas some of the police officers described it as “robust”. Among the latter, N.T., D.F. and R.D. pointed out that they had seen a SUGE officer, identified as Y.F., kneeing the first applicant in the face while he was being held on the ground by two other officers. They added that, noticing that Y.F. was about to knee him again, police sergeant A.H. had restrained him by the leg and said “that’ll do”.
16.A.H. did not mention that fact during his first questioning. He was interviewed again, and he explained that when he had arrived at the railway station on the evening in question he had noted the presence of five SUGE officers surrounding the first applicant, who was waving his arms. One of them had attempted to take the latter by the arms, but he had brushed him off. The officer identified as Y.F. had replied “don’t you hit me”, and had become “annoyed” with the first applicant. With the help of three colleagues he had brought him to the ground. Given the applicant’s refusal to allow himself to be handcuffed, he had struck him on the head with his left knee. A.H. said that he had then approached the scene. Seeing Y.F. moving his left leg back to knee him again, he had prevented him from doing so. When asked why he had not mentioned these facts in his first witness statement, the police officer stated that he had “thought that it was for the person concerned to shoulder his responsibilities”.
17.N.T. submitted that before being brought to the ground the first applicant had not been violent, but when an SUGE officer had touched him he had tried to remove his hand. One of the SUGE team had then, unsuccessfully, attempted to punch him in the face.
18.Some of the police and SUGE officers mentioned that the first applicant had had a cut on his chin before his arrest.
19.On 2 December 2004 L.P., Y.F. and O.D.B. were remanded in custody.
20.On 3 December 2004 the scene was reconstructed in the presence of two members of the prosecutor’s office and the five SUGE officers and the six police officers who had been involved in the arrest. The SUGE officers said that the arrest had been effected without any particular difficulties, the first applicant having been handcuffed on the floor, emphasising that he had displayed no injuries on being handed over to the police officers. The latter presented a different version of events, explaining how the applicant had been kneed in the head.
21.Dr M.K., who had operated on the first applicant at the Beaujon hospital, told the investigators that the injuries noted might have been compatible with one very violent blow, such as a hard slap, a kick or a knee strike, a blow from a medium-weight blunt instrument, or even a heavy fall. He did not consider the injury compatible with a truncheon blow.
C.Medical examinations and treatment
22.At the Lagny-sur-Marne hospital, a brain scan showed an acute subdural haematoma of the left hemisphere. Blood tests showed alcohol levels of 1.51grams per litre of blood and the presence of active cannabinoids (THC), pointing to exposure to cannabis between 2 and 24 hours before the testing.
23.The first applicant was admitted to the Beaujon hospital on 1 December 2004 and immediately taken to the operating theatre, where he underwent emergency surgical evacuation of his haematoma. A control scan carried out the same day showed a residual subdural haematoma.
24.On 1 December 2004 a forensic doctor was called upon to examine the first applicant, and noted that he was in a stage-3 coma on the Glasgow Coma Scale (on which stage 0 corresponds to death and stage 15 to a wakeful state). The doctor described a temporo-parietal fracture on the left-hand side, a closed 3.4 centimetre-long wound on the left side of the chin, two haematomas on the left tibia and a scratch on the left cheek. He also mentioned a subdural haematoma of the left hemisphere which was extended and compressive and had been the reason for the applicant’s emergency transfer to hospital.
25.A second scan carried out on 3 December 2004 showed an odontoid fracture associated with a fracture of the lateral mass of vertebra C2.
26.On 15 and 28 December 2004 the first applicant underwent further operations.
27.From 14 February to 12 December 2005 he was hospitalised at the Bouffémont Functional Rehabilitation Centre.
28.The discharge assessment drawn up by the said Centre mentioned a large number of neurological after-effects, including the partial loss of active motor skills in all four limbs, and serious cognitive and behavioural disorders (disinhibition, maladjustment, inability to concentrate, temporal disorientation, demotivation and loss of initiative, and passive opposition).
29.On 12 December 2005, since his condition had not improved, the first applicant was transferred to another rehabilitation centre. On 26 June 2008 the first applicant’s residual rate of permanent partial disability (IPP) was estimated at 95 %, given his lack of autonomy in respect of all the basic activities of everyday life. He was confined to a wheelchair and was unable to engage in any autonomous occupational activity.
D. Judicial investigation
30.On 3 December 2004 the Meaux Public Prosecutor requested the instigation of a judicial investigation against L.P., Y.F. and O.D.B. on charges of intentional violence having caused over eight days’ total unfitness for work (ITT), aggravated by the following three circumstances: the violence had been jointly, by persons performing public duties, in a place used for acceding to public transport.
31.On the same day the three persons targeted by the request for an investigation were formally charged. L.P. and O.D.B. were placed under judicial supervision, while Y.F. was placed in preventive detention until 28 July 2005, when he would be released under judicial supervision.
32.The applicants, assisted by counsel, applied to join the proceedings as civil parties.
33.On 8 December 2006, in view of the evolution of the first applicant’s state of health, the State Prosecutor requested further investigations, reclassifying the charges as intentional acts of violence have caused a permanent disability. The three SUGE officers were formally charged on this new basis.
1.Witness statements gathered
34.A large number of witnesses were heard by the investigators on letters rogatory, and some of them were directly questioned by the investigating judge.
35.Three train passengers present at the material time stated that they had not seen the first applicant being struck.
36.Two individuals who had been with the applicant on the day in question, S.M. and S.Gh., were also questioned. S.M. explained that during the afternoon he and the first applicant had drunk alcohol and had been fined for smoking in the railway station. They had then reasoned with a person who had been on the railway tracks throwing stones at the trains. S.M. pointed out that the first applicant had a swollen lip and small scars on his face, around the chin. While they had been together the first applicant had neither fallen nor bumped his head.
37.S.Gh. told the investigators that the first applicant had been “shoved” by one of the officers involved, who had forced him face-down on to the ground, without his head actually touching the floor. She added that when he had been on the ground an SUGE officer had kicked him, with medium force, on the head or his upper body, although she was unable to say whether the kick had landed on his head. She further stated that when the first applicant refused to get into the vehicle, one of the staff involved had hit him lightly on the back of the head or upper body with a black objet, possible a truncheon, but that the blow had not been violent. The investigating judge summoned S.Gh. four times to appear before him, but she did not attend. Moreover, having subsequently mentioned the violent acts during a TV interview, she had explained that “she had been all over the place”, that she had been “taken by surprise” and that she “had overdone it a bitin front of the TV cameras”.
38.Furthermore, on 9 May 2006 an SNCF employee informed the investigators that he had been confided in by a dog-handler, claiming that he had been talking to some of the first applicant’s friends and had discovered that he had been fighting on the afternoon in question and that someone had smashed a bottle over his head. The employee explained that she had not spoken up earlier because her information was only second-hand. Furthermore, she had not considered the dog-handler particularly reliable, as he had previously given her information which she knew to be false. However, this witness statement could not be compared with other evidence or corroborated by the witness as he had died since the material time. On 26 May 2006 the police had telephoned the six dog-handlers who could have made the statements in question. The only one who had worked in the company in question at the material time had stated that he had not heard about the case and had never spoken to any friends of the victim, with whom he was not acquainted.
39.S.D. and S.G., the two police officers who had first arrived on the scene, gave statements. One said that the arrest had been carried out “robustly” and that the first applicant’s head had possibly hit the ground, as he had “fallen with his whole weight, all at once”, and the other stated that the applicant had fallen “to the ground heavily, face down”, with his head hitting the floor. The latter added, before the investigating judge, that he was virtually sure that the applicant’s head had hit the ground, even though his view was partially blocked by a vehicle. He further added that he had not seen the person being kneed.
40.The four police officers sent as reinforcements, D.F., N.T. R.D. and A.H., stated that they had witnessed a kneeing incident. R.D. affirmed that when the first applicant had been brought to the ground there had been a loud “bump”. A.H. went back on the statements made during the flagrante delicto procedure, informing the investigating judge that he did not know whether the applicant’s head had “bumped on the ground”.
41.The two SUGE officers who had been present but had not taken part in the operation explained that there had been no violence, and one of them suggested that if there had been any blows they must have been delivered in the police car or the police station.
42.As regards the persons formally charged, O.D.B. stated that no blows had been delivered. He said that the episode during which the first applicant had been brought to the ground had been a “textbook example”, explaining that there had been no violence, and that the person had just been placed on the ground. He was sure that his head had not hit the ground. He added that Y.F. had not kneed the first applicant, explaining to the investigating judge that in his view things had gone badly in the police station and the police officers were trying to “shift the blame on to them”. He added that the wound to the first applicant’s chin after his arrival in the detention area bore no comparison to the scratch which they had noted earlier on. He considered that his colleague had used the level of force strictly necessary to bring the arrestee to the ground.
43.L.P. affirmed that while the first applicant had still been standing, he had deliberately punched Y.F. on the arm. The latter had then seized him by the sleeve to knock him off balance. The applicant had ended up on his knees, and had been laid out on his side and then on his stomach. O.D.B. and he had held him by the ankles while Y.F. was handcuffing him. L.P. stated that the first applicant had been brought to the ground quite normally and that he had neither fallen to the ground nor been struck. He justified the use of that technique by the fact that the arrestee had been struggling and making incoherent statements. He added that he had had traces of blood around his nose, something which he had already noticed when fining him during the afternoon. He told the investigating judge that the first applicant’s head could not have hit the ground, after having stated while in custody that he had not been able to see his head when the person had been brought to the ground.
44.Finally, Y.F., a former trainer in the field of operational techniques, confirmed that he had fined the first applicant during the afternoon, without any further incidents occurring, even though the latter had already been consuming alcohol. He described the applicant’s annoyance and disgraceful language when they had met up again later. He complained that he had been punched deliberately and violently on his right forearm. He had pulled at the first applicant’s sleeve to bring him to his knees, and had then forced him to the ground with L.P.’s help, laying him on his right side and then turning him on to his stomach. He had personally handcuffed the arrestee by placing his knees on his body, his left knee on the back and his right knee on the posterior. His colleagues had been holding the arrestee’s legs. He specified that the latter had been “brought to the ground” and not “pushed to the ground”. The applicant’s head had not collided with anything and he had not been struck in any way, in the knowledge that he had had a slight cut on his chin and dried blood around his nose. Y.F. said that something must have happened at the police station or during his time in the police vehicle, because the injury to the chin which had been visible during the arrest had nothing in common with the wound which he had displayed at the police station; that wound had been four centimetres deep and bleeding, leaving a pool of blood. If the SUGE officers had noted such a wound on handing him over to the police, they would have immediately called an ambulance.
45.Y.F.’s administrative file showed that he had repeatedly complained of abuse and threats.
46.Consultation of the SNCF operational handbooks had shown that the head was singled out as a part of the body which should never be struck.
47.No images of the handcuffing episode could be obtained from the CCTV footage at the railway station. On the other hand, the footage did show the identity check carried out in the afternoon and the attempts by the first applicant to calm down an individual standing on the railway tracks.
2.Expert reports
a)Expert report of 25 April 2005
48.On 29 December 2004 the investigating judge commissioned an expert report on the matter from Dr T., a forensic doctor, and Professor L, a brain surgeon. They submitted their report on 25 April 2005.
49.The reports concluded that the first applicant had had a subdural haematoma of the left hemisphere which had caused brain damage.
50.In view of the nature and consequences of that haematoma, the experts considered that the length of time required to constitute it had probably been less than thirty minutes from the time of the head injury, and could not have been less than fifteen minutes. Having regard to the timescale of the events and the witness statements, the experts stated that the shock could not have occurred during the few minutes’ drive from the railway station to the police station, or on arrival at the latter. On the other hand, they found that the injuries could have been caused by the applicant being pushed to the ground, being kneed or falling full length during his arrest. Alcohol or drug consumption could not have had any direct and/or definite influence on the traumatic brain injury.
b)Expert report of 24 January 2006
51.Dr G., a neurologist, and Ms D., a neuropsychologist, examined the first applicant on 3 January 2006. They submitted their report on 24 January 2006.
52.They noted a deficiency of all four limbs and a serious deterioration of the cognitive and mental functions. They concluded that the neurological condition was directly responsible for the first applicant’s state of total dependency, and considered that it was too soon to determine the chances of consolidation but that the situation was unlikely to change greatly.
c)Expert report of 19 October 2006
53.On 26 June 2006 Dr G. and Dr S. examined the first applicant. In their report of 19 October 2006 they noted that he could neither stand nor walk, that he was completely dependent as regards everyday activities and should be placed under guardianship. His total unfitness for work was still being assessed.
54.They mentioned that the injuries observed could only have been the result of violent trauma, and that if they had been caused by being pushed to the ground, he must have been pushed extremely violently. The hyperextension of the cervical rachis and the fracture of the C2 vertebra could have been caused by a violent blow from a knee, but not the haemorrhagic lesions or the left temporal contusion, the latter having been caused either by direct blows to the skull or by the head violently hitting the ground. They confirmed that alcohol or drug consumption could not have been factors in the injuries, although they explained that the state of intoxication could have diminished the person’s reactivity in attempting to limit the consequences of falling.
55.The experts considered that the timescale of the events as reported pointed to the conditions surrounding the arrest in the railway station as having very probably, indeed certainly, been the cause of the traumatic cranio-cerebral and rachidial lesions. They pointed out that they had no information at their disposal to rule out the possibility that the first applicant had sustained other violent attacks while in the police vehicle or at the police station, but added that if such violence had indeed occurred, it was conceivable that it had caused injuries. Nevertheless, the lapse of time between the arrest and the arrival at the police station had been so short that that hypothesis was “improbable”.
56.They further explained that the bleeding in the chin area could not have been caused by the subdural haematoma, but might have resulted from the person having been violently pushed to the ground or having received any other type of blow.
57.The experts concluded that the first applicant suffered from an infirmity which would leave him with permanent motor, cognitive and mental after-effects.
d)Expert report of 9 March 2009 and reconstruction of 23 November 2007
58.On 6 September and 30 November 2007 the investigating judge appointed four experts, Dr G., Dr S. and Dr L., and also M.F., an expert in “martial arts, combat and self-defence sports and the ballistics of body movements and blows”, to assist in the reconstruction of events and conduct a fresh medical examination of the first applicant. They were also mandated to determine whether the first applicant’s statement as recorded on 22November2007 could be deemed reliable.
59.The reconstruction took place on 23 November 2007. Police officers S.D. and S.G. confirmed that when they had first encountered the first applicant he had been acting rather nervously, seemed to have consumed alcohol, displayed an injury on his chin, and was red in the face. The SUGE officers who had met S.D. and S.G. had informed them that they had already fined the applicant that afternoon. SUGE officer C.A. explained that since the police officers had informed them that they had been insulted the decision had been taken to arrest the person concerned and the SUGE officers had asked him to come with them. C.A. had put him in an armlock. For his part, Y.F. stated that he had seized his left sleeve.
60.According to the SUGE officers, they had taken the first applicant outside the railway station, and there had been some hesitation when S.D. had told them that this was not the man who had been throwing stones at the trains. O.D.B. pointed out that Y.F. had then released him and stepped back. Y.F. explained that the first applicant had then turned angrily to face him and punched him on the forearm. He had seized the applicant by the collar, forced him to his knees and placed him on his right side. He had then placed him face down on the ground and put his hands behind his back in order to handcuff him. After frisking him, he had taken the first applicant by the right arm, and the latter had stood up otherwise unaided.
61.A.H. confirmed that the applicant had made a gesture towards Y.F.’s arm, and Y.F. had warned him: “don’t you touch me”. However, he explained that because he was resisting handcuffing, Y.F. had struck him with his left knee.
62.One of the other police officers, D.F., confirmed that he had seen the person being struck by Y.F.s left knee, while R.D. mentioned a blow from the right knee. N.T. confirmed the action described by A.H., although he was not sure which leg had been used.
63.The police officers added that the first applicant had been placed in the police vehicle and that when they had almost reached the police station he had said that he was going to vomit. They pointed out that the man had been very calm, but when he was about to leave the vehicle he said that he would need help because his knee hurt. D.G. had helped him out of the car, holding one of his legs. That was when the applicant’s head had slid along the head-rest and hit the car doorframe. D.G., seeing that he had fainted, had asked a colleague to help him. Outside the vehicle the first applicant had vomited liquids and remained inert, mumbling rather than speaking. He had then been dragged into the sobering-up area.
64.The experts submitted their report on 9 March 2009. They observed that in Y.F.’s version of events there had been no mention of blows or of the first applicant’s head hitting the ground. They also noted that in A.H.’s version, the blow was described as incapable of having had a major impact. They found that during the manoeuvre to bring the first applicant to the ground, he had been in a position to break his fall and, possibly, if he had been kneed, to protect himself. Moreover, they stated that if the kneeing incident was taken on board, the time which had elapsed between the latter and the arrival at the police station, when the first symptoms of the brain damage became evident, would have been between 2 minutes and 10 seconds and 3 minutes and 30 seconds. They concluded that in view of the minimum period of evolution (the “response time”) between the traumatic injury and the first symptoms, that is to say between fifteen and twenty minutes, the kneeing could not be deemed to have caused the brain injury.
65.The experts considered that the various statements by the persons charged and the witnesses, as well as the reconstructions of the different versions, were “completely incompatible with the forensic medical findings as regards the nature and/or seriousness of the injuries described in the various hospital and forensic reports”, such injuries being “necessarily the outcome of violent traumatic injuries”.
66.They pointed out that the observations made during the reconstruction meant that it was unlikely, or even impossible, that the fracture had occurred during the events that had taken place at the railway station or the police station, explaining that such a fracture usually caused serious neck pain and stiffness in the cervical rachis, which had not been noted by the victim, the witnesses or the participants.
67.As regards the hypothesis mentioned during the investigation to the effect that the first applicant might have been hit by a bottle during a fight that had taken place during the afternoon of 30 November 2004, the experts pointed out that they had not received any evidence to support that affirmation, but that a blow with a bottle could have caused an internal contusion which would not have produced any external symptoms on the scalp but would have caused a subdural haematoma such as that discovered on the first applicant’s admission to hospital. The first manifestations felt by the first applicant on his way to the police station had most likely stemmed from just such a traumatic injury. The manifestations in question had therefore reflected the brain’s intolerance of the mounting pressure exerted by the subdural haematoma, which had been tolerated for a few hours and had then decompensated during the transfer to the police station.
68.The experts emphasised that the lapse of time between the applicant’s arrest by the SUGE brigade and the emergence of the traumatic brain injuries had been too short to conclude that the actions carried out and the blows struck by members of that brigade might have caused the brain damage. Furthermore, the actions of the SUGE officers, as studied in detail on the day of the reconstruction, could not have explained the intracranial lesions.
69.As regards the first applicant’s condition, the experts considered that his residual rate of permanent partial disability (IPP) could be estimated at 95 %, given his lack of autonomy in respect of all the basic activities of everyday life and his inability to engage in any autonomous occupational activity. His suffering and disfigurement were estimated at 6/7, and his loss of amenity and professional damage were declared absolute, total and definitive.
70.The experts observed that the first applicant had said that he had been “attacked”. They added, however, that any memory on the applicant’s part had necessarily been “reconstructed”, either through unintentional, spontaneous fabrication or by repeating something overheard from people around him and possibly deformed by himself. He could certainly have had no direct memories of the events.
E.Opinion of the National Security Ethics Committee
71.The National Security Ethics Committee, which had been contacted by two members of parliament concerning the circumstances of the first applicant’s arrest, assessed the procedural documents and interviewed the SUGE officers, apart from the persons formally charged, and also the police officers. It adopted an opinion on 19 December 2005.
72.It first of all noted that when the applicant had been arrested in the underground carpark of the railway station he had not been accused of an offence, as the police officers had acknowledged that his profile did not match that of the person sought. It added that the two police officers who had initially been involved had pointed out that they had not wanted to arrest the first applicant, but simply to check his identity, while the head of the SUGE team had stated that he had stopped the applicant for questioning because he had thought that the police officers had been insulted and he had considered them as victims. The committee noted that the head of team had admitted that “it was a bit topsy-turvy”, and that on leaving the railway station he had been unable to understand why the officers had not handcuffed the man and taken him to the police station.
73.The committee observed that the arrest had been carried out in a confused and confusing manner. The SUGE officers had explained that they had decided to handcuff the first applicant because he had insulted them and had struck Y.F. on the forearm.
74.The committee noted that A.H. had partly confirmed that version, and pointed out that there had been a kind of confused “stand-off” between the SUGE and the police officers outside the railway station. A.H. had noted that the first applicant had been insulting the SUGE officers, that he had lunged at one of them, hitting him on the arm or the shoulder, and that the officer in question had said “Don’t you touch me!”. After the applicant had been handcuffed, A.H. had decided to apprehend him on charges of violence against persons performing public duties, which violent acts he considered to have been committed in his presence.
75.The committee observed that S.G., who had taken the first applicant to the police station, had stated that he did not know the reason for the arrest.
76.The committee noted that even supposing that the head injury might have been caused by one of the SUGE officers, the police officers whom it had interviewed had provided no further information such as to establish its origin or the time of its causation. The only conclusions to be drawn from their statements were that the arrest had been violent, because the first applicant had initially resisted handcuffing.
77.The committee observed that the police and SUGE involvement in the case had been extremely confused. It stated that the police sergeant, who had been assisted by five police officers, ought to have taken control of the situation as soon as he arrived on the scene. He should have intervened between the SUGE officers and the first applicant, immediately placing the latter under his protection, and have asked the SUGE officers why he had been stopped and questioned, with a view to deciding on the appropriate action to take. The committee noted that instead of shouldering that responsibility, the police officers had passively looked on as the SUGE officers used force which the former’s mere presence had rendered illegitimate.
78.The committee considered that the lawfulness of the apprehension had been highly questionable. Indeed, the first two police officers arriving on the scene had taken the view that the apprehension had not been justified by the first applicant’s attitude outside the railway station. Interrogation of the various parties involved had not made clear whether a serious act of violence had been committed against Y.F. or whether the first applicant had merely pushed him away. The committee noted that the incident appeared in fact to have amounted to a mere scuffle to which Y.F. had reacted impulsively.
79.It further noted that the SUGE officers had imposed the decision to apprehend the first applicant on the police officers, who were not in control of the situation. The latter had merely passively accepted the applicant’s handover in order to transport him to the police station. That confusion explained why the injury could not be imputed with any certainty to either of the services in question. The committee further stated that even supposing that the injury had been caused by the SUGE officers during the handcuffing operation, at a time when the first applicant should have been under police protection, it was surprising, at the very least, that none of the police officers present had been able to identify the act of violence which had occasioned the injury.
80.In the committee’s view, the injury under the applicant’s chin raised issues. Even supposing that it had already been there prior to the apprehension and that the wound had reopened, as the police officers affirmed, it pointed at the very least to a very rough mode of transport of an injured person. Lastly, the committee pointed out that it was not its task to issue an opinion on the origin of the head injury or to attribute it to either of the services. It added that the possibility of a joint police/SUGE operation required the respective competences to be strictly defined. It should be reiterated that the arrival of the police removes the SUGE mandate, immediately placing the operation under the sole authority of the most senior police officer present. Moreover, SUGE officers should also be aware of the conditions for the lawfulness of in flagrante apprehensions and should in fact, like police personnel, undergo compulsory conflict management training.
81. Lastly, the committee decided to transmit its opinion to the public prosecutor for assessment of the expediency of prosecuting those concerned on charges of failure to assist a person in danger.
F.Outcome of the judicial investigation
82.On 15 February 2010 the investigating judge of the Meaux Regional Court issued a discontinuance order.
83.She considered that the serious brain damage suffered by the first applicant had originated in events preceding his questioning by the SUGE officers and his transport to the police station by the police officers. She observed that the investigation had failed to establish the precise circumstances under which the events had occurred and to identify the perpetrator. No further investigation had been possible because all the witnesses identified had been heard and the first applicant was no longer capable of providing further information on the series of events of which he had been the victim.
84.The investigating judge added that the circumstance surrounding the apprehension had been caused by the first applicant’s insulting and violent behaviour. No proof had been provided of illegitimate violence, since it had transpired from the proceedings and the witness statements that the applicant’s head had not hit the ground, and that even supposing that Y.F. had kneed him, such acts did not fall within the category of deliberate violence. The judge stated that the investigation had shown that, owing to the position in which Y.F. had been standing, the intensity of his action had necessarily been limited, forming part of an operational technique.
85.The applicants, all of whom had joined the proceedings as civil parties, appealed against the discontinuance decision, seeking:
- its annulment pursuant to Articles 184 and 802 of the Code of Criminal Procedure on the grounds that it was identically worded to the public prosecutor’s final submissions;
- the appointment of a panel of experts mandated to produce a fresh report under the supervision of a member of the Investigations Division, and;
- in the alternative, the committal of the defendants for trial by the criminal court for the acts of violence perpetrated against the first applicant.
86.By judgment of 3 September 2010 the Investigations Division of the Paris Court of Appeal dismissed all those requests. It held that the civil parties had sustained no damage as a result of the grounds of nullity on which they had relied, since they could have adduced their claims in adversarial proceedings before it; it also pointed out that the entire proceedings had been submitted to it and that it was empowered to deal with all aspects of the case. As regards the request for a new expert report, the Investigations Division noted that the first expert report had been drawn up by a panel of four experts with complementary specialities, who had all attended the extremely long and detailed reconstruction organised by the investigating judge, during which they had seen all those involved in the impugned events repeat several times the gestures which they had described, covering all the different versions presented. It held that another expert opinion, for which all this input could not be replicated, would be of no real value for establishing the truth, and that it was neither necessary nor practicable to repeat such a complex reconstruction, which had at no stage been criticised by the various parties involved in the proceedings. The Division added that in medical terms, the civil parties had provided no scientific evidence capable of contradicting the conclusions of the panel of experts, merely affirming that the extremely serious injuries sustained by the first applicant must have originated in the manner of his arrest.
87.As regards the violence in question, the Investigations Division noted that the first applicant had suddenly lost his temper and struck Y.F. violently on the arm, which had been a deliberate, aggressive act. They therefore considered that the SUGE officers’ intervention to neutralise him had been amply justified, subject to the operation having taken place under appropriate conditions. It nevertheless noted that the operation seemed to have been more “robust” than the SUGE officers had admitted, the latter having spoken of a “textbook” operation, which evoked a theoretical ideal and seemed “too perfect”. Furthermore, the other parties involved had described a swifter series of events than the “takedown” in three separate stages described by Y.F. As regards the possibility that the first applicant had been kneed in the head, the Investigations Department noted divergences in the various witness statements, and concluded that some uncertainty remained as regards both whether such a blow from the knee had actually been administered and whether it had been intentional.
88.Finally, as regards the causal link between the arrest and the first applicant’s injuries, the Investigations Division noted the general consensus that the applicant had been “in good shape” on being installed in the police vehicle after his handcuffing, and that neither his position in the vehicle nor the speed of transport had suggested that he had been the target of any violence at this stage of events. Referring to the reconstruction, the Investigations Division considered that by reprising all the descriptions of the actions by all those involved and taking on board the hypotheses least favourable to the SUGE officers in question, the experts had been able to ascertain that the arrestee’s head had not hit the ground in any of the reconstructed actions, that the blow from the knee, if such a blow had ever actually occurred, would have affected the right craniofacial region, that if it had been struck as described it could only have had a minor impact and that the actions carried out could not explain the intracranial lesions noted, especially the cranial fracture on the left side of the head. The Court of Appeal further observed that the experts’ findings had been very clear, considering it highly unlikely, or indeed impossible, that the fracture had been caused during the incidents at the railway station or at the police station.
89.The Division pointed out that the experts had extensively justified their change of mind on the basis of factors which they had noted from the reconstructions of all the different versions, which they had attended, and that the medical evidence gathered would appear to support the existence of a previous traumatic injury which had taken some time to manifest. Lastly, it noted that the previous findings concerning the first applicant’s physical state during the afternoon had lent credence to that eventuality. Furthermore, the time taken for the symptoms to appear would have been incompatible per se with the short lapse of time between the arrest and the first symptoms, too soon after the operation to have been caused by it.
90.The Investigations Division concluded that the investigation had failed to gather sufficient evidence that a criminal offence had been committed.
91.On 27 September 2011 the Court of Cassation dismissed the applicants’ appeal on points of law. It held that the applicants could not complain about the reasons given for the discontinuance decision because, owing to the devolutive effect of the appeal, the Investigations Division had substituted its own reasoning for the original one. Moreover, it considered that that Division had analysed all the facts criticised in the complaint, answered all the main points set out in the civil parties’ memorial and determined, on the basis of sufficient and non-contradictory grounds, that there was insufficient evidence that any individuals had committed the offence of collective assault having caused a permanent disability or any other offence.
92.In observations received by the registry of the Bobigny Compensation Board for Crime Victims (“CIVI”) on 16 March 2012, the Guarantee Fund against acts of terrorism and other criminal offences requested the reimbursement of provisional awards made to the first applicant to a total of 490,000 euros (EUR), under three CIVI decisions of 30 October 2006, 5 July 2007 and 8 December 2009.
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5.The applicants were born in 1977, 1937 and 1938 respectively and live in Moscow. The second and third applicants are the parents of the first applicant.
A.The first applicant’s placement and treatment in a psychiatric hospital
6.In 2004 the first applicant, who was suffering from tachycardia and severe headaches, was diagnosed with neurocirculatory dystonia. In 2004‑05 he underwent treatment in various hospitals in Moscow, without any tangible result.
7.In April 2005 his illness worsened.
8.On 25 May 2005 he called an ambulance and was taken to the neurology unit of Moscow City Clinical Hospital no. 6 (Московская городская клиническая больница № 6). The doctor in the admissions unit, however, refused to admit him, finding no pathology, and recommended outpatient treatment in a district polyclinic.
9.Desperate for relief, on the same day the first applicant cut the veins on his forearm. Another ambulance was called for him by the second and third applicants, and he was taken to N.V. Sklifosovsky Research Institute of Emergency Medicine (НИИ скорой помощи им. Н.В.Склифосовского). After the first applicant was provided with emergency medical aid at the surgical unit, he was taken to somato‑psychiatric unit no.2 (ПСО-2, “the psychiatric hospital”) of the Institute with a diagnosis of “chronic somatoform pain disorder, personality disorder, continuous sluggish schizophrenia, cutting of left forearm, attempted suicide”.
10.On 26 May 2005 the first applicant contacted his parents, asking them to take him home. When the parents arrived, they were not allowed to take him home and were asked to leave.
11.During the night of 26 to 27 May 2005 the first applicant alleged that he was beaten up. According to him, three nurses held his arms and two recovering patients hit him on the face and body. He was taken to his ward, and one of the nurses allegedly threw him on the bed with such force that his head hit the bedside table, following which he lost consciousness. When the first applicant recovered he found himself bleeding and strapped to the bed with a gag in his mouth. He was given no medical assistance.
12.The first applicant was subsequently allegedly warned by a doctor, L., that his parents would not be allowed to see him and that it would be put on record that he had himself initiated a brawl. Furthermore, he was allegedly warned that any complaints to the authorities, including the police, would be futile as he would be given a diagnosis which would show that his allegations could not be taken seriously.
13.The first applicant remained hospitalised until 9June 2005. He alleged that he was subjected to scientific research by being treated with Seroquel (athen new antipsychotic medication) and forbidden all contact with the outside world. He had blood tests every other day.
14.Some hours after the first applicant’s discharge from the psychiatric hospital on 9June 2005, an ambulance was called for him at home due to his state of health. The ambulance doctor saw a haematoma under the first applicant’s right eye, and bruises and contusions around his chest and waist. The first applicant was further diagnosed with hypertensive crisis and severe tachycardia. He was immediately hospitalised in Moscow City Clinical Hospital no.67 (Московская городская клиническая больница № 67), where he remained until 5August 2005 and was diagnosed with “depressive hypochondriasis against the background of traumatic encephalopathy”. The diagnosis of personality disorder was not confirmed.
B.The applicants’ complaints
15.In October 2005 the applicants complained to the Russian Federation Ombudsman that the first applicant had been unlawfully committed and treated in the psychiatric hospital, and that he had been beaten by the hospital nurses with the assistance of two hospital patients. The applicants’ complaint was referred to the Meshchanskiy District Prosecutor’s Office, Moscow, from where it was referred on to the Meshchanskiy District Department of the Interior.
1.Criminal proceedings in connection with the alleged beatings of the first applicant (criminal case no. 82906)
16.After two refusals to institute criminal proceedings, on 2November 2006 criminal proceedings were instituted (criminal case no. 82906) under Article 116 of the Russian Criminal Code (Beatings).
17.On 15 November 2006 the first applicant was granted victim status in the proceedings.
18.On 16 March and 25 June 2007 an investigator from the Meshchanskiy District Department of the Interior investigation department suspended the proceedings on the grounds of an impossibility of identifying the alleged perpetrators.
19.On 19 March and 1 July 2007 respectively the Meshchanskiy Inter‑District Prosecutor’s Office quashed the above decisions and remitted the case for additional investigation.
20.On 11 August 2007 the investigator discontinued the proceedings on the grounds of expiry of the procedural time-limit for prosecution.
21.On 30 August 2007, however, the above decision was set aside and the proceedings were reopened.
22.The proceedings were subsequently suspended on 14 January 2008 and 16 March 2009 and resumed again on unspecified dates.
23.In 2012 the applicants were informed that the proceedings had been discontinued on 25 November 2010 on the grounds of expiry of the procedural time-limit for prosecution.
24.On an unspecified date the decision of 25 November 2010 was set aside and the proceedings were reopened.
25.On 22 December 2012 the proceedings were again discontinued.
26.On 9 January 2013 the above decision was set aside and the case file material referred to the investigation department for additional investigation, which appears still to be pending.
2.Criminal proceedings in connection with the first applicant’s placement in a psychiatric hospital and his stay there (criminal case no. 401966)
27.On 5 March 2007 the complaints concerning the first applicant’s placement in the psychiatric hospital were removed from criminal case no.82906 for separate examination.
28.On 24 March 2007 an investigator from the Meshchanskiy Inter‑District Prosecutor’s Office refused to institute criminal proceedings.
29.On 3 May 2007 the Moscow Preobrazhenskiy District Court found the above decision unlawful and groundless.
30.On 6 July 2007 the acting prosecutor of the Meshchanskiy Inter‑District Prosecutor’s Office quashed the decision of 24March 2007 and ordered an additional inquiry.
31.On 12 October 2007 criminal proceedings were instituted (criminal case no. 401966) under Article128§ 2 of the Russian Criminal Code (Unlawful Placement in a Psychiatric Hospital).
32.On 12 January, 5 March and 27 April 2008 the proceedings were suspended on the grounds of an impossibility of identifying those responsible.
33.However, on 5 February, 27 March and 27 April 2008 respectively the above decisions were quashed and additional investigations ordered.
34.In the meantime, on 18 April 2008 a forensic psychiatric examination was conducted which established that the first applicant’s involuntary psychiatric hospitalisation on 25May 2005 had been justified (psychiatric pathology of an acute character accompanied by expressed depression with attempted suicide). It was further established, however, that his subsequent stay in the psychiatric ward had been unlawful. In particular, contrary to the provisions of the relevant domestic law (the Psychiatric Treatment Law of 2 July 1992), no report had been drawn up by a panel of psychiatrists in the forty-eight hours following the first applicant’s involuntary hospitalisation on the need for a further stay in the psychiatric hospital, and no application had been made to the court by the head of the psychiatric hospital on the need for the first applicant’s continued involuntary stay in the psychiatric hospital. It was further noted that the first applicant’s mental health episodes between 27May and 9 June 2005 did not fall under the definition of a “severe” mental disorder or any other acute mental condition, and did not require involuntary psychiatric treatment.
35.In the absence of any meaningful investigation since the institution of the criminal proceedings, the applicants challenged the investigator before the court for failure to take action.
36.On 7 May 2008 Preobrazhenskiy District Court found the investigator’s failure to take action unlawful (failure to identify and question witnesses and carry out other relevant investigative actions).
37.On 28 October 2008 the head of the psychiatric hospital, D., was involved in the proceedings as a defendant.
38.On the same day D. was questioned, and made the following statement:
“... [Somato‑psychiatric] unit no.2 was staffed [at the material time] by only two attending doctors: a scientific associate, L., and an attending doctor whose last name I cannot remember. The question of assigning patients to a specific attending doctor was decided by E. E., who assigned [the first applicant] to L. as a scientific thematic patient (научный тематический больной) for research on the effects of the Seroquel medication ...
Scientific associates monitor only scientific research patients to study scientific subjects which involve research into new methods of treatment and the use of new drugs approved by the Ministry of Health, with a view to later disseminating these throughout the territory of the Russian Federation. Following the results of their research, a scientific associate writes an article about the work done and defends a dissertation based on their research material.”
39.On 31 October 2008 the preliminary investigation was completed, and on 28 November 2008 a bill of indictment was submitted for approval to the Meshchanskiy Inter-District Prosecutor’s Office.
40.On 9 December 2008, however, the case was returned for an additional investigation, as the prosecutor considered the charges brought against D. unsubstantiated.
41.On 5 February 2009 the qualification of the crime with which D. was charged was changed to Article 127 § 1 of the Criminal Code (Unlawful Deprivation of Liberty). The case-file material was sent to the Meshchanskiy District Department of the Interior for further investigation.
42.On 19 July 2009 an investigator from the Meshchanskiy District Department of the Interior discontinued the proceedings on the grounds of expiry of the procedural time-limit for prosecution.
43.It appears that subsequently the proceedings were reopened.
44.In 2012 the applicants were informed that on 26 November 2010 the proceedings had again been discontinued as time-barred.
51.The Nuremberg Code, formulated in August 1947 in Nuremberg, Germany, by American judges sitting in judgment of Nazi doctors accused of conducting human experiments in the concentration camps (the so-called Doctors’ Trial) reads as follows:
“1.The voluntary consent of the human subject is absolutely essential.
This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.
The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.
2.The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.
3.The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.
4.The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.
5.No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.
6.The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.
7.Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.
8.The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.
9.During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.
10.During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of the good faith, superior skill, and careful judgment required of him, that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.”
52.The Helsinki Declaration, adopted by the 18th World Medical Association’s General Assembly in Finland in June 1964, with later amendments, states, inter alia:
“20.The subjects must be volunteers and informed participants in the research project.
21.The right of research subjects to safeguard their integrity must always be respected. Every precaution should be taken to respect the privacy of the subject, the confidentiality of the patient’s information and to minimize the impact of the study on the subject’s physical and mental integrity and on the personality of the subject.
22.In any research on human beings, each potential subject must be adequately informed of the aims, methods, sources of funding, any possible conflicts of interest, institutional affiliations of the researcher, the anticipated benefits and potential risks of the study and the discomfort it may entail. The subject should be informed of the right to abstain from participation in the study or to withdraw consent to participate at any time without reprisal. After ensuring that the subject has understood the information, the physician should then obtain the subject’s freely-given informed consent, preferably in writing. If the consent cannot be obtained in writing, the non‑written consent must be formally documented and witnessed.
23.When obtaining informed consent for the research project the physician should be particularly cautious if the subject is in a dependent relationship with the physician or may consent under duress. In that case the informed consent should be obtained by a well-informed physician who is not engaged in the investigation and who is completely independent of this relationship.
24.For a research subject who is legally incompetent, physically or mentally incapable of giving consent or is a legally incompetent minor, the investigator must obtain informed consent from the legally authorized representative in accordance with applicable law. These groups should not be included in research unless the research is necessary to promote the health of the population represented and this research cannot instead be performed on legally competent persons.
25.When a subject deemed legally incompetent, such as a minor child, is able to give assent to decisions about participation in research, the investigator must obtain that assent in addition to the consent of the legally authorized representative.
26.Research on individuals from whom it is not possible to obtain consent, including proxy or advance consent, should be done only if the physical/mental condition that prevents obtaining informed consent is a necessary characteristic of the research population. The specific reasons for involving research subjects with a condition that renders them unable to give informed consent should be stated in the experimental protocol for consideration and approval of the review committee. The protocol should state that consent to remain in the research should be obtained as soon as possible from the individual or a legally authorized surrogate.”
53.The United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (A/RES/46/119, 17 December 1991) read:
Principle 9Treatment
“1.Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others.
...
3.Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment, adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.”
Principle 10Medication
“1.Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph15 of principle 11 below, mental health practitioners shall only administer medication of known or demonstrated efficacy ...”
Principle 11Consent to treatment
“...
15.Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose ...”
54.The Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13December 2006 (Resolution A/RES/61/106) and ratified by Russia on 25September 2012, provides:
Article 15Freedom from torture or cruel, inhuman or degrading treatment or punishment
“1.No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.
2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
55.The Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine) (opened to signature at Oviedo on 4 April 1997), not yet ratified or signed by Russia, contains the following principles regarding consent and scientific research:
Chapter II – Consent
Article 5 – General rule
“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.
This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.
The person concerned may freely withdraw consent at any time.”
Article 6 – Protection of persons not able to consent
“1.Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.
2.Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.
The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.
3.Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.
The individual concerned shall as far as possible take part in the authorisation procedure.
4.The representative, the authority, the person or the body mentioned in paragraphs2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.
5.The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.”
Article 7 – Protection of persons who have a mental disorder
“Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health.
...”
Chapter V – Scientific Research
Article 15 – General rule
“Scientific research in the field of biology and medicine shall be carried out freely, subject to the provisions of this Convention and the other legal provisions ensuring the protection of the human being.”
Article 16 – Protection of persons undergoing research
“Research on a person may only be undertaken if all the following conditions are met:
i.there is no alternative of comparable effectiveness to research on humans;
ii.the risks which may be incurred by that person are not disproportionate to the potential benefits of the research;
iii.the research project has been approved by the competent body after independent examination of its scientific merit, including assessment of the importance of the aim of the research, and multidisciplinary review of its ethical acceptability;
iv.the persons undergoing research have been informed of their rights and the safeguards prescribed by law for their protection;
v.the necessary consent as provided for under Article 5 has been given expressly, specifically and is documented. Such consent may be freely withdrawn at any time.”
Article 17 – Protection of persons not able to consent to research
“1.Research on a person without the capacity to consent as stipulated in Article5 may be undertaken only if all the following conditions are met:
i.the conditions laid down in Article 16, sub-paragraphs i to iv, are fulfilled;
ii.the results of the research have the potential to produce real and direct benefit to his or her health;
iii.research of comparable effectiveness cannot be carried out on individuals capable of giving consent;
iv.the necessary authorisation provided for under Article 6 has been given specifically and in writing; and
v.the person concerned does not object.
2.Exceptionally and under the protective conditions prescribed by law, where the research has not the potential to produce results of direct benefit to the health of the person concerned, such research may be authorised subject to the conditions laid down in paragraph 1, sub-paragraphs i, iii, iv and v above, and to the following additional conditions:
i.the research has the aim of contributing, through significant improvement in the scientific understanding of the individual’s condition, disease or disorder, to the ultimate attainment of results capable of conferring benefit to the person concerned or to other persons in the same age category or afflicted with the same disease or disorder or having the same condition;
ii.the research entails only minimal risk and minimal burden for the individual concerned.”
56.For other relevant international and Council of Europe documents see Mifobova v. Russia, no. 5525/11, §§41-44, 5February 2015.

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6.The applicant was born in 1976 and is detained in correctional colony no. 2 in the Tatarstan Republic.
A.The applicant’s state of health
7.Since 1999 the applicant has been suffering from progressive multiple sclerosis. He was designated with Category 1 disability as a result of that condition.
8.On 22 February 2012 the applicant was arrested on suspicion of active membership of an organised criminal group between 1995 and 2005 and the murder or attempted murder of several people in 1999.
9.The applicant’s health deteriorated significantly and rapidly in the detention facility, where his health complaints were not addressed in any way, as the facility did not have any medical specialists. In August 2012 the prison authorities recorded that the applicant’s movement was impaired and that he was unable to walk without a cane.
10.In September 2012 the applicant suffered an epileptic seizure which resulted in paralysis of the left side of his body. Several days later an investigator authorised a forensic medical examination of the applicant to determine whether he was fit to stay in a detention facility. A medical examination, based, inter alia, on the results of an MRI exam performed by civilian experts from the Tatarstan Republic medical institute, led to the conclusion that the applicant was suffering from “a serious condition preventing his detention”. In particular, experts diagnosed him with progressive multiple sclerosis, left-sided hemiplegia (paralysis) in the cerebral spinal form, acute right-sided hemiparesis (muscle weakness of the right side of the body) with the persistent astheno-depressive syndrome, memory deterioration, partial atrophy of the visual nerves, symptomatic epilepsy with polymorphic partial motor and generalised attacks three to four times a month, arterial hypertension of the first degree, and light myopathy of both eyes. On 25September 2012 the applicant was released from detention.
11.On 29 May 2013 the Supreme Court of the Tatarstan Republic found the applicant guilty as charged and sentenced him to ten years’ imprisonment, to be served in a correctional facility under a strict regime. The trial court, however, decided that the applicant should not be placed in custody pending appeal proceedings. On 3 September 2013 the Supreme Court of the Russian Federation upheld the judgment on appeal.
12.On 17September 2013 the applicant asked the Supreme Court of the Tatarstan Republic to order a medical examination for him with a view to confirming that he was not fit for detention. The request was not processed.
13.The applicant was taken into custody on 8 October 2013. He was placed in a prison hospital in correctional colony no. 2 in the Tatarstan Republic.
14.In November 2013 the applicant underwent an MRI test and was examined by several doctors, including by a neurologist, from the prison hospital in correctional colony no. 2. Their decision issued on 23 November 2013 indicated that given the negative prognosis for and the severity of the applicant’s condition, he should be sent for a forensic medical examination to determine whether he could be released early on health grounds. The doctors relied, inter alia, on the results of the MRI examination, which had shown that in comparison to the results of the previous MRI exam in September 2012 the applicant’s illness had progressed significantly and demonstrated further negative dynamic. The applicant was informed by the prison administration that they would seek his immediate release on health grounds.
15.However, a week later the applicant was notified that an additional expert examination was to be performed. Two medical experts visited the applicant, spoke with him and informed him that his condition did not warrant release. On 20 January 2014 the applicant was served with a copy of an opinion by the two medical experts who had concluded that he did not suffer from any condition listed in Government Decree no.54 of 6February 2004 on illnesses warranting release on health grounds, as his condition had not yet reached the crucial stage which required early release.
16.Relying on a number of medical certificates and reports issued by medical specialists from civilian medical facilities, who had either treated him following his release from detention in September 2012 or had studied his medical history in 2013, the applicant argued that he was unable to care for himself and that he required constant assistance, care and medical treatment which the Russian penal system was not able to provide. In particular, a report issued in September 2013 by a neurologist from the Tatarstan Republican hospital indicated that the applicant had no movement on the left side of his body and could only partly move the fingers of his right hand and his right leg; he could not walk or sit without assistance; and he required assistance even if placed in a wheelchair. Another report indicated that the applicant was suffering from urethral dysfunction leading to involuntary urination, an additional element calling for constant care. The civilian doctors concluded that the stage of development of the applicant’s illness was 9 (with death expected to occur according to that scale at stage10).
17.Having provided copies of his complaints to various Russian authorities, the applicant submitted that his requests for an independent medical examination to determine whether he could remain in detention, as well as his complaints about the lack of proper medical assistance, had gone unanswered.
18.The applicant argued that he spent his entire day in bed. Prison doctors, who had no proper training to deal with patients in his condition, came to see him only once every few days. He had not been bathed for months. He could not eat or drink unaided, so he received food once a day. He suffered from severe pain, as he could not defecate and the medical personnel only gave him an enema once every two weeks. He did not receive any treatment, and had not been seen in detention by specialists such as a neurologist.
B.The Rule 39 request
19.On 12 February 2014 the Court, in response to the applicant’s request under Rule 39 of the Rules of Court, decided to indicate to the Government that the applicant should be examined immediately by medical experts independent of the penal system, including by a neurologist and an epileptologist. The experts were to be asked whether the treatment and physical care the applicant was receiving was adequate for his condition, whether his current state of health was compatible with detention in the conditions of a correctional colony or a prison hospital, and lastly whether the applicant’s current condition required him to be admitted to a specialised hospital or released. The Russian Government were also asked to ensure the applicant’s immediate transfer to a specialised hospital if the medical experts concluded that he required to be admitted to such a hospital.
20.In response to the Court’s request, the Government provided the Court with a typed copy of the applicant’s medical history prepared by the detention authorities; certificates issued by the head of the applicant’s correctional colony and the head of the Service for the Execution of Sentences in the Tatarstan Republic; and a copy of the report drawn up on 25 December 2013 by a medical panel comprising the head, deputy head and senior inspector of the medical unit of the Service for the Execution of Sentences in the Tatarstan Republic and a deputy head of the prison hospital of correctional colony no. 2, where the applicant was detained. Relying on those documents, the Government argued that the applicant was receiving adequate medical assistance and that the medical panel of the Service for the Execution of Sentences in the Tatarstan Republic had concluded that “the degree of the manifestation of the applicant’s condition (multiple sclerosis) did not [reach the level] which could be described as bodily function impairment” warranting release in compliance with the Government’s decree of 6 February 2004 which laid down a list of illnesses calling for inmates’ early release.
21.The applicant commented on the Government’s information, insisting that the medical assistance afforded to him was virtually non‑existent. He relied on his medical record, and stated that prior to the application of the interim measure under Rule 39 of the Rules of Court he had been prescribed over twenty different drugs, of which, as indicated in the record, he had only received five. At the same time the applicant argued that the medical record was a forgery, as he had in fact only received one drug. Following the application of the interim measure he had been allowed to obtain certain medication from his wife to treat the epilepsy. He further submitted that the prison hospital where he was an inmate did not have the necessary medical equipment. He had usually been taken to another hospital for examinations, or a specialist with the proper equipment had been allowed to visit him in the prison hospital. The prison hospital only employed a neurologist, a specialist who, according to her own assessment, did not have the skill to treat the applicant’s complex condition. Despite the fact that the applicant’s condition was progressing and that the prognosis for him was negative, the authorities had not taken any steps to alleviate his sufferings and safeguard his life and limb.
C.Developments following the application of Rule 39 and communication of the case to the Government
1.Developments
22.The applicant submitted that since March 2014 he had developed new health problems, but the medical staff of the prison hospital had failed to address the ongoing deterioration of his health. In particular, he had begun suffering from kidney pain, but no nephrologist was available in the prison hospital. On 18March 2014 the applicant was diagnosed with urinary tract infection, but no appropriate treatment followed. Several days later the applicant complained to an otolaryngologist of a purulent discharge from his left ear and severe pain. However, medical staff failed to comply with the otolaryngologist’s recommendations.
23.At the request of the applicant’s wife, on 18April 2014 he was examined by a panel consisting of the deputy head of the prison hospital and several prison doctors. The commission found that the applicant did not suffer from bodily function impairment warranting his release.
24.On several occasions the applicant’s wife complained to the Prosecutor General and to the prison authorities, requesting an independent medical assessment. In their replies the authorities informed her that allegations of lack of adequate medical assistance had not been confirmed, and thus there were no grounds to order the applicant’s medical examination.
25.However, on 29July 2014 a medical panel of the prison hospital, having confirmed the applicant’s earlier diagnosis, recommended his early release. In August 2014 the applicant’s wife lodged a motion for his release before the Privolzhskiy District Court of Kazan.
26.At the hearing held on 14November 2014 the District Court heard the applicant’s attending prison doctor who stated that he had not and could not receive adequate treatment in respect of his multiple sclerosis in detention and that such treatment could only be provided in a specialised hospital, in particular in the Republican diagnostic centre of demyelinised illnesses. On the same day the District Court dismissed the motion for release. The applicant’s lawyer appealed.
27.In the meantime, on 15 December 2014 the applicant was transferred to correctional colony no. 9 in the Chuvashia Republic to continue serving his sentence. Three days later, following a visual medical examination, he was admitted to medical unit no. 21 in the colony which was to determine the issue whether the applicant’s condition called for his early release. According to the applicant, colony no. 9 did not employ a neurologist and had no means to deal with a patient of his health.
28.On 13 January 2015 the Supreme Court of the Tatarstan Republic quashed the decision of 14 November 2014 and sent the matter for a new examination to the District Court.
29.During the re-hearing on 19 February 2015 the Povolzhskiy District Court took note of the applicant’s transfer to a new colony and decided that it no longer had territorial jurisdiction to examine the applicant’s motion for release. The case was sent to the Tsivilsk Town Court in the Chuvashia Republic for further examination.
30.On 13 January 2015 a medical commission comprising three specialists from medical unit no. 21 issued a report finding that the applicant’s condition made him eligible for an early release. That report was filed with the Tsivilsk Town Court which on 26February 2015 authorised the applicant’s release, having relied on the report of 13 January 2015 and statements by the head of medical unit no. 21. The latter had testified to the gravity of the applicant’s condition and the impossibility to provide him with adequate treatment or permanent general care and assistance in detention. The applicant was released on 11 March 2015 and taken by an ambulance to a hospital in Kazan.
2.Additional documents from the parties
31.The applicant provided the Court with expert opinions issued on 21March and 5August 2014 by neurologist M. from the Republican Medical Institute. Having examined the applicant and studied his medical file, the expert recorded negative dynamics in the applicant’s neurological condition, and found that he had not received the drugs necessary to treat his multiple sclerosis. The doctor recommended that the applicant undergo specific treatment in the Institute or in foreign hospitals, and noted that the lack of such treatment could lead to irreversible deterioration of the applicant’s health and eventually to his death.
32.The Government produced, in addition to the documents submitted by them in response to the Court’s Rule 39 request, a number of certificates signed by the staff and administration of the prison hospital, as well as by a fellow inmate. According to those certificates, the applicant was provided with the necessary care in the hospital. Medical staff fed him three times a day, washed his face and ears every morning, cut his hair and nails, changed his bedding, and showered him once a week. Nurses gave him enemas and changed his catheter bag as often as necessary.
A.Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”)
39.The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:
“Health care
39.Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1Every prison shall have the services of at least one qualified general medical practitioner.
41.2Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency ...
41.4Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1A medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary ...
42.3When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to ...
b.diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ...
43.1The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury, and any prisoner to whom attention is specially directed ...
Health care provision
46.1Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civilian hospitals when such treatment is not available in prison.
46.2Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
B.3rd General Report of the European Committee for the Prevention of Torture (“the CPT Report”)
40.The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4June 1993). The following are extracts from the Report:
“33.When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
34.While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...
35.A prison’s health care service should at least be able to provide regular out‑patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36.The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital ...
38.A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.) ...
39.A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40.The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service ...”

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1. The applicant, Ms Ebe Gigliola Giorgini, is an Italian national, who was born in 1933 and is under house arrest in Marina di Pietrasanta. She was represented before the Court by Mr D. Ammannato, a lawyer practising in Florence.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. First set of criminal proceedings
3. On 8 April 2008 the applicant was convicted of a number of criminal offences by the Forlì District Court. Such offences included criminal association, aggravated fraud, and ill-treatment.
4. On an unspecified date she lodged an appeal with the Bologna Court of Appeal.
5. On 22 June 2010 the Bologna Court of Appeal partly upheld and partly reversed the District Court ’ s judgment. The conviction for the offence of criminal association was upheld.
6. On an unspecified date the applicant lodged an appeal on points of law with the Court of Cassation.
7. She states that on 4 July 2011 the President of Second Criminal Section of the Court of Cassation set the hearing for 15 November 2011.
8. On 24 October 2011 the National Criminal Lawyers ’ Association ( Unione Camere Penali italiane ) called a five-day strike, scheduled to run from 14 to 18 November 2011.
9. On 28 October 2011 the applicant filed additional written submissions with the court.
10. On 7 November 2011 the applicant ’ s counsel formally adhered to the strike and filed a notice to that effect with the Court of Cassation, having obtained the applicant ’ s consent in writing. For this reason, he was not present at the hearing of 15 November 2011.
11. It appears from the hearing record that the Prosecutor General requested that the Court of Cassation refrain from adjourning the hearing on account of the counsel ’ s absence. The court granted the prosecutor ’ s request and the hearing was held as scheduled.
12. In a judgment of 15 November 2011 the Court of Cassation dismissed the applicant ’ s appeal.
2. Second set of criminal proceedings
13. On 9 June 2010 the Pistoia preliminary investigations judge ordered that the applicant be placed in pre-trial detention on suspicion that she had committed further offences. These included the offence of criminal association, of which the applicant was suspected of being the leader, promoter and organizer. The applicant was also suspected of having committed the offence of unauthorized practice of medicine. Specifically, she was suspected of providing medical advice and treatment, as well as prescribing drugs to adults and minors, and using her home as an unauthorized medical clinic. She was further suspected of fraud, aggravated by a number of factors including the exploitation of vulnerable individuals ’ pain and suffering, and the generation of ill-founded fears from which she profited. The preliminary investigations judge emphasised that the applicant had been previously convicted of similar offences.
14. It appears from the material in the case file that pre-trial detention had been requested on a number of grounds, namely the strong evidence against her, the seriousness of the suspected offences, and the significant risk that she might reoffend.
15. The applicant states that she was transferred to the Sollicciano correctional facility in Florence on 11 June 2010.
(a ) First request for modification of the detention order
16. On 21 July 2010 the applicant ’ s counsel lodged a request with the Pistoia preliminary investigations judge, seeking the replacement of the applicant ’ s detention with a more lenient custodial measure, such as house arrest. He argued that both her advanced age and allegedly critical state of health were incompatible with detention in prison.
17. On an unspecified date the judge ordered that she be examined by an independent medical expert with a view to determining whether this was the case.
18. In an order of 30 July 2010 the judge confirmed that the applicant would remain in custody, as the independent medical expert ’ s report had stated that her state of health was compatible with detention.
19. On 7 August 2010 the applicant lodged an appeal with the Florence District Court on two main grounds. She contended that while under Article 275 § 4 of the Code of Criminal Procedure (see paragraph 37 below) the detention on remand of persons aged over seventy was only allowed if exceptional reasons warranting such a measure existed, in her case no such reasons could be detected. She further reiterated the argument that her advanced age and critical state of health were incompatible with detention in prison, contending that she suffered from life-threatening medical conditions she identified as cardiovascular disease, acute osteoporosis and diabetes. She also highlighted that she had undergone major surgical procedures in the past, including a gastrectomy, mastectomy, and hysterectomy, and suffered from anxiety disorder and glucose intolerance.
20. The Florence District Court, sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty ( tribunale della libertà e del riesame ), dismissed the applicant ’ s appeal on 1 October 2010. It found that the exceptional grounds for her to be detained on remand, as listed in the preliminary investigation judge ’ s order of 9 June 2010, still existed. It further pointed out that she had in the past been convicted of analogous offences and had, as soon as she had been released, resumed her criminal activity. As to the applicant ’ s health, the court drew on the expert medical report requested by the preliminary investigations judge to conclude that there was no incompatibility between it and her detention in a correctional facility. Referring to extracts from the report, the court observed that there was no evidence of an imminent risk of congestive heart failure or other life-threatening conditions, contrary to her contentions. It went on to acknowledge the expert ’ s finding that she had undergone several major surgical procedures in the past, but that these had allowed for the treatment of serious medical conditions, thus leading to an improvement in her clinical situation. Drawing on the report, it further concluded that the provision of special meals to meet her nutritional needs and the necessary drug therapy could be adequately taken care of in a correctional facility. It appears from the order that the court also examined medical reports submitted by the prosecutor and applicant ’ s counsel and took the latter into account when reaching its conclusions.
21. On 10 October 2010 the applicant lodged an appeal on points of law with the Court of Cassation.
22. On 1 December 2010 she was committed for trial and the first hearing before the Pistoia District Court was scheduled for 22 March 2011. She was formally charged with all the suspected offences including criminal association, the unlawful practice of medicine, and aggravated fraud (see paragraph 7 above).
23. On 16 February 2011 the Court of Cassation declared the appeal inadmissible.
(b ) Second request for modification of the detention order
24. On 4 May 2011 the applicant ’ s counsel submitted a further request seeking the replacement of the applicant ’ s detention with house arrest, reiterating the argument that both her advanced age and state of health were incompatible with detention in prison. He relied, inter alia, on a medical certificate issued by the prison doctor on 5 April 2011, in which her clinical condition was described as “complex and multifaceted” and “difficult to manage” in a regular correctional facility.
25. On an unspecified date the Pistoia District Court ordered a new medical examination with a view to assessing the compatibility of her state of health with detention.
26. On 5 May 2011 it dismissed the request for house arrest, having regard to the persistent danger that the applicant might reoffend. However, the court ordered that she be transferred to a correctional hospital ( centro clinico penitenziario ) in Pisa with a view to ensuring increased medical supervision and the provision of any necessary treatment, and preventing a further deterioration in her health. The court reached its conclusions by relying on a number of findings by the expert, who found that the gastrectomy performed in 1967 had left her with some long-term side effects, including insufficient absorption of calcium and vitamin D. He also noted with some concern that she had experienced height and weight loss and that her osteoporosis had worsened during the months spent in detention. In order to manage her condition effectively and prevent its deterioration, the expert noted that she would require small, frequent meals, a special diet enriched by dietary supplements, and some form of exercise. Finally, he pointed out a slight cerebral atrophy, coupled with a mild anxiety-depressive disorder.
27. On 10 May 2011 the applicant lodged an appeal, reiterating the incompatibility of her age and state of health with any form of detention, even in a correctional hospital.
28. On 20 June 2011 the Florence District Court, sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty, placed the applicant under house arrest. It relied on the medical report submitted by the expert to the Pistoia District Court to conclude that an “incompatibility in substance” with detention existed in her case and that a less restrictive measure, such as house arrest, was preferable under the circumstances.
29. It ordered the applicant ’ s immediate release and set out the specific conditions of her house arrest, including the requirement that she stay in her home at all times, leave only with the authorities ’ prior permission, and refrain from contacting or interacting with anyone except her authorised cohabitees and medical staff.
30. On 23 June 2011 the public prosecutor lodged an appeal on points of law with the Court of Cassation.
31. On 19 October 2011 the Court of Cassation declared the appeal inadmissible.
(c) Third request for modification of the detention order
32. On 4 June 2012 the public prosecutor requested that the house arrest be substituted with detention on remand, as the applicant had breached its conditions. He provided evidence that, amongst other things, she had been in contact with several unauthorised individuals including co-defendants in the ongoing criminal proceedings and a number of her “followers” and “admirers”.
33. On an unspecified date the Pistoia District Court ordered a new medical examination with a view to determining whether her state of health was compatible with detention.
34. On 6 July 2012 the Pistoia District Court granted the prosecutor ’ s request and remanded the applicant in custody, ordering that she be transferred at once to the correctional hospital in Pisa. It found that she had violated the terms of her house arrest, and that the situation which had arisen was conducive to her re-establishing the network which had supported her criminal activity. As to her health, the court drew on the medical report it had requested which stated that adequate monitoring and treatment of her medical conditions, as well as the provision of adequate nutrition in compliance with her special dietary needs, could be carried out in a correctional hospital. In particular, the expert noted that treatment of the applicant ’ s osteoporosis to prevent future damage to her bone structure would not in any way be hindered by her detention in such a facility. He added that while under house arrest, she had experienced three fractures, suggesting that the monitoring of her condition in a correctional hospital could be in no way considered inferior.
35. On 22 October 2012 the Pisa correctional hospital issued a medical certificate concerning the applicant ’ s state of health. It described her medical history and the outcome of various specialist consultations she had undergone in the facility in previous months. An orthopaedic specialist had confirmed her advanced osteoporosis and prescribed treatment, a cardiologist had reported good cardiac function, while an ophthalmologist had recommended that she undergo surgery for a cataract in her left eye. The report further contained a recommendation that the applicant undergo a colonoscopy. Concerns were raised regarding the difficulties encountered in the management of treatment and diagnostic tests which had required transporting her to external facilities. Both her cataract surgery and the colonoscopy had to be rescheduled due to the unavailability of police officers who should have escorted her to the external facilities. The doctors concluded that the continued detention of the applicant, albeit in a correctional hospital, could have resulted in the deterioration in her health.
36. On 18 December 2012 the applicant ’ s counsel submitted a request to the Florence Court of Appeal, seeking the substitution of the detention on remand with house arrest. He reiterated all the arguments raised at first instance and referred to extracts from the report issued by the correctional hospital on 22 October 2012.
37. The request was granted on the same day and the applicant was placed under house arrest.
38. According to the material in the case file, she is currently under house arrest, as the criminal proceedings against her are pending before the Court of Cassation.
B. Relevant domestic law and practice
Article 274 of the Italian Code of Criminal Procedure
39. Article 274 provides that a person may be detained pending trial:
“(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence and based on matters of fact which must, on pain of nullity, be expressly set out in the decision, which the judicial authority may take of its own motion...;
(b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years;
(c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused...”
40. Under Article 275 § 4, individuals over the age of seventy may not be detained pending trial unless exceptional circumstances warrant the imposition of such a measure.

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1. The applicant was born in 1972. He is currently serving a prison sentence in Świnoujście Remand Centre.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows:
1. The applicant ’ s medical condition and successive periods of detention
3. In 2005 the applicant suffered an acoustic shock. He was subsequently diagnosed as having a severe hearing impairment. An audiometric test carried out on 20 July 2005 confirmed 10 decibels hearing loss (dB HL) in his left ear and 80 dB HL in his right ear. Medical treatment he underwent in the Szczecin Military Hospital from 10 to 19 August 2005 did not result in an improvement of his condition. He was released from the hospital and further outpatient treatment was recommended.
4. Subsequent laryngological and surgical treatment and further consultations with a psychiatrist, neurologist and optician resulted in successive decisions to postpone the start of a seven-year prison sentence imposed on him by the Świnoujście District Court on 15 May 2003. On 15 September 2005 the court postponed the start of his sentence until 15 March 2006 on health grounds (ref. no. VI Ko 199/05). Having regard to the applicant ’ s medical records, it was of the view that serving the sentence would have been too harsh on him. On 25 May 2006 the court extended the period of postponement (ref. no. VI K 94/06), referring to the applicant ’ s need to have further treatment.
5. He started his sentence on 10 July 2006.
6. The applicant was subsequently deprived of his liberty in a number of detention facilities, namely:
- Świnoujście Remand Centre (from 10 July to 24 October 2006, 27 February to 21 March 2007, 18 July to 17 August 2007, 9 to 19 February 2010 and 18 November 2010 to 10 June 2011);
- Szczecin Remand Centre (from 24 October to 6 December 2006 and 17 January to 1 February 2007);
- Bydgoszcz Remand Centre (from 6 to 28 December 2006);
- Koronowo Prison (from 28 December 2006 to 17 January 2007);
- Goleniów Prison (from 1 to 27 February 2007, 27 March to 18 July 2007, 17 August to 4 September 2008, 3 November 2008 to 5 February 2009 and 19 February to 18 November 2010);
- Katowice Remand Centre (from 5 to 17 September 2008);
- Nowy Wiśnicz Prison (from 17 September 2008 to 28 October 2008);
- Łódź Remand Centre (from 29 October to 3 November 2008);
- Nowogard Prison (from 10 June to 10 November 2011).
7. The applicant was examined by doctors of various prisons – twice in 2006, on four occasions in 2007 and on nine occasions in 2008. The courts twice postponed the date on which he was to start serving his prison sentence.
2. The applicant ’ s efforts to obtain a hearing aid and applications for prison leave
8. On 31 August 2005 the applicant was provided with a medical prescription ( zlecenie lekarskie ) for a hearing aid for his right ear. Subsequently, on unspecified dates the competent court twice postponed the start of his prison sentence (see paragraph 7 above). While at liberty, he did not use a hearing aid and did not take any steps to obtain one.
9. On 22 June 2006 the applicant underwent another audiometric test, which gave similar results to the test on 20 July 2005 (see paragraph 6 above). At that time he had 75 dB hearing loss in his right ear. A subsequent medical certificate drawn up on 13 December 2006 demonstrated that his hearing had become worse, increasing to 80 dB hearing loss in his right ear and 30 dB hearing loss in his left ear.
10. On 31 March 2007 a laryngologist examined the applicant. He was informed that under Article 115 § 2 of the Code of Execution of Criminal Sentences, he could obtain a hearing aid at his own expense. Subsequently, he took steps to obtain a hearing aid without the help of the prison service. It appears that to that end he contacted the Institute of Physiology and Hearing Pathology ( Instytut Fizjologii i Patologii Słuchu ) in Warsaw and had a medical appointment scheduled for 13 August 2007; however, he could not attend it as he was imprisoned at the time.
11. On 30 May 2007 he was registered for social insurance purposes as a person suffering from a moderate disability ( umiarkowany stopień niepelnosprawności ).
12. On 5 July 2007 the applicant requested the Penal Division of the Szczecin Regional Court (hereinafter “the penal court”) to grant him short ‑ term prison leave to attend the medical appointment scheduled for 13 August 2007 (see paragraph 13 above) and further medical check-ups at liberty. He did not make a formal request to attend the relevant hearing. He requested that a lawyer be appointed under the legal aid scheme to represent him before the court. He submitted that he did not feel mentally fit to argue his own case and that he had been undergoing psychiatric treatment for years.
13. On an unspecified date in August 2007 the court dismissed his request for legal aid.
14. On 16 November 2007 the Szczecin Regional Court informed the applicant that his application for prison leave would be examined at a hearing scheduled for 20 November 2007.
15. The hearing was held as planned, without him being present. The court dismissed his request for leave. It considered, with reference to the medical certificate, that his hearing impairment could be treated in prison, that his detention had not put his life directly at risk within the meaning of Article 150 § 2 of the Code of Execution of Criminal Sentences, and that the legal requirements for granting him leave had not been met.
16. The applicant appealed, submitting that he had been deprived of the right to argue his case before the court either in person or through a legal aid lawyer. He requested to be present at the appeal hearing.
17. On 17 January 2008 he was informed that an appeal hearing had been scheduled for 31 January 2008. On that date the Szczecin Court of Appeal dismissed his appeal. He was not present at the hearing.
18. In its decision, the penal court referred to a medical certificate issued by a prison doctor on 7 August 2007. The court was of the view that, in the light of that certificate, the applicant ’ s condition could be successfully accommodated by the prison health care system. The court did not address the issue of the procedural shortcomings which had allegedly been committed by the Regional Court.
19. The applicant applied to the Polish Association of the Deaf to be provided with a hearing aid. The replacement hearing aid ( zastępczy aparat słuchowy ) was issued to him on 8 April 2008. He was entitled to use it until he was able to buy his own device, with the possibility of a partial refund by the National Health Fund.
20. The applicant secured a new date for a specialist medical consultation at the Institute of Physiology and Hearing Pathology on 7 April 2008, but he could not attend.
21. On 8 July 2008 the Szczecin Regional Court dismissed another request for prison leave on medical grounds. The court relied on the same reasoning and on the same 2007 medical certificate as in its January 2008 decision (see paragraph 21 above). The applicant appealed.
22. On 30 September 2008 the Szczecin Court of Appeal quashed the decision. On 8 October 2008 the applicant was granted legal aid for the purposes of his request for leave. Meanwhile, he was transferred to another prison in a different court circuit. Eventually, on 3 February 2009 the Szczecin Regional Court granted him six months ’ leave to allow him to obtain a hearing aid. He left prison on 5 February 2009.
23. During his leave, he asked the State Fund for the Rehabilitation of Disabled Persons ( Państwowy Fundusz Rehabilitacji Osób Niepelnosprawnych ) and other organisations to finance the purchase of his hearing aid.
24. On 8 May 2009 the applicant was presented with an invoice from a private company that made hearing devices. The cost of a hearing aid fitted to his purposes was 1,888 Polish zlotys (PLN) (approximately 500 euros (EUR)). He did not collect the hearing aid from the shop during his prison leave, because he could not afford to pay for it.
25. By a letter dated 12 May 2009 the Świnoujście Family Assistance Centre ( Miejski Ośrodek Pomocy Rodzinie ) informed him that they could not finance his hearing aid.
26. On 25 August 2009 the Szczecin Regional Court extended his leave for another six months until 5 February 2010 (ref. no. V Kow 1521/09), as he had not managed to obtain a hearing aid within the period of leave previously granted to him. Subsequently, he obtained a left ear hearing aid. The total price of the aid with an ear insert was PLN 2,498 (approximately EUR 630). PLN 610 (approximately EUR 154) was refunded by the National Health Fund, while PLN 900 (approximately EUR 227) was refunded by the State Fund for the Rehabilitation of Disabled Persons. He paid approximately PLN 1,000 (approximately EUR 252) from his own means.
27. The applicant failed to report back to Goleniów Prison at the end of his leave. He was arrested by the police and taken back there on 9 February 2010.
28. Once back in prison, he asked the prison authorities to provide him with a right ear hearing aid. They refused, referring to the principle that only people in employment were entitled to two hearing aids, including persons at liberty.
29. On 15 December 2010 a laryngologist issued an opinion that he should also be provided with a right ear hearing aid.
30. Subsequently, on 14 January 2011 the applicant applied to the Szczecin Regional Court for further prison leave (ref. no. V Kow 139/11). He raised the issue of his hearing impairment. He submitted that he planned to undergo ear surgery and urological surgery. He was granted legal aid for the purposes of the proceedings. On 10 March 2011 the Szczecin Regional Court assigned a lawyer to represent him under the legal aid scheme.
31. On 5 April 2011 the Szczecin Regional Court refused his request for prison leave. The court referred to a medical certificate dated 1 March 2011, which indicated that he had been examined by laryngologists on several occasions, that he was suffering from hearing problems but had been using a hearing aid, that the certificate of 5 December 2010 had not recommended that it was absolutely necessary for him to also have a hearing aid for his right ear, and, lastly, that during the previous period of leave, he had committed another criminal offence and had not returned to prison on the due date.
The applicant was represented by the legal aid lawyer.
32. The applicant appealed and requested to be taken from prison to the appeal hearing. On 9 June 2011 the Szczecin Court of Appeal refused to allow his request. It was of the view that he had failed to refer to any circumstances that would justify his attendance in person, that the decision was to be taken on the basis of documents in his medical file, and that he was represented by a legal aid lawyer.
On the same date the court dismissed his appeal. It noted that it was not in dispute that he suffered from various ailments which necessitated medical care, but it was possible to provide treatment to him in prison. The court referred to a medical certificate and his laryngological consultations, none of which confirmed that he was in danger of becoming deaf. There was no need for him to be provided with a right ear hearing aid.
33. On 5 May 2011 the applicant was consulted by a laryngologist. The doctor was of the view that his very significant hearing loss made the use of a hearing aid for his right ear pointless. Furthermore, it was possible that the right ear hearing aid would interfere with the left ear hearing aid he had been using. The laryngologist did not recommend that he be provided with a hearing aid for his right ear.
34. As the laryngologists ’ opinions dated 15 December 2010 and 5 May 2011 were contradictory, another consultation was arranged on 29 August 2011 at the laryngological ward of the Pomeranian Medical University in Szczecin. Medication was prescribed as a result of this consultation. The conclusions of the opinion of 15 December 2010 as to the necessity of the applicant being fitted with a hearing aid for his right ear were confirmed.
35. On 30 August 2011 the applicant made another request to have a hearing aid provided by the penal authorities. The following day, after considering this oral request, the authorities decided to wait for the court ’ s decision as to the applicant ’ s possible prison leave.
36. On 8 November 2011 the Szczecin Regional Court granted six months ’ prison leave to the applicant (ref. no. V Kow 2435/11 pr). He submitted, in support of his request, that because of his disability he had found it difficult to communicate with his fellow inmates and the prison guards, which had resulted in people being aggressive and intolerant towards him. He had been insulted and humiliated. Moreover, he could not attend the education classes offered in prison or fully engage in religious practices.
The court noted that the applicant was serving a six-year prison sentence. He suffered progressive hearing loss, atrophy of the hearing nerves, myopia, and hyperglyceridemia. He was afraid of losing his hearing and wanted to be treated. He had used a hearing aid since 2008, but his hearing had deteriorated. His hearing loss had caused him to have anxiety attacks and depressive thoughts. A detailed diagnosis of his hearing problems and surgical treatment, if necessary, was not possible within the confines of a prison.
37. On 10 November 2011 the applicant was provided with a right ear hearing aid paid for by the detention facility.
38. On 20 December 2012 a doctor working for the social insurance authorities declared the applicant partially unfit to work for the period ending 31 December 2013.
39. On 26 February 2013 the penal court granted the applicant further leave for the purposes of his medical treatment.
40. On 22 March 2013 he had an ear implant fitted during an operation in a civil hospital in Kajetany specialising in treating hearing disorders. In June 2013 the hospital scheduled twelve visits at three-month intervals, with the treatment ending on 20 March 2015, with a view to him having a clinical follow-up after each operation. On 26 September 2013 he attended a follow-up appointment at that hospital.
41. On 8 November 2013 he returned to prison to serve the remainder of his sentence. He submitted that the prison administration had not allowed him to attend a follow-up appointment scheduled for 27 November 2013.
3. Criminal investigation against the prison staff and administration
42. The applicant tried to institute criminal proceedings against the prison staff, alleging that they had failed to provide him with appropriate medical care.
43. On 14 August 2008 the Goleniów District Court dismissed an interlocutory appeal by the applicant against a decision by the Goleniów District Prosecutor on 30 June 2008 ( Ds. 505/08) refusing to open an inquiry into his allegations that the Goleniów Prison doctor had put him directly at risk of severe health damage by refusing to authorise his diagnostic hearing tests and by failing to provide him with a hearing aid.
44. The prosecution authorities had found that the applicant had undergone medical tests in 2006. Since then, he had been under continuous medical care in prison. He was not considered to be at risk of suffering any damage to his health. It was also noted that the State was under an obligation to provide prisoners with only basic health care, and not to grant their ( often excessive ) wishes to receive specialist medical services and undergo unnecessary medical procedures.
45. On 10 March 2008 the Świnoujście District Court dismissed an appeal by the applicant against a decision taken by the District Prosecutor on 9 June 2007 ( Ds. 656/07) discontinuing an investigation against the staff of the Świnoujście Remand Centre who had allegedly put his life at risk by interrupting the medical treatment prescribed to him by the remand centre psychiatrist. It was established that the applicant ’ s psychiatric treatment had been temporarily interrupted because he had been moved to a smaller remand centre where, for reasons unspecified in the decision, his treatment could not be continued. However, this did not amount to a criminal offence. It was further held that a hearing aid was not absolutely necessary for the applicant. His hearing impairment made his detention more difficult, but it did not render it impossible or too harsh on him.
4. The applicant ’ s complaints to the penal authorities
46. By a letter dated 17 August 2007 the Szczecin Regional Inspectorate of the Prison Service ( Okręgowy Inspektorat Służby Więziennej ) informed the applicant that complaints he had lodged on 27 July and 3 August 2008 concerning the administration of his medication, adequacy of his medical care and failure to provide him with a hearing aid had been declared ill ‑ founded. It was established that (in the morning) a prison nurse and (in the evening) a prison guard administered psychotropic drugs to the applicant on prescription. He had received three injections, whereas the fourth injection, which he had asked for, was not required. The prison laryngologist had not considered it necessary for him to use a hearing aid. Accordingly, he had been informed that the device would not be financed by the prison health care system.
47. By a letter dated 30 June 2008 the governor of Goleniów Prison informed the applicant that his complaint regarding the alleged irregularities in the administration of his medication had been considered ill-founded, as he had received it in a manner consistent with his prescription.
5. The applicant ’ s civil action against Goleniów Prison – State Treasury
48. After lodging his application with the Court, on 14 July 1008 the applicant instituted a civil action against the State Treasury representing Goleniów Prison (ref. no. I C 757/08). Originally, his allegations concerned power cuts in the detention facility, being forced to take sleeping pills at 6. 30 p.m., the supposed presence of asbestos in the prison buildings, limited possibilities of employment, overcrowding and the lack of common space. During a hearing on 30 November 2011 the applicant stated that he was also claiming compensation for health damage he had sustained as a result of his irreversible hearing loss as well as the overall poor prison conditions.
49. The applicant ’ s claim concerned the period 1 February 2007 to 5 February 2009.
50. On 29 October 2009 an expert opinion prepared by a laryngologist was submitted to the court. The doctor stated that there was no doubt as to the applicant ’ s very significant hearing loss in his right ear, whereas an evaluation of the hearing loss in his left ear was more difficult and had not led to unequivocal results. The expert had regard to audiograms made on 13 December 2006, 16 July 2008, 29 August 2008, 8 December 2008, 12 February 2009 and 19 October 2009 and to a number of documents in the applicant ’ s medical records. There were discrepancies between results of different audiograms, as the applicant had over that time been examined by various people and with various apparatus. The applicant ’ s emotional state could also have had an impact on the results. Some results indicated a deterioration of his hearing, whereas other suggested an improvement from 2006 to 2009. It was noted that the applicant had been using a hearing aid since 4 April 2008.
The expert found that the applicant ’ s hearing without a hearing aid was “ socially efficient ” ( wydolne społecznie ), while with the aid it was good. He found that there were no grounds on which to establish that the applicant ’ s hearing had deteriorated as a consequence of his detention. He emphasised that usage of a hearing aid had no influence on the possibility of further deterioration as it neither cured nor prevented hearing loss; it only made the applicant ’ s social functioning more comfortable.
51. On 22 September 2010 the expert was questioned by the court, and upheld his conclusions.
52. On 29 December 2010 the Szczecin Regional Court was provided with an expert opinion by a psychiatrist concerning the applicant ’ s mental health. It was stated that it was not possible to carry out a full assessment without access to his medical records stored in the hospitals where he had been treated previously or without prior psychological tests. The applicant apparently suffered from various personality problems.
53. During the hearing on 30 November 2011 (see paragraph 51 above) the psychiatrist was questioned.
54. On 14 March 2012 the Szczecin Regional Court dismissed the applicant ’ s compensation claim, finding that there was no evidence to show that he had been attacked or ill-treated because of his bad hearing; that the medical reports had certified that he could have some difficulties following conversations held in a noisy room between a number of people; that his hearing was socially efficient; that there was no evidence to show that it had deteriorated during and because of his detention; that a hearing aid could assist him in everyday life but could not be regarded as treatment of his condition; and that the refusals to provide him with a hearing aid at the public ’ s expense did not result in the deterioration of his hearing, nor could be seen as humiliating or debasing treatment.
The court had regard to the applicant ’ s medical records, his correspondence with the Association of the Deaf, certain documents in the applicant ’ s prison records, the laryngologist ’ s opinion referred to above, and the testimony given by the prison laryngologist, E.P., the psychologist, the psychiatrist, the laryngologists and three other witnesses.
The applicant appealed.
55. On 29 June 2012 the Szczecin Court of Appeal dismissed his appeal, fully sharing the findings and conclusions of the first-instance court.
B. Relevant domestic law
56. The provisions pertaining to medical care in detention facilities, and the relevant domestic law and practice are set out in the Court ’ s judgments in the cases of Sławomir Musial v. Poland (no. 28300/06, §§ 48-61, 20 January 2009), and Kaprykowski v. Poland ( no. 23052/05, §§ 36-39, 3 February 2009 ). In particular, Article 115 of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) (“the Code”) provides:
“1. A sentenced person shall receive medical care, medication and sanitary items free of charge.
...
4. Medical care is provided, primarily, by health care establishments for persons serving prison sentences.
5. Health care establishments outside the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular:
1) to provide immediate medical care because of a risk to the life or health of a sentenced person;
2) to provide specialist medical examinations, treatment or rehabilitation to a sentenced person;
3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in ... the sentence ...”
57. On the basis of Article 115 § 10 of the Code, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności). The Ordinance was in force from 17 December 2003 until 11 July 2010.
58. Health care establishments for persons deprived of their liberty provided, inter alia, medical examinations, treatment, preventive medical care, rehabilitation and nursing services (paragraph 1.1).
59. A person deprived of his or her liberty was subjected to preliminary and periodical medical examinations and check-ups (paragraph 2), and had to undergo preliminary medical examinations, such as a review of his or her medical history and a physical examination as soon as he or she was admitted to a detention establishment (paragraph 3). Moreover, no later than fourteen days from the admission date, a person deprived of his or her liberty had to have a chest X-ray and a dental examination.
60. Prison doctors were authorised to prescribe medical tests other than those mentioned above, if it was justified in the light of the health of the person deprived of his or her liberty (paragraph 3.5). Those tests, however, were not mandatory and could only be performed with a prisoner ’ s consent.
61. The Ordinance of 31 October 2003 was replaced by a largely similar text, the Ordinance of 23 December 2010, on the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości z dnia 23 grudnia 2010 r. w sprawie udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności), which entered into force on 3 January 2011.

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1. The applicant, Ms Alisiya Yurieva Korpachyova-Hofbauer, is a Bulgarian national who was born in 1979 and lives in Wanfried, Germany. She was represented before the Court by her mother, Ms V. Shopova, who on 13 October 2014 was granted leave by the President of the Section under Rule 36 § 4 (a) of the Rules of Court to act on her daughter ’ s behalf in the proceedings before the Court.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms D. Dramova, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties and established by the Court, may be summarised as follows.
1. The applicant ’ s detention in Sveti Ivan Rilski State Psychiatric Hospital
4. On 6 February 2012 the applicant, who suffered from a schizoaffective disorder, attacked her mother with a knife in their home. The police, who had been called by the applicant ’ s mother, arrested the applicant and took her to a centre for psychiatric health in Sofia. She remained there until 22 February, when the Sofia District Court ordered her to be transferred to Sveti Ivan Rilski State Psychiatric Hospital in Novi Iskar for two months ’ compulsory treatment. The applicant appealed against that order, challenging in particular the court ’ s ruling as to the precise facility in which she was to be treated. Her mother, who was heard as a witness in the course of the appeal proceedings, also stated that she would prefer the applicant to be treated elsewhere, preferably as an outpatient. The Sofia City Court dismissed the appeal on 6 March 2012.
5. Sveti Ivan Rilski State Psychiatric Hospital, which is State-owned and operated, is situated at the outskirts of the town of Novi Iskar, at about one kilometre from the nearest neighbourhood, about eighteen kilometres from the centre of Sofia, and about four kilometres from Sofia ’ s ring road. It was created in 1949, using some of the premises of a nearby monastery, and consists of several buildings.
6. During the first week of her stay in that hospital, the applicant was placed under a “heightened security regime”, which meant she was not allowed to leave her ward unaccompanied. According to the hospital ’ s director, placing patients whose compulsory treatment had been ordered by a court under that regime was common practice as it allowed for an initial assessment of their condition.
7. After the first week the applicant ’ s regime was relaxed and she was allowed to move around the hospital grounds and take part in art therapy sessions. As her mental health improved – according to the Government as a result of the medication that she was given – her regime was relaxed even further, and between 15 and 17 March 2012 she was granted home leave. On 29 March 2012 her treatment continued on an outpatient basis, which meant that after that date she was only required to be present at the hospital during the day for medication and art therapy, but did not have to stay overnight.
8. The applicant ’ s compulsory treatment came to an end on 20 April 2012.
2. The conditions of the applicant ’ s detention in Sveti Ivan Rilski State Psychiatric Hospital
(a) The applicant ’ s allegations
9. The applicant submitted that during the first week of her stay in Sveti Ivan Rilski State Psychiatric Hospital she had been assaulted by another patient. In the course of the hearing of the applicant ’ s appeal against the Sofia District Court ’ s order for her compulsory treatment, the applicant ’ s mother gave evidence that the applicant had told her that on 29 February 2012 a newly arrived patient had assaulted her in the shower, pushing her in the chest. She had however not sustained any injuries as a result, and had not called for help, apparently because she had felt scared. When her mother had visited her the next day, 1 March, the two had brought the incident to the attention of three members of the nursing staff, who had advised the applicant to call for help if such an incident were to occur again. On the basis of that evidence, the appellate court accepted that an incident with another patient had taken place. However, it noted that the proper way to deal with such matters was not to seek transfer to another hospital but to inform the nursing staff and ask them to take steps to avert future incidents, which was exactly what had happened. In the course of the same hearing the applicant said that the temperature in the hospital was too low for her to feel comfortable and that as a result she had a sore throat.
10. According to the applicant, conditions in the hospital were quite poor, characterised by insufficient funding and staffing levels, inter-patient violence, low temperatures in winter and frequent flooding. The hospital ’ s director had herself said in media interviews that the premises were old and impractical, with broken and mouldy walls and broken tiles, and that there had been cases of violence, including on one occasion against the director herself.
(b) The Ombudsman ’ s 2012 report
11. In support of her allegations, the applicant referred to a report by the Ombudsman of the Republic of Bulgaria drawn up after members of his staff had inspected the hospital on 26 June 2012 in their capacity as designated national preventive mechanism under Article 17 of the 2002 Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( 2375 United Nations Treaty Series 237 ), which entered into force in respect of Bulgaria on 1 July 2011.
12. The report began by noting that one of the hospital ’ s chief problems was its remoteness, which rendered access for patients ’ relatives difficult, especially in winter. The other big problem was that the premises and the hygienic and material conditions did not live up to the applicable medical standards. The buildings were old and in a “deplorable” state of repair, despite partial renovation works carried out about a month before the inspection. The equipment was outdated and inadequate. As a result of a damaged dyke on the nearby Iskar River, the premises were flooded every year. The room in which food was being served to patients had leaks, mould on the ceiling and rusty equipment.
13. Patients were accommodated in rooms with three or four beds each. Each of the hospital ’ s wards housed about thirty-five patients and had two bathrooms and two toilets, found by the report to be “utterly insufficient”. Patients were allowed out of their rooms for one to one-and-a-half hours per day. Visits were permitted twice a week and had to take place in the yard, weather permitting. At the time of the inspection the hospital had one hundred and forty patients. Thirty-two of them were in the female ward, which was staffed by three medical doctors, one psychologist, eight nurses and ten orderlies. The hospital lacked almost all of the medical equipment required under the applicable regulations. It had never been audited, and did not properly record medical conditions other than the mental illnesses in connection with which the patients had been admitted. Patients who died in the hospital were not subjected to an autopsy, and patients who had to be restrained were not kept separate from other patients, as required under the applicable regulations.
14. In view of those findings, the report recommended that the hospital gradually be closed and transferred to new premises in Sofia.
15. In a letter to the Ombudsman dated 16 August 2014 in response to that recommendation, the Ministry of Health explained that the hospital ’ s possible relocation had been discussed on several occasions, but no decision had yet been taken.
(c) The 2014 audit report
16. Between 29 July and 1 August 2014 a team from the Ministry of Health audited the hospital, and on 18 August 2014 drew up a report. With regard to material conditions in the hospital, the audit report likewise noted that its premises were in a very poor state of repair and “dangerous for the health and lives” of patients and staff. It also noted that the buildings were regularly flooded, and that their foundations were not waterproof. Minor repair works such as repainting and a partial renovation of the roof had been carried out in 2012 and 2013.
17. The report, which also addressed the applicant ’ s situation, noted that the ward in which she had been kept had rooms with three or four beds each, and two bathrooms and toilets. The building, which had a local steam heating system, did not have proper isolation and could not be optimally heated. The nurses had kept records of room temperatures, taking the following readings at the time of the applicant ’ s stay: 17 degrees Celsius during the night of 23 February 2012, and 18 degrees Celsius during the nights of 25 February and 3 March 2012. The report also noted that in the applicant ’ s ward, patients were free to leave their rooms and move around. Those of them who, like the applicant initially, were placed under the “heightened security regime” were not allowed to leave the ward unaccompanied, in order to avoid acts of aggression, suicides or escapes, and were kept under constant supervision.
(d) Other information about conditions in the hospital
18. A report about the hospital aired by Darik Radio on 4 April 2011 and available online described derelict buildings with cracked walls, missing plaster and mould. According to that report, in winter temperature in some of the wards did not exceed 13 degrees Celsius. At the time of the journalist ’ s visit the hospital ’ s kitchen had been flooded. The poor state of the premises was also described in reports aired on 7 April 2011 by TV7 and on 24 January 2014 by Nova TV, also available online.

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5.The applicants were born in 1983, 1987 and 1988 respectively. MrKhlaifia (the “first applicant”) lives in Om Laarass (Tunisia); MrTabal and Mr Sfar (the “second applicant” and the “third applicant”) live in ElMahdia (Tunisia).
A.The applicants’ arrival on the Italian coast and their removal to Tunisia
6.On 16 and 17 September 2011 the applicants – the first, then the second and third, respectively – left Tunisia with others on board rudimentary vessels heading for the Italian coast. After several hours at sea, their vessels were intercepted by the Italian coastguard, which escorted them to a port on the island of Lampedusa. The applicants arrived on the island on 17 and 18September 2011 respectively.
7.The applicants were transferred to an Early Reception and Aid Centre (Centro di Soccorso e Prima Accoglienza – “CSPA”) at Contrada Imbriacola where, after giving them first aid, the authorities proceeded with their identification.
8.They were accommodated in a part of the centre reserved for adult Tunisians. According to the applicants, they were held in an overcrowded and dirty area and were obliged to sleep on the floor because of the shortage of available beds and the poor quality of the mattresses. Meals were eaten outside, sitting on the ground. The centre was kept permanently under police surveillance, making any contact with the outside world impossible.
9.The applicants remained in that centre until 20September, when a violent revolt broke out among the migrants. The premises were gutted by fire and the applicants were taken to a sports complex on Lampedusa for the night. At dawn on 21September they managed, together with other migrants, to evade the police surveillance and walk to the village of Lampedusa. From there, with about 1,800 other migrants, they started a demonstration through the streets of the island. After being stopped by the police, the applicants were taken first back to the reception centre and then to Lampedusa airport.
10.On the morning of 22 September 2011 the applicants were flown to Palermo. After disembarking they were transferred to ships that were moored in the harbour there. The first applicant was placed on the Vincent, with some 190 individuals, while the second and third applicants were on board the Audace, holding about 150.
11.The applicants described the conditions as follows. All the migrants on each vessel were confined to the restaurant areas, access to the cabins being prohibited. They slept on the floor and had to wait several hours to use the toilets. They could only go outside onto the balconies twice a day for a few minutes at a time. They were allegedly insulted and ill-treated by the police who kept them under permanent surveillance and they claimed not to have received any information from the authorities.
12.The applicants remained on the ships until 27 and 29 September, respectively, when they were taken to Palermo airport pending removal.
13.Before being put on the aircraft, the migrants were received by the Tunisian Consul. According to the applicants, the Consul merely recorded their identities in accordance with agreements between Italy and Tunisia of April 2011 (see paragraphs 28-30 below).
14.On their application form the applicants claimed that at no time during their stay in Italy had they been issued with any document.
Annexed to their observations, the Government, however, produced three refusal-of-entry orders dated 27 and 29 September 2011 that had been issued against the applicants. Those orders, which were basically identical and drafted in Italian with a translation into Arabic, read as follows:
“The Commissioner of Police (Questore) for the Province of Agrigento
Having regard to the documents in the file, showing that
(1)on 17 [18] September 2011 members of the police force found in the province of Agrigento, near the border of island of Lampedusa, Mr [surname and forename] born ... on [date] ... Tunisian national ... not fully identified, being undocumented (sedicente);
(2)the alien entered the territory of the country by evading the border controls;
(3)the identification (rintraccio) of the alien took place on/immediately after his/her arrival on national territory, and precisely at: island of Lampedusa;
WHEREAS none of the cases [indicated in] Article 10 § 4 of Legislative Decree no. 286 of 1998 is at issue;
CONSIDERING that it is appropriate to proceed in accordance with Article 10 § 2 of Legislative Decree no. 286 of 1998;
ORDERS
that the above-mentioned person be
REFUSED LEAVE TO ENTER AND RETURNED
INFORMS [AS FOLLOWS]
- An appeal may be lodged against the present order within a period of sixty days from the date of its service, with the Justice of the Peace of Agrigento.
- The lodging of an appeal does not suspend the enforcement (efficacia) of the present order.
- The director of the Migration Office will proceed, for the enforcement of the present order, with its service, together with a summary translation into a language spoken by the alien or into English, French or Spanish; and with its transmission to the diplomatic or consular delegation of the State of origin, as provided for by Article 2 § 7 of Legislative Decree no. 286 of 1998; and with its registration under Article 10 § 6 of the said Legislative Decree.
To be escorted to the border at: Rome Fiumicino
[Issued at] Agrigento [on] 27[29]/09/2011 on behalf of the Commissioner of Police
 [Signature]”
15.These orders were accompanied by a record of service, each with the same date, also drafted in Italian with an Arabic translation. In the space reserved for the applicants’ signatures, both documents contain the handwritten indication “[the person] refused to sign or to receive a copy” (si rifiuta di firmare e ricevere copia).
16.On their arrival at Tunis airport, the applicants were released.
B.Decision of the Palermo preliminary investigations judge
17.Anti-racism associations filed a complaint about the treatment to which the migrants had been subjected, after 20September 2011, on board the ships Audace, Vincent and Fantasy.
18.Criminal proceedings for abuse of power and unlawful arrest (Articles 323 and 606 of the Criminal Code) were opened against a person or persons unknown. On 3 April 2012 the public prosecutor sought to have the charges dropped.
19.In a decision of 1 June 2012 the preliminary investigations judge (giudice per le indagini preliminari) of Palermo granted the public prosecutor’s request.
20.In his reasoning the judge emphasised that the purpose of placing the migrants in the CSPA was to accommodate them and to cater for their hygiene-related needs for as long as was strictly necessary, before sending them to an Identification and Removal Centre (Centri di Identificazione ed Espulsione – “CIE”) or taking any measures in their favour. At the CSPA the migrants could obtain legal assistance and information about asylum application procedures.
The judge shared the public prosecutor’s view that the interpretation of the conditions concerning the grounds for and duration of the confinement of migrants in a CSPA was sometimes vague. He found, however, that a range of factors were to be taken into consideration, leading to the conclusion that the facts of the case could not be characterised as a criminal offence (“una tendenziale forzatura dei requisiti della ‘strumentalità’ e della ‘ristrettezza temporale’ è spesso causata da una molteplicità di fattori che escludono con sicurezza la possibilità di configurare, in tali fattispecie, illeciti di rilievo penale”).
He noted that the Office of the Commissioner of Police (Questura) of Agrigento had merely registered the presence of the migrants at the CSPA without taking any decisions ordering their placement.
21.According to the judge, the precarious balance on the island of Lampedusa had been upset on 20September 2011, when a group of Tunisians had carried out an arson attack, seriously damaging the CSPA of Contrada Imbriacola and rendering it incapable of fulfilling its purpose of accommodating and assisting migrants. The authorities had then organised transfer by air and sea to evacuate migrants from Lampedusa. The following day, clashes had taken place in the island’s port between the local population and a group of foreigners who had threatened to explode gas bottles. There had thus been a situation which was likely to degenerate, and which was covered by the notion of “state of necessity” (stato di necessità) as provided for in Article 54 of the Criminal Code (see paragraph 32 below). It was thus an imperative, according to the judge, to organise the transfer of some of the migrants by using, among other means, the ships.
As to the fact that, in the emergency situation, no formal decision had been taken to place the migrants on board the ships, the judge found that this could not be regarded as an unlawful arrest and that the conditions for the migrants’ transfer to CIEs were not satisfied. Firstly, the CIEs were overcrowded; secondly, the agreements with the Tunisian authorities suggested that their return was supposed to be prompt. The fact that a refusal-of-entry measure (respingimento) had been taken against the migrants, without judicial scrutiny, a few days after their arrival, was not unlawful in the judge’s view. The calculation of a “reasonable time” for the adoption of that measure and for the migrants’ stay in the CSPA had to take account of logistical difficulties (state of the sea, distance between Lampedusa and Sicily) and of the number of migrants concerned. In those circumstances, the judge concluded, there had been no breach of the law.
Moreover, the judge was of the view that no malicious intent could be attributed to the authorities, whose conduct had been prompted first and foremost by the public interest. The migrants had not sustained any unfair harm (danno ingiusto).
22.In so far as the complainants had alleged that the way in which the migrants had been treated had been detrimental to their health, the judge noted that the investigations had found that nobody on the ships had applied for asylum. Those who, at the Lampedusa CSPA, had expressed an intention to do so, together with any vulnerable individuals, had been transferred to the centres of Trapani, Caltanissetta and Foggia. Unaccompanied minors had been placed in temporary accommodation and no pregnant women were transferred to the ships. The migrants on board had been able to receive medical assistance, hot water, electricity, meals and hot drinks. Moreover, as recorded in a press agency note of 25September 2011, a member of parliament had boarded one of the ships in the port of Palermo, and had observed that the migrants were in good health, that they were receiving assistance and were sleeping in cabins containing bed linen or reclinable chairs (poltrone reclinabili). Some of the Tunisians had been taken to hospital, others had been treated on board by medical staff. Accompanied by the Deputy Commissioner of Police (vice questore) and by police officers, the MP in question had talked with some of the migrants. He had thus been able to observe that they had access to prayer rooms, that the food was satisfactory (pasta, chicken, vegetables, fruits and water) and that the Civil Protection authority (Protezione civile) had provided them with clothing. Some of the migrants had complained of a lack of razors, but the MP had observed that this could be explained by a measure taken to prevent self-harm.
23.The judge noted that, even though the migrants had not been in custody or under arrest, a photograph published in a newspaper had shown one of them with his hands bound by black ribbons and in the company of a police officer. He had been part of a small group of individuals who, fearing immediate removal, had engaged in acts of self-harm and had caused damage to buses. In the judge’s view, the restraint in question had been necessary to guarantee the physical well-being of the persons concerned and to avoid aggressive acts against police officers who were neither armed nor equipped with any means of coercion. In any event, the conduct of the police officers had been justified by a “state of necessity”, within the meaning of Article 54 of the Criminal Code (see paragraph 32 above).
24.In the light of the foregoing, the preliminary investigations judge took the view that the file contained no evidence of the physical and mental elements of the offences provided for in Articles 323 and 606 of the Criminal Code.
C.Decisions of the Agrigento Justice of the Peace
25.Two of the migrants against whom a refusal-of-entry order had been issued challenged those orders before the Justice of the Peace for Agrigento.
26.In two decisions (decreti) of 4 July and 30 October 2011, respectively, the Justice of the Peace annulled those orders.
In his reasoning the Justice of the Peace observed that the complainants had been found on Italian soil on 6May and 18September 2011, respectively, and that the orders at issue had been adopted only on 16 May and 24September 2011. Admittedly, Article 10 of Legislative Decree no.286 of 1998 (paragraph 27 below) did not indicate any time-frame for the adoption of such orders. Nevertheless, in his view, a measure which by its very nature restricted the freedom of the person concerned had to be taken within a reasonably short time after the identification (fermo) of the unlawful migrant. To find otherwise, concluded the judge, amounted to allowing de facto detention of the migrant in the absence of any reasoned decision of the authority, which would contravene the Constitution.

***

A.Background to the case
5.The second applicant was born in 1976 and the first applicant in 2001 and they live in Zadar.
6.On 23 June 2001 the second applicant married I.M.
7.On 4 September 2001 the second applicant gave birth to the first applicant.
8.Relations between the spouses deteriorated, and in 2006 the second applicant brought a civil action against her husband seeking divorce, custody of, and maintenance for the first applicant. Her husband, I.M., filed a counterclaim, seeking custody of the first applicant.
9.In the period between 5 July 2006 and 7 March 2008 a total of eight criminal complaints were filed against the second applicant and I.M. Most of these complaints were filed against each other directly, but some were filed at the initiative of the police. Three of those eight complaints resulted in criminal proceedings being instituted (two against I.M. and one against both I.M. and the second applicant), the outcome of which is unknown. The remaining five criminal complaints were dismissed, including three in which it was alleged that criminal offences of child abuse and domestic violence had been committed against the first applicant.
10.By a judgment of 24 August 2007, the Zadar Municipal Court (Općinski sud u Zadru) (a) granted the second applicant and I.M. a divorce; (b) awarded I.M. custody of the first applicant; (c)granted the second applicant access (contact) rights; and (d) ordered the second applicant to make regular maintenance payments for the first applicant. In so deciding the court relied on the opinion of forensic experts in psychiatry and psychology obtained during the proceedings and on the recommendation of the Zadar Social Welfare Centre (Centar za socijalnu skrb Zadar, “the local social welfare centre”) which participated in those proceedings as an intervener sui generis with a view to protecting the first applicant’s interests. The judgment became final on 2 January 2008.
11.Previously, by a decision of 7 November 2006 the local social welfare centre had ordered a child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed with a view to improving communication between the second applicant and I.M. regarding the first applicant, and also with a view to preventing her from being drawn into their conflict. The measure lasted until 31 August 2008, when it was discontinued. In its decision of 2 September 2008 the local social welfare centre stated, inter alia, the following:
“The measure only partly achieved its goal, in that contact with the mother has stabilised. The parents still do not communicate with each other and it is evident that the mother intends to continue with such behaviour. Furthermore, the mother’s cooperation with the supervising officer is not adequate and it is evident that the measure has become futile.”
B.The alleged abuse
12.The applicants submit that on 1February 2011 the first applicant’s father I.M. hit her in the face and squeezed her throat while verbally abusing her.
13.The next day the second applicant took the first applicant to the police to report the incident. The police instructed them to see a doctor and accompanied them to the local hospital, where the first applicant was examined by an ophthalmologist, who diagnosed her with bruising of the eyeball and eye socket tissue. In particular, the ophthalmologist noted:
“Clinically discrete haematoma of the left lower eyelid, in resorption. The motility of the eyes is normal, no diplopia [double vision], no clinical signs of orbit fracture.
Pupils are normal, lenses [are] in place, transparent, fundus [is] normal on both sides.
Dg.: Contusio oc.sin.
Haematoma palp.inf.oc.sin.
Treatment: cold wraps [compresses] ... Into the eye: Effludimex sol ...
Dg:
S05.1. Bruising of the eyeball and the eye socket tissue”
14.After examining the first applicant the ophthalmologist filled in a standard form to be submitted to the police, in which he indicated that the injury had been inflicted by a hard blow to the left eye, gave bruising of the left eyelid (haematoma palp.inf.oc.sin.) as his diagnosis, and described the injury as light.
15.The applicants then returned to the police, where they both gave statements. In her statement the first applicant mentioned other instances of physical and psychological violence by her father in the past three years. The relevant part of the police record of the interview conducted with the first applicant reads as follows:
“This interview was conducted regarding the violent behaviour of the [child’s] father I.M.
[The child] stated that yesterday around 4 p.m., when she was getting ready to visit her mother D.M., she wanted to take a picture frame containing a lock of her hair which her mum had had framed when she had had her first haircut. She put the picture frame underneath her jacket because she knew that her dad would not allow her to take that picture frame to her mum. Then his girlfriend I.P. saw that she had something under her jacket and asked what it was. She replied that it was nothing. Then her father came and took the picture frame from under her jacket and told her that they would talk about it when she came home in the evening.
...In the evening, around 8 p.m., mum took her back to her dad, who brought her into the room and called her a thief, hit her with his hand on the left eye, and started squeezing her neck and pushing her. During this she fell, but did not hurt herself because she fell on a bag which was on the floor. Then she vomited saliva because she felt nauseous from her father’s squeezing her neck. Then [her father’s partner] I.P. came and told her father to calm down, otherwise she [the first applicant] would vomit ... He then left and sat in the living room. She was very afraid and was crying, but nevertheless went to her room and did her homework for the next day. When she woke up in the morning she greeted her father with ‘good morning’ but he did not even look at her and just turned his head away. In the morning she felt slight pain under the left eye where her father had hit her. When she arrived at school she mentioned it to her teacher and her friends P. and A., because she felt the need to confide in someone.
Today she went to her mum and told her everything that happened that evening. She was also very hurt when her dad rudely [swore at] her. He often does that, and did so [also] yesterday evening. He also called her a ‘cow’ and told her she was stupid. Because of his rude language she cried a lot thereafter. Dad tells her from time to time [to go to hell] and she does not like swearing, especially when he mentions her mum while doing so. A few months ago the father told her that through his friends he would ensure that she never heard from or saw her mum. She is therefore very afraid of her dad because he can be dangerous. She had seen her dad beating her mum and was therefore afraid that he might beat her the same way too. She states that her father is often rude to her, yelling at her, forcing her to eat food she does not like, and when she does not, grabs her chin and shoves the food into her mouth, which makes her feel sick. He often takes away her mobile phone so she cannot call her mum, and she would like to be in contact with her mum. Once he hit her on the leg with a hairbrush when she would not allow him to brush her hair. He also grabs her arm and squeezes it so hard that she has bruises afterwards. She states that she is very afraid of her dad and would like to live with her mum. Tonight she definitely does not want to go with her father but wants to stay with her mum. She is afraid that her father will beat her and yell at her. He often threatens her by waving his hand at her and saying ‘look at it, look at it’, with the intention of hitting her if she does not listen to him. The father also threatens to cut off her hair, knowing that she likes [her] long hair. He threatens her with that when she is crying for her mum, bites her fingernails or asks for a mobile phone. Dad often tells her that she must not love her [maternal] grandmother, [her mother’s partner] N. or his mum, whereas she loves them all.
She further states that each time her mum or [her mother’s new partner] N. buys her something and she brings it to her father’s home he throws all those things into the rubbish. Therefore, she wears the things her mum bought her only when she goes to her mum’s place, as she is not allowed to wear them when she is at her dad’s home.
Lastly, she states that she is very afraid of her dad and [particularly] ... that he might do something bad to her mum, because he constantly threatens to do so.
The interview was conducted in the presence of a social worker from the Zadar Social Welfare Centre V.C.”
16.The same day the police interviewed I.M. and his partner I.P. The relevant part of the police record of the interview conducted with I.M. reads as follows:
“The interview was conducted in the presence of his advocate B.Z., regarding the complaint that he had hit his minor daughter ... In that connection he stated the following:
...
[He says that his former wife] does not regularly pay maintenance for [their] daughter ... amounting to 800 Croatian kunas (HRK) per month and up to the present day owes [him] HRK 15,000.
[He submits that], sadly, [his former wife] manipulates their daughter ... and uses her so that she rejects everything that bears [his] surname. She even created a Facebook page for her under ... the surname of her current partner ...
As regards his relationship with his daughter ..., [he] states that he, as a parent who wants to teach his child to respect work and discipline, has his duties, and that the child has to have certain discipline, [for example] she must not lie to her parents, and may not do whatever she pleases. When [his daughter] comes back from school ... he requires her to do her homework and study. As regards food, [he] states that he wishes [his daughter] to eat healthy and varied food, with fruit and vegetables, rice and meat, and that she does not only eat pizzas, sandwiches and sweets. He also does not like to throw away food and prefers that it is eaten.
On 1 February 2011 around 3.50 p.m. [his daughter] was preparing to go to her mother and came into the kitchen to say goodbye. On that occasion [his partner] I.P. noticed that she had something under her jacket ... and asked what it was. [The daughter] replied that it was nothing, even though there was visibly something underneath it. He asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing the locks of her hair cut off when she was still a baby. [He] then asked her why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The daughter] said that it was for her mum and that if she had asked him if she could take it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home.
[The daughter] came home at 8 p.m. and they continued their conversation because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [His daughter] replied that she wanted [the picture frame] to be at her mother’s place. [He] then reprimanded her for lying to him, saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. He admits that he is sometimes a strict parent but that he always behaves in a measured way and with [good] reason, and it is only ever exclusively done with a view to making her behave [better].
Today, on 2 February 2011 [his daughter] was at school in the morning and in the afternoon was having fun with [him] and his [partner] ... Nothing suggested that [she] was in any way distressed by the previous evening’s events.
[He] emphasises that all this was fabricated by her mother ... who has a negative influence on [their daughter].”
17.The relevant part of the police record of the interview conducted with I.M.’s partner I.P. reads as follows:
“The interview was conducted regarding a complaint that I.M. had hit his minor daughter ... In that connection she stated the following:
On 1 February 2011 around 3.50 p.m. [her stepdaughter] was preparing to go to her mother and came into the kitchen to say goodbye to them. On that occasion [I.P.] noticed that she had something under her jacket ... and asked her what it was. [Her stepdaughter] replied that it was nothing, even though there was visibly something underneath her jacket. I.M. asked her to open her jacket. [Then they realised] that she had taken a glass picture frame containing locks of her hair cut off when she was a baby. [He] then asked [his daughter] why she had not asked to take it instead of doing it the way she did, stealing from her own house. [The stepdaughter] said that it was for her mum, and that if she had asked him for it he would not have allowed it. Then he told her to go to her mum and that they would talk about it later, when she came home.
[The stepdaughter] came home at 8 p.m. and she and her father continued their conversation, because he wanted to tell her that what she had done was bad and that she should have asked instead of stealing things from the house and taking them to her mother. [The stepdaughter] replied that she wanted [the picture frame] to be at her mother’s place. I.M. then reprimanded her for lying to him, by saying that what she had done was sad or bad and that she always had to tell the truth because he did not tolerate lies and that all problems would be solved the way they had been solved so far. I.P. firmly states that on that occasion I.M. did not hit [his daughter], nor has she ever seen him hitting [her]. She says that I.M. has a temper and sometimes shouts when he considers that something is wrong, but that he is really not prone to physical violence or hitting the children. I.P. notes that [her stepdaughter] is generally very sensitive about her mother and immediately starts crying as regards anything related to her.”
18.After the interviews, the first applicant was returned to her father I.M., following the intervention of an employee of the local social welfare centre.
19.On 19 February 2011 the first applicant was, at the initiative of the second applicant, examined by a psychiatrist at the Psychiatric Hospital for Children and Young People in Zagreb. The relevant part of the psychiatrist’s observations reads as follows:
“The child was with the mother at the police station and reported the incident [of 1February 2011] because the mother, and also the child, claim that this was not the first time that the father has mistreated [the child], although not so much physically as psychologically ...
During the interview with the girl it is evident that the child gets very upset at the mention of the father, she is afraid of him, ‘constantly thinks that he will hit her again and would like to stay with mum’. Dad is allegedly constantly threatening that he will ‘cut off her hair if she keeps crying and mentioning mum ...’ he often swears and utters vulgar expressions against the mother;all this was allegedly reported to the police ... (the interview was conducted first with the mother alone and then with the girl, also alone; [the child] talks about it all through tears and while biting her fingernails) ....
The girl says that she remembers that ‘she was asked when she was little with whom she wished to live and that she said with dad because she was told that she had to say that, now she regrets it’ (she is crying all the time).
The girl otherwise appears to have good intellectual capacity; she functions well outside the family, and is an A-grade pupil. There are no signs of psychotic disorder, and the girl is emphatic in contact except when she gets upset and talks rapidly when the topic of the father and his relationship with her is raised (thus there is an impression of strong fear of the father).
Given the complexity of the family situation (the father has remarried and [the child] lives with him, his new wife, her daughter from her first marriage and two small half-sisters, while the mother also has a new partner with whom she has a small son) and the evident traumatisation of the child which has probably already lasted a long time, a psychiatric assessment of the child is recommended.
Until then ... I recommend taking the girl to a psychologist ...
Dg. Abused child, T 74.8”
20.On 5 March 2011 the second applicant took the first applicant to a psychologist in Zagreb, who, inter alia, made the following observations:
“The interviews, which were conducted with the mother alone and separately with the girl, indicate that the child is afraid of her father because he psychologically and sometimes physically abuses her ...
The girl ... says that she would gladly live with mum if she could, and that dad speaks badly of mum ...
The results show that [the child] is emotionally attached to her mum and thinks that her dad does not love her, is afraid of him, does not trust him, and thinks that it is not fair that dad constantly yells at her even when she is not at fault. Her biggest wish is to live with her mum and her family, and she finds it difficult to return to her dad’s home. She identifies with her mother and thinks that they are very much alike.
Findings: [The girl] is a traumatised child with well above-average mental abilities, strong self-control, neuroticism, depressive affect, hypersensitive, anxious with strong inferiority complex. Discrete tremor is diagnosed.
I recommend psychological and, if need be, psychiatric counselling.”
21.On 30 March 2011 the Zadar Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zadru, hereafter “the State Attorney”) informed the second applicant that on the same day it had, concerning the incident of 1 February 2011, indicted I.M. before the Zadar Municipal Court for the criminal offence of bodily injury defined in Article98 of the Criminal Code (for a more detailed description of the course of those proceedings see paragraphs 35-51 below).
22.On the same day, 30 March 2011, the second applicant instituted civil proceedings before the Zadar Municipal Court seeking reversal of the custody arrangements set forth in that court’s judgment of 24 August 2007 (see paragraph 10 above; for a more detailed description of the course of those proceedings see paragraphs 60-81 below).
23.On 22 April 2011 the second applicant took the first applicant back to the same psychologist (see paragraph 20 above). The psychiatrist made the following observations:
“...The interview with [the child] was conducted without her mother’s presence.
In contact silent, with depressive affect, cooperative, bites her fingernails, occasionally cries. We again had a conversation about the events of 1 February 2011 during which the child was psychologically and physically abused by her father, and which she in her mother’s presence reported to the police.
[The child] says that that was not an isolated incident and that she is afraid of her father because she has continuously, from the moment she started living with him, been exposed to psychological and, from time to time, also physical abuse. She says that on multiple occasions he has threatened that he would hit her if she kept biting her fingernails and that he would take her mobile phone away. Previously she was more afraid of her father’s physical violence than now, but her mother encourages her by telling her not to be afraid and to ‘endure difficult moments’. The child states that she does not like living with her father because he threatens her and tells her that he will beat her. She says that mum loves her more, does not threaten her and is good to her. She uses suppression and ‘forgetting’ as defence mechanisms ...
The child states that the father yells at her almost every day, swears, tells her that she is a ‘stupid cow, pig, goat, thief, that she constantly defies him’. She says that this offensive behaviour by her father is rarer since she reported him to the police.
[The child] says that the father has threatened her that he will, through ‘his people’, take care that she does not hear from or see her mother. He threatens her that he will cut off her hair if she cries for her mother.
The child alleges that her father forces her to eat so that she has to eat everything he puts on her plate and that she sometimes vomits because of that. If she refuses to eat everything the father holds her chin and ‘shoves’ the food in her mouth. If she resists, he smears the food over her face.
After she reported him to the police, the father controlled himself for a couple of days, and then again started yelling but then to a lesser degree. He no longer shoves food in her mouth, but she has to eat everything he puts on her plate. Sometimes she has to eat something that she does not like, which the mother never does to her.
[The child] is lonely at her father’s home, because she spends time only with her half-sisters; her friends are not allowed to visit in case [the younger half-sister] gets sick. After school the father allows her to meet with friends for half an hour only. She visited one of her friends only once and she did not dare to ask the father for more visits. She thinks that her father is stricter with her than with her older half-sister.
I found out that the father speaks badly of the mother and her new partner in front of the child, that she has different clothes at her mother’s and her father’s places, and that the father threw the sneakers she got as a birthday present from her mother and her partner into the rubbish.
Asked about her father’s wife, she says that she is better to her than her father: does not force her to eat, has never hit her, helps her with homework, and brushes her hair.
The child shows a strong desire to live with her mother because she is emotionally closer to her, and because the mother supports her in difficult moments. She has many friends in her mother’s neighbourhood and is encouraged to spend time with them; she has fun and feels safe with her mother. Asked about [the behaviour of] her mother’s partner towards her, the child says he is good to her and tries to cheer her up, buys her presents, and is fun and pleasant to talk to.
To the question whether, if she were to live with her mother, she would be allowed to see her father outside the visiting schedule ordered by the court, she says that it is certain that her mum would allow her to see her father whenever she wished to and states that ‘she would like to move to her mum’s [place] right away and forever’.
Findings and recommendations: In order to prevent the development of irreversible psychopathological consequences due to continuous abuse, it is recommended that the child be immediately removed from the family where she currently lives and that custody be awarded to the mother.
Psychological and if need be, psychiatric follow-up is also recommended.”
24.On 4 May 2011 the second applicant again took the first applicant to the police to report another instance of abuse by her father, who had allegedly pressured her to change her earlier statements made before the police and the experts. The relevant part of the police record of the interview conducted with the first applicant on that occasion reads as follows:
“This interview was conducted regarding inappropriate behaviour of the [child’s] father I.M.
[The child] stated that a couple of days ago her dad’s girlfriend I. asked her whether she had visited a certain lady in Zagreb with her mum. She had replied that she had, whereupon I. had asked her what she had talked about with that lady in Zagreb and why she had not said anything about [it] to her dad. She replied that she had forgotten to mention it. After that her father had called her on her mobile phone and asked her to come to his café ... immediately. When she had arrived there he had started yelling at her and asking why she had been saying bad things about him and why she had not told him that she had been in Zagreb ... After that he had told her that she was lying like a dog and told her to get out of his sight.
... Afterwards her dad had kept asking her whether she really wanted to live with her mum and she always replied that she did. A couple of days ago he had told her that she would not live with her mum until she was eighteen years old.
[The child] also states that he said that he would report her mum for taking her to a doctor in Zagreb, and that she [the mother] would receive a criminal complaint for [having done] that. He [also] told her that he would now take her to a psychologist and to some other people where she would have to say that he had not hit her and that he was good to her.
Today he had again asked her whether she really wanted to live with her mum and she had again replied to him that she did want to live with her mum.
This interview was conducted in the presence of the [child’s] mother ...”
25.On 7 May 2011 the first applicant’s father took her to a psychiatrist at the Polyclinic for the Protection of Children in Zagreb, who, after studying the opinions of 19 February, 5 March and 22 April 2011 (see paragraphs 19, 20 and 23 and above) and interviewing the first applicant, in his observations noted, inter alia, the following:
“It is evident that [the child] is very burdened by her parents’ conflict and the inadequacy of their mutual communication, which frequently goes through her. The girl shows affection towards, rather than fear of, her father. However, when asked what happened [on 1 February 2011] she did not want to talk about it; she was visibly emotionally burdened so I did not insist on it. She freely expresses her dissatisfaction by saying that she does not like it when her father raises his voice. Asked when that happens, she replies: ‘when I do something bad’.
She is functioning well at school, says that she has many friends ... that at her mother’s place she also has friends and likes to go there, but that she feels comfortable at home with her father because she gets on well with ... the daughter of her father’s new partner ...
Her mental state is dominated by the emotional burden of her parents’ conflict, high emotional tensions, the need to be close to her mother (whom she wishes to please by being with her) and, in her relationship with her father, by the conflict of loyalties she has been placed in.
I am of the opinion that the girl has been drawn into a conflict of loyalties and is very burdened by her parents’ disagreements and conflict, which has resulted in high emotional pressure, anxiety and hypersensitivity.
I recommend that the parents undergo family counselling and possibly afterwards also family therapy together with [their daughter].”
26.On 6 June 2011 the father took the first applicant back to the same psychiatrist who, in so far as relevant, noted:
“The interview with the girl was conducted alone. [The child] states that she feels good, that she cannot wait for school to end but that she has no difficulties in school. She gets on well with both her father’s wife and her mother’s partner, and regards her half-brother and half-sisters as real siblings. She is still sad about her parents’ differences and their inability to adequately communicate [with each other] and their different parenting styles.”
27.In the course of the above-mentioned custody proceedings (see paragraph 22 above) the court ordered a combined expert opinion from experts in psychiatry and psychology. Accordingly, the applicants and the first applicant’s father were examined by forensic experts of this type at the Neuropsychiatric Hospital in Popovača. As part of the preparation of their opinion each expert conducted interviews, inter alia, with the first applicant. In particular, on 1 July and 28 September 2011 the first applicant was interviewed by each expert; on 2September 2011 she was interviewed only by the expert in psychiatry. The interviews of 1 July 2011 were conducted without the first applicant’s parents being present, that of 2 September 2011 in the presence of her mother (the second applicant), and those of 28 September 2011 in the presence of her father.
28.The relevant part of the record of the interview of 1 July 2011 with the expert in psychiatry reads as follows:
“[The child] states that she always tells the truth, literally always, and that she feels her worst when she is told that she is a liar like her mum.
... She very clearly articulates her emotional bond and closeness with her mother and her wish to live with her. ...
[The child] states that she once attempted to talk with her father about living with her mother, but that the conversation ended quickly with him telling her that there would be no discussion about that and that she would stay with him until she was eighteen ... She says that her father is very strict and that he often shouts at and insults her, which makes her embarrassed and scared. The last time he attacked her, because of the picture [frame], I. [her father’s partner] stopped him, and she felt nauseous ...
She says that she complained to her mother about her father, which was why she went to the police with her. She was particularly struck when the social worker came to the police [station] and talked to her mother; she heard the social worker say that unless they agreed on where [their daughter] was going to live she would be placed in a children’s home. (The girl cries for a long time afterwards).
When asked how it is to live with her father, she states that she would prefer to live with her mother as she is closer to her ...”
29.The relevant part of the record of the interview of 1 July 2011 with the expert in psychology reads as follows:
“Dad is so- so. When he is in a good mood, he is good. When he is not [in a good mood] he is not [good]. Once when he forced me to eat I vomited.’ ...
‘Mum is great. Good, fair and does not hit me. She does not threaten me. I do not fight with her that much. I am calmer when I am with my mum, there are not that many fights, I am more relaxed.’
... She said that she came to the expert assessment ‘because of what dad did to me and because I want to live with my mum. I wanted ... He threatened me ...’ She cried and indistinctly through tears says that her dad smeared food over her face as a joke so she felt ugly and embarrassed. ‘He hit me once ... He said that he did not but that he only made a [threatening] gesture with his finger ...’
After she calmed down we cameng back to the traumatic incident.
You started crying?
‘... He did this to me (she demonstrates with her hand round her neck). Dad hit me and I always cry so I almost vomited. [He squeezed me] this hard (she is touching her throat and chin) so that I almost vomited ...’
‘[He called me a thief] and I said I was not and then he hit me near the eye (she shows the left temple) ... He asked me if I would do that again (she needs to be interrupted because she is speaking indistinctly while sobbing) ... [The next day] ... I told my mum what he had done to me. She told me that we could go to the police and there I told [them what happened] ... The first lady [the policewoman] there was good. The other [the social worker] pulled my hand while saying that I have to go to my dad. I did not want [to go]. She then told me that if mum gets into a fight with dad she will go to jail and I will go into a children’s home (she is sobbing). I had to go with my father. Dad said that we would not talk about that ...’
‘Yesterday he told me that he had never hit me and that he had not done anything to me and that I should tell the truth. But he did hit me. He also told me that when he smeared the food over my face it was a joke, but I felt embarrassed. He also told me that if I mentioned it he would call [the stepmother and stepsister] to say that it was a joke, which would make me look like a liar. I felt embarrassed and ugly then ...
‘He threatened to cut off my hair if did not stop biting my nails, and to take my mobile phone away.’
‘Once we were in the car together ... he saw mum with [her new partner] in the next lane. He said that he would put both of them to jail and kill them. He swore at them a lot. He told them many bad things ... The next day or shortly afterwards he said that through his people he would ensure that my mum and me did not see or hear from each other.’
‘I was at a doctor’s in Zagreb some time ago. He asked me something about school but he seemed bad to me and I did not want to talk to him and I did not tell the truth. After a month we went to him again. I said I wanted to live with my mum but I did not mention that my dad had hit me. Then I was afraid of my dad, and still am because I knew he would say that he had not hit me ...’
‘Once he hit me when I was little, I do not remember, once ...’
‘He gets upset when I cannot eat something. When I say something [to justify myself] he asks why I defy him. He used to insult me. He called me a cow, stupid goat. He swore at me. He told me to go to hell ... he said that to me many times. He also told me to fuck off many times ... He told me that my mum was a whore (she is crying) ...
‘Mum tells me that I cannot do certain things. She does not threaten me. Sometimes she raises her voice, but she does it rarely and then I do not do it any more.”
30.The relevant part of the record of the interview conducted on 2September 2011 with the expert in psychiatry reads as follows:
“This interview was conducted with the girl and the mother together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and serious than during the previous interview ...
At some point the girl has a strong emotional reaction. The girl states (while crying) that she would like to celebrate her forthcoming birthday at her mum’s place ... given that she celebrated her last birthday with her father. The mother did not manage to calm the girl completely or ease her frustration. Instead, she herself looked anxious and frustrated, almost lost.”
31.The relevant part of the record of the interview of 28 September 2011 with the expert in psychiatry reads as follows:
“This interview was conducted with the girl and the father together in order to observe their mutual interaction. During the interview it is noticeable that the girl is somewhat more withdrawn and deep in her thoughts, and seems restrained ... Asked if she would like to change something, she says that she would like to live with her mum and that she wishes to be able to extend the time she spends with one parent when she wants to stay with that parent longer. While saying that the girl reacts emotionally (she is crying). In the course of it there is no mutual contact between the girl and her father; there is no eye contact, nor is the father trying to calm her. Each [keeps] to themselves, with their eyes fixed forward.”
32.The relevant part of the record of the interview of 28 September 2011 with the expert in psychology reads as follows:
“She states in her father’s presence: ‘I would like to live with my mum and decide when visits should take place, to go with my mum or my dad (she is crying). Dadadds: ‘That would be the best ...’
To the direct question whether she asked her dad about it, she replies that she did not. She adds that once she asked her dad [about it] and that he said that she could not go to her mum ...”
33.On 27 October 2014 the first applicant wrote the following in her school essay:
“...they all think that they know me but they don’t know even a third of me. They judge me by my success in school, but that isn’t me. They don’t know what is happening, they see me as a happy girl, but I am the opposite of that. I have lived with my dad since I was six years old, and from day one I wanted to go to [live with] my mum ... Dad tells me he won’t let me go until I am 18 ... For some time already I have found comfort in cutting myself ... the scars are no longer visible, only when I play volleyball or some other ball game and when my arm turns red, then they are visible.”
34.Alarmed by the first applicant’s admission of self-harm in the school essay, on 22 November 2014 the second applicant took her to the same psychologist who had examined her on 5 March and 22 April 2011. In her observations the psychologist noted the following:
“[The girl] came accompanied by her mother because the mother had learned of [her daughter’s] self-harm, which [the girl] had written about in a school essay ... of 27 October 2014.
Interview:
Depressive, anxious at the beginning ... verbally fluent. We are talking in the absence of the mother.
After the her parents’ divorce, [the girl] lived with her mother. She says that was the happiest period in her life. She had lived with her father since she was six [years old] ... Relations in the family she described as conflictual, she is afraid of her father. She describes emotional blackmail by her [paternal] grandmother and threats and emotional blackmail by her father, as well as occasional abuse by the father, on which there are medical and police reports. She states that when she was six, she [because of being] manipulated and intimidated by her father, stated during the [forensic] expert examination [in the course of divorce proceedings] that she wanted to live ‘fifty-fifty’ [when asked which parent she would like to live with]. She says that her dad told her to say that but that she did not know what it meant. Since the divorce became final she has lived with her father, and has suffered because she has a close and trusting relationship with her mother and her mother’s partner. From that time on she has been expressing the wish to live with her mother, but despite all her statements [to that effect] ... the [relevant] authorities pay no heed ... Thanks to her mother’s support and understanding she is still functional [that is she manages to live normally] but is unhappy because she cannot live with her mother.
She says that she is unhappy, that she does not understand why the [relevant] authorities are ignoring her, and that they do not understand how much they are abusing her by not taking appropriate measures.
In her school essay (which was presented) she mentions that she cut herself on the arms. Her friend helped her to deal with the scars. When asked why she did that, she replies that it was because she felt helpless in enduring the constant pressure in her father’s family, constant conflicts, inability to manage her own time, and refusal to let her live with her mother, which would make her happy. Other behaviour mentioned in the essay points to the development of an obsessive-compulsive disorder, fear of the dark, anxious-depressive symptomatology, and emotional control disorder. These are not related to puberty but indicate post-traumatic stress symptomatology, emotional disorders caused by constant frustrations, and child abuse ...
The girl has for years been burdened by expert examinations, judicial proceedings, interviews at the social welfare centre, and the hope that someone will finally listen to her plea to live with her mother, because since the age of six she has been unhappy because she has to live with her father. She enjoys her mother’s and her mother’s partner’s company, and they are supportive, but she is afraid that she will not be able to live with them for a long time yet. She is unhappy because her father constantly fights with her and does not want her to be happy (as she would be if she lived with her mother). She ‘hates the situation she is in, where she is forced to live with her dad. She wants to become an advocate and she would never allow her child to suffer as she does because she is not allowed to choose with whom ... to live.’
She is introverted, anxious ... Emotional suffering, distrust, depression, fear, guilt, reduced impulse control and problems with facing stress are diagnosed. These symptoms are related to inability to control her desires and to plan and organise. Despite previously established above-average cognitive capacities, a reduced level of openness and a need for new experiences is detected. This is probably because of continuing obstruction of her freedom of action. Despite constant obstructions she is still willing to fight for herself. She is empathic.
She has very developed defence mechanisms. However, symptoms of post-traumatic stress are also detected.
Conclusion:
Elements of strong psychological trauma are diagnosed (post-traumatic stress), which are, according to her statements, the result of frustration caused by the abuse by her father and the authorities who are ignoring her wish to live with her mother, and [which serve] to protect her from suffering and the feeling of helplessness, which she reduces by obsessive-compulsive disorder and by harming herself.”
C.Criminal proceedings
1.Criminal proceedings for bodily injury
35.As already mentioned above (see paragraph 21), on 30 March 2011 the State Attorney indicted the first applicant’s father before the Zadar Municipal Court for having committed the criminal offence of bodily injury defined in Article98 of the Criminal Code (see paragraph 86 below) during the incident of 1February 2011.
36.On 19 April 2011 the court issued a penal order (kazneni nalog), finding him guilty as charged and imposing a fine of HRK 1,820.
37.On 4 May 2011 the first applicant’s father challenged the penal order, arguing that the basis on which it had been issued was false. The court accordingly set aside the penal order, and the proceedings resumed under the rules of summary criminal procedure.
38.The hearing scheduled for 7 May 2013 was adjourned because neither the accused nor the summoned witnesses attended it.
39.At the hearing held on 6 June 2013 the first applicant’s father pleaded not guilty and made a statement. He also proposed that several witnesses be heard. The applicants proposed that they themselves be heard.
40.At the hearing held on 23 July 2013 the court heard the second applicant, one of the police officers who had interviewed the applicants following the incident of 1 February 2011, the first applicant’s schoolteacher, and Z.M., a psychologist who had acted as supervising officer during the implementation of the first child protection measure in respect of the supervision of the exercise of parental authority (see paragraph 11 above).
41.The police officer stated that she had not noticed any visible injuries on the first applicant during the interview with her the day after the incident of 1February 2011. The first applicant’s schoolteacher had not seen any injuries either. He also testified that he had noticed that the first applicant had seemed sad the day after the incident and that he had talked to her about this; the first applicant had told him on that occasion that her father had not hit her. Z.M., who said that he had spoken with the first applicant some time after the incident in the capacity of a private individual and at her father’s request, testified that the first applicant had told him that her father had yelled at her and that she had been afraid that he would hit her but that he had not. He also stated that as a school psychologist he knew very well how to recognise signs of abuse in children and that the first applicant had not shown such signs.
42.On 25 July 2013 the court decided to obtain an expert opinion from a medical expert on the first applicant’s injuries.
43.The hearing scheduled for 18 September 2013 was adjourned because the summoned witnesses failed to attend it.
44.On 23 September 2013 the expert submitted his opinion, which stated that it was possible, but could not be determined with certainty, that the first applicant’s injury had been sustained during the incident of l February 2011. The relevant part of his opinion states as follows:
“The following injury was established [at the time] by medical examination:
small haematoma of the left lower eyelid.
This injury constitutes a bodily injury.
The injury was inflicted by some hard and blunt object. It was inflicted by a single blow of low intensity.
The mechanism of the injury could correspond to the course of events as they were described to the doctor by the injured party during the examination (a blow with the hand to the eye).
 However, it is to be noted that the injury was described by the doctor who performed the examination as a haematoma in resorption, thus in [the process of] disappearing, fading. That normally happens after a certain period of time, for example, several days, after an injury. It would not be common for resorption to already be visible the day after the injury.
It follows from the above that the injury could have been inflicted during the incident in question, but that a causal link cannot be established with certainty.”
45.At the hearing held on 24 October 2013 the court heard the other police officer who had interviewed the first applicant on 2 February 2011, the social worker who had been present during the interview with the police, and the doctor who had examined her on that day.
46.The police officer testified that the first applicant did indeed not want to return to her father and that the social worker from the local social welfare centre had indeed told her that they would have to temporarily place her in a children’s home if she refused. She also testified that she had not seen any signs of injury on the first applicant. The social worker testified that she had not noticed any signs of injury on the first applicant either. She also stated that while it was true that the first applicant had not wanted to return to her father, she had changed her mind after they spoke, in the course of which she had not mentioned the alternative of sending the first applicant to a children’s home. The doctor who examined the first applicant stated that resorption of a haematoma occurred more quickly in children and young people. While he excluded the possibility that the injury could have been caused by crying and rubbing the eyes he did not rule out the possibility that it had been caused by, for example, the first applicant being hit by the ball during her volleyball practice. The applicants’ representative reiterated their proposal that the first applicant be heard.
47.In order to decide on that proposal, the court decided to consult the case file concerning the above-mentioned custody proceedings (see paragraph 22 above and 60-81 below). Eventually, the court decided to hear the first applicant via video link on 1 July 2014.
48.However, that hearing was adjourned because on 30 June 2014 the first applicant’s father sought withdrawal of the trial judge; that application was dismissed by the court’s president on 3 July 2014.
49.Since none of the courts in Zadar was equipped with a video link device, the court asked the police authorities to provide it. The police informed the court that it would make available a video-link device on 16October 2014. Accordingly, the examination of the first applicant was scheduled for that date.
50.However, on 14 October 2014 the police authorities informed the court that they would not be able to provide the device on 16 October 2014.
51.According to the Government, the proceedings are still pending, depending on the availability of the video link device.
2.The applicants’ attempts to institute criminal proceedings against the first applicant’s father for child abuse
52.Meanwhile, on 27 April 2011 the second applicant lodged a criminal complaint with the State Attorney against the first applicant’s father accusing him of the criminal offence of child abuse as defined in Article 213 paragraph 2 of the Criminal Code (see paragraph 86 below). In particular, the second applicant argued that he had physically and psychologically abused the first applicant by: (a) in the period between February 2008 and April 2011, inter alia, swearing at her and calling her names, frequently forcing her to eat food she did not like, and force-feeding her when she refused, threatening to hit her, cut off her long hair and ensure that she never saw or heard from her mother, hitting her with a hairbrush on one occasion, among others, and (b) on 1February 2011 hitting the first applicant several times in the face and squeezing her throat while verbally abusing her, as a result of which she was later diagnosed by an ophthalmologist with bruising of the eyeballs and eye-socket tissue.
53.On 20 June 2011 the State Attorney asked the of the Zadar County Court (Županijski sud u Zadru) investigating judge to: (a) question the suspect, (b) take statements from his partner and from the second applicant and her partner, and (c) order a combined expert opinion from experts in psychiatry and psychology.
54.On 29 September 2011 the State Attorney’s Office itself ordered a combined expert opinion from certain court experts in psychiatry and psychology. On 4 October 2011 it set that order aside after finding that such a combined expert opinion had already been obtained in the context of the above-mentioned custody proceedings (see paragraph 22 above and paragraphs 60-81 below).
55.On 16 January 2012 the State Attorney dismissed the second applicant’s criminal complaint, finding that there were not sufficient grounds to suspect that the first applicant’s father had committed the criminal offence the second applicant had accused him of. In so doing the State Attorney’s Office addressed only the part of her complaint concerning the alleged abuse of the first applicant in the period between February 2008 and April 2011, and not the part concerning the incident of 1 February 2011. After examining the statements made to the police by the suspect and his partner, the second applicant and her partner, psychiatrists’ opinions of 19 February and 7 May 2011, the psychologist’s opinion of 5 March 2011, and the combined expert opinion of 29December 2011 (see paragraphs 16-17, 19-20 and 25 above and paragraphs 69-70 below), the State Attorney gave the following reasons for his decision:
“Analysing the above facts, it follows that the suspect I.M.’s conduct or the conduct of [the second applicant] cannot be regarded as conscious and deliberate emotional or physical child abuse, but rather as inadequate child-rearing practice [ parenting style] and reaction caused by parental conflict over child custody, persistence of long-lasting mutual unresolved conflicts, and limited parenting capacity ...
In view of the foregoing ... there is no reasonable suspicion that the suspect I.M. committed the criminal offence he is accused of ...”
56.The first and second applicants then decided to take over the prosecution from the State Attorney as injured parties in the role of (subsidiary) prosecutors. As the Criminal Procedure Act requires that an accused be questioned before being indicted, on 25 January 2012 the applicants asked an investigating judge (sudac istrage) of the Zadar County Court to question the first applicant’s father.
57.By a decision of 9 February 2012 the investigating judge dismissed the applicants’ request, holding that the facts adduced by the applicants did not constitute the criminal offence of child abuse. In so doing he relied on the combined expert opinion of the forensic experts in psychiatry and psychology of 29December 2011 obtained in the custody proceedings (see paragraphs 69-70 below). The relevant part of that decision reads as follows:
“... the conduct cannot be regarded as abuse [because the combined expert opinion] did not confirm the diagnosis of child abuse. This is very strongly indicated by the recommendation that changing the child’s residence is not advisable. Had that diagnosis been established, the recommendation concerning the child’s residence would have certainly been very different.”
58.On 21 February 2012 a three-member panel of the Zadar County Court dismissed an appeal by the applicants against the decision of the investigating judge. The relevant part of that decision reads as follows:
“[The child is under supervision] by the [local] social welfare centre. It is therefore evident that if the suspect had behaved in an unseemly or inappropriate manner towards her as a parent that the centre would have reacted. There must have been reasons why the father was awarded care of the child. If there is any change in circumstances that decision could also be changed. According to the expert opinion no elements of abuse were found ...”
59.On 24 May 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible a subsequent constitutional complaint by the applicants. It held that the contested decisions of the Zadar County Court were not susceptible to constitutional review. The Constitutional Court served its decision on the applicants’ representative on 3 July 2012.
D.Custody proceedings
60.Meanwhile, on 30 March 2011 the second applicant brought a civil action in the Zadar Municipal Court against the first applicant’s father with a view to altering the custody and contact arrangements ordered in the judgment of the same court of 24 August 2007 (see paragraph 10 above). In particular, she sought custody of the first applicant. At the same time the second applicant asked the court to issue a provisional measure whereby it would temporarily grant her custody of the first applicant pending the final outcome of the principal proceedings.
61.The court regarded the second applicant’s civil action as an application for non-contentious proceedings, as it considered that the rules on non-contentious procedure rather than those on regular civil procedure should apply in such matters. It held hearings on 29 April and 16 May 2011.
62.The local social welfare centre participated in those proceedings as an intervener sui generis with a view to protecting the first applicant’s interests.
63.At the hearing held on 29 April 2011, the second applicant’s representative insisted on the provisional measure being issued. The representative of the local social welfare centre stated that the situation in the first applicant’s family was very complex, that her parents had made numerous criminal complaints against each other, and that both parents should be assessed by forensic experts. He also stated that the centre could not at that time make a recommendation as regards the provisional measure requested, because such a recommendation could only be made after completion of the family-assessment procedure by a team of professionals employed at the centre. The second applicant’s representative replied that the centre had been aware of the incident of 1 February 2011 but had taken no action to address the situation in the first applicant’s family. She therefore insisted on pursuing the application for a provisional measure.
64.On 12 May 2011 the local social welfare centre submitted its report and recommendation to the court. In the course of their preparation of this report the centre interviewed the second applicant and the first applicant’s father on 3and 4 May 2011, visited their homes and requested an opinion from the first applicant’s school. The relevant part of the centre’s report reads as follows.
“The allegations of the [child’s parents] who accuse each other of child abuse are impossible to verify, nor can a straightforward conclusion be made only on the basis of interviews with them or on the basis of visits to their families.
There is an impression that the parents, burdened by their permanently strained relationship and their own need to live with the child, consciously or subconsciously place themselves and their needs first while disregarding the welfare and the needs of the child.
The child protection measure of supervision of the exercise of parental authority was previously ordered in respect of the parents during the divorce proceedings, from 7November 2006 to 31 August 2008.
Given that the already poor communication between the parents has worsened again, which brings about negative tensions which could be harmful for the child’s emotional development, and having regard to the fact that they are again facing court proceedings, the centre is in the process of imposing the same measure with a view to protecting the rights and welfare of [the child] through which [the centre] shall monitor the mother’s and the father’s relationship with the child and [in the implementation of which] they will be advised how to improve communication between them and strengthen their parenting competencies.”
65.The local social welfare centre recommended a combined expert assessment (psychiatric and psychological) of the first applicant and her parents with a view to establishing their parenting abilities and the possible consequences of their behaviour for her physical and mental development. They added that the first applicant’s family situation was complex but that at that moment there was nothing to suggest that it was life-threatening. The relevant part of the local social welfare centre’s recommendation reads as follows.
“After conducting the family-assessment procedure ... it was established that the parents express opposing views as regards abuse and neglect of [their child]. [The mother] accuses the father of child abuse [in that] he is abusing the child physically and emotionally, obstructing her contact with the mother, and using inappropriate child-rearing methods. [The father] accuses [the mother] of neglecting the child’s interests by her behaviour [in that] she does not pay child maintenance, does not come to school to consult with teachers or to parents’ meetings and that the child is being manipulated by the mother ...
Having regard to the medical documentation at the disposal of the centre, the parties’ submissions, visits made to [the father’s and the mother’s] homes and interviews with them, we recommend that the parents and the child undergo a combined [psychiatric and psychological] expert assessment in order to assess their fitness for further care of [their daughter] and the possible consequences of their behaviour for her psycho-physical development.
It is true that the family situation is complex. However, there is no impression that at present [the child’s] life is at risk in her father’s family.”
66.By decisions of 16 May and 6 and 16 June 2011, the court ordered a combined expert opinion from forensic experts in psychiatry and psychology who were to assess (a) the parenting capacities of the second applicant and the first applicant’s father, (b) the first applicant’s condition, and (c) whether the first applicant had been exposed to abuse and, if so, by whom.
67.By a decision of 7 June 2011, the court refused to issue a provisional measure sought by the second applicant (see paragraph 60 above). In so deciding the court examined the ophthalmologist’s report of 2February 2011, psychiatrists’ opinions of 19 February and 7 May 2011, and psychologist’s opinions of 5 March and 22 April 2011 (see paragraphs13‑14, 19-20, 23 and 25 above). It also consulted the case file of the criminal proceedings in respect of the bodily injury, and examined the report and recommendation of the local social welfare centre of 12 May 2011 (see paragraphs 64-65 above). It found, in view of the conflicting opinions of the psychiatrists, the penal order against the first applicant’s father which never became final, and the recommendation of the local social welfare centre, that at that point the allegations that the first applicant had been abused by her father were not plausible enough to justify her immediate temporary removal from his custody. In particular, the court held as follows:
“... the case was not sufficiently plausibly made that such a measure was necessary to prevent violence or the risk of irreparable harm from materialising, given that at present it remains uncertain and disputed whether [the child] was subjected to abuse by her father or was being manipulated by her mother ...”
68.On 2 March 2012 the Zadar County Court (Županijski sud u Zadru) dismissed an appeal by the second applicant and upheld the first-instance decision.
69.On 29 December 2011 the forensic experts submitted their opinion (see paragraph 66 above) to the Zadar Municipal Court. In their opinion the experts found that both the second applicant and the first applicant’s father had limited parenting abilities and suffered from personality disorders (both of them were emotionally unstable and the first applicant’s father was also narcissistic). As regards the first applicant, the experts found that she was emotionally traumatised by her parents’ separation and their mutual conflict and lack of communication. Instead of shielding her from that conflict, her parents had placed her at the centre of it and manipulated her, sometimes up to the level of emotional abuse. The experts therefore recommended that the first applicant and her parents receive appropriate therapy. They further found that the first applicant was ambivalent towards her father and idealised her mother, whom she viewed as a “friend”, and expressed the wish to live with her. The experts were of the opinion that this desire to be close to her mother could be achieved through (more) extensive contact between the first and the second applicant. If after one year of recommended therapy the first applicant still wished to live with her mother, they recommended that another combined expert opinion be obtained.
70.The experts did not reply to the court’s question whether the first applicant had been exposed to abuse and, if so, by whom (see paragraph 66 above). Their conclusions were (a) that the first applicant should nevertheless continue living with her father for the time being while maintaining extensive contact with her mother; (b) that she and both her parents should undergo treatment and counselling; (c) that the supervision of the exercise of parental authority (the child protection measure imposed by the local social welfare centre, see paragraph82 below), should be continued; and (d) the first applicant and her parents should be reassessed after a year. In particular, the experts concluded as follows.
“We do not find [any] contraindications to [the child’s living with her father. [Our] recommendation is that, for the time being it is not necessary or desirable to change the child’s place of residence, that is to say [the child] should continue living with her father.”
71.Following a request by the second applicant, by a decision of 27 July 2012, the Zadar Municipal Court appointed G.Š., a lawyer practising in Zadar, to act as a special representative for the first applicant and represent her interests in the proceedings, as required by Article 9, paragraph 1, of the European Convention on the Exercise of Children’s Rights (see paragraph 98 below).
72.Following an appeal by the first applicant’s father, on 26 October 2012 the Zadar County Court quashed that decision and remitted the case. It held that the first-instance court had failed to establish whether the interests of the first applicant were indeed in conflict with the interests of (one of) her parents, which was a necessary precondition for the appointment of a special representative.
73.By a decision of 13 November 2012, the local social welfare centre also appointed G.Š. to act as the first applicant’s guardian ad litem pursuant to section 167 of the Family Act (see paragraph 84 below).
74.The Zadar Municipal Court held further hearings in the case on 6September and 11December 2012 and 8 March 2013.
75.At the last-mentioned hearing the court heard the experts who had prepared the combined expert opinion of 29 December 2011. Those experts stated, inter alia, (a) that their expert opinion had in the meantime become obsolete, because a year and two months had passed since they had prepared it; (b) that they had not replied to the court’s question whether the first applicant had been exposed to abuse because it was the task of the judicial authorities and not theirs to make that assessment; and (c) that it would be irrelevant which parent the first applicant should live with if her parents both behaved better.
76.By a decision of 30 April 2013, the Zadar Municipal Court dismissed the second applicant’s application for the custody and contact arrangements stipulated in the judgment of 24 August 2007 to be reversed. The second applicant and the first applicant’s guardian ad litem appealed.
77.On 15 November 2013 the Zadar County Court quashed the first-instance decision for incomplete facts and remitted the case to the lower court. It instructed the first-instance court to (a) inquire whether the first applicant’s father’s conviction for the criminal offence of bodily injury against her had become final; (b) assess whether the first applicant was able to understand the importance of the proceedings and, if so, allow her to express her opinion and take her testimony; (c) assess the need to appoint a special representative to the first applicant; and (d) obtain an opinion and recommendation from the local social welfare centre.
78.In the resumed proceedings, on 18 November 2013 the Zadar Municipal Court discontinued the non-contentious proceedings and decided that the proceedings would be continued under the rules of (regular) civil procedure. The court explained that the second applicant’s application for reversal of the custody and contact arrangements set forth in its judgment of 24August 2007 (see paragraph 10 above) would, if agreed, necessarily entail a new decision on the payment of maintenance by the non-custodial parent, which was an issue that could not be decided in non-contentious but only in regular civil proceedings. That did not mean that procedural acts undertaken thus far had lost their validity or become irrelevant.
79.On 27 February 2014 the second applicant lodged a request for the protection of the right to a hearing within a reasonable time, complaining of the length of the proceedings.
80.On 9 July 2014 the President of the Zadar Municipal Court dismissed the first applicant’s request.
81.It would appear that the proceedings are currently again pending before the Zadar Municipal Court as the court of first instance.
E.Proceedings before the local social welfare centre
82.Following the incident of 1 February 2011, on 22September 2011 the local social welfare centre again (see paragraph 11 above) issued a decision ordering the child protection measure of supervision of the exercise of parental authority in respect of the first applicant. The measure was imposed for a period of one year and was, by the centre’s decision of 1October 2012, further extended for another six months, until 31 March 2014, when it was discontinued.
83.In her final report of 30March 2014 the supervising officer (a psychologist) summarised the results of the measure in the following terms:
“The aim of the measure was to encourage appropriate parental behaviour with a view to preventing and minimising the negative effects of [their] conflictual relationship on the child’s psycho-physical development ... in that sense it was only a question of creating preconditions for adequate communication between the parents, so that currently there is no open conflict (but only because the parents avoid it). In particular, the parents are observing the visiting schedule. They have made concessions to each other from time to time. However, the parents are still in conflict, they still do not communicate, and the majority of their communication goes through the child or through text messages. It is precisely in this way that they are disregarding [her] needs and forcing [her] to deal with something with which she should not be dealing at her age (or at any other age for that matter). Both parents think they are doing what is best for their child, while forgetting that their conflict is the major obstacle to the normal psycho-physical development and functioning of their child ... [The mother] thinks that the child should be with her and that the wish of the child, who also expresses the wish to be with her, should be respected. [The father] thinks that that his role is to protect the child from the mother’s negative influence and ensure stability for her. Those views are O.K., but the only question is how much each of them negatively affects the child by fighting for their own position? For a compromise people need to be ready to partially abandon their position, but they are not ready to do so. In my view, both parents have a good relationship with the child; they [both] try to spend quality time with her. They differ to some extent in their methods and parenting styles ([the mother’s] is permissive and directed at [developing] a friendly relationship with her daughter, which may also be a strategy for ‘winning’ the child, whereas [the father] is more impulsive, with a tendency to give in, and is oriented towards the traditional role of the father, which would not be a problem if the two parents would cooperate ... Neither of them disputes that the role of the other parent is also important for the child, but they both find it important that the child lives with them, believing that in that way they would diminish the harmful influence ‘the other parent has on the child’. This means that the main problem is unresolved parental conflict, and the parents should probably work on that outside the [social welfare] centre. When they are able to talk to each other, and when they realise why and which of their actions are harmful for [the child] (and stem from their personal conflict) then they will be able to function better. In that regard I think that the supervision measure cannot provide a better solution to the problems they have.”
1.Rights and duties of the child
Section 88
“Parents and other family members must not subject the child to degrading treatment, psychological or physical violence or abuse.”
Section 89
“(1)The child is entitled to seek protection of his or her rights before the relevant authorities, which must inform the social welfare centre thereof.
(2)The child is entitled to a special guardian in cases specified by this Act.
(3)The special guardian shall be appointed by the social welfare centre in cases where another authority is deciding on the infringement of the child’s right, and by the court when the social welfare centre is competent to decide on a right of the child.
(4)The special guardian shall submit a report on the representation of the child at the request of, and within the time-limit set forth by, the authority that appointed him or her.
(5)In proceedings involving decisions on the child’s right or interest the child is entitled to be informed in an appropriate way of the relevant circumstances of the case, obtain advice and express his or her views, and to be informed of the possible consequences of [those] views. The [child’s] views shall be given due weight in accordance with his or her age and maturity.”
2.Parental responsibility
Section 102
“The court shall, upon application by the parent, the child or the social welfare centre, issue a new decision on custody and access rights, and if need be on other elements of parental responsibility, if substantially changed circumstances so require.”
3.Measures for the protection of the rights and welfare of the child
Section 109
“(1)The social welfare centre shall order supervision of the exercise of parental authority when the errors and omissions are various and frequent or when the parents need special assistance in bringing up their child.
(2)...
(3)The programme of supervision may entail referring the child to a children’s home for a half day or for a full day, or referring the parents and the child to medical and other institutions for treatment and other professional assistance.
(4)The supervision shall be ordered for a minimum period of six months ...”
Fifth part
GUARDIANSHIP
Section 167
“In order to protect certain personal and pecuniary rights and interests the social welfare centre shall appoint a special guardian ... ...
6.... in other cases where the interests of the child conflict with those of the parents.”
Eighth part
JUDICIAL PROCEEDINGS
Section 263
“(1)The provisions of this part of the Act determine the rules by which the courts shall proceed in special civil [contentious] and non-contentious proceedings and special enforcement and security proceedings when deciding in matrimonial, family and other matters regulated by this Act.
(2)The proceedings referred to in paragraph 1 of this section shall be urgent.”
Section 269(2)
“In order to pursue his or her rights or interests, the court shall in [personal] status matters, in accordance with his or her age and maturity and [having regard to the child’s] welfare, allow the child to express his or her views before the social welfare centre or before the court.”
3.Proceedings concerning custody, parental responsibility or child protection measures
Section 295
“(1)Before reaching a decision on custody or parental responsibility, the court shall obtain a report and recommendation of a social welfare centre.
(2)The social welfare centre must within thirty days submit to the court the report and recommendation referred to in paragraph 1 of this section.
(3)...”
2.Relevant case-law
85.In its judgment no. Gž-994/11-3 of 17 March 2011 the Bjelovar County Court held as follows:
“When the child has gone to live of his or her own free will with the other parent (the father), who was equally as fit to take care of the child as the parent (the mother) with whom the child had lived thus far, and the child is, having regard to his or her age and maturity, capable of forming his or her own opinion and expressing views on issues that concern him or her, then these circumstances may justify a reversal of an earlier custody decision.”
B.The Criminal Code
1.Relevant provisions
86.The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments), which was in force from 1January 1998 to 31 December 2012, reads as follows:
Article 8
“(1)Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens.
(2)It may be exceptionally provided by law that criminal proceedings in respect of certain criminal offences should be instituted upon a private bill of indictment or that the State Attorney’s Office should institute criminal proceedings at the initiative of [a victim].”
CHAPTER TEN (X)
CRIMINAL OFFENCES AGAINST LIFE AND LIMB
Bodily injury
Article 98
“Whoever inflicts bodily injury on another person or impairs another person’s health shall be fined or punished by imprisonment not exceeding one year.”
Instituting criminal proceedings for criminal offences of bodily injury
Article 102
“Criminal proceedings for the offence of bodily injury (Article 98), unless committed against a child or a minor, shall be instituted upon a private bill of indictment.”
CHAPTER SIXTEEN (XVI)
CRIMINAL OFFENCES AGAINST MARRIAGE, THE FAMILY AND JUVENILES
Neglect or abuse of a child or a minor
Article 213
“(1)A parent, adoptive parent, guardian or other individual who grossly neglects their duties to care for or raise a child or minor shall be punished by imprisonment of six months to five years.
(2)The penalty referred to in paragraph 1 of this Article shall be imposed on a parent, adoptive parent, guardian or other individual who abuses a child or minor, forces [the child] to perform work unsuitable for his or her age, or to work excessively, or to beg, or out of greed induces [the child] to behave in a manner harmful to his or her development, or by [engaging in] dangerous activities or in some other way puts [the child] in danger.”
Domestic violence
Article 215a
“A family member who by violence, abuse or particularly offensive behaviour places another member of the family in a humiliating position shall be punished by imprisonment of six months to five years.”
2.Legal commentary
87.According to Croatian legal scholars, abuse, as a constitutive element of a number of criminal offences, including the offence of child abuse, is defined as “deliberate infliction of physical or mental discomfort or pain of significant intensity” (see Željko Horvatić (ed.), Rječnik kaznenog prava [The Dictionary of Criminal Law], Masmedia, Zagreb, 2002, p. 664) or “... deliberate infliction of mental or physical discomfort of significant degree. What constitutes a ‘significant degree’ of physical or mental discomfort is to be determined on a case-by-case basis. In making that assessment the court will often require an opinion from an expert in psychiatry” (see Ana Garačić, Kazneni zakon u sudskoj praksi – Posebni dio [Criminal Code in Judicial Practice – Special Part], Organizator, Zagreb, 2009, pp. 375-376).
88.As regards the criminal offence of domestic violence Croatian legal scholars have expressed the following view (see op. cit., pp. 285-286):
“[The perpetrator’s conduct] is defined alternatively as violence, abuse or particularly offensive behaviour. Violence is to be understood in a wider sense [that is] as an application of physical force against the physical integrity of another family member, psychological coercion, or serious psychological maltreatment, but also as coercion directed at objects if the family member perceives this as physical coercion. Violence is normally not an isolated and single incident, but entails a number of instances and is characterised by continuous activity. Abuse is very deliberate infliction of physical or mental pain of great intensity, short of bodily injury. Abuse within a family may be physical, psychological or emotional, or sexual ... Particularly offensive behaviour entails the perpetrator’s manifest contempt for, and ruthlessness and arrogance against, another family member ... For the offence to be committed it is necessary for the family member to be put into a humiliating position as a result of the perpetrator’s conduct. This is a position which offends honour and reputation, human dignity, and self-esteem. Putting a family member in a humiliating position is regarded as the objective element of the crime ... which does not have to be accompanied by the perpetrator’s mens rea. However, the intent of the perpetrator must correspond to his or her conduct ...”
C.Protection against Domestic Violence Act
89.The Protection against Domestic Violence Act (Zakon o zaštiti od nasilja u obitelji, Official Gazette no. 137/09 with subsequent amendments), inter alia, defines the minor offence of domestic violence and provides sanctions which may be imposed to those convicted of that offence.
90.Section 20 provides that where the minor offence of domestic violence has been committed against a child, the court may impose either a fine of at least HRK 7,000 or a prison sentence of at least forty-five days. In cases of recidivism the court may impose a fine of at least HRK 15,000 or a prison sentence of at least sixty days. The maximum fine of HRK 50,000 and the maximum prison sentence of ninety days are prescribed by the Minor Offences Act (Prekršajni zakon, Official Gazette no. 107/07 with subsequent amendments).
91.Sections 11-19 of the Protection against Domestic Violence Act provide for various protective measures the court may impose in addition to, or independently of, the penalties listed in section20, even before the institution of minor offences proceedings. Section 12 provides for the protective measure of compulsory psycho-social treatment.
D.The Courts Act 2013
92.Under the Courts Act 2013 (Zakon o sudovima, Official Gazette no.28/13), which entered into force on 14March 2013, a party to pending judicial proceedings who considers that those proceedings have been unduly protracted has the right to lodge an acceleratory remedy, namely a “request for the protection of the right to a hearing within a reasonable time” and to request that the president of the same court before which those proceedings are pending expedite them by setting a time-limit of a maximum of six months within which the judge sitting in the case must render a decision. A party whose request is not decided upon within sixty days or whose request is dismissed may lodge an appeal with the president of the immediately higher court.
93.In addition, a further, combined compensatory-acceleratory remedy, namely a “request for payment of appropriate compensation”, is also available, but only in cases where the judge sitting in the case did not comply with the time-limit for deciding the case specified by the court president when granting the request for the acceleratory remedy.

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7.The applicant was born in 1988.
8.On 27 December 2011 the applicant applied for asylum and a residence permit in Sweden and claimed that she had arrived in Sweden on 11 December the same year. In an interview with the Migration Board (Migrationsverket), at which she was informed that a search in the European asylum fingerprint database EURODAC had revealed that she had applied for asylum in the Netherlands in December 2006, the applicant stated that she had arrived in Sweden in 2007 from the Netherlands and had remained illegally in Sweden since then. She had been afraid to contact the Swedish authorities since she did not want to be returned to the Netherlands as she would be sent onwards to Italy where she had no housing or opportunity to support herself. She wanted to remain in Sweden where cousins of hers were living.
9.As the applicant had applied for asylum in the Netherlands – under a different name and birth date – the Migration Board requested that that country take her back in accordance with the Dublin Regulation. The Dutch authorities refused, however, as she had previously applied for asylum in Italy, under a slightly different name than that given to the Board. The Italian authorities were then requested to take back the applicant. The Italian authorities did not reply to the request within the prescribed time-limit and were consequently, under Article 20(1)(c) of the Regulation, considered to have agreed to receive her. Accordingly, on 24 April 2012, the Migration Board dismissed the asylum application and decided to transfer the applicant to Italy.
10.However, the decision became time-barred before the transfer could be realised. On 30 November 2012 the applicant therefore applied for asylum and a residence permit in Sweden again. At an asylum interview in January 2013, which lasted for two and a half hours, she submitted essentially the following. In November 2004 her family had forced her to marry an older man against her will. At the time she had for about a year had a secret relationship with a boy from school. This relationship was revealed a few days after the forced marriage when the applicant and her boyfriend had tried to escape from Mogadishu together. They had been detected by her uncles when they had been sitting on the loading platform of a truck. Both she and her boyfriend had been beaten and thrown off the truck. She had sustained injuries to her hips and had been hospitalised for a few months. Thereafter she had lived at home until August 2005 when her father had considered that her health condition permitted her to move in with her husband. She had then contacted her boyfriend and they had fled together, first to Ethiopia and then to Sudan and eventually to Libya in order to take a boat to Italy. However, the boat had sunk and the boyfriend had died. Later, while in Sweden, she had learned that her father had died in 2010 and her mother in 2011. If returned to Somalia, the applicant claimed that she would have to return to the man whom she had been forced to marry, unless she were sentenced to death for fleeing the marriage and the country. These threats would be carried out by her uncles. The applicant further asserted that she lacked a male support network in Somalia and therefore risked being sexually assaulted. As a single woman, she would further not be able to rent accommodation or otherwise organise her life and would risk becoming a social outcast. She also invoked the generally dire humanitarian situation in Somalia and, in particular, claimed that she was unlikely to find the help still needed for her injured hips.
11.On 8 March 2013 the Migration Board rejected the applicant’s application for asylum and ordered her deportation to Somalia. At the outset, the Board found that she had failed to substantiate her identity, noting in particular that she had not submitted any identification papers and had previously applied for asylum in the Netherlands and Italy under different identities. However, it found it plausible that the applicant originated from Mogadishu. Noting that she had arrived in Sweden in 2007 but had not applied for asylum until the end of 2011 – and had thus not reported a need for protection during a period of more than four years – the Board called into question whether she had felt a real need for protection. Turning to the substantive allegations presented by the applicant in support of her application, the Board considered that they were marred with credibility issues. For example, in her initial asylum application in 2011, she had stated that she was unmarried. Only during the asylum investigation following her renewed application in November 2012 had she claimed that she had married in Somalia in November 2004. The Board found that the applicant had failed to provide a sufficient explanation for this, particularly given that this was a crucial part of her story. Furthermore, in 2011 she had only invoked the armed conflict in the country as grounds for asylum and had stated that she could not remember how she had sustained the hip injury since she had been very young at the time. She had then also said that she had stayed with a female friend in Mogadishu before leaving the country whereas she later claimed that she had lived with her parents and siblings.
The Board concluded that the applicant had failed to make plausible that she had been subjected to any ill-treatment by her relatives in Somalia and consequently had failed to show that she would lack a male support network there. It noted that, according to the applicant, her brother and uncles still lived in Mogadishu. Moreover, the Board examined the general situation in Mogadishu and the particular situation of women, based on information gathered at a fact-finding mission to the city in June 2012 and further information obtained thereafter, and considered that the circumstances were not of such severity that the applicant would be unable to return there, taking into account the finding that she had a male network to protect her. In this connection, the Board also noted that the applicant had not lived in a refugee camp before leaving the country and had not claimed that she would risk doing so upon return.
12.The applicant appealed to the Migration Court (Migrations-domstolen), maintaining her claims and adding, inter alia, the following. The security situation in Mogadishu was still very unstable and the particular situation of women in Somalia was extremely severe. She further asserted that, as her situation in Italy had been difficult, it was understandable that she had decided to apply for asylum under another identity in the Netherlands, in order to avoid being sent back. This had also been the reason why she had decided to stay illegally in Sweden. Moreover, she stated that the Migration Board had misunderstood her; she had stayed with a female friend in Sweden, not in Somalia where she had lived with her family. Furthermore, in her view, she was not married since she had not consented to the marriage or been present at the marriage ceremony. She submitted an x-ray image of her hip prostheses to show that she had been assaulted and injured.
13.On 4 June 2013 the Migration Court rejected the appeal, agreeing with the Migration Board’s reasoning and findings. The court subscribed to all the misgivings concerning credibility expressed by the Board. It added that, whereas the applicant initially had claimed to have been forcibly married in 2004, in a later submission to the Board she had stated that this had been decided by her father and her uncles in 2010. Since the applicant was in general not credible, the court did not believe her statement that she lacked a male support network in Somalia. Moreover, it considered that the submitted x-ray image did not show that the applicant had been subjected to ill-treatment in her home country.
14.By a decision of 15 July 2013 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal.
15.Subsequently, the applicant requested that the Migration Board re-examine her case, claiming that there were impediments to the enforcement of the deportation order. She stated that she had recently found out that her uncle, who had previously physically assaulted her, had now joined al-Shabaab, and that he had killed her sister and forced her brother to join al-Shabaab. Thus, if returned to Somalia, she would risk being stoned to death by her uncle.
16.On 7 September 2013 the Migration Board rejected the petition, finding that no new circumstances justifying a reconsideration had been presented. It held that the alleged threats stemming from the applicant’s uncles had already been examined by the Board and the Migration Court and that, given her lack of credibility, a mere statement from her about her uncle’s actions was not sufficient to assume that she would risk being stoned upon return. The applicant did not appeal against the Board’s decision.
A.Danish Immigration Service and Norwegian Landinfo
23.The Danish Immigration Service and the Norwegian Landinfo have issued three reports in 2013 and 2014 on the situation in south and central Somalia, including Mogadishu: Update on Security and Human Rights Issues in South-Central Somalia, Including Mogadishu (published in January 2013), Security and Protection in Mogadishu and South-Central Somalia (May 2013) and Update on Security and Protection Issues in Mogadishu and South-Central Somalia (March 2014). The reports are based on their fact-finding missions to Nairobi and Mogadishu in October 2012, April/May 2013 and November 2013, respectively, during which they consulted national and international non-governmental organisations (NGOs), international organisations, including United Nations agencies, and individuals, most of whom wished to remain anonymous.
24.The May 2013 report cited the United Nations Department of Security and Safety (UNDSS), Mogadishu, as saying that al-Shabaab had withdrawn from Mogadishu in August 2011 but the withdrawal had only been completed by the end of May 2012. Armed attacks continued, however, and the UNDSS stated that al-Shabaab was not trying to retake Mogadishu but was using the attacks as a form of harassment and as a reminder of its presence. The usual courses of action were hit-and-run attacks, hand grenade attacks and targeted killings. There were also occasional mortar and other indirect fire attacks. The report further referred to several international NGOs which echoed the statements by the UNDSS. Thus, there had been improvements in the security situation for people in Mogadishu after al-Shabaab had left in August 2011: there was no armed struggle and no frontline in the city, people could move freely around and they had full access to all districts. However, there were still threats: the influence of al-Shabaab was not visible but the organisation was able to undertake attacks all over the city. It mainly targeted members of the government and Parliament, soldiers of the African Union Mission in Somalia (AMISOM) and the Somali National Armed Forces (SNAF), police, people working for international organisations, people suspected of spying for the government and al-Shabaab deserters. Al-Shabaab did not kill civilians deliberately or indiscriminately, but when staging large-scale attacks it did not mind if civilians were killed. One NGO described the situation of civilians thus: “[T]he risks involved in living in Mogadishu are basically a question of being at the wrong place at the wrong time, but being increasingly desperate al-Shabaab wants to send the message that Mogadishu is not safe”.
25.These assessments on the security situation in Mogadishu were confirmed in the March 2014 report. The UNDSS explained that there had been an overall improvement in terms of the Somali forces expanding their reach in Mogadishu, but that the city remained very fragmented. An international NGO stated that security had improved since April 2013 in certain areas of south and central Somalia, but that there were still security-related issues which directly affected all government people, government affiliates, international employees, contractors who dealt with the international community and UN staff as well as many others. Although al-Shabaab was not in control of any part of Mogadishu it could still reach all over the city. The targeted killings continued and there were criminal actions as well. Another international NGO said that the security situation in Mogadishu had gradually improved during the preceding two years but was still not good.
26.All three Danish/Norwegian reports mentioned that it was very difficult, if not impossible, to present figures on civilian casualties, as no system of monitoring had yet been put in place. However, an international organisation as well as NGOs referred to in the first report believed that there had been a decrease in the number of civilian casualties in Mogadishu compared to the preceding few years. This decrease was reportedly due to front-line fighting having moved out of Mogadishu. There were fewer mass-casualty attacks and killings, in particular due to the cessation of shelling in Mogadishu. Still, civilian casualties remained a daily occurrence, principally due to assassinations, improvised explosive devices (IEDs) and suicide attacks, and reactions to these attacks by armed forces. In January 2014, the United Nations High Commissioner for Refugees (UNHCR) stated that there had been an increase in the number of attacks by al-Shabaab since the Danish/Norwegian report from May 2013, including in places where civilians gathered, i.e. markets, hotels and public places. The UNDSS held that there had been an increase of targeted killings of ordinary civilians, which could be due to their being easier to hit than high-ranking personalities and other high-profiled persons who were surrounded by more security. An international agency and an international NGO stated, however, that al-Shabaab did not deliberately kill ordinary civilians, but continued to target mainly the police force, the military and security forces as well as politicians. Al-Shabaab’s strategy was to prevent progress and normalisation of life, not to kill civilians. Several organisations and individuals interviewed pointed out that it was sometimes difficult to know who were behind the attacks in Mogadishu; the perpetrators were not always al-Shabaab but could also be other actors such as criminals, political rivals and disgruntled people. As stated by the UNDSS in the May 2013 report, SNAF soldiers also committed crimes against civilians and there existed so-called District Commissioners who collected a “tax” which was basically protection money.
27.In regard to the situation for women, the May 2013 report included testimony that sexual and gender-based violence had increased manifold during the preceding year. While verified reports showed an overall improvement in security for ordinary people, sexual and gender-based violence was a very serious issue and could even be increasing due to the liberation of areas under the control of al-Shabaab. The UNHCR in Mogadishu stated that in light of the prevalence of gender-based violence, female heads of households or single women, without access to nuclear family and clan protection mechanisms, as well as children were at a heightened risk of violations. The third Danish/Norwegian report referred to the Human Rights Watch which in its 2014 World Report, published in January 2014, had expressed that Somali women and girls faced alarming levels of sexual violence throughout the country. Internally displaced women and girls were particularly vulnerable to rape by armed men including government soldiers and militia members. Security forces had also threatened individuals who had reported rape, and service providers. The Mogadishu-based NGO Somali Women Development Center (SWDC) stated, however, that there had been a remarkable change in Mogadishu between May and November 2013. Through improved opportunities for the government to secure peace, security for ordinary residents in Mogadishu had improved considerably. People now trusted the police and the National Intelligence and Security Agency and were enjoying increased freedom of movement and security. The SWDC emphasised that women had complete freedom of movement in all locations in Mogadishu except for the large Bakara market where al-Shabaab was present. They could drive a car, go to the local market and move around by themselves and faced no harassment at checkpoints.
28.On the issue of returns to Mogadishu and south and central Somalia, the May 2013 report referred to a commentator from UNHCR who stated that many people from the diaspora were returning and there was in general no discrimination on the ground of belonging to the returning diaspora. Other commentators expressed differing views on the attitude of those who had stayed behind towards the returning diaspora; while some interviewees focused on the benefits of investments, modernisation and new skills that the diaspora brought with them, others mentioned that there was friction between the two groups, as the diaspora were seen as competitors taking jobs from locals and causing prices on goods and properties to increase and as they did not comply with certain local customs. Apparently, however, in so far as there was tension, it had not been violent. A representative of a diaspora organisation in Mogadishu stated that most returnees were resourceful people who saw opportunities in the city; allegedly, it would be extremely difficult to return to Mogadishu if one had nobody to rely on there. An international NGO referred to in the January 2013 report explained that people returning from the diaspora would need to make sure that they had the support from their family, i.e. a father, mother, brother, sister or uncle, as they could not count on their clan to support them. These sentiments were generally confirmed in the March 2014 report. An international NGO explained that persons from Mogadishu with relatives living in the city would be accommodated by their families. Support from the host community should also be considered. It was added that Somali families were extended families with even fourth and fifth cousins being counted in. Nevertheless, some people interviewed stated that there was increasing local resentment against the returning diaspora and heightened security concerns among the returnees. The report further quoted al-Shabaab commander Ali Mohamed Hussein who, in an announcement of 29 December 2013, had proclaimed that the returnees would be killed and fought against in the same manner that al-Shabaab used against the Somali government. Hussein also warned Somalis to stay away from government buildings, public venues frequented by government officials, and from foreign aid agencies and their workers, as they would all be targeted in the organisation’s attacks.
B.Swedish Migration Board
29.The Swedish Migration Board carried out a fact-finding mission to Nairobi in October 2013 with the aim of updating information about the situation in Somalia. In its report The Security Situation in South and Central Somalia (Säkerhetssituationen i södra och centrala Somalia), dated 20 January 2014, it noted, inter alia, the following about areas not under the control of al-Shabaab (thus including Mogadishu):
“The security situation is affected by the good supply of weapons, religious extremists and persons who could be labeled warlords but could also be clan leaders in combination with mafia-style organized criminality. They also have their own militias who rape, extort and set up illegal check points. In areas with a strong presence of AMISOM or the Ethiopian army, the situation regarding human rights is considerably better than in areas controlled by Al Shabaab. Although the SNAF is less arbitrary in their behavior than Al Shabaab it is still uncertain if the authorities such as the police and the courts are at all functioning. The forces are not paid in time, or not at all, and those who are in the forces are not always from the same clan as the locals. It can be questioned to what extent the SNAF is multi-clan. The discipline is bad and the SNAF-soldiers rob and rape civilians and are sometimes involved in shoot-outs among themselves. A rumour that you cooperate with Al Shabaab could be enough to be killed by someone on the government’s side of the conflict. [The Migration Board] was told examples from Mogadishu where the chain of command from the government to the police as well as within the police did not work, neither did the clan system. Solving these issues can be done with the help of influential people’s own militias. Other militias allied with the SFG [Somali Federal Government] in one way or another, are clan based. Those engaged in these militias regard this first and foremost as a job, and children, most over 15 years of age, are in the ranks. Recruitments to all militias has gone down during 2013.”
A new fact-finding mission to Nairobi and Mogadishu was undertaken in October 2014 and, on 29 April 2015, the Migration Board issued an updated report with the same name, The Security Situation in South and Central Somalia. It contained the following information:
“Al Shabaab is just outside the cities they have been driven out from and are able to infiltrate the cities, primarily at night, but also perform attacks in the cities. Even though Al Shabaab has had military setbacks, their presence in cities is still considerable for many people. It is difficult for the citizens to know who is a member of Al Shabaab and who is not, which makes it difficult for the locals to relate to Al Shabaab’s covert presence.
SFG has influence in the areas Al Shabaab no longer control. However, the influence is quite frail and the cities are characterized by rivalry among different groups on site. At times, this has in some places led to heavy fighting, e.g. fighting between clan militias around Marka. The fact that Al Shabaab is driven out of a city does not mean that long-standing conflicts between local groups or in relation to SFG in Mogadishu are solved. There are many layers of the conflict, which might appear on clan level or between other groupings such as businessmen. There is reason to believe that even if attempts are made from SFG, with support from the international community, it is a very slow process before SFG in fact has established administrations and can exercise effective control over the territory in S/C Somalia.
It is worth noting that SFG and SNAF need the support from AMISOM to be able to militarily hold the cities. As Al Shabaab still control the rural areas around the cities, some cities become isolated in the sense that it is not possible for SFG or representatives from the international community to get there by road. Some of these cities lack an airstrip.”
30.Based on observations from the fact-finding mission in October 2013, the Migration Board, on 20 January 2014, issued the report Women in Somalia (Kvinnor i Somalia). It stated, inter alia, the following:
“Within the Somali clan system a woman has to be represented by a man when decision is to be made within Xeer (customary law). It is always the man who decides for the woman. If there are no close male relatives, another older male relative can speak for and decide for the woman. A male network, meaning men who can speak for the woman within Xeer, cannot exactly be defined. It varies how closely related the woman and the man are, but also with the type of relationship they have. As a frame for what to consider as a male network one could besides the father and the husband also include paternal grandfathers, paternal uncles, brothers, sons and cousins on the father’s side provided they are adults and have a closer relationship with the woman than what could be the case with more distant relatives. The man also has to be in the same geographic location as the woman.
[The Migration Board] assesses that a woman in lack of a male network, living with her diya-paying sub-clan, and who has been subjected to violence can be represented by a man in her diya-paying sub-clan in negotiations within Xeer. The probability that this will occur increases with each of the following factors; the diya-paying sub-clan is in their place of residence, the diya-paying sub-clan is not in minority at the place they reside, the diya-paying sub-clan is in a rural area. If the man who negotiates for the woman is not within the woman’s male network but is another man in the diya-paying sub-clan the risk increases that the negotiations are conducted in the interest of the diya-paying sub-clan rather than the woman’s. [The Migration Board] would like to stress that the above applies to cases where a woman without a male network lives with her sub-clan. If the woman lacks a male network and is in another place than her diya-paying sub-clan she will lack access to Xeer.
It is reported that women are abused by different military forces, in this context meaning the SNAF, AMISOM and different clan militias. SNAF soldiers are responsible for many abuses but even AMISOM soldiers are a threat to women. It is reported from Mogadishu that AMISOM soldiers abuse women sexually. The woman is called into the base under the pretext she is going to get a job, e.g. as a cleaner, but [is] instead assigned to a specific man for sexual services. A woman who becomes pregnant is usually thrown out by her husband and will lose her older children to her husband. Her clan will in most cases not defend her in such a situation. There are women’s shelters in Mogadishu and Afgooye where a woman can stay for six months and where there is access to medical and psychosocial support. They have access to skills development with the aim that the women are able to support themselves. The women live community based in order to get a network that can provide some support and are if possible placed where there clan, but not their sub-clan, lives.”
C.United Kingdom Upper Tribunal and Home Office
31.In MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC), a country guidance determination published on 20 October 2014, the United Kingdom Upper Tribunal addressed the current situation in Mogadishu. It heard three expert witnesses and had regard to oral and written submissions on behalf of three (male) appellants as well as a very substantial body of documentary evidence. It made the following assessment of the level of risk for “ordinary civilians”:
“397.Therefore, the key question to be addressed is whether the violent attacks that continue to be carried out by Al Shabaab in Mogadishu against carefully selected targets are at a level that means that there is for persons facing return to Mogadishu a risk of ill-treatment contrary to Article 3 of the [Convention] or a serious and individual threat to a civilian’s life or person by reason of the indiscriminate nature of those attacks carried out by Al Shabaab as they continue to prosecute their campaign against carefully selected targets in the city. As we have explained, the statistical information concerning casualty levels arising from those attacks is deficient and unreliable. Thus, our assessment must be made upon the evidence as a whole.
398.Gone are the indiscriminate bombardments and military offences causing an unacceptable number of civilian casualties spoken of by the [European Court of Human Rights] in Sufi and Elmi. This has contributed to the reduction in population movement in and from Mogadishu that we accept is now being seen, with “huge” numbers of people returning to the city. Nor can it be said that the nature of the conflict is unpredictable. Given the careful selection of targets by Al Shabaab, their frequent announcements reported in the media explaining why those targets have been selected it is entirely predictable which areas of the city, and which establishments or compounds within them, represent a greater risk for citizens moving about the city. We do not suggest, though, that the location of all such attacks can be anticipated and so avoided, simply that certain obvious areas and establishments representing clearly enhanced risk of an Al Shabaab attack can be generally avoided.
399.Drawing all of this together, and taking together all we have discussed, including:
a.the scale of returns to Mogadishu indicating that people who know the city well are “voting with their feet”;
b.the scale of inward investment and the “economic boom” indicating that individual entrepreneurs, as well as international agencies, consider investments to be appropriate;
c.the reduction in civilian casualties indicated by the imperfect statistical information;
d.the durability of the withdrawal from formal presence of Al Shabaab from the city;
e.the continued absence, generally, of the use of artillery or shelling within the city;
f.the transparently clear targeting strategy of Al Shabaab that does not include civilians, specifically, or diaspora returnees;
g.the opportunity to take some reasonable steps to reduce exposure to risk;
h.the absence of any risk of forced recruitment to Al Shabaab;
and notwithstanding our acceptance of the continued level of violent attacks that are being carried out in Mogadishu by Al Shabaab, we conclude that, absent some aspect of a person’s profile making him of particular adverse interest to Al Shabaab or to the authorities as a possible supporter of Al Shabaab, there is not a general risk for a civilian, simply by being present in the city, of serious harm as a result of indiscriminate violence. Nor is it established that there are substantial grounds for believing that a person returning to Mogadishu would face a real risk of being subjected to treatment contrary to Article 3 of the [Convention].”
32.On the basis of all the evidence before it, the Upper Tribunal gave the following country guidance:
“...
(ii)Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 3 of the [Convention] or Article 15(c) of the [European Union] Qualification Directive. In particular, he will not be at real risk simply on account of having lived in a European location for a period of time [or] being viewed with suspicion either by the authorities as a possible supporter of Al Shabaab or by Al Shabaab as an apostate or someone whose Islamic integrity has been compromised by living in a Western country.
(iii)There has been durable change in the sense that the Al Shabaab withdrawal from Mogadishu is complete and there is no real prospect of a re-established presence within the city. That was not the case at the time of the country guidance given by the Tribunal in [AMM and others (conflict – humanitarian crisis – returnees – FGM) Somalia CG [2011] UKUT 00445 (IAC), published on 28 November 2011].
(iv)The level of civilian casualties, excluding non-military casualties that clearly fall within Al Shabaab target groups such as politicians, police officers, government officials and those associated with NGOs and international organisations, cannot be precisely established by the statistical evidence which is incomplete and unreliable. However, it is established by the evidence considered as a whole that there has been a reduction in the level of civilian casualties since 2011, largely due to the cessation of confrontational warfare within the city and Al Shabaab’s resort to asymmetrical warfare on carefully selected targets. The present level of casualties does not amount to a sufficient risk to ordinary civilians such as to represent an Article 15(c) risk.
(v)It is open to an ordinary citizen of Mogadishu to reduce further still his personal exposure to the risk of “collateral damage” in being caught up in an Al Shabaab attack that was not targeted at him by avoiding areas and establishments that are clearly identifiable as likely Al Shabaab targets, and it is not unreasonable for him to do so.
(vi)There is no real risk of forced recruitment to Al Shabaab for civilian citizens of Mogadishu, including for recent returnees from the West.
(vii)A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re-establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer.
(viii)The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.
(ix)If it is accepted that a person facing a return to Mogadishu after a period of absence has no nuclear family or close relatives in the city to assist him in re-establishing himself on return, there will need to be a careful assessment of all of the circumstances. These considerations will include, but are not limited to:
circumstances in Mogadishu before departure;
length of absence from Mogadishu;
family or clan associations to call upon in Mogadishu;
access to financial resources;
prospects of securing a livelihood, whether that be employment or self employment;
availability of remittances from abroad;
means of support during the time spent in the United Kingdom;
why his ability to fund the journey to the West no longer enables an appellant to secure financial support on return.
(x)Put another way, it will be for the person facing return to explain why he would not be able to access the economic opportunities that have been produced by the economic boom, especially as there is evidence to the effect that returnees are taking jobs at the expense of those who have never been away.
(xi)It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.
...”
33.In February 2015 the Home Office issued a Country Information and Guidance report entitled Somalia: Women Fearing Gender-Based Harm/Violence. In regard to south and central Somalia, including Mogadishu, the report stated, inter alia, the following:
“There is generalised and widespread discrimination towards women in Somalia. Sexual and gender-based violence – including domestic violence, rape, sexual abuse, exploitation and trafficking – is widespread and committed with impunity by a range of actors including government security forces, members of armed opposition groups, militias, family and community actors and AMISOM peacekeepers. Internally Displaced Persons (IDP) women, especially those from minority clans, are particularly exposed to sexual and gender-based violence.
...
Being female does not on its own establish a need for international protection. The general level of discrimination against women in Somalia does not in itself amount to persecution. However women who are without family/friend/clan connections or are without resources are in general likely to be at risk of sexual and gender based violence on return. Each case must be determined on its own facts. Factors to be taken into account include: access to family networks or clan protection and support, age, health, economic status, family responsibilities, connections with the diaspora (which can be material both in terms of income and ability to find work with reference to the diaspora driven economic upsurge) and other individual circumstances of the person.”
34.As to whether there was effective protection for women, the report concluded:
“Throughout south and central Somalia (including Mogadishu) there are structural weakness of the security services, including serious capacity and infrastructure gaps, logistical challenges, indiscipline, weak command and impunity for human rights abuses. This is alongside a largely non-functioning legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the widespread existence of corruption in state institutions. Moreover impunity for gender-based violence is widespread. Traditional laws, often used instead of weak state judiciary, discriminate against women and girls, and girls are often forced to marry the perpetrator. Prosecutions and convictions for rape and other forms of sexual violence are rare in Somalia, where survivors not only experience fear and shame in reporting such crimes, but at times face greater abuse and stigmatisation if they do report the attack. Somali police, rather than proactively investigate criminal complaints, often demand that victims of any crime do the legwork in the investigation, from locating witnesses to establishing who the suspects are. The inability and unwillingness of the Somali authorities to impartially investigate cases of sexual violence and bring perpetrators to justice leaves survivors further isolated. This means that, in general, a woman fearing sexual or gender based violence is unlikely to be able to access effective protection from the state.”
D.UNHCR
35.On 17 January 2014 the UNHCR issued the report International Protection Considerations with Regard to People Fleeing Southern and Central Somalia as an interim update of its 2010 eligibility guidelines concerning asylum seekers from Somalia. On the security situation and its impact on civilians in Mogadishu and other areas under control of the Somali Federal Government, the UNHCR noted:
“Mogadishu has been nominally under the control of government forces, supported by AMISOM, since August 2011. While the security situation in Mogadishu has improved since then, with a reduction of open conflict and signs of a resumption of economic activity in the city, Al-Shabaab retains the ability to stage lethal attacks even in the most heavily guarded parts of the city, with civilians reportedly bearing the brunt of its attacks. The SFG is reported to be failing to provide much of its population with basic security. Thus the reality on the ground, as reported by observers, remains that civilians are injured and killed every week in targeted attacks by gunmen, or attacks by IEDs and grenades.
...
... Even though there was less outright fighting in Mogadishu in 2013 compared to previous years, the toll of injured and dead civilians from grenade attacks and bombings reportedly went up in 2013. Observers consider that Al-Shabaab strikes have evolved, from the laying of roadside bombs intended to hit vehicles of passing government officials and AMISOM convoys, to ramming vehicles laden with explosives into security gates of buildings housing government institutions or international organizations, before gunmen with explosives strapped to their bodies storm the premises. In addition, targeted killings/assassinations are reported to have continued.
...
Further, a reported lack of authority, discipline and control of government forces and allied armed groups means that government forces often fail to provide protection or security for civilians and are themselves a source of insecurity. Security agencies, such as the police and intelligence services, are, according to reports, frequently infiltrated by common criminal, radical, or insurgent elements. ...”
36.On the need of protection for Somalis returning or moving to Mogadishu, the UNHCR stated as follows:
“For Somalis in Mogadishu, it is very difficult to survive without a support network, and newcomers to the city, particularly when they do not belong to the clans or nuclear families established in the district in question, or when they originate from an area formerly or presently controlled by an insurgent group, face a precarious existence in the capital. Somalis from the diaspora who have returned to Mogadishu in the course of 2013 are reported to belong to the more affluent sectors of society, with resources and economic and political connections. Many are reported to have a residence status abroad to fall back on in case of need. ... Due in part to the return of wealthy Somalis from the diaspora, rents in Mogadishu have reached an all-time high, as a result of which some persons are being forced to move to overcrowded IDP camps because they cannot afford the new prices quoted by landlords.”
37.For the individual assessment of asylum applications of persons from Mogadishu and other areas of south and central Somalia, the UNHCR identified the following potential risk profiles:
“1.Individuals associated with, or (perceived as) supportive of the SFG and the international community, including the AMISOM forces;
2.Individuals (perceived as) contravening Islamic Sharia and decrees imposed by Al-Shabaab, including converts from Islam, other “apostates” and moderate Islamic scholars who have criticized Al-Shabaab extremism;
3.Individuals (perceived as) opposing the SFG and related interests and individuals (suspected of) supporting armed anti-Government groups;
4.Individuals in certain professions such as journalists, members of the judiciary, humanitarian workers and human rights activists, teachers and staff of educational facilities, business people and other people (perceived to be) of means;
5.Individuals (at risk of being) forcibly recruited;
6.Members of minority groups such as members of the Christian religious minority and members of minority clans;
7.Individuals belonging to a clan engaged in a blood feud;
8.Women and girls;
9.Children;
10.Victims and persons at risk of trafficking;
11.Sexual and/or gender non-conforming persons (lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals);
12.Persons with a mental disability or suffering from mental illness.”
E.United Nations
38.The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) reported in a Humanitarian Bulletin Somalia, published on 17 October 2014, the following on gender-based violence in Somalia:
”Women and girls in Somalia continue to be at high risk of gender-based violence. In the first six months of 2014, over 1,000 cases were reported in Mogadishu alone according to the Somalia Gender-Based Violence Working Group. The actual number of violations is believed to be higher as most survivors do not report these crimes due to fear of social stigma and reprisals from perpetrators. Decades of conflict, erosion of social protection mechanisms, and food insecurity have increased the vulnerability and women and girls are exposed to rape, intimate partner violence, sexual abuse and exploitation particularly during conflict and displacement. At the same time, prevention programmes and medical, psychosocial and legal response services are limited and under resourced. About 22,000 survivors of violations have been provided with psychosocial support by aid workers in 2014. Across Somalia, the majority of cases of sexual violence reported have been rape followed by physical assault, and the majority of survivors have been females from displaced communities.
Impunity is widespread. Traditional laws, often used instead of weak state judiciary, discriminate against women and girls, and for girls may often result in being married off to the perpetrator. The perpetrators of gender-based violence include people from within the displaced community, from host community, as well as from the armed forces. Efforts are needed to hold perpetrators accountable and prioritize the zero-tolerance policy on sexual exploitation and abuse. Furthermore, it is crucial that safe and accessible services are available for survivors including medical assistance and psychosocial support. The Federal Government of Somalia is drafting a Sexual Offenses Bill, which when enacted would act as legal framework to protect women, girls and children from these violations, particularly sexual violence.”
39.On 12 May 2015 the Secretary-General of the United Nations published his latest report on the implementation of the mandate of the United Nations Assistance Mission in Somalia (UNSOM), covering major developments occurring from 1 January to 30 April 2015. On the security developments, in particular in Mogadishu, the report contained, inter alia, the following:
“The security situation remained volatile with sporadic attacks and continued use of suicide bombers and improvised explosive devices by Al-Shabaab in Mogadishu and the regions. ...
In Mogadishu, Al-Shabaab attacks continued. Casualties included government officials, civilians and security personnel. ...”
40.On the issue of sexual and gender-based violence, the report gave the following account:
“Sexual violence continues to be reported in Somalia in 2015 at about the same rate as in 2014. According to UNHCR, in January and February 2015, over 200 cases of rape were reported, mainly in Banaadir Region, and incidents of sexual violence were reported in Bay and Juba Hoose regions. The main perpetrators were reported as unidentified armed men. There were also reports implicating the Somali national army and police force, Al-Shabaab, and some AMISOM contingents. The survivors are mostly women and girls who were displaced from their areas of origin, members of minority clans being at greatest risk.”

***

5.In March 2002, criminal proceedings were initiated against the applicant in absentia for being a member of the PKK (the Workers’ Party of Kurdistan), an illegal armed organisation. In the indictment, the public prosecutor relied on, among others, incriminating statements by certain accused persons who, in their statements to the police, had maintained that the applicant had been involved in a number of terrorist activities since 1991. ARed Notice was accordingly issued in respect of the applicant via Interpol.
6.On an unspecified date the applicant was arrested in Syria. After being detained in the Damascus Security Headquarters, allegedly for twenty-three days, the applicant was handed over to the Turkish authorities on 15August 2003. The medical report issued at the beginning of the applicant’s custody indicated no signs of ill-treatment.
7.On 18 August 2003 the applicant was questioned at the Erzurum Gendarmerie Command, in the absence of a lawyer. According to a form explaining arrested persons’ rights, which the applicant had signed, he had been reminded of the charges against him, his right to a lawyer and his right to remain silent. The applicant refused legal assistance, and gave a detailed statement regarding his activities in the illegal organisation. He admitted that he had been a member of the PKK since 1989, maintained that he had been involved in several armed attacks and gave details about such events. He also stated that he had been acting as the Paris representative of the illegal organisation since 1994 and signed his statement as such.
8.On the same day, the applicant was examined at the hospital; no signs of ill-treatment were noted on his body. Subsequently, he was questioned by the Erzurum Public Prosecutor. The applicant refused legal assistance and confirmed this in his statement given to the gendarmerie. In this connection, he admitted to being a member of the PKK and participating in several terrorist activities between 1990 and 1998 and also being the Paris representative of the illegal organisation since 1999. He further admitted that he had been involved in some of the armed attacks with which he had been charged. These events were indicated by their location, nature and dates, which were between 1990 and 1998.
The applicant denied his participation in five terrorist attacks which had happened in1992.
9.Later on the same day, the applicant was taken to the Erzurum State Security Court. Before the court he expressed the wish to be represented by a lawyer, and stated that he would make further submissions once a lawyer had been appointed. The court remanded the applicant in pre-trial detention and allowed him time for the assignment of a representative until the next hearing to be held on 7 October 2003.
10.On 20 August 2003 the Erzurum Public Prosecutor lodged an additional indictment, charging the applicant under Article 125 of the former Criminal Code with seeking to destroy the constitutional order and unity of the Turkish State and to remove part of the country from the State’s control.
11.On 9 December 2003, at the fifth court hearing, in the presence of his three lawyers, the applicant retracted the statements he had made to the gendarmerie and the public prosecutor, alleging that he had been under psychological pressure during his interrogation. He confessed to being a member of the PKK, but only in charge of the instruction of the members, and claimed that he had never taken part in any armed attack. He further submitted that he had been injured during an armed clash in November1992 and since then had been unable to use his right hand. In this connection he requested a medical report establishing that he was not able to hold a gun with his right hand. The prosecutor opposed this request by referring to the applicant’s healthy physical appearance.
12.During the hearing the applicant’s representatives contested the testimonies of other accused persons in different criminal proceedings indicating the applicant’s involvement or responsibilities as a team leader, by alleging that such testimonies had been given only in order to benefit from legal provisions allowing reduction of sentences. The cross‑examination of these witnesses was not requested at any stage of the proceedings.
Again on the same day, the applicant made written submissions to the court and stated that he had signed his statement in custody without reading it.
13.On 27 February 2004 the Forensic Medicine Department of Erzurum Atatürk University issued a report. It found loss of function in the applicant’s right hand and concluded that the applicant would have serious difficulty in using a firearm with one hand. However, it was further reported that if his right hand were supported by other parts of his body he would be able to use a firearm.
14.On 4May 2004, at the ninth hearing, the applicant objected to the medical report, requesting a new report from the Istanbul Forensic Institute. The trial court refused this request, holding that a new medical report would not have any effect on the merits of the case and therefore was not necessary. In this connection, the court held that the illegal acts admitted by the applicant, which had been committed prior to November 1992, thus before his hand was injured, would suffice for charges to be brought against the applicant under Article 125 of the former Criminal Code. It accordingly held that an additional expert report was not required.
15.At a hearing held on 24 August 2004, the applicant repeated his request for an additional medical report, and stated that during his interrogation by the gendarmes and the prosecutor he had felt fearful and anxious and had given his statements under pressure as a result of the conditions in which he had been detained in Syria. He repeated that the testimonies against him by persons accused of terrorism in different proceedings had been made only for collaborating and benefiting from lenient criminal provisions and could be dismissed once the medical report concerning his incapacity was established. The applicant’s lawyers also based their arguments on the establishment of a new report.
16.In the meantime, State Security Courts were abolished by Lawno.5190 of 16 June 2004. Accordingly, the case was transferred to the Erzurum Assize Court.
17.On 21 September 2004 the Erzurum Assize Court convicted the applicant as charged. In a reasoned judgment, the court found it established that the applicant had been involved in at least 15 armed attacks committed prior to 1992, among the 59 incidents of which he was accused. It enumerated the acts to which the applicant had confessed while being questioned by the gendarmes and subsequently by the prosecutor, such as setting fire to threeprimary schools, the robbery of several village guards and clashes with security forces. These acts also corresponded chronologically with each other and with the numerous official documents related to these events. The court further held that these acts would suffice to convict the applicant under Article 125 of the former Criminal Code and underlined that only after several hearings had he contested his initial statements, while choosing to accept his involvement in armed attacks in which terrorists had been killed and denying his implication in those in which members of the security forces had been killed. The court pointed out that the applicant’s argument could not be considered credible in view of the chronology of the events. The court further stated that throughout the criminal proceedings the applicant had consistently and proudly stated that he was a member of the illegal organisation to the point of making propaganda for the organisation, and he had shown no remorse which would indicate the likelihood that he would not repeat such crimes. Finally, it indicated that the applicant even refused the possibility of using Lawno.4959 for rehabilitation (certain paragraphs of Article 4 of the cited law foresee sentences varying between 12 and 19 years of imprisonment in replacement of an “aggravated life sentence”, according to the authenticity of information provided about the structure of a terrorist organisation or its activities) and accordingly sentenced him to “aggravated life imprisonment”.
18.On 7 January 2005 the Court of Cassation upheld the conviction.

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5.The applicant was born in 1970 and lives in Ukhta, the Komi Republic.
A.The applicant’s arrest and ensuing events
6.In April 2005 a jewellery shop and other premises in a commercial centre in the Sosnogorsk district of the Komi Republic were robbed; in the course of those events, a woman guard was attacked and suffered injuries. Investigator A., from the investigation unit of the Sosnogorsk police department, opened a criminal case into the robbery. On 15June 2005 the criminal proceedings were suspended for failure to establish the identity of a person to be charged.
7.On 25 August 2005 a certain R. reported to the police that her boyfriend B. had committed the robbery together with Zh. and the applicant. On the same day investigator A. reopened the criminal proceedings.
8.On 26 August 2005 the police arrested B., Zh. and the applicant. Investigator A. was present at the time of the arrest. The three men were taken to the Sosnogorsk police department of the Komi Republic (отдел внутренних дел г. Сосногорска Республики Коми).
9.Police officers, in particular Z., the head of the criminal police division of the Sosnogorsk police department, interviewed the applicant about his involvement in the robbery. According to the applicant, they demanded that he confess to the robbery and G., an operative officer in the criminal investigation unit of the police department, punched and kicked him on different parts of his body. Fearing new violence, the applicant confessed to having participated in the crime as requested, and signed a record of his “surrender and confession” (явка с повинной) that had been drawn up by operative officer G. at Z.’s request.
10.According to that record, on 26August 2005 in office no.12 of the Sosnogorsk police department police officer G. obtained from the applicant his confession to the crime, in accordance with Article 142 of the Code of Criminal Procedure of the Russian Federation (“CCrP”). In particular, the record stated that the applicant had assisted B. and Zh. by loading the property stolen from the shops into his car and transporting it; that he had confessed without any physical or psychological pressure being exerted on him; and that he had been informed of Article 51 of the Constitution. The record did not indicate the exact time when the confession was obtained and did not explain the meaning of Article 51 of the Constitution (concerning self-incrimination, see paragraphs 28, 47 and 49 below).
11.At Z.’s request, the applicant wrote in the police station visitors’ registration log that he had struck his own head against a wall, and that he had no complaints against the police officers.
12.At 2.57p.m. on the same day investigator A. drew up a record of the applicant’s arrest as a suspect in the case.
13.On the same day the applicant was placed in a temporary detention facility (IVS) at the Ukhta police department. According to the IVS records, on arrival he had bruises under his eyes, his lips were burst, his lower jaw was swollen on the left side, and he had bruises on his back and abrasions on his knees.
14.On 27 August 2005 the applicant was questioned as a suspect in the presence of a lawyer. He retracted the confession statement that he had given on the previous day, and explained that he had made the statement as a result of ill‑treatment by the police officers.
15.On 30 August 2005 a judge of the Sosnogorsk Town Court ordered that the applicant be detained on remand. In reply to the judge’s question about the origin of his facial injuries, the applicant stated that he had been beaten up by operative officers from the police department. On the same day the applicant’s legal-aid counsel, who was representing the applicant at the court hearing, lodged an application with the Sosnogorsk prosecutor in which he requested that an inquiry be conducted into the applicant’s complaint and that those responsible for his ill‑treatment be prosecuted.
16.On 31 August 2005 the applicant was placed in pre‑trial detention facility SIZO 11/2, where he was examined by a doctor and found to have bruising beneath his eyes, a swollen nasal bridge, two-centimetre abrasions on the right side of his forehead, hematoma on the left side of his lower jaw and abrasions on the small of his back and right knee (as recorded in a certificate of that detention facility dated 29 September 2005).
17.On 5 September 2005 the applicant’s counsel requested investigatorA., who was in charge of the robbery case, to order a forensic medical examination (судебно‑медицинская экспертиза) of the applicant. The investigator rejected the request as irrelevant to the robbery case.
B.Criminal proceedings into the applicant’s alleged ill-treatment
1.Refusal to institute criminal proceedings
18.Following the application by the applicant’s counsel (see paragraph15 above), investigator V. of the Sosnogorsk prosecutor’s office carried out a pre‑investigation inquiry into the alleged ill‑treatment of the applicant.
19.On 5 September 2005 the investigator ordered a forensic medical examination of the applicant; this was carried out by the Ukhta Forensic Medical Bureau on 7 September 2005. The expert’s report stated that the applicant had the following injuries: bruises measuring up to 1to3.5centimetres on the lower eyelids of both eyes, two abrasions measuring 4 to 0.6 and 1.5 to 0.2 centimetres on his back; and an abrasion measuring 0.6 to 0.5 centimetres on his right knee. The injuries could have been caused by impacts from blunt hard objects with a limited contact surface, in the period 8-12 days before the examination. They could not have been caused by a single impact as a result of a fall against a flat surface.
20.The investigator received “explanations” (объяснения) from investigator A. (responsible for the robbery case) and from the police officers who had taken the applicant to the police station and interviewed him about his involvement in the robbery. In particular, police officer G. stated that in the course of a “conversation” (беседа) which he had had with the applicant, the latter had suddenly jumped to his feet and hit his head against the wall, as a result of which his nose had started bleeding. Police officer K. also stated that he had seen the applicant hitting his own head against the wall. Police officer Z. explained that in the course of his “conversation” with the applicant the latter had recounted the details of the robbery committed by him; that the applicant had explained that he had hit his own head against the wall and that he had no complaints against police officers; and that the applicant had entered this explanation in the police station visitors’ registration log.
21.On 9 September 2005 investigator V. held that the applicant’s allegations of ill-treatment, in particular the claims that he had been struck “in his kidneys” and pushed so that his face had hit the wall and he had fainted, had not been based on real facts and that no criminal case was to be opened against police officers G., Z., Ku., B. and M., pursuant to Article24 § 1 (2) of the CCrP (lack of the elements of a crime in the impugned acts).
2.Institution of criminal proceedings
22.On 5 December 2005 the Sosnogorsk prosecutor set aside the investigator’s decision of 9 September 2005 as unlawful and unfounded, on the ground that the circumstances in which the applicant had received his injuries had not been reliably established. He referred to the description of the applicant’s injuries on his arrival in the IVS (see paragraph 13 above) and the SIZO (see paragraph 16 above) and his examination by the forensic medical expert (see paragraph 19 above). He stated that the expert’s suggestions as to how the injuries had been sustained made it doubtful that the applicant could have received his injuries as a result of a one-off impact by his face against a wall. The prosecutor further noted that the applicant had explained that he would most likely be able to identify the police officer who had beaten him at the police station. However, it was not possible to carry out an identification parade and a confrontation in a pre‑investigation inquiry. The prosecutor considered that it could not be ruled out that, after his arrest, the applicant had been subjected to acts of violence in order to make him confess to the crime. The applicant’s version of his ill‑treatment by the police officers could only be verified by way of a full investigation. In order to do so it was necessary to open a criminal case, given that there was sufficient information disclosing elements of a crime under Article 286 §3(a) of the Criminal Code (official misconduct with the use of violence). The prosecutor ordered that a criminal case be opened.
3.Termination of criminal proceedings
23.In the course of the ensuing investigation the police officers who had arrested the applicant were questioned as witnesses. The applicant was questioned as a victim. An additional forensic medical expert’s report was obtained on 15February 2006. It reiterated the conclusions in the previous report (see paragraph 19 above).
24.On 4 March 2006 an investigator from the Sosnogorsk prosecutor’s office terminated the proceedings for lack of the elements of a crime in the acts of the police officers, pursuant to Article 24 § 1 (2) of the CCrP.
25.On 30 June 2006 a deputy prosecutor of the Komi Republic set aside the investigator’s decision and reopened the criminal proceedings. Three further decisions to terminate the proceedings were subsequently taken and then set aside as unfounded and based on an incomplete investigation. In one of the decisions, dated 24 November 2006, the deputy prosecutor ordered that the inconsistencies between the statements of the police officers and that of the applicant be eliminated and that identification parades and confrontations be held, if necessary. When questioned again as a victim, the applicant stated, inter alia, that he remembered that police officer G. had hit his head against the wall and started punching him “in the kidneys” (as stated in a decision to terminate the proceedings of 4January 2007).
26.The most recent decision to terminate the proceedings for lack of the elements of a crime under Article 286 § 3 (a) of the Criminal Code in the acts of police officers G., Ku. and B. was taken on 1April 2007. The investigator concluded that the applicant’s allegations had been refuted by police officers G. and K., who stated that the applicant had hit his own head against the wall; by the record of his surrender and confession and the forensic medical report of 15February 2006, in that the applicant’s injuries could have been sustained as a result of impacts from blunt hard objects with a limited contact surface. It does not appear from the decision that investigative acts such as identification parades and confrontations with the applicant’s participation were carried out.
C.The applicant’s trial
1.First instance
27.At a preliminary hearing held by the Sosnogorsk Town Court on 13April 2006 the applicant’s counsel requested that the record of the applicant’s surrender and confession of 26 August 2005, on which the prosecution relied, be excluded from evidence pursuant to Article75§2(1) of the CCrP, as it had been obtained in the absence of a lawyer. The Town Court dismissed the request.
28.At his trial, the applicant pleaded his innocence and submitted that he had written his confession statement on the instructions of police officer Z. as a result of physical and psychological coercion by the police officers; in particular, police officer G. had beaten him “in the kidneys and liver” and his head had been struck against the wall so that he had fainted. He had not been informed of his right under Article51 of the Constitution not to give self‑incriminating statements, as that part of the record had been added by police officers at a later stage. The applicant asserted, in particular, that on the night of the robbery he had arrived at the commercial centre, by car and at B.’s request, and had towed B.’s car until its engine started, without knowing anything about the robbery. Two months later B. had offered him gold jewellery, allegedly belonging to B.’s acquaintance, for sale. The applicant had returned some of the jewellery to B. and kept the rest for himself. He had understood from police officer Z. that the gold which he had received from B. had been stolen from the Sosnogorsk district commercial centre. He had therefore told Z. about the gold he had kept at his home.
29.The applicant’s co-defendant Zh. pleaded his innocence, asserting that he had given self-incriminating statements as a result of his ill‑treatment by police officers, in particular by G., who had allegedly beaten him up, kicked him and burned his fingers with a cigarette; he also stated that after his arrest on 26 August 2005 he had seen the applicant, on his knees and bleeding, at the police station.
30.The applicant’s co-defendant B. admitted before the trial court that he had committed the robbery together with a certain Ch., and stated that the applicant and Zh. were innocent. In particular, B. stated that on the night of the robbery he had called the applicant, asking him for help because his car had broken down; the applicant had arrived by car as requested, towed B.’s car (with the stolen property inside) until the engine started and then left without knowing anything about the robbery. Two or three months later, since he was experiencing difficulties with storing and selling the stolen property, B. had asked the applicant to look after the gold jewellery and to buy some of it if he wished. The applicant had agreed. B. also stated that he had not given any self‑incriminating statements during the preliminary investigation, in spite of the physical violence used against him by the police officers, in particular by G.
31.The applicant’s wife stated, among other things, that on the day of his arrest the applicant had been taken back to their home by the police officers in order for their flat to be searched. He had had an abrasion on his head, his lip was burst and his nose was swollen.
32.Police officer Z., examined by the trial court as a witness, stated that he and other police officers had arrested the applicant and his two co‑defendants after B.’s girlfriend had reported their involvement in the robbery. At the police station he had talked to the applicant about the robbery several times. The applicant had confessed, named his accomplices and expressed his readiness to surrender the stolen gold. Z. had suggested that the applicant write a statement of his surrender and confession. The applicant had agreed and Z. had asked his subordinates to prepare the necessary document. No violence or threats had been used against the applicant.
33.Police officer G. stated that after the applicant’s arrest he had taken the applicant to the police station. The applicant had been taken to Z.’s office and later Z. had requested G. to obtain from the applicant a statement of his surrender and confession. The applicant had written down his statement and signed it. G. had not used any violence against the applicant. G. had come out of his office to register the statement with an officer on duty, while the applicant had stayed with police officer K. On returning to his office, G. had seen the applicant suddenly jump to his feet and strike his head against the wall. The applicant had fallen to his knees and started bleeding, “probably from his nose”. K. had given him a towel and asked whether he needed a doctor. The applicant had answered negatively. Z. had then taken the applicant to his office again.
34.Police officer K. stated that the applicant had jumped to his feet and struck his forehead against the wall once and then had fallen to his knees. K. had wanted to call a doctor but the applicant had refused. He had given the applicant a towel because the applicant was bleeding. K. denied any violent behaviour on the part of the police officers.
35.Investigator A. stated that she had investigated the robbery case and had given instructions (отдельные поручения) to the police officers in the criminal investigation unit of the Sosnogorsk police department. She had not instructed them to question the applicant or to collect a statement of his surrender and confession. Police officer G. had obtained the applicant’s statement of his surrender and confession as a result of the applicant’s free will. When questioning the applicant as a suspect (on 27August 2005, see paragraph 14 above) she had noticed his injuries and asked if he had needed medical assistance, but he had refused.
36.The applicant’s counsel maintained before the trial court that the applicant’s statement of his surrender and confession, which he had retracted on the following day when questioned for the first time in the presence of a lawyer, should be declared inadmissible evidence. She noted that investigator A. had drawn up the record of the applicant’s arrest as a suspect on 26August 2005. However, for unknown reasons she had not questioned him as a suspect on the same day. Instead, the police officers had obtained the statement of his surrender and confession on their own initiative, without any such instruction from the investigator. They had done so using psychological and physical coercion, as confirmed, inter alia, by the statements of Zh. and the applicant’s wife (see paragraphs29 and31above), the certificate from detention facility IZ-11/2 (see paragraph16 above) and the forensic medical expert report of 7September 2005 (see paragraph 19 above). Furthermore, his confession statement had been obtained in the absence of a lawyer. Under Article 142 § 1 of the CCrP, a statement of one’s surrender and confession was meant to be voluntary. Therefore, if obtained from a person arrested on suspicion of having committed a crime, any such statement should be subjected to particular scrutiny. Its voluntary nature was ensured through procedural guarantees under Articles 46 (“The suspect”) and 51 (“Compulsory participation of counsel for the defence”) of the CCrP. Otherwise, such a confession statement should be declared inadmissible evidence in accordance with Article 75 § 2 (1) of the CCrP.
37.In its judgment of 6 December 2007 the Town Court held that the applicant’s allegation that the statement of his surrender and confession had been given under duress was unsubstantiated. It relied on the statements by the police officers, denying any wrongdoing on their part (see paragraphs32-34 above), the investigative authority’s most recent decision to terminate the criminal proceedings against them which, as the Town Court noted, had been taken in accordance with the Code of Criminal Procedure and had not been revoked or quashed (see paragraph 26 above), and a report from an internal police inquiry which had dismissed the applicant’s allegations of ill‑treatment.
38.The Town Court held that it had critically assessed the applicant’s statements at the trial and concluded that they represented the position of the defence, in that they were aimed at evading criminal responsibility. Those submissions had been refuted by his and Zh.’s statements of surrender and confession, as well as by the statements by the following witnesses: B.’s girlfriend, who had provided hearsay evidence about the applicant’s involvement in the robbery; five police officers who had participated in the applicant’s and his co-defendants’ arrest or the operative follow-up, in particular Z., G., and K.; investigator A., in charge of the robbery case; Z.A., who had denied seeing the applicant in the porch of his building on the night of the robbery (where, according to her former boyfriend who had been heard by the court as a witness for the defence, she had spent time that evening), and her mother Z.E., who had stated that Z.A. had not gone out after 9p.m.; and Kh., who had been an attesting witness during the search at the applicant’s home during which certain items were seized.
39.The Town Court held that it had based its judgment on the statements of surrender and confession given by the applicant and Zh., along with statements by the victims, the prosecution witnesses and other evidence. It found that on 12 April 2005 B., Zh. and the applicant had entered into a conspiracy to commit theft from the shops in the commercial centre. According to the roles agreed on between them, the applicant had remained on guard in his car outside the commercial centre, while B. and Zh. had entered while the centre was still open and had hidden there. During the night they had attacked a woman guard and tied her up. Then they had forced locks and stolen property, in particular jewellery and mobile phones. The applicant had helped them to carry the stolen property out and load it into his car, in which they all had left.
40.The Town Court convicted the applicant of high-value theft with unlawful entry, committed in conspiracy by a group of persons, and sentenced him to six years’ imprisonment. In sentencing the applicant the Town Court took into account information about his personality, in particular that he had received positive character references from his places of residence and employment, and that he had no criminal or administrative offences record. It considered his statement of surrender and confession, the fact that he had two minor children and that he had voluntarily surrendered the stolen gold jewellery, as well as his health condition, as mitigating circumstances. B. and Zh. were convicted of robbery with the use of violence and sentenced to nine years’ and eight and a half years’ imprisonment respectively. The Town Court granted the victims’ civil actions and ordered the applicant and his co-defendants to pay 396,800Russian roubles (RUB) jointly in respect of pecuniary damage. The victims’ remaining claims were to be examined in separate civil proceedings.
2.Appeal
41.The applicant and his counsel appealed against the judgment. His counsel argued, inter alia, that the trial court had based its judgment on inadmissible evidence, in particular the statement of the applicant’s surrender and confession of 26 August 2005, which had been given by him as a result of ill-treatment by the police officers and in the absence of a lawyer. She reiterated the arguments put forward before the trial court (see paragraph36 above).
42.On 6 June 2008 the Supreme Court of the Komi Republic examined the case on appeal. It endorsed in full the trial court’s decision concerning the admissibility of the statement of the applicant’s surrender and confession. It held, in particular, that the statement had been obtained in accordance with the Code of Criminal Procedure. Under Article 142§1 of that Code, a statement of surrender and confession was a voluntary statement by a person about a crime committed by him. It had not therefore been necessary to have an instruction from an investigator in order to obtain it. The law did not provide for any additional requirements to such a statement, save that the individual concerned was to be warned of his or her criminal responsibility for deliberately giving false information. Therefore, the absence of a lawyer had not rendered the statement unlawful and had not violated the applicant’s right to defend himself. He had been informed of his right under Article 51 of the Constitution, as confirmed by his signature on the record of his surrender and confession.
43.The Supreme Court of the Komi Republic further noted that the trial court had examined as witnesses all of the police officers who had seen the applicant at the police station with a view to verifying their implication in the alleged crime. They had all denied any wrongdoing. It had been established that, having written his confession, the applicant had suddenly jumped to his feet and hit his head against a wall. The Supreme Court also referred to the most recent decision by the investigative authority, dated 1April 2007, by which the criminal proceedings against the police officers had been terminated (see paragraph 26 above), and to the results of the internal police inquiry dismissing the applicant’s allegations of ill‑treatment (see paragraph 37 above). It upheld the judgment.
3.Supervisory review
44.The applicant’s counsel unsuccessfully raised the issue of the admissibility of the record of the applicant’s surrender and confession in her requests for supervisory review of the case before the Supreme Court of the Komi Republic and the Supreme Court of the Russian Federation. The former court rejected it for the same reasons as before (decision of a judge of the Supreme Court of the Komi Republic of 5September 2008 dismissing the request, as endorsed by the President of that court on 27October 2008).
45.The Supreme Court of the Russian Federation similarly stated that the applicant’s argument – that the statement of his surrender and confession had been obtained in the absence of a lawyer – lacked a basis in domestic law, and that the allegation of the applicant’s ill‑treatment at the hands of the police was unsubstantiated, as shown through its examination by the trial court which had heard the police officers, particularly Z., G. andB. (decision of a judge of the Supreme Court of the Russian Federation of 22 December 2008 dismissing the request for supervisory review, as endorsed by a Deputy President of the Supreme Court on 10March 2009).

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6.The applicant was born in 1985 and lived in Sarov, in the Nizhniy Novgorod region.
A.The applicant’s alleged ill-treatment in police custody
7.An all-terrain vehicle and a car were stolen from private garages in Sarov in February and April 2008, respectively. An investigation unit at the Sarov police department (управление внутренних дел г. Саров, “the Sarov UVD”) instituted criminal proceedings into the thefts. The police had information about the applicant’s involvement in the thefts.
8.At about 10.40 a.m. on 5 May 2008, V., an operative agent of the Sarov UVD, contacted the applicant by telephone and requested him to come to office no.320 at the Sarov police station at 2 p.m. for questioning. At 2p.m. on the same day the applicant arrived at the police station, as requested. He was accompanied by K., F., Zh. and P., who stayed outside awaiting his return. A police officer on duty registered the applicant’s arrival at the police station at 2 p.m.
9.The applicant provided the following account of events at the police station. In office no. 320 police officer V. and the chief of the criminal investigation unit of the Sarov UVD, B., demanded that he confess to the thefts. Following his refusal, he was taken to a nearby office, shackled and beaten up by B., who kicked and punched him in the head, torso and extremities and jumped on his head, while V. was shouting threats at the applicant.Afterwards the applicant was kept in different offices of the criminal investigation unit. He was given no food or drink. He felt unwell and vomited blood. No medical help was provided to him despite his requests.
10.On 6May 2008 the applicant’s wife lodged an application with the Sarov town prosecutor and the head of the Sarov town police department, complaining that the applicant was being held at the police station unlawfully, that he had a serious stomach ulcer condition and that a lack of food could cause bleeding. A lawyer appointed by the applicant’s family was unable to locate him at the police station.
11.According to the police records, at midday on 6May 2008 investigatorK. of the Sarov UVD questioned the applicant as a witness in the theft case.
12.According to documents prepared by investigator K. and police officer V., at an unspecified time on the same day the investigator requested that the applicant, who was suspected of having committed the theft, be brought to the police station for investigative measures. Police officerV.reported that he had found the applicant in the street at 8p.m. and taken him to the police station at 8.15 p.m. on 6 May 2008.
13.At 8.20 p.m. on 6 May 2008 the investigator drew up a record of the applicant’s arrest as a suspect in the criminal proceedings concerning the theft of the all-terrain vehicle.
14.At 8.55p.m. the applicant was placed in a temporary detention facility at the Sarov UVD (“IVS”). The applicant’s cellmate C. saw injuries on the applicant’s head and learned from him that he had been beaten up by police officers in order to force him to confess to a crime.
15.At 9.15 p.m. an ambulance was called. An ambulance doctor diagnosed the applicant with a stomach ulcer. According to the IVS records, the applicant had abrasions on his arms.
16.On 7 May 2008 the applicant’s lawyer visited the applicant in the IVS and photographed the injuries on his body. According to the applicant, he had bumps and bruises on his head and neck and was unable to hear well, and he also had bruises on his torso and extremities.
17.On 8 May 2008 the applicant was brought before a judge, who ordered that he be remanded in custody.
18.The applicant and a number of other persons were charged with the theft of the all‑terrain vehicle and the car.
B.Inquiry into the applicant’s alleged ill-treatment
1.Investigative Committee’s refusal to open criminal proceedings
19.On 7 May 2008 the applicant lodged a complaint with the Sarov town prosecutor, alleging that he had been unlawfully deprived of his liberty on 5 and 6 May 2008 and ill-treated in police custody. He claimed that he could identify the police officers responsible for his ill-treatment. Similar complaints were also lodged by the applicant’s mother, his wife and his lawyer.
20.On 8 May 2008 the prosecutor’s office forwarded the complaints to the Sarov Investigation Department of the Investigative Committee at the Nizhniy Novgorod regional prosecutor’s office (the “Sarov Investigative Committee”). On the same day the applicant’s lawyer lodged a similar application with the Sarov Investigative Committee.
21.On 12 May 2008 the applicant was examined by a forensic medical expert. According to the expert’s report (акт судебно-медицинского освидетельствования) no. 572, the applicant had a bruise on his back measuring 3 to 4 cm, an abrasion measuring 4 to 10 cm on his left forearm and an endermic haemorrhage on his chest. The expert concluded that the injuries could have been inflicted by blunt objects on 5-6 May 2008.
22.On 14 May 2008 an investigator of the Sarov Investigative Committee received explanations by the applicant, who maintained his complaints. The applicant stated, in particular, that N.P., who had been held in the same office with his hands shackled, had witnessed the applicant’s ill‑treatment by police officer B. on 5 May 2008. According to explanations by police officers B. and V., in the course of operative-search activities the police had obtained information about the applicant’s involvement in the theft of the all-terrain vehicle. V. had called the applicant on 5May 2008 and requested him to come to the police station for questioning by the investigator. They denied the applicant’s allegations about his unlawful detention and ill-treatment, stating that he had been brought to the police station on 6 May 2008 at the investigator’s request (see paragraph12 above). V. also stated that in the evening of 6 May 2008 N.P., another suspect in the thefts case, had been brought to the police station at the same time as the applicant, and that N.P. and the applicant had been held separately. N.P., whose explanations were also received by the investigator, stated that on the evening of 6 May 2008 he had gone to the police station for questioning and that he had not seen the applicant there.
23.On 22 May 2008 the investigator of the Sarov Investigative Committee ordered that no criminal proceedings be instituted in respect of the applicant’s complaints of unlawful detention and ill-treatment in view of the lack of constituent elements of a crime in the acts of police officers B. and V. and investigator K., pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”). He stated that there were no reasons to believe that the injuries recorded by the forensic medical expert had been sustained while the applicant had been held at the police station, as this had been denied by the police officers and N.P.
24.On 22July 2008 that decision was revoked by the Sarov Investigative Committee as the inquiry on which it was based was considered incomplete. The following day, a new decision not to open a criminal case was taken and on 6 August it was revoked for the same reason. Among those whose explanations were received by the investigator in the course of an additional inquiry were K. and F. (see paragraph 8 above). They stated that on 5 May 2008 they had gone to the police station with the applicant, Zh. and P. in the applicant’s car, that they had seen the applicant, who had had no injuries at that time, enter the police station at 2 p.m. and had waited for him outside. At 3 or 4 p.m. on 5 May 2008, while waiting for the applicant, who had still not returned, F. had seen N.P. enter the police station at the request of police officer V. and another person.
25.A new decision not to open a criminal case was taken on 6October 2008. It was revoked on 20 October 2008 and a similar decision was taken on 6November 2008. The applicant, whose explanations were again sought by the investigator, stated that his ill-treatment by police officer B. on 5May 2008 had lasted for about an hour, between 4.30 p.m. and 5.30 p.m. On 25May 2009 the higher investigative committee at the Nizhniy Novgorod regional prosecutor’s office set aside the decision of 6November 2008 on the grounds that it was based on an incomplete inquiry.
26.The most recent decision not to open a criminal case on the grounds that the constituent elements of a crime in the acts of police officers B. and V. and investigator K. were missing was taken on 10June 2009 pursuant to Article 24 § 1 (2) of the CCrP. The same reasoning was given as in the initial decision of 22May 2008 and in the decisions which had been taken in the meantime. It was mainly based on the denial by the police officers and investigator K. that the applicant had been ill-treated and detained before 8.20 p.m. on 6 May 2008.
2.Domestic courts’ review of the refusal to institute criminal proceedings under Article 125 of the Code of Criminal Procedure
27.The applicant appealed against the investigator’s decision of 22May 2008 to the Sarov Town Court under Article 125 of the CCrP. On 1August 2008 the Town Court ruled that the application should not be examined, and terminated the proceedings on the grounds that on 22 July 2008 the Sarov Investigative Committee had revoked the investigator’s decision.
28.Court appeals lodged by the applicant against the investigator’s subsequent decisions of 23 July and 6 October 2008 were not examined for the same reason (the Town Court’s decisions of 7 August and 20 October 2008).
29.On 6 March 2009 the Town Court examined the applicant’s complaint seeking to have the failure by the head of the Sarov Investigative Committee to carry out an inquiry into an application lodged by the applicant’s counsel on 22 January 2009 declared unlawful. It was alleged in that application that investigator K., police officer V. and others had forged the documents concerning the time at which the applicant had been taken into custody. The Town Court granted the applicant’s request and declared the inactivity on the part of the head of the Sarov Investigative Committee unlawful.
30.On 3 August 2009 the Sarov Town Court dismissed the applicant’s appeal against the Sarov Investigative Committee’s decision of 10 June 2009 (see paragraph 26 above), holding that the decision was lawful and well-grounded. On 15September 2009 the Nizhniy Novgorod Regional Court dismissed the applicant’s appeal and fully endorsed the first‑instance court’s decision.

***

5.The applicant was born in 1971 and lives in Krasnoyarsk.
A.Arrest and detention
6.On 13 August 2012 the applicant was arrested on suspicion of having attempted to sell a large quantity of heroin. Two days later the Sverdlovskiy District Court of Krasnoyarsk authorised his placement in custody for two months. The District Court reasoned that the applicant was being charged with a particularly serious criminal offence, which he had allegedly committed not long after having served a prison sentence after a previous conviction for a similar crime. The court also took into account the lack of a stable income as the applicant worked as an estate agent. These circumstances were interpreted by the District Court as evidence of the likelihood that the applicant might abscond, re-offend or pervert the course of justice. The applicant’s arguments that he was employed, that he was the breadwinner for a child who was still a minor and that he had a permanent place of residence did not convince the court. Nor did the court find that the applicant’s poor health warranted his release, given that he was able to receive professional medical assistance in detention.
7.The applicant did not appeal against the detention order.
8.On 15August 2012, the applicant was admitted to detention facility no. IZ-24/1.
9.On 12 October 2012 the Sverdlovskiy District Court accepted the investigator’s request for an extension of the applicant’s detention until 12December 2012. The court again found that, given his criminal history and the gravity of the charges, the applicant was likely to abscond, re-offend or tamper with witnesses. The District Court did not find any evidence indicating that the applicant was not fit to remain in custody or was not receiving the necessary medical assistance in detention.
10.The extension order of 12 October 2012 was upheld on appeal by the Krasnoyarsk Regional Court, which fully endorsed the District Court’s arguments. The Regional Court also noted that the applicant and his lawyer failed to submit any evidence in support of their arguments alleging a lack of medical assistance in detention.
11.Another extension of the applicant’s detention until 12February 2013 followed on 11 December 2012, when the Sverdlovskiy District Court found that the circumstances warranting his arrest persisted. The court once again dismissed the argument concerning the applicant’s poor health and lack of proper medical assistance in detention.
12.On 10 January 2013 the Krasnoyarsk Regional Court upheld the decision on appeal, having been fully convinced by the District Court’s reasoning. As to the applicant’s argument about his poor state of health, the Regional Court reasoned:
“Despite the accused’s argument, [the court] did not establish any circumstances related to his health or any other personal grounds precluding his detention in the conditions consistent with a temporary detention facility. Amongst the case-file materials there is no medical report showing that [the applicant] was suffering from a serious illness included in the List of Serious Illnesses precluding Detention of Suspects and Accused Persons, as adopted by decree of the Government of the Russian Federation on 14 January 2011. The [District Court] did not examine any such report when it issued its decision [of 11December 2012].
Moreover, [the applicant’s] argument that he was suffering from a serious life-threatening illness was not supported by any evidence contained in the file, even though the defence would have had ample opportunity to provide such evidence if it had existed.
If a medical commission issues a medical report examining the necessity for [the applicant’s] continued detention, an investigator will immediately examine that issue.”
13.On 21 January 2013 the applicant was served with the bill of indictment, having been charged with the sale, on a number of occasions, of a particularly large quantity of drugs within an organised group for the purpose of subsequent resale.
14.On 5 February 2013 the Leninskiy District Court of Krasnoyarsk extended the applicant’s detention until 11 May 2013, finding that the circumstances which had warranted the applicant’s arrest had not changed. The Court once again found that, given his criminal history and the gravity of the current charges, the applicant was likely to abscond, re-offend or tamper with witnesses.
15.The applicant lodged an appeal on points of law, but this was dismissed on 2 July 2013.
16.On 8 May 2013, the detention was further extended by the Leninskiy District Court until 11 July 2013. The court once again dismissed the argument concerning the applicant’s poor health and relied on the gravity of the charges and the applicant’s criminal record to support the finding of a risk of the applicant’s re-offending.
17.On 10 July 2013 the Leninskiy District Court extended the detention until 13 August 2013. The reasoning employed by the court was similar to that of the previous detention orders.
18.On 7 August 2013 the applicant was released against an undertaking not to leave his town, having regard to the fact that the investigation was closed, the applicant completed the reading of the file and the case was remitted to the trial court. On 24 March 2014 he was convicted of four counts of drug trafficking committed with an organised group and involving a particularly large amount of drugs.
B.Applicant’s state of health
19.In 2001 the applicant was diagnosed with an HIV infection.
20.A medical certificate issued on 18October 2012 by a physician from detention facility no. IZ-24/1 where the applicant was detained indicated that the applicant was suffering from HIV infection in stage 4A, penile cancer of the first degree and chronic hepatitis C (HCV).
21.The applicant argued that upon his arrest on 13August2012 antiretroviral drugs had been taken from him. The Government disputed that allegation.
22.The Government provided the Court with handwritten and typed versions of the applicant’s medical records, setting out the applicant’s medical history and, in particular, the development of his HIV infection. On 16August 2012, that is on the day following his admission to detention facility no. IZ-24/1, the applicant had been examined by a medical panel which had found him HIV-positive. On the following day the applicant had been prescribed Combivir, a fixed dose combination of the drugs lamivudine (Epivir) and zidovudine (Retrovir), and Kaletra, a fixed dose combination of lopinavir and ritonavir. The handwritten medical records show that during the entire period of his detention the applicant regularly received those drugs. He was also prescribed a special diet.
23.During his detention the applicant had been monitored regularly in relation to his HIV infection. The CD4 cell count tests carried out on 24October 2012, 28 March and 2 July 2013 had revealed a slight, but steady increase of CD4 cells to 579, 618, and 644 cells/mm3, respectively.
24.On an unspecified date the applicant informed the medical personnel of the detention facility that in 2010 he had been diagnosed with penile cancer. On 25 April 2013 he was examined by the head of the medical department with regard to this complaint. The doctor did not detect any visible symptoms. However, the applicant was referred for examination by an oncologist and an infectious disease specialist at regional tuberculosis hospital no.1.
25.On 17 May 2013 the applicant was seen by the head of the oncological department at regional tuberculosis hospital no.1. The doctor suggested a biopsy, which the applicant refused to undergo.
26.The case file contains no information as to whether the applicant received any treatment in relation to his hepatitis C.
C.Complaints to the authorities
27.On 16 November 2012 the applicant complained to the Regional Prosecutor that antiretroviral drugs had been taken from him upon his arrest on 13August 2012.
28.The applicant also sent a written request to the Investigating Department of the Krasnoyarsk Region seeking a forensic medical expert examination to determine whether he was suffering from a condition which, under Russian penitentiary rules, would preclude his detention on remand.
29.On 6 December 2012 a deputy prosecutor of the Sverdlovsk District prosecutor’s office sent a letter to the applicant informing him that the courts had already examined his arguments pertaining to his state of health while determining the issue of his further detention on remand. The deputy prosecutor pointed out that the courts had not established that the applicant was suffering from any serious illness precluding his detention on remand.
30.On 28 December 2012 the deputy prosecutor sent another letter to the applicant. The content of the letter was similar to that of the previous one.
A.Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”)
44.The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read:
“Health care
39.Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1Every prison shall have the services of at least one qualified general medical practitioner.
41.2Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.
...
41.4Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary.
...
42.3When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:
..;
b.diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;
...
43.1The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.
...
Health care provision
46.1Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison.
46.2Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
B.3rd General Report of the European Committee for the Prevention of Torture (“the CPT Report”)
45.The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4June 1993). The following are extracts from the Report:
“33.When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
34.While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...
35.A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36.The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital ...
38.A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). ...
39.A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40.The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service. ...”
С.Guidelines issued by the World Health Organization
46.The Guidelines for Antiretroviral therapy for HIV infection in adults and adolescents issued by the World Health Organization (WHO) within the HIV/AIDS programme, following revision in 2010, recommended the commencement of antiretroviral treatment in all patients with HIV of WHO clinical stage 3 or 4, irrespective of the CD4 count. This recommendation remained unchanged following the revision of the Guidelines in June 2013.
47.The Guidelines revised in 2010 also contained a note on coinfection with HIV and hepatitis C, which read:
“Hepatitis C (HCV) coinfection is significantly associated with increased risk of death and advanced liver disease in HIV-positive individuals. HIV infection accelerates HCV-related disease progression and mortality but the reciprocal effect of HCV on the rate of HIV disease progression remains difficult to quantify because of the heterogeneity of study results. A recent meta-analysis showed an increase in the overall risk of mortality but did not demonstrate an increased risk of AIDS-defining events among coinfected patients.
A major observational cohort study on the level of toxicities of specific ART regimens used for HIV/HCV coinfection did not find significant differences. However, the systematic review on drug-drug interactions prepared for these guidelines found important pharmacological interactions between ribavirin and ABC, ATV, AZT, d4T and ddI that can increase the toxicity risk if these drugs are used concomitantly.
Many studies also suggest that the sustained viral response rates of HCV therapy in HIV coinfected individuals are significantly lower than in HCV-monoinfected patient but others have achieved higher rates in this population.
Considering the significant level of uncertainty on these topics and the importance of hepatitis C management in the context of HIV coinfection (an important gap highlighted by the guidelines panel group, particularly the representatives from the people living with HIV community), WHO is planning to revise the recommendations for the prevention and treatment of major HIV-related opportunistic infections and comorbidities, including hepatitis C. Furthermore, it is expected that the 2010 World Health Assembly will establish global policy recommendations for the management of viral hepatitis, which will increase support for an integrated approach to the prevention, treatment and care of HIV/HCV coinfection.
Meanwhile, the initiation of ART in HIV/HCV coinfected people should follow the same principles and recommendations as for its initiation in HIV-monoinfected individuals. However, patients should be closely monitored because of the increased risk of drug toxicities and drug interactions between some ARVs and anti-HCV drugs.”
D.Guidelines on Penile Cancer issued by the European Association of Urology
48.The Guidelines on Penile Cancer issued by the European Association of Urology, the leading authority within Europe on urological practice, research and education, read, insofar as relevant:
“6.2.1 Penile biopsy
There is no need for biopsy if:
•there is no doubt about the diagnosis and/or
•treatment of the lymph nodes is postponed after treatment of the primary tumour and/or after histological examination of the sentinel node(s).
There is a need for histological confirmation if:
•there is doubt about the exact nature of the lesion (e.g. metastasis or melanoma) and/or
•treatment of the lymph nodes is based on preoperative histological information (risk-adapted strategy).
In these cases an adequate biopsy is advised.”

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6.The applicant was born in 1961 and lives in the town of Artyom, in the Primorye Region.
A.The applicant’s background prior to his criminal prosecution
7.The applicant is a Kyrgyz national of Uzbek ethnic origin. He originally lived in the town of Osh in Kyrgyzstan.
8.In June 2010, which was a time of mass disorders and interethnic clashes in the region, the applicant had been the head of the territorial board of a municipal authority in which most residents were ethnic Uzbeks. He was, according to him, considered as a leader of the local Uzbek community.
9.After the clashes, the applicant had repeatedly been invited by the Kyrgyz investigative bodies for questioning as a witness.
10.In June 2011 the applicant learned that criminal proceedings had been opened against him (see paragraph 12 below). The applicant submits that law-enforcement officers started to extort money from him, threatening him with imprisonment. Due to this he moved to a different city in Kyrgyzstan, to his sister’s home, where he stayed for several months.
11.Afterwards, in March 2012, the applicant left Kyrgyzstan for Russia. He settled in the Primorye Region, and after obtaining a work permit, worked as a sports instructor.
B.Criminal proceedings against the applicant in Kyrgyzstan and the ensuing extradition proceedings in Russia
12.On 16 June 2011 the Kyrgyz authorities charged the applicant with the commission of violent crimes in June 2010 (attempted murder, participation in mass disorders and unlawful firearms trafficking) and ordered his arrest. It appears that when the authorities eventually tried to execute the arrest order, the applicant had left the country (see paragraphs10 and 11 above). The applicant was therefore put on the international wanted list.
13.On 14 March 2013 the applicant was arrested in Russia and detained in custody pending extradition
14.On 5 April 2013 the Kyrgyz authorities lodged an extradition request with the Prosecutor General of Russia, asking that the applicant be extradited to Kyrgyzstan for prosecution and trial.
15.On 16 September 2013 the Russian Prosecutor General’s Office granted the extradition request and ordered the applicant’s extradition.
16.The applicant appealed, arguing that due to his Uzbek ethnic origin the aforementioned decision would expose him to a serious risk of torture. The applicant supported his appeal through reference, inter alia, to various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev (see Makhmudzhan Ergashev v. Russia, no.49747/11, 16 October 2012).
17.On 1 November 2013 the Primorye Regional Court rejected the applicant’s appeal against the extradition order, giving the following reasoning:
“The charges pressed against [the applicant] [by Kyrgyz authorities] are criminal offences liable to punishment in Russia ... They are not time-barred ...
Pursuant to Article 464 § 1 (1) of the Russian Code of Criminal Procedure, an extradition request lodged by a foreign state in respect of a Russian citizen should be denied ...
It is apparent from the conclusions of the Federal Migration Service (FMS) for the Primorye Region that [the applicant] is not a Russian citizen. ... He holds a Kyrgyz passport ... and is a Kyrgyz national. ...
On 28 June 2013 the FMS for Prymorye Region rejected a request from [the applicant] for refugee status in Russia.
[The applicant’s] allegations of persecution by the Kyrgyz authorities on false criminal charges on the basis of his [Uzbek] ethnic origin were addressed [within the refugee status procedure].
The lawfulness of the refusal [to grant the applicant refugee status in Russia] was confirmed by Russia’s FMS on 24September 2013 ...
[The applicant’s] argument [that] the decision to extradite him was taken before any judicial review of the refusal to grant him refugee status is groundless.
It is apparent from the evidential material gathered during the extradition check that [the applicant] arrived in Russia ... for employment purposes and that he had not been persecuted in Kyrgyzstan on racial, national or religious grounds ...
It is likewise apparent from the evidential material gathered during the extradition check that [the applicant] lodged his request for refugee status on 16 April 2013, while being held in custody following his arrest in Russia ... , [therefore] his appeal against the decision of the FMS did not prevent the Prosecutor General’s Office from taking a decision concerning extradition, in line with ruling no. 11 of 14 June 2012 of the Plenary Session of the Russian Supreme Court ...
[The applicant] does not have immunity from prosecution [and] there are no grounds preventing his extradition.
The Prosecutor General’s Office of Kyrgyzstan provided assurances that [in the event of extradition] [the applicant] would have the benefit of [legal assistance]; that he would not be extradited to a third State; that he would be prosecuted only for the offence for which he was being extradited; that [he] would not be subjected to torture, inhuman or degrading treatment or punishment; that he was being prosecuted for an ordinary criminal offence devoid of any political character or discrimination on any grounds; that he would be able to freely leave Kyrgyzstan after he had stood trial and served a sentence; and that Russian diplomats would be allowed access to him.
It is apparent from the above guarantees that [the applicant] is being prosecuted for ordinary criminal offences; his prosecution is not politically motivated and is not connected with his [ethnic origin].
[The applicant’s] allegations concerning his persecution on political grounds, lack of fair trial in Kyrgyzstan, and persecution of his family members by law-enforcement bodies in Kyrgyzstan are not supported by any objective data.
The court has established that [the applicant’s] wife and daughter live in Kyrgyzstan, [that there is] no substantiated information concerning their alleged persecution by the Kyrgyz authorities, [and] that they do not travel outside the territory of the Kyrgyz Republic. [The applicant himself] did not apply for refugee status until his arrest.
...The Russian Ministry of Foreign Affairs does not have any information that would prevent [the applicant’s] extradition to Kyrgyzstan.
Therefore, there are no grounds ... preventing [the applicant’s] extradition to Kyrgyzstan for criminal prosecution.
The argument of [the applicant’s] lawyer referring to international sources (report of the United Nations Special Rapporteur on Torture, report of the United Nations High Commissioner for Human Rights on technical assistance and cooperation on human rights for Kyrgyzstan, report of the United Nations Committee on the Elimination of Racial Discrimination, International Crisis Group Kyrgyzstan report) to the effect that after the interethnic clashes in the south of Kyrgyzstan in June 2010 the law‑enforcement bodies had subjected ethnic Uzbeks to torture and that there are grounds to believe that [the applicant] might be subjected to torture in the event of his extradition, is unsubstantiated. The aforementioned international documents describe the general human rights situation in Kyrgyzstan, are unspecific and unsupported by evidence, and are countered by the guarantees offered by Kyrgyz Republic, which relate directly to the applicant and are sufficient to eliminate the risk of [the applicant’s] being subjected to inhuman treatment.
[As to] the reference by the defence to ... the judgment of the European Court of Human Rights in the case of Makhmudzhan Ergashev, [the case] has no connection with [the applicant’s] case and cannot be taken into consideration.
...”
18.The applicant appealed to the Supreme Court of Russia.
19.In the meantime, on 28 January 2014 the Court indicated to the Government, under Rule39 of the Rules of Court, that the applicant should not be extradited or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court.
20.On 30 January 2014 the Supreme Court upheld the judgment of 1November 2013 on appeal, endorsing the reasoning of the first-instance court:
“The court has taken into consideration the arguments of the defence and the documents submitted, including the concluding observations of the UN Committee against Torture [dated December 2013] on Kyrgyzstan’s second periodic report, in which the Committee expressed its deep concern with regard to apparent impunity regarding widespread acts of torture and ill-treatment that remained uninvestigated by the authorities of the Kyrgyz Republic ... and the report that the investigations, persecutions, convictions and punishments in connection with the events of June 2010 are mainly directed at persons of Uzbek ethnic origin.
At the same time, these circumstances cannot in themselves be considered to constitute sufficient grounds for refusing to extradite [the applicant] to the Kyrgyz Republic ...
Pursuant to Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be at risk of being subjected to torture. For the purpose of determining whether such grounds exist, the competent authorities must take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
...
The provisions of Article 3 of the Convention against Torture imply that it is necessary not only to verify the existence in the State concerned of gross and mass violations of human rights, but also the existence in that State of the likelihood that the individual concerned would personally be at risk of torture if returned to his or her country. That risk must be real, immediate and foreseeable.
According to the legal position of the UN Committee against Torture as outlined in a number of its decisions (...), the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not of itself constitute sufficient grounds for determining whether the person in question would be at risk of being subjected to torture upon return to that country. Additional grounds must be adduced showing that the individual concerned would be personally at risk ...
The Committee ... noted that it is necessary to establish the existence of substantial grounds for believing that the person would be at risk of torture if returned, and that such risk of torture must be assessed on grounds that go beyond mere theory or suspicion. The risk need not be highly probable, but it must be personal and present. In this regard the Committee has determined, in previous decisions, that the risk of torture must be foreseeable, real and personal.
The evidential material submitted by the Prosecutor General’s Office – on the basis of which the decision to extradite [the applicant] was taken – does not contain any information demonstrating that [the latter] personally would be at risk of torture, inhuman or degrading treatment or punishment in the event of his extradition.
[A long passage on the guarantees provided by the Kyrgyz authorities].
Neither [the applicant] nor his lawyers provided any substantial evidence showing that [the former] was at risk of being subjected to torture, inhuman or degrading treatment or punishment by the Kyrgyz authorities, or that he might be persecuted on grounds [such as] race, religion, national or social origin, or political opinion.
... [The applicant] does not belong to any political or other party, organisation or group that opposes [the present government of Kyrgyzstan].
While living in Kyrgyzstan [the applicant] was not subjected to any torture, inhuman or degrading treatment by the authorities; he arrived in Russia in March 2012, that is to say a year and nine months after the crimes of which he stands accused had been committed in June 2010. [The applicant’s] wife and daughter remain in the Kyrgyz Republic.
No evidence has [therefore] been provided showing that [the applicant] or his relatives were persecuted by [the Kyrgyz] authorities.
[The applicant’s] statement to the effect that he is a “leader of Uzbek diaspora” and belongs to the ethnic Uzbeks – which allegedly gives him reason to believe that he would be subjected to repressive criminal prosecution and unfair conviction – is an assumption unsupported by any evidence. It cannot therefore be considered to constitute sufficient grounds for concluding that he is personally at risk of being subjected to torture and other ill-treatment in the event of his extradition to Kyrgyzstan.
...”
C.The applicant’s detention
21.On 16 March 2013 the Artyom Town Court in the Primorye Region ordered the applicant’s detention pending extradition until 23 April 2013.
22.On 22 April 2013 the same court extended the applicant’s detention until 14September 2013. On the same day the applicant’s lawyer lodged an appeal against this decision. On 12 July 2013 the Primorye Regional Court upheld the extension order on appeal.
23.On 13 September 2013 the Leninskiy District Court of Vladivostok extended the applicant’s detention until 13 March 2014. On 19September 2013 the applicant’s lawyer lodged an appeal against this decision. The appeal was dispatched by post on 20September 2013. The Leninskiy District Court received the applicant’s appeal on 21October 2013. On 23October 2013 a copy of the appeal was forwarded to the applicant and the local prosecutor’s office, and the latter was invited to submit comments by 28October 2013. On 31 October 2013 the Leninskiy District Court forwarded the case file to the Primorye Regional Court for examination. On 6November 2013 an appeal hearing was scheduled for 7November 2013 and the parties were informed accordingly. On 7November 2013 the Primorye Regional Court upheld the extension order of 13September 2013 on appeal.
24.On 7 March 2014 the deputy Prosecutor of the Primorye Region decided to release the applicant in the light of the decision of the Court to apply Rule 39 of the Rules of Court to the present case. The applicant was released on the same day.
D.Refugee proceedings
25.On 16 April 2013 the applicant lodged a request for refugee status with Russia’s FMS, alleging persecution on the grounds of ethnic origin.
26.On 28 June 2013 the FMS for the Primorye Region rejected the applicant’s request, having found that the applicant had left his country of nationality for reasons falling outside the scope of section 1(1)(1) of the Refugee Act.
27.On 24 September 2013 Russia’s FMS upheld the refusal of 28June 2013.
28.The applicant lodged an appeal against the above decision before the Basmanniy District Court of Moscow. In his appeal he referred to reports concerning the widespread ill-treatment of Uzbek detainees in Kyrgyzstan, as confirmed by various UN sources, NGOs’ reports and the judgment of the Court in the case of Makhmudzhan Ergashev.
29.On 22 January 2014 the Basmanniy District Court of Moscow rejected the applicant’s appeal against the FMS’s decisions. The District Court considered that the applicant had failed to substantiate his fears of persecution in Kyrgyzstan and that his allegations that the criminal charges against him were unlawful fell outside the scope of the refugee status proceedings. The District Court pointed out that his application for refugee status contained no indications that he had been previously accused or convicted of a criminal offence, or that he had been a member of any political, religious or military organisations. It also took into account the fact that the applicant had not applied for refugee status until after his placement in detention.
30.In his appeal against the judgment of 22 January 2014 the applicant requested a rigorous examination of his arguments regarding the risk of ill‑treatment. He again referred to various reports by international organisations and reputable NGOs to support his position.
31.On 20 May 2014 the Moscow City Court upheld that decision on appeal, reiterating the conclusions of the migration authorities and the first‑instance court.
E.Temporary asylum proceedings
32.On 25 April 2014 the FMS for the Primorye Region issued a decision granting the applicant temporary asylum in the Russian Federation until 25April 2015, referring to the existence of circumstances preventing the applicant’s extradition, namely the application of Rule 39 of the Rules of Court in the applicant’s case before the Court and the impossibility of foreseeing the duration of those proceedings.
33.On 10 April 2015 the FMS for the Primorye Region extended the term of the temporary asylum granted to the applicant until 25April 2016, with reference to the same grounds.
43.For relevant reports and items of information, see Makhmudzhan Ergashev v. Russia (cited above, §§30-46) and Mamadaliyev v. Russia (no.5614/13, §§37-42, 24July 2014).

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6.The applicants are Syrian nationals or had their habitual residence in Syria. At the time of lodging their applications they were detained at a detention centre for foreign nationals in the town of Maloyaroslavets, Kaluga Region (ОСУСВИГ – “the detention centre”), run by the local Federal Migration Service (“FMS”).
A.The applicants’ personal details
7.The applicant L.M. (application no.40081/14) was born in 1988. He entered Russia on 9 February 2013. He was detained on 14 April 2014. He is a stateless Palestinian who had his habitual residence in Syria. He was not in possession of a valid national ID at the time of detention, and his identity was established by an immigration officer in Russia in 2014.
8.The applicant A.A. (application no.40088/14) was born in 1987. He entered Russia on 21 April 2013. He was detained on 15 April 2014.
9.The applicant M.A. (application no.40127/14) was born in 1994. He entered Russia on 21 April 2013. He was detained on 15 April 2014 and has a brother, Mr Akhmad A., who received temporary asylum in Russia and is married to a Russian national, Albina A.
B.The applicants’ arrest and expulsion proceedings
10.On 14 and 15 April 2014 (see Appendix) the applicants were detained by the police and officers of the FMS at a clothing factory in Maloyaroslavets.
11.On 15 and 16 April 2014 (see Appendix) the Maloyaroslavets District Court (“the District Court”) examined the applicants’ administrative files, found them guilty of administrative offences (breach of immigration rules and working without a permit) and ordered them to pay fines of between 2,000 and 3,000 Russian roubles (RUB) and their expulsion to Syria, in line with the procedure under Article 3.10§1 of the Code of Administrative Offences. The applicants all stated in court that they feared for their lives if returned to Syria and referred to information about the ongoing and widespread conflict there. The court found these statements to be general in nature and unsupported by any relevant evidence. The applicants also referred to the absence of work in Syria and the fact that in Russia they had been able to work illegally. The District Court then focused on the economic motives of their arrival and illegal stay. Pending expulsion the court ordered their detention at the detention centre.
12.The lawyer representing the applicants before the Court lodged appeals for all three of them, describing in detail the general situation in Syria and the danger of returning there, and citing and attaching the relevant country reports produced by the UNHCR and FMS. She also cited a circular letter issued by the Federal Bailiff Service on 30 August 2013 to its regional branches, according to which no entry was possible into Syrian territory in view of the hostilities and problems that would arise with the execution of court judgments ordering expulsion there. The lawyer argued, in detail, that the decisions to expel the applicants could not be implemented; in such circumstances their detention lost any purpose and became indefinite. The lawyer further cited an FMS circular letter of 23 January 2013 entitled “On the situation in Syria and the work with persons originating from Syria”, which stated that “in the current difficult political situation, when the Syrian authorities are unable to provide effective protection of their citizens from the illegal actions of the armed opposition ... most of the applicants ... have fled the country as a result of the armed conflict. ... Individuals who cannot not safely return [to Syria] and have a well-founded fear of ill-treatment, including torture, should be given temporary asylum”. The statements of appeal further referred to the fact that the applicants had sought asylum in Russia; their expulsion would therefore be contrary to the relevant legislation. The UNHCR Office in Moscow produced a letter to the Kaluga Regional Court (“the Regional Court”) in respect of L.M., reiterating its position in respect of returns to Syria and arguing that any decision relating to expulsion there while his asylum request was pending would be in breach of domestic and international legislation. Similar letters were produced in respect of the two other applicants. The applicants also referred to a decision of the Leningrad Regional Court taken earlier in 2014 relating to a Syrian national in a similar situation (see paragraph 72 below).
13.The Kaluga Regional Court rejected all three appeals on 27 May 2014, following which the expulsion orders entered into force. It stressed the applicants’ illegal stay in Russia and their reference to economic difficulties as their reason for departure from their home country. It found that the alleged danger to the applicants’ lives as a result of the ongoing conflict did not in itself constitute sufficient grounds to exclude expulsion in respect of those guilty of administrative offences in the sphere of immigration.
14.In respect of L.M., in a separate decision of the same date, the Regional Court refused to amend the expulsion order. The court noted that he had not applied for asylum in Russia until 21 May 2014, a fact which “did not affect the lawfulness of the decision taken by the District Court concerning the applicant’s administrative offence and expulsion”.
15.On 17 June 2014 the Kaluga Federal Bailiff Service asked the District Court to stay execution in respect of M.A., pointing out that the European Court of Human Rights had applied Rule 39 and therefore the expulsion could not be carried out at that time. On 30 June 2014 the District Court found that the Code of Administrative Offences did not provide for stays of expulsion as opposed to the payment of fines and dismissed the request.
16.On 4 July 2014 the District Court issued a similar decision in respect of L.M., pursuant to a request by the Bailiff Service on 1 July 2014. None of the parties were present at the hearing, including L.M.
17.It appears from the letter of 8 July 2014 sent by the Kaluga Federal Bailiff Service to the applicants’ lawyer that it was unaware at that date of the District Court’s decisions. From the same letter it appears that a similar request had been made for a stay of execution in respect of A.A.
C.A.A.’s escape
18.Since 15 and 16 April 2014 the applicants have been detained at the detention centre.
19.According to the Government’s observations received in December 2014, A.A. escaped on 25 August 2014. An internal report was prepared by the head of the Kaluga FMS the same day, describing the events as follows:
“In the early hours of 25 August 2014, between 3 and 4 a.m., a group of foreign nationals and stateless people detained pending administrative deportation from the [detention centre] escaped from the premises ... The group included ... [A.A.], a Syrian national, born on 15 January 1987 ... An investigation has established that the people used an unfinished ventilation shaft located between the ground and first floors of the building. Having reached the first floor, the people jumped out of the window onto a pile of construction rubbish and, having covered the surveillance devices ... with a blanket, left the grounds of the centre with the aid of construction materials stored in the courtyard.
The exact circumstances of the escape are being established. An internal investigation is being held in respect of the staff who had allowed the seven foreign nationals to escape.
The local police have been told to organise a search for the people who have escaped.”
20.The applicants’ representative claimed to have had no knowledge of the escape prior to receiving the Government’s observations, expressing her concern that they had not submitted the information earlier, for example when making their observations of 2 September 2014.
21.In reply to the Court’s further questions in this regard, in their observations of 24 April 2015 the Government explained that no administrative or criminal proceedings had been initiated, as an escape from a detention centre for foreign nationals pending deportation was not an offence under any legislation. While the police continued to search for the detainees, their whereabouts, including those of A.A., remained unknown.
22.The Government further submitted that since their observations had been based on the replies of the competent State authorities prepared on 4and 8 August 2014, no information about A.A.’s escape had been provided at that stage. They also submitted that the detention centre had been under no obligation to inform detainees’ representatives of the escape, hence why it had not done so in A.A.’s case.
23.The applicants’ representative confirmed that she had not been aware of A.A.’s escape prior to the meeting with the two other applicants on 17December 2014 and submitted that she had no knowledge of A.A.’s current whereabouts.
D.Proceedings for refugee and asylum status in Russia
1.A.A.’s first application for asylum
24.From the documents submitted by the Government in December 2014, it appears that A.A. sought refugee status in Russia on 5 March 2014 by applying to the Moscow Region FMS. On 11 March 2014 this request was accepted for consideration on the merits and the applicant was questioned and issued with an appropriate document.
25.On 26 March 2014 A.A.’s application for refugee status was dismissed. The decision of the FMS stated that he had submitted no information to support his claims of persecution in Syria. His family remained in that country and he could have used the “internal flight alternative” to another part of Syria, or claimed asylum in a transit country. He reasoned his request to remain in Russia by his wish to work there and did not therefore fall under the definition of refugee.
26.The applicant did not obtain a copy of that decision and did not appeal against it.
2.The applicants’ claims of asylum after arrest
27.After their arrest the three applicants applied for refugee status. They submitted the relevant applications to the local FMS in Kaluga; M.A. and A.A. on 14 May 2014 and L.M. on 21 May 2014.
28.On 28 May 2014 the three applicants also submitted requests for temporary asylum in Russia, which were drawn up in Russian and translated by Z.A.
29.In June 2014 the three applicants were questioned by the Kaluga FMS. They indicated that the reasons for their departure from Syria were the war and danger to their lives. A.A. stated that he was from Aleppo and had lost contact with his family, parents and siblings after his departure in 2013. M.A. stated that he had fled Aleppo after his neighbourhood had been taken over by “terrorists” who had killed dozens of people there, including his close male relatives, which he had witnessed. He had also lost contact with his family after December 2013. L.M. had been in Damascus but had no right of return as he was a stateless Palestinian. He had also lost contact with the members of his family who had remained in Syria. All applicants stressed that they were afraid to go back because of the hostilities which had caused their departure, and said that they feared being forcibly drafted into the armed forces.
30.On 16 June 2014 the Kaluga FMS decided that their applications for refugee status should be considered on the merits and issued appropriate certificates to them.
31.In parallel proceedings, also in June 2014, the three applicants were questioned by the FMS in order to obtain temporary asylum in Russia.
32.On 17 July 2014 L.M. signed a paper in Russian stating that he had asked for his request for “temporary asylum in Russia dated 28 May 2014” not to be considered since he “intended to return to his home in Syria”. The paper was also signed by a translator, Z.A.
33.On the same date a similar paper was signed by A.A. which stated that “he and his wife intended to go to Turkey”. The paper was also signed by Z.A.
34.According to the Government’s observations of 3 December 2014, these requests served as the basis of the FMS decisions to terminate the proceedings in respect of these two applicants, both in respect of their request for refugee status and temporary asylum. No documents were submitted in this regard.
35.On 16 September 2014 the Kaluga FMS decided to refuse M.A.’s request for refugee status. It considered that he faced no threat of persecution on the grounds set out in the Law on Refugees. On 17September 2014 the Kaluga FMS, for the same reasons, refused him temporary asylum.
36.On 28 November 2014 the Regional Court reviewed M.A.’s appeal against the decision not to grant him temporary asylum. He was not taken to the trial even though the decision stated that he had been notified, and he did not have a representative. A representative of the FMS appeared before the court, which briefly restated the reasons for the FMS decision to refuse the applicant both refugee and temporary asylum status and confirmed that there were no reasons to regard him as in need of protection. Neither the general situation in Syria nor the applicant’s submissions about the situation in Aleppo had been raised or discussed. This decision was sent to M.A. on 5December 2014. It is unclear if he appealed against it.
3.Next round of proceedings
37.On 30 September 2014 M.A. and L.M. submitted new written requests for refugee status, which were accepted for consideration by the Kaluga FMS on 7 October 2014. On 15 October 2014, however, both applicants signed papers in Russian stating that they had asked for their requests for “temporary asylum in Russia dated 28 September 2014” not to be considered. The papers stated that they had been translated and written by Z.A.
38.The Government, in their observations of 2 December 2014, explained that the contradictory position taken by L.M. prevented the FMS from considering his new application on the merits. M.A.’s new application was not considered either.
E.Conditions of the applicants’ detention and access to representatives
39.The applicants submitted that severe restrictions had been placed on them meeting with their representatives. As a result, despite numerous attempts and complaints, M.A. and L.M. only had one meeting with them on 17 December 2014. M.A. had one meeting with his brother and Albina A. on 22 October 2014, which lasted about ten minutes. A.A. did not meet with a representative prior to his escape from the detention centre (see paragraphs 20-23 above).
40.The applicants submitted copies of their exchange with various officials in the Kaluga FMS and prosecutor’s office regarding their detention and access to representatives. From these letters it appears that on several occasions the applicants’ two lawyers, Ms Golovanchuk and MsYermolayeva, a lawyer of the Kaluga Bar Association, Mr P.K., a member of the Kaluga branch of the Human Rights Centre Memorial who had assisted the applicants with their complaints, MsLyubov M.-E., as well as M.A.’s brother and his wife, wrote to these agencies regarding a lack of access to the detention centre and the conditions of detention of people detained there. Their exchanges may be summarised as follows.
1.Detention in April – October 2014
41.On 3 March 2014 the head of the detention centre responded to MsLyubov M.-E., stating that visits by lawyers and human rights defenders were possible daily between 11.30a.m. and 12.30p.m. On 14April 2014 the Kaluga FMS informed the regional prosecutor’s office that visits by representatives, relatives and human rights defenders were possible upon the written request of detainees, or upon the written request of their representatives or human rights defenders if accompanied by a written request by the detainee for legal assistance from them. Visits outside of normal visiting hours had to be agreed in advance with the detention centre administration, to ensure the proper functioning of the centre. If a detainee requested in writing to be represented by anyone, the centre would consider the issue of ensuring a visit from the representative, accompanied by a notary, to certify a power of attorney.
42.On 25 April 2014 L.M.’s lawyer wrote to the Kaluga regional prosecutor’s office. She pointed out that the applicant had been refused access to his representatives, and that the conditions of detention at the detention centre were harsher than for people who had been detained on criminal charges. Detainees were kept in their rooms for most of the day; they had no means of communication with anybody and could not contact each other or their representatives. The letter further stressed the absence of any flight connection with Syria and the impossibility of expelling the applicant there.
43.On 17 May 2014 the Kaluga FMS informed the regional prosecutor’s office that on 24 April 2014 Ms Lyubov M.-E. had asked to be allowed to meet with the three applicants and an Uzbek national, T. The staff of the centre had refused to allow her to meet with the applicants, since she had not had an interpreter present and could not communicate with them. She had attempted to pass documents in Russian to the applicants (complaints against the domestic court decisions) through T., but they had been found by the detention centre staff. Ms Lyubov M.-E. had been reminded to come back accompanied by an interpreter. Furthermore, the detainees had signed documents refusing to meet with Ms Lyubov M.-E. since she had asked them for money for her services.
44.On 26 May 2014 the head of the NGO Civic Assistance wrote to the Moscow FMS. She pointed out that the applicants’ confinement in the detention centre appeared unlawful in the absence of any time-limit or purpose, since the expulsion could not be carried out. She further pointed to the fact that the applicants had submitted applications for temporary asylum, and that their conditions of detention were inhuman and degrading, since the food was of poor quality and they had little access to fresh air, outdoor exercise, meaningful activities or information. The letter further stated that the detention centre staff had threatened and harassed detainees, and that the applicants had been pressed to withdraw their applications for asylum. The letter also referred to the difficulties in meeting the inmates.
45.On 10 June 2014 the applicants’ lawyers submitted a letter to the Prosecutor General’s Office, with copies to the Kaluga regional prosecutor’s office and FMS. They pointed out that the applicants’ conditions of detention amounted to inhuman and degrading treatment. M.A. had been diagnosed with pneumonia, but had not received adequate medical help. The applicants had been unable to meet with their relatives and representatives. The food was of poor quality, consisted mostly of cereals and was often served cold. The applicants complained that they had been harassed and threatened by the staff, threatened with reprisals if they complained, and encouraged to withdraw their applications for asylum and discharge their representatives. In the absence of any real possibility of expelling the applicants to Syria, their detention had turned into an open-ended punishment without any possibility of review.
46.On 11 June 2014 the Kaluga FMS wrote to the Kaluga regional ombudsman, noting that on 27 May 2014 the Regional Court had rejected the applicants’ appeals (see paragraph 13 above) while they were assisted by a lawyer and interpreter. In their letter of 29 July 2014 the Kaluga FMS informed the regional prosecutor’s office that the detainees’ rights had not been infringed. The court hearing of 30 June 2014 relating to staying execution of the expulsion order (see paragraph 15 above) had not required the applicants’ presence, and an interpreter had been invited to the detention centre on 17 July 2014, who had translated the court decision to the applicants. On the same day M.A. had decided to withdraw his application for temporary asylum and refuse any further assistance from Ms Lyubov M.-E., signing the relevant documents.
47.Writing to the applicants’ lawyer on 29 July and 12 August and the regional prosecutor’s office on 30 July 2014, the Kaluga FMS provided information about the medical assistance given to the applicants. In respect of M.A., the letters stated that he had been examined by a doctor upon arrival, that an interpreter had assisted him on 9 June 2014 in communicating with the detention centre doctor, who had administered treatment, and that on 14 and 25 June he had again been examined by a doctor and sent for a chest X-ray. His condition had been described as “satisfactory” and improved. The letters went on to state that the detention rooms had a ventilation system installed, that the shower and toilets, although not in the rooms, were undergoing renovation so that they would all be on one floor, that there was a courtyard for walks, and that the detention centre staff had treated detainees with respect and never allowed any behaviour which could escalate into arguments. The staff included a doctor, a psychologist and a medical disinfection specialist. On 17 July 2014 M.A. had signed a paper refusing any further assistance from MsLyubov M.-E. On the same day the remaining two applicants had also expressed their wish to withdraw their requests for asylum.
2.M.A.’s meeting with his relatives on 22 October 2014
48.On 22 October 2014 M.A. signed a letter in Russian addressed to the Kaluga FMS stating that its officers had forced him to sign documents in Russian he could not understand and which, as it turned out, had cancelled his asylum request and prevented him meeting with his representative, MsLyubov M.-E. As a result, he had not met with her, and the only meeting he had attended had been with his brother and sister-in-law on 22October 2014, which had only lasted about ten minutes. The applicant further stated that he and L.M. were under constant surveillance, had received threats from the staff and were unable to write and send letters or make complaints. The treatment was allegedly because of their application to the Court. The papers signed by the applicants about their unwillingness to have their asylum requests considered had been obtained under duress and they had had no idea what they had signed. The applicant’s requests to meet with his relatives and representatives had not been granted. He further complained that he had not been given any personal hygiene products and could not shave or cut his hair, and that he and L.M. were being kept in isolation and had very little contact with other detainees, allegedly because they had applied to the Court. They had also been told that their expulsion to Syria would take place anyway and that their complaints would have no effect. The letter ended with a request to be allowed unrestricted meetings with his relatives and representatives, including Ms Lyubov M.-E.
49.On 27 October 2014 Albina A., M.A.’s sister-in-law, wrote to the Moscow-based human rights NGO Civic Assistance. On the same day she and her husband Mr Akhmad A., M.A.’s brother, produced affidavits to the applicant’s lawyers in Moscow. From these documents it appears that both brothers had left Aleppo in Syria because of the hostilities there, that their neighbourhood had been destroyed, that many of their relatives had been killed, and that they had no contact with the surviving family members. They had been unable to meet with M.A. at the detention centre, with the exception of one brief visit on 22 October 2014. The visit had lasted about ten minutes and a detention centre officer had been present. When M.A. had started to write down a complaint in Arabic, it had been taken away by the officer who had said that it was not allowed. M.A. had not been aware that he had signed a withdrawal of his asylum request prior to the meeting with his relatives. He had said that he had signed the papers under pressure from the FMS staff. His brother had managed to covertly obtain his signature on a complaint and a request to be allowed visit from his relatives and representative, Ms Lyubov M.-E. M.A. had also told them that on 21October he had been visited by an FMS officer from Kaluga (MsMarina Vladimirovna), accompanied by an interpreter, who had told him that he would be expelled to Syria as soon as his travel documents were issued by the Syrian Embassy.
50.On 27 October 2014 Mr P.K. of the Kaluga Bar Association submitted a complaint to the Kaluga regional prosecutor’s office. He stated that he had arrived at the detention centre and had produced an order for representing M.A. and a copy of his bar membership card that day; however, its staff had refused to allow him to meet with his client, referring to the absence of any signed agreement to represent him or permission for the meeting issued by the Kaluga FMS. The FMS had further informed him that the review of his request would take a month. Mr P.K. referred to the provisions of domestic legislation which permitted a lawyer to meet with his client and asked for his client’s right to legal aid to be restored.
3.M.A.’s and L.M.’s meeting with their representatives on 17December 2014
51.On 17 December 2014 lawyers Ms Golovanchuk and MsYermolayeva met with the two applicants and took affidavits from them regarding their detention and asylum request situation.
52.L.M. stated that he was detained in a spacious room with three other detainees; it had a toilet and running cold water. A hot shower could be taken daily on another floor upon request. The room was clean and had sufficient natural and artificial lighting, which was switched off during the night. There were no hygiene problems with insects and the bed linen was changed once a week. Detainees spent their time in their rooms, day and night, except when they went for walks. There were four nurses who administered medical treatment as necessary. He insisted that he wanted his asylum claim to be considered and unrestricted access and the ability to communicate with his representative, including in writing. When asked, L.M. stated that he had been assaulted by the staff on 27 August 2014 after some of the detainees had escaped; one of the wardens had twisted his hand painfully.
53.M.A. stated that while at the detention centre, he had been beaten twice, in July 2014, when the staff had found him to be in possession of the Koran, and on 25 August, when one of the Syrian detainees had escaped. He had been beaten so that he would disclose details about the escape. After the beatings he had stayed in bed for three days and could not eat. He stated that he had not been allowed to make complaints or send letters, and had been denied access to his representatives and relatives. He had not been allowed to attend the court hearing on 28 November 2014 (see paragraph 36 above) even though he had asked to. He also confirmed that he had wanted to meet with his representatives, including Ms Lyubov M.-E. and had expected his claim for asylum to be processed. He stated that the FMS staff had threatened him and told him that his complaints would not help and that he would be spending two years in prison anyway.
54.Following these submissions, on 17 December 2014 the applicants’ lawyers wrote a letter to the Kaluga regional prosecutor’s office pointing at the illegal nature of the applicants’ detention, since their expulsion could not be carried out and there were no terms or possibility of review of the detention. They also stressed that the applicants’ conditions of detention were similar to people in pre-trial detention, while the restrictions on visits and correspondence were illegal and in direct contradiction to the information contained in the letters from the detention centre administration. The letter stressed that the absence of contact with relatives, lawyers and representatives amounted in itself to inhuman treatment since it had serious psychological effects on the applicants.
55.On the same day M.A. signed a request addressed to the Kaluga FMS to be allowed meetings with his representatives, Ms Golovanchuk, MsYermolayeva and Ms Lyubov M.-E., as well as his brother MrAkhmadA. and sister-in-law Ms Albina A.
4.Information about the applicants’ conditions of detention submitted by the Government
56.In reply to the Court’s additional questions, in April 2015 the Government submitted more detailed information about the applicants’ conditions of detention.
57.On 30 March 2014 the head of the Kaluga FMS ordered that meetings with people detained in the detention centre could be authorised for close relatives by its head upon presentation of documents proving they were related. Visits by representatives and human rights defenders could be authorised by the head of the Kaluga FMS, and the detainee could submit a written request to the head of the detention centre.
58.According to the detention centre’s daily routine issued by its head on 15 November 2014, daily walks were to last no less than an hour per inmate. An hour a day was set aside for telephone contact and another hour between 11.30a.m. and 12.30p.m. for meetings with visitors and receiving parcels. An hour every day was set aside for meetings with the administration.
59.The Government submitted extracts from the applicants’ medical files, from which it appears that they had been examined upon arrival at the centre and found to be in good health. A.A. had been treated for bronchitis and pneumonia in June 2014, and on 14 July 2014 his health was improving. He had also had an incident of high blood pressure on 10 June, which had been successfully treated. L.M. had been diagnosed with pulpitis and gastric problems and had received treatment. He had seen the doctor on five occasions between 10 May 2014 and 17 February 2015. M.A. had not consulted the medical staff.
60.According to the Government, L.M. and M.A. were detained in room no.15 on the first floor of the two-storey building, which measured 47square metres and accommodated six people. A toilet was accessible from the room, and there was a shared bathroom on the ground floor. The outdoor exercise yard measured 180 square metres. The Government provided photos of the rooms, sanitary facilities, canteen and the yard.
76.The 8th report of the independent international commission of inquiry on the Syria Arab Republic, established on 22 August 2011 by the UN Human Rights Council through Resolution S-17/1 (A/HRC/27/60, 13August 2014) states:
“The findings presented in the present report, based on 480 interviews and evidence collected between 20 January and 15 July 2014, establish that the conduct of the warring parties in the Syrian Arab Republic has caused civilians immeasurable suffering.
Government forces continued to perpetrate massacres and conduct widespread attacks on civilians, systematically committing murder, torture, rape and enforced disappearance amounting to crimes against humanity. Government forces have committed gross violations of human rights and the war crimes of murder, hostage‑taking, torture, rape and sexual violence, recruiting and using children in hostilities and targeting civilians. Government forces disregarded the special protection accorded to hospitals and medical and humanitarian personnel. Indiscriminate and disproportionate aerial bombardment and shelling led to mass civilian casualties and spread terror. Government forces used chlorine gas, an illegal weapon.
Non-State armed groups, named in the report, committed massacres and war crimes, including murder, execution without due process, torture, hostage-taking, violations of international humanitarian law tantamount to enforced disappearance, rape and sexual violence, recruiting and using children in hostilities and attacking protected objects. Medical and religious personnel and journalists were targeted. Armed groups besieged and indiscriminately shelled civilian neighbourhoods, in some instances spreading terror among civilians through the use of car bombings in civilian areas. Members of the Islamic State of Iraq and Al-Sham (ISIS) committed torture, murder, acts tantamount to enforced disappearance, and forcible displacement as part of an attack on the civilian population in Aleppo and Ar Raqqah governorates, amounting to crimes against humanity.”
77.Since March 2012 the UNHCR has issued several subsequent papers, including those entitled “Position on Returns to the Syrian Arabic Republic” and, later, “International Protection Considerations with regard to people fleeing the Syrian Arab Republic”, with updates. The latest, “Update III” of 27 October 2014, states:
“2.Nearly all parts of the country are now embroiled in violence, which is playing out between different actors in partially overlapping conflicts and is exacerbated by the participation of foreign fighters on all sides. Fighting between the Syrian government forces and an array of anti-government armed groups continues unabated. In parallel, the group “Islamic State of Iraq and Al-Sham” (hereafter ISIS) has consolidated control over significant areas in northern and north-eastern Syria and engages in frequent armed confrontations with anti-government armed groups, Kurdish forces (People’s Protection Units, YPG) as well as government forces. The launch of airstrikes against ISIS targets as of 23 September 2014 has added an additional layer of complexity to the conflict. As international efforts to find a political solution to the Syria situation have so far not been successful, the conflict continues to cause further civilian casualties, displacement and destruction of the country’s infrastructure. ...
Civilian Casualties
4.The number of persons killed as a result of the conflict has reportedly surpassed 191,000 by April 2014. The greatest number of documented deaths was recorded in the governorate of Rural Damascus, followed by Aleppo, Homs, Idlib, Dera’a and Hama governorates. The deterioration of Syria’s healthcare system has reportedly resulted in thousands of ordinarily preventable deaths from chronic diseases, premature deaths due to normally nonfatal infectious diseases, neonatal problems and malnutrition. In addition, the conflict has resulted in hundreds of thousands of people wounded, often resulting in long-term disabilities, and many more suffering from the psychological consequences of having been witness to violence, the loss of family members, displacement and deprivation.
Forced Displacement
5.The conflict in Syria has caused the largest refugee displacement crisis of our times, with Syrians now the world’s largest refugee population under UNHCR’s mandate. It continues to generate increasing levels of displacement each day with an average of 100,000 refugees arriving in host countries in the region every month in 2014. Since March 2014, the Syria conflict has resulted in nearly half of the population displaced, comprising 6.45 million inside Syria and over 3.2 million registered refugees who have fled to neighbouring countries. ...
Human Rights Situation and Violations of International Humanitarian Law
8.The protection situation in Syria has progressively and dramatically deteriorated. According to the UN Secretary-General, “[T]he conflict continues to be characterized by horrendous violations of international humanitarian law and human rights abuses, with a total disregard for humanity” and the Independent Commission of Inquiry summarized in its most recent report the impact of the conduct of the warring parties on civilians as “immeasurable suffering”. Parties to the conflict are reported to commit war crimes and gross violations of human rights, including acts amounting to crimes against humanity, with widespread impunity. ...
Access to Territory and the Right to Seek Asylum
21.UNHCR characterizes the flight of civilians from Syria as a refugee movement. Syrians, and Palestine refugees who had their former habitual residence in Syria, require international protection until such time as the security and human rights situation in Syria improves significantly and conditions for voluntary return in safety and dignity are met. ...
Assessing Individual Asylum Claims
26.While the majority of Syrians and others leaving the country remain in the region, the numbers of individuals who arrive in countries further afield and seek international protection are increasing. Their claims need to be assessed in fair and efficient procedures. UNHCR considers that most Syrians seeking international protection are likely to fulfil the requirements of the refugee definition contained in Article 1A(2) of the 1951 Convention relating to the Status of Refugees, since they will have a well-founded fear of persecution linked to one of the Convention grounds. For many civilians who have fled Syria, the nexus to a 1951 Convention ground will lie in the direct or indirect, real or perceived association with one of the parties to the conflict. In order for an individual to meet the refugee criteria there is no requirement of having been individually targeted in the sense of having been “singled out” for persecution which already took place or being at risk thereof. Syrians and habitual residents of Syria who have fled may, for example, be at risk of persecution for reason of an imputed political opinion because of who controls the neighbourhood or village where they used to live, or because they belong to a religious or ethnic minority that is associated or perceived to be associated with a particular party to the conflict. In this regard, UNHCR welcomes the increased granting of refugee status to asylum-seekers from Syria by EU Member States in 2014, in comparison to 2013, when most EUMember States predominantly granted subsidiary protection to Syrians. ...
Returns, Moratorium on Forced Returns and Consideration of Sur Place Claims
30.As the situation in Syria is likely to remain uncertain for the near future, UNHCR welcomes the fact that several Governments have taken measures to suspend the forcible return of nationals or habitual residents of Syria, including those whose asylum claims have been rejected. Such measures should remain in place until further notice. ...
31.In light of the developments and changed circumstances in Syria, it may be appropriate to reopen case files of Syrians whose asylum claim were rejected in the past, to the extent that has not yet been done, so as to ensure that those who as a result of changed circumstances have a valid sur place claim have it appropriately adjudicated, enabling them to benefit from protection and entitlements flowing from refugee recognition.”
78.The UNHCR report of 1 July 2014 entitled “Syrian Refugees in Europe: What Europe Can Do to Ensure Protection and Solidarity” says:
“The conflict in Syria has now entered its fourth year, and as the humanitarian situation continues to deteriorate, the number of people forcibly displaced has reached record levels. More than 2.8 million refugees are registered or awaiting registration in Egypt, Iraq, Jordan, Lebanon and Turkey, and over 6.5 million people are internally displaced in Syria. It is one of the largest humanitarian crises in recent history and more support will be needed as the countries hosting the vast majority of refugees struggle to deal with the impact of caring for so many. ...
Although, as noted, the responses and practices in relation to Syrians arriving in Europe have varied, some key trends can be identified. UNHCR has welcomed the positive protection practices of many European States with respect to Syrian nationals, including a de facto moratoria on returns to Syria, the decision to process Syrian claims in most countries, and high protection rates. ...
The protection and humanitarian situation of Palestinian refugees in Syria has continued to deteriorate, as nearly all the areas hosting large numbers of Palestinian refugees are directly affected by the conflict. Prior to the conflict, approximately 540,000 Palestine refugees were in Syria. UNRWA estimates that 63 percent of registered Palestinian refugees have been displaced either in Syria or to neighbouring countries. UNHCR has characterized the flight of civilians from Syria as a refugee movement and considers that Palestinian refugees who had their former habitual residence in Syria require international protection.”
79.The Human Rights Watch World Report 2014 (31 January 2014) reported on Syria:
“Since the beginning of the uprising security forces have subjected tens of thousands of people to arbitrary arrests, unlawful detentions, enforced disappearances, ill-treatment, and torture using an extensive network of detention facilities throughout Syria. Many detainees were young men in their 20s or 30s; but children, women, and elderly people were also detained.”
80.The report “Country Information and Guidance, Syria: Security and humanitarian situation” published by the UK Home Office in December 2014 states:
“1.4 Policy Summary
Case-law has established that it is likely that a failed asylum seeker or forced returnee would, in general, on return to Syria face a real risk of arrest and detention and of serious mistreatment during that detention as a result of imputed political opinion. The position might be otherwise in the case of someone who, notwithstanding a failed claim for asylum, would still be perceived on return to Syria as a supporter of the Assad regime.
Most Syrian nationals are therefore likely to qualify for refugee protection unless excluded.
Where a person is excluded from refugee protection they will also be excluded from Humanitarian Protection but may be entitled to Discretionary leave or Restricted Leave.
The humanitarian crisis, which continues to deteriorate, is such that for most returnees removal would be a breach of Article 3 ECHR.
The level of indiscriminate violence in the main cities and areas of fighting in Syria is at such a level that substantial grounds exist for believing that a person, solely by being present there for any length of time, faces a real risk of harm which threatens their life or person.
Internal relocation within Syria to escape any risk from indiscriminate violence is extremely unlikely to be possible or reasonable because of the highly limited ability to move, and move safely, from one part of Syria to another part of the country and the unpredictability of the violence in areas of proposed relocation coupled with the humanitarian situation for those internally displaced.”
81.In his twelfth report issued on 19 February 2015 on the implementation of Security Council resolutions 2139 (2014), 2165 (2014) and 2191 (2104) on Syria, the Secretary‑General of the United Nations observed, inter alia, that widespread conflict and high levels of violence continued throughout the country and that the conduct of the hostilities by all parties continued to be characterised by a widespread disregard for the rules of international humanitarian law and the protection of civilians.
IV.INFORMATION DOCUMENT ABOUT EXECUTION OF THE JUDGMENT IN KIM V. RUSSIA (No.44260/13)
82.A document entitled “Communication from the Russian Federation concerning the case of Kim against Russian Federation (Application no.44260/13) DH-DD(2015)527” contained an action plan aimed at execution of the judgment which had found a breach of Article 3 and Article5 § 1(f) and 5 § 4 on account of the conditions of detention, detention itself and the absence of review during the two years pending the applicant R.A. Kim’s expulsion. The Government indicated that the judgment had been translated into Russian and placed on several professional portals, including that of the Prosecutor General’s Office, Ministry of the Interior and the Russian Supreme Court’s intranet site, thus making it available to all the judges of general jurisdiction in the Russian Federation. The possibility of legislative amendments would be considered in December 2015.

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6.The applicant was born in 1991 and lives in Szeged.
7.On 21 January 2011 around 4 a.m. the applicant and his girlfriend MsD.L. were about to leave a club in Szeged, when three men in their twenties, unknown to them, started to insult them. The three men made degrading comments about the applicant’s Roma origin and about the physical appearance of his girlfriend.
8.Subsequently a fourth person, Mr E.D., appeared, presenting himself as a police officer. (In fact, he was a penitentiary officer.) When Mr E.D. was about to leave, the applicant questioned him about his attitude using offensive and vulgar language, upon which Mr E.D. turned back and got into a fight with the applicant, which ended due to the intervention of three persons, the applicant’s acquaintances.
Following the fight, Mr E.D. called the police. Two officers arrived. The applicant, Mr E.D. and Ms D.L. were then escorted to the local police station. They were released the day after. Although both the applicant and Mr E.D. had visible injuries, only Mr E.D. underwent a medical examination. According to the medical findings, he had bruises on his temple and a haematoma around his right eye.
9.On 23 January 2011 the applicant was examined by a general practitioner, who found that he had bruises on his chest, back, neck and face.
10.On 1 February 2011 the applicant lodged a criminal complaint with the Szeged Public Prosecutor’s Office against Mr E.D. He submitted that the three who had insulted him had shouted at him “Dirty gypsy, do you need a cigarette? Here is money!” and thrown cigarettes and money at him. He also maintained that Mr E.D., who presented himself as a police officer upon his arrival at the scene, had asked the others whether “[they] could not handle a dirty little gypsy” and, turning to him, had called him a gypsy. He also gave a description of the injuries he had suffered.
Furthermore, the applicant explained that the day after the incident he had identified MrE.D. on a social network. He had extracted some of his posts and submitted them to the Prosecutor’s Office.
11.In these posts, Mr E.D. commented that the night before he “had been kicking in the head a gypsy lying on the ground when [he] was overcome by three of his buddies”. In reply to favourable posts by other users, Mr E.D. posted an Internet link to a video clip containing a widely known excerpt from a feature film with overtly intolerant and explicitly racist language. He added that the list of the types of people loathed by the character speaking in the clip could be completed with “some other types of rubbish living among us”.
12.On 7 February 2011 the Public Prosecutor’s Office opened a criminal investigation against Mr E.D. for the offence of “violence against a member of a group” within the meaning of section 170 (1) of the Criminal Code.
13.On 17 March 2011 the two police officers who had arrived at the scene were questioned, as well as Ms D.L. The latter corroborated the applicant’s version of the events. The testimony of the police officers’ did not contain any account of the incident; they had arrived at the scene only after the fight.
The applicant’s three acquaintances, whose intervention had ended the fight, were not questioned, their identity remaining unknown to the prosecution. The applicant was questioned about their contact details, however the only information he could provide were their nicknames.
14.In parallel, the Szeged Public Prosecutor’s office initiated an ex officio investigation into the same facts on charges of disorderly conduct (garázdaság). On 5 July 2011 Mr E.D. was questioned as a suspect, where he stated that the applicant had provoked him. He admitted to having pushed the applicant away in self-defence, but claimed that he had neither hit nor insulted him. He maintained that he had made no statement concerning the applicant’s Roma origin and that the fight had not taken place because the applicant’s Roma origin but because he had been attacked by the latter. As regards his comments on a social network, Mr E.D. stated that he had posted them for no particular reason and specified that “in fact [he] had not been kicking the boy’s head ... had [he] done so the [applicant] would have suffered more serious injuries”.
15.In a decision of 20 July 2011 the Public Prosecutor’s Office discontinued the investigation into the offence of “violence against a member of a group”, considering that there was no evidence substantiating that Mr E.D. had attacked the applicant out of racial hatred. Relying on the applicant’s complaint, Ms D.L.’s testimony, Mr E.D.’s statement given as a suspect in the parallel proceedings and the medical evidence, the Public Prosecutor’s Office concluded that it could not be established who had provoked the fight and whether there was a causal link between the insults directed against the applicant and the fight.
The applicant filed a complaint against the discontinuation on 26July 2011.
16.On 8 August 2011 the applicant’s lawyer was given the opportunity to study the case-file. On the same day she requested Mr E.D. to be heard as a suspect, or at least as a witness; she also requested a confrontation (szembesítés) between the applicant and Mr E.D. This request was dismissed on the ground that Mr E.D. had already been heard as a suspect in the parallel proceedings on charges of disorderly conduct, and the records of his testimony were attached to the investigation file and used as documentary evidence.
On 16 August 2011 the applicant also challenged this decision and requested that further investigative measures to be taken.
17.On 8 September 2011 the Csongrád County Regional Public Prosecutor’s Office upheld the first-instance decision, considering that:
“Accepting the background of the incident, as recounted by the victim and MsD.L., although it is likely that the action had racist motives, it cannot be proven sufficiently for establishing criminal responsibility – that is, unequivocally and beyond any doubt – that Mr E.D. ill-treated the applicant precisely because of his Roma origin. The racist motive cannot be established, in particular, since before the incident Mr E.D. had intended to leave the scene and only turned back because of the victim’s reproach, and the only information about the start of the fight originates in the contradictory statements of the victim and Mr E.D. Neither the victim nor MsD.L. could provide further details as to the question whether after having turned back, Mr E.D. made any further racist comments before or during the fight. The Facebook post attached to the criminal complaint only reveals that Mr E.D. had insulted an unnamed and unidentifiable person of Roma origin the night before. It cannot be established unequivocally and beyond doubt, either from the post or from the subsequent messages, that [the insult] took place precisely because of the victim’s Roma origin.
Based on the above reasons and considering all available information and evidence in their entirety, Mr E.D.’s racist motive is probable at the maximum, but cannot be established beyond doubt.”
As regards further investigative measures, the Prosecutor’s Office stated that given the fundamental contradictions between the statements of MrE.D., the applicant and Ms D.L., a confrontation between them had no prospects of success. Furthermore, Mr E.D. had given a detailed account of the facts in his testimony given as a suspect in the parallel proceedings, which rendered futile his further questioning.
18.On 11 May 2012 Mr E.D. was convicted of disorderly conduct by the Szeged District Court for having got into a fight with the applicant and was placed on one-year probation.
21.A resource guide entitled Preventing and responding to hate crimes, published by the Organization for Security and Co-operation in Europe (OSCE) (Office for Democratic Institutions and Human Rights) in 2009 contains the following relevant passages:
Chapter 2 – Recognizing hate crimes
“The most common flaw in the investigation of hate crimes is the refusal or failure of law enforcement bodies to identify a criminal act as a hate crime. Therefore, for police officers and for NGOs who receive complaints or interview victims, it is essential to have some criteria by which to evaluate whether a case might be a hate crime.
Hate crime indicators are objective facts that signal that a case may involve a hate crime. If such indicators exist, the incident should be recorded as a possible hate crime and should trigger further investigation about the motive for the crime. The existence of such indicators does not prove that the incident was a hate crime. The proof of hate motivation will come only after a thorough and complete investigation, with a result confirmed by a court.
Hate crime indicators can be useful for NGOs, as they form an objective and consistent factual basis upon which to advocate with police or other governmental agencies for treating incidents as possible hate crimes.
Hate Crime Indicators
National experts and law enforcement agencies have developed guidelines by which to identify hate crimes, including detailed lists of hate crime indicators. While these may vary, the most common indicators are listed below.
Victim and Witness Perception
The perception of the victim(s) is a primary indicator of bias motivation. These perceptions are based on the victim’s own experience with prejudice, the circumstances of the attack, their identification of the attackers and many other factors. Sometimes, witnesses’ perceptions can also provide strong indicators of the apparent motive of the perpetrator.
In some OSCE countries, such as Canada and the United Kingdom, any reported crime which a victim, witness or police officer believes to have been hate motivated must be recorded and investigated as a potential hate crime.
The Conduct of the Offender
Perpetrators of hate crimes frequently make their prejudices clear before, during or after the act. The crucial evidence in most hate crimes consists of the words or symbols used by the perpetrators themselves. Those who commit hate crimes generally want to send a message to their victims and to others and these messages, from shouted epithets to graffiti, are powerful evidence of motivation.
The Characteristics of the Victim and the Perpetrator
Although hate crimes are most commonly thought of as involving attacks on members of minorities, this is not always the case. Depending on local circumstances, some hate crimes involve minority-upon-minority attacks, and sometimes minority on majority — this usually happens in places where members of a minority in a larger territory are the majority locally. Some circumstances that may be indicative of a hate crime include:
•• The “race”, religion, ethnicity/national origin, disability status, gender, or sexual orientation of the victim differs from that of the offender;
•• The victim is a member of a group that is overwhelmingly outnumbered by members of another group in the area where the incident occurred;
•• The victim is a member of a community that is concentrated within particular areas and was attacked upon leaving that area;
•• The incident occurred during an incursion by members of a majority group into an area that is predominately populated by members of minorities (this is a pattern reflecting the historical experience of pogroms, in which attacks were carried out on a minority population that was largely confined to a particular district neighbourhood);
•• The victim is a member of a minority who is attacked by a group from members of a different population group; and
•• There is historical animosity between the group of which the victim is a member and that of the offender.
Characteristics of a victim that may be indicators of hate crime include:
•• The victim is identifiable as “different” from the attackers and, often, from the majority community, by such factors as appearance, dress, language or religion;
•• The victim is a prominent figure, such as a religious leader, rights activist or public spokesperson, in a community that has faced ongoing discrimination; and
•• The victim was in the company of or married to a member of a minority group.
The characteristics, behavior and background of alleged offenders can also yield several potential indicators of hate motivation. For example:
•• Statements, gestures or other behavior before, during or after the incident displaying prejudice or bias against the group or community to which the target or victim belongs;
•• Clothing, tattoos or insignia representative of particular extremist movements, e.g., the use of swastikas or other Nazi insignia or paramilitary style uniforms;
•• The offender’s behavior (such as making Nazi salutes or attending rallies or protests organized by hate groups) suggests possible membership in a hate organization; and
•• The offender has a history of previous crimes with a similar modus operandi and involving other victims from the same minority group or other minority groups
...
Previous Hate Crimes or Incident
Other indicators of hate crimes include:
•• Previous similar incidents have occurred in the same area in which members of the same group were targeted;
•• The victim or victims had received previous harassing or threatening mail or telephone calls based on membership in their group; and
•• A previous incident or crime was reported that may have sparked a retaliatory hate crime against members of the group presumed responsible.
Mixed Motives
In investigating hate-motivated incidents and crimes, it is important to take into account all possible motives. For example, an incident in which a person is singled out for attack because of his or her identity may still be a hate crime even if the person is also robbed in the course of the incident. A question will arise as to whether the crime was motivated in whole or in part by prejudice and hatred; in some countries, if there is any mixed motive it will not be treated as a hate crime.
In many reported cases, individuals who have been targeted for attacks because of prejudice and hatred have also been victimized in other ways. The fact that they also had items of value stolen in the course of these attacks – a cell phone or money – is sometimes used to argue that the incident was not a hate crime. An important consideration is whether the particular individual was selected as a target because he or she was identified as a member of a particular ethnic, religious or other group.”
22.The Report of the European Commission against Racism and Intolerance covering the fifth monitoring cycle, issued on the 19 March 2015, contains the following passages:
3. Racist and homo/transphobic violence
“53. Racist and homo/transphobic violence fall under Criminal Code Article 216 (violence towards members of a community). According to information provided by the authorities, between 2009 and 2013, there were 191 reported cases of alleged hate motivated violence; 94 of these resulted in convictions with 33 prison sentences handed out. The authorities informed ECRI that 54% of the victims of these offences were Roma, 8.5% were Jews and 17% involved violence against the Hungarian majority...
54. Racist violence against Roma has been described as one of the most important problems faced by Hungary today. This is committed both by extremist groups and by individuals motivated by racial hatred. Between January 2008 and September 2012, there were 61 separate attacks against Roma and/or their property, with the use of Molotov cocktails, hand grenades and guns. The attacks took nine lives, including two minors and left dozens injured.”
23.Relevant extracts from the thematic situation report of the European Union Fundamental Rights Agency (“FRA”) entitled “Racism, discrimination, intolerance, and extremism: learning from experiences in Greece and Hungary” read as follows:
“During FRA’s meetings in Hungary, concerns were raised about how the police handle cases involving anti-Roma bias motivation. NEKI informed FRA, for example, that in an incident in May 2012 in Nagykanizsa, anti-Roma graffiti was recorded by the police merely as property damage, while the bias motivation was not taken into account. NEKI filed a complaint with the police, arguing that the incident should be prosecuted as a crime against the community. The police then investigated the incident as such, but as no offenders were found, the case was suspended.
A number of possible explanations were advanced by several of FRA’s interlocutors as to why bias motivations are often overlooked by the police. Among these, the latent climate of intolerance and prejudice that also exists within the police force was mentioned.
Another contributing factor could be that proving hate crime is more complex, resource intensive and time consuming than proving other types of crime. Police officers are often focused on closing cases quickly rather than on investing considerable resources in identifying bias motivations.
Recognising bias motivation requires special knowledge and training, which police officers do not always have, as FRA learned from meetings with the police.”
24.Relevant extracts from the Report by Nils Muižnieks, Council of Europe Commissioner for Human Rights, following his visit to Hungary from 1 to 4 July 2014, read as follows:
“Despite these positive steps, the Hungarian authorities have often been criticised for failing to identify and respond effectively to hate crimes, including by not investigating possible racial motivation. For the year 2013, the Hungarian authorities indicated that 48 cases of hate crimes (including cases of hate speech) were reported and 30 were prosecuted. This represents an increase in the number of such crimes reported from the 2009 figures (when 15 cases were reported and 18 prosecuted). However, these figures correspond only to the tip of the iceberg as it is generally agreed that the majority of hate crimes are not recorded as such by the police or are not even reported to the police, partly due to the lack of trust in this institution among members of minority groups. Among the reasons behind underqualification (the prosecution of a crime motivated by hate as a less severe crime) brought to the attention of the Commissioner feature: the lack of specialised guidelines and training for law enforcement officials; the workload and turnover of the few existing specialised hate crime police officers; and the underuse of available means to investigate hate crimes. It also appears that under pressure to deliver results, some public prosecutors may prefer pressing charges in respect of basic crimes as they are easier to substantiate. As concerns more specifically crimes committed by extremist groups, the need for a better co-operation between the police and the intelligence services has also been stressed. Finally, victims of hate crimes do not receive all the necessary and specialised legal and psychological support they need notably due to deficiencies in the public system of support for victims of crime.”

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6.The applicant was born in 1979 in the town of Osh, Kyrgyzstan, and lives in St Petersburg.
A.Criminal proceedings against the applicant in Kyrgyzstan and his arrest and detention in Russia
7.The applicant is an ethnic Uzbek. In June 2010 ethnic violence erupted in the town of Osh, where the applicant lived at the material time, during which around 400 people were killed.
8.On 15 July 2010 the applicant came to Russia, and has not returned to Kyrgyzstan since.
9.On 9April 2012 the police of the town of Osh charged the applicant in absentia with participation in the mass riots and several other offences.
10.On 10April 2012 the Osh Town Court issued an arrest warrant against the applicant, and on 20 April 2012 his name was put on the cross‑border wanted list.
11.On 23January 2013 the applicant was arrested in StPetersburg and remanded in custody two days later by a court order. His detention was extended several times.
12.On 7March 2014 the StPetersburg transport prosecutor noted the interim measure indicated by the Court and ordered the applicant’s release from detention under the personal guarantee of his lawyer.
B.Extradition proceedings
13.On 11 February 2013 the Kyrgyzstan Prosecutor General’s Office requested the applicant’s extradition for prosecution for participation in mass riots in June 2010, intentional infliction of grievous bodily injury and use of violence against a police officer, car-jacking, and intentional destruction of property.
14.On 24 May 2013 the applicant’s lawyer submitted to the Prosecutor General of Russia a letter referring to reports of international organisations and the Court’s case-law evidencing that there was a high risk that the applicant would be subjected to inhuman treatment if he were extradited.
15.On 24 July 2013 a deputy Prosecutor General of the Russian Federation granted the request of the Kyrgyzstan Prosecutor General’s Office for the applicant’s extradition. He held that there were no grounds in Russian or international law for refusing to extradite the applicant.
16.The applicant appealed, maintaining that, as a member of the ethnic Uzbek community which was being persecuted and discriminated against, he ran a serious and real risk of being subjected to torture in detention.
17.On 6 November 2013 the StPetersburg City Court rejected that appeal, finding as follows:
“Taking into account the materials submitted, there are no grounds under Article 464 of the Criminal Procedure Code of Russia that exclude the possibility of extraditing an individual ...
The applicant’s argument that the extradition is unlawful because he has refugee proceedings pending is untenable, and the arguments about his possible persecution by the law-enforcement authorities of Kyrgyzstan because of his ethnic origin are unsubstantiated and do not constitute a ground to refuse the extradition. The information of [the Ministry for Foreign Affairs of Russia] according to which the examination of the criminal case against [the applicant] by the authorities of Kyrgyzstan might be biased, is conjecture and is not based on any proof ...
The Prosecutor General of Kyrgyzstan has provided assurances that, according to the standards of international law and the criminal law of Kyrgyzstan, [the applicant] would be afforded all means of defence, including legal assistance, would not be handed to a third country without the approval of the Russian Prosecutor General, or charged with and convicted of any offence committed before the extradition and for which he was not extradited. He would not be subjected to torture or to cruel, inhuman and degrading treatment or punishment ...
Furthermore, the requesting party provided assurances that, after [the applicant’s] extradition to the Republic of Kyrgyzstan, Russian diplomats would be allowed to visit [the applicant] in remand prisons to ensure respect for his rights ...
The evidence submitted by the defence, according to which persecution of ethnic Uzbeks in connection with the events of 2010 continues in Kyrgyzstan, concerns isolated cases and cannot be regarded as evidence that [the applicant] will be subjected to cruel treatment, bearing in mind that he is accused of an offence which is not political in nature; there are currently measures put in place by the authorities of the Republic of Kyrgyzstan to remedy the violations of human rights disclosed by international organisations ... furthermore, the requesting party provided sufficient and real assurances that [the applicant’s] right to a fair trial would be respected and that he would not be subjected to ill-treatment. The general situation in the Republic of Kyrgyzstan was thoroughly analysed in the decision refusing [the applicant] refugee status by the StPetersburg Regional Office of the Federal Migration Service.”
18.The applicant’s lawyers appealed against that decision, arguing that the first-instance court had failed to address their arguments concerning the risk that the applicant would be subjected to inhuman treatment if extradited.
19.By its final decision of 25February 2014 the Supreme Court of the Russian Federation, having endorsed the lower court’s reasoning, rejected the appeal.
C.Refugee status proceedings
20.On 6February 2013 the applicant asked the StPetersburg Regional Office of the Federal Migration Service to grant him refugee status. He pointed out that he feared returning to Kyrgyzstan, where he would face arbitrary prosecution and inhuman treatment.
21.On 29May 2013 the StPetersburg Regional Office of the Federal Migration Service refused the above request for lack of reasons which would justify the applicant’s allegations. In particular, it found that the latter had referred to the events of 2010 as a pretext to avoid criminal prosecution. The Regional Office further analysed the situation in Kyrgyzstan on the basis of several news items of mainly Kyrgyz and Russian newspapers and information agencies. Referring to these items, it stated that “... the situation in Kyrgyzstan had substantially changed, the inter-ethnic clashes had ceased, and the government was taking enhanced measures to protect citizens and to improve the social and economic situation in the country”.
22.On 23August 2013 the Federal Migration Service of the Russian Federation upheld this decision. The applicant complained before the Moscow Basmanniy District Court.
23.On 3December 2013 the Basmanniy District Court dismissed the complaint. It endorsed the findings of the migration authorities and noted that the applicant was not a member of any political, religious, military or non-governmental organisations. Neither had he been persecuted or threatened by the authorities. Therefore, there was neither a threat to the applicant’s life nor any medical indications indicating a need for urgent medical intervention.
24.On 20May 2014 the Moscow City Court upheld the decision of 3December 2013 on appeal.
D.Temporary asylum proceedings
25.On 20September 2013 the applicant asked the St Petersburg Regional Office of the Federal Migration Service to provide him with temporary asylum in the Russian Federation.
26.On 26November 2013 his request was refused. According to the applicant, he was not informed of this decision.
27.On 5May 2014 the applicant lodged a new application for temporary asylum, which was dismissed on 1 August 2014.
28.On 1October 2014 the applicant’s lawyer lodged an appeal against the decision of 1August 2014. However, the outcome of the appeal remains unknown.
30.For relevant international documents see Abdulkhakov v. Russia (cited above, §§79‑82 and 94).
31.For a number of relevant reports and items of information concerning Kyrgyzstan, see Khamrakulov v. Russia (no.68894/13, §§38‑45, 16April 2015, with further references).
32.The Kyrgyzstan chapter of the 2015 World Report published by Human Rights Watch reads, in so far as relevant, as follows:
“Since the outbreak of ethnic violence in June 2010, Kyrgyzstan’s flawed justice process has produced long prison sentences for mostly ethnic Uzbeks after convictions marred by torture-tainted confessions and other due process violations. Seven further cases related to crimes committed during the violence are pending, including that of a man detained in July 2014. All defendants are ethnic Uzbeks, reinforcing concerns of judicial bias.
Impunity for violent physical and verbal attacks at some hearings continued in 2014, undermining defendants’ fair trial rights. After a January hearing in the case of Mahamad Bizurukov, an ethnic Uzbek defendant standing trial for June 2010-related crimes, the United States embassy issued a statement expressing deep concern. ...
Although the government acknowledges that torture occurs in Kyrgyzstan, impunity for torture remains the norm. Criminal cases into allegations of ill-treatment or torture are rare, and investigations and trials are delayed or ineffective.
In its June concluding observations, the UN Committee on the Rights of the Child (CRC) expressed concern about “widespread torture and ill-treatment of children” in detention and closed institutions and called for prompt and effective independent investigations.
According to statistics provided by the Prosecutor General’s Office to Golos Svobody, a local anti-torture group, authorities declined to open criminal investigations into 100 of 109 registered complaints of torture in the first half of 2014.
Monitors from the National Center for the Prevention of Torture encountered some problems accessing places of detention. After one incident in March, the center filed a complaint against the director of the Issyk Kul region temporary detention facility for refusing the monitors entry, but at time of writing the director had not been held accountable.”

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6.The applicant was born in 1970. According to the most recently available information, in June 2013 the applicant moved to the town of Illichivsk, Ukraine, after being released from detention. He did not inform the Court of his current whereabouts.
A.Criminal proceedings against the applicant
7.According to the information submitted by the Government, on 21August 2006 the Illichivskyy Town Court conditionally sentenced the applicant to two years’ imprisonment for drug-related offences. On the same day the same court remanded the applicant in custody pending trial, since the applicant was also suspected of committing a theft.
8.On 29 May 2007 the Illichivskyy Town Court sentenced the applicant to one year’s imprisonment for theft.
9.On 25 June 2008 the same court convicted the applicant of inflicting grievous bodily harm and sentenced him to eight and a half years’ imprisonment. Since the applicant had previous unserved convictions the total term was established as nine years’ imprisonment.
B.The applicant’s detention and medical treatment
10.According to the Government, the applicant tested positive for the human immunodeficiency virus (“HIV”) as early as 1996. According to the available information, while at liberty the applicant spent time in an infectious diseases department of a hospital (diagnosis unspecified) on one occasion on 18-22 September 2003.
11.On 30 December 2006 the applicant was arrested and placed in the Illichivskyy Pre-trial Detention Facility (ізолятор тимчасового тримання Іллічівського міського відділу Головного управління Міністерства внутрішніх справ України в Одеській області). The Government submitted that it was impossible to establish the exact period of the applicant’s stay in that facility, since all the relevant documents had already been destroyed.
12.Between 15 January 2007 and 25 December 2008 the applicant was detained in the Izmayilskyy Temporary Detention Centre (Ізмаїльський слідчий ізолятор) (“the SIZO”). He was also there between 10 March and 4 May 2009.
13.According to the Government, on 15 January 2007 the applicant was examined and it was established that he was “practically healthy”. During his stay in the SIZO the applicant underwent examinations and received medical treatment as follows: on at least three occasions in 2007 and 2008 the applicant underwent chest X-rays (lungs and heart: no pathologies revealed) and had one blood test (RW, negative). In July and November 2008 he was also examined by a paramedic and diagnosed with prostatitis. The applicant was prescribed medication.
14.Between 26 December 2008 and 10 March 2009 the applicant was serving a sentence in Odessa Correctional Colony No. 14 (Одеська виправна колонія №14). He was also there between 5 May 2009 and 5September 2012.
15.In Odessa Correctional Colony No. 14 the applicant received the following treatment: in March 2009 the applicant was examined and found to be “practically healthy”. In December 2009 the applicant had a viral respiratory infection. In January and September 2011 the applicant was examined by a general practitioner. On a later date the applicant was diagnosed with thrombophlebitis and prescribed treatment. On two occasions, in 2011 and 2012, the applicant was X-rayed; no pathologies were found.
16.Between 23 November and 3 December 2011 the applicant was in a medical ward with a diagnosis of thrombophlebitis. In November 2011 the Odessa Colony’s authorities enquired about the applicant’s HIV status with the Odessa Regional State Sanitary-Epidemiological Service. On 23November 2011 the answer was received that the applicant had been diagnosed HIV-positive in 1996.
17.On 4 May 2012 the applicant was diagnosed HIV-positive by a general practitioner.
18.In July-August 2012 the applicant had numerous blood tests, including a CD4+ cell count with a result of 74 cells. On 12 August 2012 the applicant was diagnosed HIV-positive at clinical stage 4, with tuberculosis of the lymph glands and oropharyngeal candidiasis. It was noted that the applicant was in a critical condition. On 30 August 2012 the applicant was prescribed anti-tuberculosis treatment.
19.Between 7 September and 12 October 2012 the applicant was in the infectious diseases department of the Dariyivska Correctional Colony Hospital (інфекційне відділення міжобласної багатопрофільної лікарні при Даріївській виправній колонії № 10 Херсонської області). The applicant underwent numerous blood and urine tests, X-rays and other tests needed for his tuberculosis diagnosis and treatment. He also had a CD4+cell count, with a result of 98 cells. The applicant was examined by doctors and prescribed treatment. Upon discharge from the department the applicant was diagnosed with HIV clinical stage 4, tuberculosis of the lymphatic glands, candidiasis, leycopenia, weight loss (8%), chronic hepatitis, and chronic pancreatitis. It was recommended that he consult an infectious diseases specialist in order to be prescribed antiretroviral therapy (“ART”).
20.On 12 October 2012 the applicant arrived at the Interregional Specialised Tuberculosis Hospital of Goloprystanska Correctional Colony No.7 (міжобласна спеціалізована туберкульозна лікарня при Голопристанській виправній колонії №7). He was diagnosed with tuberculosis of the peripheral lymph nodes, weight deficit of 8%, anaemia, leukopenia, chronic hepatitis in the unstable remission phase, and chronic pancreatitis in remission. There the applicant underwent various examinations and was prescribed treatment, in particular for his tuberculosis.
21.On 26 October 2012 the applicant was examined by an infectious diseases specialist and diagnosed with HIV at clinical stage 4 and tuberculosis of the peripheral lymph nodes. In November-December 2012 the applicant was examined by a surgeon, diagnosed with after-thrombophlebitis syndrome of both legs in oedema-ulcerous form and prescribed treatment. The applicant had further examinations and tests between November 2012 and January 2013. In particular, the applicant had a CD4 cell count on 21 November 2012 (44 cells, or 18.4%).
22. According to the Government, on 17December 2012 the applicant was examined by an infectious diseases specialist and requested ART, however, ART was not possible for lack of available medication. The Head of the Golaprystanska Colony requested a specialised public medical institution for Aids prevention and treatment based in Odessa to provide the necessary ART medication. By a letter dated 15January 2013, the request was refused on the ground that it was for the prison to provide such medication for inmates. It was also stated that once the applicant was released he would be provided with adequate medical assistance.
23.It appears from the available material in the case file that the medication for the applicant’s antiretroviral therapy was eventually provided by an NGO in an amount enabling the treatment to last until February2013. Subsequently, the applicant has continued receiving the necessary medication.
24.On 4 and 25 February 2013 the Head of the Golaprystanska Correctional Colony lodged with the Golaprystanskyy District Court two requests under Article 84 of the Criminal Code for the applicant’s release, stating that the applicant was suffering from Aids and had other serious health problems. The requests were based on the reports of a medical commission, according to which the applicant’s diseases formed part of the list of health problems for which prison authorities could seek prisoners’ release.
25.On 11 February and 11 March 2013 respectively the court refused both requests, principally on the grounds that the applicant had been repeatedly convicted of serious crimes (the most recent having been an assault on his mother resulting in her death) and while imprisoned he had been disciplined for violating prison regulations on twelve occasions, which demonstrated that he engaged in persistent anti-social behaviour and did not wish to improve. According to the court, the applicant continued to be a danger to society. In its decision of 11 February 2013, the court also noted that it did not follow from the prison governor’s request that the applicant’s Aids diagnosis had been established by the relevant specialist. Moreover, there is no information that the applicant has relatives or anyone close to him who could or would take care of him if he were at liberty.
26.On 15 March 2013 the applicant’s CD4+ cell count was 129.
27.On 25 March 2013 the Government submitted medical information, according to which the applicant’s state of health was of medium severity. His HIV and tuberculosis diagnoses were confirmed, and it was noted that the applicant was also suffering from hyperthermia, chronic hepatitis, chronic pancreatitis, post-thrombophlebitic syndrome, anaemia, serious immunosuppression, weight loss, and diarrhoea. The applicant remained under constant supervision by tuberculosis and infectious diseases specialists at the Goloprystanska Colony, and received ART and anti-tuberculosis treatment and also symptomatic treatment and vitamins.
28.On 22 April 2013 the Goloprystanskyy District Court refused a new request from the head of the colony to release the applicant in view of his health condition. It was noted that the applicant had Aids and a number of serious health problems. The court, however, concluded that the applicant had numerous convictions for committing, inter alia, serious crimes. He has been reprimanded on numerous occasions while in detention. The court has already twice refused similar requests for release, and there was no evidence that the applicant’s state of health had worsened in comparison to the time when the last request had been rejected.
29.On 20 June 2013 the Kherson Regional Court of Appeal quashed this decision and decided to release the applicant in view of his serious health problems.
30.On 26 June 2013 the applicant was released.

***

5.The applicant was born in 1975. According to the most recently available information, in September 2013 the applicant arrived at Buchanska Correctional Colony No. 85, Ukraine, to serve a sentence. He has not informed the Court of his current whereabouts.
A.Medical treatment in detention
6.For a number of years the applicant has been suffering from various health problems. In particular, in July 2009, apparently also while serving a sentence, he was hospitalised in Buchanska Correctional Colony No. 85 and later transferred to a tuberculosis hospital in Slavyanoserbska Correctional Colony No. 61. Since November 2009 the applicant has been registered with the Kyiv City Aids Prevention and Control Centre. It appears that in December 2011 the applicant had a CD4+ cell count, the result of this count being 23 cells. No more detailed information about his precise diagnosis or about any further events between 2009 and September 2012 is available.
7.According to the applicant, on 7 September 2012 he was arrested on suspicion of theft. In a letter to this Court of 21 June 2013 the applicant stated that at the moment of his arrest he had had the following illnesses: human immunodeficiency virus (HIV) at clinical stage 4, post-tuberculosis residual effects, oropharyngeal candidiasis, and chronic hepatitis type C.
8.The decision on the applicant’s pre-trial detention was taken by a court on 10 September 2012. Between 27 September 2012 and 29September 2013 the applicant was detained in the Kyiv Pre-Trial Detention Centre (Київський слідчий ізолятор) (“the SIZO”).
9.On arrival at the SIZO the applicant underwent an initial medical examination. The Government submitted a copy of the applicant’s initial medical examination card with the following information: height 1.77 m; weight 63 kg; blood pressure 125/80; blood type (unclear handwriting); bodily injuries none; infectious diseases: pulmonary tuberculosis – 2008, Botkin’s disease, – “-”, and sexually transmitted diseases – “-”. It was noted that the applicant had “no health complaints”. The applicant also submitted during the examination that he was registered with the Kyiv City Aids Prevention and Control Centre.
10.According to the applicant, because of the deterioration of his health in November 2012 he was examined in the above Centre. The only document provided in support of this statement is an advisory opinion issued by the Centre “on request” on 8 November 2012. The opinion stated, without noting when exactly the applicant had been examined, that the applicant had been diagnosed with HIV at clinical stage 4, post-tuberculosis residual changes, oropharyngeal candidiasis, and chronic viral hepatitis typeC. The opinion also cited the result of the applicant’s CD4+ cell count performed on 13 December 2011. It was recommended that the applicant take antiretroviral therapy (“ART”) for life. In their submissions of 5July 2013 following the applicant’s request under Rule 39 of the Rules of the Court (see paragraph 4 above), the Government noted that on 8 November 2012 the applicant had been diagnosed as above.
11.On 10 December 2012 the applicant agreed to undergo an HIV test following his “request submitted to the SIZO doctors”. According to the results of this test dated 12 December 2012, the applicant had HIV antibodies.
12.On 9 January 2013 the applicant underwent a biochemical blood analysis and a CD4+ cell count (the result of the count was 3 cells, or 0.5% (percentage of total lymphocytes)). The applicant was diagnosed with a high degree of immunological suppression and prescribed preventive anti-tuberculosis treatment.
13.On 14 February 2013 the applicant was placed in the infectious diseases ward of the SIZO. It was noted that the applicant’s state of health was of “medium seriousness”. He underwent an X-ray and various other examinations and was diagnosed with a tuberculosis relapse, extra-pulmonary tuberculosis, HIV infection at clinical stage 4, chronic hepatitis of the mixed type (toxic type and C type), and other diseases. The applicant was prescribed anti-tuberculosis treatment, detox and symptomatic treatment. The Government submitted that the applicant had received this treatment in full.
14.According to the available medical documents, between 14February and 12 June 2013 the applicant’s weight dropped from 63 kg to 58 kg.
15.On 19 February 2013 the applicant was examined in the Kyiv City Anti-Tuberculosis Treatment Centre.
16.According to the medical file submitted by the Government, between 21 February and 2 July 2013 the applicant had consultations with SIZO doctors on the following dates: 21 and 28 February 2013; 7, 14, 21 and 28March 2013; 4, 11, 18 and 29 April 2013; 6, 8 and 16 May 2013; 4, 19, 21 and 26 June 2013; and 2 July 2013.
It was noted on some of those occasions that the applicant complained of general weakness but that his condition was stable. He “bore the treatment in a satisfactory manner” and after the applicant had started the ART (see paragraph 18 below) the consistent advice was that the ART should be continued. On several occasions the applicant was also prescribed various medication.
17.On 26 February 2013 the applicant was prescribed “a preventive treatment”. It was recommended that anti-tuberculosis treatment be continued in order to prepare the applicant for the ART.
18.In his letter of 23 July 2013 the applicant submitted that the ART had been prescribed to him in February 2013. In his further observations the applicant stated that the treatment had only been prescribed to him on 30March 2013. The exact date when the applicant started the ART is unclear.
19.On some occasions in March and April 2013 the applicant refused to take the ART. According to the applicant, the prescribed drugs did not agree with him.
20.On 26 April 2013 the applicant was prescribed the ART “under the TDF/FTC (tenofovir/emtricitabine +ztv) schema”.
21.On 16 May 2013 the applicant consulted an infectious diseases specialist from Kyiv City Clinic No. 5, and was prescribed a diet and various medication. It was noted that the applicant had again stopped the ART.
22.On 14 June 2013 SIZO officials, at the request of the police, informed the police that the applicant’s state of health was of “medium seriousness, with a tendency to deteriorate which might lead to a lethal outcome”. They confirmed that, apart from the said diagnoses, the applicant was suffering from inflammation of the lymph nodes, dermatitis, intestinal dysbacteriosis, and other diseases. The applicant was receiving anti-tuberculosis treatment, ART and symptomatic treatment. It was stated that the applicant needed long-term medical treatment in a specialised medical facility. Consequently, they asked for the investigation to be speeded up and for the possibility of the applicant’s release to be considered. The document was signed by the head of the SIZO and the head of the SIZO’s medical department.
23.On the same date the criminal case against the applicant was transferred to a court for consideration on the merits.
24.On 18 June 2013 the applicant’s lawyer requested the applicant’s release before the national court.
25.Between 26 June and 5 July 2013 the applicant underwent a number of tests (blood and urine tests and X-ray examinations). In particular, on 3July 2013 a biochemical blood test and CD4+ cell count were performed. The increase in the CD4+ blood cells from 3 to 69 was established (from 0.5% to 4.5%). On 5 July 2013 an expert MTB/RIF diagnostic test of the applicant’s sputum for identification of Mycobacterium tuberculosis was carried out. The test was negative.
26.In his application form to this Court of 8 July 2013 the applicant stated that he was suffering from general weakness, intestinal pain, severe headache, increase in the number and size of mycotic ulcers on his body and face, liver and chest pain, haemorrhoids, diarrhoea, pain in the lymph glands, and severe shortness of breath. He also had severe pain in his left leg, had lost around 20 kilograms in weight, and had difficulty sleeping. His CD4+ cell count had, however increased. For the hepatitis C, ulcers and left leg problem there was no treatment at all.
27.On 11 July 2013 the SIZO administration informed the applicant’s lawyer that the applicant was in the SIZO medical ward. He was receiving anti-tuberculosis treatment, ART and symptomatic treatment. The applicant underwent an X-ray examination, had various tests (complete blood count, biochemical blood test, blood sugar test, CD4+ cell count, and urine and sputum analyses) and had a number of consultations with infectious diseases and tuberculosis specialists. It was noted that the applicant’s condition was stable and there was a positive dynamic. He did not need hospital treatment, but required monitoring by infectious diseases and tuberculosis specialists.
28.On the same date the Kagarlytskyy District Court, Kyiv Region, extended the applicant’s pre-trial detention for two months. The applicant’s lawyer’s request for release on medical grounds was rejected by the court as not substantiated by appropriate documents. It also rejected the applicant’s lawyer’s request for a medical examination for him.
29.The applicant stated that on 13 July 2013 an ambulance had been called for him. He was given painkillers on that occasion.
30.In a letter of 23 July 2013 to this Court the applicant stated that there had been no change in his medical treatment between 14 June and 23July 2013. According to him, the current treatment was not improving his health.
31.On 5 and 14 August 2013 the applicant was examined by a tuberculosis specialist, who concluded that the applicant’s condition was stable.
32.On 29 September 2013 the applicant was transferred to Buchanska Correctional Colony No. 85 to serve a sentence (the parties did not submit to the Court the details of the applicant’s conviction). He was provided with ART medication for two months’ treatment. On arrival at the Colony the applicant was examined by a doctor and diagnosed with HIV infection (IVclinical stage), hepatitis in the stage of remission, and post-tuberculosis residual changes (category 5.1).
33.On 10 October 2013 the applicant complained of fever, cough and abdominal pain. He was diagnosed with aggravation of his hepatitis, gastroduodenitis, and bronchitis, and was placed in a medical ward.
B.Alleged pressure on the applicant
34.According to the applicant, on 25 June and 3 July 2013 he was subjected to psychological pressure by the SIZO authorities and their medical staff, who shouted at the applicant, called him names and told him to sign a paper stating that he had refused ART treatment of his own volition and that he had no complaints. The material in the case file includes a copy of a handwritten note dated 3 July 2013 and signed by the applicant. The note says the following:
“Despite the worsening of my state of health, the personnel of the SIZO medical ward are doing everything possible and I have no complaints about them”.
35.On 4 July 2013 the applicant had a meeting with his lawyer. On the same date the applicant complained about the alleged pressure to the prosecutor’s office. He stated that SIZO doctors and an unknown police officer had forced him to sign a paper “that he refused (or had refused)” the ART and had no complaints. According to the applicant, he was threatened with being beaten, with being removed from the medical ward, with being placed in a disciplinary cell, and that other detainees would suffer because of him. The applicant stated that he had signed a paper stating that he had no complaints against the SIZO doctors.
36.By a letter of 8 July 2013 the Shevchenkivskyy District Prosecutor’s Office sent the applicant’s lawyer’s complaint to the Kyiv Department of the State Prison Service “for consideration”.
37.On an unknown date a State Prison Service official informed the Head of the Kyiv Department of the State Prison Service that there had been “no breaches of law by the staff on the medical ward or by the SIZO authorities”. On 5 August 2013 this information was submitted to the prosecutor and to the applicant.
38.On 14 October 2013 the head of the SIZO medical ward informed the head of the SIZO that there had been no incidence of pressure being put on the applicant during the latter’s stay there.
39.On the same date inmates B. and F. testified to the head of the SIZO that there had been no incidence of any kind of pressure being put on the applicant, and that he had always been provided with medical assistance when he requested it.
A.Health care in detention/Transmissible diseases
1.Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (Adopted by the Committee of Ministers on 11 January 2006at the 952nd meeting of the Ministers’ Deputies)
48.The relevant part of the European Prison Rules provides as following:
“Health care
39.Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1Every prison shall have the services of at least one qualified general medical practitioner.
41.2Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.
41.3Where prisons do not have a full-time medical practitioner, a part-time medical practitioner shall visit regularly.
...
Duties of the medical practitioner
42.1The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary.
42.2The medical practitioner or a qualified nurse reporting to such a medical practitioner shall examine the prisoner if requested at release, and shall otherwise examine prisoners whenever necessary.
42.3When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:
...
b.diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;
c.recording and reporting to the relevant authorities any sign or indication that prisoners may have been treated violently;
...
f.isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment;
g.ensuring that prisoners carrying the HIV virus are not isolated for that reason alone;
...
j.making arrangements with community agencies for the continuation of any necessary medical and psychiatric treatment after release, if prisoners give their consent to such arrangements.
43.1The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.
...
44.The medical practitioner or other competent authority shall regularly inspect, collect information by other means if appropriate, and advise the director upon:
a.the quantity, quality, preparation and serving of food and water;
b.the hygiene and cleanliness of the institution and prisoners;
c.the sanitation, heating, lighting and ventilation of the institution; and
d.the suitability and cleanliness of the prisoners’ clothing and bedding.
45.1The director shall consider the reports and advice that the medical practitioner or other competent authority submits according to Rules 43 and 44 and, when in agreement with the recommendations made, shall take immediate steps to implement them.
45.2If the recommendations of the medical practitioner are not within the director’s competence or if the director does not agree with them, the director shall immediately submit the advice of the medical practitioner and a personal report to higher authority.
Health care provision
46.1Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison.
46.2Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
2.European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 11th General Report, 2000
49.The relevant part of the Report reads as following:
“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. Although affecting the population at large, these diseases have emerged as a dramatic problem in certain prison systems. In this connection the CPT has, on a number of occasions, been obliged to express serious concerns about the inadequacy of the measures taken to tackle this problem. Further, material conditions under which prisoners are held have often been found to be such that they can only favour the spread of these diseases.
The CPT is aware that in periods of economic difficulties - such as those encountered today in many countries visited by the CPT - sacrifices have to be made, including in penitentiary establishments. However, regardless of the difficulties faced at any given time, the act of depriving a person of his liberty always entails a duty of care which calls for effective methods of prevention, screening, and treatment. Compliance with this duty by public authorities is all the more important when it is a question of care required to treat life-threatening diseases.
The use of up-to date methods for screening, the regular supply of medication and related materials, the availability of staff ensuring that prisoners take the prescribed medicines in the right doses and at the right intervals, and the provision when appropriate of special diets, constitute essential elements of an effective strategy to combat the above-mentioned diseases and to provide appropriate care to the prisoners concerned. Similarly, material conditions in accommodation for prisoners with transmissible diseases must be conducive to the improvement of their health; in addition to natural light and good ventilation, there must be satisfactory hygiene as well as an absence of overcrowding.
Further, the 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.
In order to dispel misconceptions on these matters, it 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.
It must also be stressed that appropriate information and counselling should be provided before and - in the case of a positive result - after any screening test. Further, it is axiomatic that patient-related information should be protected by medical confidentiality. As a matter of principle, any interventions in this area should be based on the informed consent of the persons concerned.
Moreover, for control of the above-mentioned diseases to be effective, all the ministries and agencies working in this field in a given country must ensure that they co-ordinate their efforts in the best possible way. In this respect the CPT wishes to stress that the continuation of treatment after release from prison must be guaranteed.”
B.HIV/Aids in Ukraine/Conditions of detention
1.Ukraine Harmonised Aids Response Progress Reports
50.In order to monitor progress towards the targets set in the 2011 Political Declaration on HIV/AIDS adopted at the United Nations General Assembly High Level Meeting on Aids, Ukraine submitted several official reports to the Joint United Nations Programme on HIV/AIDS Secretariat.
51.The Ukraine Harmonized AIDS Response Progress Report for the period between January 2010 and December 2011 contained the following information:
 “Ukraine is experiencing the most severe HIV epidemic in Eastern Europe and the CIS countries.
...
In 1987-2011 Ukraine officially registered 202,787 HIV infection cases among Ukrainian nationals, including 46,300 AIDS cases and 24,626 AIDS related deaths. The HIV epidemic continues to develop: starting from 1999 the number of new HIV cases remains on the rise. In 2011 Ukraine officially registered 21,177 new cases of HIV infection (46.2 per 100 thousand population) – this is the highest indicator value, registered from the time when HIV surveillance was first introduced in 1987.
...
In 2009-2011 HIV care indicators have shown a tendency to increase: 54.5%, 60.6%, 62.7%, respectively, however the HIV care coverage indicator remains insufficient (i.e., under 70%). Consequently one third of HIV positive individuals identified as a result of sero-epidemiological surveillance are not covered by HIV and clinical care (e.g., did not receive a test result, do not wish to enrol into medical care and so on), these patients remain source of infection which continues to drive the HIV epidemic.
...
Tuberculosis continues to be the most wide spread AIDS related disease in Ukraine; it is diagnosed in 5,745 cases (62.5%) out of 9,189 new AIDS cases.
Analysis of the HIV epidemic in Ukraine demonstrates that the infection weighs heavy on the country’s health care system – the speed of HIV epidemic development surpasses the efforts to control and treat the infection, including provision of antiretroviral therapy (ARV) to all eligible patients.
...
As of 01.01.2012 Ukraine has 120,148 Ukrainian nationals in HIV care in health care facilities (264.3 per 100 thousand population), including correction facilities of the State Penitentiary Service of Ukraine, out of which 18,751 patients diagnosed with AIDS (41.2 per 100 thousand population).
...
In 2009 second generation surveillance was used for the first time to study HIV prevalence among inmates. Results show that in 2009 HIV prevalence among inmates was 15% (c.i. 13% – 17%).
In 2011 the HIV prevalence study was organized again in the same correction facilities using methodology and sampling sizes of the previous study. In that period of time HIV prevalence rates remained practically the same: 13.7% (c.i. 11.8% – 15.6%).”
52.According to the Ukraine Harmonized AIDS Response Progress Report (reporting period: January, 2012 – December, 2013):
“Nowadays Ukraine takes one of the first places among European countries by the number of HIV-positive people. According to the estimated data, as of the beginning of 2013, 238 thousand of HIV-infected people aged 15 years and older have been living in the country.
...
...groups that have become more and more affected by HIV epidemic in recent years include ..., prisoners and detained persons.
...
During 2012-2013 98 000 people staying at institutions of the State Penitentiary Service of Ukraine ... were tested, which made it possible to increase the access to voluntary counselling and testing by several times – from 18,2 % in 2011 to 77,2 % in 2013. Achievement of such results became possible due to establishment of cooperation between non-governmental organizations and governmental institutions.”
2.HIV/AIDS treatment and care in Ukraine, the World Health Organisation (“WHO”)/Regional office for Europe report, April 2013, part of the overall Ukrainian National AIDS program evaluation conducted in September 2012
53.The extracts from the report read as following:
“Prisoners have rather high HIV prevalence: in 2011, 10% (2463 out of 23 779 tested were found HIV-infected). Since HIV testing in the prison system is client-initiated, it is not possible to evaluate coverage of prison populations under a provider-initiated HIV testing system.
HIV treatment in prisons is entirely financed by the Global Fund grant and is therefore not sustainable.
...
5.2. Human rights
Ukraine has adopted a comprehensive framework of international human rights instruments and standards for the promotion and protection of the fundamental rights of humans, including the right to health. Ukraine has endorsed national laws, policies and programmes related to health, many of which reflect international human rights instruments, including the National AIDS Law (2010) and the National AIDS Programme 2009-2013 - the strategy to achieve universal access. Despite positive steps towards strengthening legislative provisions for equal access to HIV treatment and care, serious discrepancies prevail in implementation. These are most evident in the lack of access to ARV medicines and associated laboratory monitoring for those who need it, which contravenes the fundamental human right to health, the constitutional right of all Ukrainians to health care free of charge (Constitution of Ukraine 1996, Art 49) and the right to free access to ART and treatment of opportunistic infections (National AIDS Law Art 15). Limited coverage of adequate testing, counselling and referral services, and periodic shortages of ARV medicines and commodities, result in lack of guaranteed access to and retention in ART for all those who are eligible. In addition, the lack of access to CD4 and VL tests presents barriers to timely enrolment for people who have been diagnosed with HIV. Consequently, many people initiate ART late in the course of the disease and are thus deprived of the optimal clinical benefits of ART. Continuing poor integration of services for key populations at risk of HIV and opportunistic infections, particularly PWID—who not only constitute the population most at risk of HIV in Ukraine, but are also at increased risk of active TB and hepatitis B and C—contributes to unequal access to life-saving services for those who need them most.”
3.Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 October 2013
54.The relevant parts of the report provide as following:
“142. ...Indeed, the provision of health care to inmates in Ukraine remains problematic, mainly due to the shortage of staff, facilities and resources. During the visit, the Committee’s delegation again heard numerous complaints from prisoners in all the establishments visited concerning delays in access to doctors (in particular specialists), lack of medication, and the inadequate quality of care.
...
143. The health-care service of Kyiv SIZO comprised, in theory, 42 full-time posts (18 uniformed and 24 civilian); however, 12.5 of those posts were officially vacant (including four for uniformed and 8.5 for civilian personnel). In practice, the task of caring for the health needs of 2,618 inmates (including several dozens of patients in the medical unit) that the establishment was accommodating at the time of the delegation’s visit rested on the shoulders of 12 doctors (who, however, jointly occupied the equivalent of 8.6 full-time posts) and 11 feldshers, working on the equivalent of four full-time posts. There was also a nurse, an X-ray technician, a laboratory technician, a pharmaceutical technician and two “disinfectors”.
...
144. To sum up, the health-care staffing resources in the penitentiary establishments visited were generally not sufficient to adequately meet the needs of their respective prisoner populations, especially as regards the number of feldshers and nurses. This situation very much contributed to delays in access to health care and to numerous complaints from prisoners concerning its quality. Further, several vacancies (in particular, as regards medical specialists) additionally restricted prisoners’ access to certain treatments.
...
151. In all the establishments visited, the delegation observed that the various medical records and other medical documentation were generally poorly kept, with very succinct, missing and/or incoherent information...
159. ... Both the TB screening procedures (including systematic X-rays carried out prior to or upon admission and repeated subsequently at regular intervals, as well as laboratory sputum tests if required) and treatment appeared to be on the whole adequate, in line with the DOTS and DOTS+ protocols. In particular, the CPT’s delegation noted an improvement at Kyiv SIZO, where second line anti-TB medication was now available.
... As for the living conditions in the TB units, the unit at Kyiv SIZO is of particular concern to the CPT: it was dilapidated, dark and poorly ventilated, and the walls in some of the cells which were dirty and affected by mold. The cells’ equipment left much to be desired: worn-out beds, dirty bedding, (only) partially screened in-cell toilets. Conditions were also poor in the unit’s shower facility...
160. Each of the establishments visited was also holding a number of HIV-positive prisoners, who were not segregated on the grounds of their medical condition. HIV tests were offered on a confidential and voluntary basis, and anti-retroviral treatment was available (likewise partially financed by donations from the Global Fund).”
C.WHO Aids/HIV related materials
55.The relevant parts of the WHO document “WHO case definitions of HIV for surveillance and revised clinical staging and immunological classification of HIV-related disease in adults and children”, 2006, read as follows:
“The pathogenesis of HIV infection is largely attributable to the decrease in the number of T cells (a specific type of lymphocyte) that bear the CD4 receptor (CD4+). The immune status of a child or adult living with HIV can be assessed by measuring the absolute number (per mm3) or percentage of CD4+ cells, and this is regarded as the standard way to assess and characterize the severity of HIV-related immunodeficiency. Progressive depletion of CD4+ T cells is associated with progression of HIV disease and an increased likelihood of opportunistic infections and other clinical events associated with HIV, including wasting and death.
...
The normal absolute CD4 count in adolescents and adults ranges from 500 to 1500 cells per mm3 of blood”
56.Other relevant WHO materials on an immunological evaluation of patients and ART can be found in the judgment in the case of E.A. v. Russia (no. 44187/04, §§ 31-35, 23 May 2013).

***

5.The applicant was born in 1981. According to the most recently available information, in January 2014 the applicant was released from detention having served his sentence. He did not inform the Court of his current whereabouts.
6.According to the available medical documents, the applicant has been using drugs since 1996. In 1997 the applicant was diagnosed with hepatitis C and hepatic cirrhosis. The applicant has been HIV-positive since 2008. In 2008 he also had tuberculosis.
7.In March 2010 the applicant was taken into custody and placed in the Kyiv Pre-Trial Detention Centre (Київський слідчий ізолятор) (“the SIZO”). On 13 July 2010 the Obolonskyy District Court, Kyiv, sentenced the applicant to five years’ imprisonment for drug-related offences and theft. On 4 September 2010 the applicant was transferred to serve his sentence in the Bilotserkivska Correctional Colony No. 35. In May 2011 the applicant was diagnosed HIV-positive at clinical stage 4. On 24 May 2011 the applicant’s CD4+ cell count was 687 (16.3%). On 7 July 2011 the Irpinskyy Town Court released him from serving the remainder of his sentence in view of his poor state of health.
8.On 25 July 2011 the applicant was registered for regular medical checks at the Kyiv City Aids Centre.
9.On 1 February 2012 the Dniprovskyy District Court sentenced the applicant to four years’ imprisonment for theft.
10.On 2 February 2012 the applicant was placed in the Kyiv SIZO. On arrival the applicant was examined by medical staff and had two chest X‑rays. It was recommended that the applicant consult a tuberculosis specialist.
11.On 8 February 2012 the applicant was examined by a tuberculosis specialist and diagnosed with post-tuberculosis residual changes in the right lung.
12.On 16 or 20 March 2012 (relevant documents contain both dates) the applicant was placed in the SIZO medical ward. He stayed there until 18February 2013 with the following diagnoses: acute haemorrhoidal bleeding, haemorrhoids, chronic multiple drug use, HIV at clinical stage 3, oropharyngeal candidiasis, chronic secondary candidiasis, acute enterocolitis, chronic hepatitis, residual post-tuberculosis changes, liver cell failure, and other conditions. The applicant was prescribed various medication.
13.According to the Government, the applicant was examined by doctors in the SIZO medical ward on numerous occasions. In particular, on 22 March 2012 the applicant was examined by a surgeon and was examined by a general practitioner on the following dates: on 11, 16, 21 and 25 May 2012 with complaints of fever and weakness; on 18 and 22 June 2012 with complaints of fever and weakness; on 16 July 2012 with complaints of coughing with sputum, sweating, general weakness and fever; on 1, 3, 10, 15, 23 and 28 August 2012; on 4 and 10 September 2012; on 4, 10, 15, 22 and 29 October 2012; on 5, 9, 16, 23 and 29 November 2012; and on 5, 11, 18, 24 and 27 December 2012.
On the majority of those occasions it was decided to continue the prescribed treatment.
14.In addition to the above consultations, between March 2012 and 18February 2013 the applicant received the following medical care: on 10April 2012 the applicant had a chest X-ray and it was recommended that he see a tuberculosis specialist. Subsequently the applicant was examined and diagnosed with post-tuberculosis residual changes in the right lung. On 13 July 2012 he had another consultation with a tuberculosis specialist; on 24 October 2012 the applicant was examined by an infection diseases specialist and diagnosed, inter alia, with HIV at clinical stage 4. It was also suspected that the applicant had had a tuberculosis relapse, so an additional X-ray was recommended; on 7 November 2012 the applicant had an X-ray. On 14 November 2012 a tuberculosis specialist examined the applicant and concluded that there were no signs of active tuberculosis.
15.Between 18 April and 20 December 2012, according to the test results, the applicant’s CD4+ cell count dropped from 762 (18.4%) to 467 (14.3%).
16.Meanwhile, on 23 July 2012 the Kyiv City Court of Appeal quashed the decision of 1 February 2012 in the applicant’s criminal case and remitted the case for a fresh court examination.On 3 September 2012 the Dniprovskyy District Court, Kyiv, found the applicant guilty of drug-related offences and theft, and sentenced him to two years’ imprisonment.
17.On 14 January 2013 the applicant was examined in the Kyiv City Diagnostic Centre. Two days later the applicant was examined by a tuberculosis specialist and diagnosed with tuberculosis. The applicant was prescribed anti-tuberculosis treatment.
18.On 23 January 2013 the applicant’s CD4+ cell count was 314.
19.On 25 and 30 January and 4 February 2013 the applicant was examined by a general practitioner. The prescribed treatment was continued.
20.On 5 February 2013 the applicant requested under Rule 39 of the Rules of Court that the respondent Government be asked to secure an appropriate medical examination and treatment for him which, according to the applicant, was impossible in the Kyiv SIZO. On 7 February 2013 the Court refused the applicant’s request.
21.On 11 February 2013 it was recommended by a tuberculosis specialist that the applicant be transferred to a specialised tuberculosis hospital.
22.On 18 February 2013 the applicant was transferred to Zhovtnevska Correctional Colony No. 17 (Жовтневська виправна колонія №17). He arrived there on 21 February 2013 and was placed in a specialised tuberculosis hospital. Upon arrival the applicant complained of a cough with mucopurulent sputum, pain in the chest and armpits, headache, and abdominal pain and distension. It was concluded that the applicant’s state of health was of medium severity. He underwent various blood, urine and sputum tests, X-rays and ultrasound examinations. On 21 and 22 February 2013 the applicant was examined by an otolaryngologist, a psychiatrist and a general practitioner. The applicant was diagnosed with tuberculosis, HIV, encephalopathy, chronic hepatitis and other diseases. The applicant was prescribed anti-tuberculosis treatment.
23.The Government provided a detailed description of the examinations, prescriptions and treatment the applicant received in the hospital between February and October 2013. It included numerous X-rays, ultrasound examinations, blood, urine and sputum tests, examinations by hospital doctors and external specialists: a tuberculosis specialist (on 28February 2013 and 15 August 2013), an otolaryngologist (on 26 March 2013: the applicant was diagnosed with otitis), a psychiatrist (on 22February 2013: the applicant was diagnosed with opium narcotic addiction in remission); a dentist (3 April 2013), a general practitioner (on 13, 14, 19, 25 and 30 March 2013; on 1, 2, 3, 10, 12, 22, 26, 28 and 29 April 2013; on 7, 12 and 16 May 2013; on 1, 4, 15, 21 and 26 June 2013; and on 5, 8 and 17 July 2013); a surgeon (on 24 April 2013); a dermatologist (on 24 April 2013); an infectious diseases specialist from the Kharkiv Regional HIV/Aids Centre, who prescribed antiretroviral therapy (“ART”) for the applicant (22 July 2013); and a neuropathologist (on 13 August 2013).
24.On 3 May 2013 the applicant’s CD4+ cell count was 477 (15.7%).
25.On 21 August 2013 the applicant started the ART.
26.On 4 September 2013 the applicant’s CD4+ cell count was 297 (12.1%).
27.On 20 September 2013 a tuberculosis specialist from the Kharkiv Medical Academy of Postgraduate Education concluded that the applicant’s anti-tuberculosis treatment had been effective.
28.On 3 October 2013 the applicant was discharged from the hospital with the diagnosis of, inter alia, post-tuberculosis residual changes, HIV (clinical stage 4), chronic hepatitis in unstable remission, and chronic thrombophlebitis. The applicant was transferred to Buchanska Correctional Colony No. 85 (Бучанська виправна колонія №85) since his state of health had improved. He was provided with ART medication for two months.
29.According to the parties, while in the hospital the applicant also received various medication from his relatives.
30.The applicant spent the majority of the time between 1 November and 30 December 2013 in the Buchanska Correctional Colony Hospital. On 23 December 2013 the applicant’s CD4+ cell count was 314 (14.8%).
31.On 31 January 2014 the applicant was released, having served his sentence.

***

5.The applicant was born in 1985. He resides in Germany.
6.At around 11 p.m. on 15 July 2005 an anti-tank mine exploded in the courtyard of a police station in Skopje, causing considerable material damage.
A.The events of 16 August 2005
7.On 16 August 2005 an investigating judge of the Skopje Court of First Instance (“the trial court”) ordered (Kri.br.308/2005 and ID.br.921/05) a search of the home and other property belonging to the applicant’s father and the father of F.R. (a co-defendant in the ensuing criminal proceedings, see paragraph 22 below), on account of a reasonable suspicion that relevant items of evidence relating to allegations of terrorism and trafficking in arms would be found.
8.The search was carried out at 9.30 a.m. on the same day, in the presence of the applicant’s father and two neighbours, who acted as witnesses. According to the search record, which was signed by a police officer, the applicant’s father and the witnesses, the following objects were found: a semi-automatic weapon; a case containing nine bullets; ten TNT bullets; a slow-burning fuse and a detonator; an audio tape; CDs; six photographs of the applicant and a piece of paper with a map drawn on it. At the request of the applicant’s father, the search record indicated that he “does not know the origin of the objects found”, and at the request of the attending witnesses the record noted that they “had no comments to make on the work of the police officers”. A certificate of the seized objects was issued to the applicant’s father, which the latter signed.
9.The police officer who had carried out the search submitted an official note, in which he listed all the above objects found in the house of the applicant’s father. The note stated, inter alia:
“The wanted person [the applicant] was not found and according to his mother, he was on a visit, but (the mother) did not want to specify where.”
10.The applicant’s father was taken to a police station for an interview. On that occasion he denied that weapons found in his house belonged to him. He stated that it was possible that they belonged to the applicant, whom he had not seen since 14 August 2005 at 8 a.m., when he (the applicant) had left his house.
11.According to an official record (записник за задржување на лице) of the Ministry of the Interior, a copy of which was included in the file, at 12.30 a.m. on 16 August 2005 the applicant, who had no previous criminal record, was arrested near a department store in a suburb of Skopje by R.J. and P.M., police officers. The record stated the following reasons for his arrest:
“(since the applicant) was not in possession of any identification document and his suspicious movement in the vicinity of buildings which are targets for criminal offences (објекти кои се цел на извршување на кривично дело).”
12.At 12.45 a.m. he was taken to a police station, where he remained until 7 p.m. that day. As stated in the record, the applicant was informed about his rights; he waived the right to be represented by a lawyer; he had no visible injuries, nor were there any signs of illness, alcohol or drug addiction. The applicant signed all four pages of the record separately.
13.At 7 p.m. on 16 August 2005 the applicant was brought before the investigating judge under suspicion of having been involved in the incident of 15 July 2005. According to the court record of that date, which was duly signed by the applicant, he understood the charges against him; he had sufficient command of Macedonian; he had waived the right to an interpreter; and he had stated that he would testify in the absence of a lawyer. In the presence of the investigating judge and a public prosecutor, the applicant stated, inter alia:
“... (referring to the request for investigation) it is true that at 11.15 p.m. on 15 July 2005 I placed an explosive device, namely a round anti-tank mine, together with a fuse and a detonator, in the western part of the courtyard of a police station, B.P... I placed the explosive device, lit the fuse with a lighter, and immediately ran home ... R.S. gave me this explosive ... F.R. was with me all the time ... he was also with me when R.S. gave me the anti-tank device ... I would like to underline that it was a slow-burning fuse which was six to seven metres long; it took a long time to burn and to detonate the device ... I would also like to note that F.R. knew that I was going to place this anti-tank device in B.P. police station. I told him that after we had obtained the device from R.S ... F.R and I agreed to a proposal by R.S. (that we place the device in front of a police station) and went towards Skopje by taxi ... I borrowed an old car from neighbour B., telling him that I wanted to drive around. He lent me the car, which was not registered, and I (with F.R.) took the device and placed it on the floor behind the driver’s seat ... At 11.15 p.m. I left home and walked to this car; I took the anti-tank device ... and carried it as far as the B.P. police station, as I have described above, and then I detonated (the device). Some time after 10 pm. F.R. had called me to arrange to go and set up the device. Indeed, F.R. arrived ... and we both went to the car; we took the device together and we walked towards the B.P. police station. I was carrying the bag with the device. When I went into the police station F.R. left the scene: I do not know where he went. I went to the back of the police station and placed the device. Regarding weapons found in my house on the occasion of a search carried out by the police on 16August 2005, I had in my possession a semi-automatic weapon with nine bullets; I do not know anything about the ten explosive items, the fuse or the detonator. I had stolen the semi-automatic weapon and the bullets... five days before the explosion in the B.P. police station... I was not carrying the weapon when I placed the device, and the phone that I had in my possession was switched off.”
14.On that day the investigating judge delivered several decisions, by means of which he appointed D.N., a lawyer, to represent the applicant; found of his own motion that the applicant’s detention had been lawful; opened an investigation against the applicant, F.R. and R.S. (the latter was from Kosovo)[1]; he also ordered that they be detained on remand for thirty days. All the decisions contained an instruction on legal remedies. They were served on the applicant the same day. They were delivered to his lawyer the next day. No appeal was submitted against any of these decisions.
B.The events of 19 August 2005
1.The applicant’s depositions taken by the investigating judge
15.On 19 August 2005, on the occasion of a regular visit of a judge responsible for the execution of sentences to Skopje detention centre, the applicant asked to give evidence before the investigating judge. On the same day, the investigating judge heard oral evidence from the applicant in the presence of the court-appointed lawyer and the public prosecutor. As indicated in the transcript of the hearing of that date, signed by the applicant, he stated, inter alia:
“I called you because on 16 August 2005 I was beaten and intimidated by the police to force me to testify. I was under duress to testify and threatened with being killed after leaving the prison. All the names they mentioned are unknown to me. I know nothing about the case of which I am accused. I have never been in conflict with the police and I have no idea what a bomb is. Regarding the home search, this is false evidence. There were no weapons or explosives there. That’s all. I agree to be represented by the court-appointed lawyer who is present at the moment. I would like to say that I have not been placed under any pressure by the court. I was just afraid and in a panic due to my previous stay in the police station. Actually, I was afraid when giving the statement ... I must say that everything I said on 16 August 2005 before the judge I was told to say by the police, and was put under strong pressure to do so. All the charges against me are false. I did not commit that crime.”
16.Asked by the public prosecutor to explain why he had not told the investigating judge previously that he had been placed under pressure and beaten by the police, the applicant stated:
“They did beat me, and I was under strong pressure not to tell anything to the judge.”
17.He further stated:
“They were beating me all the time while I was at the police (додека бев во полиција). I had (visible) injuries, but I could not say anything to the judge, as the police had told me not to.”
18.The investigating judge then requested the applicant to take off his clothes and show the injuries he had. As noted in the transcript, the investigating judge described the injuries as follows:
“A yellow-brown bruise on the left upper arm, 7 cm long, in an irregular triangle shape; a dark-red bruise can be seen on the left buttock, 15 cm long, with an irregular rectangular shape. The accused complained of severe pain in his feet, but the court cannot see any injury there ... Light-yellow bruises on both left and right thighs, 15cm long with an irregular oval shape. No other injuries can be seen.”
2.Expert examination of the applicant’s injuries
19.On the same day the investigating judge ordered an immediate expert examination of the applicant to determine the type, origin and date of the injuries.
20.At 5 p.m. on that day two experts (Z.C. and G.P.) of the Forensic Institute (Институт за Судска Медицина) examined the applicant in the detention centre. In a detailed expert report dated 19 August 2005, the experts noted bruises (twenty-seven in number) on the applicant’s back, chest, stomach, both arms and legs and the left buttock (no injuries were noted on the applicant’s feet). According to the report, the bruises were mostly green and violet in colour. The report further explained that after seven days a bruise became green, and after two weeks yellow. It went on to state that:
“Having regard to (the applicant’s) statement that he had sustained the injuries while he was detained in the police station on 16 August 2005, we can say that, given the noted characteristics of the (applicant’s) injuries, especially their greenish colour, they (the injuries) could not have been inflicted on 16August 2005. This is because only three days have passed between then and 19 August 2005, the date of the medical examination, and bruises could not acquire such a greenish colour in only three days. More precisely, the injuries noted during the examination are older, and date from at least seven days before the examination.
Given their characteristics, the bruises are mostly external (површински), except in the area of the left buttock, where there is more intensive bruising.”
21.The medical report concluded that the injuries sustained by the applicant had been inflicted by a “blunt dynamic force”. As regards the injuries to the applicant’s arms, the experts stated that they were the result of pressure exerted by parts of a body, including hands. While they could not determine the exact means by which the remaining injuries had been inflicted, they nevertheless specified that they had been caused by beatings. The injuries were to be regarded as bodily injuries.
C.Criminal proceedings against the applicant
22.On 9 September 2005 the public prosecutor lodged an indictment against the applicant and F.R. on terrorism charges. On 26September 2005 an indictment on the same charges was lodged against R.S.
1.Trial court hearings and depositions of the applicant and witnesses
23.At a hearing held on 8 November 2005 the trial court decided to consider both indictments in one set of proceedings. According to depositions taken on that date, the applicant, who was represented by a lawyer of his own choosing, stated, inter alia, that:
“The accusations described in the indictment, which I contest, are wrong. At about 10.45 p.m. on 12 August 2005, 300 metres in front of my house ... members of special (police) forces jumped on my back and put me in a car ... they took me to a forest, I do not know exactly where ... When they abducted me, there were fourteen or fifteen of them ... In the forest there was a change of driver, and they hooded me and drove me far away in a different direction. We arrived in a house, where they unhooded me; it was a luxurious house. I was told to sit on a chair; uniformed people wearing masks and others in plain clothes arrived. They asked me if I knew why I had been brought there, to which I replied that I had not done anything wrong. They started insulting me ... four people started beating me with plastic bottles and a rubber tube. I stayed in the house for three days. During that time, while my hands and legs were handcuffed, I was held under water in a swimming pool. A big man was trying to force me to confess about the police station, to which I replied ‘to confess what about the police station?’. When they took me out of the pool, other people continued beating me. They ordered me to admit that I had placed the bomb in the B.P. police station. I told them that I had not done that ... they also brought a dog into the house. The dog did nothing to me. They held me under water in the pool three or four more times ... I believe that we were in Veles ... The same uniformed men, who wore masks, brought me [near the department store in Skopje, see paragraph 11 above] and told me to go home. There were other people around. I was wet and could not walk. Men in plain clothes without uniforms or masks handcuffed me and took me to K. police station. They slapped me twice and started interrogating me about the bomb in B.P. police station. I told them that I knew nothing ... They asked me if I knew R.S. and F.R., and I said that I did not know them. I stayed in K. police station from 15 August to the night of 16 August, when they brought me before the investigating judge. I note that while I was in the house in Veles I was given a blank paper which I had to sign because they had beaten me. In Veles I think I signed three blank papers and I’m sure that I saw those papers in the police station changing hands between police officers. The investigating judge also showed them to me. When the judge had them they were no longer blank, but I don’t remember what was written on them. In Veles I was told to say ‘admit that you placed the bomb and we will let you go, we will take you home’.
On 16 August 2005 ... I could not tell the investigating judge that police officers had threatened me, because they had said they would kill my family. What I said to the investigating judge on 16 August 2005 was what I had been told to say by the police officers in Veles. What I said to the investigating judge was invented by the police officers ... I want to say that I was afraid because while in Veles I heard screams and voices saying ‘we caught his father’, so I was convinced that they had captured and tortured my father. I was further told by the police that they had apprehended and taken my father to P. police station, that they had found weapons in my house, and that my father had admitted that they belonged to him. That was a stratagem of the police.”
24.The applicant further denied that he knew F.R. He said:
“This is the first time I have seen him. I do not know him; I do not know where he lives, I know nothing about him. I do not know R.S. nor have I ever heard about him ...”
25.He further stated:
“On 16 August 2005 the investigating judge asked me about weapons, a gun, and some missiles. I was shocked. The investigating judge told me that all those items had been found in my house. I saw the certificate regarding items which had been seized. I do not know who signed it ... (after the certificate was shown to him): the investigating judge did not show this certificate to me. I saw it then for the first time. The signature on it does not belong to my father. The items that the judge read aloud from the certificate had not been found in my house ... [The accused was shown a note referring to Greater Albania and he said]: Maybe I wrote that, I do not remember. Maybe someone from the school wrote it. It was found in my house. I drew it, it was a game. The words that are on the map, I am confused; the words 2010 Jihad, Rida; the interpreter says that the following is written on the map: Greater Albania, Jihad, Ilirida State, Allah Aqbar ... maybe I found this map and maybe I drew it. I do not know what that map means, it was a game ...”
26.The applicant denied that he had spoken on his mobile phone with F.R. and R.S. His phone had been seized by the police while he was in Veles. He confirmed that on 15 July 2005 he had been in possession of his mobile phone and denied that R.S. had called him that day. He further stated:
“... that day (15 July 2005) ... when I was sitting with my friends, we heard an explosion. Everyone went outside to see what had happened. I had some visitors. Someone said a bridge had collapsed, later someone said that a missile had been launched against B.P. police station ... At 11 p.m., the time of the explosion, I was in my neighbourhood. When the explosion happened, I did not have my mobile phone - it was charging. When I arrived home, I saw that there were no missed calls.”
27.Asked by the public prosecutor why he had not revealed, during his examination on 19 August 2005, that he had been abducted on 12August2005 and about the subsequent sequence of events, the applicant stated:
“I did not tell the investigating judge, because I was told by police officers in Veles that I should not say anything. What I said today, I also said on 19August 2005, but the judge did not note it ... I signed the record (of 19 August 2005), but I did not read it. I do not know why the judge did not note down the whole event in Veles and then in K. police station ...”
28.The applicant further named four individuals, including a certain A.A. and S.A., with whom he had allegedly been at the critical time on 15July 2005. In this connection he asked the court to examine those witnesses.
29.After the court read out his statement of 16 August 2005 given in the pre-trial proceedings, the applicant confirmed the part of that statement indicating that he had been threatened by the Intelligence Service to force him to make the statement.
30.The applicant’s father stated that the police had searched his house in his absence and that he had been forced to sign the search record and the certificate of seized objects. He confirmed that the map of Greater Albania belonged to the applicant. Lastly, he stated that on 15 July 2005, at the time of the explosion, the applicant had been in the house.
31.At a hearing of 29 November 2005, the applicant was shown the map of Greater Albania, which the applicant confirmed that he had found at his school. He was further shown photographs of himself wearing a military uniform and carrying a machine gun. In this connection the applicant stated that the photographs had been taken on the occasion of a religious holiday when it had been possible, for a certain price, to be photographed wearing such a uniform.
32.The trial court also heard oral evidence by A.A. and S.A. A.A. stated, inter alia:
“On 15 July 2005, as on any other night, we met friends outside our doors, because it was very hot. That night [the applicant] was with us ... That night (the following were present) I, S., M.J., as well as A. ... At about 11 p.m. we were outside. At 11.20 p.m. or 11.30 p.m. we were all outside, including S.A. I want to say that many other people were there as well. Then, there was an explosion, everybody went out, we did not know what was going on. At the time of the explosion, [the applicant] was with us ... Ten minutes later someone came out of the house saying he had seen on television that a bomb had exploded at B.P. police station. We stayed there talking. [The applicant] was there as well. On 12 August 2005 we noticed that [the applicant] was absent. He was not there on the 13th either. On 13 August 2005 [the applicant’s] father told us that [the applicant] had been arrested. There were rumours that he had been arrested in connection with the explosion at the police station. That is why I agreed to testify as a witness, to say that [the applicant] did not do it. No one asked me to testify. I volunteered to do it ... I gave a list of everyone who was there that night with [the applicant] to [the applicant’s] father. I gave him that list after [the applicant] had been arrested ... We wanted to vouch that [the applicant] had been with us and that he had not done it.”
33.On being asked by the public prosecutor how he remembered that the applicant had not been there on 12 August 2005, A.A. said:
“Since [the applicant] was normally there every night and was not there that night, his friends were wondering where he was; his friends noticed his absence; I learned about it from them.”
34.S.A. also confirmed that at the critical time on 15 July 2005 the applicant had been outside his house talking with other people. He stated, inter alia:
“That night [the applicant] was with us; he stayed out other nights as well, but I cannot say whether it was every night, because I go out only some nights ... I cannot say exactly whether it was 11 p.m. or 11.15 p.m. when we heard a very loud explosion ... We were standing in front of [the applicant’s] house after midnight, until 1 a.m. ... (the applicant’s) father asked me to testify as a witness... He asked me if I would like to testify in court that (the applicant) had been with us that night; I agreed.”
35.On 27 December 2005 Z.C., the expert doctor who had carried out and signed the medical report regarding the applicant’s injuries of 19August 2005 (see paragraph 20 above), gave oral evidence before the trial court in the presence of the accused and their representatives. He explained the recovery process of a bruise and its colour changes. He confirmed the veracity of the written report and that the applicant’s injuries had been inflicted at least seven days (or two to three days more than that) before the date of examination.
36.The applicant’s lawyer stated:
“I do not contest the expert report regarding the injuries specified therein and their colour.”
37.At a hearing on 12 January 2006 the public prosecutor made the charge specific, and also accused the applicant and F.R. of trafficking in arms.
2.The trial court’s judgment
38.On 17 January 2006 the trial court convicted the applicant, F.R. and R.S. (in absentia) and sentenced them to eleven, ten and twelve years’ imprisonment respectively. The applicant was found guilty of terrorism and trafficking in arms under Articles 313 and 396 of the Criminal Code (see paragraphs 50 and 51 below). The court further ordered confiscation of the semi-automatic weapon, nine bullets and ten explosive items from the applicant. The convicts were also ordered to compensate for the damage sustained. An indefinite expulsion order (протерување странец од земјата засекогаш) was issued in respect of R.S. The court established that the applicant and F.R., together with R.S., were responsible for the explosion of 15 July 2005 in the B.P. police station, the aim of which was to endanger the constitutional order and public safety.
39.In the judgment, which runs to thirty-one pages, the court reproduced and analysed the statements that the applicant had given in the pre-trial proceedings (16 and 19 August 2005) and at the trial (8November2005), as well as the medical report dated 19August 2005 and the oral evidence of the expert of 27 December 2005. Noting that the applicant’s statements were inconsistent, the court gave weight to his confession statement of 16 August 2005, finding that it contained a clear, complete and logical description of the events of the critical date. It was given in accordance with the law: the applicant had been informed of his rights, and he had read the written transcript of the court hearing and had signed it. It held that that statement was consistent and reliable, because the applicant had given a chronological description of the events; he had also given a detailed description of the device, the place and the means by which he had detonated it, which corresponded to the experts’ reports regarding the incident. The statement of 16 August 2005 was also corroborated with a detailed list of calls on the mobile phones confiscated from the convicted individuals, which confirmed that there had been intense communication between them before and after the incident.
40.The court further established that in the statement of 19 August 2005 the applicant had retracted his confession of 16 August 2005, which he had stated had been given under duress, namely that he had been beaten on that date by police while detained in the police station. On the basis of that testimony, the investigating judge had ordered an expert examination of the applicant. The experts, relying on medical science and practice, had established that the applicant’s injuries had been inflicted at least seven days before the date of the examination (19 August 2005). Accordingly, the injuries had not been inflicted on 16 August 2005 when he had been arrested and detained; they had therefore not been inflicted by the police.
41.The court went on to say that after the expert examination the applicant had concocted another version of the events he had presented in his statement of 8 November 2005. In that statement the applicant had given another description of events, namely that he had not been detained on 16August 2005 and beaten up in the police station, but that on 12August 2005 the police had abducted and detained him in a luxurious house in Veles; that he had been held under water in a swimming pool; tied up; and beaten, to make him confess to the crime. The court held that nothing suggested, as implied by the defence, that there had been two periods of detention, the first unlawful (12-16 August) and the second (16August 2005), lawful. The court held, referring to the decision of the investigating judge (see paragraph 14 above), that the applicant had been detained on 16August 2005 in accordance with the law.
42.It further found that no evidence had been presented that the applicant had been arrested by the police on 12 August 2005 and ill-treated in a house in Veles. That version of events, according to the court, was fictional and invented in order to match the date when the injuries had been inflicted, as established in the expert report. The court held that the applicant’s statements of 19 August and 8 November 2005 were inconsistent and implausible. In his testimony of 19 August 2005 the applicant had made no comment as regards his alleged abduction on 12August 2005 and interrogation in Veles. Contrary to the applicant’s argument that he had been scared and confused when he had given his confession statement on 16August 2005, the court record of his questioning of that date suggested no disorder or lack of capacity for rational perception. Had the investigating judge noticed any indication of unsafety, fear, panic or lack of capacity on the part of the applicant, he would have terminated the questioning.
43.Lastly, the court concluded that the applicant’s confession statement of 16 August 2005 coincided with the motives for committing the crime and the intention to provoke fear and unsafety. The drawing of the map of Greater Albania and photographs of himself wearing military uniform and carrying weapons found in the applicant’s possession confirmed his political determination to create an imaginary, non-existent entity by 2010 through jihad. The court examined the evidence produced by A.A. and S.A., but dismissed it as unreliable, for the following reasons: the witnesses were neighbours of the applicant; the applicant’s house was in the immediate vicinity of the B.P. police station where the explosive had been placed, which had allowed him to leave the scene without being noticed; they had been instructed to provide alibis, but their statements were incoherent.
3.Proceedings before Skopje Court of Appeal and the Supreme Court
44.The applicant appealed against the judgment to the Skopje Court of Appeal. He submitted, inter alia, that he had been convicted on the basis of unlawfully obtained evidence, namely his testimony of 16August 2005, which had been given under duress. That the applicant had been subjected to police brutality was confirmed by his injuries described in the expert report of 19 August 2005. Besides that medical evidence and his clear description of events as to what had happened between 12 and 16August 2005, he could not produce any other evidence to support his allegations of abduction and ill-treatment. He further complained that he had not been legally represented when he had given the statement of 16August 2005, notwithstanding that legal representation was obligatory. Lastly, he contested the lawfulness of the search of his father’s house.
45.At a public session held on 2 June 2006, Skopje Court of Appeal, sitting in a five-judge panel, upheld the trial court’s judgment and dismissed the applicant’s appeal. The court stated:
“The complaints (that the applicant’s conviction had been based on his confession statement given under duress) were the subject of a complete and careful review by the adjudicating panel, which found them unsubstantiated. The trial court did not commit a substantive violation of procedural rules ... since there had been no evidence that (the applicant’s) statement of 16 August 2005 before the investigating judge had been given under duress; ill-treatment; physical assault; or threats. That this statement was lawful was explained by the trial court in detail (on ten pages)...
The trial court, after examining all three statements of (the applicant), gave weight to his statement of 16 August 2005 given before the investigating judge, as lawfully obtained and reliable evidence. The statement of 16 August 2005 is clear; it provides a reasonable description of the entire incident; it gives a chronological account of all details of the manner and place he had met the other two co-defendants; of all activities and preparations pre-dating the incident; of the means by which the crime had been committed; also a description of the device; the length of the fuse; the role of the co-defendants R.S. and F.R.... Details regarding the place where the device had been placed, which could have been known to the applicant as the perpetrator of the crime, matched the on-site examination report; there were also photographs, as well as the expert reports regarding the nature and description of the explosive device and the place where it had been placed...
(The applicant) gave his testimony of 16August 2005 before the investigating judge, the public prosecutor and a court interpreter, without the presence of the police; he was advised of all his rights under the Criminal Proceedings Act, including the right to remain silent and the right to an attorney; which (the applicant) waived. That he confessed to the crimes was not the result of external pressure or threats, but an act of acceptance and remorse for the unlawful actions.”
46.As regards the right of the applicant to be legally represented at his questioning before the investigating judge on 16 August 2005, the court held that notwithstanding that he had been informed of his right to mount a defence, including the right to an attorney, he had clearly stated that he would give his testimony without a lawyer. He did not mention to the investigating judge that he was in any particular mental state or that he was otherwise unfit to testify. After the investigating judge had ordered the applicant’s pre-trial detention, a court-appointed lawyer was appointed (see paragraph 14 above). That had been done in compliance with section 66 of the Criminal Proceedings Act (see paragraph 53 below). The search warrants had been issued, and the search records had been duly signed by the applicant’s father and the attending witnesses who had attested to the lawfulness of the search carried out in the house of the applicant’s father (see paragraphs 7 and 8 above).
47.The applicant and F.R. appealed against these judgments by means of a request for extraordinary review of a final judgment, which the Supreme Court, with a judgment of 14 February 2007, allowed in part and dismissed the indictment regarding trafficking in arms, which, as found by the Supreme Court, had not been submitted in accordance with the law. The court upheld the lower courts’ judgments in the remaining part and dismissed the applicant’s complaints that his conviction had been based on unlawfully obtained evidence (the statement of 16 August 2005) given allegedly under duress. The court ruled that the lower courts had examined, but nevertheless dismissed, that complaint, providing sufficient reasons for their judgments. The court concluded that the applicant’s conviction had not been based solely on his testimony of 16 August 2005. It rested also on other documentary and verbal evidence, which had been communicated to the defence.
D.Criminal proceedings on account of alleged ill-treatment of the applicant
48.On 7 March 2007 the applicant lodged with the public prosecutor’s office a criminal complaint in which he alleged that he had been subjected to police brutality. In the complaint the applicant outlined his statements given on 16 and 19 August and 8 November 2005, as well as the expert report regarding his injuries admitted in evidence in the criminal proceedings against him. He alleged that an unidentified perpetrator had tortured him. He attached a copy of the medical expert report and the court record of 19August 2005, as well as a copy of the trial court’s judgment.
49.As no action was taken regarding his criminal complaint, on 25May2010 the applicant approached the public prosecutor’s office, seeking that measures be taken to bring those responsible to justice, but he received no reply from the public prosecutor.
A.United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
56.The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46), provides, inter alia:
Article 15
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
B.Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 12 to 19 July 2004, Strasbourg, 15November 2006
57.The relevant parts of the Report read as follows:
“i. the case of A.A.
19.On 10 June 2003 A.A. was summoned to the Kumanovo Police Station for an official talk ... it has been confirmed that he was detained as from 10 am on 10June2003 ... The decision to remand A.A. in custody, which was dated 12June2003, expressly ordered that the remand imprisonment commence as from the day prior to the date of the decision (i.e., as from 11 June 2003) ... On 20 June 2003, representatives of the Ombudsman’s office visited A.A. in Skopje Prison, following allegations made by the latter of ill-treatment by law enforcement officials and incommunicado detention during the four-day period from 8 to 12 June 2003. The Ombudsman’s representatives observed the injuries displayed by A.A. and set out their conclusions concerning the case in a written document, which was also included in the court file. Their conclusions essentially confirmed A.A.’s allegations of ill-treatment and incommunicado detention during the above-mentioned period ...
At various stages during his trial, A.A. and his lawyers stated that he was abducted in Kumanovo some days prior to 10 June 2003 by a group of persons thought to be UBK officers; the date cited most consistently was 8 June. According to the defendant, the officers - some of whom were masked - placed him in an automobile with no license plates, covered his head with a black bag, and then drove him to a house in a countryside location unknown to him, where he was punched, kicked, and beaten with baseball bats and metal rods and burned with a heated metal object in order to extract a confession. The alleged ill-treatment continued over several days, in different places (villas or cottages) in the countryside; he was forced to memorise a statement to be repeated to the investigating judge, before whom he was finally brought on 12 June 2003...
22.The judge who conducted A.A.’s trial indicated to the delegation that "nothing supported [A.A.’s] allegations" which, as he pointed out, were only first made at trial. Because those allegations had not been made at the defendant’s first appearance before the investigating judge, he considered that they could not be followed up during the phase of the trial ...
ii. the case of R.B.
24.The case of R.B. contains elements which are strikingly similar to the case of A.A. According to information provided to a Commission of the Ministry of the Interior by R.B., he was abducted at 10 am on 23 May 2003 near Kumanovo Police Station by four or five persons who handcuffed him, covered his head with his jacket, and forced him into a vehicle. After a drive of some 2.5 hours, the party arrived at a certain unspecified building, where R.B. was held for five days. During that period, he was ‘ill-treated and beaten on the body with thick wooden sticks’.
26.The delegation discussed the case of R.B. as well as the report of the Commission of the Ministry of the Interior with judges from the Kumanovo Basic Court and the Prosecutor-General. It is clear from those discussions that judicial and prosecutorial authorities were aware of R.B.’s allegations relating to the period between 23 and 29 May 2003 ... However, no action was taken to investigate R.B.’s allegations and other information, even though there were indications of: ill-treatment by law enforcement officials, thought to be UBK officers; incommunicado detention in a clandestine location ...”
43.The information gathered during the July 2004 visit, including as regards reports of incommunicado detention in clandestine locations, continues to raise questions regarding the compliance of UBK officers with the general legal and regulatory framework, despite assurances to the contrary given by the national authorities.”
C.Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), from 15 to 26 May 2006, Strasbourg, 13February 2008
58.The relevant parts of the Report read as follows:
“2. Torture and other forms of ill-treatment
13.For many of the persons, the time of the alleged ill-treatment pre-dated the delegation’s visit by several weeks and any marks which might have been caused by the ill-treatment alleged would almost certainly have healed in the meantime. However, in a number of cases, the delegation’s doctors gathered medical evidence consistent with the allegations of ill-treatment either through an examination of the persons concerned or by consulting relevant medical records ...
iii)A third case concerns two persons (F.R. and F.H.) suspected at the time of having carried out the bombing of Bit Pazar Police Station on 15 July 2005. Both men alleged to have been held in unauthorised places of detention, during which time they claimed to have been severely ill-treated (see paragraph 32 in Section B below), before being transferred to police stations in Skopje, where they were ill-treated again. The description below relates to their alleged ill-treatment in Kisela Voda and Karpoš police stations, respectively...
 F.H. alleged that he was taken to Karpoš Police Station late on 15 August where he was subjected to punches and kicks, and spent the night handcuffed to a radiator (footnote no.10: On 17 August 2005 F.H. was examined by a doctor at Skopje Prison. His medical file noted: Haematoma under both elbows; haematoma on the left side of his back 8 × 3 cm. Haematoma in the back region; haematoma in the upper part of both legs (on each side); haematoma on both feet) ...
2. Unauthorised places of detention
31.In its 2004 visit report, the CPT indicated once more its concerns regarding incommunicado detention in clandestine locations and the lack of compliance by the UBK with the general legal and regulatory framework. The authorities, in their response, again reassured the Committee that the activities of the UBK were all undertaken in accordance with the law.
Nevertheless, the CPT’s delegation received detailed information, including on the apparent location of such places, that the practice of the UBK of holding persons in incommunicado detention in clandestine locations did occur until at least 2004.
32.The delegation also heard more recent accounts, dating from August 2005, concerning the alleged detention in unauthorised locations of two persons, suspected at the time of being involved in the bombing of the Bit Pazar Police Station (see also paragraph 13, iii), above). Both alleged they were ‘abducted’ on the streets of Skopje by men dressed in civilian clothes. One alleged that he was picked up on 14 August and driven, with a bag over his head, to two different places in the countryside where he claimed to have been severely beaten and subjected to a mock execution and to electric shocks. He was then taken to Kisela Voda Police Station. The second person stated that he was bundled into a car by several officers on 12 August, had a paper bag placed over his head and was driven to a house. Over the course of some three days he was allegedly repeatedly beaten with a stick on his legs and buttocks, and had his penis slammed in a drawer; he also stated that he was thrown into a swimming pool while tied up. On 15 August he was driven back to Skopje blindfolded, released in Georgi Petrov suburb, and then immediately arrested by uniformed police officers, who took him to Karpoš Police Station.
Both men were admitted to Skopje Prison on 16 August 2005, where on the following day their injuries were recorded by the prison doctor (see footnotes 9 and 10 above). Their case was subsequently taken up by the Ombudsman’s Office and, at the hearing concerning their Appeal on 5 June 2006, their lawyers contended that the statements they had made to the police had been extorted after several days of beatings.
33.In the light of the authorities’ categorical denial of unauthorised detentions, the CPT is concerned that elements of the law enforcement agencies may be operating outside the chain of command and control of the Ministry of Interior. To allay such fears, the Committee would have expected the authorities to have initiated a thorough investigation into the above allegations. To date this has not been the case.”
D.Response of the Government of "the former Yugoslav Republic of Macedonia" to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to "the former Yugoslav Republic of Macedonia" from 15 to 26 May 2006, Strasbourg, 13February 2008
59.The relevant parts of the Response read as follows:
“... In reference to the observations and the recommendations made by the Delegation of the CPT at the occasion of their visit to the Republic of Macedonia in May 2006, as stated in the letter of Ms Silvia Casale, former President of the CPT, sent on 24 November 2006, and also in the letter of 7May2007 of Mr. Mauro Palma, current President of the CPT, the competent authorities of the Government of the Republic of Macedonia are submitting their final responses:
The Ministry of Interior
As regards the CPT recommendation to conduct an independent investigation to examine the allegations of detention at secret locations, the Ministry of the Interior would like to underline that the conduct of an independent investigation regarding any complaint against unlawful or unprofessional conduct or violations of rules and regulations by officers of the Ministry of the Interior, of the Security and Counter Intelligence Department, is within the competencies of the Sector for Internal Control and Professional Standards.
Pursuing its competences and following the procedure envisaged in the Ministry’s bylaws, the Sector for Internal Control processed the complaints by the persons F.H. and F.R. submitted through the National Ombudsman of the Republic of Macedonia against the official activities undertaken by authorized officers of the Ministry in apprehending and keeping the above mentioned persons in police custody.
After the conduct of the relevant procedure and after undertaking all measures and activities to establish the facts of the case, the Sector for Internal Control and Professional Standards concluded that in undertaking the official activities in respect of the persons F.H. and F.R. the authorized officers did not overstep their authorities, nor acted in contravention to the legal regulations, i.e. that the allegations contained in the application regarding this case, submitted to the National Ombudsman by the parents of the said persons are without any grounds.
This means that the investigation regarding this case has been indeed conducted by the relevant body of the Ministry of the Interior following the prescribed procedure.
The Security and Counter Intelligence Department once again categorically rejects any allegations of use of any secret locations for conduct of official activities. All facilities in which the officers of the Security and Counter Intelligence Department work are property of the Ministry of the Interior ...”
E.“Human Rights Reports, Bureau of Democracy, Human Rights, and Labor, Macedonia”, US State Department
1.Human Rights Report, March 8, 2006
60.The relevant parts of the Report read as follows:
“... At year’s end the ombudsman was investigating allegations that two ethnic Albanian suspects in a July 15 bomb attack on a Skopje police station were detained without proper legal authority; a PSU [Interior ministry’s sector for internal control and professional standards] investigation determined there were no irregularities involved in the arrest and detention of the two men.”
2.Human Rights Report, March 6, 2007
61.The relevant parts of the Report read as follows:
“... Two ethnic Albanian suspects in a July 2005 bomb attack on a Skopje police station claimed they were detained without proper legal authority. The ombudsman’s office reported that they were unable to file criminal charges with the public prosecutor’s office regarding the allegations because the Ministry of Interior would not provide information on the identity of the officers involved in the alleged misconduct. A PSU investigation determined there were no irregularities involved in the arrest and detention of the two men.”
F.“Annual Report on Human Rights in the Republic of Macedonia in 2001”, Helsinki Committee for Human Rights
62.The relevant parts of the Report read as follows:
“Police overstepping their authority
The violation of legal provisions concerning police authority is still source of many problems in practice. On the one hand, the constitutional provisions follow the concept of human rights and freedoms in specifying the police powers regarding arrest, search, taping and questioning. On the other hand, laws and subordinated acts do not clearly define the police powers; there are no mechanisms for control and efficient punishment in case of violation of the procedure and rules. In such circumstances, the police feels as it is morally justified to reinstate (and violate) the law in view of a proclaimed aim to improve the discovery of crimes and their perpetrators.
The Macedonian police developed a practice, contrary to the constitutional provisions, to arrest suspects, carry out searches and seize objects without a court warrant. Similarly, the suspects are not brought before the court immediately, but, as a rule, they are withheld in the police, often more than twenty-four hours. The police also do not inform the suspects about their rights to remain silent and to have a lawyer before they are interviewed. Sometimes instructions are given in this direction, but in many cases they are incomplete and incorrect. There are more frequent cases of incommunicado detention of persons, namely arrest of persons and their detention at unknown locations, without their families or a lawyer being informed. The contested practice of scant police files concerning treatment with suspects became absurd, [namely there is] a complete absence of any record of persons who are arrested and held by the police. The absence of an adequate registration of detention in a police station generates other violations and impossibility to prove the overstepping by the police of their authority, especially regarding torture and inhuman treatment during arrest and [the suspects’] detention in police station ...
It is of particular concern the involvement of members of (UBK) in the arrest and interview of terrorist suspects. They (UBK members) behave completely beyond prescribed police procedures.
There are no efficient legal means to combat unlawful and wrong police actions. It is not rare that cases in which suspects are beaten and threatened with a view of obtaining information or extracting a confession are not prosecuted. The police and the public prosecutor demonstrate high resistance to investigate overstepping by the police of their authority or they refuse to witness against their colleagues when the law is violated. Some overstepping of the authority is obviously tolerated, even supported by higher police authorities so that no disciplinary measures are taken against the perpetrators or such measures are inadequate to the gravity of the wrongdoing. In the last year, the fight against extremist and terrorist groups was used as an excuse for the erosion of the fundamental guarantees of freedoms and rights ...”

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1. The applicant, Mr A.M., is a Syrian national of Kurdish origin, who was born in 1993 and lives in Geneva. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). The applicant was represented before the Court by Mr B. Wijkstrom, a lawyer practising in Geneva.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant arrived in Italy on an unknown date. His fingerprints were recorded in the EURODAC system on 17 December 2012. On 29 December 2012 the applicant entered Switzerland from Italy and sought asylum the same day. Soon after reaching Geneva, the applicant started to suffer from mental illness.
4. The applicant ’ s sister had arrived in Switzerland on 19 December 2012, had applied for asylum and had received a temporary permit which entitled her to remain on Swiss territory for the duration of her own asylum application. She was married to a man who had been granted temporary refugee status.
5. On 17 January 2013, the Swiss Federal Migration Office (“FMO”) requested that its Italian counterparts take charge of the applicant ’ s asylum request, pursuant to Article 10 § 1 of Regulation no. 343/2003/EC (the “Dublin Regulation”). On 21 February 2013, the Italian immigration authorities explicitly accepted the FMO ’ s request. On 22 February 2013, the applicant ’ s asylum request was rejected by the FMO on the basis of the fact that he had entered Switzerland from another “Dublin” State. The FMO refused the application of the humanitarian clause provided for in § 15 of the Dublin Regulation.
6. On 24 April 2013, the applicant was diagnosed with post-traumatic stress disorder, depression and back pain. He was put on a course of weekly psychiatric sessions and was given an anti-depressant (Zoloft, 50mg/day). According to the medical report, the stabilization of his psychological and social environment was a precondition for the successful outcome of the applicant ’ s therapy. According to a subsequent medical report, dated 6 June 2013, the applicant showed some risk of self-harm, which could go as far as suicide if he were returned to Italy, where he had been allegedly abused by the police. The report clearly stated, however, that the applicant ’ s death thoughts were passive and did not disclose any concrete plan (“ sans projet concret ”).
7. The applicant appealed against the decision of the FMO to the Federal Administrative Court. The appeal was rejected on 28 May 2013.
B. Relevant domestic law and relevant law of the European Union
8. The relevant domestic law is set out in the Court ’ s judgment in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 22-23 and 26-27, 4 November 2014).
9. The relevant instruments and principles of European Union law are set out in the same judgment (§§ 28-36).
10. In particular, the Court recalls that the Dublin Regulation is applicable to Switzerland under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community regarding criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (OJ L 53 of 27 February 2008). The Dublin Regulation was recently replaced by Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 (the “Dublin III Regulation”), which is designed to make the Dublin system more effective and to strengthen the legal safeguards for persons subject to the Dublin procedure.
11. The Dublin III Regulation entered into force on 1 January 2014 and was passed into law by the Swiss Federal Council on 7 March 2014.
C. The Italian context
12. A detailed description of the asylum procedure and the legal framework and organisation of the reception system for asylum seekers in Italy is also set out in the Tarakhel judgment ( §§ 36-50).

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1. The applicants are a mother, Ms J.A., born in 1963, and her two daughters R. and P., who were born in 1996 and 1999, respectively. All three applicants are Iranian nationals and are currently in the Netherlands. The President of the Section decided that the applicants ’ identity should not be disclosed to the public (Rule 47 § 4 of the Rules of Court). The applicants were represented before the Court by Ms I. Schalken, a lawyer practising in Apeldoorn.
2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 25 November 2013, the applicants applied for asylum in the Netherlands. The examination and comparison of the applicants ’ fingerprints and the verification of their identity in the European Union Visa Information System by the Netherlands authorities disclosed that on 24 July 2013 the Italian mission in Teheran had issued them with a visa for Italy. On 2 9 November 2013, the Deputy Minister for Security and Justice ( Staatssecretaris van Veiligheid en Justitie ) rejected the applicants ’ asylum requests, finding that, pursuant to Council Regulation (EC) no. 3 43/2003 of 18 February 2003 (“the Dublin Regulation”), Italy was responsible for the determination of the applicants ’ asylum request. The Minister rejected the applicants ’ argument that they risked treatment in breach of Article 3 of the Convention in Italy. The Minister also rejected as unsubstantiated the first applicant ’ s claim that she was dependent on the care of her sister who was living in the Netherlands since 1994.
5. The applicants ’ appeal against the decision of 29 November 2013 and the accompanying request for a provisional measure were rejected on 23 January 2014 by the provisional measures judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Zwolle, who upheld the Deputy Minister ’ s decision and reasoning. The provisional measures judge also rejected the first applicant ’ s argument that her medical situation did not allow her transfer to Italy, finding that the copy of her medical file submitted offered no concrete indication that in her case adequate treatment could not take place in Italy.
6. The applicants ’ further appeal to the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State was rejected on 28 February 2014. The Division found that the appeal did not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging van de aangevallen uitspraak leiden ). Having regard to section 91 § 2 of the Aliens Act 2000 ( Vreemdelingenwet 2000 ), no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.
B. Events after the introduction of the application
7. The application was introduced to the Court on 17 March 2014 and, on the same day, the applicants requested the issue of an interim measure within the meaning of Rule 39 of the Rules of Court.
8. On 2 April 2014, the President of the Section decided to adjourn the determination of the Rule 39 request pending the submission of factual information by the Government under Rule 54 § 2 (a) of the Rules of Court concerning certain practical aspects of the applicants ’ transfer to Italy.
9. The Government submitted their answers on 15 April 2014. A copy was transmitted for information to the applicants.
10. On 16 April 2014, the applicants were notified by the Departure and Repatriation Service ( Dienst Terugkeer en Vertrek ) of the Ministry of Security and Justice that their transfer to Italy had been scheduled for 22 April 2014.
11. On 17 April 2014, the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicants to Italy until further notice. The President also decided under Rule 54 § 2 (a) to put additional factual questions to the Government about practical aspects of the applicants ’ removal to Italy.
12. The Government submitted their answers on 9 May 2014 and the applicant ’ s written comments in reply were submitted on 10 June 2014.
13. On 3 December 2014, additional factual questions were put to the Government concerning the practical effects given to the Court ’ s judgment of 4 November 2014 in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)).
14. In their reply of 7 January 2015, the Government indicated that, following the Tarakhel judgment and where a case concerned a transfer of a family with minor children to Italy, the Netherlands authorities would only transfer such a family after guarantees had been obtained from the Italian authorities that the family would remain together and that information was available about the specific facility where the family was to be accommodated, in order to guarantee that the conditions there were suited to the age of the children. For this reason, the actual transfer to Italy was announced ten to fifteen days beforehand in order to give the Italian authorities the opportunity to provide information on the specific facility where the family was to be accommodated, to guarantee that the conditions in this facility were suitable and to guarantee that the family would not be split up. If these guarantees were not received within the time- limit for transfers as laid down in the Dublin Regulation, the persons involved would be channelled into the Netherlands asylum procedure. However, as long as a Rule 39 indication was in place, the Government was not in a position to commence the preparations for the applicants ’ transfer to Italy.
15. The applicants ’ comments in reply were submitted on 3 February 2015. They stated that no such guarantees had been obtained yet in respect of their transfer to Italy but that, in their view, such guarantees should be obtained before taking the actual transfer decision and not shortly before a scheduled transfer date.
16. Having noted these submissions, the Chamber decided on 24 March 2015 to lift the Rule 39 indication.
17. By letter of 5 August 2015, the Government submitted a copy of a circular letter dated 8 June 2015 and sent by the Dublin Unit of the Italian Ministry of the Interior ( Ministero dell Interno ) to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children. In its relevant part, the Netherlands Government ’ s letter reads as follows:
“ A new policy was considered necessary in view of the fact that reception facilities, specifically reserved for such families, frequently remained unavailed of as a result of families having left for an unknown destination prior to transfer, or having obtained a court order barring their transfer. In order to safeguard appropriate facilities where families may stay together, the Italian authorities earmarked a total of 161 places, distributed over twenty-nine projects under the System for Protection of Asylum Seekers and Refugees (SPRAR). The authorities confirmed that this number will be extended should the need arise. As may be inferred from the letter of 8 June, this comprehensive guarantee is intended to avoid the need for guarantees in specific cases.
The Dutch Dublin-Unit will continue to inform its Italian counterpart at an early stage of an intended transfer of a family with minor children. On 13 July 2015, the Dutch, German and Swiss migration liaison officers to Italy issued a report on SPRAR in general, including on the requirements the accommodations must fulfil, and on two projects they had visited on the invitation of the Italian Government. It is understood that later this year also the European Asylum Support Office (EASO) will report on the matter.
The Government is of the opinion that the new Italian policy will adequately safeguard that families with minor children are kept together in accommodations appropriate to their needs. ”
18. On 21 August 2015, the applicants informed the Court that they had been notified on 11 August 2015 that they should report to the police for the purpose of their placement in aliens ’ detention ( vreemdelingenbewaring ) for the purpose of their transfer to Italy. They further requested the issue of an interim measure within the meaning of Rule 39 of the Rules of Court.
19. On 25 August 2015, the President of the Section decided to adjourn the determination of the applicants ’ fresh Rule 39 request pending the submission of factual information by the Government under Rule 54 § 2 (a) of the Rules of Court concerning certain practical aspects of the applicants ’ transfer to Italy.
20. The Government submitted their replies on 27 August 2015. They informed the Court that the applicants ’ removal had been scheduled for 9 September 2015, that the Italian authorities had been informed that the transfer concerned a single mother with one adult and one minor daughter. They further submitted a copy of the standard form – prescribed under Article 31 of Regulation (EU) no. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the member State responsible for examining an application for international protection lodged in one of the member States by a third-country national or a stateless person – in which the Italian authorities had been notified on 4 August 2015 of the applicants ’ transfer to Italy. Under the heading “State of health of the person(s) to be transferred” the following is stated:
“Please note that this concerns a mother with two daughters, of which one is a minor ( Tarakhel ). The mother did not sign a declaration of consent to give you any information, however due to vital interest I would like to inform you that she has threatened with suicide concerning the transfer. She is not co-operative and will be escorted. She has explained that her daughters do not have any health issues.”
21. The applicants ’ comments on the Government ’ s submissions of 5 and 27 August 2015 were submitted on 31 August 2015. They considered that the new policy set out in the circular letter sent by the Italian authorities on 5 June 2015 only contained guarantees of a general nature and that it was likely that the 161 places referred to in that letter would be far from enough. They submitted that no individual guarantees had been obtained and that it had not been guaranteed that the first applicant would be provided with adequate mental health care. They further informed the Court that the second and third applicants were attending school in the Netherlands and that, in their opinion, a transfer to Italy would not be in their interest.
22. Having noted the parties ’ submissions, the President of the Section decided on 31 August 2015 to reject the applicants ’ fresh Rule 39 request.
C. Relevant law and practice
23. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum - seekers and transfers of asylum - seekers under the Dublin Regulation have recently been summarised in Tarakhel, cited above, §§ 28-48 ); Hussein Diirshi v. the Netherlands and Italy and 3 other applications (( dec. ), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013); Halimi v. Austria and Italy (( dec. ), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy ( dec. ), no. 73874/11, §§ 31-34 and 37 ‑ 41, 18 June 2013); Daybetgova and Magomedova v. Austria (( dec. ), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy (( dec. ), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013).

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5.The applicant is a Russian national who was born in 1960 and lived before his arrest in Vatazhnoe, a village in the Astrakhan region.
A.Criminal proceedings against the applicant
1.Covert operation
6.On or around 22 December 2003 the applicant sold drugs to B. and O.
7.On 1 March 2004 B. and O. sold a quantity of those drugs to Su., a police officer taking part in an undercover operation.
8.In March 2004 the Voronezh branch of the Federal Drug Control Service (“FSKN”) instituted criminal proceedings against B. and O. When questioned they submitted that they had purchased drugs from the applicant, who lived in Astrakhan.
9.On 20 May 2004 the FSKN instituted criminal proceedings against the applicant and ordered a “test purchase” from him, to be carried out with the help of B. and two undercover police officers, Sh. and P.
10.The covert operation took place between 3 and 5 June 2004 in a hotel in Astrakhan, where Sh. had booked a room. Audio recording devices were installed in the room and the hotel was placed under surveillance. The applicant alleged that during the operation the police had poisoned him with an unknown substance, which had resulted in him being admitted to a prison hospital.
2.The applicant’s arrest, personal search and questioning as a suspect
11.According to the arrest record drafted at 3.30 p.m. on 5 June 2004, police arrested the applicant in the hallway of the eighth floor of the hotel on the grounds that “witnesses and eyewitnesses indicated that the applicant had committed a criminal offence”. The record also indicated that immediately after his arrest the applicant had been apprised of his right to be assisted by counsel and that he had been searched. The search and its results were described as follows:
“... Mr Chukayev was asked to hand over of his own free will any powerful narcotic substances ... he had been keeping on himself unlawfully, money acquired illegally... In reply to the investigator’s request, Mr Chukayev explained that he had none of those things except money, which he had made illegally from selling a narcotic substance, heroin, in a quantity of approximately 38-50 grams. He also explained that the money he had made illegally was in his bag, and submitted that he wished to give it [to the investigator] of his own free will. As a result of the personal search, MrChukayev took the money out of his bag voluntarily ...”
12.According to the applicant, investigator L. refused to provide him with a lawyer immediately after his arrest on the grounds that no investigating activities were being carried out in respect of him, therefore he did not need a lawyer. The applicant also stated that he had not been questioned on the day of his arrest.
13.According to the arrest record, which he had signed, the applicant had made no comments concerning its contents or any other matters, and his wife had been notified of his arrest over the telephone.
14.Following the personal search, the investigator seized other money found in his pockets along with his identity papers, mobile phone and some other items. The personal search was photographed.
15.On the same day the investigator ordered fingerprint and palm print chemical expert reports. The applicant’s fingerprints and palm prints were taken. The applicant alleged that he had not been informed of the request for these reports or their results. He had only learnt of the expert analyses while reviewing the criminal case file in March 2005.
16.On 6 June 2004 the investigator started questioning the applicant as a suspect. According to the interrogation report, lawyer Or. was present during questioning. The applicant alleged that he had refused to give a statement for health reasons, whereas the interrogation report stated that he had invoked his right not to incriminate himself and refused to testify. According to the interrogation report, which he had signed, the applicant had no comments concerning its contents or any other matters.
3.The applicant’s placement in detention and the charges against him
17.On 6 June 2004 the Kirovskiy District Court of Astrakhan (“the District Court”) remanded the applicant in custody. He alleged that counsel Or. had not represented him properly at that hearing. His detention was extended on several subsequent occasions. He remained in detention until his conviction on 14 October 2005.
18.On 11 June 2004 the applicant was charged with drug offences and questioned in the presence of counsel I. It is apparent from the record of that interview duly signed by him that he had understood the charges against him and denied all of them. He refused to make a statement.
19.On 16 August 2004 new charges were brought against the applicant in the presence of his counsel. He was charged with two counts of drug trafficking, namely unlawfully acquiring, transporting and possessing drugs with intent to sell, and selling drugs to B. and O. in December 2003 and Sh. on 5 June 2004.
4.Return of the case to the prosecution
20.On 17 February 2005 the District Court returned the criminal case to the prosecutor because the applicant had not had sufficient time to review the criminal case file. In March 2005 he finished doing so.
5.The trial and the applicant’s conviction for drug offences
21.The trial took place in the District Court between April and October2005. The applicant was represented by counsel M. and I. The court heard him and several witnesses, and examined the pre-trial statements of absent witnesses as well as physical evidence.
(a)The applicant’s testimony
22.The applicant denied all the charges against him. He testified, in particular, that he had met B. in November 2003 and had helped him to buy fish wholesale. On 5 June 2004 they had met because B. had brought some money he had owed him and had wanted to arrange another purchase of fish from him with Sh.
(b)Witness statements in court as to the first set of charges
23.During the examination of the first set of charges against the applicant, namely unlawfully acquiring and possessing drugs and selling drugs to B. and O. in December 2003, the District Court heard, and the applicant questioned, O., Av., Le., Sv., Iv. and Yu. as witnesses.
(i)Statements by witness O.
24.Witness O. testified that in November 2003 he and B. had gone to Astrakhan from Voronezh and had bought fish from the applicant. Later, the applicant had contacted them and said that he could supply more fish. They had gone to Astrakhan again, where B. had bought drugs from someone. At the end of the investigation of the criminal case against him and B., the police had asked them, in exchange for a more lenient sentence, to go to Astrakhan again and incite the applicant to sell them drugs. He had refused, whereas B. had agreed.
25.O.’s testimony in court contradicted his earlier statements made during the pre-trial investigation and the prosecutor asked to have his pre‑trial statement read out in court. The applicant did not object to this request and it was granted.
26.It was apparent from O.’s pre-trial statement that he and his business partner B. had been buying fish in Astrakhan and selling it in Voronezh. In November 2003, during their stay in Astrakhan, B. had met the applicant, who had promised to help them purchase some fish. In December 2003 they had again been in Astrakhan, where they had bought heroin from the applicant and transported it to Voronezh.
(ii)Statements by police officers Av., Le., Sv. and attesting witnesses Iv. and Yu.
27.Witness Av., a police officer, testified that he had taken part in the planning of the covert operation in June 2004 and had been present at the time of the applicant’s arrest and personal search. He had heard the applicant say at the time of his arrest that he had made money from selling drugs.
28.Witnesses Le. and Sv., police officers from the Voronezh police department, submitted that they had taken part in B. and O.’s arrest in March 2004 after they had tried to sell drugs to an undercover police officer.
29.Witness Iv. submitted that in March 2004 police had asked him to be an attesting witness during a search of B.’s apartment in Voronezh.
30.Witness Yu. submitted that in March 2004 police had asked him to be an attesting witness in the covert operation.
(c)Pre-trial witness statements as to the first set of charges
31.The prosecutor submitted two requests to have B. summoned as a witness; however, according to medical documents submitted to the District Court, B. could not attend the hearing because he had a serious oncological condition (cancer) and accompanying speech problems. The District Court then granted the prosecutor’s request, despite the applicant’s objections, to have B.’s pre-trial statement read out and admitted as evidence.
32. Witness B. testified in his pre-trial statement that his business partner O. had introduced him to the applicant in November 2003. The applicant had agreed to be an intermediary in his business, which involved supplying fish in Voronezh. On or around 15 December 2003 B. and O. had come to Astrakhan to buy fish. The applicant, however, had not had enough fish for them. B. had serious financial difficulties so O. had suggested buying drugs from the applicant. O. had assured B. that he had an established drug distribution network in Voronezh and that he would help B. to sell drugs within three days to resolve his financial troubles. That had been the first time B. had learnt that the applicant sold drugs. On or around 18 December 2003 the applicant had sold 1.5 kilograms of heroin to B. and O. They had then transported it to Voronezh. The police had arrested them there when they had been trying to sell heroin.
33.The District Court also read out and admitted pre-trial statements of five prosecution witnesses as evidence.
34.Witness R. testified in his statement that in March 2004 he had organised and supervised the covert operation during which B. and O. had sold drugs to undercover officer Su.
35.Witness Su. testified that he had gone undercover to buy drugs from B. and O. during the covert operation in March 2004. He described the manner in which it had been carried out.
36. Attesting witnesses M., D. and Z. testified in their statements that in March 2004 the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of B. and O.
(d)Witness statements in court as to the second set of charges
37.During the examination of the second set of charges against the applicant the District Court questioned three police officers (Sh., K. and Sha.) and two attesting witnesses.
38.Witness Sh. submitted that in June 2005 he had taken part in the test purchase from the applicant. B. had identified the applicant as the dealer. During the covert operation he and B. had met the applicant several times in the hotel room. At their last meeting the applicant had sold Sh. about 50grams of heroin.
39.Witness K. testified that he had been responsible for monitoring the undercover operation in respect of the applicant in the summer of 2004.
40.Witness Sha. testified that he had arrested the applicant immediately after the test purchase, and that he had said at the time of his arrest that he had made money from selling drugs.
41.Witnesses Shi. and Ba. testified that the police had asked them to serve as attesting witnesses in the undercover operation, during which they had observed the manner in which the test purchase had been carried out in respect of the applicant.
(e)Witness pre-trial statements as to the second set of charges
42.The District Court also read out a pre-trial statement of absent witness B.
43.B. testified that he had agreed to take part in the test purchase from the applicant. A police officer, Sh., had been designated as the buyer. In late May B. had called the applicant to inform him that he had already sold the drugs to a certain person, someone who was interested in buying more drugs from him, but as wished to do so in person he would come to Astrakhan. The applicant had agreed and said that he would arrange the deal.
44.B. then described in detail how the covert operation had been carried out between 2 and 5 June 2004. In particular, he had called the applicant several times over those days to arrange a meeting with him. On 3June2004 the applicant had come to their hotel and B. had introduced him to Sh., who had asked the applicant to supply him with 2 kilograms of heroin and discussed other terms of the deal. The applicant had said that he could only get 1.2 kilograms of heroin and they had agreed to meet the following day. On 4 June 2004 the applicant had come to their hotel and said that he had contacted the dealers and that they would call him back. They had all stayed in the hotel room until the applicant had received a telephone call. The applicant told them that he would bring the heroin the next day. On 5 June2004 the applicant had come to their hotel with about 38grams of heroin. When Sh. had asked him about the remaining amount, the applicant had explained that he could bring more in two days. However, he had 9 grams on him for personal use so Sh. had agreed to buy that too. Sh. had handed money over to the applicant, who had said that he would go downstairs to get change. When he had left the room he had been arrested by the police.
(f)The applicant’s conviction
45.On 14 October 2005 the District Court sentenced the applicant to nine years’ imprisonment, after finding him guilty of drug offences, in particular the sale of drugs to B. and O. in December 2003 and Sh. on 5June 2004. The court admitted the following material as evidence:
(i)the statements made during trial by O., Av., Le., Sv., Iv. and Yu. and the pre-trial statements of B., R., Su., M., D. and Z;
(ii)the statements made during trial by Sh., K., Sha., Shi. and Ba. and the pre-trial statement of B.
(iii)a record of the examination of the banknotes used to buy drugs from the applicant;
(iv)the test purchase record;
(v)the arrest record of 5 June 2004;
(vi)a transcript of the audio recording made in the course of the test purchase;
(vii)forensic chemical examination reports of substances seized at the crime scene;
(viii)a forensic examination report of the applicant’s palm prints.
46.The court did not examine the forensic report of the applicant’s fingerprints or admit it as evidence.
47.The forensic examination report of the applicant’s palm prints showed that the applicant had had no drug residue on his palms.
48.The District Court did not use the applicant’s interrogation report of 6 June 2004 as evidence.
49.In his appeal against the conviction the applicant complained, among other things, that the trial court had not ensured the presence of a key prosecution witness, B.
50.On 2 March 2006 the Astrakhan Regional Court (“the Regional Court”) upheld the applicant’s conviction. It held that according to medical certificates, B. was suffering from cancer and could not speak. The trial court had therefore lawfully decided that his situation could be considered to be “other exceptional circumstances” which had prevented him from appearing at the hearing, and that his testimony could be read out in accordance with Article 281 of the Code of Criminal Procedure (see paragraph 77 below).
6.Supervisory review proceedings
(a)First set of supervisory review proceedings
51.On an unspecified date in 2006 the applicant applied to the Presidium of the Regional Court for a supervisory review of his conviction.
52.On 29 August 2006 it examined the applicant’s case by way of supervisory review. Neither the applicant nor his counsel were present at that hearing. The Presidium amended the judgment of 14 October 2005 as upheld on 2 March 2006 in so far as the applicant’s actions on 5 June 2004 had been classed as a drug offence, and held that his actions should have been classed as an attempt to commit a drug offence. It upheld the remainder of the judgment of 14October 2005.
(b)Second set of supervisory review proceedings
53.On 6 March 2009 a judge of the Supreme Court of the Russian Federation (“the Supreme Court”) referred the case to the Presidium of the Supreme Court for examination on the merits, at the request of the Prosecutor General of the Russian Federation.
54.On 2 April 2009 the Supreme Court quashed the decision of 29August 2006 by way of supervisory review, on the grounds that the applicant had not been duly informed of the date of the hearing, and had therefore been unable to attend. It remitted the case to the Presidium of the Regional Court for fresh examination.
(c)Third set of supervisory review proceedings
55.On 19 May 2009 the applicant requested the Presidium of the Regional Court (“the Presidium”) to provide him with legal aid counsel for the hearing before it. He claimed that he had insufficient means to pay for a lawyer.
56.On 2 June 2009 the Presidium examined the criminal case against the applicant by way of supervisory review. He was present at the hearing and was assisted by legal aid counselK.
57.The applicant objected to the panel of the Presidium on the grounds that it had already examined his case by way of supervisory review on 29August 2006. The Presidium dismissed this objection, finding that the decision of 29 August 2006 had been quashed on procedural grounds. There was therefore no reason to exclude these judges from the new examination of the case.
58.The applicant submitted on the merits of the case that at the time of his arrest he had not been informed of his rights or provided with a lawyer and that the record of his arrest had been forged. He also had not received a copy of the arrest record or been able to question key prosecution witness B. at the trial.
59.Having examined the case file, the Presidium found that the applicant’s grounds of appeal were unsubstantiated. In particular, it held that the arrest record of 5 June 2004 had been duly authenticated and signed by the applicant, who had been informed of his rights, including the right to be represented by counsel. He did not however request that counsel be instructed or make any comments in the record. The Presidium also noted that statements by prosecution witnesses had been read out at trial in accordance with the law.
60.The Presidium amended the judgment of 14October 2005 as upheld on 2 March 2006, held that the applicant’s actions on 5 June 2004 should have been classed as an attempt to commit a drug offence, and upheld the remainder of the judgment of 14 October 2005.
61.By a decision issued on the same day the Presidium ordered the recovery of counsel’s fees in the amount of 1,485.85 Russian roubles (RUB) (about 30euros (EUR)) from the applicant for the representation in the supervisory review proceedings.
B.Conditions of detention
62.In the course of the criminal proceedings the applicant was detained in remand prison IZ-30/1 in Astrakhan during the following periods:
(a)between 6 and 9 June 2004;
(b)between 9 July and 16 December 2004;
(c)between 28 December 2004 and 11 April 2006; and
(d)between 27 February and 26 March 2008.
63.During the first three periods the applicant was detained in different cells. All of them were overcrowded and infested with insects. They measured about 25 square metres each and contained six bunk beds. He did not have an individual sleeping place and inmates had to take turns to sleep. Some cells were not equipped with ventilation system, while in others it was not working. The electric lighting was always on. The toilet was not separated from the rest of the cells.
64.During his last period of detention the applicant was detained in cell5 located in the basement. He was not provided with any bedding or cooking utensils. Remand prison officers told him that he should have brought his own bedding. The cell was very cold and damp. Since he did not have any bedding he was obliged to sleep in his clothes. The windows were closed all the time and let in no daylight. The cell was never ventilated. The toilet was in the corner of the cell and offered no privacy. The dining table was very close to the toilet. The cell was infested with insects. Detainees could take a fifteen-minute shower once a week.
C.The applicant’s correspondence with the Court
65.On an unspecified date the applicant was transferred to correctional colony IK-2 in the Astrakhan region to serve his sentence. It appears that in 2010 he was transferred to correctional colony IK-6, also in the Astrakhan region.
66.The applicant submitted that the authorities of IK-2 and IK-6 had opened and read a number of the Court’s letters to him, in particular one dated 13 September 2006 acknowledging receipt of his application and giving him further information on the conduct of the proceedings before the Court, and others dated 21 November 2006, 15 January, 20 February, 22and 29 May 2007, and 26 February 2008. The applicant provided the Court with copies of these letters. All of them had been stamped by the colony authorities.
67.The applicant also submitted that the colony authorities had delayed in sending the Court’s letters to him.
68.The Government claimed that during his detention in IK-2 and IK-6 the applicant had sent one letter to the Court and had received 11 letters from the Court. The receipt and dispatch of letters had been properly recorded in the prison log book. Some letters addressed to the applicant had been opened for registration purposes only. They had not been censored and had been handed over to the applicant in their entirety. One letter had been forwarded to the applicant after a four-day delay due to an omission by one of the prison employees who had been duly reprimanded in the intervening period.

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1. The applicant, Ms A.T.H., was born in 1979 in Ethiopia and is currently living in the Netherlands. She was represented before the Court by Ms S. den Boer, a lawyer practising in Eindhoven.
2. The Netherlands Government were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The Italian Government, who had been invited to intervene under Rule 44 § 3 of the Rules of Court, were represented by their Agent, Ms E. Spatafora, and their co-Agent, Ms P. Accardo.
A. The circumstances of the case
3. The following summary of the facts of the case is based on the submissions of the applicant and on the replies received from the Governments of the Netherlands and Italy to factual questions put to them under Rule 49 § 3 (a) of the Rules of Court.
4. The applicant claims to be a national of Eritrea because both her parents were nationals of that country. She had lived in Ethiopia all her life when she left that country in 1999, out of fear of deportation to Eritrea, where she would have to undertake military service. Subsequently, having stayed for some time in Sudan and Libya, the applicant arrived in Italy on 2 October 2007, where she applied for asylum under another identity. She was granted a residence permit in Italy which was valid for one year until 26 November 2008 and was later extended for another three years until 7 April 2012. However, she left Italy for the Netherlands in 2009 because, having been granted a residence permit, she purportedly received no other support. She was not provided with (money for) food or medical assistance, and was forced to live on the street. Allegedly, she applied to State authorities and human rights organisations for help on a number of occasions, but without success.
5. At the time of her entry to the Netherlands in 2009, the applicant was pregnant. She was subsequently diagnosed as being HIV-positive.
6. The applicant applied for asylum in the Netherlands on 2 October 2009.
7. On 11 February 2010 the applicant gave birth to a daughter in the Netherlands.
8. On 14 April 2010 the Minister of Justice ( Minister van Justitie ) rejected the applicant ’ s request, finding Italy responsible for the determination of her asylum application, pursuant to Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). The Minister dismissed the applicant ’ s claim that, given her appalling living conditions in Italy between 2007 and 2009, she would risk treatment contrary to Article 3 if returned to Italy, considering that that claim remained wholly unsubstantiated. The general reports relied on by the applicant, which contained negative accounts of the situation of asylum-seekers in Italy, were not considered specific facts and circumstances relating to her individual case such as to form a basis for assuming that Italy would not comply with its obligations flowing from the Convention. Lastly, the applicant ’ s contention that her medical situation did not allow her transfer to Italy was rejected by the Minister, who considered that the applicant was not receiving any specialist medical treatment in the Netherlands and that, moreover, it had not been alleged or demonstrated that adequate medical treatment would not be made available to her in Italy.
9. An appeal by the applicant against the Minister ’ s decision was rejected by the Regional Court ( rechtbank ) of The Hague sitting in Maastricht on 7 July 2010. It upheld the Minister ’ s decision and reasoning.
10. A further appeal, together with a request for a provisional measure ( voorlopige voorziening ) staying her removal, was lodged by the applicant with the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ) of the Council of State. On 23 September 2010 the President of the Division granted the request for a provisional measure, deferring the applicant ’ s transfer to Italy pending the outcome of the further appeal proceedings.
11. On 14 July 2011 the Division allowed the further appeal. It quashed the judgment of 7 July 2010, as well as the Minister ’ s decision, as it found that he had failed to have due regard to the general reports submitted by the applicant concerning the situation of asylum-seekers in Italy, which might be relevant to the applicant ’ s individual case. As to the merits of the case, the Division found that the reports submitted by the applicant were insufficient to assume that her transfer to Italy would result in a violation of Article 3 due to the general living conditions of asylum-seekers in that country. Furthermore, as the applicant had been granted a residence permit in Italy earlier, she was not at risk of expulsion to her country of origin. The Division ordered that the legal consequences of the refusal of the applicant ’ s asylum request should be maintained.
12. No further appeal lay against that decision. On an unspecified date the applicant was informed that she and her child would be placed in an aliens ’ detention centre ( vreemdelingenbewaring ) for removal purposes.
B. Events after the lodging of the application
13. The application was lodged with the Court on 26 August 2011, and on the same day the applicant asked the Court to issue an interim measure within the meaning of Rule 39 of the Rules of Court.
14. On 31 August 2011, in reply to questions put to them under Rule 49 § 3 (a), the Netherlands Government informed the Court of practical aspects of the applicant ’ s scheduled transfer to Italy. A copy of that reply was sent to the applicant for information.
15. On 31 August 2011 the President of the Section decided, under Rule 39, to indicate to the Netherlands Government that it was desirable, in the interests of the parties and of the proper conduct of the proceedings before the Court, not to expel the applicant to Italy for the duration of the proceedings before the Court.
16. On 18 January 2012 the President of the Section decided that the Government of Italy should be invited, under Rule 44 § 3, to answer factual questions about the applicant ’ s situation in Italy when she had lived there previously and about the general accommodation, subsistence and medical care offered to asylum-seekers in Italy.
17. The Government of Italy submitted their answers on 12 March 2012. The applicant ’ s comments in reply were received on 25 April 2012. Additional information was received from the Government of Italy on 15 October 2013. A copy was sent to the Netherlands Government and the applicant for information.
18. On 3 December 2014 additional factual questions were put to the Netherlands Government about the practical effects given to the Court ’ s judgment of 4 November 2014 in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)).
19. In their reply of 7 January 2015, the Netherlands Government indicated that – following the Tarakhel judgment and where a case concerned the transfer of a family with minor children to Italy – the Netherlands authorities would only transfer such a family after guarantees had been obtained from the Italian authorities that the family would remain together, and where information was available about the specific facility where the family was to be accommodated, in order to guarantee that the conditions there were age-appropriate in respect of the children. For this reason, the actual transfer to Italy would be announced ten to fifteen days beforehand, in order to give the Italian authorities the opportunity to provide information on the specific facility where the family was to be accommodated, to guarantee that the conditions in this facility were suitable, and to guarantee that the family would not be split up. If these guarantees were not received within the time-limit for transfers, as laid down in the Dublin Regulation, the persons involved would be channelled into the Netherlands asylum procedure. However, as long as a Rule 39 indication was in place, the Government were not in a position to commence the preparations for the applicant ’ s transfer to Italy.
20. The applicant ’ s comments in reply were submitted on 27 February 2015. Having noted those submissions, the Chamber decided to lift the Rule 39 indication on 24 March 2015.
21. By letter of 5 August 2015 the Netherlands Government submitted a copy of a circular letter dated 8 June 2015 and sent by the Dublin Unit of the Italian Ministry of the Interior ( Ministero dell Interno ) to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children. The relevant part of the Netherlands Government ’ s letter reads:
“A new policy was considered necessary in view of the fact that reception facilities, specifically reserved for such families, frequently remained unavailed of as a result of families having left for an unknown destination prior to transfer, or having obtained a court order barring their transfer. In order to safeguard appropriate facilities where families may stay together, the Italian authorities earmarked a total of 161 places, distributed over twenty-nine projects under the System for Protection of Asylum Seekers and Refugees (SPRAR). The authorities confirmed that this number will be extended should the need arise. As may be inferred from the letter of 8 June, this comprehensive guarantee is intended to avoid the need for guarantees in specific cases.
The Dutch Dublin-Unit will continue to inform its Italian counterpart at an early stage of an intended transfer of a family with minor children. On 13 July 2015, the Dutch, German and Swiss migration liaison officers to Italy issued a report on SPRAR in general, including on the requirements the accommodations must fulfil, and on two projects they had visited on the invitation of the Italian Government. It is understood that later this year also the European Asylum Support Office (EASO) will report on the matter.
The Government is of the opinion that the new Italian policy will adequately safeguard that families with minor children are kept together in accommodations appropriate to their needs.”
22. On 31 August 2015 the Netherlands Government informed the Court that the applicant ’ s transfer to Italy under the Dublin Regulation had been scheduled for 7 September 2015, that the Italian authorities had been informed that the transfer concerned a single mother with a minor child, and that, with the applicant ’ s permission, due reference had been made to her medical condition and the treatment required. They also submitted a copy of a letter of 4 May 2015 from the Head of Office of the Italian Ministry of the Interior, Department for Civil Liberties and Immigration, received by the Dublin Unit of the Netherlands Immigration and Naturalisation Service ( Immigratie- en Naturalisatiedienst ) via e-mail as a document titled “ Tarakhel Garanzie – [the applicant ’ s name]”. The letter stated, inter alia, “We assure you that, after the transfer to Italy, this family group will be accommodated in a manner adapted to the age of the children and the family members will be kept together”. The letter enclosed a note from the Ministry of the Interior, detailing a reception project regarding the transfer of the applicant and her child.
23. The Netherlands Government further submitted a copy of the standard form – prescribed under Article 31 of Regulation (EU) no. 604/2013 of the European Parliament and of the Council of 26 June 2013 – by which the Italian authorities had been notified on 19 August 2015 of the applicant ’ s transfer to Italy, scheduled for 7 September 2015. It was indicated in that form that the applicant had health problems and that a medical report was attached to the form. The Netherlands official completing the form also noted:
“ Since this transfer concerns a mother with a minor child, I assume this family will be accommodated in one of the centres included in the list of SPRAR-projects as mentioned in the annex to your letter dated 8 June 2015.”
24. The applicant ’ s comments on the Government ’ s submissions of 5 and 31 August 2015 were submitted on 2 September 2015. On the same day she asked the Court to issue a fresh indication under Rule 39 of the Rules of Court, submitting that the information provided by the Netherlands Government contained only general guarantees, which were insufficient to ensure that she and her child would be provided with suitable accommodation and adequate medical care in Italy, emphasising her special needs as a HIV-positive person. The applicant further contended that the 161 places in SPRAR projects which were earmarked for families with minor children were far from sufficient, taking into account the high number of migrants having arrived in Italy in 2015. The applicant argued that, without individual and specific guarantees, she ran a considerable risk of ending up living on the streets, without the special care she and her child needed.
25. Having noted the parties ’ submissions, on 3 September 2015 the President of the Section decided to reject the applicant ’ s fresh Rule 39 request.
26. No further information about the current whereabouts of the applicant and her child has been submitted.
C. Relevant law and practice
27. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland (cited above, §§ 28-48); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98 ‑ 117, 10 September 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25-29 and 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013).
28. The Joint United Nations Programme on HIV and AIDS (UNAIDS) estimated that in 2013 a total of 120,000 (between 110,000 and 140,000) persons aged 15 or more with HIV or AIDS were living in Italy, of whom 13,000 (between 11,000 and 15,000) were women. According to a comparative study carried out by the HUMA Network (Health for Undocumented Migrants and Asylum Seekers) – covering 16 European Union member States and published in November 2010 – on the question of whether undocumented migrants and asylum-seekers are entitled to access health care in the European Union, asylum-seekers in Italy are entitled to access health care on equal grounds as Italian nationals with regard to coverage and conditions. The same applies for unaccompanied children.
29. An information brochure on access to the Italian National Health Service by non-EU nationals, published (in English, among other languages) by the National Institute for Health, Migration and Poverty ( Istituto Nazionale Salute, Migrazione e Povertà ) of the Italian Ministry of Health, and provided to asylum-seekers and undocumented migrants, states that asylum-seekers have a statutory right to registration in the National Health Service (SSN) system and to be provided with an SSN health insurance card. It further reads:
“Asylum or international protection seekers are exempted from the co-pay fee following the statement of indigence. This principle is valid up to six months following the submittal of the asylum application. As of the seventh month, asylum seekers are entitled to work. In order to notify their status of unemployment, they need to register with the Employment Office and obtain the exemption card for low-income reasons.”

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5.The applicant was (to her knowledge) born in 1996 and at the time of the introduction of the application was detained in Lyster Barracks, Ħal Far.
A.Background to the case
6.The applicant entered Malta in an irregular manner by boat on 27May 2012. Upon arrival, she was registered by the immigration police, given an identification number (12H-006), and presented with two documents in English, one containing a Return Decision and the other a Removal Order.
7.The Return Decision stated that she was a prohibited immigrant by virtue of Article5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and that she had the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that she would remain in custody until removal was effected, and that an entry ban would be issued against her. The two documents further informed the applicant of her right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.
8.According to the applicant, the contents of the decision in English were not explained to her, although she could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal, and the migrants translate for each other.
9.The applicant was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language she did not understand. According to the Government the applicant did not request a booklet in another language.
10.In accordance with Article 14(2) of the Immigration Act (see Relevant domestic law), the applicant was detained in Lyster Barracks.
B.Initial proceedings
11.During the registration process upon her arrival, in the absence of an interpreter, the applicant’s age was recorded as twenty-six (born 1986). She claims to have told the authorities that she was sixteen years old. According to the Government, it emerged from the authorities’ records (not submitted to the Court) that the applicant declared that she was born in 1986.
12.On 30 May 2012 the applicant appealed against the Removal Order and Return Decision. By the date of the introduction of the application (4February 2013), no date had been set for her appeal hearing by the IAB.
C.Asylum proceedings
13.A few days following her arrival the applicant was called for an information session provided by the staff of the Office of the Refugee Commissioner. She was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta(see Relevant domestic law below). She stated on the form that she was sixteen years old.
D.The AWAS Age-Assessment Procedure
14.On an unspecified date some two months after her arrival in Malta, the applicant was called for an interview with a member of Agency for the Welfare of Asylum Seekers (AWAS) staff, who informed her that as she had claimed to be sixteen years old she would be interviewed by three members of AWAS staff with a view to assessing the veracity of her claim that she was a minor.
15.About a week later, three people from AWAS interviewed her. During the interview a male detainee provided interpretation services. After the interview they informed her that as they could not confirm her minor age through the interview they would send her for a further age verification (FAV) test - an X-ray of the bones of the wrist. The applicant was taken for the FAV test about two months after her interview, on 5 October 2012.
16.At the beginning of November, as the applicant had not received any decision from the AAT, she asked a woman from AWAS (who was visiting the detention centre to conduct interviews with other detainees who had health problems) whether she knew anything about her case. The woman told her that her X-ray was being assessed and if she was found to be a minor she would be released soon. Some three weeks later, on 22November 2012, some other people from AWAS went to the centre and told her that according to the test she was not a minor but an adult. During the latter meeting a fellow (female) detainee provided translation.
17.By the date of the lodging of the application the applicant had not received a written decision informing her of the outcome of the age assessment procedure. According to the Government a decision on the applicant’s age was taken on 14 January 2013; no date was submitted regarding notification. The Government submitted that since no care order was issued the applicant was obviously not a minor.
E.Conditions of detention
18.The applicant was detained in Hermes Block in Lyster Barracks (see paragraph10 above), in conditions which she considered prison-like and basic. The Government contested this allegation.
19.She explained that the Block is divided into five self-contained zones (one on the ground floor, two on the first floor and two on the second floor) and four of the zones (B,C,D,E) were virtually identical. For the first few days of her detention she had been held in Zone E which at the time accommodated families (i.e. couples with or without children), and then she was moved to Zones C and D with other single women.
20.These zones contained a number of dormitories (containing bunk beds but no lockers or cupboards for personal belongings), ten showers and toilets, a small kitchen with one or two hot plates and a fridge (no further storage for food, which was stored in open boxes accessible to insects, was available), and a common room with six basic metal tables and benches screwed to the ground, together with a television. Blankets hanging from bunk beds were the only means of privacy.
21.Access to the zones was through metal gates which were kept locked all day, and detainees could leave the zone for one and a half hours per day, which they could spend in a small dusty yard. Windows were barred and most of them glazed with opaque Perspex (which was removed in the summer months for air, though they then let air through in the cold winter months). On the one hand, in summer the facility was often crowded and the heat would become oppressive despite the presence of ceiling fans. On the other hand, in winter it was unbearably cold as the facility was not heated and, moreover, was exposed to the elements as there were no adjoining buildings.
22.The applicant considered that the facility was shared by too many people – in summer the applicant’s dormitory (one out of three in the zone) was shared by twenty women – and agreement amongst so many different persons having cultural and linguistic differences was difficult. However, at the time of the introduction of the application, the applicant was in less crowded conditions, sharing an entire zone with only twenty-five other women, most of whom were Eritrean and Somali.
23.The applicant noted that since her arrival she had only been provided with two bed sheets, a small towel, a blanket, a T-shirt, one pillow and a pillow case, a few items of underwear and a pair of flip-flops, as well as a plastic plate, cup, and set of cutlery. Other items of clothing were distributed sporadically. She stated that she was never provided with a quilt, a bra or running shoes. While toilet paper was distributed on a monthly basis, certain basic items such as sanitary pads were missing. In winter detainees were not systematically provided with warm clothes and closed shoes, which were distributed according to what was received by way of donation and which was not sufficient to supply the needs of all detainees. Although blankets were distributed to everyone, the building was not heated and winter months were unbearably cold.
24.Detainees had little to do all day, and only limited access to open air. In particular, the applicant noted that she was let out into the small dirty yard for the first time only after a few months of detention. While in the yard, other male detainees called out names and picked on the women from the windows of their rooms overlooking the yard. The applicant referred to the report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26 – 30 September 2011”, May 2012 (see paragraph 45 below).
25.She also noted that although telephone cards were distributed (each of 5 Euro (EUR)), the credit they contained was often insufficient to make long distance calls and no cheaper ways of keeping contact with the family or outside world were available as they had no internet access. By the time she lodged her application she had received EUR 25 in credit. The applicant also considered inappropriate that detainees were given the same soap to use for their bodies, hair, clothes and floor. The applicant further made reference to an incident with a detention officer who had pushed her down the stairs and tried to forcefully resuscitate her by slapping her and grabbing different parts of her face leaving her in pain – she, however, admitted that she could not recognise the officer in question and that she had feared reprisal had she reported the matter.
26.Furthermore, as could be seen from the results of the Jesuit Refugee Service (JRS) Europe study on detention of vulnerable asylum seekers, the physical conditions of detention and their impact on the physical and mental well-being of detainees were exacerbated by other factors[1]. These factors included: length of detention, lack of constructive activities to occupy detainees, overcrowding, limited access to open air, difficulties in communication with staff and with other detainees, and lack of information about one’s situation. Moreover, there was a lack of any real possibility of obtaining effective redress and inmates knew that detention was not serving any useful purpose and was in no way proportionate to the aim to be achieved.
27.The applicant submitted that all of those objective factors had had a particular impact on her because of her personal circumstances, particularly her young age, her inability to communicate in anything but Somali and the fact that as a young woman she was detained in a facility administered almost exclusively by men.
F.Latest developments
28.On 24 January 2013 the applicant was called for an interview with the Refugee Commissioner. By means of a decision of the Refugee Commissioner of 2 February 2013, the applicant was granted subsidiary protection in Malta. She was notified of this decision and released on 7February 2013.
40.The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011, published on 4 July 2013, in so far as relevant in connection with Lyster Barracks, reads as follows:
“44. At the time of the visit, Lyster Detention Centre was accommodating 248foreign nationals (including 89 women), in five different detention units.
In keeping with the Government’s Detention Policy, no unaccompanied minors were held in either of the two detention centres visited. Upon issuance of a care order by the Minister of Social Policy, unaccompanied minors were always transferred to a juvenile institution. Single women were always accommodated separately from male detainees.
47. More generally, the CPT has serious misgivings about the fact that female detainees at Lyster Detention Centre were frequently supervised exclusively by male detention officers, since only one female officer was employed by the Detention Service at the time of the visit.
The CPT recommends that the Maltese authorities take steps as a matter of priority to ensure the presence of at least one female officer around the clock at Lyster Detention Centre.
48. As was the case in 2008, a number of detainees complained about disrespectful behaviour and racist remarks by detention officers (in particular in the Warehouses at Safi Detention Centre). The CPT reiterates its recommendation that the Maltese authorities remind all members of staff working in detention centres for foreigners that such behaviour is not acceptable and will be punished accordingly.
55. At both Lyster [and Safi Detention Centres], material conditions have improved since the 2008 visit. In particular, at Lyster Barracks, these improvements are significant: the Hermes Block, which had been in a very poor state of repair at the time of the 2008 visit, had been completely refurbished and the Tent Compound, which had also been criticised by the Committee in the report on the 2008 visit, had been dismantled. At Safi Barracks, additional renovation work had been carried out in Block B. It is noteworthy that all foreign nationals received personal hygiene products on a regular basis and were also supplied with clothes and footwear.
...
56. At Lyster Detention Centre, the situation had clearly improved as regards activities. Each zone comprised a communal room, and groups of detainees could attend English-language courses which were organised by an NGO (usually, three times a week for two hours per group). Further, single women and couples were provided with food so that they could prepare meals themselves in a kitchenette. Every day, detainees could go outside and play football or volleyball in a rather small yard for a total of two hours.
...
60. As regards contact with the outside world, the CPT welcomes the fact that, in both detention centres visited, foreign nationals could receive telephone calls from the outside. They were also were provided with telephone cards free of charge on a regular basis, although these were limited to a total of 5€ every two months.”
41.In so far as relevant, extracts from a report by Human Rights Watch in 2012 called “Boat-ride to Detention”, reads as follows:
“Children lack adequate information about the age determination process (including whether documents are accepted and whether there is an appeal). Some migrants who request an age determination procedure are seemingly ignored: interviewees reported telling authorities they were minors but never receiving age determination. Other children never request an age determination because they lack information on the procedure.”
“The government should do more to provide children with reliable information about the age determination procedure. Children receive no guidance on the content of the procedure, whether documents will be useful, or whether they can appeal. Malta has taken considerable steps in providing information to migrants about the process for asylum, including by conducting information sessions to every incoming migrant. It could easily do the same for the age determination process.”
42.A 2014 report issued by Aditus, a local NGO entitled “Unaccompanied Minor Asylum-Seekers in Malta: a technical Report on Ages Assessment and Guardianship Procedures, reads as follows:
“The procedural information provided to persons undergoing age assessment is extremely limited which further excludes the applicant from active participation in the process.”
“Under the old procedure [2012] persons were not adequately informed of the possibility of appeal... persons were also typically not informed of the reasons for a negative decision.”
“Most experts agree that age assessment is not a determination of chronological age but rather an educated guess. There are risks that due to the inaccuracy of age assessment techniques, persons claiming to be minors may have their age mis‑assessed.”
43.The 9th General report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (the “CPT”) on the CPT’s activities covering the period 1January to 31 December 1998, at point 26, reads as follows:
“Mixed gender staffing is another safeguard against ill-treatment in places of detention, in particular where juveniles are concerned. The presence of both male and female staff can have a beneficial effect in terms of both the custodial ethos and in fostering a degree of normality in a place of detention.
Mixed gender staffing also allows for appropriate staff deployment when carrying out gender sensitive tasks, such as searches. In this respect, the CPT wishes to stress that, regardless of their age, persons deprived of their liberty should only be searched by staff of the same gender and that any search which requires an inmate to undress should be conducted out of the sight of custodial staff of the opposite gender; these principles apply a fortiori in respect of juveniles.”
44.Rule 53 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, reads as follows:
“(1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.”
45.The report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26 – 30 September 2011”, May 2012, pointed out, inter alia, that:
“The ICJ delegation found a lack of leisure facilities in all three detention facilities visited. ... In the Lyster Barracks there was also a small recreation yard, but without direct access from the detention section. Detainees had two hours per day of “air” in the courtyard. They reportedly seldom received visits from outside, apart from the occasional NGO.”

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A.The applicant’s background prior to his criminal prosecution
6.The applicant is a Kyrgyz national of Uzbek ethnic origin. He was born on 1 September 1988 and resided in the town of Osh in Kyrgyzstan. After mass disorder and inter-ethnic clashes in the region in June 2010, he fled to Russia, together with many other ethnic Uzbeks, for fear of ethnic‑motivated violence. It appears that his next of kin remain in Kyrgyzstan.
7.In August 2010 the applicant arrived in Russia and received a temporary residence permit for the period from 3 December 2010 to 3December 2013.
B.Criminal proceedings against the applicant in Kyrgyzstan and the ensuing extradition proceedings in Russia
8.After the applicant’s departure from Kyrgyzstan, on 25 June 2010 the Kyrgyz authorities charged him in absentia with involvement in riots accompanied by violence, inter-ethnic clashes, arson, use of firearms and destruction of property on 17 June 2010 in the city of Osh, Kyrgyz Republic. The applicant was also alleged to have kidnapped someone.
9.On an unspecified date in 2010 the applicant was put on a list of fugitives in Kyrgyzstan; on 12 February 2011 he was put on a list of fugitives in Russia as well.
10.On 29 October 2012, while travelling by train in Russia, the applicant was arrested by the transport police. He denied his involvement in the 2010 events. On 31 October 2012, the Krasnogvardeyskiy District Court of St Petersburg ordered the applicant’s detention for a month. His detention was subsequently extended numerous times.
11.The Kyrgyz authorities confirmed their intention to seek the applicant’s extradition. On 23 November 2012, the Prosecutor General’s Office of the Russian Federation received a request from the Kyrgyz Republic seeking the applicant’s extradition. On 13August2013 it granted the request.
12.The applicant and his counsel appealed against the extradition order claiming, in particular, that he would face a risk of torture and ill‑treatment since ethnic Uzbeks were a particularly vulnerable group following the June2010 violence in the southern regions of Kyrgyzstan. On 26November 2013 the St Petersburg City Court quashed the extradition order, finding it unlawful, and released the applicant. It appears that the applicant is currently at large.
13.On 25 February 2014 the Supreme Court of Russia quashed the ruling of the St Petersburg City Court of 26 November 2013 and upheld the extradition order. In its decision of 25 February 2014 the Supreme Court held, in particular, as follows:
“... the conclusion of the lower court that the prosecutor’s office failed to examine the question of the risk of unacceptable treatment in the Kyrgyz Republic in the event of [the applicant’s] extradition does not fit the case-file materials. The Prosecutor General’s office of the Kyrgyz Republic has given guarantees to the effect that [the applicant] would only be prosecuted in respect of the crimes indicated in the initial extradition request and the behaviour of a general criminal character. They guaranteed that he would not be prosecuted on the basis of political or discriminatory reasons, including motives based on his origins, social background, the office he may have occupied, the pecuniary situation, gender, race, ethnicity, language, convictions and relations to religion, that [the applicant] would be given all possibilities to defend himself, that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment, and that if he was convicted and after having served the sentence he would be able to leave the territory of the Kyrgyz Republic freely. The materials submitted by the defence ... do not undermine the real guarantees provided by the Kyrgyz Republic in respect of [the applicant] and are sufficient to exclude any risk of his cruel treatment ...”
14.According to the Russian Government, the Prosecutor General’s Office of the Kyrgyz Republic gave all necessary guarantees that the applicant’s criminal prosecution would be carried out in strict compliance with the national law and the international obligations of the Kyrgyz Republic. Among other things, it guaranteed that the applicant would not be subjected to torture or other cruel, humiliating or degrading treatment; he would be guaranteed the right to defence, and Russian diplomatic staff would be given an opportunity to visit him in the detention facility.
C.Temporary asylum proceedings
15.On 7 November 2012, while in detention, the applicant applied to the Federal Migration Service for refugee status. He claimed, among other things, that a criminal case had been opened against him exclusively because of his ethnic origin and that he would face a real risk of ill‑treatment if he were sent back to Kyrgyzstan.
16.Following the examination of the applicant’s asylum request, by its decision of 19 March 2013 the Department of the Federal Migration Service for St Petersburg and Leningrad region refused to grant refugee status to the applicant as he did not meet the necessary criteria defined by the national law. The Federal Migration Service of Russia took a final administrative decision on the matter on 7 October 2013, stating as follows:
“... the basic criterion for granting a person temporary asylum is the presence of a well-founded suspicion that if returned to his/her home country, that person could become a victim of torture or other cruel, inhuman or degrading treatment or punishment.
The analysis of the decision of the migration authorities in charge of St Petersburg and the Leningrad Region, the materials of the applicant’s personal case file, the information communicated by the applicant, as well as the available information from the Ministry of Foreign Affairs of Russian and the Federal Migration Service of Russia concerning the situation in Kyrgyzstan has shown that the migration authorities in charge of St Petersburg and the Leningrad Region have fully examined all the circumstances of the case and lawfully concluded that there were no humanitarian reasons compelling the authorities to grant the applicant a possibility to remain temporarily on the territory of the Russian Federation.
According to the information submitted by the Prosecutor General’s office, an agreement has now been reached with the Kyrgyz authorities which enables officials at the Embassy of the Russian Federation to monitor the compliance by the authorities of Kyrgyzstan with the standards of international law in respects of persons extradited to the Kyrgyz Republic.
The monitoring has established that the decision of the UFMS in charge of StPetersburg and the Leningrad Region to refuse to grant the applicant temporary asylum on the territory of the Russian Federation did not breach the legislation on refugees. The decision ... is lawful, justified and should be upheld.”
17.The applicant’s representatives appealed against the decision of 7October 2013. By a final decision of 28 July 2014 the Moscow City Court rejected the applicant’s appeal.
The documents concerning Kyrgyzstan
19.For a number of relevant reports and items of information, see Makhmudzhan Ergashev v. Russia (no. 49747/11, §§ 30-46, 16October 2012).
20.In April 2012 Kyrgyzstan submitted its Second report on implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, for the period from 1999 to 2011 (CAT/C/KGZ/2). It reads as follows:
“6.The concept of ‘torture’ was introduced into the Criminal Code in 2003, when the Code was amended with article 305-1, entitled ‘Torture’, which reads as follows:
‘The deliberate infliction of physical or mental suffering on any person for the purpose of extracting information or a confession, punishing a person for an act the person has committed or of which he or she is suspected, as well as for the purpose of intimidating or coercing the person to commit certain actions, when such acts are committed by an official or by any other person with the knowledge or consent of an official, shall be punishable by deprivation of liberty of 3 to 5 years, with or without disqualification to hold certain posts for 1 to 3 years.’
...
15.Under article 24 of the Constitution, everyone has the right to freedom and security of person. No one may be arrested for more than 48 hours without a judicial order, and every person under arrest must urgently, and in any case within 48 hours of the arrest, be presented before a court so as to ascertain whether the arrest is legal. Every arrested person has the right to verify the legality of the arrest in accordance with the procedures and time frames established by law. In the absence of justification for an arrest, the person in question must be released immediately.
16.In all cases, arrested persons must be informed immediately of the reasons for their arrest. Their rights must be explained to them and ensured, including the right to a medical examination and to receive the assistance of a physician. From the actual moment of arrest, the security of arrested persons is ensured; they are provided with the opportunity to defend themselves on their own, to have the qualified legal assistance of a lawyer and to be defended by a defence lawyer ...”
21.The UN Committee on the Elimination of Racial Discrimination considered the fifth to seventh periodic reports of Kyrgyzstan and in February 2013 made the following concluding observations (CERD/C/KGZ/CO/5-7):
“6.The Committee notes with concern that, according to the State party’s report (CERD/C/KGZ/5-7, para. 12) and other reports, Uzbeks were the main victims of the June 2010 events but were also the most prosecuted and condemned. While noting that the State party itself has recognized this situation and is considering ways to correct it, the Committee remains deeply concerned about reports of biased attitudes based on ethnicity in investigations, prosecutions, condemnations and sanctions imposed on those charged and convicted in relation to the June 2010 events, who were mostly of Uzbek origin. The Committee is also concerned about information provided in the State party’s report relating to evidence of coercion to confess to crimes that the persons did not commit, pressure on relatives by representatives of law enforcement agencies, denial of procedural rights ..., violations of court procedures, threats and insults to the accused and their counsel, attempts to attack the accused and his relatives which according to the State party resulted in a violation of the right to a fair trial ...
[T]he Committee recommends that the State party in the context of the reform of its judicial system:
(a)Initiate or set up a mechanism to review all cases of persons condemned in connection with the June 2010 events, from the point of view of respecting all necessary guarantees for a fair trial;
(b)Investigate, prosecute and condemn, as appropriate, all persons responsible for human rights violations during the June 2010 events, irrespective of their ethnic origin and their status; ...
7.While noting information provided by the State party, the Committee remains concerned at reports that a great number of persons, mostly from minority groups, in particular Uzbeks, have been detained and have been subjected to torture and other forms of ill-treatment on the basis of their ethnicity following the June 2010 events. The Committee is also concerned at information that women from minority groups were victims of acts of violence, including rape, during, and in the aftermath of the June 2010 events. The Committee is particularly concerned that all such acts have not yet been investigated and those responsible have not been prosecuted and punished (arts. 5 and 6).
In line with its general recommendation No. 31 (2005), the Committee recommends that the State party, without any distinction based on the ethnic origin of the victims, take appropriate measures to:
(a)Register and document all cases of torture, ill-treatment and violence against women from minority groups, including rape;
(b)Conduct prompt, thorough and impartial investigations;
(c) Prosecute and punish those responsible, including police or security forces; ...”
22.The UN Committee against Torture considered Kyrgyzstan’s second periodic report and in December 2013 issued concluding observations (CAT/C/KGZ/CO/2), which read, in so far as relevant, as follows:
“Impunity for, and failure to investigate, widespread acts of torture and ill‑treatment
5.The Committee is deeply concerned about the ongoing and widespread practice of torture and ill-treatment of persons deprived of their liberty, in particular while in police custody to extract confessions. These confirm the findings of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/19/61/Add.2, paras.37 et seq.), and of the United Nations High Commissioner for Human Rights (A/HRC/20/12, paras.40–41). While the Kyrgyz delegation acknowledged that torture is practised in the country, and affirmed its commitment to combat it, the Committee remains seriously concerned about the substantial gap between the legislative framework and its practical implementation, as evidenced partly by the lack of cases during the reporting period in which State officials have been prosecuted, convicted and sentenced to imprisonment for torture (arts.2, 4, 12 and 16).
6.The Committee is gravely concerned at the State party’s persistent pattern of failure to conduct prompt, impartial and full investigations into the many allegations of torture and ill-treatment and to prosecute alleged perpetrators, which has led to serious underreporting by victims of torture and ill-treatment, and impunity for State officials allegedly responsible (arts.2, 11, 12, 13 and 16).
In particular, the Committee is concerned about:
(a)The lack of an independent and effective mechanism for receiving complaints and conducting impartial and full investigations into allegations of torture. Serious conflicts of interest appear to prevent existing mechanisms from undertaking effective, impartial investigations into complaints received;
(b)Barriers at the pre-investigation stage, particularly with regard to forensic medical examinations, which in many cases are not carried out promptly following allegations of abuse, are performed by medical professionals who lack independence, and/or are conducted in the presence of other public officials, leading to the failure of the medical personnel to adequately record detainees’ injuries, and consequently to investigators’ failure to open formal investigations into allegations of torture, for lack of evidence;
(c)The apparent practice by investigators of valuing the testimonies of individuals implicated in torture over those of complainants, and of dismissing complaints summarily; and
(d)The failure of the judiciary to effectively investigate torture allegations raised by criminal defendants and their lawyers in court. Various sources report that judges commonly ignore information alleging the use of torture, including reports from independent medical examinations.
...
7.The Committee remains seriously concerned by the State party’s response to the allegations of torture in individual cases brought to the attention of the Committee, and particularly by the State party’s authorities’ refusal to carry out full investigations into many allegations of torture on the grounds that preliminary enquiries revealed no basis for opening a full investigation. The Committee is gravely concerned by the case of Azimjan Askarov, an ethnic Uzbek human rights defender prosecuted on criminal charges in connection with the death of a police officer in southern Kyrgyzstan in June 2010, which has been raised by several Special Rapporteurs, including the Special Rapporteur on the situation of human rights defenders (A/HRC/22/47/Add.4, para.248; A/HRC/19/55/Add.2, para.212). Mr.Askarov has alleged that he was beaten severely by police on numerous occasions immediately following his detention and throughout the course of the criminal proceedings against him, and that he was subjected to repeated violations of procedural safeguards such as prompt access to a lawyer and to an effective, independent medical examination. The Committee notes that independent forensic medical examinations appear to have substantiated Mr.Askarov’s allegations of torture in police custody, and have confirmed resulting injuries including persistent visual loss, traumatic brain injury, and spinal injury. Information before the Committee suggests that Mr.Askarov’s complaints of torture have been raised on numerous occasions with the Prosecutor’s office, as well as with the Kyrgyz Ombudsman’s office, and with Bazar-Korgon District Court, the Appeal Court and the Supreme Court. To date, however, the State party’s authorities have declined to open a full investigation into his claims, relying on allegedly coerced statements made by Mr.Askarov while in police custody that he had no complaints. The Committee understands that the State party is presently considering the possibility of further investigating these claims. The Committee is concerned by the State party’s refusal to undertake full investigations into allegations of torture regarding other cases raised during the review, including those of Nargiza Turdieva and Dilmurat Khaidarov (arts.2, 12, 13 and 16).
...
8.The Committee remains concerned at the lack of full and effective investigations into the numerous allegations that members of the law enforcement bodies committed torture and ill-treatment, arbitrary detention and excessive use of force during and following the inter-ethnic violence in southern Kyrgyzstan in June 2010. The Committee is concerned by reports that investigations, prosecutions, condemnations and sanctions imposed in relation to the June 2010 events were mostly directed against persons of Uzbek origin, as noted by sources including the Committee on the Elimination of Racial Discrimination, in 2013 (CERD/C/KGZ/CO/5-7, paras.6–7). The Committee further regrets the lack of information provided by the State party on the outcome of the review of 995criminal cases relating to the June 2010 violence (arts.4, 12, 13 and 16).
...
Coerced confessions
13.The Committee is seriously concerned at numerous, consistent and credible reports that the use of forced confessions as evidence in courts is widespread. While noting that the use of evidence obtained through unlawful means is prohibited by law, it is deeply concerned that in practice there is a heavy reliance on confessions within the criminal justice system. The Committee is further concerned at reports that judges have frequently declined to act on allegations made by criminal defendants in court, or to allow the introduction into evidence of independent medical reports that would tend to confirm the defendant’s claims of torture for the purpose of obtaining a confession. The Committee regrets the lack of information provided by the State party on cases in which judges or prosecutors have initiated investigations into torture claims raised by criminal defendants in court, and is alarmed that no official has been prosecuted and punished for torture even in the single case brought to its attention in which a conviction obtained by torture was excluded from evidence by a court – that of Farrukh Gapiurov, who was acquitted by the Osh Municipal Court of involvement in the June 2010 violence (arts.2 and 15).”
23.The Kyrgyzstan chapter of the 2013 Annual Report by Amnesty International, in so far as relevant, reads as follows:
“Torture and other ill-treatment remained pervasive throughout the country and law enforcement and judicial authorities failed to act on such allegations. The authorities continued to fail to impartially and effectively investigate the June 2010 violence and its aftermath and provide justice for the thousands of victims of serious crimes and human rights violations, including crimes against humanity. Ethnic Uzbeks continued to be targeted disproportionately for detention and prosecution in relation to the June2010 violence.
...
The Osh City Prosecutor stated in April that out of 105 cases which had gone to trial in relation to the June 2010 violence, only two resulted in acquittals. Only one of those cases involved an ethnic Uzbek, Farrukh Gapirov, the son of human rights defender Ravshan Gapirov. He was released after the appeal court found his conviction had been based on his confession which had been obtained under torture. However, no criminal investigation against the police officers responsible for his torture was initiated.
By contrast, the first – and, to date, the only – known conviction of ethnic Kyrgyz for the murder of ethnic Uzbeks in the course of the June 2010 violence was overturned.”
24.Human Rights Watch’s “World Report 2013: Kyrgyzstan” contains the following findings concerning the situation in Kyrgyzstan in 2012:
“Kyrgyzstan has failed to adequately address abuses in the south, in particular against ethnic Uzbeks, undermining long-term efforts to promote stability and reconciliation following inter-ethnic clashes in June 2010 that killed more than 400people. Despite an uneasy calm in southern Kyrgyzstan, ethnic Uzbeks are still subjected to arbitrary detention, torture, and extortion, without redress.
...
Local human rights non-governmental organizations reported that the overall number of reported incidents of arbitrary detention and ill-treatment in police custody continued to decrease in 2012 in the south, although they still document new cases. Groups also reported the growing problem of law enforcement extorting money, in particular from ethnic Uzbeks, threatening criminal prosecution related to the June2010 events. Victims of extortion rarely report incidents for fear of reprisals.
Investigations into the June 2010 violence have stalled. Trials of mostly ethnic Uzbeks connected to the violence continued to take place in violation of international fair trial standards, including the trials of Mahamad Bizurukov and Shamshidin Niyazaliev, each of whom was sentenced to life in prison in October2012.
Lawyers in southern Kyrgyzstan continued to be harassed in 2012 for defending ethnic Uzbek clients who were charged with involvement in the June 2010 violence, perpetuating a hostile and violent environment that undermined defendants’ fair trial rights. On January 20, a group of persons in Jalalabad verbally and physically attacked a lawyer defending the ethnic Uzbek owner of an Uzbek-language television station. No one has been held accountable for such violence against lawyers.
...
In hearings related to the June 2010 violence, judges continue to dismiss, ignore, or fail to order investigations into torture allegations. In a rare exception, four police officers were charged with torture after the August 2011 death of Usmonzhon Kholmirzaev, an ethnic Uzbek, who succumbed to internal injuries after he was beaten by police in custody. Repeated delays in proceedings have meant that over a year later, the trial has yet to conclude. In June, after Abdugafur Abdurakhmanov, an ethnic Uzbek serving a life sentence in relation to the June 2010 violence, died in prison, authorities did not open an investigation, alleging he committed suicide.”
25.In its report “Kyrgyzstan: 3 Years After Violence, a Mockery of Justice” issued in June 2013, Human Rights Watch observed, among other things, the following:
“Criminal investigations into the June 2010 violence have been marred by widespread arbitrary arrests and ill-treatment, including torture. Unchecked courtroom violence and other egregious violations of defendants’ rights have blocked the accused from presenting a meaningful defense. Human Rights Watch has documented how investigations disproportionately and unjustly targeted ethnic Uzbeks, and how this group has a heightened risk of torture in custody.
...
The ethnic clashes erupted in southern Kyrgyzstan on June 10, 2010. The violence, which lasted four days, left more than 400 people dead and nearly 2,000 houses destroyed. Horrific crimes were committed against both ethnic Kyrgyz and ethnic Uzbeks. However, while ethnic Uzbeks suffered the majority of casualties and destroyed homes, the majority of those prosecuted for homicide have been ethnic Uzbeks.
...
Human Rights Watch’s research from 2010-2013 in southern Kyrgyzstan found that prosecutorial authorities have repeatedly refused to investigate serious and credible allegations of torture. Courts have relied heavily on confessions allegedly extracted under torture to sentence defendants to long prison terms.”
26.The Kyrgyzstan chapter of the 2014 World Report published by Human Rights Watch reads, in so far as relevant, as follows:
“Shortcomings in law enforcement and the judiciary contribute to the persistence of grave abuses in connection to the ethnic violence in southern Kyrgyzstan in June2010. Ethnic Uzbeks and other minorities remain especially vulnerable. Courtroom attacks on lawyers and defendants, particularly in cases related to the June2010 events, occur with impunity.
Government officials and civil society representatives formed a national center for the prevention of torture in 2013. In practice, ill-treatment and torture remain pervasive in places of detention, and impunity for torture is the norm.
...
Three years on, justice for crimes committed during the ethnic violence in southern Kyrgyzstan in June 2010 remains elusive. The flawed justice process has produced long prison sentences for mostly ethnic Uzbeks after convictions marred by torture‑tainted confessions and other due process violations. Authorities have not reviewed convictions where defendants alleged torture or other glaring violations of fair trial standards. At least nine ethnic Uzbeks continue to languish in pretrial detention, some for a third year. New convictions in August 2013 of three ethnic Uzbeks in Osh, and pending extradition orders of at least six others in Russia again point to judicial bias against ethnic Uzbeks.
The authorities failed to tackle the acute problem of courtroom violence by audiences in trials across Kyrgyzstan, including at the trial of three opposition members of parliament in June, perpetuating an environment that undermines defendants’ fair trial rights. Lawyers were harassed or beaten in court in 2013, including for defending ethnic Uzbek clients in June 2010 cases. Mahamad Bizurukov, an ethnic Uzbek defendant, and his lawyers have been subjected to repeated threats, harassment, and physical attacks for two years, most recently in September 2013, with no accountability for perpetrators.
...
Despite the adoption of a national torture prevention mechanism in 2012, and the organization of a related National Center for the Prevention of Torture in 2013, authorities often refuse to investigate allegations of torture and perpetrators go unpunished. On rare occasions when charges are filed against police, investigations, and court proceedings are unduly protracted.
A telling example is the criminal case against four police officers following the August 2011 death of an ethnic Uzbek detained on charges related to the June 2010 ethnic violence. Usmonjon Kholmirzaev died several days after his release without charge, apparently from injuries he sustained from beatings in custody. The prosecution has been subjected to repeated delays over the last two years and no one has yet been held accountable for his death.
In July 2013, Nurkamil Ismailov was found dead in a temporary detention facility in southern Kyrgyzstan after police detained him for disorderly conduct. Authorities alleged he committed suicide by hanging himself with his t-shirt. The Jalalabad-based human rights group Spravedlivost intervened after which authorities opened a criminal investigation on charges of negligence. In September, Ismailov’s relative and the police settled out of court for an undisclosed sum, with no admission of liability.”

***

6.The applicant was born in 1973 and until his arrest lived in the town of Volzhskiy, Volgograd Region.
A.Criminal proceedings against the applicant
1.Criminal proceedings in 2007-2009. Release on 15 May 2013
7.On 16 October 2007 the applicant was arrested on suspicion of attempted drug trafficking and placed in custody. He remained in detention throughout the investigation and trial.
8.On 28 May 2008 the Volzhsk Town Court (“the Town Court”) convicted the applicant of attempted drug trafficking and sentenced him to six years’ imprisonment in a high-security correctional colony. The court noted that the term of the applicant’s detention was to be calculated with effect from the date of his arrest on 16 October 2007.
9.On 9 September 2008 the Volgograd Regional Court upheld the sentence on appeal. It mentioned, inter alia, that at the time of the hearing the applicant was detained in temporary detention facility no. IZ-34/5 in the town of Leninsk in the Volgograd Region.
10.The applicant asked the Presidium of the Volgograd Regional Court to re-examine his case by way of a supervisory review. In February and March 2009 the applicant submitted additional observations to the Presidium, which were dispatched from facility no. IZ-34/5. The application for supervisory review was rejected.
11.The applicant’s request for a re-examination of his case by way of a supervisory review was, however, granted by the Supreme Court of Russia, which on 13 January 2010 reduced the applicant’s sentence to five years and six months’ imprisonment.
12.Having served his sentence in full, the applicant was released from detention on 15 May 2013.
2.Criminal proceedings in 2013. Applicant’s death on 11October 2014
13.On 15 July 2013 the applicant was arrested on suspicion of another episode of attempted drug trafficking.
14.On 27 September 2013 the Town Court convicted the applicant of attempted drug trafficking and sentenced him to three years’ imprisonment in a high-security correctional colony.
15.On 11 October 2014 the applicant died in detention.
B.Applicant’s detention, state of health and medical treatment
1.Detention from 18 October 2007 to 27 June 2009 in a temporary detention facility
16.The applicant and the Government offered different versions of the applicant’s detention and treatment in the temporary detention facility.
17.According to the applicant, from 18 October 2007 to 27 June2009 he was detained mostly in facility no. IZ-34/5. His letters to the Court dated 13 May and 7 December 2008 and 26 August 2009 were dispatched from that facility. A letter from the Court dated 8 June 2009 was sent to and received by the applicant in the same facility.
18.The applicant also submitted that on several occasions he had been transported to court hearings and to penal medical institution no. LIU-15 in Volgograd (“institution no. LIU-15”) and that he had spent very short periods, in transit, in temporary detention facility no. IZ-34/1 of the town of Volgograd. In particular, the applicant had been sent to institution no.LIU‑15 in 2008, where he had undergone successful treatment for tuberculosis. A chest X-ray examination on 14 January 2008 indicated that his tuberculosis had been cured, although extensive calcification and fibrosis remained in his lungs. On 17 January 2008 a medical commission confirmed his recovery. The applicant was prescribed anti-relapse treatment, but this was never provided to him after his return to the temporary detention facility.
19.The applicant filed a number of complaints ‒ for instance with the Prosecutor’s Office of the Volgograd Region ‒ arguing that he had not been afforded adequate medical treatment in facility no. IZ-34/5.On 31March 2008 the Prosecutor’s Office re-directed the applicant’s claim to the Federal Service for the Execution of Sentences in the Volgograd Region. A month later the authorities rejected the applicant’s claim as ill-founded. They confirmed that from 18 October 2007 he had been detained in facility no.IZ-34/5. Referring to the decision of the medical commission on 17January 2008, the authorities held that the applicant’s tuberculosis had been fully cured.
20. The Government, relying on a certificate issued on 18 December 2013 by the head of facility no. IZ-34/1, asserted that from 15 July 2007 to 22 October 2009 the applicant had been detained in that facility. In their observations of 31 January 2014, however, the Government mentioned the applicant’s detention in facility no. IZ-34/5, but did not provide any further details.
21.Despite the Court’s request for the applicant’s entire medical file, the Government submitted no medical documents dating from the period after his arrest and up until 29 October 2009. They merely noted that the applicant had contracted hepatitis C and tuberculosis before his arrest. The applicant did not dispute that submission.
2.Detention from 27 June to 29 October 2012 in a correctional colony
22.On 27 June 2009 the applicant was transferred to correctional colony no. IK-154/9 of the Volgograd Region.
23.According to the applicant, the medical service in the colony was very poor. The colony did not employ a tuberculosis specialist and the detainees’ access to drugs, which were often out of stock, was limited. The applicant only received basic anti-fever medication.
24.The Government did not provide any information regarding the medical assistance afforded to the applicant in colony no. IK-154/9 and did not submit his medical record or any medical certificates from his time there.
25.On 29 October 2012, after the applicant complained of coughing up blood, he was transferred to institution no. LIU-15.
3.Detention from 29 October 2012 to 15 May 2013 in institution no.LIU-15
26.The Government provided the Court with copies of the applicant’s medical documents for the period 29 October 2012 to 15 May 2013.
27.The medical records show that on admission to institution no.LIU‑15 the applicant had undergone a general medical examination, a chest X-ray examination and a clinical blood test. A sputum culture test was performed the next day. The applicant was diagnosed with recurrent smear-positive infiltrative tuberculosis of the upper lobe of his left lung at the stage of lung tissue destruction caused by mycobacterium tuberculosis (“MBT”). He was prescribed protiocomb, a complex medicine containing protionamide, pyrazinamide, ethambutol hydrochloride, lomefloxacin hydrochloride and vitamin B6.
28.On 6 November 2012 the applicant was tested for HIV, syphilis, hepatitis B and C. The test confirmed his hepatitis C infection, but no antibodies associated with the other infections were found.
29.A week later the applicant again underwent a chest X-ray examination. It revealed that the cavity in the lung had decreased in size, and some negative changes in the lung tissues had progressed further.
30.On 20 November 2012 the applicant was examined by a doctor, who noted in the “epicrisis” (medical report issued on the applicant’s discharge) that no significant changes in the applicant’s health had occurred and prescribed continued treatment with protiocomb and ciprofloxacin, an antibiotic used to treat a number of bacterial infections.
31.On 1 December 2012 the applicant’s treatment was modified. He was prescribed a combination of anti-tuberculosis drugs and injections. A chest X-ray examination on 19 December 2012 showed no changes in the applicant’s lungs.
32.The applicant sent an application to the Dzerzhinskiy District Court of the town of Volgograd seeking early release on medical grounds. That request was dismissed on 27 December 2012 upon the court’s finding that the applicant’s state of health did not warrant his release from detention.
33.In February 2013 the applicant’s blood was twice taken for testing and his liver function was tested for the first time. On three further occasions in the same month the institution carried out a sputum culture test and also performed the first drug susceptibility test. The test was smear-positive. It revealed that the MBT was resistant to streptomycin. On 13 and 19 February 2013 the applicant underwent a chest X-ray examination and a tomography examination. They showed no changes. The treatment regimen was modified. The applicant was prescribed, among other medicines, pyrazinamide, ethambutol, prothionamide, cycloserine, rifampicin and isoniazid.
34.As follows from the epicrisis of 27February 2013 and a “regime violation record” dated 6 March 2013 signed by two deputy heads of institution no. LIU-15 and the head of the detention ward, the applicant refused to take the drugs pyrazinamide, ethambutol, prothionamide and cycloserine ‒ citing their adverse effects on his health through inducing negative development of his hepatitis C ‒ and claiming that doctors should first treat his hepatitis. According to the same record, the applicant also refused to give a written explanation of the reasons for his refusal.
35.On 15 March 2013 the applicant’s X-ray examination established increased infiltration of the left lung tissue. According to a medical certificate dated 20 March 2013, his health had deteriorated due to his consistent refusal to take the prescribed medicines.
36.According to an extract from the applicant’s medical history, on an unspecified date he agreed to take isoniazid, rifampicin and capreomycin on condition that he would be provided with hepatoprotectors.
37.On 15 May 2013 the applicant was released from detention with a diagnosis of infiltrative contagious tuberculosis of the left lung at the stage of lung tissue destruction.
4.Treatment in a civilian hospital from 27 May to 15 July 2013
38. From 27 May to 15 July 2013 the applicant received in-patient medical treatment in a civilian anti-tuberculosis hospital, where he was diagnosed with active chronic fibrous-cavernous pulmonary tuberculosis at the stage of infiltration with bacilli emission, as well as hepatitis C. There is no information in the Court’s possession concerning the details of the applicant’s treatment during that period.
5.Detention from 15 July to 21 October 2013 in temporary detention facilities
39.The parties did not provide the Court with any information about the applicant’s detention and treatment after his renewed arrest on 15July 2013. The applicant’s letters to Ms Yusupova submitted to the Court indicate that between 16 July and 21 October 2013 he was detained in facilities nos. 34/5 and 34/1, that he had no access to medical treatment, and that institution no.LIU-15 had refused to admit him for treatment before his conviction.
40.On 18 October 2013 the applicant underwent a chest X-ray examination which indicated negative changes in his right lung. The volume of his left lung had decreased, its tissue was infiltrated and it contained a number of cavities.
6.Detention from 21 October 2013 to 11 October 2014 in institution no.LIU-15
41.Following the fresh conviction, on 21October 2013 the applicant was admitted to institution no. LIU-15. He was examined by a doctor, who diagnosed him with hepatitis C and MBT positive infiltrative tuberculosis of the left lung at the stage of tissue destruction. The doctor ordered blood, urine, sputum culture and drug susceptibility tests and an electrocardiogram examination. The applicant was prescribed a long list of medicines, including capreomycin, isoniazid, ethambutol and hepatoprotectors.
42.A week later, after the results of the tests had been received, the applicant’s treatment was slightly modifed to include ofloxacin.
43.In the first half of November 2013 the applicant was examined on four occasions by doctors, who recommended continuing the prescribed treatment.
44.On 14 November the applicant’s electrocardiogram examination revealed that he had mitral insufficiency.
45.A medical record drawn up on 14 November 2013 by the applicant’s attending doctor indicated that the applicant had refused to take tuberculosis medicines on that date. The following entries in the applicant’s medical record dated 19, 21, 25, 27 and 29 November do not contain any similar information. The Government did not submit any other document (for instance, a regime violation record) showing that the applicant had refused to continue the treatment.
46.On 6 December 2013 a medical commission examined the applicant and established no significant changes in his condition. The most recent entry in the medical record, made on 16 December 2013, showed no significant development in his health.
47.No further information about the applicant’s treatment was provided after 16December 2013.
48.The applicant was certified as having second-degree disability on 1May 2014.
49. A medical panel examined the applicant on 15 August 2014 with the aim of determining whether his state of health warranted early release. The panel stated that the applicant was suffering from multi-drug resistant progressive tuberculosis aggravated by cavernosal fibrosis of the lungs and cardiopulmonary decompensation in the third stage. The applicant’s left lung was completely destroyed by the infection. The panel concluded that his state of health could warrant his release on parole.
50.On 11 October 2014 the applicant died from tuberculosis in institution no. LIU-15.
C.The applicant’s relationship with Ms Yusupova
51.The documents from the case-file, including a court judgment, indicate that the applicant was not married. According to certificate no.35/6/9-Ю-1ГР issued by institution no. LIU-15 on 20 October 2014, when being asked about his relatives, the applicant stated that he had a partner, Ms Yusupova. The authorities noted that statement in the applicant’s personal file and allowed Ms Yusupova to visit him in detention as his de facto wife. By a telegram on 11 October 2014 the authorities informed Ms Yusupova of the applicant’s death, addressing her as his wife.
52.According to Ms Yusupova’s submissions, which were not contested by the Government, she was in a close family-like relationship with the applicant from 2010 until his death in detention. She visited him on many occasions, sent him letters and parcels. In 2013 when the applicant was released from detention they lived together and ran a common household.
53.Ms Yusupova submitted that she had had intense and intimate correspondence with the applicant before his death. She provided the Court with two letters sent to her by the applicant in September 2013 to confirm that they had shared strong feelings for each other.
54.On 11 September 2013 the applicant formally authorised MsYusupova to withdraw money from his bank account.In his letter to the Court on 1 March 2014 the applicant expressly asked the Court to award her non-pecuniary damage if he died.
A.Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”)
61.The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:
“Health care
39. Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of at least one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency ...
41.4 Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1 A medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary ...
42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to ...
b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ...
43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury, and any prisoner to whom attention is specially directed ...
Health care provision
46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civilian hospitals when such treatment is not available in prison.
46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
B.3rd General Report of the European Committee for the Prevention of Torture (“the CPT Report” )
62.The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4June 1993). The following are extracts from the Report:
“33. When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...
35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civilian or prison hospital ...
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.) ...
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service ...”
C.General guidelines for multidrug resistant tuberculosis treatment of patients suffering from liver diseases
63.The following are extracts from the “Treatment of Tuberculosis: Guidelines”, fourth edition, World Health Organisation, 2009,
“3.6. Previous tuberculosis (“TB”) treatment is a strong determinant of drug resistance, and previously treated patients comprise a significant proportion (13%) of the global TB notifica­tions in 2007.
Of all the forms of drug resistance, it is most critical to detect multidrug resistance (“MDR”) because it makes regimens with first-line drugs much less effective and resistance can be further amplified. Prompt identification of MDR and initiation of MDR treatment with second-line drugs gives a better chance of cure and prevents the development and spread of further resistance...
3.7. Standard regimes for previously treated patients
The Global Plan to Stop TB 2006–2015 sets a target of all previously treated patients having access to [drug susceptibility testing] at the beginning of treatment by 2015. The purpose is to identify MDR as early as possible so that appropriate treatment can be given...
Recommendation 7.1
Specimens for culture and drug susceptibility testing (DST) should be obtained from all previously treated TB patients at or before the start of treatment. DST should be performed for at least isoniazid and rifampicin...
Recommendation 7.2
In settings where rapid molecular-based DST is available, the results should guide the choice of regimen...
...
8.4 Treatment regimens in special situations
8.4.2 In patients with unstable or advanced liver disease, liver function tests should be done at the start of treatment, if possible... The more unstable or severe the liver disease is, the fewer hepatotoxic drugs should be used...
Clinical monitoring (and liver function tests, if possible) of all patients with pre-existing liver disease should be performed during treatment.”

***

6.The applicant was born in 1954 and until his arrest lived in StPetersburg. He is currently serving his sentence in a correctional colony in the Arkhangelsk Region.
A.Criminal proceedings against the applicant
7. The applicant was arrested on 31 July 2010 on suspicion of aggravated kidnapping, extortion and conspiracy. He remained in detention throughout the investigation and trial.
8.On 22 June 2012 the Leningrad Regional Court found the applicant guilty as charged and sentenced him to nine years’ imprisonment in a high‑security correctional colony with the release to be followed by a year‑long restriction of liberty.
9.On 8November 2012 the Supreme Court of Russia upheld the conviction on appeal.
B.Applicant’s detention, state of health and medical treatment
10.The parties provided the Court with the applicant’s medical documents, including his clinical records, discharge summaries, and expert opinions.
11.The medical records show that the applicant had a long history of cerebral diseases as a result of having sustained a head injury in 1997 that developed into traumatic cystic arachnoiditis. Two years later he underwent a tomography examination which confirmed the presence of a growing liquor cyst located in the right frontotemporal part of the brain. The cyst impacted on his acoustic and visual nerves. The examination also revealed moderate internal hydrocephalus. In the recommendations written on 11May 2000, the applicant’s doctor noted that a nuclear magnetic resonance examination, an electroencephalography examination and a liquor analysis were required to properly diagnose the applicant’s condition. He further observed that, in the absence of any treatment, it would be reasonable to perform urgent cerebral bypass surgery in order to prevent the applicant from going irreversibly blind. Nothing in the medical documents submitted suggests that the applicant had had any recourse to specific medical assistance or examinations regarding his cerebral problems during the ten years preceding his arrest.
12.After the arrest the applicant was taken to temporary detention facility no. IZ-47/1 in St Petersburg (“facility no. IZ-47/1”). On admission to that facility the resident prison doctor performed a general medical check-up of the applicant, having noted in the medical file that he had a brain cyst. The doctor concluded that the applicant was “somatically healthy” and was therefore fit to remain in the conditions provided by the detention facility.
13.On 23 September and 26 October 2010 the applicant was seen by a neurologist. In the absence of any medical documents the prison doctor was only able to perform a visual examination of the applicant. He diagnosed the applicant with hydrocephalus and recommended that an X-ray examination of the skull be carried out to make the correct diagnosis.
14.In January 2011 the applicant’s medical file was supplemented with his old clinical records from a civilian hospital and the prison doctor examined him anew, paying regard to the additional medical information. He confirmed the diagnosis made in 2000 and recommended a consultation with an ophthalmologist. The applicant was prescribed drug therapy for a month.
15.An ophthalmologist diagnosed the applicant with angiopathy.
16.In February 2011 the applicant was diagnosed with tuberculosis. He was immediately transferred to prison hospital no. 2 in St Petersburg, where the disease was successfully treated. The applicant was discharged from hospital with the doctors’ attestation of his full recovery from the infection.
17.On 8 April 2011 the applicant was sent to Gaaza prison hospital in StPetersburg for an in-depth medical examination. He underwent a large variety of diagnostic procedures, including a magnetic resonance tomography of the brain and cervical vertebrae performed in a Russian civilian hospital, the Mariinskiy Hospital of St Petersburg. The tests showed that the applicant had a liquor cyst in the right frontotemporal part of the brain and that he suffered from vicarious hydrocephalus of mixed genesis and encephalopathy at the initial stage. In addition, doctors were able to establish that the applicant’s cervical vertebrae had several herniated disks and perineural cysts.
18.Following completion of the diagnostic cycle, the applicant was released from the hospital and sent back to the detention facility. Discharge summaries issued on 15 April 2011 contained a recommendation of supervision by a prison doctor and regular consultations with a neurologist.
19.In September 2011 the applicant complained about headaches to the attending prison doctor. In response it was recommended that he undergo an additional neurological medical examination in Gaaza prison hospital. However, the hospital refused to admit him because it did not employ a suitably qualified medical specialist, such as a brain surgeon.
20.In October 2011 the applicant’s lawyer contacted Dr K. from the neurosurgical department of the Scientific Research Institute for Emergency Treatment, who agreed to study the applicant’s clinical records and give his opinion about the state of the applicant’s health at a court hearing on 4October 2011, where he saw the applicant for the first time. At the hearing the doctor stated that the computer tomography performed on the applicant in 2000 had indicated a brain oedema at the base of the skull. He insisted that any change of the applicant’s lifestyle could induce complications related to the brain oedema and also seizures. Surgery was required to treat the cyst. However, Dr K. concluded that the applicant’s spinal problems were even more serious, as they could leave the applicant entirely paralysed. Nevertheless, the doctor noted that surgery would be only required if the applicant’s health were to deteriorate. The doctor recommended chondroprotective therapy and cerebral bypass surgery for the applicant. He was also to wear a cervical collar.
21.The applicant also provided the Court with a certificate issued in November 2011 by Dr T., the head of the hospital where the applicant had received medical treatment in 1997-1998. Dr T. argued that the applicant’s condition called for permanent medical supervision by a neurologist and neurosurgeon so that the applicant could be subjected to urgent surgical intervention should the need arise. In Dr T.’s opinion, a detention facility was ill equipped to guarantee such supervision. The applicant also argued that his transfer to a northerly region in which to serve out his sentence had run contrary to the recommendations of his doctor and might have resulted in serious complications of his illness. Finally, he alleged that he lacked effective remedies whereby to complain about the poor quality of his medical treatment.
22.On 1 December 2011 in response to a request from the applicant’s lawyer, a medical expert commission assessed the applicant’s health and checked for the existence of medical grounds warranting his release from detention. The commission observed that the applicant had received out‑patient treatment and that he had no focal brain injuries, epileptic seizures or significant limitations of his day-to-day activity. Taking account of the results of his dynamic medical examinations, the doctors concluded that the applicant was in satisfactory health and that there were no medical grounds warranting his release from detention.
23.On 5 April 2012 Dr K. visually examined the applicant. No recommendations were made.
24.On 4 December 2012 the applicant was examined by a neurologist to whom he complained about headaches, vomiting and vertigo. The doctor recommended drug therapy based on vasobral, piracetam, and vinpocetine. The following visit in January 2013 by the neurologist resulted in a modification of the drug regimen.
25.On 20 February 2013 a prison doctor approved the applicant’s transfer to a correctional colony, finding him fit to make the journey.
26.The applicant arrived on 4 March 2013 at correctional colony no.IK‑42/4 in the Astrakhan Region (“colony no. IK-42/4”), where he was seen by the colony doctor, who noted that the applicant had been suffering from brain cyst. At the end of April 2013 the doctor recommended the applicant’s transfer to a hospital for further assessment. No urgency was warranted.
27.On 25 July 2013 Dr K. drafted another report, assessing the applicant’s condition on the basis of his medical records and the results of his examination on 5 April 2012. Dr K. concluded that his recommendations had not been complied with and that the applicant’s cyst had increased. He stressed that the appropriate treatment could only be ensured in a specialised medical institution, not least because the requisite dynamic monitoring of the applicant’s condition using computer and magnetic resonance tomography examinations needed to be performed every eight months. Lastly, the doctor emphasised that the applicant’s detention in a northerly region could lead to a further deterioration in his health by inducing epileptic seizures and brain ischemia, thus putting his life at risk.
28.On 8 August 2013 the authorities transferred the applicant to a prison hospital in the Arkhangelsk Region. Following a number of tests, a medical panel declared that the applicant was not suffering from any disability. The applicant was discharged from the hospital with the recommendation that he be re-admitted for further treatment in June 2014.
29.The last two entries in the applicant’s clinical records are illegible. The parties did not provide the Court with any additional information on the state of his health.
A.Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”)
35.The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:
“Health care
39. Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of at least one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency ...
41.4 Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1 A medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary ...
42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to ...
b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ...
43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury, and any prisoner to whom attention is specially directed ...
Health care provision
46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civilian hospitals when such treatment is not available in prison.
46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
B.3rd General Report of the European Committee for the Prevention of Torture (“ the CPT Report” )
36.The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4June 1993). The following are extracts from the Report:
“33. When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...
35. A prison’s health care service should at least be able to provide regular out‑patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civilian or prison hospital ...
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.) ...
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service ...”

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5.The applicant was born in 1963 and is currently in detention in Wronki.
6. The applicant has been serving a prison sentence in Wronki Prison since 31 March 2010.
7.On 19 September 2010 he brought a civil compensation claim before the Szamotuły District Court. He claimed that the conditions of detention in many of his cells in Wronki Prison were so bad as to amount to a breach of Articles 3 and 8 of the Convention. He referred to the fact that the cells were not properly heated in the autumn and winter and had no proper ventilation in the summer, meaning that the prisoners suffered from intense levels of heat. The windows were old and the frames leaked. He further submitted that the toilet facilities were only separated from the cells by a low fibreboard partition, which made even a minimum level of privacy impossible for him.
8.On 21 June 2011 the Szamotuły District Court refused a request by the applicant to gather evidence by producing photographs and carrying out an on-the-spot inspection of the cells concerned. It closed the hearing and gave judgment, dismissing the applicant’s claim in its entirety.
The court established, referring to evidence submitted by the State Treasury, acting as the legal representative for Wronki Prison, that prisoners had access to sports, cultural and educational activities and medical care. They were provided with personal hygiene items and had appropriate food. Those factors, seen as a whole, alleviated the harm which was an inherent part and consequence of serving prison sentences.
The court further found that the toilet facilities in the applicant’s cells were indeed separated off by fibreboard partitions. This did not provide full privacy, but was sufficient to ensure that the prisoners were out of sight of others when they used the toilet. There was a WC and a washbasin in each toilet facility.
As regards the applicant’s allegations of inadequate ventilation and insufficient heating in the cells, the court found that the cells were well lit and properly ventilated; the windows had been repaired and the heaters had been changed and worked properly. As regards the alleged lack of light, the court found that the applicant had been granted special permission to use an additional reading lamp.
The court was of the view that the State Treasury had not acted unlawfully and that there had been no intention to act in bad faith or to cause harm or damage to the applicant. In the absence of unlawfulness no breach of personal rights could be found. In any event, the conditions in Wronki Prison were not so harsh as to amount to a breach of personal rights.
9.The applicant appealed, arguing that the court had failed to establish the facts of the case correctly, in the main because it had refused to gather evidence in the form of photographs, film or an inspection of the cells. The judgment had therefore been based on insufficient factual findings. Furthermore, in so far as the court had referred to the general conditions in which the applicant served his sentence (quality of the food, medical care, access to cultural and sports activities), those factors had not constituted the basis of his claim. He had complained neither about poor food quality nor about insufficient access to cultural and sports activities. The grounds of his claim had fundamentally related to the sanitary conditions in the cells and, in particular, a lack of privacy when using the toilet. This lack of privacy had been explicitly confirmed by the first-instance court. He reiterated that the lack of a proper divide between the toilets and the cell amounted to a breach of his personal rights and dignity. He further indicated that some of the cells at the prison had toilet facilities that were properly separated from the rest of the cell by normal walls and a door.
10.By a judgment of 6 December 2011 the Poznań Court of Appeal dismissed the appeal, fully accepting the findings of fact made by the first‑instance court and that court’s legal assessment of those facts. In particular, the Court of Appeal was of the view that the nuisance caused by the manner in which cells were fitted with toilet facilities, namely by way of fibreboard partitions, did not exceed the normal difficulties and harm which were inherent in serving a prison sentence.

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5.The applicant was born in 1964 and lives in Voronezh (Voronezh Region).
A.The alleged ill-treatment and the death of the applicant’s son
1.The version of events submitted by the applicant
6.On 9 September 2009, between 10 and 11 a.m., the applicant’s son, MrSergey Lykov, and his friend P. were stopped by police officers at a bus stop in Voronezh. They were given no reasons. Sergey Lykov and P. were then taken to the premises of department no. 6 of the Voronezh Region criminal police (оперативно-розыскная часть №6 криминальной милиции главного управления внутренних дел по Воронежской области) (hereafter, “the police station”).
7.Inside that police station, a police officer, S., ordered the other police officers present to undress MrLykov and P. and to bind their hands and feet with adhesive tape. S. began punching MrLykov and P. on the head, urging them to confess to all the thefts that they had committed. Faced with their silence, S. and another police officer began to hit each of their heads violently against the ground, as well as against a cupboard and a table. After 15 minutes they stopped striking them and S. ordered one of the police officers to “give [P.] a fashionable haircut” by cutting locks of his hair with a knife. S. and other police officers then placed plastic bags around the heads of Mr Lykov and P. to suffocate them. Faced with the repeated nature of these actions, Sergey Lykov, who was exhausted, asked S. to tell him what he wanted to know. S. again asked him to confess to the alleged thefts. Mr Lykov then admitted that they had burgled an apartment in 2007. S. ordered the police officers to take Sergey Lykov to another room.
8.The police officers continued to torture P. with electricity. A few minutes later the police officer returned Sergey Lykov to the office. According to P., Sergey Lykov was “in a bad way”, although he had no obvious physical injuries. P. was taken to another office, where he began writing a confession. While he was writing, he heard Sergey Lykov betin to cry out. According to P., his cries lasted a good hour. Shortly afterwards a police officer came into the room where P. was being held and told him that they were going to the scene of the 2007 burglary. P. stated that Sergey Lykov was not with them during this visit and that he had not seen him again afterwards. P. was finally taken to a temporary detention centre, where he was examined by a doctor who noted several physical injuries (bruises and grazing on his arm). P. learned later that Mr Lykov had thrown himself out of a window.
2.The version of events submitted by the Government
9.On 7 September 2009 a decision (постановление о приводе) was issued ordering P.’s arrest for the purpose of questioning him as a witness.
10.On 9September 2009 police officers found P. in a street in Voronezh, in the company of Sergey Lykov. They asked the two friends to accompany them to the police station. Mr Lykov was invited for the purpose, in particular, of “provid[ing] useful information”, in line with section11 § 4 of the Police Act of 18April 1991, then in force. Sergey Lykov accepted the invitation of his own free will.
11.After discussions with police officer T. at the police station, Sergey Lykov decided to confess to a theft purportedly committed on 4September 2009, and provided a written statement to that effect. T. informed Mr Lykov of his constitutional right not to incriminate himself.
12.At 6.50 p.m., after having finished writing his confession, Sergey Lykov suddenly threw himself out of the open window of T.’s office, which was on the fifth floor.
3.Subsequent events
13.At 7.50 p.m. Mr Lykov arrived at hospital with an emergency medical assistance team. He died at 1.10 a.m. on 10 September 2009.
14.Sergey Lykov’s cousin I., who had had no news of him, carried out a search and on 10September 2009 she finally found his corpse in the Voronezh morgue. After examining the body, I. noted that it had signs of numerous physical injuries, in particular a haematoma above the left eyebrow, facial injuries and haematomas on the wrists.
15.On 13 September 2009 I. wrote to the Prosecutor General of Russia, requesting that an investigation be opened into the death of Sergey Lykov. She informed the Prosecutor that her cousin had been arrested on 9September 2009 while he was with his friend P.
16.On 22 September 2009 police officer B. from the Tsentralny district police station in Voronezh issued a decision refusing to open a criminal investigation into the supposed theft, on the street, of a mobile telephone, to which Sergey Lykov had confessed: B. noted that the avowed offence of theft had never been recorded in the registers of complaints by victims of offences, which were held by the police.
B.The preliminary investigation into the death of Sergey Lykov
1.The first part of the investigation
17.One hour after the incident (at 8 p.m.), an investigator, Ya., from the Voronezh Leninskiy district Investigation Committee arrived on the scene and examined the premises, in particular Office no. 55, from where Mr Lykov had fallen. The investigator seized from the scene a gas mask and a telephone, as well as the sheet of paper with SergeyLykov’s written confession. She indicated that she had not found traces of blood in the office, but only on the grass area below the window.
18.By a decision of 21 September 2009, investigator L. from the same department refused to open a criminal investigation into the victim’s death. Referring to Article 24 § 1 (1) of the Russian Code of Criminal Procedure, he concluded that no offence had been committed.
19.The investigator summarised the explanations provided by police officer T., who stated that:
–at 3 p.m. on 9 September 2009 Sergey Lykov and his friend P. had been taken to the police station by police officers S. and F.; the second individual (P.) was being sought on suspicion of theft;
– during an interview between T. and Mr Lykov, the latter had confessed voluntarily to a theft. Although he had started writing a confession, Mr Lykov suddenly stood up and climbed onto a chair, then onto a table which was beside the open window, and then finally jumped from this window;
–T. had rushed to prevent him from jumping, but he was too late;
–no police officer had struck Sergey Lykov or had forced him to confess to the offence. According to T., Sergey Lykov had no physical injuries;
–during the interview Mr Lykov had been calm, but he complained to T. that his life was difficult, since he had to care for his ill mother.
20.The investigator also summarised the explanation provided by police officer Sa., who stated that:
–at 2 p.m on 9 September 2009 while on patrol in the city, he and two other police officers had seen two individuals on a scooter. Since they had information that an individual suspected of theft was moving about on a scooter, they had stopped the persons concerned for an identity check. They had invited Sergey Lykov and P. to accompany them to the police station and they had agreed;
–on arrival at the police station, Mr Lykov and P. had been separated. Sa. and F. had interviewed P., while T. had had a conversation with Mr Lykov;
–on entering T.’s office at a later point, Sa. was able to note that Sergey Lykov was not handcuffed and had not been struck. He had heard Mr Lykov confess to the theft of a mobile telephone;
–he had not heard Sergey Lykov complain of ill-treatment of any kind;
– later he had learnt that Mr Lykov had attempted to take his own life.
21.The investigator also noted that in response to his questions, police officer S. had denied any involvement in ill-treatment of Sergey Lykov.
22.At the same time, the investigator noted the statements made by P., to the effect that:
–between noon and 1 p.m. on 9 September 2009 he and Sergey Lykov had been in the city centre when police officers approached, introduced themselves and asked him [and Sergey Lykov] them to accompany them to the police station. They had agreed;
–at the police station, he and Sergey Lykov had been separated and placed in different offices. Shortly afterwards, when passing in the corridor, he had seen Sergey Lykov sitting at a table writing something. He had not seen Sergey Lykov being struck, had not heard him crying out, and had not noticed any physical injury on his person;
–he had heard Sergey Lykov complain of heart pains, but never refer to an intention to commit suicide.
23.The investigator took note of the statements by the applicant, and also of close relatives of the victim, to the effect that he had never expressed thoughts of suicide.
24.The investigator noted the presence in the case file of the written confession drawn up by Mr Lykov shortly before his death.
25.Relying on the information communicated by the hospital in which Mr Lykov had been treated after his fall, the investigator established that death had resulted from Mr Lykov’s fall from the fifth floor. No injuries indicating kicks or punches, or the use of handcuffs, had been found on the corpse.
26.Lastly, the investigator noted the contents of the report from the on-site inspection conducted on 9September 2009 (see paragraph 17 above).
27.On 28June 2010 the decision of 21 September 2009 was set aside by a hierarchically superior civil servant, who ordered an additional investigation, noting, in particular, that it was necessary to:
–find witnesses who could confirm that Sergey Lykov had suicidal thoughts;
–verify that the police officers who had taken Sergey Lykov to the police station had acted in accordance with the law;
–consider whether the police officers who had not ensured the victim’s safety inside the police station bore any criminal liability.
28.In the meantime, on 27October 2009 an autopsy of the body was carried out on the orders of investigator L. and a forensic report was drawn up. In that document, the forensic medical expert noted that death had resulted from multiple fractures to the head, chest and spine, and to the base and dome of the skull. According to the expert, the location of the injuries identified, and the preponderance of internal over external injuries, led to the conclusion that those injuries had originated in [Mr Lykov’s] fall from the fifth floor. The expert concluded that there was no cause-and-effect relationship between the other injuries (hematomas and scratches on the trunk and the lower and upper limbs, namely a hematoma in the fold of the right elbow measuring 4 x 3cm; a scratch on the right forearm measuring 6 x 0.7 cm; a 4.5 x 2cm hematoma on the right carpus; a hematoma on the left shoulder measuring 18 x 14 cm, on which there were scratches of 5 x 2.5 cm; a hematoma on the left knee measuring 7 x 6 cm, on which there was a scratch of 1.5 x 1cm; and an oval-shaped scratch on the left ankle measuring 2 x 1.5 cm) and the death. As to the question of whether there were traces of a struggle or self-defence, the doctor indicated that it was generally accepted in forensic medicine that injuries to the arms and wrists were to be classified in that way. Thus, he noted the presence of a bruise on the right carpus and a scratch on the right forearm. He added that he was unable to ascertain how those injuries had been sustained. Lastly, the doctor noted that the corpse had been deposited in the morgue unclothed.
2.The second part of the investigation
29.By a decision of 8July 2010, investigator Ko. from the same department again refused to open a criminal investigation.
In his reasoning, he quoted from the statements given by police officers T., Sa. and S., by witness P., and also by the applicant and the deceased’s close relatives, already cited in the decision of 21September 2009 (see paragraph 18 above).
30.The investigator also questioned certain individuals who had got to know Sergey Lykov in a café where they drank alcoholic beverages together. Those persons explained that when Sergey Lykov drank alcohol he became talkative and that, in this intoxicated state, he complained about a lack of money and difficulties with his invalid mother. He had also confided to his companions that he had committed thefts and that, were he arrested, he “would harm himself”.
31.The investigator also noted a directive, classified as secret, for the attention of police officers. According to that directive, the police were not personally responsible for the life and health of individuals who had freely consented to attend a police station for an interview, “except in the event of violation of the rights and freedoms of citizens proclaimed in the Russian Constitution”. Regard being had to that directive and the facts noted, the investigator concluded that officer T. could not be held responsible for the offence of negligence.
32.The investigator concluded that Sergey Lykov’s death had been the result of a voluntary act on the latter’s part. In consequence, the investigator refused to open a criminal investigation against the police officers F., B., Sa. and T. for an abuse of power, on the grounds, firstly, that Sergey Lykov’s arrest had not been illegal, and, secondly, that the police officers had not ill-treated him. He also concluded that there were no grounds for prosecuting the police officers for homicide, assault or incitement to suicide, given that Sergey Lykov’s death “had not been violent”.
33.On 11February 2011 the applicant lodged a judicial appeal against that decision. She complained, inter alia, that her son had been placed in detention without this fact being properly recorded, and that, in consequence, her son had been deprived of legal assistance. Equally, she submitted that the investigation carried out had been incomplete and focused on a hypothesis that was favourable to the police officers. She criticised the investigative authorities for failing to conduct a forensic examination of the gas mask seized in the police station in order to obtain genetic material, including perhaps that of her son. According to the applicant, a handwriting expert’s report should also have been commissioned in order to determine her son’s psychological state when he wrote the confession. Further, referring to the autopsy report, which stated that the corpse had injuries that could be interpreted as traces of a struggle or self-defence, the applicant accused the authorities of failing to explain the origin of those injuries, and the cause of her son’s death.
34.On 18 April 2011 the Leninskiy District Court of Voronezh upheld the contested decision. In its reasoning, the court reiterated the arguments set out in the investigator’s decision and considered that the investigation had been complete and thorough. In response to the applicant’s arguments, the court expressed the opinion that a handwriting analysis was unnecessary, since the deceased’s family had confirmed the handwriting’s authenticity. Equally, a DNA examination of samples from the gas mask was unnecessary, since Sergey Lykov’s death had not resulted from suffocation. Thus, the court concluded that there was no evidence in support of the idea that the deceased had been subjected to ill-treatment by the police officers or that he had been arrested or detained unlawfully.
35.On 11 August 2011 the Voronezh Regional Court upheld the decision, on appeal, for the same reasons.
36.On 11 October 2012 the applicant’s lawyer sent a letter to the head of the Investigation Committee of Russia, asking him to open a new criminal investigation into the death of Mr Lykov and to entrust this investigation to the department for investigations into offences committed by State employees of the armed forces, a department that was part of the Investigation Committee of Russia in the Tsentralny federal constituency. The lawyer expressed the fear that if the requested investigation were to be carried out by investigators from the Voronezh regional department of the Investigation Committee, that investigation would be ineffective. She argued that, without having available to them locally-based agents to gather the necessary information, the investigators from the latter department would have no choice but to use officers from the Ministry of the Interior, among whom might be those involved in the victim’s death.
37.On 14 November 2012 the Voronezh regional department of the Investigation Committee dismissed that request, considering that the decision of 8July 2010 had been in accordance with the law and that there were no grounds for revoking it and opening a criminal investigation.
C.Witness statements by P. and the events concerning him
38.On 10September 2009, the day after his arrest, P. was taken to a temporary detention centre (“IVS”). During his admission, a doctor’s assistant noted the following physical injuries: a bruise on the left shoulder-blade, scratches on the elbows and knees, and a bruise on the right ear. The medical assistant drew up a report recording the injuries and noting that they were the result of a road-traffic accident that had occurred on 9September 2009. The medical examination was carried out in the presence of police officers who had participated in the beating. According to P., it was the police officers who provided the medical assistant with the road-accident version of events, while he himself, for fear of reprisals, had been obliged to confirm it.
39.On 11September 2009 P. was transferred to remand prison no. 1 in Voronezh. On admission, he was examined by a doctor who found the same injuries as those observed in the IVS.
40.On an unspecified date in September 2009 P. lodged a complaint about the alleged ill-treatment at the police station. According to P., this complaint led to him being taken on the following day to the police station, where he was beating in reprisal. Then – again according to his submissions –, P. withdrew his complaint in fear for his life when investigator Ya. came to the remand prison to question him about the circumstances of the ill-treatment. According to P., in response to his question about possible consequences for the police officers involved in beating Mr Lykov and himself, investigator Ya. replied that, in any event, there had been none.
41.On 5 October 2009 inspector Ya. from the Voronezh regional department of the Investigation Committee issued a decision refusing to open a criminal investigation. She recounted the explanation provided by police officer Sa., who had denied any ill-treatment, and, noting P.’s withdrawal of his complaint, concluded that no ill-treatment had occurred.
42.In the meantime, the criminal investigation against P. continued, and resulted in an examination on the merits by the Voronezh regional Court.At the public hearing on 1February 2011 P. made a statement. He withdrew the account given by him in the context of the investigation into the death of Sergey Lykov. P. described the events of 9September 2009 as they are set out in paragraphs 6-8 of the present judgment. He added that police officer S. had threatened him if he were to withdraw his confession to the thefts or make statements about the events surrounding the arrest and death of Mr Lykov. He added that S. had beaten him again prior to the court hearing concerning his placement in pre-trial detention, in order to prevent him lodging a complaint before the judge. He also alleged that he had been subjected to unprovoked attacks by the administration of the remand prison in which he was detained. P.asked to be placed under protection in his capacity as a witness of the ill-treatment inflicted on Sergey Lykov by police officers. He also asked that criminal proceedings be brought against police officer S. for abuse of power and for the murder of Mr Lykov. P. suggested that the criminal investigation into the death be reopened.
43.The judge ordered that P.’s written statement be included in the case file. With regard to P.’s requests in respect of S. and Mr Lykov, the judge replied that the latter’s death was unrelated to the ongoing trial; as for S., he was not a party to the trial proceedings. In consequence, she dismissed those requests.
44.At one of the subsequent hearings P. complained that, after the above statement, the remand prison’s administration threatened him.
45.On 30 June 2011 the prosecutor for the Leninskiy district of Voronezh set aside the decision refusing to open a criminal investigation in respect of P.’s supposed torturers. The prosecutor ordered an additional investigation. The Court has not been informed of the outcome of this investigation.
46.After serving his sentence, P. was released. He submits that he has received several threats in connection with the present case. For fear of reprisals, he moved to Sweden. In his letter of 20 April 2014 to the Investigation Committee, sent from abroad, P. offered to act as a witness, but he was never questioned.
D.Events occurring after the application was communicated to the Government
47.On 23 December 2013 a hierarchically superior State employee in the Voronezh regional department of the Investigation Committee set aside the decision of 8July 2010, noting that the department had received new information concerning the death of Sergey Lykov from the European Court of Human Rights. He ordered an additional investigation, in particular so that P. could be questioned and his allegations of ill-treatment verified.
48.On 10 January 2014 the deputy head of the Voronezh regional department of the Investigation Committee ordered the opening of a criminal investigation within the meaning of Article 146 of the Code of Criminal Procedure. In his reasoning, he noted that Ms Lykova’s application, which was being examined by the European Court of Human Rights, contained elements suggesting that Mr Lykov had been subjected to ill-treatment by the police officers.
49.On 16 January 2014 investigator L. from the Investigation Committee ordered a second forensic medical report, to answer, inter alia, the following questions: whether Mr Lykov’s body showed injuries and, if so, where; if the body showed injuries resulting from a struggle, ill-treatment, the use of handcuffs or restraint of the upper or lower limbs using adhesive tape; and whether there were signs of electrocution. The Government have not indicated whether that medical report was drawn up. In any event, no expert report was added to their observations.
50.The investigator questioned police officers Sa. and F.; the first reiterated the explanation he had provided in 2009 (see paragraph 17 above), and the second gave similar explanations. The investigator also questioned a certain V., who allegedly stated that he occasionally drank alcoholic beverages in Sergey Lykov’s company and indicated that the latter was a drug addict who committed thefts to obtain money, and that he had spoken to him about his difficulties with his invalid mother. According to V., Sergey had confided in him that, if he were arrested, he “would harm himself”.
51.The investigator questioned the deceased’s grandmother and cousin, who stated that, to their knowledge, Sergey did not take drugs, did not abuse alcohol, and had never expressed thoughts of suicide.
52.On 13 January 2014 the investigator issued a decision granting the applicant victim status.
E.The internal investigation within the Ministry of the Interior
53.On 27 October 2009, at the close of an internal investigation into the police officers’ conduct, the Internal Security Service of the Voronezh regional department drew up a report; its conclusions can be summarised as follows: referring to the decision of 21 September 2009 (see paragraph17 above), the regional department considered that Sergey Lykov had indeed taken his own life and that no fault on the part of the police officers had been established. At the same time, the Service described as a lack of professionalism the fact that police officer T. had not taken sufficient care in controlling Mr Lykov’s conduct, a shortcoming that had enabled the latter individual to throw himself from the window.

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5.The applicants were born in 1988 and 1992 and were at the time of the introduction of the application detained in Hermes Block, Lyster Barracks Detention Centre, in Hal Far.
A.Background to the case
1.Ms Moxamed Ismaacil
6.Ms Moxamed Ismaacil, the first applicant, entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, she was registered by the immigration police and given an identification number(12U-007).
7.At that point she was presented with two documents, one containing a Return Decision and the other a Removal Order (no copies available). According to the first applicant, the contents of the decision in English were not explained to her, although she could not understand the language. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal and the migrants translate for each other.
8.The first applicant was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention”. She claimed that the document was provided in a language she could not understand. According to the Government she did not request a booklet in another language.
9.In accordance with Article 14 (2) of the Immigration Act(see Relevant domestic law), the first applicant was detained. She was initially detained in Zone D and later moved to an unspecified Zone in Lyster Barracks.
2.Ms Abdirahman Warsame
10.Ms Abdirahman Warsame, the second applicant, also entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, she was registered by the immigration police and given an identification number(12U-009).
11.She was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that she was a prohibited immigrant by virtue of Article5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and of the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the second applicant that she would remain in custody until removal is affected and that an entry ban would be issued against her. The two documents further informed her of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. According to the Government, in practice the immigration police inform the migrants verbally in English about their right to appeal and the migrants translate for each other.
12.She was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention”. None of these documents, in English, were explained to Ms Abdirahman Warsame who could not understand the language. According to the Government the second applicant did not request a booklet in another language.
13.In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the second applicant was detained. She was detained in Lyster Barracks (Zone unspecified).
B.Asylum proceedings
14.A few days following their arrival both the applicants were called for an information session provided by the Staff of the Office of the Refugee Commissioner. They were assisted in submitting the Preliminary Questionnaire (PQ), thereby registering their wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law below).
15.Two months later, on 2 and 9 November 2012 respectively, they were called for a refugee status determination interview. By decisions of 19January 2013, communicated to the applicants on 31 January 2013, the Refugee Commissioner (RC) rejected their applications on the basis that they had failed to substantiate their claim that they were born and lived in Halane village, in Qoryooley district, in Lower Shabelle Region, in southern Somalia. Thus, they did not fulfil the eligibility criteria for either refugee status or subsidiary protection.
16.On 7 February 2013, with the aid of lawyers from the Jesuit Refugee Service (JRS) the applicants appealed against the decisions. The Refugee Appeals Board (RAB) informed the applicants that they had until 18March 2013 to present submissions. This time-limit was extended and appeal submissions were lodged in April 2013.
17.By the date their application was lodged with this Court, that is eleven months and three weeks from the date of their arrival, no decision had been issued. The applicants were hoping to be released on the lapse of twelve months from their arrival as per normal domestic practice.
C.Conditions of detention
1.Ms Moxamed Ismaacil
18.Ms Moxamed Ismaacil, the first applicant, was initially detained in Zone D and later moved to an unspecified Zone in Lyster Barracks, in conditions which she considered prison-like and basic, although she considered Zone D to be better than the latter unspecified Zone. She explained that the place was overcrowded and noisy, and it was hard to keep it clean. There were twenty people in one dormitory and ninety-five people in the zone, with only one fridge. In summer the heat was unbearable and in winter it was too cold. They were fed the same food every day, and only allowed one hour of sunshine per day. She maintained that male detainees held in the upper floors often abused them verbally. Other factors which she considered had to be taken into consideration were her young age, her inability to communicate in any language except for Somali, and the fact that the detention centre was staffed exclusively by men. She further noted the absence of access to effective medical care, given that no interpreters were available. She had visited the clinic in the detention centre several times because she was sick, and was repeatedly told to drink water and take paracetamol tablets. Often no doctors were available and it was the soldiers at the detention centre who decided whether the issue warranted emergency treatment.
2.Ms Abdirahman Warsame
19.Ms Abdirahman Warsame explained that she endured the same circumstances mentioned above by Ms Moxamed Ismaacil. She added that she was depressed and that she often felt upset and agitated, at times she would stop drinking and eating and then lose consciousness. Despite her gastric pains, no special diet was provided for her and the doctors only administered paracetamol, to the extent that she started vomiting blood. In June 2013 she was hospitalized for a week. She alleges that she had become very weak physically and started suffering from memory loss.
D.Latest developments
1.Ms Moxamed Ismaacil
20.Ms Moxamed Ismaacil was released from detention on 14August 2013. At the time she was still waiting for the outcome of her appeal before the RAB. Her appeal was eventually rejected on 15 October 2013.
2.Ms Abdirahman Warsame
21.Ms Abdirahman Warsame was also released from detention on 14August 2013. At the time she was still waiting for the outcome of her appeal before the RAB. Her appeal was eventually rejected on 14 July 2014.
23. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011, published on 4 July 2013, in so far as relevant in connection with Lyster Barracks, reads as follows:
“44.At the time of the visit, Lyster Detention Centre was accommodating 248foreign nationals (including 89 women), in five different detention units.
...
47. More generally, the CPT has serious misgivings about the fact that female detainees at Lyster Detention Centre were frequently supervised exclusively by male detention officers, since only one female officer was employed by the Detention Service at the time of the visit.
The CPT recommends that the Maltese authorities take steps as a matter of priority to ensure the presence of at least one female officer around the clock at Lyster Detention Centre.
48. As was the case in 2008, a number of detainees complained about disrespectful behaviour and racist remarks by detention officers (in particular in the Warehouses at Safi Detention Centre). The CPT reiterates its recommendation that the Maltese authorities remind all members of staff working in detention centres for foreigners that such behaviour is not acceptable and will be punished accordingly.
55. At both Lyster [and Safi Detention Centres], material conditions have improved since the 2008 visit. In particular, at Lyster Barracks, these improvements are significant: the Hermes Block, which had been in a very poor state of repair at the time of the 2008 visit, had been completely refurbished and the Tent Compound, which had also been criticised by the Committee in the report on the 2008 visit, had been dismantled. At Safi Barracks, additional renovation work had been carried out in Block B. It is noteworthy that all foreign nationals received personal hygiene products on a regular basis and were also supplied with clothes and footwear.
...
56. At Lyster Detention Centre, the situation had clearly improved as regards activities. Each zone comprised a communal room, and groups of detainees could attend English-language courses which were organised by an NGO (usually, three times a week for two hours per group). Further, single women and couples were provided with food so that they could prepare meals themselves in a kitchenette. Every day, detainees could go outside and play football or volleyball in a rather small yard for a total of two hours.
...
60. As regards contact with the outside world, the CPT welcomes the fact that, in both detention centres visited, foreign nationals could receive telephone calls from the outside. They were also were provided with telephone cards free of charge on a regular basis, although these were limited to a total of 5€ every two months.
61. That said, at Lyster Detention Centre, a number of detainees who had family members or friends in Malta complained about the fact that they were not allowed to receive any visits, but that “visitors” could only come to the centre on Sundays to deliver parcels to staff at the gate for the attention of a detainee. This state of affairs was subsequently confirmed by staff.
The CPT calls upon the Maltese authorities to take steps to ensure that foreign nationals are allowed to receive visits on a regular basis and that specific facilities are set up for that purpose. Relevant information on the visiting arrangements should also be included in the information brochure “Your Entitlements, Responsibilities and Obligations while in Detention” which is given to detainees.
62. In the report on the 2008 visit, the CPT invited the Maltese authorities to consider adding the Committee to the list of international bodies to/from which detainees could send/receive letters confidentially (and without bearing the cost of postage). Regrettably, the authorities had not taken any steps to this end, despite their commitment given in their response to the above-mentioned report. During consultations with the delegation, the Commander of the Detention Service affirmed to the delegation that appropriate steps would be taken without delay. The Committee would like to receive updated information on this point.”
24.The 9th General report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (the “CPT”) on the CPT’s activities covering the period 1January to 31 December 1998, at point 26, reads as follows:
“Mixed gender staffing is another safeguard against ill-treatment in places of detention, in particular where juveniles are concerned. The presence of both male and female staff can have a beneficial effect in terms of both the custodial ethos and in fostering a degree of normality in a place of detention.
Mixed gender staffing also allows for appropriate staff deployment when carrying out gender sensitive tasks, such as searches. In this respect, the CPT wishes to stress that, regardless of their age, persons deprived of their liberty should only be searched by staff of the same gender and that any search which requires an inmate to undress should be conducted out of the sight of custodial staff of the opposite gender; these principles apply a fortiori in respect of juveniles.”
25.Rule 53 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, reads as follows:
“(1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.”
26.The report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26 – 30 September 2011”, May 2012, pointed out, inter alia, that:
“The ICJ delegation found a lack of leisure facilities in all three detention facilities visited. ... In the Lyster Barracks there was also a small recreation yard, but without direct access from the detention section. Detainees had two hours per day of “air” in the courtyard. They reportedly seldom received visits from outside, apart from the occasional NGO.”
27.Bridging Borders, a JRS Malta report on the implementation of a project to provide shelter and psychosocial support to vulnerable asylum seekers between June 2011 and June 2012, highlights the fact that not all medication prescribed by medical personnel in detention is provided free by the Government health service. In fact the said report notes that during the lifetime of the project the organisation purchased medication for 130detainees.
28.Care in Captivity, a more recent JRS Malta report on the provision of care for detained asylum seekers experiencing mental health problems (research period December 2013 to June 2014), documented several obstacles to quality healthcare including: lack of availability of interpreters; lack of attendance for follow-up appointments following discharge to detention (in seven out of seventy-four cases); and failure to dispense prescribed psychotropic medication in some cases. It held that:
“In this regard, the current system where, after discharge from the ASU ward, the responsibility for continuity of care, in terms of attendance of hospital appointments and dispensation of medication, falls under detention health care providers and custodial staff appears not to be operating effectively.”

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6.The applicant was born in 1991. He is currently detained in a special facility for temporary detention of foreign nationals in Moscow.
A.Background events
7.The applicant is an ethnic Uzbek who lived in Jalal-Abad Region, Kyrgyzstan. In June 2010 the region was a scene of mass disorders and inter-ethnic clashes between ethnic Uzbeks and Kyrgyz.
8.In June 2010 the applicant was present at the barricades raised by ethnic Uzbeks near Suzak village. On 12 June 2010 he was wounded by a Molotov cocktail and was admitted to hospital on account of severe burns. He was released from hospital on 24 June 2010.
9.Eventually the applicant fled Kyrgyzstan to Russia, together with many other ethnic Uzbeks, to avoid ethnically motivated violence.
10.In 2012 the Kyrgyz authorities opened a criminal case against the applicant charging him with a number of violent crimes allegedly committed in the course of the riots of June 2010. On 26 June 2012 the Suzak District Court in the Jalal-Abad region ordered in absentia the applicant’s detention.
B.The applicant’s arrest and subsequent proceedings
1.The applicant’s detention and the expulsion proceedings
11.On 27 January 2015 the applicant was arrested in Moscow because he was not carrying an identity document. He was placed in the Special Facility for the Temporary Detention of Foreign Nationals, Moscow (“the detention centre for aliens”), run by the Russian Federal Migration Authority (“the FMS”).
12.On 28 January 2015 the Gagarinskiy District Court, Moscow (“the district court”) found the applicant guilty of an administrative offence punishable under Article18.8§3 (“breach of rules on entry and stay of foreign nationals in Moscow, St Petersburg, the Moscow Region and the Leningrad Region”) of the Russian Code of Administrative Offences (“the CAO”) and sentenced him as follows: “[...] a punishment in the form of an administrative fine in the amount of 5,000Russian roubles (RUB) [combined] with administrative removal and placement in the centre for detention of foreign nationals, [where he will remain] until the entry into force of that decision and until administrative removal from the Russian Federation under Article 32.10 of the Code of Administrative Offences”.
13.On 4 February 2015 the applicant appealed against the District Court’s decision arguing that in Kyrgyzstan he would be subjected to ill‑treatment like many other ethnic Uzbeks. It appears that the appeal documentation reached the District Court on 12 February 2015. The appeal hearing was scheduled for 10March 2015 but was then postponed until 20March 2015.
14.On 10 March 2015 the Court granted the applicant’s request for interim measures and indicated to the Government that the applicant should not be expelled or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court.
15.On 12 March 2015 the applicant’s relatives were told by the officials of the detention centre for aliens that the applicant would be expelled from Russia on that day. At about 8.30 p.m. the applicant contacted his lawyer stating that he was in Sheremetyevo Airport in Moscow. At 9.30 p.m. the lawyer arrived at the airport and was informed by the border control personnel that the applicant had not boarded the plane scheduled for Bishkek, Kyrgyzstan. State bailiffs informed the lawyer that the applicant had been brought to Sheremetyevo but had later been returned to the detention centre for aliens. At 10 p.m. a duty officer of the detention centre confirmed to the lawyer that the applicant was back in the facility.
16.On 20 March 2015 the Moscow City Court (“the Appeal Court”) upheld the District Court’s decision of 28 January 2015 on appeal. The Appeal Court dismissed the applicant’s allegations of the risk of ill‑treatment stating that “the documents submitted by the [applicant’s] defence d[id] not demonstrate a breach of rights and freedoms of the person in question” and reasoned that “[a]ssessment of actions by law-enforcement agencies of a foreign State, as well as of [legal] acts carried out by them f[ell] outside the subject-matter jurisdiction of a court examining a case concerning an administrative offence committed in the Russian Federation by a foreign national”.
17.On 10 April 2015 the Government informed the Court that “the proceedings on the administrative removal of the applicant have been suspended” and that the applicant “continues to be held in the detention centre for foreign nationals of the Moscow department of the Federal Migration Service” (“the Moscow FMS”).
2.Application for refugee status
18.On 4 February 2015 the applicant applied for refugee status arguing that in Kyrgyzstan he would face persecution based on his ethnic origin.
19.On 12 March 2015 the Moscow FMS dismissed the applicant’s request for refugee status. The parties have not provided the Court with a copy of the decision.
20.The applicant challenged the decision before the Basmannyy District Court, Moscow. The proceedings are pending.
C.Alleged ill-treatment of the applicant and subsequent events
21.According to the applicant, on 24 February 2015 he was severely beaten by officers of a special police squad in the detention centre for aliens. He received rubber-truncheon blows to his back, buttocks and heels.
22.The applicant notified his lawyer accordingly and provided mobile phone photos of his injured back.
23.On 25 February 2015 two lawyers visited the applicant along with several other persons awaiting expulsion in the detention centre for aliens. The applicant and other detainees informed them that regular beatings of detainees had begun on 17 February 2015 following unsuccessful suicide attempts by several inmates. The applicant claimed that the officers of the special police squad had beaten him on 24 February 2015 with rubber truncheons on his back, heels and buttocks.
24.On 26 February 2015 the lawyers reported the beatings to the main investigative department of the Moscow Investigative Committee. They emphasised that the medical staff of the detention centre had refused to enter the detainees’ injuries into the medical logs. The lawyers requested that the beatings of the detainees, including the applicant, be investigated. In support of their request they enclosed, among other things, the applicant’s photos showing injuries to his back.
25.On 19 March 2015 the lawyers’ complaint was forwarded to the Troitskiy district investigation department of the Moscow Investigative Committee.
26.It appears that no investigation into the applicant’s alleged beatings in the detention centre for aliens has been instituted.
37.For a number of relevant reports and further information, see Makhmudzhan Ergashev v. Russia (no. 49747/11, §§ 30-46, 16 October 2012), and Kadirzhanov and Mamashev v. Russia (nos. 42351/13 and 47823/13, §§ 72-77, 17 July 2014).
38.The Kyrgyzstan chapter of “Amnesty International Report 2014/15: The State of The World’s Human Rights”, in so far as relevant, reads as follows:
“The authorities failed to take effective measures to address allegations of torture and other ill-treatment and bring perpetrators to justice. No impartial and effective investigation took place into human rights violations, including crimes against humanity, committed during the June 2010 violence and its aftermath. MPs initiated draft laws that if adopted would have a negative impact on civil society. Prisoner of conscience Azimjan Askarov remained in detention.
TORTURE AND OTHER ILL-TREATMENT
Torture and other ill-treatment persisted despite a programme of independent monitoring of places of detention and the establishment of the National Centre for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment. On 20December 2013, the UN Committee against Torture issued its concluding observations on the second periodic report on Kyrgyzstan. The Committee expressed grave concern “about the ongoing and widespread practice of torture and ill-treatment of persons deprived of their liberty, in particular while in police custody to extract confessions”. On 23 April 2014, the UN Human Rights Committee considered the second periodic report of the Kyrgyz Republic.
Both Committees highlighted the failure of the authorities to promptly, impartially and fully investigate allegations of torture and other ill-treatment and to prosecute perpetrators. They expressed concern about the lack of a full and effective investigation into the June 2010 violence.1 The Committees also urged Kyrgyzstan to address these concerns by taking immediate and effective measures to prevent acts of torture and ill-treatment, by tackling impunity, prosecuting perpetrators and conducting investigations into all allegations of torture and other ill-treatment, including in cases related to the June 2010 violence.
On 16 June 2014, the Jalal-Abad regional human rights organization Spravedlivost (Justice) recorded two incidents of torture during a monitoring visit to the Jalal-Abad temporary detention centre. A medical practitioner, who was part of the monitoring group, documented the signs of torture. One detainee alleged that police officers had beaten him with hands and fists and a book, and put a plastic bag over his head. He was handcuffed to a radiator until the next day. He suffered concussion as a result of the ill-treatment. Another detainee alleged that police officers hit him in the larynx, kicked him in the stomach and beat his head with a book. Spravedlivost submitted complaints to the Jalal-Abad city prosecutor. After conducting an initial check and ordering two forensic medical examinations, the city prosecutor nevertheless refused to open criminal investigations into these allegations.
In 2014 the European Court of Human Rights issued three judgments against Russia, in which it stated that if ethnic Uzbek applicants were to be extradited to Kyrgyzstan, they would be at risk of torture or other ill-treatment.
IMPUNITY
Criminal investigations into allegations of torture were rare. In the first half of 2014, the Prosecutor General’s Office registered 109 complaints, but only in nine cases were criminal investigations initiated; of these only three went to trial. Trials were ongoing at the end of the year.
The media reported that on 26 November 2013, the Sverdlovsk District Court of Bishkek handed down the first ever conviction for torture under Article 305-1 of the Criminal Code. Police officer Adilet Motuev was sentenced to six years’ imprisonment. The Court found that he had illegally brought a man to a police station after accusing him of stealing a mobile phone. Adilet Motuev threatened the man and forced him to confess to the theft by squeezing the handcuffs and putting a plastic bag on his head and suffocating him. However, in 2014 the Court of Second Instance acquitted Adilet Motuev of all torture charges and changed the sentence to two years’ imprisonment for unauthorized conduct of an investigation.
The authorities failed to take any steps to fairly and effectively investigate the June 2010 violence and its aftermath in the cities of Osh and Jalal-Abad. Lawyers defending ethnic Uzbeks detained in the context of the violence continued to be targeted for their work, threatened and physically attacked, even in the courtroom, with no accountability for the perpetrators.”
39.The Kyrgyzstan chapter of Human Rights Watch’s “World Report 2015” reads, in so far as relevant, as follows:
“Since the outbreak of ethnic violence in June 2010, Kyrgyzstan’s flawed justice process has produced long prison sentences for mostly ethnic Uzbeks after convictions marred by torture-tainted confessions and other due process violations. Seven further cases related to crimes committed during the violence are pending, including that of a man detained in July 2014. All defendants are ethnic Uzbeks, reinforcing concerns of judicial bias.
Impunity for violent physical and verbal attacks at some hearings continued in 2014, undermining defendants’ fair trial rights. After a January hearing in the case of Mahamad Bizurukov, an ethnic Uzbek defendant standing trial for June 2010-related crimes, the United States embassy issued a statement expressing deep concern.
...
Although the government acknowledges that torture occurs in Kyrgyzstan, impunity for torture remains the norm. Criminal cases into allegations of ill-treatment or torture are rare, and investigations and trials are delayed or ineffective.
In its June concluding observations, the UN Committee on the Rights of the Child (CRC) expressed concern about “widespread torture and ill-treatment of children” in detention and closed institutions and called for prompt and effective independent investigations.
According to statistics provided by the Prosecutor General’s Office to Golos Svobody, a local anti-torture group, authorities declined to open criminal investigations into 100 of 109 registered complaints of torture in the first half of 2014.
Monitors from the National Center for the Prevention of Torture encountered some problems accessing places of detention. After one incident in March, the center filed a complaint against the director of the Issyk Kul region temporary detention facility for refusing the monitors entry, but at time of writing the director had not been held accountable.”

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5.The applicant was born in 1956 and is currently detained in Giurgiu Prison.
6.For the last nine years the applicant had been convicted several times and he had been detained in various prisons. For certain periods of time he had been held in the Jilava and Rahova prison hospitals.
7.On 1 November 2007 the applicant was convicted by the Arad County Court on two counts of robbery and theft and was sentenced to seven years’ imprisonment. The court also ordered the applicant’s committal to the psychiatric section of the Bucharest Jilava Prison Hospital until his recovery.
A.Conditions of detention
1.The applicant’s account
8.In his application forms and letters sent to the Court since 2009, the applicant complained of the severe overcrowding he had had to endure in Galaţi Prison, where thirteen to fifteen detainees were held in a cell of between 20 and 24 sq. m, as well as in Rahova and Jilava Prisons.
9.The applicant also alleged that the quality of food and drinking water had been very poor in these prisons, that he had not always been served a diet in accordance with his Muslim religious beliefs and that most of the time he had been starving as the portions had not been sufficient.
10.In all three prisons hot water had only been provided for short periods of time in which there had not been enough time to brush his teeth. Furthermore, in Jilava Prison there had not been enough cold water provided.
11.The applicant further alleged that, although he had no financial resources and had had no family to help him, the prison authorities in all three prisons had failed to provide him with the necessary clothes, toilet paper, soap or toiletries to brush his teeth.
2.The Government’s account
(a)Galaţi Prison
12.In Galaţi Prison the applicant was held for almost eight months in sixdifferent cells including in the infirmary and the “hunger strike” (refuz de hrană) cell. The cells in this prison are approximately 24 sq. m with a maximum of fifteen beds. The applicant shared the cells with a maximum of eleven other prisoners (2.1 sq. m of space per person, including the space occupied by beds and other furniture).
13.Cold water was available at various intervals for a total of sevenhours per day and was not available between 9 p.m. and 6:30 a.m. The quality of the drinking water was certified by the Galaţi Public Health Authority.
14.The applicant received a diet in accordance with his religious beliefs and the composition of the daily menu was in line with the regulations.
15.Toiletries were provided as the budget allowed. During the period of almost eight months that the applicant spent in Galaţi Prison he received the following: two tubes of toothpaste, six razors, four tubes of shaving cream, nine bars of poor quality soap, six rolls of toilet paper, two toothbrushes and washing powder.
16.Throughout his detention in Galaţi Prison the applicant received no visits and was considered unfit for work. He did not have any income.
(b)Rahova Prison
17.The applicant was held in Rahova Prison for six months and fourdays. He was placed in cells measuring 21 sq. m which he shared with nine other prisoners (2.1 sq. m of space per person including beds and other furniture). The cells had bathrooms equipped with two sinks, a shower and a toilet. Cold water was constantly available and hot water was twice per week following a schedule.
18.Food was prepared in accordance with the standards and regulations. Renovation of the food preparation and storage areas were under way when the Government’s observations were being submitted.
19.The Government submitted that upon their placement in a detention facility, prisoners received one set of bed linen.
20.Throughout his detention in Rahova Prison the applicant received no visits, was considered unfit for work and did not have any income.
(c)Jilava Prison
21.The applicant was detained in Jilava Prison for twenty-two days. For a few days he shared a cell measuring 40.28 sq. m with twenty-seven prisoners; there were thirty beds as well as other items of furniture (1.43 sq. m of space per person including beds and other furniture). This cell was equipped with two toilets and two sinks where cold water was constantly available. The rest of the time he was held in the infirmary where he had approximately 6 sq. m of personal space.
22.Hot water was provided in common shower facilities according to a pre-established schedule for two hours on Mondays and Fridays for half of the prison and Tuesdays and Saturdays for the other half. In one of the infirmary wards, where the applicant spent fourteen days, two showers with hot water were available for up to seven prisoners, for the same periods as the general schedule (two hours per week).
23.During the twenty-two days he spent in this prison, the applicant received one roll of toilet paper, a razor and one tube of shaving cream.
24.The Government alleged that on 17 May 2013 the applicant also received clothing that he could use during his stay in this prison but they submitted no documents in support of this claim.
25.The applicant received the “Muslim menu” in accordance with the internal regulations.
26.The applicant had access to the exercise yard for six hours per day.
27.Throughout his detention in Jilava Prison the applicant received no visits and did not have any income.
28.On 11 June 2013 the applicant was transferred to Giurgiu Prison.
3.The applicant’s complaints about the conditions of detention
29.The applicant lodged numerous complaints with the prison authorities or the post-sentencing judge outlining his dissatisfaction with the overcrowding, the poor quality of the drinking water or the quality and quantity of the food he received. He asked on several occasions to be placed in a single occupancy cell and to be given certain foods such as fried eggs or fried potatoes.
30.These complaints were always rejected as being ill-founded.
31.On 30 September 2009, the Bucharest District Court rejected with final effect the applicant’s complaint concerning the lack of adequate provision of drinking water in Jilava Prison, reasoning that this situation was a result of budgetary constraints. Another complaint lodged with the delegate judge while the applicant was being held in Rahova Prison has on its reverse side the note “Transferred”.
32.The complaints about overcrowding were always solved with the conclusion that the assignment of detainees to sections and cells was a function of the prison’s administration and placement in individual cells was not possible and was not allowed by law.
33.On several occasions the applicant complained to the post-sentencing judge that the food served in prison was of very poor quality and the portions were not adequate. All his complaints were rejected as ill-founded as the post-sentencing judge considered that the applicant’s allegations had been contradicted by the information submitted by the authorities of the prisons concerned.
34.On 7 March 2013 while he was held in Rahova Prison the applicant requested one pair of shoes, two pairs of socks and one tracksuit. A note on the request says that it shall be examined depending on stocks, but there is no subsequent mention of whether the applicant received any of the items requested.
B.Medical treatment
1.The applicant’s medical condition and treatment
35.On July 2009, following a dental examination in Rahova Prison Hospital, the applicant was diagnosed with periodontitis (I and II degree) and frontal, lateral and terminal edentulism. The doctor prescribed specific periodontitis treatment, a mobile prosthesis and a liquid or semi-liquid diet until the installation of the prosthesis.
36.Since then, the applicant had been taken to see a dentist on numerous occasions upon his requests following bouts of inflammation of the gums or pain. He was consistently prescribed symptomatic treatment with antibiotic or anti-inflammatory drugs. On these occasions the doctors would repeat the prescription for a liquid or semi-liquid diet.
37.In November 2009 the applicant was diagnosed with chronic generalised marginal periodontitis and was prescribed antibiotics, anti-inflammatory drugs and hygienisation of the oral cavity by a dentist within the prison system. On the same occasion he was also diagnosed with inflammation of the salivary glands and surgery was prescribed, which was performed on 28 March 2013.
38.On 11 May 2010 the applicant was diagnosed with a duodenal ulcer and on 11 August 2011 with chronic gastroduodenitis.
39.On 21 July 2011 during a medical examination in Galaţi Prison the applicant, who had been previously diagnosed with several personality disorders, was diagnosed as showing symptoms of paranoia; it was recommended that he be committed to the psychiatric section of the Poarta Albă Prison Hospital.
40.Between 15 and 19 October 2012 the applicant was hospitalised for an acute inflammation of the salivary glands and generalised stomatitis. He was released with a prescription to eat liquid and semi-liquid food, to brush his teeth three times per day, to take antibiotics and to use mouthwash.
41.The applicant had one tooth extracted on 29 November 2012.
42.On 24 February 2014 the applicant was taken to the prison hospital with congestion and swelling of the gums. He was diagnosed with, among other conditions, chronic acute otitis, generalised stomatitis, chronic apical periodontitis, neurovegetative disorders, conjunctivitis and spondylosis.
43.On several occasions the applicant was taken to prison hospitals or to the emergency unit of public hospitals with a broken nose or ribs after having been assaulted by other prisoners.
44.Throughout his detention the applicant refused treatment with drugs or, on a few occasions, to be transported to Rahova Prison Hospital for conditions not related to his dental problems. In November 2011 the applicant, who was in a nervous state, refused to be seen by the prison dentist. On 3 February 2014 the applicant refused to have a tooth extracted.
2.Complaints lodged by the applicant concerning his dental problems
45.On 15 October 2009 the applicant complained before the prison authorities and the post-sentencing judge that he was not receiving the liquid and semi-liquid diet prescribed by the doctor. On 3 November 2009 the post-sentencing judge in Rahova Prison rejected the complaint, agreeing with the prison authorities that there was no prescription from a doctor for such a diet in the applicant’s medical file. Another similar complaint lodged by the applicant in January 2013 had been rejected by the post-sentencing judge for the same reason.
46.On 21 May 2012, in August 2012 and on 10 September 2012 the applicant complained to the prison administration that he had toothache and that he could not eat as he had not been given a liquid diet, as requested. No replies to these complaints could be found in the applicant’s prison file submitted by the Government.
47.In January 2013 the applicant complained before the post-sentencing judge of the poor quality of the food served in prison; the vegetables were undercooked; he received bones without meat. He further complained that he had not been given the liquid diet prescribed by the doctors and that he had thus constantly received food that he could not chew and eat. The prison administration averred before the judge that no special diet had been prescribed to the applicant by a doctor and that the food served in prison was in accordance with the regulations and within the limits of the budget of 4.06 Romanian lei per prisoner per day (approximately 1 euro). On 8January 2013 the post-sentencing judge rejected the applicant’s complaint as ill-founded, considering that the food received by the applicant had been in accordance with the regulations and the budget.
48.In March 2013 the applicant complained again before the post-sentencing judge. He alleged that, due to his dental problems, he could not eat the food served in prison. He mentioned that the meat was not cooked through and very often during transport he had received raw, unsliced bacon and biscuits that he could not eat. On 21 March 2013 the post-sentencing judge rejected the applicant’s complaint because the facts described by him had been refuted by the prison authorities. At that time, no doctor had prescribed that the applicant be given a liquid or semi-liquid diet. On 14 May 2013 the Bucharest District Court rejected this complaint with final effect holding that the prison menus were prepared and administered in accordance with the internal regulations and within the limits of the budget.
49.On 16 and 25 June, 23 December 2013 and 12 and 24 March 2014 the applicant complained to the prison administration of toothache and requested treatment for his periodontitis. The authorities replied to these complaints that the doctor was on holiday and that an appointment would be scheduled in the future.
C.Alleged ill-treatment by a prison guard
50.According to the applicant, on 14 February 2013 when he was being transported to an infirmary outside the prison, he was ill-treated by a prison guard escorting him.
51.Immediately after the incident the applicant lodged a criminal complaint against the prison guard for ill-treatment and abusive behaviour.
52.On 27 November 2013 the Prosecutor’s Office of the Bucharest District Court issued a decision not to commence criminal proceedings in the case. According to a copy of the prison’s correspondence logbook, as submitted by the Government, the applicant received a copy of the decision on 12 December 2013.
53.The applicant did not contest this decision before the superior prosecutor as provided for by the Criminal Procedure Code.

***

5.The applicant was born in 1959 and lives in Baku.
6.The applicant is a mathematician and physicist who worked at the Academy of Sciences of the Republic of Azerbaijan from 1981 to 1993. He then became involved in the political and social life of the country. He also worked as editor-in-chief of the Talishi Sedo, a bilingual Azerbaijani-Talish newspaper, and was chairman of the Talish Cultural Centre. He has been chairman of the Committee for Rehabilitation of Detainees since 2009.
A.The applicant’s arrest and alleged ill-treatment by the police
1.The applicant’s version of events
7.At around noon on 21 June 2012, when the applicant was on his way home, six or seven plain-clothes police officers assaulted him near the Neftchilar metro station in Baku. Without showing their official identification, they restrained the applicant’s arms and began to hit him below the knees. They kicked him in the lower part of his right ribcage and then slipped narcotic substances into his right trouser pocket. They handcuffed him and dragged him into their car, where they continued to beat him. In the car they started to insult him, making comments about his ethnic origin, and threatened him on account of a video recording he had uploaded to the YouTube online video platform.
8.The police officers did not inform the applicant of the reasons for his arrest. Indeed, the applicant did not even realise that he had been arrested by the police until he was taken to the Narcotics Department of the Ministry of Internal Affairs (“the NDMIA”).
9.A search of the applicant was conducted at the NDMIA. According to the record (no. 7/32-130 dated 21 June 2012) of operational measures and the seizure of physical evidence (əməliyyat tədbirinin keçirilməsi və maddi sübutun götürülməsi barədə protokol) drawn up by a police investigator, the search was carried out from 1.45 to 2p.m. on 21June 2012 in the presence of the applicant, three police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, 5 grams of a substance similar to heroin was found in his right trouser pocket.
10.At 2 p.m. on 21 June 2012 a police investigator drew up a record of the applicant’s arrest.
11.On the same day a search was carried out in the applicant’s flat without a court order. According to the search record, it was conducted from 6.10 to 7.55 p.m. on 21 June 2012 in the presence of the applicant, six police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer and the two attesting witnesses were the same persons who had previously participated in the search at the NDMIA. During the search, narcotic substances similar to heroin were found. The applicant made a written comment in the record that the narcotic substances did not belong to him.
12.According to the applicant, on 21 and 22 June 2012 he was detained in handcuffs and was deprived of food and water.
2.The Government’s version of events
13.The Government submitted that on 21 June 2012, during the applicant’s arrest and afterwards at the police station, he was not subjected to torture or inhuman or degrading treatment by the police.
B.The applicant’s pre-trial detention and criminal conviction
14.On 22 June 2012 the applicant was charged under Article 234.4.3 (illegal preparation, production, possession, storage, transportation and sale of a large quantity of narcotic substances) of the Criminal Code.
15.On the same day the Nizami District Court, relying on the official charge brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody (həbs qətimkan tədbiri), ordered the applicant’s detention for a period of three months. The court justified the applicant’s detention pending trial by the gravity of the charge, the fact that the applicant was charged with a criminal offence punishable by more than five years’ imprisonment, and the likelihood that if released he might abscond from the investigation.
16.On 14 August 2012 the Baku Court of Appeal upheld the detention order of 22June 2012.
17.In the meantime, on 3 July 2012 the applicant was charged with new criminal offences under Articles 274 (high treason) and 283.2.2 (incitement to ethnic, racial, social or religious hatred and hostility) of the Criminal Code.
18.On 17 August 2012 the applicant applied to the Nasimi District Court to be placed under house arrest instead of pre-trial detention. He claimed, in particular, that his detention had not been justified and that there was no reason for his continued detention.
19.On 1 September 2012 the Nasimi District Court dismissed the application as unsubstantiated.
20.On 10 September 2012 the Baku Court of Appeal dismissed an appeal lodged by the applicant. It found that if he was placed under house arrest, the applicant might abscond from the investigation and obstruct the investigation by influencing those involved in the proceedings.
21.On 15 September 2012 the Nasimi District Court extended the applicant’s pre-trial detention for a period of four months.
22.On 20 September 2012 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 15 September 2012.
23.On 27 September 2013 the Baku Assize Court found the applicant guilty on all counts and sentenced him to five years’ imprisonment.
24.On 25 December 2013 the Baku Court of Appeal upheld this judgment. It was further upheld on 25 June 2014 by the Supreme Court.
C.Criminal inquiry concerning the applicant’s alleged ill-treatment
25.At 8.30 p.m. on 21 June 2012 an investigator at the Nizami District Police Office questioned the applicant as a suspect. It appears from the record of the questioning that the applicant complained of ill-treatment during his arrest by the police. He stated in this connection that on his way home at around noon on 21 June 2012 near the Neftchilar metro station in Baku, two cars stopped next to him and six or seven plain-clothes police officers assaulted him. They dragged him into one of the cars without showing their official identification and began to beat him up. He did not realise that he had been arrested by the police until he was taken to the NDMIA. The applicant further stated that the narcotic substances found on him and in his flat had been planted by the police. He pointed out that his arrest was related to his political and social activities, as he was editor‑in‑chief of the Talishi Sedo newspaper and was involved in defending political prisoners’ human rights.
26.On the same day the investigator ordered a forensic examination of the applicant.
27.On 22 June 2012 the applicant was examined by a forensic expert. His report (no. 554 dated 23 June 2012) stated that the applicant had complained of having been beaten up by the police during his arrest on 21June 2012. The expert noticed abrasions on the applicant’s left calf and right thigh, and concluded that they could have been inflicted on 21 June 2012. The relevant part of the forensic report reads as follows:
“Questions addressed to the forensic expert:
1.What kind of injuries are there on the body of citizen H. Mammadov?
2. What are their characteristics and location?
3. On which part of the body, in which circumstances and with which instrument were the injuries inflicted? Could these injuries have been sustained as a result of an assault?
4. What is the degree of gravity of the injuries?
Initial information:
...
H. Mammadov submitted in his statement that on 21 June 2012 police officers arrested him and dragged him into a car where they hit him on various parts of his body.
On 22 June H. Mammadov was subjected to a forensic examination. According to him, at around noon on 21 June 2012 six or seven plain-clothes police officers arrested him near his place of residence. They kicked and punched him as they put him in the car and whilst in the car. He did not ask for medical help. He complains of pain in the location of his injuries.
Objective examination:
1.The person examined is a man of medium height, normal build and well fed.
2.There are two abrasions (sıyrıq), measuring 1.7x0.5 cm and 1.8x0.2 cm, 4 cm apart, on the middle of the outer side of the left calf (baldır). The surface of the abrasions is covered with a red scab and is situated below the level of healthy skin tissue. There is an analogical abrasion, measuring 1.0x0.1 cm, on the middle of the outer side of the right thigh (bud). No other injuries were noticed on the body.
Conclusion
Relying on the forensic examination of H. Mammadov, born in 1959 and the initial information, and in reply to the questions addressed in the decision, I conclude as follows:
1.The following injuries were noticed on the body of citizen H. Mammadov: abrasions on the left calf and on the right thigh.
2.The above-mentioned injuries were caused by a hard blunt object(s). They could have been inflicted in the circumstances and at the time indicated in the descriptive part of the decision, namely on 21 June 2012. The degree of the injuries has not been determined because they are not injuries causing harm to health.”
28.The applicant was not provided with a copy of the forensic report.
29.It appears from the case file that on 22 June 2012 the applicant’s complaint of ill-treatment was transferred to the Nizami District Prosecutor’s Office.
30.On 29 June 2012 an investigator at the Nizami District Prosecutor’s Office questioned the applicant about his ill-treatment by the police. The applicant reiterated his previous statement, pointing out that at around noon on 21 June 2012 he had been beaten up during his arrest by six or seven plain-clothes police officers. He further stated that these police officers had also participated in the search at the NDMIA on 21 June 2012 and that the name of one of them was Q.
31.It appears from the documents submitted by the Government that on 31 July 2012 the Head of the Serious Crimes Department of the Prosecutor General’s Office asked the Deputy Prosecutor General to order the examination of the applicant’s complaint of ill-treatment received by the Nizami District Prosecutor’s Office.
32.On 6 and 9 August 2012 an investigator at the Prosecutor General’s Office separately questioned four police officers, including Q., who had participated in the arrest and search. The wording of their statements was identical. They each claimed that they had not used physical force against the applicant during his arrest.
33.On 13 and 14 August 2012 the investigator separately questioned three police officers who had been on guard duty at the temporary detention centre when the applicant had been taken there following his arrest. Their statements were also identical, each claiming that, when the applicant had been taken to the temporary detention centre, he had not complained of ill‑treatment.
34.On 15 August 2012 the applicant was questioned by the investigator and reiterated that he had been beaten up during his arrest. In reply to the investigator’s question concerning the fact that the police officers who had participated in his arrest had denied the allegation of ill-treatment, the applicant stated that they had lied in their statements.
35.On the same day the investigator examined the clothes that the applicant had been wearing on the day of his arrest. The investigator found that the clothes were not damaged.
36.On 17 August 2012 the investigator ordered an additional examination of the applicant by a forensic commission. In particular, he asked the experts to establish whether the injuries found on the applicant’s body could have resulted from his body coming into contact with “sharp parts of the vehicle” (avtomobilin çıxıntı hissələri) during his arrest.
37.On 23 August 2012 the applicant was examined by two experts who issuedforensic report no. 213 on 24 August 2012. According to the forensic report, the applicant complained of having been beaten up during his arrest on 21 June 2012. The experts confirmed the existence of injuries on the applicant’s body, but concluded that they had resulted from the applicant’s body coming into contact with “angular protruding parts of the vehicle” (avtomobilin qabarıq tinli hissələri) during his arrest. The relevant part of the forensic report reads as follows:
“Information about the case:
...
1.The person examined is a man of medium height, normal build and well fed.
2.There is brown-grey pigmentation in the shape of a strip, measuring 1.4x0.3 cm, on the middle of his outer left calf. No injury or trace of injury was noticed on other parts of his body.
Conclusion
Relying on the forensic examination of H. Mammadov, born in 1959, the facts indicated in the descriptive part of the decision, the observations indicated in forensic report no. 554 in respect of him and in reply to the questions addressed in the decision, the commission of experts concludes as follows:
1.There are two abrasions on the middle of the outer side of his left calf and one abrasion on the middle outer side of his right thigh.
2. The above-mentioned injuries were caused by a hard blunt object(s). They could have been inflicted at the time indicated in the descriptive part of the decision, namely on 21 June 2012. The degree of the injuries has not been determined because they are not injuries causing harm to health.
3. Taking into consideration the characteristics (morphological particularities) and location of the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov, and the fact that such injuries could not have been inflicted by another person or other persons in the passenger compartment of a car, it is refuted that these injuries could have been inflicted in the circumstances described in the statement of H. Mammadov.
3.1. It therefore results from the above-mentioned observations that the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov were caused by contact of the examined lower parts of his body with angular protruding parts of the vehicle when he was put in the car.
4. No injury or trace of injury corresponding to the circumstances described in H.Mammadov’s explanation and statements that he was beaten in the head, neck and chest in the passenger compartment of the vehicle was noticed either during the initial forensic examination dated 22 June 2012 or during the additional commission forensic examination of 23 August 2012.”
38.The applicant was not provided with a copy of forensic report no.213.
39.On 27 August 2012 the Deputy Prosecutor General refused to institute criminal proceedings in connection with the applicant’s complaint of ill-treatment. The prosecutor concluded that it had not been established that the applicant had been beaten up during his arrest. In this connection, he relied on the conclusions of the forensic report of 24 August 2012, the statements from four police officers who had participated in the applicant’s arrest and from three police officers who had been on guard duty at the temporary detention centre on 21 June 2012. The relevant part of the decision reads as follows:
“Q. also stated that when they arrested H. Mammadov on the territory of the Nizami District they had shown their official identification and had not used any violence against him.
The police officers of the NDMIA (A.X., C.M. and Q.H.) who had been questioned during the inquiry made statements similar to that of Q., pointing out that H.Mammadov had not been subjected to violence during his arrest and search.
...
It appears from forensic report no. 554 dated 23 June 2012 issued by ... that H.Mammadov sustained abrasions on his left calf and right thigh. Their degree of gravity has not been determined because they are not injuries causing harm to health.
On 17 August 2012 a decision ordering an additional commission forensic examination was adopted. It appears from forensic report no. 213 dated 24 August 2012 in respect of H. Mammadov issued by ... that the injuries found on the outer sides of the left calf and of the right thigh of H. Mammadov were caused by contact of the examined lower parts of his body with angular protruding parts of the vehicle when he was put in the car. No injury or trace of injury corresponding to the circumstances described in H. Mammadov’s statement that he had been beaten in the head, neck and chest in the passenger compartment of the vehicle was noticed either during the initial forensic examination dated 22 June 2012 or during the additional commission forensic examination of 23 August 2012.
...
After having comparatively analysed the facts of the case with the material collected during the inquiry, I therefore conclude that the allegations of H. Mammadov ... that the injuries found on his body were caused on 21 June 2012 when he was beaten up and was subjected to physical force during his arrest by police officers are not proven.
Accordingly, as the allegations that H. Mammadov was beaten up and subjected to physical force during his arrest by police officers of the NDMIA are not proven, no criminal act was committed. In accordance with Article 39.1 of the Code of Criminal Procedure, institution of criminal proceedings should be refused.”
40.It appears from the document submitted by the Government that the investigator in charge of the case sent a copy of the prosecutor’s decision of 27 August 2012 to the detention centre where the applicant was detained at that time. Although the document was signed by the investigator, it was not dated. Moreover, the date on which it was sent was not indicated on the document.
41.In the meantime, on 6 July 2012, having received no response from the investigating authorities concerning his complaint of ill-treatment, the applicant lodged a complaint with the Nasimi District Court concerning the investigating authorities’ failure to investigate his complaint of ill-treatment. The applicant asked the court to find a violation of his right protected under Article 3 of the Convention.
42.In support of his complaint, he submitted that on 21 June 2012, without showing their official identification, six or seven plain-clothes police officers had assaulted him near the Neftchilar metro station in Baku. They restrained his arms and began to strike him in below the knees. They kicked him in the lower part of his right ribcage and then slipped narcotic substances into his right trouser pocket. They then dragged him into their car where they continued to beat him. In the car they started to insult him, making comments about his ethnic origin, and threatened him on account of a video recording he had uploaded to the YouTube online video platform.
43.On 29 August 2012 the Nasimi District Court dismissed the applicant’s complaint. The court held that a criminal inquiry had already been carried out in respect of the applicant’s complaint of ill-treatment and by a decision of 27 August 2012 the Deputy Prosecutor General had refused to institute criminal proceedings. The court further held that as the prosecutor’s decision was still in force, it could not deliver a new decision in this connection. The applicant could, however, lodge a complaint against the prosecutor’s decision of 27 August 2012.
44.Following the delivery of the Nasimi District Court’s decision of 29August 2012, the applicant learned about the existence of the Deputy Prosecutor General’s decision of 27August 2012 refusing to institute criminal proceedings in respect of his complaint of ill-treatment. The court also provided him for the first time with copies of the forensic reports of 23June 2012 and of 24 August 2012.
45.On 14 September 2012 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 29 August 2012.
46.On an unspecified date in October 2012 the applicant lodged a complaint with the court against the Deputy Prosecutor General’s decision of 27 August 2012 refusing to institute criminal proceedings. He reiterated his previous complaints concerning his ill-treatment by the police during his arrest and complained about the ineffectiveness of the criminal inquiry. In this connection, he disputed the conclusions of the additional forensic report of 24 August 2012. He asked the court to quash the prosecutor’s decision and declare it unlawful. He also asked the court to hear the experts who had conducted his forensic examinations and the police officers who had participated in his arrest.
47.On 8 November 2012 the Sabail District Court dismissed the applicant’s complaint, finding the prosecutor’s decision justified. The court, however, made no mention of the applicant’s particular requests that it hear the experts and the police officers. The relevant part of the decision reads as follows:
“Having examined the allegations that the complainant H. Mammadov was subjected to ill-treatment by police officers during his arrest and that he was beaten up and subjected to degrading treatment when he was taken to the NDMIA, the court considers that a thorough investigation in this respect was conducted by the Prosecutor General’s Office of the Republic of Azerbaijan in accordance with the current legislation and the requirements of the international treaties. All possible measures were taken during this investigation; the persons who had been involved in the complainant’s arrest and had been in contact with him immediately after his arrest were questioned; a forensic examination and an additional commission forensic examination were carried out; however, the collected material did not prove the allegations indicated in the complaint.
In these circumstances, the court considers that it was not possible to collect sufficient evidence which could constitute the basis for instituting criminal proceedings in connection with the injuries sustained by H. Mammadov on 21 June 2012.
Therefore, taking into consideration the collected material and the evidence examined at the court hearing, the court considers that the decision of 27 August 2012 refusing to institute criminal proceedings adopted within his competence by the Deputy Prosecutor General of the Republic of Azerbaijan ... was justified and H.Mamadov’s application for its quashing should be dismissed.”
48.On an unspecified date the applicant appealed against that decision, reiterating his previous complaints.
49.On 19 November 2012 the Baku Court of Appeal upheld the first‑instance court’s decision. The appellate court’s decision was identical in its wording to the Sabail District Court’s decision of 8 November 2012.
D.Examination of the applicant’s detention pending trial by the Working Group on Arbitrary Detention of the Human Rights Council of the United Nations
50.It appears from the applicant’s observations submitted to the Court in reply to the Government’s observations that the Working Group on Arbitrary Detention of the Human Rights Council of the United Nations (“the Working Group on Arbitrary Detention”) delivered its opinion no.59/2013 concerning the applicant’s pre-trial detention on 22 November 2013. The relevant part of the opinion reads as follows:
“2.The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to the detainee) (category I);
(b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III);
(d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV);
(e) When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights (category V).
Submissions
Communication from the source
3.The case summarized below was reported to the Working Group on Arbitrary Detention.
4.Hilal Mammadov, born in XXXX in Astara Rayon, Azerbaijan, is an Azerbaijani journalist and a defender of minority rights. Since 9 June 2012, he has been the editor‑in-chief of the Baku-based newspaper Tolishi Sado (The Voice of Talysh), the only newspaper printed in the minority Talysh language.
5.The source informs the Working Group that the Talysh people are an ethnic minority residing in southern Azerbaijan.
6.On 21 June 2012, Mr. Mammadov was arrested by the Nasimi District Police pursuant to article 234.4.3 of the Criminal Code of Azerbaijan in relation to illegal manufacture, purchase, storage, transfer, transport or sale of drugs in a large quantity. According to the source, the authorities alleged that they had seized five grams of heroin from his person, and approximately 30 grams from his place of residence.
7.On 22 June 2012, the Nasimi District Court (Baku City) sentenced Mr.Mammadov to three months’ detention. Mr. Mammadov appealed the sentence and requested to be permitted to serve the term under house arrest. On 10 September 2012, the Baku Appeal Court upheld the original decision, denying him provisional release. Mr. Mammadov remains in detention to this day.
...
17.On 28 November 2012, Mr. Mammadov’s lawyers reported that, following the completion of the investigation into the criminal charges against him, Mr. Mammadov was charged under article 274 (high treason), article 283.2.2 (incitement to national, racial or religious hostility) and articles 234.4.3 (illegal manufacturing, purchase, storage, transportation, transfer or selling of narcotics and psychotropic substances) of the Criminal Code.
18.On 21 December 2012, the hearing of Mr. Mammadov’s criminal charges was reportedly transferred to the Baku Grave Crimes Court. A preparatory session defining the procedural issues of the case took place on 9 January 2013. On that date, Mr. Mammadov’s lawyer reportedly submitted two motions: one requesting an audio‑visual recording of the hearing; and another requesting that his client be allowed to sit beside his lawyer rather than behind secure bars. The source informs the Working Group that both motions were rejected.
19.The source was informed by the Human Rights Centre of Azerbaijan that Mr.Mammadov had been beaten and injured by his cellmate in a Kurdakhani prison on 26, 28 and 29 November 2012. The source reports that Mr. Mammadov was placed in the cell two weeks prior to the attacks. Mr. Mammadov’s lawyers had requested on several occasions that he be removed from the cell as his cellmate’s behaviour was aggressive to the point of preventing him from sleeping at night. Those requests were all ignored. On 29 November 2012, his cellmate was transferred to the medical unit of the prison hospital for treatment of his reportedly severe mental illness.
20.The source considers the ongoing harassment of Mr. Mammadov as an attempt to silence his efforts to report on human rights violations. The source points out that Mr. Mammadov’s arrest came shortly before the first edition of the Tolishi Sado newspaper under his authority as editor-in-chief was due to be published (at the end of June 2012). He was arrested after posting music and a video clip on the Internet which attracted attention to the Talysh culture.
21. The source submits that Mr. Mammadov faces imprisonment sentences ranging up to life for trumped-up charges brought against him successively in June and July 2012, and most recently in November 2012.
22.The source signals its concern with regard to Mr. Mammadov’s conditions of detention in the light of the fate that befell Novruzali Mammadov, the former editor‑in-chief of the Tolishi Sado newspaper, who was allegedly subjected to similar acts of harassment and arbitrary detention in 2007, and who died in custody on 17August 2009.
23.The source concludes that the detention of Hilal Mammadov is arbitrary and considers it an obvious attempt to silence his efforts to report on human rights violations. Furthermore, his rights to legal protection have been violated.
24.The source further expresses its fears for the physical and psychological integrity of Mr. Mammadov.
Response from the Government
...
Discussion
61.The Working Group was informed that Mr. Mammadov has been sentenced to five years in prison for criminal offences relating to “illegal selling of drugs”, “high treason” and “incitement to national, racial, social and religious hatred and hostility” under articles 234.4.3, 274 and 283 respectively of the Criminal Code of the Republic of Azerbaijan.
62.The source alleged that the authorities fabricated the case against Mr.Mammadov due to his human rights work and support for the minority Talysh population.
63.The source informed the Working Group that Mr. Mammadov was a consultant with the Institute for Democracy and Peace and editor-in-chief of Tolishi Sado, the only newspaper in the minority Talysh language in Azerbaijan. Mr. Mammadov was also head of the Committee for the Defence of Novruzali Mammadov, a prominent Talysh scientist and human rights activist and former editor-in-chief of Tolishi Sado, who was charged in June 2008 with espionage, subsequently sentenced to 10 years of imprisonment, and who died in prison in 2009.
64.Hilal Mammadov was arrested on 21 June 2012 for alleged possession of heroin. On 3 July 2012 and 23 November 2012, he was also charged with treason and incitement of national, racial, social and religious hatred and hostility. His hearing in the Baku Grave Crimes Court began on 29 January 2013; he was convicted of the charges brought against him and sentenced on 27 September 2013.
65.In its response, the Government set out the case for the prosecution and the court’s judgment. However, the Working Group is of the view that the Government did not provide a satisfactory explanation as to the allegations put forward by the source concerning the arbitrary character of the charges against Mr. Mammadov and his subsequent conviction.
66.The information provided by the source and the Government to the Working Group indicates that the charges of treason and incitement of national, racial, social and religious hatred and hostility are based on Mr. Mammadov’s legitimate exercise of the right of freedom of expression under article 19 of the Universal Declaration of Human Rights and article 19 of the International Covenant on Civil and Political Rights. As such, the Working Group considers that the deprivation of liberty of HilalMammadov falls within category II of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it.
67.Furthermore, the Working Group is of the view that the response from the Government does not adequately address the source’s allegations of ill-treatment to which Mr. Mammadov has been subjected in detention, its concerns for his health, nor the groundless rejection of his application for an audio-visual recording of the hearing.
68.The Working Group finds that these violations of international law relating to the right of a fair trial are of such gravity as to give the deprivation of liberty of HilalMammadov an arbitrary character. As such, the Working Group considers that Mr.Mammadov’s detention falls within category III of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it.
Disposition
69.In the light of the foregoing, the Working Group on Arbitrary Detention renders the following opinion:
The detention of Hilal Mammadov is arbitrary, being in contravention of articles 9,11 and 19 of the Universal Declaration of Human Rights and articles 9, 12 and 19 of the International Covenant on Civil and Political Rights. It falls within categories IIand III of the arbitrary detention categories referred to by the Working Group when considering cases submitted to it.
70.Consequent upon the opinion rendered, the Working Group requests the Government of Azerbaijan to remedy the situation of Mr. Mammadov and bring it into conformity with the standards and principles set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
71.Taking into account all the circumstances of the case, the Working Group is of the view that the adequate remedy would be to immediately release Mr. Mammadov and accord him an enforceable right to compensation in accordance with article 9, paragraph 5, of the International Covenant on Civil and Political Rights.”
E.The applicant’s contacts with his representative, Mr Bagirov
51.The applicant’s representative, Mr Bagirov, was an advocate and a member of the Azerbaijani Bar Association (“the ABA”). He was affiliated to Law Office no. 6 in Baku.
52.In November 2014 disciplinary proceedings were instituted against Mr Bagirov by the ABA on the basis of a letter dated 25 September 2014 from a judge of the Shaki Court of Appeal. In his letter the judge informed the ABA that Mr Bagirov had breached the ethical rules of conduct for advocates at the court hearings held in September 2014 before the Shaki Court of Appeal within the criminal proceedings against I.M.
53.On 10 December 2014 the Collegium of the ABA held a meeting at which it examined the complaint against Mr Bagirov. Following the meeting, the Collegium of the ABA held that Mr Bagirov had breached the ethical rules of conduct for advocates because at the court hearing he had made the following remark about the judicial system: “Like State, like court ... If there were justice in Azerbaijan, Judge R.H. would not deliver unfair and partial judgments, nor would an individual like him be a judge” (“Belə dövlətin belə də məhkəməsi olacaq ... Azərbaycanda ədalət olsaydı, hakim R.H. ədalətsiz və qərəzli hökm çıxarmaz, nə də onun kimisi hakim işləməzdi”). On the same day the Collegium of the ABA decided to refer MrBagirov’s case to a court with a view to his disbarment. It also decided to suspend his activity as an advocate (vəkillik fəaliyyəti) pending a decision by the court.
54.It appears from documents submitted to the Court that, following the suspension of Mr Bagirov’s activity as an advocate, the domestic authorities no longer allowed him to meet the applicant in the prison.
55.On 29 March 2015 Mr Bagirov sent a letter to the Head of the Prison Service of the Ministry of Justice asking for a meeting with his six clients held in detention, including the applicant. He specified in his letter that he was the representative of those individuals before the Court and requested a meeting with them in connection with their pending cases before the Court. The relevant part of the letter reads as follows:
“I am writing to inform you that I represent before the European Court of Human Rights the following persons who are detained in the penal facilities and temporary detention centres under your authority.
I ask you to allow a meeting with these persons in connection with the progress of their cases based on their applications (the numbers of the applications are mentioned below) lodged with the European Court.
1. Mammadov Hilal Alif oglu (penal facility no. 17; application no. 81553/12)
...
Attachment: Copies of the letters from the European Court and the Azerbaijani Government concerning these persons.”
56.A copy of the letter was also sent to the Head of the Serious Crimes Department of the Prosecutor General’s Office.
57.By a letter of 14 April 2015, the Deputy Head of the Prison Service refused to allow Mr Bagirov to meet the applicant in the prison. The relevant part of the letter reads as follows:
“Your request for the organisation of a meeting in the penal facilities and detention centres with the persons detained in the penal facilities and the convicted inmates in order to provide them with advocacy services has been examined.
It is explained that, as your advocacy activity at Law Office no. 6 has been suspended by decision no. 29 of 10 December 2014 of the Bar Association of the Republic of Azerbaijan and you have been disbarred, and that you can no longer practise as an advocate in court and investigation proceedings from that date, it is impossible to grant you access to the penal establishments as counsel.”

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5.The applicant was born in 1955 and lives in Naro-Fominsk in the Moscow region. He is currently serving his sentence in IK-4 detention facility in the village of Udarnyy in the Republic of Mordovia.
A.Background events
6.At 8.20 p.m. on 6 March 2004 Ms E. was robbed in the street and was stabbed through the heart. She died of the wound shortly afterwards. The assailant took a mobile phone and 2,500 Russian roubles (RUB) from the victim’s purse.
7.The Naro-Fominsk town prosecutor’s office (“the town prosecutor’s office”) instituted a criminal investigation into E.’s killing. Having obtained from the mobile phone operator the call logs in respect of the victim’s phone, the investigators established that at 9.50 pm on 6 March 2004 a phone call had been made to a number belonging to Ms A. from E.’s phone using the applicant’s SIM card.
B.The applicant’s arrest
1.The applicant’s account
8.At 11 a.m. on 18 March 2004 the police arrived at the applicant’s flat and ordered him to follow them to the police station.
9.Once at the police station, the applicant explained that on 6 March 2004 he had bought a used mobile phone from a stranger because a friend of his had earlier expressed an interest in purchasing a second-hand phone. In order to test the phone, he had inserted his SIM card and made a call to his then girlfriend, Ms A. He also claimed that on the same day he had played slot machines and won RUB 2,500. Then the officers questioning him showed him a call log from Ms E.’s phone, informed him of the killing and suggested that he confess to mitigate his sentence. The applicant refused to admit to the crime.
10.The officers proceeded to hit and kick him on his head, chest and flanks. The applicant fainted several times. The beatings went on for twelve hours. Eventually the applicant gave in and agreed to write down a “statement of surrender and confession” (явка с повинной), as dictated by the officers, admitting to the robbery and murder of Ms E.
11.An investigator of the town prosecutor’s office, Mr A., questioned the applicant as a suspect and later went to the applicant’s flat to seize a few items including the mobile phone contract for the applicant’s SIM card.
12.The applicant was not provided with legal assistance on 18 March 2004.
2.The Government’s account
13.The applicant was brought to the police station at 10 p.m. on 18March 2004. Upon arrival the police officers asked him how he had obtained Ms E.’s phone and then showed him the call log. The applicant looked at the log and then asked the officers to leave him alone in the room. He then wrote a statement of surrender and confession describing the circumstances of the crime. No physical force was applied to the applicant.
14.In the Government’s submission, on 18 March 2004 the applicant complained to the town prosecutor’s office; however, he did not raise the issue of ill-treatment.
15.At 12.30 p.m. on 19 March 2004 an arrest record was drawn up. It contained a handwritten note by the applicant that read as follows: “[I] agree with the arrest, rights are understood, [I have] no statement to make”.
16.A handwritten statement signed by the applicant and dated 19March2004 affirmed that the applicant’s rights had been explained to him; that he did not require legal assistance; that the “bodily injuries visible at [that] moment on [his] face and body [had been] inflicted on 11 March 2004 by [his] roommate Dima”; and that police officers had not used force against him.
C.Criminal proceedings against the applicant and complaints about the alleged ill-treatment
17.Between 12.40 a.m and 2.55 a.m on 19 March 2004 the applicant was questioned without a lawyer present.
18.In the early morning on 19 March 2004 the applicant was placed in a temporary detention centre (Изолятор временного содержания, hereinafter “IVS”). According to the Government, when placed in the IVS, the applicant did not make any health‑related complaints. He had a bruise under his right eye. An entry in the IVS logbook was made by an ambulance doctor stating that the applicant was “in a post-epileptic-fit state”.
19.Between 11.10 a.m. and 12.50 p.m. on 19 March 2004 the applicant was questioned in the presence of Mr B., a legal-aid lawyer. According to the Government, in the course of the interview he described how he had committed the crime. The record of the interview reads that the applicant found the knife used as the murder weapon at a market after a fire.
20.On 20 or 22 March 2004[1] the investigators carried out an investigative re-enactment. In the applicant’s submission, the re-enactment was limited to bringing him to the crime scene and photographing him there. According to the Government, during the visit the applicant confirmed his statement made in the presence of the lawyer in the course of the second interview of 19 March 2004. He also selected a knife similar to that used to stab Ms E. from a selection of four knives available at a local shop.
21.On 20 March 2004 a judge of the Naro-Fominsk Town Court (“the Town Court”) placed the applicant in custody. The applicant complained to the judge about his ill-treatment; she refused to take note of the allegations, however, stating that they could be examined in the course of the trial against the applicant.
22.On 25 March 2004 the applicant was formally charged with murder and robbery. He retracted his confession.
23.On 26 March 2004 the police transported the applicant to a remand prison. However, the staff on duty refused to admit the applicant as he had visible injuries. The applicant was returned to the IVS. On 29 March 2004 the police again tried to transfer him to the remand prison and were refused for the second time.
24.On 30 March 2004 the police brought the applicant to the Naro‑Fominsk polyclinic where he underwent an X-ray examination which showed that there were fractures to three ribs with signs that the bones were beginning to heal. The following day the applicant was admitted to the remand prison.
25.According to the applicant, once in the remand prison, he complained about his ill‑treatment to the town prosecutor’s office.
26.According to the Government, the applicant raised the ill-treatment complaint on 17June2004. The town prosecutor’s office carried out a pre‑investigation inquiry on the basis of the complaint.
27.On 18 June 2004 Mr A., an investigator with the town prosecutor’s office, refused to initiate criminal proceedings into the alleged ill-treatment. He observed that upon arrival at the IVS the applicant had had a bruise under his right eye and yet had made no complaints about his state of health, and noted that, according to the IVS logbook, an ambulance had been called for the applicant on account of an epileptic fit.
28.On an unspecified date the criminal case against the applicant was submitted for trial before the Moscow Regional Court (“the Regional Court”).
29.The applicant first took cognisance of the decision of 18 June 2004 on 29 June 2004 while studying the case file in the criminal case against him.
30.The applicant complained about the town prosecutor’s office’s refusal of 18 June 2004 to the Russian Prosecutor General’s Office, which forwarded it for examination by the Prosecutor’s Office of the Moscow region. The latter forwarded the complaint to the town prosecutor’s office (against which the complaint was directed). The applicant received no reply.
31.The applicant did not attempt to institute any judicial review proceedings, considering that they would be futile on account of the judge’s reply of 20March 2004.
32.On 27 July 2004 the Regional Court scheduled a trial hearing on 9August2004.
33.The applicant raised the matter of ill-treatment before the Regional Court at his trial.
34.On 20 October 2004 the Regional Court ordered an expert medical examination of the X-ray of 30 March 2004. It can be seen from the trial record of that date that N. informed the judge that he was not an expert in interpreting X‑rays and asked for a period of two weeks to consult a colleague; the judge acceded to the request. On 4 November 2004 N. drew up a report stating that the rib fractures had been caused by blunt objects; by 30March 2004 the knitting together of the fractures had commenced; the fractures had been “considerably old” and “no injuries corresponding to [those of] 11 and 18 March 2004 [had been] identified”. The judge rejected the applicant’s request for another expert report.
35.The Regional Court dismissed the record of the first interview of 19March 2004 as inadmissible evidence for the reason that the interview had been conducted without a lawyer present.
36.On 3 December 2004 the Regional Court convicted the applicant of robbery and murder and sentenced him to twenty years’ imprisonment. The court referred to the applicant’s pre-trial confession, the record of his questioning by the investigator, his statements at the investigative re‑enactment and other physical evidence.
37.The trial judge also examined in detail the evidence presented by the parties in relation to the allegation of ill‑treatment, including the decision of 18 June 2004 and the expert medical report ordered in respect of the X-ray. The judge also heard evidence from an expert, N., as well as investigator MrA. and several police officers. The judge refused to examine the IVS logbook which, according to the applicant, would support his assertion that there were injuries. Instead, the judge examined a letter from the deputy director of the IVS, according to which on his arrival there the applicant only had had a black eye which he had explained as having received before the arrest. The deputy director had also noted that the logbook entry concerning the call for an ambulance had been made for another person. The judge dismissed the applicant’s allegations of ill-treatment and declared the relevant evidence (the confession statement, the interview record and the investigative re-enactment record) admissible.
38.On 6 December 2004 the applicant lodged an appeal reiterating the issue of his confession under duress without a lawyer present, as well as the weakness of the prosecution’s case against him. He insisted on his innocence.
39.On 14 December 2004 the applicant lodged an additional appeal in which he claimed that the Regional Court had wrongly considered his previous conviction as an aggravating factor and yet had chosen to regard the surrender and confession as a mitigating factor. He asked for the first‑instance judgment to be quashed on the grounds given in his appeal of 6 December 2004.
40.On the same date the applicant (through his counsel) lodged an appeal in which he insisted that the statement of surrender and confession had not been genuine as he had been forcibly brought to the police station and detained there for twelve hours with no access to a lawyer.
41.On 16 March 2005 the Supreme Court of Russia upheld the first‑instance judgment in a summary fashion.
42.The applicant further unsuccessfully sought supervisory review of his conviction.
43.On 5 April 2005 the applicant sent another complaint to the Prosecutor General’s Office, which was forwarded to the town prosecutor’s office.
44.On 12 May 2005 the deputy town prosecutor quashed the decision of 18 June 2004 and issued an instruction to carry out an additional pre‑investigation inquiry.
45.On 15 May 2005 S., an investigator with the town prosecutor’s office, refused to institute an investigation into the applicant’s allegations of ill-treatment. He found it established that on 12 March 2004 a police officer in Naro-Fominsk had received a report of a violent fight; on 13 March 2004 he had invited the applicant to come in for a “preventative talk” and had noticed two bruises under the applicant’s eyes. S. concluded that the bruise under the applicant’s right eye had been a result of the injury inflicted long before the arrest. He also pointed out that the Regional Court had “carefully examined” the applicant’s version of ill-treatment by police officers. The issue of the fractured ribs was not examined.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)
47.The CPT Standards 2002 (revised in 2011) (CPT/Inf/E (2002) 1‑Rev. 2011) contain the following provisions (Extract from the 2nd General Report [CPT/Inf (92) 3]):
“36.The CPT attaches particular importance to three rights for persons detained by the police: the right of the person concerned to have the fact of his detention notified to a third party of his choice (family member, friend, consulate), the right of access to a lawyer, and the right to request a medical examination by a doctor of his choice (in addition to any medical examination carried out by a doctor called by the police authorities).[2] They are, in the CPT’s opinion, three fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, etc.).
37.Persons taken into police custody should be expressly informed without delay of all their rights, including those referred to in paragraph 36. Further, any possibilities offered to the authorities to delay the exercise of one or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time. As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police, systems whereby, exceptionally, lawyers and doctors can be chosen from pre‑established lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights.
38.Access to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer (in both cases under conditions guaranteeing the confidentiality of their discussions) as well as, in principle, the right for the person concerned to have the lawyer present during interrogation.
As regards the medical examination of persons in police custody, all such examinations should be conducted out of the hearing, and preferably out of the sight, of police officers. Further, the results of every examination as well as relevant statements by the detainee and the doctor’s conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer.”
48.The relevant part of the CPT’s country report, following its visit to the Russian Federation of 21 May to 4 June 2012 (CPT/Inf (2013) 41), reads as follows:
“39. As repeatedly stressed by the CPT in the past, the prompt and proper medical examination of persons admitted to IVS establishments is essential, in particular in order to facilitate any subsequent investigative measures related to allegations of ill‑treatment.
The Committee once again calls upon the Russian authorities to take immediate steps to ensure that:
-all persons admitted to IVS establishments are properly interviewed and physically examined by qualified health-care staff on the day of their admission or the following day; the same approach should be adopted each time a person returns to an IVS cell after having been taken out by operational officers (even for a short period of time);
-all medical examinations (whether they are carried out in hospitals or in law enforcement facilities) are conducted out of the hearing and – unless the health-care professional concerned expressly requests otherwise in a given case – out of the sight of law enforcement officials;
-the record drawn up following the medical examination of a detained person in a hospital or law enforcement establishment contains: (i) a full account of statements made by the person concerned which are relevant to the medical examination (including his/her description of his/her state of health and any allegations of ill-treatment), (ii) a full account of objective medical findings based on a thorough examination, and (iii) as far as possible, the health-care professional’s conclusions as to the consistency between injuries observed and any allegations of ill-treatment made by the person concerned;
-whenever injuries are recorded which are consistent with allegations of ill-treatment made by a detained person (or which, even in the absence of allegations, are indicative of ill-treatment), the record is systematically brought to the attention of the competent investigative authorities, regardless of the wishes of the person concerned. Detained persons and their lawyers should be entitled to receive a copy of that record at the same time.”

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5.The applicant was born in 1957 and lives in Kyiv.
A.Alleged ill-treatment of the applicant’s son in detention, the corresponding investigation and related events
6.On 26 December 2009 the applicant’s twenty-five-year-old son, K., was arrested by the Kyiv Shevchenkivskyy District Police Department on suspicion of robbery.
7.On 27 December 2009 K. underwent a medical examination, which did not reveal any injuries.
8.On 29 December 2009 the Shevchenkivskyy District Court (“the Shevchenkivskyy Court”) remanded him in custody pending trial.
9.On 30 December 2009 K. was placed in the Kyiv Pre-Trial Detention Centre (“the SIZO”).
10.On 22 March 2010 he complained to the court that the investigator had subjected him to physical and psychological pressure in order to make him confess to a crime which he had not committed. His complaint was referred to the Shevchenkivskyy District Prosecutor’s Office (“the Shevchenkivskyy Prosecutor’s Office”).
11.At 9.30 a.m. on 10 April 2010 K. was admitted to Kyiv City Emergency Hospital, where he was diagnosed with a closed abdominal injury, rupture of the spleen, retroperitoneal haematoma, a closed chest injury, laceration (tissue rupture) of the right lung, left-sided pneumonia, post-traumatic anaemia, and fourth-degree haemorrhagic shock (the most serious on a scale of one to four, entailing critical blood loss of over 40%).
12.On 10 and 12 April 2010 K. underwent surgery twice in respect of the above-mentioned injuries and his spleen was removed.
13.On an unspecified date the applicant complained to the prosecuting authorities that her son had been physically assaulted in the SIZO on 8 April 2010.
14.On 23 April 2010 the Shevchenkivskyy Prosecutor’s Office refused to institute criminal proceedings against police officers in respect of K.’s ill-treatment for lack of corpus delicti in respect of their actions.
15.On 28 April 2010 K. was discharged from hospital and placed in the SIZO’s medical unit, where he remained until 18 June 2010.
16.On 3 June 2010 the Kyiv City Police Department completed the internal investigation in respect of the applicant’s complaint regarding the alleged ill-treatment of her son and found it to be without any basis.
17.On 8 June 2010 the newspaper “Segodnya”, issued in the Kyiv region, published an article under the headline “A bad [police] station” («Нехороший участок») about the alleged ill-treatment of the applicant’s son in the Shevchenkivskyy police station in spring 2010. The author relied, in particular, on the statements of one of K.’s cell-mates. A similar article titled “Another incident in the Shevchenkivskyy police station” («Новое ЧП в Шевченковском РУВД») appeared in the internet media outlet “Levyy Bereg”.
18.On 10 June 2010 the Shevchenkivskyy Prosecutor’s Office overruled its decision of 23 April 2010 and decided that further investigation was required. More specifically, K. had to be questioned as to who exactly had subjected him to ill-treatment in the SIZO in April 2010.
19.On 10 June 2010 the investigator also questioned the applicant’s son. K.contended that on 26December 2009, when he was arrested, police officers had hit him in the stomach. He further stated that the investigator dealing with his case had also hit him in the stomach once in March 2010. According to K., these two beatings had necessitated his urgent medical treatment on 10 April 2010. K. said that he did not understand why his mother had stated that he had been subjected to ill-treatment on 8 April 2010 (see paragraph 13 above).
20.On 21 June 2010 the investigator who was in charge of K.’s criminal case was also questioned. He denied ever having seen K. in March 2010, let alone having physically assaulted him.
21.On 8 July 2010 the Shevchenkivskyy Prosecutor’s Office once again refused to institute criminal proceedings against the police officers in question, having found no evidence of criminal conduct. The decision not to prosecute noted that K. had not complained of any ill-treatment during his detention, and that his medical examination on 27 December 2009 had not revealed any injuries (see paragraph 7 above). Following his hospitalisation on 10April 2010, K. had mentioned to a doctor that he had been physically assaulted some three days earlier, and the doctor had then stated to the investigator that K.’s injuries had been sustained no more than two days before his admission to hospital. According to his medical file, K.’s injuries had originated from blows to his back with blunt objects one to twelve hours prior to his admission to hospital (that is, during the night of 9 to 10April 2010). On the basis of the above information, the Shevchenkivskyy Prosecutor’s Office concluded that the allegation regarding K.’s ill‑treatment was unsubstantiated.
22.On 3 August 2010 an official of the Kyiv City Prosecutor’s Office (“the Kyiv Prosecutor’s Office”), to which the investigation had been transferred meanwhile for an unknown reason, also questioned K. This time, he stated that he had only been ill-treated on 26December 2009, but never thereafter.
23.On 25 August 2010 eleven inmates with whom K. had shared a cell in the SIZO were also questioned. They said that he had felt unwell on the night of 9 to 10April 2010, and that an ambulance had been called for him on the morning of 10April 2010. They also submitted that nobody had been violent towards him or had put him under any psychological pressure.
24.On 9 September 2010 the SIZO’s medical assistant (фельдшер), who had been on duty at the time of the events, was questioned as part of the investigation. He stated that he had been called to cell no. 36, where K. had been held, at 8.45 a.m. on 10 April 2010. K. had complained of weakness, vertigo and blurred vision. He had not alleged any ill-treatment and a visual examination had not revealed any injuries. He had had low blood pressure. The medical assistant said that he had provided K. with the necessary medical assistance and had reported the matter to the doctor on duty. The doctor on duty at the time of the events made a similar statement.
25.On 22 October 2010 an official from the Kyiv Prosecutor’s Office questioned the ambulance paramedics who had been called to assist K. They did not remember the circumstances.
26.On 4 November 2010 the Kyiv Prosecutor’s Office questioned K. again. He stated that Shevchenkivskyy police officers had physically assaulted him following his arrest on 26December 2009. He considered that the sudden deterioration in his health on 10 April 2010 had been the consequence of that ill-treatment.
27.From 8 November 2010 to 28 January 2011 a forensic medical expert evaluation of K.’s medical file was carried out, with a view to clarifying exactly how and when he had sustained his injuries and how serious those injuries had been. The expert concluded that K. had sustained an insignificant spleen trauma about a month prior to undergoing surgery, on around 10 March 2010. More specifically, he had sustained a splenic parenchyma rupture which had presented no major danger and would have healed normally. However, about twelve hours before surgery (at about 4a.m. on 10 April 2010) K. had sustained a serious non-penetrating stomach injury resulting from a blow to the left side of his back with a blunt object. As a result, he had sustained a haemoperitoneum, a partial rupture of the diaphragm and trauma of the spleen.
28.On 29 December 2010 the applicant’s son signed a form of authority, authorising Mr Zarutskyy (the lawyer who represented the applicant before the Court – see paragraph 2 above) to represent him in proceedings before the Court. He did not, however, lodge an application with the Court on that occasion. According to the applicant, her son did intend to lodge an application regarding both his ill-treatment and the investigation into that allegation.
29.In February 2011 K.’s lawyer challenged the refusal to institute criminal proceedings of 8July 2010 (see paragraph 21 above) with the Kyiv Prosecutor’s Office and before the Shevchenkivskyy Court. He submitted, in particular, that the origin of K.’s injuries while he had been under the authorities’ control had never been explained.
30.On 10 March 2011 the Kyiv Prosecutor’s Office, relying on the findings of the forensic medical expert report of 28 January 2011 (see paragraph 26 above), opened a criminal case in respect of unidentified individuals who had caused K. grievous bodily harm. The investigation was entrusted to the Shevchenkivskyy Police Department.
31.On 7 July 2011 the Shevchenkivskyy Court quashed the decision of the Shevchenkivskyy Prosecutor’s Office of 8July 2010 and remitted the case for additional investigation.
32.Between 31 May and 25 August 2011 another forensic medical expert evaluation was carried out. It confirmed the findings of the earlier expert report of 28 January 2011 (see paragraph 27 above), but added that a fall could not be ruled out as a possible cause of the injuries.
33.On 26 August 2011 the Shevchenkivskyy Prosecutor’s Office issued another refusal to institute criminal proceedings against the police officers in question for lack of corpus delicti in their actions.
34.On 30 September 2011 K. was assigned victim status in the criminal investigation launched on 10 March 2011. On the same date the investigator of the Shevchenkivskyy Police Department questioned him. K.maintained his earlier version of events, namely that his ill-treatment had consisted of the following two episodes: Shevchenkivskyy police officers physically assaulting him following his arrest on 26 December 2009, and the investigator in charge hitting him once in the stomach at the end of March2010.
35.On 30 September 2011 the SIZO administration sent to the investigator the list of the staff members who had been on duty during the night of 9 to 10 April 2010. As regards the list of K.’s cell-mates at the time, the administration informed the investigator that no records were kept in that regard.
36.On 7 November 2011 K., who had been transferred from the SIZO to a civilian hospital and who was suffering from HIV, tuberculosis and a number of concomitant diseases, died (see paragraphs 43-51 below).
37.On an unspecified date in November 2011 the applicant was granted status as K.’s successor in the criminal investigation into his ill-treatment. She was represented by the same lawyer who had earlier represented K.
38.On 9 December 2011 the Chief of the Shevchenkivskyy Police Department informed the applicant’s lawyer that the investigation, which had been initiated on 10March 2011 (see paragraph 30 above), was ongoing.
39.On 30 March 2012 the applicant enquired with the Shevchenkivskyy Police Department about the progress of the investigation.
40.On 31 July 2012 the Kyiv City Investigation Department informed her that the investigator in charge had been disciplined for his failure to respond to the above inquiry.
41.It is not clear whether any investigative measures were implemented between 2012 and 2014.
42.On 7 March 2014 the investigator of the Shevchenkivskyy Police Department made an entry in the Unified Register of Pre-Trial Investigations about the assault on K. causing grievous bodily harm. That constituted a new procedure for initiating a pre-trial investigation under the new Code of Criminal Procedure with effect from 19 November 2012.
B.Other issues relating to the health of the applicant’s son and the medical care provided for him in detention
43.Between 14 and 17 May, and 18 and 23 June 2010, when he was a detainee in the SIZO, K. was examined at the Kyiv City AIDS Centre at his request. He tested positive for HIV on both occasions.
44.According to the information submitted by the Government, between 24 June 2010 and 20 April 2011 K.’s health remained stable and he did not seek medical assistance.
45.On 20 April 2011 K. had his lungs X-rayed and was diagnosed, for the first time, with tuberculosis of the right lung. It was unclear how advanced the tuberculosis was. According to the Government, he was prescribed preventive treatment for two to three months.
46.On 23 May 2011 K.’s lawyer enquired with the management of the SIZO about his client’s condition. He asked, in particular, for clarification as to whether K. had been diagnosed with tuberculosis while in detention, and requested copies of the relevant documents.
47.On 8 June 2011 the SIZO deputy governor and the chief of the medical unit replied that, following a planned X-ray that day, K. had been diagnosed with infiltrative tuberculosis of the right lung and had been transferred to the SIZO’s medical unit for treatment. In another letter (dated 28 November 2011) from the SIZO management to the applicant’s lawyer (see also paragraph 52 below), it was stated that on 8June 2011 K. was also diagnosed as having HIV, chronic gastritis, hepatitis in remission and a drug addiction. In addition, he was classed as being in recovery following the removal of his spleen.
48.According to an extract from K.’s medical records, he was examined repeatedly by the SIZO’s doctors between June and October 2011. Each record begins with the statement that K.’s complaints remained the same, without specifying of what he complained. The records of 28July and 9September 2011 further note that K. complained of weakness. Furthermore, it was recorded that K. had complained of periodic coughing with purulent sputum during his examinations on 7July and 15October 2011. From 18 October 2011 onwards adeterioration in K.’s health was noted. On 20 October 2011 an ambulance was called for him.
49.As indicated in the letter sent by the SIZO management on 28November 2011 in reply to the applicant’s lawyer’s inquiry of 13October 2011, K. had an X-ray which revealed that the treatment of his tuberculosis was evolving positively. A decision was made to continue that treatment.
50.On 20 October 2011 K. was taken to Kyiv City Hospital no. 5, where the following diagnoses were made: infiltrative tuberculosis of the right lung, HIV in an unclear phase, meningitis caused by HIV, chronic hepatitis and gastritis in remission. K. was also classed as being in recovery following the removal of his spleen.
51.On 7 November 2011 K. died in the hospital.
52.In a letter of 28 November 2011 to the applicant’s lawyer the SIZO management noted that they had previously asked the Kyiv City Court of Appeal, which was dealing with the criminal case against K., to either accelerate the examination of that case or release K. on health grounds. However, they had not received any reply.
C.Investigation into the death of the applicant’s son
53.On 8 November 2011 the investigator of the Svyatoshynskyy District Police Department inspected K.’s body in the hospital. According to the report on “the inspection of the scene of the incident”, there was no indication of a violent death.
54.On the same date, the applicant asked the police to transfer the body to a mortuary, with a view to establishing the cause of death.
55.According to K.’s death certificate, which was issued on 10November 2011, his death had been caused by acute heart failure, HIV and multiple concomitant illnesses.
56.The autopsy report, which was also issued on 10 November 2011, specified that the immediate causes of death had been a brain tumour, pulmonary and heart failure resulting from “express autointoxication following cryptococcal meningoencephalitis, macrofocal overwhelming subtotal bilateral pneumonia and focal pulmonary tuberculosis of a person suffering from HIV and drug addiction”. The report also noted that K. had had “shock kidneys”, cachexia, oropharyngeal candidiasis, and albuminous degeneration of the tissues of the kidneys, cardiac muscle and liver.
57.The applicant made a complaint to the prosecuting authorities regarding her son’s premature death and requested an investigation.
58.On 16 November 2011 the Svyatoshynskyy District Police Department refused to open a criminal investigation into the matter, having concluded that there was no indication of a criminal offence.
59.On 23 December 2011 the Svyatoshynskyy District Prosecutor’s Office overruled that decision on the grounds that it was based on a superficial investigation.
60.On 31 December 2011 the investigator once again refused to open a criminal case in relation to K.’s death. Relying on the scene inspection report of 8 November 2011 and the death certificate of 10 November 2011 (see paragraphs 53 and 55 above), he considered that there was no third-party involvement in the death.
61.On 16 July 2012 the applicant complained to the General Prosecutor’s Office about the ineffectiveness of the investigation. In particular, she submitted that the adequacy and appropriateness of the medical care provided for her son had never been assessed. She noted that there had been no medical monitoring or treatment of K. as regards his HIV. Furthermore, while the HIV diagnosis presupposed a high risk of tuberculosis, K. had not had an X-ray until almost a year after he had tested positive for HIV. The applicant also complained that the intervals between the X-ray sessions had been unreasonably long. Thus, after his X-ray on 6June 2011 K. had subsequently not had an X-ray until 13October 2011, whereas a repeat X-ray should have been performed within a two-month time period. Furthermore, although K.’s treatment for tuberculosis had been unsuccessful, it had been continued, and his resistance to the medications prescribed had never been verified. Lastly, the applicant complained that the authorities had not provided her with all the information concerning her son’s health while he had still been alive, despite the numerous inquiries made by her lawyer. In particular, she had only found out about her son’s HIV after his death.
62.On 20 July 2012 the General Prosecutor’s Office forwarded the above complaint to the Kyiv Prosecutor’s Office.
63.On 15 August 2012 the Svyatoshynskyy Prosecutor’s Office wrote to the applicant saying that her complaint concerning her son’s death and the allegedly inadequate medical care he had received had already been investigated. As a result, it had been decided on 31 December 2011 that there were no grounds for opening a criminal case (see paragraph60 above). It remained open to the applicant to challenge that decision.
64.There is no information in the case file about any subsequent developments.

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THE CIRCUMSTANCES OF THE CASE
5.The applicant was born in 1987 and lives in Orsk, the Orenburg region.
A.The applicant’s alleged ill-treatment in police custody
1.The applicant’s account of events at the Sovetskiy district police department
6.The applicant received a summons from investigator K. to attend office no.44 at the Sovetskiy district police department of the town of Orsk (отдел внутренних дел Советского района г.Орска) at 11 a.m. on 15February 2005. The summons contained no further details. At 11 a.m. on 15February 2005 the applicant, who was 17 years old at the time, arrived at the police station, as requested, together with his father and his friend MsL. A police officer on duty registered their arrival at the police station. Investigator K. was absent and the applicant was asked to wait. Police officer M. took the applicant to his office.
7.At some point the applicant’s father was asked to participate in an investigative measure. When this was finished he could not locate the applicant at the police station. He and Ms L. were requested by police officer M. to leave the building. They remained outside near the main entrance waiting for the applicant. At some point they were told that the applicant was no longer in the police station. They left at about 7p.m. As the applicant did not appear at home his parents enquired about his whereabouts at the Sovetskiy district police department, by telephone and in person. After many unsuccessful attempts they were finally told that the applicant had gone to police station no. 2 together with police officer Sh. and that he had stayed there until 8p.m.
8.According to the applicant, police officer Sh. took him to an experts’ room where he was photographed and fingerprinted. Then, shortly after 3p.m., Sh. led him out of the police station from a back door in the experts’ room and took him to Orsk police department no. 2 in a police car for questioning.According to the police station logbook, the applicant left the Sovetskiy district police station at 3.20 p.m. on 15 February 2005.
2.The applicant’s account of events at Orsk police department no. 2
9.The applicant provided the following account of events at police department no. 2. The head of the police department, P., and police officer E. interviewed him about his alleged involvement in thefts from certain shops. The applicant denied involvement in the thefts. E. shackled the applicant’s hands behind his back, told him “to sit on the floor with his legs crossed in front of him”, tied his legs with a rope, “threw the rope across the neck to the back”, “hung it on a chair and pulled it”. The applicant felt severe pain in his back.
10.At some point operative police officer K. came in and interviewed the applicant. When P. and E. both came out K. untied the applicant’s legs and demanded that the applicant write a statement of “surrender and confession”. The applicant maintained his refusal. K. opened the door and called E. The applicant “understood that he would be tortured again”. He ran up and hit his head against the glass door of a bookcase. The glass broke and the applicant received cuts on his face above the left eyebrow and on his head.
11.Then E. tied the applicant’s hands and legs behind his back, passed a metal bar under the rope and hung him on the bar, the ends of which were put on the table and the back of a chair. The applicant had been hanging in that position for about eight minutes when somebody took the bar off and asked E. to untie the applicant. E. refused.
12.At some point E. came out and the applicant was untied and the handcuffs were removed from him. K. demanded again that the applicant write a statement of “surrender and confession”. The applicant started writing the statement as requested. P. came in together with lawyer S. who offered his services as counsel for the applicant’s defence. The applicant refused because he wished to be represented by a lawyer of his own choice.
13.Reluctant to continue writing the confession statement, the applicant was taken by E., who was allegedly drunk, to his office. An ambulance, which had been called after the incident with the broken glass, arrived and the applicant was examined by the ambulance medical assistant, who provided him with first aid and left.
14.Thereafter the applicant was questioned by two police officers, who were also drunk. One of them hit the applicant several times on both ears simultaneously with the palms of his hands. The other police officer punched him in the head.
15.Then E. tied the applicant up and hung him on the bar again. The applicant saw blood dripping from his head to the floor.
16.Police officer B. untied the applicant and demanded that he finish writing the statement of “surrender and confession”. The applicant did so and was allowed by P. to leave. The applicant went home, which was about three kilometres away, on foot.
3.The applicant’s hospitalisation
17.At about 9.40 p.m. the applicant arrived home. At 11.05 p.m. he was hospitalised. According to the medical records of town hospital no. 2, where he stayed for in-patient treatment until 4 March 2005, at the time of his admission the applicant was complaining of headache, nausea, vomiting and giddiness. He explained that he had been beaten up by police officers three hours previously. He had an abrasion up to 2 cm long over the left eyebrow and bruises on his scalp. He was diagnosed with an abrasion on the left superciliary arch, contusions of the soft tissues of the head and concussion.
4.Police records
18.The evidence in the case file indicates that police officer E. drew up a record of the applicant’s being “conveyed” (доставление) to the police station. According to that record, at 7 p.m. on 15 February 2005 the applicant was brought to the police station “for examination” (разбирательство) and searched in the presence of attesting witnesses V. and Sh. It was stated in the record, which was signed by police officer E., the two attesting witnesses and the applicant, that the applicant, a “violator”, had been informed of the rights and obligations of a person against whom administrative proceedings were initiated. The record contained no further details.
B.Inquiry into the applicant’s alleged ill-treatment and detention
1.Refusal to open a criminal investigation
19.On 15 February 2005 the Orsk police department was alerted by the town hospital that the applicant had been taken to hospital with injuries allegedly inflicted by police officers.
20.On 17 February 2005 the Orsk Sovetskiy district prosecutor’s office received information about the applicant’s alleged ill-treatment by police officers.
21.On 21 February 2005 the applicant’s father complained to the Sovetskiy district prosecutor’s office that the applicant had been the victim of police officers’ unlawful actions. On 4 March 2005 he lodged a similar complaint with the Orenburg regional prosecutor’s office.
22.The Sovetskiy district prosecutor’s office carried out a preliminary inquiry. Its investigator B. received explanations from a number of persons, including the following persons.
(a)Explanations received by the investigating authority
23.On 18 February 2005 lawyer S. stated that on 15 February 2005, some time after 7.20 p.m. [the head of the police department] P. had asked him to be present at an investigative measure as counsel for the defence of the applicant, who was suspected of having committed a crime. S. had seen coagulated blood on the applicant’s eyebrow and on his head. S. had asked the operative officers to leave the office and asked the applicant about the origin of his injuries. The applicant had explained that he himself had hit his head against a bookcase. S. had offered his services as counsel for his defence. The applicant refused, as he wanted lawyer Z. to defend him.
24.On 22 February 2005 police officer E. stated that he had left work at 6.50p.m. on 15February 2005. At a bus stop he had seen the applicant who had been suspected of having committed thefts from two shops. E. had taken the applicant to the police station, where he had invited two attesting witnesses so that a record could be drawn up about the applicant’s being conveyed to the police station and searched. In the presence of the attesting witnesses the applicant had jumped from his chair and hit his head against the glass door of a bookcase. The glass had broken and the applicant had received cuts on his eyebrow and head. E. had provided the applicant with first aid, had drawn up the record of his being conveyed to the police station, and had transferred him to operative officer K. Some twenty minutes later K. had brought the applicant back, as the applicant was complaining of feeling unwell. E. had called an ambulance. The ambulance staff had provided the applicant with first aid. E. denied any use of force or psychological pressure in relation to the applicant.
25.On 22 February 2005 the head of the police department P. stated that at 7-7.30 p.m. on 15 February 2005 he had been informed that the applicant had been brought to the police station on suspicion of having committed a theft. P. gave statements similar to those by E. about the applicant hitting the bookcase with his head. According to P., the applicant had stayed at the police station for one hour and had left at about 8 p.m. None of his subordinates had committed any unlawful actions in relation to the applicant.
26.On 24 February 2005 attesting witnesses V. and Sh. stated that at about 7p.m. they had been invited to be present as attesting witnesses at the applicant’s search. After being searched the applicant had jumped to his feet, run up and hit his head against a bookcase. The glass of the bookcase had broken and the applicant had cut his eyebrow. Two police officers had been present during the incident.
27.On 3 March 2005 police officer Sh. stated that on 15 February 2005 at the Sovetskiy district police station he had taken the applicant to the experts’ room, where the applicant had been fingerprinted and photographed, and then to the exit. Sh. denied having taken the applicant to police station no. 2.
28.On 5 March 2005 operative officer K. stated that the police had had information, notably explanations by an eyewitness to a theft at a certain shop, that the applicant could have been involved in the theft. K. had interviewed the applicant, who had been known to the police on account of thefts previously committed by him, at about 7 p.m. on 15 February 2005, after the incident with the broken glass. The applicant had confessed to the theft and had written a statement. After that E. had called the ambulance as the applicant was complaining of a headache. K. denied any use of force in relation to the applicant.
29.On 11 March 2005 investigator G. stated that she had requested that the applicant be summoned to the police station for an identity parade in a criminal case concerning assault and battery. On 15 February 2005 she had carried out the identity parade with the participation of the applicant’s father. As the applicant’s lawyer had not appeared she had cancelled the identity parade in which the applicant was to have participated. The applicant had left her office together with police officer Sh.
30.Expert M. stated that in the afternoon of 15 February 2005 police officer Sh. had brought the applicant to the experts’ room. The applicant had been fingerprinted and photographed. M. confirmed that there was another exit from the building through the experts’ room. He stated, however, that Sh. and the applicant had left through another, “normal” door, through which they had arrived.
31.The applicant gave a description of his alleged ill-treatment (see paragraphs 9-16 above). He stated that he had hit his head against the bookcase in order to stop the ill-treatment. He also stated that police officer E. had threatened to kill him if he told the ambulance staff about the ill‑treatment. When left with lawyer S. in private he had told him about the ill‑treatment and forced confession.
32.The applicant’s father and Ms L. gave statements about their visit to the police station on 15 February 2005 (see paragraphs 6 and 7 above).
(b)Forensic medical expert’s opinion
33.On 14 March 2005 investigator B. ordered a forensic medical examination of the applicant, which was carried out by expert B. on 17March 2005. The expert was requested to determine the degree of harm to the health of the applicant, who had allegedly been beaten up by police officers on 15February 2005. The applicant complained of recurring headaches. He had a scar over the left eyebrow. Expert B. also examined his medical records from the town hospital (see paragraph 17 above). In his report no.892 the expert concluded that the applicant’s injuries, notably the concussion, the wound over the left eyebrow and the bruises on the scalp, had been inflicted by hard blunt objects shortly before he was hospitalised. The injuries were qualified as light damage to health as they had caused short-term health disorder.
(c)Decision of 17 March 2005
34.On 17March 2005 investigator B. ordered that by virtue of Article24§ 1 (2) of the Code of Criminal Procedure (“CCrP”) no criminal proceedings were to be instituted in respect of the applicant’s complaint, in view of the absence of constituent elements of a crime under Article 286 of the Criminal Code (abuse of power) in the acts of police officers Sh. (as well as under Article 301 of the Criminal Code, unlawful arrest or detention), P., K., E. (also under Article 302 of the Criminal Code, coercion to obtain statements), and four others.
35.On 21 March 2005 a deputy prosecutor of the Sovetskiy district prosecutor’s office overturned the investigator’s decision, as the inquiry on which it was based was considered incomplete, and ordered an additional inquiry.
(d)Additional explanations received by the investigating authority
36.Investigator B. received the following additional explanations.
37.On 22 March 2005 N., a medical assistant, stated that at 7.30 p.m. an ambulance had been called by police station no. 2. She and G., a junior nurse, had gone to the police station. She had found the applicant in a room with two police officers, who had explained to her that the applicant had hit the glass with his head and broken it. She had examined the applicant, who had cuts over the left eyebrow and on the head. Her examination had not revealed any obvious signs of concussion. The applicant had taken off his clothes. She had not seen any visible injuries on his body.
38.On 23 March 2005 junior nurse G. gave similar explanations. She noted that the applicant had been in a room with two police officers, one of whom had later come out. Then medical assistant N. had examined the applicant.
39.On 23 and 24 March 2005 Ya. and V. stated that in February 2005 they had undergone in‑patient treatment at the town hospital and had been in the same ward as the applicant, who had told them that he had been ill‑treated at the police station. Ya. understood that police officers had handcuffed the applicant and hung him and afterwards hit his head against the wall. According to V., police officers had handcuffed the applicant and hung him, and then either he himself had hit the bookcase with his head or police officers had hit his head against the bookcase.
40.The applicant’s schoolteacher, I., characterised the applicant as sly, deceitful and shifty.
41.Forensic medical expert B. stated that he did not consider it possible to establish reliably how the applicant had received concussion. It could have been the result either of the applicant’s hitting the bookcase with his head or of being punched on the head.
(e)Decision of 24 March 2005
42.On 24 March 2005, on the basis of the results of the inquiry, investigator B. again refused to open a criminal case under Article24§1(2) of the CCrP, on the grounds that the constituent elements of a crime in the acts of police officers Sh., P., K., E. and four others were absent. As before, the investigator referred to a crime under Article286 of the Criminal Code (abuse of power), as well as Article 301 of the Criminal Code (unlawful arrest or detention) in relation to Sh., and Article 302 of the Criminal Code (coercion to obtain statements) in relation to P., K. and E.. The investigator found that the applicant had been at the Sovetskiy district police department from 11 a.m. until 3.20p.m. on 15February 2005 for an identity parade in a criminal case concerning assault and battery, and that at about 7p.m. on the same day police officer E. had taken him to police station no. 2 on suspicion of theft. The investigator held that the results of the inquiry had showed that the applicant’s injuries were self-inflicted, as a result of his hitting the bookcase with his head, and that the allegations of ill-treatment by police officers were devoid of any foundation.
2.Domestic courts’ review of the refusal to open a criminal investigation under Article 125 of the Code of Criminal Procedure
43.The applicant’s father appealed against the investigator’s decision of 24March 2005. He complained, in particular, that the investigator had never held an identity parade in order to identify the two unknown police officers who had delivered blows to the applicant’s head.
44.On 20 May 2005 the Orsk Sovetskiy District Court, sitting in a single-judge formation, heard the applicant’s father, his representative and a deputy prosecutor of the Sovetskiy district prosecutor’s office, and examined the evidence of the inquiry carried out by the investigator. It was satisfied that the inquiry had been comprehensive and thorough, and that the investigator’s assessment of its results had been impartial, reasoned and logical. It dismissed the applicant’s father’s appeal. It noted that an identity parade could only be held once a criminal case had been opened, which was not the case in the present proceedings.
45.The applicant’s father appealed against the District Court’s decision. On 16June 2005 the Orenburg Regional Court dismissed his appeal and fully endorsed the first-instance court’s findings. It held, inter alia, that the evidence of the inquiry had reliably shown that on 15 February 2005 the applicant had not been arrested as a suspect in a criminal case.

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6.The applicant was born in 1967 and lives in Chelyabinsk.
A.The applicant’s state of health
7.In 2012 the applicant, while serving a prison sentence, was diagnosed with lymphoma. He was admitted to prison hospital no.3 of the Chelyabinsk Region and underwent two courses of chemotherapy.
8.In December 2012 a court authorised the applicant’s early release on health grounds. He was then monitored by an oncologist in a civil hospital, having continued with chemotherapy. The Government submitted that in May 2013 the applicant had undergone an in-depth examination in the oncology department of the Chelyabinsk regional hospital, where he was diagnosed with lymphoproliferative disorder affecting the cervical, axillary, mediastinal and retroperitoneal lymph nodes. The applicant did not complete the medical examinations or treatment, including chemotherapy. He was arrested on 10 September 2013.
9.By judgments of 30September 2013, 22November 2013, and 16December 2013 the applicant was convicted of fraud, robbery and theft respectively. He was sent to serve his sentence in detention facility no.3. On 3March 2014 he was transferred to the prison tuberculosis hospital.
10.On 13March 2014 a medical panel, comprising the deputy head of the prison tuberculosis hospital and doctors from the same hospital, examined the applicant and diagnosed him with progressive non-Hodgkin lymphoma in acute III B stage, with lesions of the cervical, axillary and abdominal lymph nodes. The panel concluded that the applicant was eligible for early release as he suffered from malignant formations of lymphatic and haematogenous tissues, a disease included in the List of serious illnesses precluding the serving of sentences in correctional institutions, as provided for by Decree no. 54 of the Government of the Russian Federation of 6February 2004 (hereinafter “the List”).
11.On 10 April 2014, with reference to the conclusions of the medical panel, the applicant made an application for early release. On 26May 2014 the Metallurgicheskiy District Court of Chelyabinsk dismissed the application. Having accepted that the applicant’s illness was included in the List, and describing his condition as “stable [but] serious”, the court, nevertheless, found that the drugs necessary for his treatment were available in the prison tuberculosis hospital, and that the applicant was undergoing the necessary medical procedures. The court further pointed out that it was not clear who would take care of the applicant in the event of his release from prison. The applicant did not appeal against the decision.
12.On 30June 2014 the applicant’s sister gave a written undertaking to take care of the applicant should he be released.
13.According to a certificate issued by the prison tuberculosis hospital at the request of the applicant’s lawyer, the drugs necessary for the applicant’s chemotherapy were unavailable at the hospital.
14.On 1July 2014 the medical panel from the prison tuberculosis hospital again examined the applicant. The diagnosis was that the applicant had progressive non-Hodgkin lymphoma in acute IV B stage with lesions of the abdominal lymph nodes. It was once again noted that the applicant was eligible for release on health grounds.
15.The applicant made another application for release at the end of July 2014. He submitted that his disease had progressed to its final stage and that he had relatives who could take care of him.
16.On 12September 2014 the Metallurgicheskiy District Court held a hearing. B., a doctor from the prison tuberculosis hospital, testified that the applicant needed chemotherapy and radiation therapy, but was unable to receive such treatment in detention since the necessary equipment was unavailable at the hospital.On the same date the District Court dismissed the application for release once again, noting that the applicant had a tendency to reoffend and concluding that he was receiving adequate medical care in detention.
17.The applicant appealed.
B.Rule 39 request
18.In October 2014 the applicant asked the Court to apply Rule 39 of the Rules of Court and to authorise his immediate release from detention as an interim measure. The applicant claimed that he was not receiving the necessary medical assistance and treatment in detention, despite his suffering from a life-threatening and rapidly progressing illness. He relied on a certificate from the prison hospital confirming the absence of drugs for his chemotherapy (see paragraph 13 above).
19.On 16 October 2014 the Court decided to indicate to the Russian Government, under Rule 39, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts, including an oncologist, independent from the prison system with a view to determining: (1) whether the treatment he was receiving in detention was adequate for his condition; (2) whether his current state of health was compatible with detention in the conditions of a correctional colony or prison hospital; and (3) whether his current condition required his placement in a specialised hospital or release. The Russian Government were also asked to ensure the applicant’s immediate transfer to a specialised hospital if the medical experts concluded that the applicant required placement in such a hospital.
20.On 7 November 2014 the Government responded to the Court’s letter of 17October 2014, submitting the following documents:
-a handwritten copy of the applicant’s medical history drawn up during his detention. The history included a form for consent to treatment, signed by the applicant. It also contained a detailed schedule showing the daily intake of drugs by the applicant. As appears from that document, he received basic analgesic and anti-inflammatory drugs, antihistamines, sleeping pills, antidepressants, antiemetics and neuroleptics.
-certificates issued by the acting head of the prison tuberculosis hospital, indicating that the applicant had not been provided with chemotherapy for his lymphoma as he had not consented to that treatment when it had been offered to him, in March and June 2014. According to the acting head of the hospital, the applicant had refused to make a written statement to that effect. The certificate also indicated that an oncologist had examined the applicant four times, once in March and September 2014 and twice in October 2014. At the end of October 2014 the applicant’s condition was considered to be serious: he was suffering severe pain and increasing asthenia, had coughed blood, and his lymph nodes continued to grow. In another certificate, the acting head of the hospital stressed that the applicant was suffering from a life-threatening oncological disease, particularly taking into account the advanced stage of his illness. In addition, in a separate certificate, the acting head of the hospital noted that the prison tuberculosis hospital where the applicant was detained employed an oncologist and had the necessary medicines for the applicant’s treatment.
-copies of the applicant’s complaints to various Russian officials, including the Chelyabinsk regional ombudsman, the Prosecutor General’s office, the regional department for the execution of sentences and the acting head of the prison tuberculosis hospital, about the poor quality of his medical care in detention. The complaints also contained a request for a medical examination and for his early release on health grounds.
21.The Government also answered the three questions which, in its letter of 17 October 2014, the Court had asked them to refer to independent medical experts. In particular, in their answer to the first question concerning the adequacy of the applicant’s treatment, the Government stressed that the applicant had regularly undergone in-patient treatment and examinations in relation to his oncological illness. They noted that the applicant’s condition was considered to be moderately serious and stressed that in March and June 2014 he had failed to consent to the cancer treatment. They further directed the Court to the documents enclosed with their reply (see paragraph20 above).
22.In their response to the second question about the compatibility of the applicant’s state of health with the conditions of the correctional colony and prison hospital, the Government emphasised that the applicant’s hospital employed the necessary specialists, and had the necessary equipment and drugs to treat him. They further noted that the applicant was in pain and was weak, that he occasionally coughed blood and that his lymph nodes continued to grow. The Government continued by indicating that he would be provided with chemotherapy as soon as the general blood test results allowed and the applicant consented.
23.In replying to the third question as to whether the applicant needed to be transferred to a specialised hospital or be released, the Government observed that the applicant’s oncological illness was incurable and could lead to his death. They relied on the two reports issued by the doctors from the prison tuberculosis hospital on 13 March and 1 July 2014, according to which the applicant was suffering from a condition included in the list of serious illnesses precluding the serving of sentences in correctional institutions, as provided for by Decree no. 54 of the Government of the Russian Federation. However, the Russian courts had refused to release the applicant on health grounds. Another examination of the applicant by the hospital medical panel had been scheduled for November 2014.
C.Developments after the application of the interim measure
24.The applicant informed the Court that on 28November 2014, acting upon his appeal, the Chelyabinsk Regional Court had quashed the decision of 12September 2014 and ordered his release. With reference to B.’s testimony, the Regional Court held that the District Court’s findings as to the adequacy of the treatment received by the applicant in the hospital were not in accordance with the established facts. It also pointed to the District Court’s failure to comment on the undertaking by the applicant’s sister to take care of the applicant after his release.
25.On an unspecified date after 28 November 2014 the applicant was released.

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6.The applicant was born in 1965 and lives in Chișinău.
A.The applicant’s alleged ill-treatment
7.The applicant was serving a sentence of eleven years’ imprisonment in Prison no. 13 in Chișinău. On 28 October 2006 he and five other detainees were in cell no. 20, reserved for the medical treatment of detainees with mental problems. Three of them, including the applicant, had a Category 2 disability. The applicant’s diagnosis was, inter alia, personality disorder.
8.At around 3 p.m. several men entered the cell to search for prohibited items. Some of the men wore dark masks and they were armed with rubber truncheons and metal shields. They ordered everyone out. According to the applicant, the masked men shouted at the detainees and insulted them, while hitting and pushing them. The Government dispute that any force was used or that there was any improper behaviour on the part of the men who had entered the cell. While in the corridor the detainees were ordered to stand with their faces to the wall. The search lasted for approximately half an hour. One prison officer recorded the events on video.
9.The detainees were then ordered back into the cell. According to the applicant, when he saw their possessions, including food brought to them by their relatives, medication and documents, scattered on the floor and in total disorder, he declared that he would return to the cell only after a prosecutor or a representative of the prison administration had made a report on the search and the disorder caused. He was then hit and thrown to the floor, kicked in the stomach, and the cell door was slammed with force while his foot was between the door and the doorpost, causing him great pain. His reading glasses fell to the ground and were smashed by one of the masked men. The Government submitted that no force had been used and that the cell had been left in good order.
10.After the search the applicant complained about his swollen foot and was taken by ambulance to a hospital in Chișinău at around 7 p.m. The doctor who examined him in that hospital diagnosed him with contusion of the soft tissues of the right ankle and a suspected fracture of the bone. His foot was then put in plaster.
B.Investigation into the applicant’s complaint of ill-treatment
1.Complaints about ill-treatment
11.On 31 October 2006 the applicant complained about ill-treatment to the Prosecutor General’s Office, the military prosecutor’s office and other State authorities. Four other detainees who had been held in the same cell made similar complaints.
12.On 28 November 2006 the applicant was examined by another doctor, who confirmed the diagnosis of a broken bone and found a haematoma on his right foot, corresponding to signs of violence and leading to long-lasting health problems (over twenty-one days). Further forensic examinations were carried out on 1 and 28 December 2006 and 3 May 2007. According to the applicant, these certificates confirmed that he had suffered an injury to his right foot. According to the Government, a further forensic examination carried out on 31 October 2007 contradicted the results of the previous ones, finding no conclusive evidence that the applicant had had a broken bone. The parties did not submit full copies of the last three reports mentioned above.
13.On 6 December 2006 a prosecutor from the Chișinău Military Prosecutor’s Office decided not to start a criminal investigation into the complaints made by the applicant and other detainees.
14.On 8 December 2006 a prosecutor from the Chișinău Prosecutor’s Office started a criminal investigation into the applicant’s allegations.
15.Between 28 November and 5 December 2007 several individuals, members of the “Pantera” special forces battalion who had taken part in the action of 28October 2006, were charged with exceeding their powers by using excessive force against the applicant.
2.Discontinuation of the criminal investigation
16.On 15 February 2008 a prosecutor from the Chișinău Prosecutor’s Office discontinued the criminal investigation. He found that on 28 October 2006 the applicant had disobeyed lawful orders of the prison staff during the search of his cell, acted provocatively, and refused to return to his cell. He had had to be taken there by force. Moreover, it could not be ruled out that he had caused injuries to himself in order to subsequently accuse the authorities of ill-treatment. The prosecutor noted that the applicant and four other detainees in cell no. 20 had confirmed, in their complaints and statements made to the investigator during the criminal investigation, that the masked men who had entered the cell on 28 October 2006 had caused great disorder, had insulted the detainees, and had hit them with rubber truncheons.
17.According to the statement of detainee S.B., on 28 October 2006 the detainees were taken out of cell no. 20 and ordered to stand facing the wall for approximately half an hour while their cell was being searched. They were then moved back to their cell, again by force. S.B. witnessed one of the masked officers slamming the cell door and crushing the applicant’s foot, threatening to break his hands if he continued to write complaints. Having watched the videotape of the search, S.B. submitted that the filming was selective, not showing the acts of violence in order to shield those who had carried them out from responsibility. At the end of the search the leader of the masked men did not identify himself and did not fill in any report about the incident.
18.Detainees A.G., V.Z. and B.I. made similar statements, each declaring that he had been personally hit and insulted and that the applicant’s foot had been shut in the cell door. The applicant’s statement was similar to those of the other detainees. He added that the video footage shown to him was only about six minutes long, while the entire event had lasted for approximately thirty minutes. Moreover, the various parts of the film were clearly not in chronological order.
19.One detainee, (V.S.), who had been taking his daily exercise during the search, confirmed seeing upon his return great disorder in the cell, with all the food and personal items broken up and thrown to the ground, and the detainees cleaning up the mess and complaining about being hit during the search.
20.Another witness, a member of the prison staff (I.V.), stated that he did not see any violence towards the detainees or any disorder being created in cell no. 20 during the search of 28 October 2006. Another member of the prison staff (P.P.), who was the head of the medical unit of Prison no.13, stated that after the search on 28 October 2006 he saw disorder in cell no. 20, but did not see any food on the ground. The search lasted for approximately thirty minutes. He did not see the detainees re-enter their cell, but heard the conflict between the applicant and the masked men. He did not see any violence being used, but could admit that force had been used. Later on the applicant complained of pain in his foot and was taken to the emergency hospital, from which he returned with his foot in plaster.
21.According to witness A.P., who worked as a nurse in Prison no. 13, on 28October 2006 she came to work at 4 p.m. and was called to cell no. 20, where the applicant was complaining of sharp pain in his foot. He was then taken to hospital by ambulance and returned with his foot in plaster. The cell was in disorder; the patients were agitated and were asking for urgent medical assistance for the applicant. During the initial examination A.P. found that the applicant’s foot was seriously swollen. He then told her that he had been hit by the officers during the search.
22.Witness E.B., a medical assistant in Prison no. 13, stated that she had not seen any of the events and had only heard the noise. She was later told by A.P. that after the search the applicant had asked for medical assistance to treat his foot.
23.According to witness P.C., a supervisor in Prison no. 13, on 28October 2006 he was informed that someone was asking for medical assistance in cell no. 20, and sent A.P. there. When he himself entered the cell P.C. saw personal belongings and food scattered on the ground. The applicant then told him that the masked men had caused the disorder and had beaten them up, and that his foot hurt as a result of that beating. He also declared that during that day the applicant had not made any complaints about his state of health, but immediately after the search had complained of sharp pain in the foot. He was limping when he was taken to the ambulance.
24.According to witness M.M., a feldsher (paramedic) in Prison no. 13, on 28 October 2006 at 5 p.m he saw the applicant, who complained that he had been beaten up earlier, during the search. M.M. did not see any visible injury on the applicant’s body; the applicant could move his feet freely, but his right foot was swollen in the ankle area. The applicant limped when taken to the ambulance.
25.Three witnesses (A.V., O.H., and V.D.), all members of the prison staff, declared that they did not witness any violence against the detainees, or any disorder in cell no. 20.
26.(V.N.) stated that he had filmed “certain parts of the search” on a video recorder, using an 8 mm video cassette. He had not witnessed any disorder or violence towards the detainees.
27.Witnesses V.B. and I.I., who coordinated the actions of the various groups of prison staff and the Pantera special forces regiment (the masked men), declared that after the search their teams did not report having used force on anyone or having had any exceptional situation to deal with. Only the applicant had been uncooperative, but he was eventually persuaded to return to the cell without using force.
28.The prosecutor’s decision further analysed several reports in the file, including a report confirming the destruction of the applicant’s reading glasses. A video filmed by V.N. during the event, lasting for six minutes and thirty-six seconds and registered on a compact disk, showed the detainees leaving their cell voluntarily; the presence in the cell of masked men; the applicant’s request to be allowed to take his belongings with him and the refusal of that request; it showed various objects in the cell and the presence in it of detainee V.Z. The cell was in good order. The next scene showed the applicant refusing to comply with I.V.’s order to return to the cell. The next scene showed the applicant sitting on the ground and asking for a prosecutor to be called, affirming that he would not move until the prosecutor saw what had happened to the food and belongings in the cell and a report was made about the event. The last scene showed the cell door being closed. Someone could be heard hitting the door from the inside and the applicant’s voice shouting “I’m going to kill myself, I’m going to cut myself” and “where is the map with documents, they took my map with documents”.
29.The prosecutor found that the video recording did not prove that violence had been used, and that the sound of the cell door being struck, heard at the end of the recording, allowed the supposition that the injury to the applicant’s foot could have been self-inflicted.
3.The reopening of the investigation and its final discontinuation
30.On 10 March 2008 the deputy Prosecutor General quashed the decision of 15February 2008 and ordered a more thorough investigation.
31.On 17 April 2008 a prosecutor discontinued the criminal investigation, essentially for the same reasons as those mentioned in the decision of 15 February 2008.
32.By a final decision of 12 August 2008 an investigating judge of the Buiucani District Court upheld the decision of 17 April 2008. The judge found that while the law allowed complaints about violations of fundamental rights and freedoms, the applicant’s complaint concerned the admissibility and evaluation of evidence obtained in criminal proceedings. However, the investigating judge did not have the competence to evaluate evidence in a criminal or civil trial.
33.The applicant lodged an extraordinary appeal (recurs în anulare) to the Supreme Court of Justice, and asked for the decision of 12 August 2008 to be quashed.
34.On 1 October 2009 the Supreme Court of Justice rejected his request, finding that the Buiucani District Court had adopted a lawful decision after analysing the evidence in the file.

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5.The applicant was born in 1962 and lives in Shadrinsk.
6.On 20 August 2003 the Shadrinsk Town Court of the Kurgan Region convicted him of murder and sentenced him to ten years’ imprisonment. On 29 October 2003 the Kurgan Regional Court upheld the conviction on appeal.
7.The applicant is HIV-positive and at the material time also suffered from tuberculosis and hepatitis.
A.The applicant’s detention in a medical facility
8.On 25 December 2008 the applicant was transferred to the LIU OF‑73/3 medical facility (лечебно-исправительное учреждение) in the Kurgan Region and was detained in the following wards:
(a)quarantine ward 24 from 25 to 30 December 2008 and from 18 to 30June 2009;
(b)ward 25 from 30 December 2008 to 28 May 2009 and from 30 June to 21 September 2009; and
(c)ward 26 from 21 September to 3 November 2009.
9.According to the applicant, the wards were severely overcrowded. For instance, ward 25 measured approximately 80 square metres, was equipped with fifteen two-tier bunk beds and housed twenty-seven inmates. Passages between the beds, lengthwise, were as narrow as fifty centimetres and were used by four inmates. The wards were poorly lit as the windows were covered with louvre shutters blocking access to natural light.
10.According to the Government, ward 24 measured 61.49 square metres, had sixteen sleeping places and accommodated up to sixteen inmates. Ward 25 measured 67.5 square metres, was equipped with thirteen two-tier bunk beds and housed up to twenty-six inmates. Finally, ward 28 measured 49.4 square metres and accommodated fifteen inmates. The applicant was provided with an individual sleeping place at all times. All wards had access to natural light.
11.In support of their submissions, the Government provided original floor plans and ward population registers containing information about the exact number of inmates in each ward for the whole period the applicant was in the LIU OF-73/3 facility. They also submitted a prosecutor’s report dated 11 October 2010 regarding the conditions there. It indicated, in particular, that windows in all wards were fitted with metal louvre shutters.
B.Alleged restrictions on family visits
12.On 9 February 2009 the medical facility authorities issued an order introducing visiting fees for inmates and their families. The calculation table annexed to the order specified that a fee of 320 Russian roubles (approximately 9 euros) per day per person would be payable, covering maintenance charges, prison staff salaries, the depreciation of visiting room equipment, bed linen and cleaning products.
13.On 14 April 2009 the director of the Federal Service for the Execution of Sentences sent a letter to the heads of Russian penal facilities, reminding them that charging visitors and detainees for family visits was in breach of Article 89 of the Code on the Execution of Sentences (see paragraph 17 below) and that facility administrations must bear the costs of providing rooms for long-term visits. Only additional services are payable by detainees in accordance with the Internal Regulations of Correctional Facilities (see paragraph 20 below).
14.On 22 April 2009 the applicant was authorised to see his two daughters on a long-term family visit. He calculated that a three-day visit from them would cost RUB 1,920, which was far beyond their means. His daughters did visit him, but stayed only one day instead of the expected three, as they did not have enough money on them to stay any longer.
15.On 22 August 2009 the applicant’s daughters visited their father again, this time free of charge.
C.Alleged opening of the applicant’s correspondence
16.On 29 April 2010 the applicant received a letter from the Court dated 19March 2010 in the correspondence department of the OF-73/2 correctional facility, to which he had been transferred in February 2010. It was handed over to him in an open envelope and he was told to sign a copy which had been attached to his personal file.

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5.The applicant was born in 1997 and lives in Deva.
A.Alleged sexual abuse of the applicant
6.At the time of the events, the eleven-year-old applicant was living with her family in a small village and often used to go to play with two girls from a neighbouring family at their house. The girls, F.C.B. and M.S.B., were about the same age as the applicant. The neighbours’ family (the B.family) had ten children and were also accommodating a relative of theirs, J.V., a fifty-two-year-old man who was unemployed and lived in the family’s vacant cattle stable.
7.According to the statement made by the applicant later to the police, in August 2008 and then again in December 2008, J.V. had dragged her by force while she was playing with her girlfriends at the neighbours’ house, had taken her to an empty room in the house or into the barn and had raped her while holding her down and keeping his hand over her mouth in order to prevent her from screaming. The applicant also stated to the police that between August 2008 and February 2009 she had been raped in similar circumstances by four of the neighbours’ sons and their friend G.I.
8.On 10 March 2009 the applicant’s mother noticed that the applicant did not get her monthly period and had a talk with her. She told her mother that she had been sexually abused by J.V. and the other boys. She said that she had been ashamed to talk about what happened and also afraid to tell her parents sooner because J.V. had threatened that he would beat her if she told anyone.
9.As a result of the sexual abuse, the applicant became pregnant and, with her parents’ approval, she later underwent a surgical termination of the pregnancy.
B.Criminal investigation and trial
10.On 10 March 2009 the applicant’s parents lodged a complaint against the alleged perpetrators with the local police and an investigation was started against J.V. and the four brothers F.B., A.B., G.B. and P.B. No proceedings were opened with respect to G.I., who was under fourteen and hence not criminally liable.
11. On the same day the five suspects were called into the police station for questioning. F.B. declared that on 22 December 2008, when the applicant was visiting her friends, he had asked her to have sex with him and she had accepted. P.B. declared that it had been J.V. who insistently told him to have sex with the applicant.
12.On 11 March 2009 a forensic report found that no traces of violence had been detected on the applicant’s body.
13.During the investigation J.V. declared that the applicant had provoked him to have sex with her as she was always scantily dressed. He further stated that it was she who had come to him and had asked him to have sex with her the first time, in August or September 2008. He alleged that the applicant had told him that she had had sex before with the boys from the B. family.
14.The applicant declared before the police that she had been forced by J.V. to have sex with him on several occasions, alleging that he had threatened that he would beat her if she told anyone. The other boys had also forced her to have sex with them, telling her that it was J.V. who had told them what to do.
15.On 22 April2009 the Deva Police sent the file to the Prosecutor’s Office of the Hunedoara County Court in order to pursue the investigation into rape. The judiciary police officer making the request held that, even if the perpetrators’ statements were to be accepted as truthful, the victim’s age (eleven at the time of the first sexual act) precluded the existence of legally valid consent as she could not have freely expressed her will.
16.On 7 July 2009, at the request of the Hunedoara County Police, the Hunedoara County Forensic Institute issued a forensic psychiatric report on the applicant. The report held that the applicant was suffering from post-traumatic stress and stated that:
“Concerning the specific circumstances in which the criminal acts were committed, the minor speaks with shame about what happened. She has a vivid memory of the events. ... She says that she did not tell anyone about the incidents sooner because she feared for her safety and the safety of her family members.”
The report concluded that the applicant had difficulties in foreseeing the consequences of her actions and had insufficient discernment due to her age.
17.F.B. declared before the prosecutor that he had had sex with the applicant once on 22 December 2008. A.B. declared that he had had sex with the applicant in the autumn of 2008. G.B. declared that he had had sex with the applicant once in April and then again in October 2008. P.B. stated that he had had sex with the applicant on one occasion in the autumn of 2008. The applicant had asked him to have sex with her, and when he had refused - because he had never done this before - it was she who got undressed and climbed onto him. He further mentioned that he had used a condom that he had in his pocket. They all declared that it was the applicant who had taken the initiative each time and that it had happened because she displayed a provocative attitude, being scantily dressed most of the time. Each brother stated that the applicant had told him that she had had sex before, either with one of the other brothers or with J.V.
18.When questioned during the investigation, F.C.B. and M.S.B. declared that the applicant had told them she had had an intimate relationship with J.V. and that they had never seen him taking the applicant by force while they were playing. They also stated that the applicant often came to their house scantily dressed and that their brothers C.B. and A.B. had told them that the applicant had provoked them and “jumped onto them”.
19.On 10 December 2009 the Prosecutor’s Office of the Hunedoara County Court issued an indictment decision with respect to J.V. for the crime of sexual intercourse with a minor on repeated occasions. F.B., A.B., G.B. and P.B. were given administrative fines for the same crime. From the statements of the perpetrators and the two sisters, the prosecutor held as proved the fact that the applicant had gone to the neighbours’ house scantily dressed and had had a sexual relationship with J.V. The prosecutor therefore concluded that from the documents in the file it was not proved beyond doubt that the applicant had not given her consent to the sexual acts.
20.The applicant’s complaint against the prosecutor’s decision concerning the four brothers and G.I. was rejected by the superior prosecutor and subsequently by the courts.
21.On 20 April 2010 J.V. was found guilty by the Deva District Court ofsexual intercourse with a minor and was sentenced to three years’ imprisonment. The applicant was awarded 10,000 Romanian lei (ROL) by way of compensation in respect of non-pecuniary damage (approximately 2,000 euros (EUR)).
22.During the proceedings the applicant’s representative requested the perpetrator’s conviction for rape. She submitted to the file a copy of a judgment issued on 10 November 2009 by the Bacău Court of Appeal which held that a girl aged ten years and eight months could not understand what a sexual act meant sufficiently well to give her consent to it.
23.The applicant declared before the court that J.V. had forced her to have sex with him and had threatened to beat her if she told anyone. She was afraid of him because he could become violent when he was drunk. The other boys had also threatened to beat her and once A.B. had threatened her with a knife.
24.In reaching its decision, after also hearing statements from J.V. and the witnesses F.C.B. and M.S.B., the Deva District Court firstly observed that the forensic certificate stated that no signs of violence had been detected on the victim’s body. The court further noted that it was apparent from the statements of J.V. and the other perpetrators who had not been indicted by the prosecutor that the applicant had always taken the initiative for the sexual acts and she had been in the habit of provoking both J.V. and the other boys to have sex with her. As regards the content of the above-mentioned statements, the court considered “relevant” the fact that the applicant was scantily dressed and that even after she had allegedly been sexually abused she went on playing with her girlfriends. The court considered that:
“If sexual intercourse had taken place by force or by taking advantage of the victim’s lack of capacity to defend herself or to express her will, it is certain that [she] would not have continued her previous practice [going to play with the neighbours’ daughters]”.
25.The applicant, represented by her lawyer, appealed against the judgment of the Deva District Court, requesting that J.V. be convicted of rape and that the amount of compensation in respect of non-pecuniary damage be increased to ROL 50,000. The applicant’s representative submitted that the decision of the first instance court had not been impartial since it had been based only on the statement of the accused, together with statements by the other perpetrators and two witnesses – all related to the accused. Furthermore, since the minimum age of consent to a sexual act was set by law at fifteen, the applicant ‒ who was only eleven at the time of the incidents ‒ could not have expressed valid consent and the sexual abuse committed against her could therefore only be classified as rape. In addition, the applicant’s representative complained that the forensic psychiatric report of 7 July 2009, which declared that the victim lacked capacity to express valid consent and was suffering from post-traumatic stress, had not been taken into consideration by the first instance court.
26.The Hunedoara County Court decided to allow the applicant’s appeal, holding that:
“According to the provisions of Article 197 of the Criminal Code, the crime of rape is ‘Sexual intercourse of any kind with a person ... taking advantage of the [person’s] lack of capacity to defend herself or to express her will [original emphasis]...’.
At the time when the accused had sexual intercourse with the victim, she was eleven years old. In Romanian law, there is an absolute presumption that any person below fourteen completely lacks capacity. Therefore, before the age of fourteen, the minor cannot express a valid consent, being in a position of inability to express [his/her] will in a valid manner...”
27.Taking these arguments into account, on 4 November 2010 the Hunedoara County Court convicted J.V. of rape and sentenced him to four years’ imprisonment. The court applied a sentence below the minimum provided for by law for the crime of rape against a person under fifteen, finding mitigating circumstances due to the defendant’s good behaviour prior to the commission of the crime on trial. The court also held that it was not necessary to increase the amount of compensation in respect of non-pecuniary damage awarded by the first instance court.
28.The applicant’s representative submitted an appeal on points of law (recurs) against the judgment of 4 November 2010, requesting an increase in the amount of compensation for non-pecuniary damage and that a more severe sentence be imposed on the defendant. J.V. also contested the judgment, requesting a conviction for the crime to which he had confessed, namely sexual intercourse with a minor.
29.On 21 March 2011 the Alba Iulia Court of Appeal allowed the appeal on points of law submitted by J.V. and upheld with final effect the judgment of the Deva District Court of 20 April 2010. The Alba Iulia Court of Appeal based its verdict on the statements given by J.V., F.C.B. and M.S.B. as well as the account of the events given by the other perpetrators. Based on these testimonies and the fact that the victim had not told her parents about the alleged abuse, the court drew the conclusion that the instances of sexual intercourse had always been initiated by the applicant and dismissed the theory that the victim might have lacked capacity to express her will. The findings of the forensic psychiatric report of 7 July 2009 were not mentioned or discussed in any way by the court.
The court of appeal explained as follows:
“The court considers that the crime of rape is committed by constraint - physical or moral - or by taking advantage of the victim’s lack of capacity to express his/her will, more specifically rape is a sexual intercourse committed without consent. On the other hand, the crime of sexual intercourse with a minor, as provided by Article 198 of the Criminal Code, means engaging in a sexual intercourse with a minor under 15, but with the minor’s consent. ...
“The presumption of lack of capacity applies only to minors who are under fourteen and have committed a crime, but with respect to the crime provided by Article 198 of the Criminal Code, the minor [the applicant] is the victim and not the perpetrator.”
A.Council of Europe Sources
38.The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse obliges its signatories to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children. The Convention entered into force on 1 July 2010. Romania ratified the Convention on 28 June 2013. The relevant parts of Chapter VI, “Substantive criminal law” read:
Article 18 – Sexual abuse
“1.Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:
a.engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;
b.engaging in sexual activities with a child where: - use is made of coercion, force or threats; or - abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or - abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.
2.For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child.
3.The provisions of paragraph 1.a are not intended to govern consensual sexual activities between minors.”
39.The Explanatory Report to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, of which the Committee of Ministers of the Council of Europe took note on 12 July 2007, provides as follows in its relevant parts:
“3.... It is also recognised that children usually experience extreme difficulties in telling anyone about being sexually abused because very often they are violated by a person in their close social or family circle or because they are threatened. ...
7.Compliance with the CRC [UN Convention on the Rights of the Child] and its Protocols is monitored by the Committee on the Rights of the Child, which has come to the conclusion that children in Europe are not sufficiently protected against sexual exploitation and abuse. In particular the Committee underlines the lack of exhaustive national criminal legislation in this field in the State Parties, ...”
40.On 5 May 2011 the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014. The Convention was signed by Romania on 27 June 2014, but has not yet been ratified. The Convention provides as follows in its relevant parts:
Article 36 – Sexual violence, including rape
“1Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:
aengaging in non‐consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object;
bengaging in other non‐consensual acts of a sexual nature with a person;
ccausing another person to engage in non-consensual acts of a sexual nature with a third person.
2Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances. ...”
Article 49 – General obligations
“1Parties shall take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.
2Parties shall take the necessary legislative or other measures, in conformity with the fundamental principles of human rights and having regard to the gendered understanding of violence, to ensure the effective investigation and prosecution of offences established in accordance with this Convention.”
Article 54 – Investigations and evidence
“Parties shall take the necessary legislative or other measures to ensure that, in any civil or criminal proceedings, evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary.”
Article 56 – Measures of protection
“2A child victim and child witness of violence against women and domestic violence shall be afforded, where appropriate, special protection measures taking into account the best interests of the child.”
41.The Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice adopted on 17 November 2010 provide the following:
“1.Member States should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them....
17.A common assessment framework should be established for professionals working with or for children (such as lawyers, psychologists, physicians, police, immigration officials, social workers and mediators) in proceedings or interventions that involve or affect children to provide any necessary support to those taking decisions, enabling them to best serve children’s interests in a given case.”
42.Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe on the protection of women against violence recommends that member States adopt and implement, in the manner most appropriate to each country’s national circumstances, a series of measures to combat violence against women. Paragraph 35 of the appendix to the recommendation states that, in the field of criminal law, member States should, inter alia:
“–penalise any sexual act committed against non-consenting persons, even if they do not show signs of resistance; ...
–penalise any abuse of the position of a perpetrator, and in particular of an adult vis-à-vis a child.”
B.Other European Sources
43.Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography provides as follows in its preamble:
“(6)Serious criminal offences such as the sexual exploitation of children and child pornography require a comprehensive approach covering the prosecution of offenders, the protection of child victims, and prevention of the phenomenon. The child’s best interests must be a primary consideration when carrying out any measures to combat these offences in accordance with the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child.”
The Directive also provides in Article 20 paragraph 3 letter c) that interviews with the child victim of sexual abuse are to be carried out by or through professionals trained for this purpose.
44.A detailed description of the legal provisions and practice in certain European countries concerning the notion of consent in the context of the crime of rape can be found in M.C. v. Bulgaria (no. 39272/98, §§ 88-100, 4 March 2004).
C.United Nations Sources
45.The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. The Convention was ratified by Romania on 28 September 1990. The relevant Articles read:
Article 19
“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
Article 34
“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;...”
46.The United Nations Committee on the Rights of the Child in its General comment No. 13 (2011) on the right of the child to freedom from all forms of violence recommends that:
“Investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights-based and child-sensitive approach. Rigorous but child-sensitive investigation procedures will help to ensure that violence is correctly identified and help provide evidence for administrative, civil, child-protection and criminal proceedings. (...) Towards this end, all parties are obliged to invite and give due weight to the child’s views.”

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5.The applicant was born in 1972 and is currently serving a sentence in prison no. 100.
A.Criminal proceedings and the applicant’s detention
6.On 1 April 2000 criminal proceedings were instituted in Donetsk in connection with a robbery committed in Dzerzhinsk.
7.On 2 June 2000 criminal proceedings were instituted in Kharkiv in connection with a robbery committed on the Kharkiv-Dnipropetrovsk-Simferopol road.
8.On 9 August 2001 criminal proceedings were instituted in Yevpatoriya in connection with a murder and attempted murder committed in the course of an armed robbery (“the murder proceedings”).
9.On 30 October 2001 the Chervonodzerzhynskiy District Court (“the District Court”) granted the prosecutor’s request to put the applicant, a former police officer, on remand as a suspect in the criminal proceedings concerning the robbery on the Kharkiv-Dnipropetrovsk-Simferopol road. The District Court held that, as the applicant was suspected of having committed a serious crime and had absconded during the investigation, his detention was necessary to prevent him from reoffending. The court also noted that the applicant’s personality was to be taken into consideration, without giving any further details. On the same date, the applicant’s name was put on a wanted list.
10.On 11 November 2001 the applicant was arrested in accordance with the District Court decision of 30 October 2001. He submitted that he had presented himself to the police voluntarily once he had become aware that he was wanted. On the same day, he drafted a “statement of voluntary surrender” (явка з повинною) in which he confessed to committing, as part of a criminal group, a number of armed robberies on the Kharkiv-Dnipropetrovsk-Simferopol road, as well as one in the town of Yevpatoriya. He stated that, in the course of the latter, he had used a firearm against the victim. The applicant also provided more details in writing about the above crimes and his acquaintance with his accomplices and informed the police about two other armed robberies which he and his accomplices had committed in the town of Dzerzhynsk, as well as about other crimes of which he was aware.
11.On 12November 2001 the applicant was charged with armed robbery and questioned. Before being questioned he was informed of his procedural rights but signed a waiver of his right to legal assistance. He made similar statements to those given to the police the day before, including about the shooting incident in Yevpatoriya. On the same day, he familiarised himself with the decision of 30October 2001, against which he was entitled to appeal. He did not appeal against the decision.
12.On 13 November 2001, in the absence of a lawyer, the applicant was questioned in the context of the robbery proceedings. The Government submitted – and this is not contested by the applicant – that the applicant again waived his right to a lawyer, having once again been informed of his rights. During the questioning, the applicant, apart from giving information on the robberies, reiterated his statements regarding the shooting which had occurred in Yevpatoriya. He was further questioned in that regard.
13.On 21 November 2001 a lawyer, D., was appointed to represent the applicant. On the same day, in the absence of a lawyer, the applicant was questioned as a suspect in the murder proceedings. He admitted to shooting a victim in the course of the armed robbery but denied that he had done so intentionally.
14.On 22 November 2001, in the presence of his lawyer, the applicant was charged with murder and attempted murder, and questioned as an accused. He admitted his guilt in respect of the armed robbery but denied the murder charges. A reconstruction of the crime scene was carried out.
15.On 12 December 2001 the applicant was charged with armed robbery causing grievous bodily harm. He waived his right to a lawyer during questioning.
16.On 13 December 2001 the applicant was charged with premeditated armed robbery as part of a criminal group. He again waived his right to a lawyer.
17.On 4 January 2002 the District Court extended the applicant’s pre-trial detention to four months. The applicant did not appeal against this decision.
18.On 8 February 2002 the criminal proceedings concerning robberies on the Kharkiv-Dnipropetrovsk-Simferopol road were joined with the murder proceedings.
19.On 7 March 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, and referring to “the applicant’s personality”, albeit without assessing it, the seriousness of the charges against him, and the need for additional time to conduct the necessary investigative measures, extended the applicant’s detention to six months. The decision was not amenable to appeal.
20.On 12 March 2002 B. was appointed as the applicant’s lawyer.
21.On 4 April 2002 the criminal proceedings regarding the robberies in Dzerzhynsk were joined with the other proceedings against the applicant.
22.On 8 April 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, extended the applicant’s detention to nine months on the same grounds as those in its ruling of 7 March 2002. The decision was not amenable to appeal.
23.On 10 July 2002 L. replaced B. as the applicant’s lawyer. On the same day, the applicant was charged with a number of crimes, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He pleaded not guilty as charged and refused to give further testimonies.
24.On 18 November 2002 amended charges were brought against the applicant and he was questioned again.
25.On 28 December 2002 the applicant was granted access to the case file. According to the Government, no investigative measures were conducted that day.
26.After the investigation had been completed the case was referred to the Donetsk Regional Court of Appeal (“the Court of Appeal”), acting as a first-instance court, for trial. The decision to do so was not amenable to appeal.
27.On 12 June 2003 the applicant requested the Court of Appeal to change his preventive measure to a non-custodial one.
28.On 17 December 2003 the Court of Appeal remitted the case for additional investigation, holding that the applicant’s rights of defence had been breached. It found, inter alia, that the applicant had officially been charged with offences other than those considered by the trial court. It further established that on 10 July, 18 November and 28 December 2002 investigative measures had been carried out in the absence of the applicant’s lawyer, contrary to the requirements of domestic law. The court also decided, without giving reasons or setting a time-limit, that the applicant would remain in detention. The applicant appealed in cassation against that decision and requested, inter alia, that the preventive measure, namely the detention ordered be lifted.
29.On 29 April 2004 the Supreme Court heard the applicant’s appeal in the presence of the prosecutor. It upheld the decision of the Court of Appeal of 17December 2003 and stated, without giving any reasons, that there were no grounds for changing or discontinuing the preventive measure imposed on the applicant.
30.On 2 August 2004 V. was appointed as the applicant’s lawyer.
31.On 6 August 2004, in the presence of his lawyer, the applicant was charged with a number of criminal offences, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He admitted to his acquaintance with the co-accused, but pleaded not guilty on all charges.
32.On 20 August 2004, in the presence of his lawyer, amended charges were brought against the applicant. The latter refused to sign or receive copies of the relevant papers as he disagreed with the charges. During further questioning he pleaded not guilty and refused to give any testimony.
33.On 27 August 2004 the applicant and his lawyer were granted access to the case file, and on 3 September 2004 the case was referred for trial.
34.On an unspecified date, the applicant lodged a request for release with the Court of Appeal.
35.On 6 October 2005 the Court of Appeal, having acquitted the applicant on four of the eight charges for lack of proof, found him guilty of banditry, several counts of armed robbery, intentional murder and attempted murder. It sentenced him to life imprisonment with confiscation of all his property. The court based its findings to a large extent on the testimonies of the applicant and his co-defendants given during the pre-trial investigation, having found them to be corroborated by a number of other pieces of evidence. In the part of the judgment which concerns the murder charges, the court referred, in particular, to the “testimonies given by the applicant as a suspect and an accused, including in the presence of a lawyer”. It further dismissed as ill-founded the applicant’s complaints that his rights of defence had been violated and his requests to declare inadmissible his statements obtained in the absence of a lawyer. In this context, when finding the applicant guilty of armed robberies, the court held that, having been informed of his procedural rights, the applicant had voluntarily waived his right to legal representation and that such a waiver had been lawfully accepted by the investigative authorities as robbery charges could not lead to a life sentence. It further held that during questioning on the murder, the applicant had been legally represented and had made his statements in the presence of a lawyer.
36.In addition, the Court of Appeal gave a separate ruling by which it declared inadmissible a number of pieces of evidence related to different charges against the applicant and his co-defendants, as the evidence had been obtained in violation of the defendants’ rights of defence. In particular, as far as the applicant was concerned, apart from the evidence which had been found inadmissible on 17 December 2003, the court further excluded from the body of evidence some of the testimonies given by the applicant on 8 and 9 January 2002. It held that, even though the applicant had allegedly confessed to murdering five people shortly after his arrest, he had nevertheless been questioned as a witness, in the absence of a lawyer.
37.The applicant appealed in cassation against the judgment of 6October 2005. He stated in particular that there had been insufficient evidence to prove his guilt; he had been ill-treated by the police; on a number of occasions during the pre-trial investigation he had been questioned in the absence of a lawyer and that evidence obtained in violation of his rights of defence had nevertheless been used to secure his conviction.
38.On 19 October 2006 the Supreme Court of Ukraine held a hearing in the presence of the prosecutor, the applicant and his sister – who acted as his representative. On the same day, it upheld the applicant’s conviction of 6October 2005. It dismissed as unsubstantiated his complaints that his rights of defence had been violated at the pre-trial stage of the proceedings, holding that those complaints had been duly examined and dismissed by the Court of Appeal. It also dismissed as unsubstantiated the applicant’s allegations of ill-treatment by the police.
B.Conditions of detention in SIZOs nos. 27 and 5
1.The applicant’s account
39.Between 28 July and 13 October 2004 the applicant was held in the Kharkiv pre-trial detention centre no. 27 (“Kharkiv SIZO”), in cell no. 537. He submitted that his cell had been overcrowded: it had measured 16 square metres, contained eight beds for ten people, and detainees had had to take turns to sleep. He also alleged that some of the cellmates had been suffering from tuberculosis. In this context, he submitted written statements made by his cellmates K., G., K.I., P. and O.
40.The applicant’s sister complained to the Governor of Kharkiv SIZO about the conditions of her brother’s detention. By a letter dated 13 June 2005 the Governor informed her that the cell in question had been designed to accommodate eight people and that no more than eight inmates had been held in that cell during the applicant’s detention. The Governor further informed her that, according to medical documents concerning K., G., K.I., P. and O., none of them had been suffering from an active form of tuberculosis. He stated that the applicant had never been in contact with anyone suffering from such a disease whilst in Kharkiv SIZO.
41.After his conviction on 6 October 2005, the applicant was transferred to the high-security wing of the Donetsk pre-trial detention centre no. 5 (“Donetsk SIZO”). According to the applicant, he was handcuffed whenever he left his cell, including during daily walks and meetings with his relatives.
2.The Government’s account
42.In Kharkiv SIZO the applicant was held in cells nos. 27 and 537 measuring 24.2 square metres each, designed to accommodate eight detainees. The cells were equipped with a dining table, a bench, a washstand and a toilet, which was separated from the living area by a brick partition. There was natural ventilation and light through windows; artificial lighting allowed inmates to read and write without damaging their eyesight. The temperature in the cells was between 18oC and 20oC. Running water was constantly available in the cells. All detainees were provided with bed linen and clothes in accordance with domestic standards.
43.As regards the applicant’s allegations that he had shared his cell with persons suffering from tuberculosis, the Government pointed out that the domestic legislation provided that persons suffering from that disease should be kept separately from healthy detainees. The Government could not provide any information about the applicant’s cellmates and their state of health, however, because the time-limit for keeping the relevant documents had expired and the records had been destroyed. They noted that the applicant had not complained that his state of health had worsened in detention.
44.Whenever the applicant was taken out of his cell and escorted within the Donetsk SIZO, handcuffs were used pursuant to the relevant domestic legislation. The Government contested the applicant’s statement that he had been handcuffed during his daily walks and meetings with relatives, as the former was prohibited by the relevant domestic regulations.
52.The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 9 to 21 October 2005 read as follows:
“... The CPT also recommends that the Ukrainian authorities review as soon as possible the norms fixed by legislation for living space per prisoner, ensuring that these are at least 4 m² in all the establishments under the authority of the Department for the Enforcement of Sentences. ...”
“... whereas the unacceptable practice of systematic handcuffing whenever a prisoner was taken out of a cell has at last been abolished for women, the Ukrainian authorities have still not ceased this practice for men ...”
“... recommendations ... :
-the practice of systematically handcuffing male life-sentenced prisoners whenever they are taken out of their cell to cease with immediate effect; ...”

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6.The applicant was born in 1978 and until his arrest lived in Krasnoyarsk. He is currently serving a sentence in a correctional colony in the Krasnoyarsk Region.
A.Criminal proceedings against the applicant
7.On 13 December 2005 the applicant was arrested on suspicion of aggravated kidnapping, murder, fraud and conspiracy.
8.On 27 December 2007 the Krasnoyarsk Regional Court found him guilty as charged and sentenced him to twenty-four years and eleven months’ imprisonment. The first seven years were to be served in a prison and the remaining term in a high-security correctional colony.
9.On 24 December 2008 the Supreme Court of Russia upheld his conviction and sentence on appeal.
B.The applicant’s health and treatment
1.The applicant’s health before his arrest
10.The parties provided the Court with the applicant’s medical documents, including clinical records, discharge summaries and expert reports. Parts of the clinical records drawn up during his detention and submitted to the Court by the Government are illegible.
11.On several occasions before his arrest the applicant underwent inpatient and outpatient treatment in civilian hospitals. Between 1999 and 2001 he was treated for cerebral concussion, cerebral contusion, vertebral contusion, knee pain and a duodenal ulcer.
2.Remand prison
12.After his arrest on 13 December 2005 the applicant was taken to a police detention facility in Krasnoyarsk. Two days later he was transferred to remand prison no. 24/1 (“the remand prison”), also in Krasnoyarsk, where resident doctors carried out a general check-up, noting in the medical file that he had sustained a brain injury and suffered from a duodenal ulcer. The doctors found him fit for detention, noting that detention in northerly regions should be avoided.
13.According to the applicant, in 2005 and in 2006 he complained to the prison doctor about various health problems, including stomach pain, but his complaints remained unnoticed by the authorities. His medical records for the period between 2005 and 2007 did not contain any entries regarding his complaints, medical examinations or treatment in that period.
14.On 16 June 2007 the prison doctor saw the applicant after he complained of stomach pain and deteriorating eyesight. He diagnosed the applicant with a duodenal ulcer in the acute phase and myopia, but did not prescribe any treatment. He noted that a specific endoscopy was to be performed.
15.On 19 July and 13 and 16 August 2007 the trial court adjourned its hearings in the applicant’s case as he did not feel well and had complained of severe stomach pain. The court asked the detention authorities to submit detailed information on his actual state of health.
16.In August 2007 the applicant received injections of drotaverine allegedly provided by his mother, a retired doctor, to relieve his stomach pain. On 21 August 2007, at a court’s request, a deputy head of the prison medical ward examined the applicant and observed that he was receiving treatment for an acute duodenal ulcer. In addition, he noted that the applicant was to be transported to Regional Tuberculosis Hospital no.1 (“the prison hospital”) for the fibrogastroduodenoscopy ordered in June 2007.
17.On 19 October 2007 the applicant was taken to the prison hospital. Multiple tests performed there led to him being diagnosed with first-stage myopia, a duodenal ulcer in remission and duodenitis associated with cicatricial deformation of the duodenum bulb. Omeprazole was prescribed. Insofar as the submitted medical records could be deciphered, the applicant did not receive the prescribed treatment.
18.In March 2009 the applicant was transported to the prison hospital for the second time. This time the doctors prescribed him medication for his myopia and neurological symptoms resulting from the trauma in 1999. The medical records did not contain any information on the actual intake of drugs by the applicant.
19.In October 2009 the applicant’s stomach pain came back. A fibrogastroduodenoscopy showed that he suffered from duodenitis with cicatricial deformation of the duodenum bulb and antral gastritis. The resident doctor saw him in October 2009 and January 2010, prescribing him drug treatment and a special diet. The applicant’s medical records do not contain any information indicating that the doctor’s recommendations were followed.
20.On 19 March 2010 the applicant underwent an in-depth medical examination in the prison hospital. It showed that in addition to his peptic problems, erosive duodenitis and antral gastritis, the applicant had developed first-stage sensorineural hearing loss and his myopia had progressed slightly. A drug programme and special diet were recommended. According to the applicant, the recommendation was not followed by the authorities. His medical documents contain no entries in this regard.
21.In early April 2010 the court had to adjourn several hearings in the applicant’s criminal case owing to his severe stomach pain. It ordered the detention authorities to provide him with anti-ulcer treatment. At the end of that month the applicant was examined in a civilian hospital, which diagnosed him with an aggravated ulcer and acute gastritis. Inpatient treatment was prescribed. The authorities did not admit him for it.
22.The next recurrence of the applicant’s ulcer occurred in autumn 2010. According to the medical records, the applicant did not receive any drugs at that time. An examination on 21 December 2010 showed that his ulcer had grown and the duodenitis and gastric disease had progressed further. A civilian doctor who visited him recommended inpatient treatment, but he remained in the remand prison. The resident doctor prescribed drug treatment in December 2010 and January and March 2011. However, the medical records contain no information concerning the actual provision of the prescribed drugs to the applicant. According to him, only one of the drugs was made available to him. His mother sent him the required drugs in June 2011 to enable him to receive at least some relief.
23.A new acute stomach pain attack occurred in December 2011. The applicant was immediately taken to the prison hospital for an X-ray examination and a surgical consultation. The surgeon concluded that the applicant’s condition did not call for surgery. Over the next few days the applicant was diagnosed with duodenitis and recurring acute gastritis which had passed to the chronic stage. Drug treatment was prescribed, but the Court was not given any records showing that he actually received it.
24.In the meantime the applicant started complaining of mild knee pain and impeded nasal breathing allegedly caused by a broken nose in 2006 while in detention on remand. He stated that he had received some medication for knee pain, but had not undergone any septal surgery.
25.In the beginning of 2012 the applicant underwent a magnetic resonance imaging scan of the brain and spine in a civilian hospital. He paid for the scan himself, which revealed the presence of Schmorl’s nodes, protruded discs, spondylarthrosis and a haemangioma in one of the spinal discs. It also indicated moderate changes within local tissue associated with a cerebrospinal fluid cyst in the arachnoid membrane of the brain. These diagnoses were confirmed by the prison doctor, who found that the applicant’s condition did not call for surgical treatment.
26.The applicant was sent to a prison to serve his sentence.
3.Prison
27.On 23 October 2012 the applicant arrived at the prison in Minusinsk in the Krasnoyarsk Region (“the prison”).On admission he was seen by a prison doctor, who considered him to be in satisfactory health. He was included on a list of detainees subject to regular medical check-ups and enhanced medical attention.
28.The next day he was diagnosed with acute gastritis and degenerative disc disease. He was prescribed a fibrogastroduodenoscopy and several drugs, including nonsteroidal anti‑inflammatory medication and medication to treat his gastritis. He refused to comply with the doctors’ recommendations pertaining to the endoscopy and anti-inflammatory drugs, insisting that they would lead to a further deterioration of his ulcer. He nevertheless took the medication prescribed for gastritis treatment. According to the medical records, the ulcer treatment continued for the following few months.
29.In the meantime, an independent medical specialist and neurologist, DrM., assessed the applicant’s health and prepared a report on 5November 2012. It stated that he should be admitted to a neurological or neurosurgical medical facility, where his spinal problems could be treated with nonsteroidal anti-inflammatory medication, neuromuscular blocking agents and painkillers. The doctor gave detailed recommendations concerning the applicant’s treatment.
30.On 29 November 2012 the prison doctor prescribed the applicant vitamin injections and pain-relief ointment to treat his spinal problems. Several days later the doctor authorised an additional hour’s rest from physical activity and prescribed nonsteroidal anti-inflammatory medication, spasm relief analgesics and omeprazole for his peptic problems.
31.In the absence of any positive developments, in January 2013 the doctor amended the spinal treatment and introduced a stronger anti‑inflammatory drug.
32.In March 2013 the applicant was transferred to the prison hospital. Tests showed that his conditions had not progressed. The gastritis and duodenal ulcer were in remission. The applicant was prescribed omeprazole and sucralfate-based medication. According to an entry made in his medical history on 26 March 2013, his attending doctor recommended testing for the bacteria Нelicobacter pylori (“H.pylori”). The test was never performed.
33.After the applicant’s return to the prison his treatment continued in line with the recommendations of the prison hospital doctors. He received meloxicam and omeprazole. However, in May 2013 his duodenal ulcer again worsened. The acute phase lasted about two months.
34.On 17 July 2013 the applicant was examined by a number of medical specialists from a mobile prison hospital. He was diagnosed with a duodenal ulcer in remission, chronic gastritis, erosive duodenitis, osteoarthritis of the left knee, Raynaud’s syndrome, degenerative disc disease, acute back pain and second-stage myopia. He was prescribed drug treatment. The records do not indicate that he received all of the prescribed medications.
35.On 7 August 2013 the prison authorities received a parcel of medication from the applicant’s mother. He was treated with those drugs until 30 August 2013, when he was sent to a correctional colony.
4.Correctional colony
36.On 11 September 2013 the applicant arrived at correctional colony no. 288/17 in Krasnoyarsk. He complained to the resident doctor of nausea and was diagnosed with an ulcer and degenerative disc disease. He was put on a list of detainees for close medical supervision. The doctor noted that the applicant required anti-recurrence ulcer treatment and in-depth examinations every six months, recording that it was necessary for him to be placed on a special diet when the ulcer recurred.
37.On 18 September 2013 the applicant was seen by doctors from the mobile prison hospital and underwent a fibrogastroduodenoscopy. It revealed that he had antral gastritis. According to him, his mother bought him medication for the ulcer treatment and sent it to the correctional colony.
38.In November 2013 the applicant had another severe attack of stomach and back pain. The prison doctor prescribed him drugs, injections of painkillers and vitamins. According to the Government, he refused to take one of the drugs, a nonsteroidal anti‑inflammatory. He disputed that allegation.
5.Court proceedings pertaining to the quality of the applicant’s treatment
39.On 30 August 2013 the applicant filed a complaint against the prison administration, arguing that his treatment fell short of the requirements of Russian law. He stressed that the authorities had failed to properly treat his conditions.
40.On 16 October 2013 the Minusinsk Town Court dismissed the applicant’s complaint, finding that the authorities had provided him with adequate treatment. According to the court, he was regularly seen by a doctor and prescribed medication, including anti-inflammatory drugs and painkillers. They were given to the applicant as prescribed. His condition remained stable between 23 October 2012 and 30August 2013.
41.On 17 March 2014 the Krasnoyarsk Regional Court upheld the judgment on appeal.
A.Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, adopted on 11January 2006 at the 952nd meeting of the Ministers’ Deputies
50.The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts read as follows:
“Health care
39. Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of at least one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency ...
41.4 Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1 A medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary ...
42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to ...
b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ...
43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury, and any prisoner to whom attention is specially directed ...
Health care provision
46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civilian hospitals when such treatment is not available in prison.
46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
B.3rd General Report of the European Committee for the Prevention of Torture (CPT)
51.The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4June 1993). The following are extracts from the Report:
“33. When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...
35. A prison’s health care service should at least be able to provide regular out‑patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civilian or prison hospital ...
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.) ...
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service ...”

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6.The applicant was born in 1949 in the Khabarovsk Region. He is serving his prison sentence in a correctional colony in the village of Kochubeyevskoe, Stavropol Region.
A.Criminal proceedings against the applicant
7.On 9 March 2006 the applicant was arrested on suspicion of aggravated murder, robbery and firearms possession. He remained in detention throughout the investigation and trial.
8.On 28 July 2006 the Stavropol Regional Court found him guilty as charged and sentenced him to nineteen years’ imprisonment in a correctional colony.
B.The applicant’s state of health and conditions of his detention
9.On 10 February 2010 the applicant was sent to serve his sentence in correctional colony no.IK-17/1 in the village of Kochubeyevskoe, Stavropol Region (“the correctional colony”).
10.When the applicant arrived at the colony the resident doctor noted that he had a first-degree disability: he was totally blind as a result of mature cataracts in both eyes. His blindness, which had developed during his detention, meant that he was unable to move around alone. In addition, he was suffering from coronary disease, hypertension, gallstones and chronic pancreatitis. He was included on a list of detainees requiring enhanced medical attention.
11.The applicant was assigned to colony unit no. 10 for special-needs detainees, which comprised a separate dormitory. It housed forty-six detainees with various disabilities or serious illnesses. The unit had a dormitory measuring 149.6 square metres, a dining room, a toilet, showers, and several offices for administrative and medical personnel. A large part of the dormitory floor area was taken up by furniture such as bunk beds, bedside tables and chairs. According to a certificate issued by the correctional colony on 13 October 2014, each detainee was afforded 2.82 square metres of living space. As is apparent from the documents and photographs submitted by the Government, the premises were not adapted for visually impaired or blind persons.
12. The authorities assigned another inmate with cardiac problems to assist the applicant with his basic needs. The inmate did not receive any remuneration for the assistance he provided to the applicant. He helped the applicant to move around the dormitory and to take showers, and guided him in the dining room. The applicant had no prison work; he remained in the unit throughout the day.
13.According to the applicant, he faced particular difficulties in orientating himself in the correctional colony. He regularly stumbled over objects, slipped and fell. Such helplessness induced anguish and despair. In 2011 he was diagnosed as having an emotionally unstable personality disorder.
14.On 21 February 2011 and 19 November 2012 a medical commission confirmed the applicant’s disability. They recommended that the authorities provide him with a walking stick, a white cane, a player for audiobooks designed for blind people, a vocal clinical thermometer and a vocal tonometer. The recommendations were never enforced. According to two entries in his medical record, on 30 November 2011 and 23 January2013 officials asked the applicant whether he wished to receive those items. The applicant allegedly refused, but did not agree to make a written note to that effect in the medical record.
15.In September 2014 the inmate who had been assisting the applicant was released from detention and the applicant was left to fend for himself. According to a certificate issued by the authorities, he refused the assistance of other inmates.
C.Application for release on health grounds
16.On 8 February 2013 the applicant asked for a medical examination to determine whether his state of health warranted his early release.
17.On 5 April 2013 a medical commission held that as blindness was one of the diseases listed in Government Decree no.54 of 6 February2004 that may warrant release from a correctional institution, the applicant could be relieved from serving his sentence.
18.Relying on the conclusion of the medical commission, the applicant lodged an application with the Kochubeevskoe District Court, Stavropol Region, for release on health grounds. On 16 April 2013 the District Court dismissed the application. Referring to Ruling no. 21 of the Supreme Court of Russia dated 20 December 2011 (see paragraph 26 below), the court noted that the fact that the applicant’s illness was included in the list provided for by Government Decree no. 54 did not automatically mean that he would be released. The court cited the gravity of the crimes committed by the applicant and the length of the prison term he had yet to serve. Taking those two factors into account, the court concluded that the applicant should remain in the correctional colony. The Stavropol Regional Court upheld that judgment on appeal.
19.On 10 July 2014 the Supreme Court of Russia rejected a cassation appeal lodged by the applicant without examining it on the merits. It found that the applicant had failed to lodge the appeal within the statutory time‑limit.
27.The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Russia ratified the Convention on 25 September 2012. It did not ratify the Optional Protocol.
Article 1 of the Convention provides:
“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”
The relevant part of Article 14 provides:
“2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”
The relevant part of Article 15 provides:
“2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
The requirements regulating personal mobility are laid down in Article20, which reads as follows:
“States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:
Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;
Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;
Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities;
Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.”
28.In his Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, stated as follows:
“50. ... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...
...
53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ...
54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.”
29.The relevant extracts from the 3rd General Report (CPT/Inf (93)12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
e. Humanitarian assistance
“64. Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.”
...
iv) prisoners unsuited for continued detention
“70. Typical examples of this kind of prisoner are those who are the subject of a short‑term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.
...”
g. Professional competence
“76. To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers. At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated.
Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines.
77. Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.”
30.Recommendation no. R (98) 7 of the Committee of Ministers of 8April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant:
III. The organisation of health care in prison with specific reference to the management of certain common problems
C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis
“50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. ...”
31.Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular:
IV. Guidelines for prison staff conduct
D. Care and assistance
“19. Prison staff shall be sensitive to the special needs of individuals, such as ... disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs.
20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.
21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules.
22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.”

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6.The applicant was born in 1964 and, until his arrest, lived in StPetersburg.
A.Criminal proceedings against the applicant
7.On 26 June 2010 the applicant was arrested on suspicion of aggravated kidnapping and extortion committed within an organised criminal group and with the use of firearms. He remained in detention throughout the investigation and trial.
8.On 22 June 2012 the Leningrad Regional Court found the applicant guilty as charged and sentenced him to nine years’ imprisonment in a high-security correctional colony.
9.The Supreme Court of Russia upheld the sentence on appeal on 8November 2012.
B.Applicant’s detention, state of health and medical treatment
10.The parties provided the Court with extensive medical evidence, including the applicant’s clinical records, medical certificates, expert reports, and opinions by various medical specialists.
11.The evidence shows that the applicant had a long history of heart and kidney diseases. In 2007 he suffered a stroke, closed craniocerebral injury and cerebral contusion. The following year he suffered a myocardial infarction and was admitted to a hospital for in-patient treatment. A medical examination carried out by the hospital revealed a deterioration in the functioning of his kidney. He was prescribed a basic drug regimen, which was supervised by a cardiologist and a nephrologist. Upon discharge from the hospital, his state of health was considered satisfactory.
12.After the applicant’s arrest he was taken to a temporary detention centre in the town of Vsevolzhk, and six days later, on 2 July 2010, to temporary detention facility no. IZ-47/1 in St Petersburg (“facility no.IZ‑47/1”). On admission to the detention facility, the applicant underwent a general medical check-up performed by the prison doctor, who concluded that he was “somatically healthy”. Eleven days later he underwent an electrocardiogram, which revealed hypertrophy of the left ventricle of his heart and myocardium insufficiency. The prison doctor recommended in-patient care.
13.On 16 July 2010 the applicant was transferred from the detention facility to hospital no. 2 of medical ward no. 78 of the Federal Service for the Execution of Sentences (“prison hospital no. 2”). An electrocardiogram and blood and urine tests were performed in the hospital, leading to diagnosis of third-stage hypertension, third-stage arterial hypertension, coronary disease, first‑degree angina pectoris, sclerotic kidney, fourth-stage chronic kidney disease, and chronic renal insufficiency of the second degree. He was prescribed drug therapy comprising enalapril, aspirin, spironolactone and other medication.
14.On the day following his admission to the hospital, the applicant made a written refusal to receive injections of hypotensive medication, arguing that they could lead to a sharp drop in his blood pressure.
15.The applicant’s clinical records show that he received drug treatment for hypertension in the hospital. His blood pressure and body temperature were regularly monitored.
16.On 13 August 2010 the applicant was discharged from the hospital and transferred to facility no. IZ-47/1. The discharge certificate indicated that his treatment had not produced the expected results, with the applicant’s arterial blood pressure remaining at a high level. It recommended a consultation with a cardiologist and a nephrologist in order to adjust his treatment.
17.Two months later, on 13 October 2010, the applicant was taken to hospital no. 1 of medical ward no. 78 of the Federal Service for the Execution of Sentences (“prison hospital no. 1”), where he was examined by several doctors, including a cardiologist and a nephrologist. He underwent several medical examinations, which revealed that his angina pectoris had progressed to the third stage. He was also diagnosed with first‑degree encephalopathy of mixed genesis. His antihypertensive drugs regimen was adjusted accordingly. The doctors recommended regular monitoring of his blood pressure, creatinine and urea levels. The applicant was certified as having a third-degree disability on 2December 2010.
18.In December 2010, the applicant’s wife, anticipating his discharge from the hospital, complained to the head of the Regional Department of the Federal Service for Execution of Sentences in St Petersburg and Leningrad Region and to the Investigative Committee of the Leningrad Region that the applicant’s medical treatment had been inadequate and about his impending transfer from the hospital to a temporary detention facility. On 18January 2011 the Investigative Committee dismissed the complaint. The complaint to the Regional Department of the Federal Service for Execution of Sentences was also unsuccessful.
19.On 3 December 2010 the applicant was sent back to facility no.IZ‑47/1. He was seen by a therapist. His treatment continued as prescribed in the hospital.
20.On 14 December 2010 an independent cardiologist, Dr F., chosen by the applicant’s wife, issued a report assessing the quality of the applicant’s treatment in detention. He observed that the applicant’s health, and in particular his heart condition, had deteriorated while in detention. He noted that after the arrest the applicant had not been given medication or appropriate dietary nutrition. Serious emotional conditions aggravated by the incarceration had also contributed to the deterioration of his health and increased the risk of a stroke, fatal heart attack or kidney failure. Dr F. recommended dietary nutrition, basic treatment and regular monitoring of the applicant with a view to adjusting his drug therapy if necessary. These and the subsequent recommendations of Dr F. were submitted to the authorities by the applicant’s lawyer or wife and appear to have been included in his medical file.
21.On 14 January 2011 a prison doctor ordered the applicant’s medical examination. A week later the applicant underwent a biochemical blood test and a urine test. His diagnosis was re-confirmed and the doctor recommended continuing his treatment with hypotensive drugs.
22.On 21 February 2011 Dr F. prepared a new report pertaining to the quality of the applicant’s treatment. He suggested that the applicant’s hypertension may have become drug-resistant and that a kidney tomography examination with a contrast agent was necessary in order to choose the correct treatment regimen.
23.A week later the applicant was taken back to prison hospital no. 2. A number of medical examinations and tests revealed that he was also suffering from renal hypoplasia and chronic latent pyelonephritis.
24.The applicant subsequently acquired an acute respiratory infection and was prescribed treatment for it. This led to a change in his hypertension therapy, primarily by decreasing the dosage and excluding certain drugs. His angina pectoris attacks became worse, and he was transferred to hospital no.1 where his condition was brought under control. He was given, among other drugs, high dosages of anticoagulants. He was discharged from the hospital on 22 March 2011 on condition that he remained on the prescribed drug regimen and that his blood pressure and creatinine and urea levels were regularly monitored.
25.From 22 March to 14 April 2011 the applicant was held in facility no. IZ-47/1. The records submitted to the Court do not indicate what drugs or other treatment the applicant received during this period.
26.In the meantime, in March 2011 Dr F. studied the applicant’s clinical records and recommended that he undergo a coronary angiography examination, as well as haemodialysis to define the correct treatment and to prevent possible progress of his kidney disease.
27.On 14 April 2011 the applicant was taken back to hospital no. 2 with a view to adjusting his treatment.
28.Four days later Dr F., an independent nephrologist, Dr G., and the head of the prison hospital examined the applicant in the hospital. They recorded a further deterioration of his heart and kidney functions and suggested that his treatment with anticoagulants might be incorrect given the high risk of heart failure or internal hemorrhage. The doctors recommended that he undergo a coronary angiography examination and a renal tomography or Doppler ultrasound examination.
29.Another examination of the applicant by Dr F. and an independent cardiologist, Dr M., on 22 April 2011 led to the following opinion: the applicant had received adequate hypotensive therapy, which had nevertheless resulted in the aggravation of his hypercreatinemia. They observed that the coronary disease had started prevailing over the remaining diseases and suggested that the applicant’s therapy should be based on regular treatment with anti-aggregants, nitrates and statins. The doctors stressed that there was a high risk of the applicant’s condition deteriorating and leading to his death as a result of heart failure, a stroke or myocardial infarction, should prison medical personnel fail to perform a coronary angiography examination or surgery.
30.On 18 May 2011 the applicant was discharged from the hospital and transferred to temporary detention facility no. IZ-47/4 in St Petersburg (“facility no. IZ-47/4”).
31.On the following day the investigative authorities ordered the applicant’s expert examination. A medical commission was to answer several questions, including whether the applicant’s diseases posed a threat to his life and whether his further detention was compatible with his condition. According to expert report no. 200/K of 27 May 2011, the applicant was suffering from third-degree hypertension, third-stage arterial hypertension, chronic heart insufficiency of the second degree, first-degree chronic venous insufficiency, chronic coronary disease, second-degree angina pectoris, sclerotic kidney, second-stage chronic renal insufficiency, the initial stage of cerebral atherosclerosis, and dyscirculatory encephalopathy of the first degree. The commission stated that those illnesses required constant monitoring and adequate drug therapy. Any breach of his treatment regimen could induce life-threatening complications. The commission nevertheless concluded that the applicant’s condition did not warrant his release from detention.
32.At the end of May 2011 the applicant wrote a note refusing two injections and intravenous therapy and stating that he had lost trust in the attending medical personnel.On one occasion in June 2011 he refused to take a certain medicine, having noted that he had already taken similar drugs earlier that day.
33.On 1 July 2011 the applicant was examined by Dr F., who observed that the authorities had failed to give him necessary drugs and that the applicant’s relatives had had to step in and supply the prescribed medication. He nevertheless noted positive changes in his state of health. DrF. again strongly insisted that the applicant needed to undergo a coronary angiography examination.
34.The applicant’s wife complained to the Representative of the Russian President in the North-West Federal Circuit of the applicant’s poor treatment in detention. The complaint was to no avail. She also complained to the St Petersburg Ombudsman. On 26 July 2011 the Ombudsman recommended that the applicant’s wife complain before the courts, apply for the applicant’s early release on medical grounds, or complain to the administration of the detention facility.
35.On 11 and 25 August 2011 Dr F. and a doctor from facility no.IZ‑47/4 examined the applicant. In their joint report they noted that for a considerable amount of time the applicant had not received even basic vital medication because none had been available in the detention facility. In particular, the applicant did not receive spironolactone, aliskiren, clopidogrel and isosorbide mononitrate. Only the latter drug was substituted with analogous medication. The applicant’s hypertension and coronary disease had deteriorated. The two doctors therefore recommended his admission to hospital.
36.On 19 September 2011 the applicant was examined by Dr G., who found that his kidney disease had progressed to stage three. The doctor stressed that an angiography examination at that stage of the development of the applicant’s illness posed a risk of irreparable damage to the applicant’s kidneys. However, the risk of heart failure was even higher, and therefore an angiogram was vital.
37.On 8 October 2011 the applicant was transferred to the Mariinskiy Hospital of St Petersburg for a coronary angiography examination. He underwent a number of tests in the hospital. A coronary angiography examination performed on 8 December 2011 revealed up to 75% arterial stenosis. The discharge certificate of 13 December 2011 prescribed the installation of a coronary stent. The surgery was to be performed in due course.
38.On 19 December 2011 the applicant was admitted to prison hospital no. 2, where he underwent various medical tests and examinations.
39. In a report prepared after the applicant’s examination on 20January 2012, Dr F. and the head of the prison hospital stated that he had not received any statins. The absence of this drug had caused an increase in the applicant’s cholesterol level and deterioration in the lipid metabolism indices. In addition, the doctors observed that the applicant’s renal protective therapy had been insufficient and his blood pressure had not been monitored regularly. As a result, his kidney disease had progressed.
40.On 26 April 2012 in the course of the criminal proceedings against the applicant, the trial court ordered his expert examination with a view to updating the information about his state of health, particularly in the light of the results of his coronary angiography examination. In a report issued on 29May 2012 experts confirmed that there was a high risk of heart complications, including lethal ones. They noted that the applicant’s state of health called for vascular surgery, drug treatment and the limitation of stress.
41. On 16 June 2012 the applicant was discharged from the hospital for a “breach of regimen”, namely his refusal to be examined by two doctors. He continued his treatment as an outpatient.
42.On 14 December 2012 the applicant was readmitted to prison hospital no. 1.
43.In January 2013 Dr G. and Dr F. again assessed the quality of the medical treatment provided to the applicant. They concluded that he had received adequate treatment, that he was in need of endovascular surgery and that his impending transfer to a correctional colony would be incompatible with his state of health.
44.The applicant spent another month in hospital no. 2.
45.On 18 March 2013 the applicant was sent to a correctional colony in the Mordoviya Republic to serve his sentence.
46.Meanwhile, on 1 April 2013 the applicant’s wife complained to the Prosecutor General, the Federal Service for the Execution of Sentences, medical ward no. 78 and other authorities of the continuous failure to properly diagnose and treat her husband. She received no response.
47.On 12 April 2013, after several weeks on the road, the applicant reached correctional colony no. IK-385/5 (“colony no. 385/5”). On admission he was seen by a doctor who confirmed his diagnoses and prescribed clinical blood and urine tests, an electrocardiogram, and examinations by a therapist, a cardiologist and a psychiatrist. Five days later, the applicant was prescribed basic drugs for coronary heart disease and hypertension. On 23 April 2013 he was examined by a psychiatrist, who did not find any acute pathology.
48. The applicant was admitted to prison hospital no. 21, where he spent the first two weeks of June 2013. He was seen by a doctor and again underwent various medical examinations, including blood and urine tests, electrocardiography and ultrasound tests. His diagnoses were confirmed and dietary nutrition and a specific drug regimen were prescribed.
49.From 13 August to 27 September 2013 the applicant was admitted to medical ward no. 13 of the correctional colony. A doctor monitored his health and adjusted his treatment regimen.
50.The applicant spent the entire month of October 2013 in transit between several detention facilities. At that time he contracted acute pharyngitis, which was successfully treated.
51.On 30 October 2013 the applicant’s health significantly deteriorated and he was admitted to the therapeutic department of medical ward no.13. Tests revealed that he had kidney stones and a benign liver tumour. The applicant’s drug regimen was amended. His condition was considered to have been stabilised.
52.The discharge report issued to the applicant upon his discharge from the medical ward on 22 November 2013 indicated that he was to consult a heart surgeon and a nephrologist.
53.According to the applicant, following his discharge from the ward he was immediately sent to Saransk for the recommended examinations. The journey took over two weeks.
54.On 6 December 2013 a nephrologist and a heart surgeon examined the applicant and diagnosed him with second-degree chronic renal insufficiency, coronary disease, third-degree angina pectoris and atherosclerosis of the arterial vessels. Symptomatic treatment was prescribed for his kidney disease. A coronary angiography examination was also to be performed. In addition, the neurologist noted that the applicant’s state of health did not require haemodialysis.
55.On 24 January 2014 the applicant underwent a coronary angiography examination in Saransk Town hospital. It revealed up to 75% arterial stenosis with an unstable atherosclerosis plaque. Doctors authorised and immediately performed an urgent coronary angioplasty and a coronary stent was installed. The surgery was successful.
A.Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11January 2006 at the 952nd meeting of the Ministers’ Deputies (“the European Prison Rules”)
62.The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:
“Health care
39. Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1 Every prison shall have the services of at least one qualified general medical practitioner.
41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency ...
41.4 Every prison shall have personnel suitably trained in health care.
Duties of the medical practitioner
42.1 A medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary ...
42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to ...
b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ...
43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury, and any prisoner to whom attention is specially directed ...
Health care provision
46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civilian hospitals when such treatment is not available in prison.
46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
B.3rd General Report of the European Committee for the Prevention of Torture (“ the CPT Report” )
63.The complexity and importance of health-care services in detention facilities was discussed by the European Committee for the Prevention of Torture in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4June 1993). The following are extracts from the Report:
“33. When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...
35. A prison’s health care service should at least be able to provide regular out‑patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital ...
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.) ...
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service ...”

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9.The applicant was born in 1992 and lives in Novosibirsk.
A.The applicant’s background and medical condition
10.At some point before September 2004, the applicant’s parents were deprived of their parental responsibility; the applicant was placed in a local orphanage until his grandfather was assigned as his guardian in October2004 and the applicant was placed with him. On 28 February 2005 the grandfather’s guardianship was revoked, but he was reinstated as guardian at the beginning of 2006.
11.From 2002 to 2005, the applicant allegedly committed offences prohibited by the Criminal Code of the Russian Federation, including disorderly acts, aggravated robbery and extortion, alone or in a group of minors. Since he was under the age of criminal responsibility, no criminal proceedings were instituted against him but he was the subject of five pre-investigation inquiries and placed under the supervision of the Juveniles Inspectorate within the Department of the Interior of the Sovetskiy district of Novosibirsk (“the Juveniles Inspectorate”). Moreover, following the fourth inquiry, he was placed in a temporary detention centre for juvenile offenders on 21 September 2004 for thirty days.
12.According to the applicant’s medical records, he suffered from an attention deficit hyperactivity disorder (a mental and neurobehavioural disorder characterised by either substantial attention difficulties or hyperactivity and impulsiveness, or a combination of the two – ADHD) and a neurogenic bladder causing enuresis (a disorder involving urinary incontinence).
13.On 27 December 2004 and 19 January 2005 he was examined by a neurologist and a psychiatrist. He was prescribed medication, regular supervision by a neurologist and a psychiatrist and regular psychological counselling.
B.The pre-investigation inquiry regarding the applicant
14.On 3 January 2005 the applicant, who at that time was 12 years old, was at the home of his nine-year old neighbour S. when the latter’s mother, MsS., called the police, who came and took the applicant to the police station of the Sovetskiy district of Novosibirsk. He was not informed of the reasons for his arrest.
15.According to the applicant, he was put in a cell that had no windows and the lights in the cell were turned off. After he had spent around an hour in the dark, he was questioned by a police officer. The police officer told him that S. had accused him of extortion. He urged the applicant to confess, saying that, if he did so, he would be released immediately, whereas if he refused, he would be placed in custody. The applicant signed a confession statement. The police officer then immediately telephoned the applicant’s grandfather to tell him that the applicant was at the police station and could be taken home. When his grandfather arrived at the police station, the applicant retracted his confession and protested his innocence.
16.The Government disputed the applicant’s account of the events at the police station. They submitted that the applicant had been asked to give an “explanation” rather than being formally questioned, that he had been interviewed by a police officer who had pedagogical training, and that he had been apprised of his right to remain silent. He had not been subjected to any pressure or intimidation. His grandfather had been present during the interview.
17.On the same day, the applicant’s grandfather signed a written statement describing the applicant’s character and way of life. He stated that, two days earlier, he had seen the applicant in possession of some money. When asked where the money had come from, the applicant had said that his father had given it to him.
18.S. and his mother were also heard by the police regarding the incident; they claimed that on two occasions, on 27 December 2004 and 3January 2005, the applicant had extorted 1,000 roubles (RUB) from S., threatening him with violence if he did not hand over the money.
19.On 12 January 2005 the Juveniles Inspectorate refused to institute criminal proceedings against the applicant. Relying on the applicant’s confession and the statements of S. and S.’s mother, it found it to be established that on 27December 2004 and 3January 2005 the applicant had extorted money from S. His actions therefore contained elements of the criminal offence of extortion, punishable under Article 163 of the Criminal Code. However, given that the applicant was below the statutory age of criminal responsibility, he could not be prosecuted for his actions.
20.On 3 February 2005 the applicant’s grandfather complained to the prosecutor’s office of the Sovetskiy district of Novosibirsk that the applicant, a minor suffering from a psychological disorder, had been intimidated and then questioned in the absence of his guardian and that his confession had been obtained under duress. The grandfather requested that the confession statement be declared inadmissible as evidence, and that the pre-investigation inquiry be closed on account of lack of evidence of an offence, rather than the applicant’s age.
21.On 8 June 2005 the prosecutor’s office of the Sovetskiy district of Novosibirsk quashed the decision of 12 January 2005, finding that the pre‑investigation inquiry had been incomplete. It ordered a further pre-investigation inquiry.
22.On 6 July 2005 the Juveniles Inspectorate again refused to institute criminal proceedings against the applicant, for the same reasons as before.
23.During the following months, the applicant’s grandfather lodged several complaints with prosecutors’ offices of various levels, asking for a fresh examination of the case against the applicant. He complained that the applicant’s confession had been obtained as a result of intimidation by the police; in particular, he had been placed in a dark cell for an hour and he had then been questioned by a police officer in the absence of a guardian, psychologist or teacher. The police officer had coerced the applicant into signing the confession statement without the benefit of legal advice. He had then issued a decision refusing to institute criminal proceedings on the ground that the applicant had not reached the statutory age of criminal responsibility, while stating at the same time that the applicant’s involvement in extortion had been established.
24.By letters of 4 August, 9 November and 16 December 2005, the prosecutor’s office of the Sovetskiy district of Novosibirsk and the prosecutor’s office of the Novosibirsk region replied that no criminal proceedings had been instituted against the applicant on the ground of his age. He therefore did not have the status of a suspect or a defendant. On 3January 2005 he had been asked to give an “explanation” rather than been questioned by the police. In those circumstances the participation of a lawyer, psychologist or teacher had not been mandatory. There was no evidence that the applicant had been held in a dark cell before the interview, and he had had to wait no more than ten minutes for an officer from the Juveniles Inspectorate to arrive and interview him. That the applicant had committed extortion had been established on the basis of the statements of S. and S.’s mother and the applicant’s admission of guilt during the interview of 3January 2005.
C.The detention order
25.On 10 February 2005 the head of the Sovetskiy district Police Department of Novosibirsk asked the Sovetskiy District Court of Novosibirsk to order the applicant’s placement in a temporary detention centre for juvenile offenders.
26.On 21 February 2005 the Sovetskiy District Court held a hearing which the applicant and his grandfather attended and at which they submitted medical certificates confirming that the applicant suffered from a psychological disorder and enuresis.
27.On the same day, the court delivered its judgment in which it ordered the applicant’s placement in the temporary detention centre for juvenile offenders for thirty days. It held as follows.
“The head of the Sovetskiy district Police Department of Novosibirsk has applied to the court with a request to place [the applicant], who has been registered with the [Juveniles] Inspectorate as a delinquent minor since 4 January 2002, in the temporary detention centre for juvenile offenders for thirty days.
On 14 May 2003 [the applicant] committed an offence proscribed by Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility.
On 24 July 2003 [the applicant] again committed an offence proscribed by Article213 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility.
On 27 August 2004 [the applicant] again committed a criminal offence under Article161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. [The applicant] was placed in the temporary detention centre for juvenile offenders for thirty days.
The minor lives in unfavourable family conditions in which his grandfather is responsible for his upbringing in so far as possible; [the applicant’s] parents are alcoholics and have a negative influence on their son. Before [the grandfather] was given guardianship status, [the applicant] had lived in an orphanage and studied in school no. 61. At the material time he studied in school no. 163, often played truant from school, and stopped attending school entirely from December onwards. Given that the requisite control over him is absent, the minor spends the major part of his day on the streets, committing socially dangerous offences.
On 27 December 2004 [the applicant] committed another offence proscribed by Article 163 of the Criminal Code of the Russian Federation; a criminal case was not opened because he had not reached the age of criminal responsibility.
Taking the above-mentioned circumstances into account, [the head of the Police Department] considers it necessary to place [the applicant] in the temporary detention centre for juvenile offenders for a period of thirty days to prevent his further unlawful actions.
The representative of the Juveniles Inspectorate supported the request made by the head of the Police Department and explained that [the applicant’s] guardian had requested in writing that his guardianship rights be lifted and the [Inspectorate] had accepted that request.
[The applicant] refused to provide any explanations.
The [applicant’s] representative [the grandfather] objected to [the applicant’s] placement in the temporary detention centre, having noted that [the applicant] had not committed a criminal offence on 27 December 2004 as he had been with [the grandfather] at a doctor’s surgery for an examination at that time.
The lawyer, Ms [R.], asked the court to dismiss the request of the head of the Police Department.
The prosecutor asked the court to accept the request and to place [the applicant] in the temporary detention centre for juvenile offenders, taking into account that the documents presented by [the applicant’s] guardian did not confirm that [the applicant] had been at a doctor’s surgery on 27 December 2004 at 1 p.m. or that he had been unable to commit the criminal offence, particularly taking into account the [applicant’s] personality and the fact that he had already committed a number of offences.
Having heard the parties to the proceedings and examined the materials submitted by them, the court considers that the request must be allowed for the following reasons: [the applicant] is registered in the database of [the Juvenile Department of the police]; he was previously placed in the [temporary detention centre for juvenile offenders] for behaviour correction but did not draw the proper conclusions and committed further delinquent acts; the preventive measures put in place by the [Juveniles] Inspectorate and by the guardian have not produced results, which shows that [the applicant] has not learnt his lesson. [The applicant] must be placed in the [temporary detention centre for juvenile offenders] for thirty days for behaviour correction.
The case-file materials examined by the court confirm that [the applicant] committed a socially dangerous offence: a complaint by Ms [S.] shows that on 27December 2004, at approximately 1 p.m., [the applicant] extorted 1,000 roubles from her son [S.] in a yard; he accompanied those actions with threats of violence. On 3 January 2005 [the applicant] again came to their house and again extorted 1,000roubles from her son, having again threatened the son with violence. Explanations by [S.] indicate that on 27 December 2004, at approximately 1 p.m., [the applicant] told [S.] to give him 1,000 roubles in a yard; he accompanied those actions with threats of violence and [S.] gave him the money. On 3 January 2005 [the applicant] again came to their house and requested 1,000 roubles from [S.], having again threatened him with violence. [S.] complained to his mother, who called the police.
The court takes into account that those circumstances are corroborated by the statement made by [the applicant], who did not deny that he had received money from [S.] on 27 December 2004, as the latter had been afraid of the applicant. [The applicant] also did not deny that he had come to [S.’s] house on 3 January 2005. A criminal case in respect of the events on 27 December 2004 and 3 January 2005 was not opened as the applicant had not reached the age of criminal responsibility.
Having taken these circumstances into account, the court finds unsubstantiated and far-fetched the explanations by the applicant’s guardian that [the applicant] did not commit the offences on 27 December 2004 and 3 January 2005.
Having regard to the above-mentioned facts and ruling under section 22(2)(4) of the Minors Act, the court grants the request of the head of the Police Department and decides to place the applicant in the temporary detention centre for juvenile offenders for thirty days.”
D.Detention in the temporary detention centre for juvenile offenders
28.On 21 February 2005 the applicant was placed in the Novosibirsk temporary detention centre for juvenile offenders, where he remained until 23March 2005.
1.The applicant’s description of the conditions of detention in the centre
29.According to the applicant, he had shared his bedroom in the centre with seven other inmates. The lights were kept on all night.
30.During the day inmates were forbidden to lie on their beds or to enter the bedroom. They had to spend the whole day in a large empty room which contained no furniture or sports equipment. On a few occasions they were given a chess set and other board games. They were allowed to go out into the yard only twice during the applicant’s thirty-day stay in the centre.
31.Inmates had classes twice a week for around three hours. They had mathematics and Russian grammar classes only. They were not taught any other courses from the officially-approved secondary-school curriculum. Around twenty children of different ages and school levels were taught together in one class.
32.The supervisors applied collective punishment to the inmates. If one of them committed a breach of the centre’s strict regime, all inmates were forced to stand in a line against the wall without moving, talking or being allowed to sit down. Given that many inmates were psychologically unstable and unruly, because of their socially disadvantaged background, such punishment was applied every day and often lasted for hours.
33.Inmates were not allowed to leave the room where they were assembled. They had to ask for the supervisor’s permission to go to the toilet, and were accompanied there in groups of three. They therefore had to wait until such a group was formed before being able to go to the toilet. Given that the applicant suffered from enuresis, the fact that he could not go to the toilet as often as he needed caused him bladder pain and psychological suffering. If his requests for permission to go to the toilet became too frequent, the supervisors punished him by making him do particularly arduous cleaning work.
34.Although the applicant’s grandfather had informed the staff of the centre of the applicant’s enuresis and his ADHD, the applicant did not receive any treatment.
2.The Government’s description of the conditions of detention
35.According to the Government, each bedroom in the temporary detention centre for juvenile offenders measured seventeensquare metres and was equipped with four beds. Access to the bathrooms and toilets situated on each floor was not limited.
36.The centre had a dining room where meals were served five times a day. There was also a games room and a sports room. Audio and video equipment, educational games and works of fiction were available.
37.The supervisors carried out “preventive work” with each inmate of the centre and could apply incentive measures or punitive measures in the form of oral reprimands. Corporal punishment was not used; nor were juvenile inmates ever required to do hard or dirty work.
38.The centre’s medical unit had all the necessary equipment and medicine. It could be seen from the staff list of the centre submitted by the Government that the medical unit was staffed by a paediatrician, two nurses and a psychologist. According to the Government, each child was examined by the paediatrician on his admission and every day thereafter. Treatment was prescribed when necessary. It could be seen from the temporary detention centre’s “accounting and statistical record” concerning the applicant that he had not informed the doctor of his enuresis.
39.The applicant’s personal file, containing, in particular, the information on his medical condition on admission, the preventive work carried out and the punishments applied to him, had been destroyed on 17January 2008 after the expiry of the statutory time-limit on storage, in accordance with Order no. 215 of the Ministry of the Interior of 2 April 2004 (see paragraph 73 below). However, the Government stated that the applicant’s “accounting and statistical record”, referred to above, had been retained since its storage period was unlimited in accordance with Order no.215 (see paragraph 74 below).
40.According to the Government, the applicant’s other medical records and logbooks at the temporary detention centre had been destroyed as soon as they were no longer needed, without any records being compiled in this respect. This had been possible because there had been no regulations on storing such documents until Order no. 340 of the Ministry of the Interior had come into force on 12May 2006 (which provided that medical records were to be stored for three years).
41.However, the Government submitted a written statement by a supervisor at the detention centre dated 23 December 2010. She confirmed the Government’s description of the conditions of detention in the centre. She also stated that one of the supervisors was always present in the room with the inmates, which ensured continuity of the educational process. Teachers from the neighbouring school regularly came to the centre so that the inmates could follow the secondary-school curriculum. After their release from the centre, they received an education progress record. She stated that she did not remember the applicant but asserted that she had not received any requests or complaints from him or from any other inmate.
42.The Government also submitted a copy of an agreement of 1September 2004 between the detention centre and secondary school no. 15 whereby the school undertook to organise secondary-school courses in the centre in accordance with a curriculum developed by the centre. A copy of an undated two-week curriculum was produced by the Government. It included four classes per day on Tuesdays, Thursdays and Fridays.
E.The applicant’s medical condition after release from the temporary detention centre for juvenile offenders
43.On 23 March 2005 the applicant was released from the detention centre. On the following day he was taken to hospital, where he received treatment for neurosis and ADHD. He remained at the hospital until at least 21 April 2005.
44.On 31 August 2005 the applicant was placed in an orphanage and, according to an extract from the applicant’s medical record drawn up at the orphanage, he was on the run between 14 September and 11 October 2005 and again between 13 and 23 October 2005.
45.On 1 November 2005 he was transferred to a children’s psychiatric hospital, where he remained until 27 December 2005. At some point after that, he was returned to his grandfather who had been reinstated as his guardian.
46.On 4 October 2005 the applicant’s grandfather complained to the Prosecutor General’s Office that the applicant, who suffered from a mental disorder, had not received any medical treatment in the temporary detention centre for juvenile offenders, which had caused a deterioration in his condition; nor had he been provided with any educational courses. He reiterated his complaints to the prosecution authorities in a letter dated 30November 2005. The prosecutor’s office of the Sovetskiy district of Novosibirsk sent a reply to the applicant’s grandfather on 9 November 2005 and the prosecutor’s office of the Novosibirsk region sent a reply on 16December 2005, however, both of these dealt exclusively with the procedural issues related to the applicant’s case (see paragraph 24 above) and did not contain any answer to the grandfather’s complaints in so far as they related to the applicant’s health and the conditions of detention.
F.The applicant’s appeals against the detention order
47.Meanwhile, on 2 March 2005, the applicant’s grandfather appealed against the detention order of 21 February 2005. He submitted, firstly, that the detention was unlawful because the Minors Act did not permit detention for “behaviour correction”. Secondly, he complained that he had not been informed of the decision of 12 January 2005 refusing to institute criminal proceedings against the applicant and had therefore been deprived of an opportunity to appeal against it. He further submitted that the court’s finding that the applicant had committed an offence had been based on the statements of S. and his mother and the applicant’s confession statement. However, the applicant had made his confession statement in the absence of his guardian. Nor had a teacher been present. No teacher had been present during the questioning of S. either. Their statements were therefore inadmissible as evidence. Moreover, S. and his mother had not attended the court hearing and had not been heard by the court. Nor had the court verified the applicant’s alibi. Lastly, the applicant’s grandfather complained that the court had not taken into account the applicant’s frail health and had not verified whether his medical condition was compatible with detention.
48.On 21 March 2005 the Novosibirsk Regional Court quashed the detention order of 21 February 2005 on appeal. It found that behaviour correction was not among the grounds listed in section 22(2)(4) of the Minors Act for placing a minor in a temporary detention centre for juvenile offenders. Detention for behaviour correction therefore had no basis in domestic law. Moreover, the District Court had not stated reasons why it considered it necessary to detain the applicant. The mere fact that the applicant had committed an offence for which he was not liable to prosecution because of his age could not justify his detention. Such detention would be permissible only if one of the additional conditions listed in section 22(2)(4) of the Minors Act (see paragraph 66 below) was met. The Regional Court remitted the case to the District Court for fresh examination.
49.On 11 April 2005 the Sovetskiy District Court discontinued the proceedings because the head of the Sovetskiy district Police Department of Novosibirsk had withdrawn his request for the placement of the applicant in the temporary detention centre for juvenile offenders. The applicant and his grandfather were not informed of the date of the hearing.
50.On 22 March 2006 the applicant’s grandfather lodged an application for supervisory review of the decision of 11 April 2005. He complained that, as a result of the discontinuation of the proceedings, the applicant had been deprived of an opportunity to prove his innocence in respect of the offence for which he had already unlawfully served a term of detention in the temporary detention centre for juvenile offenders.
51.On 3 April 2006 the President of the Novosibirsk Regional Court quashed the decision of 11 April 2005. He found, firstly, that, in accordance with section 31.2(3) of the Minors Act, a judge examining a request for the placement of a minor in a temporary detention centre for juvenile offenders had the power either to grant or to reject the request. He had no power to discontinue the proceedings. Secondly, the applicant and his guardian had not been informed of the date of the hearing and had therefore been deprived of an opportunity to make submissions on the issue of the discontinuation of the proceedings.
52.On 17 April 2006 the Prosecutor of the Novosibirsk region lodged an application for supervisory review of the Regional Court’s decision of 21March 2005.
53.On 12 May 2006 the Presidium of the Novosibirsk Regional Court quashed the decision of 21 March 2005, finding that it had been adopted by an unlawful composition of judges. It remitted the case for a fresh examination on appeal.
54.On 29 May 2006 the President of the Novosibirsk Regional Court held a fresh appeal hearing and upheld the decision of 21 February 2005 ordering the applicant’s placement in the temporary detention centre for juvenile offenders. He found that the applicant had committed a delinquent act punishable under Article 163 of the Criminal Code but that no criminal proceedings had been instituted against him because he had not reached the statutory age of criminal responsibility. He belonged to a “problem family”; his parents had been deprived of parental responsibility and he was cared for by his grandfather. He played truant from school and spent most of the time on the streets or in a computer club. In those circumstances, it had been necessary, in accordance with section 22(2)(4) of the Minors Act, to place him in the temporary detention centre for juvenile offenders for thirty days to prevent him from committing further delinquent acts. The fact that the District Court had referred to “behaviour correction” as a ground for detention had not made the detention order of 21 February 2005 unlawful. The applicant’s detention had been justified by other grounds. Nor could the detention order of 21 February 2005 be quashed on account of the applicant’s frail health, given that it had already been enforced in March2005.
A.Council of Europe
77.The relevant parts of Recommendation No. R (87) 20 on social reactions to juvenile delinquency, adopted by the Committee of Ministers on 17 September 1987, state as follows.
“... Considering that young people are developing beings and in consequence all measures taken in their respect should have an educational character;
Considering that social reactions to juvenile delinquency should take account of the personality and specific needs of minors and that the latter need specialised interventions and, where appropriate, specialised treatment based in particular on the principles embodied in the United Nations Declaration of the Rights of the Child;
...
Convinced that minors must be afforded the same procedural guarantees as adults; ...
Recommends the governments of member states to review, if necessary, their legislation and practice with a view:
...
III.Proceedings against minors
4.to ensuring that minors are tried more rapidly, avoiding undue delay, so as to ensure effective educational action;
...
8.to reinforcing the legal position of minors throughout the proceedings, including the police investigation, by recognising, inter alia:
–the presumption of innocence;
–the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the state;
–the right to the presence of parents or of another legal representative who should be informed from the beginning of the proceedings;
–the right of minors to call, interrogate and confront witnesses;
...
–the right to appeal;
–the right to apply for a review of the measures ordered;
...”
78.Recommendation Rec(2003)20 of the Committee of Ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, adopted on 24 September 2003, in so far as relevant, reads as follows.
“15.Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor. ...”
79.Recommendation CM/Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures, adopted by the Committee of Ministers on 5 November 2008, provides, inter alia, as follows.
“Part I – Basic principles, scope and definitions
...
2.The sanctions or measures that may be imposed on juveniles, as well as the manner of their implementation, shall be specified by law and based on the principles of social integration and education and of the prevention of re-offending.
...
5.The imposition and implementation of sanctions or measures shall be based on the best interests of the juvenile offenders, limited by the gravity of the offences committed (principle of proportionality) and take account of their age, physical and mental well-being, development, capacities and personal circumstances (principle of individualisation) as ascertained when necessary by psychological, psychiatric or social inquiry reports.
...
7.Sanctions or measures shall not humiliate or degrade the juveniles subject to them.
8.Sanctions or measures shall not be implemented in a manner that aggravates their afflictive character or poses an undue risk of physical or mental harm.
...
10.Deprivation of liberty of a juvenile shall be a measure of last resort and imposed and implemented for the shortest period possible. Special efforts must be undertaken to avoid pre-trial detention.
...
13.Any justice system dealing with juveniles shall ensure their effective participation in the proceedings concerning the imposition as well as the implementation of sanctions or measures. Juveniles shall not have fewer legal rights and safeguards than those provided to adult offenders by the general rules of criminal procedure.
14.Any justice system dealing with juveniles shall take due account of the rights and responsibilities of the parents and legal guardians and shall as far as possible involve them in the proceedings and the execution of sanctions or measures, except if this is not in the best interests of the juvenile. ...
...
21.For the purpose of these rules:
...
21.5.’deprivation of liberty’ means any form of placement in an institution by decision of a judicial or administrative authority, from which the juvenile is not permitted to leave at will;
...
Part III – Deprivation of liberty
...
49.1.Deprivation of liberty shall be implemented only for the purpose for which it is imposed and in a manner that does not aggravate the suffering inherent to it.
...
50.1.Juveniles deprived of their liberty shall be guaranteed a variety of meaningful activities and interventions according to an individual overall plan that aims at progression through less restrictive regimes and preparation for release and reintegration into society. These activities and interventions shall foster their physical and mental health, self-respect and sense of responsibility and develop attitudes and skills that will prevent them from re-offending.
...
56.Juveniles deprived of liberty shall be sent to institutions with the least restrictive level of security to hold them safely.
57.Juveniles who are suffering from mental illness and who are to be deprived of their liberty shall be held in mental health institutions.
 ...
62.2.At admission, the following details shall be recorded immediately concerning each juvenile:
...
g.subject to the requirements of medical confidentiality, any information about the juvenile’s risk of self-harm or a health condition that is relevant to the physical and mental well-being of the juvenile or to that of others.
...
62.5.As soon as possible after admission, the juvenile shall be medically examined, a medical record shall be opened and treatment of any illness or injury shall be initiated.
...
65.2.Juveniles shall have ready access to sanitary facilities that are hygienic and respect privacy.
...
69.2.The health of juveniles deprived of their liberty shall be safeguarded according to recognised medical standards applicable to juveniles in the wider community.
 ...
73.Particular attention shall be paid to the needs of:
...
d.juveniles with physical and mental health problems;
...
77.Regime activities shall aim at education, personal and social development, vocational training, rehabilitation and preparation for release ...
...
78.3.Where it is not possible for juveniles to attend local schools or training centres outside the institution, education and training shall take place within the institution, but under the auspices of external educational and vocational training agencies.
...
78.5.Juveniles in detention shall be integrated into the educational and vocational training system of the country so that after their release they may continue their education and vocational training without difficulty.
...
81.All juveniles deprived of their liberty shall be allowed to exercise regularly for at least two hours every day, of which at least one hour shall be in the open air, if the weather permits.
...
94.1.Disciplinary procedures shall be mechanisms of last resort. Restorative conflict resolution and educational interaction with the aim of norm validation shall be given priority over formal disciplinary hearings and punishments.
...
95.1.Disciplinary punishments shall be selected, as far as possible, for their educational impact. They shall not be heavier than justified by the seriousness of the offence.
95.2.Collective punishment, corporal punishment, punishment by placing in a dark cell, and all other forms of inhuman and degrading punishment shall be prohibited.
...
Part IV – Legal advice and assistance
120.1.Juveniles and their parents or legal guardians are entitled to legal advice and assistance in all matters related to the imposition and implementation of sanctions or measures.
120.2.The competent authorities shall provide juveniles with reasonable facilities for gaining effective and confidential access to such advice and assistance, including unrestricted and unsupervised visits by legal advisors.
120.3.The state shall provide free legal aid to juveniles, their parents or legal guardians when the interests of justice so require.
...”
80.The Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, adopted by the Committee of Ministers on 17November 2010, state, in so far as relevant, the following.
“II.Definitions
For the purposes of these guidelines on child friendly justice (hereafter “the guidelines”):
...
c.’child-friendly justice’ refers to justice systems which guarantee the respect and the effective implementation of all children’s rights at the highest attainable level, bearing in mind the principles listed below and giving due consideration to the child’s level of maturity and understanding and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity.
III.Fundamental principles
...
E.Rule of law
1.The rule of law principle should apply fully to children as it does to adults.
2.Elements of due process such as the principles of legality and proportionality, the presumption of innocence, the right to a fair trial, the right to legal advice, the right to access to courts and the right to appeal, should be guaranteed for children as they are for adults and should not be minimised or denied under the pretext of the child’s best interests. This applies to all judicial and non-judicial and administrative proceedings. ...
IV.Child-friendly justice before, during and after judicial proceedings
...
19.Any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time.
...
21.Given the vulnerability of children deprived of liberty, the importance of family ties and promoting the reintegration into society, competent authorities should ensure respect and actively support the fulfilment of the rights of the child as set out in universal and European instruments. In addition to other rights, children in particular should have the right to:
...
b.receive appropriate education, vocational guidance and training, medical care, and enjoy freedom of thought, conscience and religion and access to leisure, including physical education and sport;
...
B.Child-friendly justice before judicial proceedings
...
26.Alternatives to court proceedings should guarantee an equivalent level of legal safeguards. Respect for children’s rights as described in these guidelines and in all relevant legal instruments on the rights of the child should be guaranteed to the same extent in both in-court and out-of-court proceedings.
C.Children and the police
27.Police should respect the personal rights and dignity of all children and have regard to their vulnerability, i.e. take account of their age and maturity and any special needs of those who may be under a physical or mental disability or have communication difficulties.
28.Whenever a child is apprehended by the police, the child should be informed in a manner and in language that is appropriate to his or her age and level of understanding of the reason for which he or she has been taken into custody. Children should be provided with access to a lawyer and be given the opportunity to contact their parents or a person whom they trust.
29.Save in exceptional circumstances, the parent(s) should be informed of the child’s presence in the police station, given details of the reason why the child has been taken into custody and be asked to come to the station.
30.A child who has been taken into custody should not be questioned in respect of criminal behaviour, or asked to make or sign a statement concerning such involvement, except in the presence of a lawyer or one of the child’s parents or, if no parent is available, another person whom the child trusts. ...”
B.United Nations
81.The United Nations Convention on the Rights of the Child ( adopted on 20 November 1989, 1577 UNTS 3 – “the CRC”) sets out the fundamental principle of the best interests of the child in Article 3, which reads as follows.
“1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3.States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”
82.In so far as relevant to the present case, the CRC further states as follows.
Article 23
“1.States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.
2.States Parties recognize the right of the disabled child to special care ...
...”
Article 37
“States Parties shall ensure that:
(a)No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. ...
(b)No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c)Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. ...
(d)Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
Article 40
“1.States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
2.To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
...
(b)Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i)To be presumed innocent until proven guilty according to law;
(ii)To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii)To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv)Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v)If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
...”
83.General Comment No. 9 (2006) of the Committee on the Rights of the Child (27 February 2007, UN Doc. CRC/C/GC/9), contains, inter alia, the following recommendations.
“73.In the light of article 2 States parties have the obligation to ensure that children with disabilities who are in conflict with the law (as described in article 40, paragraph1) will be protected not only by the provisions of the Convention which specifically relate to juvenile justice (arts. 40, 37 and 39) but by all other relevant provisions and guarantees contained in the Convention, for example in the area of health care and education. In addition, States parties should take where necessary specific measures to ensure that children with disabilities de facto are protected by and do benefit from the rights mentioned above.
74.With reference to the rights enshrined in article 23 and given the high level of vulnerability of children with disabilities, the Committee recommends – in addition to the general recommendation made in paragraph 73 above – that the following elements of the treatment of children with disabilities (allegedly) in conflict with the law be taken into account:
a)A child with disability who comes in conflict with the law should be interviewed using appropriate languages and otherwise dealt with by professionals such as police officers, attorneys/advocates/social workers, prosecutors and/or judges, who have received proper training in this regard;
b)Governments should develop and implement alternative measures with a variety and a flexibility that allow for an adjustment of the measure to the individual capacities and abilities of the child in order to avoid the use of judicial proceedings. Children with disabilities in conflict with the law should be dealt with as much as possible without resorting to formal/legal procedures. Such procedures should only be considered when necessary in the interest of public order. In those cases special efforts have to be made to inform the child about the juvenile justice procedure and his or her rights therein;
c)Children with disabilities in conflict with the law should not be placed in a regular juvenile detention centre by way of pre-trial detention nor by way of a punishment. Deprivation of liberty should only be applied if necessary with a view to providing the child with adequate treatment for addressing his or her problems which have resulted in the commission of a crime and the child should be placed in an institution that has the specially trained staff and other facilities to provide this specific treatment. In making such decisions the competent authority should make sure that the human rights and legal safeguards are fully respected.”
84.General Comment No. 10 (2007) of the Committee on the Rights of the Child (25 April 2007, UN Doc. CRC/C/GC/10), includes the following recommendations.
“33.... In this regard, State parties should inform the Committee in their reports in specific detail how children below the [minimum age of criminal responsibility] set in their laws are treated when they are recognized as having infringed the penal law, or are alleged as or accused of having done so, and what kinds of legal safeguards are in place to ensure that their treatment is as fair and just as that of children at or above [the minimum age of criminal responsibility].
...
49.The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States parties to determine how this assistance is provided but it should be free of charge. ...
...
52.... decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.
...
56.In line with article 14 (3) (g) of ICCPR, CRC requires that a child be not compelled to give testimony or to confess or acknowledge guilt ...
57.... The term ‘compelled’ should be interpreted in a broad manner and not be limited to physical force or other clear violations of human rights. The age of the child, the child’s development, the length of the interrogation, the child’s lack of understanding, the fear of unknown consequences or of a suggested possibility of imprisonment may lead him/her to a confession that is not true. That may become even more likely if rewards are promised such as: ‘You can go home as soon as you have given us the true story’, or lighter sanctions or release are promised.
58.The child being questioned must have access to a legal or other appropriate representative, and must be able to request the presence of his/her parent(s) during questioning. There must be independent scrutiny of the methods of interrogation to ensure that the evidence is voluntary and not coerced, given the totality of the circumstances, and is reliable. The court or other judicial body, when considering the voluntary nature and reliability of an admission or confession by a child, must take into account the age of the child, the length of custody and interrogation, and the presence of legal or other counsel, parent(s), or independent representatives of the child. ...”
85.General Comment No. 35 of the Human Rights Committee (16December 2014, UN Doc. CCPR/C/GC/35), comprises the following remarks concerning Article 9 (Liberty and security of person) of the International Covenant on Civil and Political Rights.
“28.For some categories of vulnerable persons, directly informing the person arrested is required but not sufficient. When children are arrested, notice of the arrest and the reasons for it should also be provided directly to their parents, guardians, or legal representatives. ...
...
62.Article24, paragraph 1, of the Covenant entitles every child ‘to such measures of protection as are required by his status as a minor, on the part of his family, society and the State’. That article entails the adoption of special measures to protect the personal liberty and security of every child, in addition to the measures generally required by article 9 for everyone. A child may be deprived of liberty only as a last resort and for the shortest appropriate period of time. In addition to the other requirements applicable to each category of deprivation of liberty, the best interests of the child must be a primary consideration in every decision to initiate or continue the deprivation. ... The child has a right to be heard, directly or through legal or other appropriate assistance, in relation to any decision regarding a deprivation of liberty, and the procedures employed should be child-appropriate. ...”
86.The relevant parts of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”), adopted by the General Assembly on 29 November 1985 (UN Doc. A/RES/40/33), state the following.
“5.Aims of juvenile justice
5.1The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.
...
7.Rights of juveniles
7.1Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings.
...
10.Initial contact
10.1Upon the apprehension of a juvenile, her or his parents or guardian shall be immediately notified of such apprehension, and, where such immediate notification is not possible, the parents or guardian shall be notified within the shortest possible time thereafter.
...
10.3Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the well-being of the juvenile and avoid harm to her or him, with due regard to the circumstances of the case.
...
17.Guiding principles in adjudication and disposition
17.1The disposition of the competent authority shall be guided by the following principles:
...
(b)Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;
(c)Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response;
...
Commentary
...
Rule 17.1 (b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and the future of the young person.
...
19.Least possible use of institutionalization
19.1The placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary period.
Commentary
...
Rule 19 aims at restricting institutionalization in two regards: in quantity (‘last resort’) and in time (‘minimum necessary period’). Rule 19 reflects one of the basic guiding principles of resolution 4 of the Sixth United Nations Congress: a juvenile offender should not be incarcerated unless there is no other appropriate response. ... In fact, priority should be given to ‘open’ over ‘closed’ institutions. Furthermore, any facility should be of a correctional or educational rather than of a prison type.
...
26.Objectives of institutional treatment
...
26.2Juveniles in institutions shall receive care, protection and all necessary assistance – social, educational, vocational, psychological, medical and physical – that they may require because of their age, sex and personality and in the interest of their wholesome development.
...”
87.The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“the Havana Rules”), adopted by General Assembly Resolution 45/113 of 14December 1990, include the following provisions.
“I.Fundamental perspectives
...
2.Juveniles should only be deprived of their liberty in accordance with the principles and procedures set forth in these Rules and in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). Deprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release.
...
II.Scope and application of the rules
11.For the purposes of the Rules, the following definitions should apply:
...
(b)The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.
...
IV.The management of juvenile facilities
...
B.Admission, registration, movement and transfer
21.In every place where juveniles are detained, a complete and secure record of the following information should be kept concerning each juvenile received:
...
(e)Details of known physical and mental health problems, including drug and alcohol abuse.
...
C.Classification and placement
27.As soon as possible after the moment of admission, each juvenile should be interviewed, and a psychological and social report identifying any factors relevant to the specific type and level of care and programme required by the juvenile should be prepared. This report, together with the report prepared by a medical officer who has examined the juvenile upon admission, should be forwarded to the director for purposes of determining the most appropriate placement for the juvenile within the facility and the specific type and level of care and programme required and to be pursued. ...
28.The detention of juveniles should only take place under conditions that take full account of their particular needs, status and special requirements according to their age, personality, sex and type of offence, as well as mental and physical health, and which ensure their protection from harmful influences and risk situations. The principal criterion for the separation of different categories of juveniles deprived of their liberty should be the provision of the type of care best suited to the particular needs of the individuals concerned and the protection of their physical, mental and moral integrity and well-being.
...
D.Physical environment and accommodation
31.Juveniles deprived of their liberty have the right to facilities and services that meet all the requirements of health and human dignity.
32.The design of detention facilities for juveniles and the physical environment should be in keeping with the rehabilitative aim of residential treatment, with due regard to the need of the juvenile for privacy, sensory stimuli, opportunities for association with peers and participation in sports, physical exercise and leisure-time activities. ...
...
34.Sanitary installations should be so located and of a sufficient standard to enable every juvenile to comply, as required, with their physical needs in privacy and in a clean and decent manner.
...
E.Education, vocational training and work
38.Every juvenile of compulsory school age has the right to education suited to his or her needs and abilities and designed to prepare him or her for return to society. Such education should be provided outside the detention facility in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country so that, after release, juveniles may continue their education without difficulty. ...
...
H.Medical care
49.Every juvenile shall receive adequate medical care, both preventive and remedial, including dental, ophthalmological and mental health care, as well as pharmaceutical products and special diets as medically indicated. ...
50.Every juvenile has a right to be examined by a physician immediately upon admission to a detention facility, for the purpose of recording any evidence of prior ill-treatment and identifying any physical or mental condition requiring medical attention.
51.The medical services provided to juveniles should seek to detect and should treat any physical or mental illness, substance abuse or other condition that may hinder the integration of the juvenile into society. Every detention facility for juveniles should have immediate access to adequate medical facilities and equipment appropriate to the number and requirements of its residents and staff trained in preventive health care and the handling of medical emergencies. Every juvenile who is ill, who complains of illness or who demonstrates symptoms of physical or mental difficulties, should be examined promptly by a medical officer.
52.Any medical officer who has reason to believe that the physical or mental health of a juvenile has been or will be injuriously affected by continued detention, a hunger strike or any condition of detention should report this fact immediately to the director of the detention facility in question and to the independent authority responsible for safeguarding the well-being of the juvenile.
53.A juvenile who is suffering from mental illness should be treated in a specialized institution under independent medical management. Steps should be taken, by arrangement with appropriate agencies, to ensure any necessary continuation of mental health care after release.
...
L.Disciplinary procedures
66.Any disciplinary measures and procedures should maintain the interest of safety and an ordered community life and should be consistent with the upholding of the inherent dignity of the juvenile and the fundamental objective of institutional care, namely, instilling a sense of justice, self-respect and respect for the basic rights of every person.
67.All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned. The reduction of diet and the restriction or denial of contact with family members should be prohibited for any purpose. Labour should always be viewed as an educational tool and a means of promoting the self-respect of the juvenile in preparing him or her for return to the community and should not be imposed as a disciplinary sanction. No juvenile should be sanctioned more than once for the same disciplinary infraction. Collective sanctions should be prohibited.
...”
88.The United Nations Guidelines for the Prevention of Juvenile Delinquency (“the Riyadh Guidelines”), adopted by General Assembly Resolution 45/112 of 14December 1990, include the following provision.
“46.The institutionalization of young persons should be a measure of last resort and for the minimum necessary period, and the best interests of the young person should be of paramount importance. Criteria authorizing formal intervention of this type should be strictly defined and limited to the following situations: (a) where the child or young person has suffered harm that has been inflicted by the parents or guardians; (b) where the child or young person has been sexually, physically or emotionally abused by the parents or guardians; (c) where the child or young person has been neglected, abandoned or exploited by the parents or guardians; (d) where the child or young person is threatened by physical or moral danger due to the behaviour of the parents or guardians; and (e) where a serious physical or psychological danger to the child or young person has manifested itself in his or her own behaviour and neither the parents, the guardians, the juvenile himself or herself nor non-residential community services can meet the danger by means other than institutionalization.”
89.In its Concluding Observations on the combined fourth and fifth periodic reports of the Russian Federation of 25 February 2014 (UN Doc. CRC/C/RUS/CO/4-5), the Committee on the Rights of the Child “urged the State party to establish a juvenile justice system in full compliance with the Convention, in particular Articles 37, 39 and 40, and with other relevant standards”. It further recommended that the Russian Federation “prevent the unlawful detention of children and ensure that legal safeguards are guaranteed for children detained”. Articles 37 and 40 of the CRC relates to children in conflict with the law (see paragraph 82 above) while Article 39 concerns the rights of children who are victims of crimes.

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7.The applicants are a mother and child born in 1990 and 2012 respectively.
A.Background facts
8.On 16 January 2012 the first applicant, who was in the fifth month of pregnancy, was detained by the police on suspicion of robbery.
9.On 26 January 2012 the Dzerzhynskyy District Court of Kharkiv (“the Dzerzhynskyy Court”) ordered her pre-trial detention as a preventive measure pending trial.
10.On the same date she was placed in the Kharkiv SIZO.
B.Conditions of the first applicant’s stay in the maternity hospital
11.On 22 May 2012 the first applicant was taken to Kharkiv Maternity Hospital no. 7 (“the maternity hospital”).
12.On the same date she gave birth to the second applicant. He measured 49 cm and weighed 2.9 kg.
13.Three female security officers guarded the first applicant in the hospital. According to her, they stayed on the ward at all times. The Government submitted that they had left the ward during the delivery.
14.The first applicant alleged she had been continuously shackled to her hospital bed or to a gynaecological examination chair, the only exception being during the delivery when the shackles had been removed. It is not clear from her submissions exactly how she had been shackled; on one occasion, she submitted that after the delivery she had had her foot shackled to the bed. At the same time, she submitted that the guards had only removed the shackles from her wrists for breastfeeding.
15.According to the Government, the first applicant was never handcuffed or shackled in the maternity hospital.
16.On 25 May 2012 the applicants were discharged.
17.On 12 November 2012 the first applicant wrote in a statement for the SIZO administration (see paragraphs 41 and 76) that the maternity hospital staff had treated her well, that she had not been handcuffed or shackled, and that the two female security officers who had been on her ward had been helping her take care of the baby.
18.In December 2012 and January 2013 the prosecution authorities questioned some maternity hospital staff and the security officers who had guarded the first applicant with a view to verifying her allegations, particularly as regards her shackling (see also paragraphs 76-82 below).
19.On 21 December 2012 the chief doctor of the maternity hospital wrote to the governor of the Kharkiv SIZO, in reply to an enquiry by the latter, to say that during her stay in the maternity hospital the first applicant had been guarded by SIZO officers at all times, that the officers in question had not been on the delivery ward, and that the first applicant had not been handcuffed or shackled during the delivery.
20.On 24 December 2012 the chief obstetrician, Ms Ti., gave a written statement to the prosecution authorities. She submitted that the first applicant had been shackled by the wrists to the gynaecological examination chair during her examinations both in the admissions unit and later in the obstetric unit, and that it was usual practice for detainees to be shackled and guarded by three guards.
21.Two other obstetricians, Ms F. and MsS., and a nurse, MsTo., made similar statements. Ms F. submitted that she could not remember any details regarding the second applicant’s delivery. MsTo. specified that the first applicant had not been shackled during the delivery or subsequently during breastfeeding.
22.The chief doctor of the neonatal unit MsVl. also submitted that the first applicant had been shackled to a gynaecological examination chair. Furthermore, she indicated that two guards had been staying on the ward near the applicants, with a third near the door.
23.The security officers who had guarded the first applicant denied that she had been handcuffed or shackled in hospital.
24.The applicant’s lawyer enquired with a former nurse, Ms P., about the conditions faced by women in detention during delivery, with reference to her related work experience. On 7 February 2013 MsP. wrote to him indicating that she had indeed worked as a nurse at Donetsk Regional Childcare and Maternal Health Centre from 1996 to 2005, and that in 2004 or 2005 a detained woman had been shackled to her bed during her baby’s delivery there.
C.Conditions of detention in the Kharkiv SIZO
1.Physical conditions of detention
25.While the first applicant was held in several different cells in the SIZO, her application form referred only to the conditions of her detention with her baby in cell no. 408, in which she had been held from 14 March to 8November 2012. The summary of facts below therefore only concerns that cell.
(a)The first applicant’s account
26.The cell, situated in a semi-basement, was cold and damp. There was no hot water and only an irregular supply of cold water. The first applicant therefore rarely had the opportunity to take a shower and bath her new-born son. She also had to store cold water in plastic bottles for her own use. She boiled water on a defective electric cooker in a kettle, which she had to borrow from the administration and which was provided to her for no longer than fifteen minutes each time. The toilet and shower were in a niche not separated from the living area. The toilet was often blocked. There was no baby changing table or cot in the cell.
27.The first applicant was not provided with any baby hygiene products. Nor did she receive nutrition suitable to her needs. On the days of court hearings her only meal was breakfast, which consisted of bread and tea. No packed lunches were provided to her.
28.The applicants were able to have outdoor walks of about ten minutes per day, but not every day, in a communal walking area.
29.Lastly, one of the inmates she shared with was HIV positive.
(b)The Government’s account
30.Cell no. 408 was a high-comfort cell designed for pregnant women and women with children. It was located on the ground floor, measured fifty-two square metres and could accommodate up to six people. The first applicant shared it with two or sometimes three inmates.
31.The cell had three windows measuring over eight square metres in total. There was hot and cold water, as well as a drinking water cooler with a capacity of ten litres.
32.Furthermore, there were all the necessary furniture and facilities such as air conditioning, a refrigerator, an electric stove, a baby cot and a pram. There was also a supply of nappies and hygiene products. The toilet and shower were separated from the living area.
33.The first applicant was provided with adequate nutrition in accordance with the applicable standards (the total energy value of her daily meals being 3,284 kilocalories). She received three hot meals per day with the exception of hearing days, when she missed lunch. She breastfed her son and refused the baby food provided by the SIZO. There were no restrictions on food or other parcels she received from her relatives.
34.The applicants had a daily two-hour walk in a specially designated area.
35.They never shared a cell with inmates with HIV.
36.The Government provided four colour photographs of cell no.408, showing a spacious and light room in a visually good state of repair. There were three large windows with sheer curtains. The cell had a washbasin. There was also a lavatory with a bidet and a shower cubicle, both separated from the living area by opaque glass doors. Also on the photographs were a wardrobe, two beds with bedside cabinets, a cot, a table with two stools, a baby stool, a shelf with some tableware, a microwave, a television and a baby changing table.
37.Another photograph showed a walking area for detained mothers with babies, with a flowerbed and a wall with a nature mural. The first applicant and her baby were on the photograph, as well as another woman with a pram.
(c)Other detainees’ accounts and relevant information
38.On 1 and 2 February 2012 the local sanitary and epidemiological service inspected the SIZO in the context of an unspecified investigation. It observed that there was a special cell for women with babies, with all the essential amenities. It was noted in the report that there had been no pregnant inmates or inmates with babies in the SIZO at the time of the inspection.
39.On 24 May 2012 the sanitary and epidemiological service also inspected the drinking water in the SIZO to check that it complied with the relevant standards. Noirregularities were found.
40.On 22 October 2012 the Kharkiv Regional Prosecutor’s Office informed the Agent of the Government that there had been no complaints from the first applicant regarding the conditions of detention or the second applicant’s medical care in the SIZO.
41.On 12 November 2012 the first applicant wrote a statement giving a detailed description of her cell in the SIZO similar to that submitted by the Government (see paragraphs 30-37 above). The last paragraph also concerned her stay in the maternity hospital (see paragraph17 above).
42.On 13 November 2012 one of the SIZO staff wrote to the State Prisons Service to say that the first applicant’s statement had been made freely.
43.During her detention in the Kharkiv SIZO the first applicant received about thirty food parcels from her mother, often with basic foodstuffs such as bread, butter, tea, sugar and milk.
44.The first applicant lodged numerous requests for release with the trial court dealing with her criminal case, subject to an undertaking not to abscond (dated 6 July, 6, 26 and 31 August, 3September and 9October 2012). She alleged, in particular, that the conditions in the SIZO were not adequate for her baby. The court rejected those requests.
45.The applicants’ case received some media coverage. For example, in November 2012 the article “Baby as a victim of inhuman treatment” was published online by the Kharkiv Human Rights Group. In December 2012 a television programme was broadcast, in which the first applicant and the State authorities gave accounts, particularly as regards the conditions of the applicants’ detention in the SIZO. The parties did not submit to the Court a copy of the relevant article or video footage or a transcript of the television programme.
46.On 12 December 2012 one of the detainees, Ms B., wrote a statement addressed to the head of the local department of the State Prisons Service. She submitted that in November 2012 she had been held in the same cell as the first applicant and had been satisfied with the conditions of detention there. It was noted in the statement that there had been large windows in the cell, a shower cubicle with hot and cold water and all the necessary furniture and appliances, including a refrigerator and a television.
47.On 19 December 2012 the Kharkiv Regional Department of the State Prisons Service issued a memorandum stating that the first applicant had not submitted any complaints during her detention in the Kharkiv SIZO.
48.The case file contains three statements by detainee MsM. concerning the conditions of detention in the SIZO. She wrote two of them while detained there (on an unspecified date and on 25December 2012), and a third on 30 January 2013 when she had already begun serving her prison sentence elsewhere. In the first two statements Ms M. described the conditions of her detention in cell no. 408 as quite satisfactory and comfortable. Her account was similar to that given by the Government (see paragraphs 30-32 above). The first two statements also contained critical remarks regarding the first applicant claiming, in particular, that she had displayed a careless attitude towards her baby and had acted in bad faith in applying to the Court. In her third statement, Ms M. stated that the food in the SIZO had been poor. More specifically, the bread had been stale and the meat had been tinged blue. She also submitted that there had been no hot water in cell no.408. Lastly, she submitted that on two occasions she had witnessed the first applicant requesting medical care for her baby when he had had stomachache, but her requests had been ignored.
49.On 28 December 2012 a former detainee, Ms Sa., wrote a statement for the first applicant’s lawyer and had it certified by a notary. She stated that she had shared cell no.408 with the first applicant from an unspecified date in March to 19April 2012. Ms Sa. had been pregnant at the time. She described the conditions of their detention as follows. The cell was located in a semi-basement and inmates saw practically no daylight. The windows were so high that they could not be opened without the assistance of a guard. There were about seven inmates in the cell, some of them with HIV and some suffering from other illnesses. The toilet was separated from the living area by a waist-high wall and leaked. As a result, there was always a bad smell. The shower also leaked and the cubicle door was broken. It was so humid in the cell that the plaster had fallen off the ceiling and the walls were covered in mould. The cell was infested with mice and lice. There were no household appliances like a kettle or microwave. Nor were there any beds or bedside cabinets as shown by the State Prisons Service on television (see paragraph 45 above). Ms Sa. specified that in fact none of the detainees had ever been held in the cell presented by the authorities on television. There was no hot water and the pressure in the cold water taps was so low that inmates had to store water for their own use. Furthermore, the SIZO administration did not provide them with any tableware. Their daily walk lasted only twenty minutes and took place in a small walking area covered with bars. Furthermore, according to Ms Sa., the food in the SIZO was neither fresh nor tasty. Lastly, she stated that she had been shackled to her bed when undergoing some treatment in the maternity hospital in Kharkiv while pregnant.
50.On an unspecified date Ms Ve., who had also shared cell no.408 with the first applicant (the exact period is unknown), wrote a statement about the conditions of detention there. Her description was similar to that given by Ms Sa. as regards the leaking toilet, high humidity levels, lack of hot water and irregular supply of cold water, as well as the duration and conditions of the daily outdoor walks and poor nutrition.
2.Medical care for the second applicant
51.On 25 May 2012 the applicants were discharged from the maternity hospital. The second applicant was found to be in good health.
52.According to a letter from its chief doctor to the first applicant’s lawyer dated 12 December 2012, on 25 May 2012 the second applicant was transferred to Children’s Hospital no. 19 (“the children’s hospital”). All the other relevant documents in the case file indicate that on 25May 2012 both applicants were taken to the Kharkiv SIZO.
53.As submitted by the first applicant and noted in a letter by the chief doctor of the children’s hospital to the first applicant’s lawyer dated 6September 2012, a paediatrician from that hospital had examined the second applicant on 28May 2012. The baby was found to be in good health but to have phimosis (a condition of the penis where the foreskin cannot be fully retracted).
54.However, according to the second applicant’s medical file kept by the SIZO, the first time a paediatrician of the children’s hospital examined him was on 31May 2012. He was found to be in an adaptation period and the first applicant received advice regarding childcare.
55.According to the second applicant’s medical file, on 12June 2012 he was examined again by a paediatrician, who diagnosed him with intestinal colic and recommended Espumisan, massage, feeding on demand and outdoor walks. The doctor also suspected that the boy had a patent (open) foramen ovale (PFO; the foramen ovale allows blood circulation in the fetal heart and closes in most individuals at birth).
56.The second applicant’s next medical examination appears to have taken place on 20 July 2012. It was noted in his medical file that the paediatrician had given advice to the first applicant regarding feeding and care.
57.The first applicant denied that any of the examinations following that on 28 May 2012 had taken place. She alleged that her baby had not been examined by a paediatrician until 10 September 2012. She submitted that the records of her son’s earlier examinations in the medical file had been forged. According to her, the first page of that book referred to an examination on 10 September 2012, whereas the records of his earlier examinations had been written on separate pages and subsequently glued into the file. The case file as it stands before the Court contains a separate copy of each page of the file, which makes it impossible to verify the first applicant’s allegation.
58.On 28 August 2012 the first applicant’s lawyer asked the Kharkiv SIZO administration to provide him with details of when the second applicant had been examined by a paediatrician and whether the conditions of detention had been appropriate for such a small baby. He also requested copies of the relevant documents.
59.On 4 September 2012 the SIZO administration replied that it would be able to provide comprehensive information on the second applicant’s health after a complete medical examination in the children’s hospital, which was due to take place.
60.On 31 August 2012 the first applicant asked the judge dealing with her case to order a medical examination of her son “given that the SIZO administration [was] ignoring her requests to that effect”. It appears that her request was rejected.
61.On 6 September 2012 the chief doctor of the children’s hospital wrote to the first applicant’s lawyer in reply to an enquiry by him dated 5September 2012. He said that with no paediatrician at the Kharkiv SIZO, a paediatrician from that hospital monitored babies born there. He also indicated that the second applicant had been examined by the hospital paediatrician on 28 May 2012 (see also paragraph 53 above). In so far as the lawyer enquired about the baby’s medical condition at the material time, the chief doctor stated that it was impossible to provide him with such information because the first applicant had not requested any medical care for him until then.
62.On 10 September 2012 a dermatologist, cardiologist, ear, nose and throat specialist, neurologist and paediatrician all examined the second applicant. He was found to have allergic dermatitis, dysplastic cardiomyopathy and phimosis. Furthermore, the patent foramen ovale diagnosis had been called into question (see paragraph 55 above). The doctors concluded that the second applicant did not require any medical treatment, but recommended that the mother follow a hypoallergenic diet.
63.According to the first applicant, the examination was carried out in the context of custody proceedings initiated by the second applicant’s stepfather. She specified that it had been done with her consent so that the second applicant could be taken from the SIZO, where he was not receiving adequate care.
64.On 14September 2012 the SIZO sent a copy of the second applicant’s medical file to the applicants’ representative, further to a request made by him on 28August 2012 (see paragraph 58 above).
65.On 18 October 2012 the chief doctor of the children’s hospital wrote to the first applicant’s lawyer, in reply to an enquiry made on 10October 2012, to say that hospital was in charge of the medical supervision of children in the Kharkiv SIZO where needed, subject to the SIZO administration making the relevant application. It was also noted that the second applicant required an additional examination in the regional cardiology centre, and that the children’s hospital had already requested the SIZO administration’s cooperation in that regard.
66.On 19 October 2012 a paediatrician and a cardiologist examined the second applicant again. He was diagnosed with a patent foramen ovale (a heart condition, see paragraph 55 above for further details) and an additional examination was recommended.
67.On the same date the second applicant underwent an echocardiogram and was found to be healthy.
68.On 14 November 2012 the first applicant refused to allow her son to undergo a paediatrician examination, which she had been offered.
69.The following day the first applicant was released (see also paragraph75 below).
70.On 30 November 2012 the first applicant’s lawyer enquired with the children’s hospital whether it had kept a medical file in respect of the second applicant and whether he had been vaccinated during his stay with the first applicant in the SIZO.
71.On 4 December 2012 the chief doctor replied that the children’s hospital provided medical care to children residing permanently in its catchment area. As regards children residing there temporarily, a written application by one of the parents was required. The first applicant had never submitted such an application. Accordingly, the hospital had not opened a medical file in respect of the second applicant. At the same time, its doctors had examined him when requested by the SIZO administration. The results of each examination had been reflected in the medical file provided by the SIZO. In so far as the second applicant’s vaccinations were concerned, it was noted that he had always been brought for examinations without his mother, and without her consent no vaccinations had been given.
D.The first applicant’s placement in a metal cage during court hearings
72.On 12 April, 17 May, 15 June, 2 and 31 August and 15November 2012 the first applicant participated in court hearings, during which she was held in a metal cage. Her requests not to be placed in a cage were rejected.
73.On 14 March 2013 the judge of the Dzerzhynskyy Court, who had been in charge of the first applicant’s case, wrote to the Agent of the Government, in reply to the latter’s request, to say that the first applicant had indeed been held in a metal cage in the courtroom during hearings. The judge emphasised that it was a legal requirement to place criminal defendants in a metal cage and there were no exceptions to this rule. Furthermore, he considered that allowing the first applicant to remain outside the cage in the courtroom would have been equal to her temporary release, contrary to the custodial preventive measure applied.
74.On 15 March 2013 the Ministry of the Interior confirmed once again to the Agent of the Government that the first applicant had been held in a metal cage in the courtroom during hearings. It further specified that the second applicant had remained with the SIZO medical specialist outside the cage and had been passed to her for breastfeeding when requested.
E.The first applicant’s complaints after her release and their investigation
75.On 15 November 2012 the first applicant was released on an undertaking not to abscond.
76.On 25 December 2012 she complained to the Kharkiv Regional Prosecutor’s Office that she had been shackled to her bed in the maternity hospital at all times, including during the delivery. She also complained that the conditions of detention and nutrition in the SIZO had been inadequate. Lastly, the first applicant alleged that the statement she had written on 12November 2012 expressing her satisfaction with the conditions of detention had been made under psychological pressure (see paragraphs 17 and 41 above).
77.On 27 December 2012 the State Prisons Service completed the internal investigation it had undertaken following the media coverage of the applicants’ case (see paragraph 45 above). The first applicant’s allegations were dismissed as unsubstantiated.
78.On 2 January 2013 the first applicant complained to the Kharkiv Zhovtnevyy District Prosecutor’s Office (“the Zhovtnevyy Prosecutor’s Office”) that she had not been provided with adequate medical care during her pregnancy and the delivery; that she had been shackled by her wrists and feet to a gynaecological examination chair or her bed in the maternity hospital at all times, including during the delivery; that the conditions of her detention in the Kharkiv SIZO had been poor; and that neither she nor her baby had received adequate medical care there. On the same date her complaint was registered in the Integrated Register of Pre-trial Investigations and the investigation was started.
79.On 18 January 2013 the Zhovtnevyy Prosecutor’s Office ordered a forensic medical examination of the case material with a view to establishing: (i)whether the first applicant had any injuries and, if so, how they had been caused; (ii) whether there was any forensic medical evidence that the first applicant had been handcuffed or shackled between 26January and 15November 2012; (iii)whether there was any forensic medical evidence that the applicants had not been provided with adequate or sufficient medical care in the Kharkiv SIZO; (iv) whether there was any forensic medical evidence that the applicants had not been provided with adequate or sufficient medical care in the maternity hospital; and (v) if the applicants had not received adequate or sufficient medical care, whether this had had any negative impact on their health.
80.The aforementioned examination continued from 18January to 26March 2013. The answers in the report to all five questions were negative.
81.On 1 April 2013 the Zhovtnevyy Prosecutor’s Office discontinued the criminal investigation for lack of evidence of a criminal offence.
82.Also in April 2013 the State Prisons Service, following an enquiry by the Government’s Agent, undertook an internal investigation as regards the lawfulness of the second applicant’s detention in the SIZO. On 22April 2013 it was completed, with the conclusion that there had been no violation. It was noted in the report that, although in August2012 the first applicant had verbally expressed her intention to transfer the custody of her baby to her mother, she had later changed her mind as she had been breastfeeding.
A.United Nations documents
89.The relevant provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (1979) read as follows:
Article 12
“... States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”
90.The Convention on the Rights of the Child (1989) provides, in so far as relevant:
Preamble
“... Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children,
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’,
...”
Article 3
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being ...”
91.The relevant parts of the Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (2011) read as follows:
“The General Assembly,
...
Recalling further its resolution 58/183 of 22 December 2003, in which it invited Governments, relevant international and regional bodies, national human rights institutions and non-governmental organizations to devote increased attention to the issue of women in prison, including the children of women in prison, with a view to identifying the key problems and the ways in which they can be addressed ...”
Rule 33
“...
3. Where children are allowed to stay with their mothers in prison, awareness‑raising on child development and basic training on the health care of children shall also be provided to prison staff, in order for them to respond appropriately in times of need and emergencies.
...”
Rule 48
“1. Pregnant or breastfeeding women prisoners shall receive advice on their health and diet under a programme to be drawn up and monitored by a qualified health practitioner. Adequate and timely food, a healthy environment and regular exercise opportunities shall be provided free of charge for pregnant women, babies, children and breastfeeding mothers.
2. Women prisoners shall not be discouraged from breastfeeding their children, unless there are specific health reasons to do so.
3. The medical and nutritional needs of women prisoners who have recently given birth, but whose babies are not with them in prison, shall be included in treatment programmes.”
Rule 49
“Decisions to allow children to stay with their mothers in prison shall be based on the best interests of the children. Children in prison with their mothers shall never be treated as prisoners.”
Rule 50
“Women prisoners whose children are in prison with them shall be provided with the maximum possible opportunities to spend time with their children.”
Rule 51
“1. Children living with their mothers in prison shall be provided with ongoing health-care services and their development shall be monitored by specialists, in collaboration with community health services.
2. The environment provided for such children’s upbringing shall be as close as possible to that of a child outside prison.”
92.According to the recommendations of the World Health Organisation (“theWHO”) which were adopted following its Joint Interregional Conference on Appropriate Technology for Birth (Fortaleza, Brazil, 22-26April 1985), the healthy newborn must remain with the mother whenever both their conditions permit it. The WHO recommendations on postnatal care of the mother and newborn 2013 also state that the mother and baby should not be separated and should stay in the same room 24 hours a day.
B.Council of Europe documents
93.The Committee for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment (CPT) Standards (document no.CPT/Inf/E (2002) 1 - Rev. 2015, p. 45) contain the following relevant provisions:
Health care services in prisons
Extract from the 3rd General Report [CPT/Inf (93) 12]
“64. Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.
i) mother and child
65. It is a generally accepted principle that children should not be born in prison, and the CPT’s experience is that this principle is respected.
66. A mother and child should be allowed to stay together for at least a certain period of time. If the mother and child are together in prison, they should be placed in conditions providing them with the equivalent of a creche and the support of staff specialised in post-natal care and nursery nursing. ...”
VI. Women deprived of their liberty
Extract from the 10th General Report [CPT/Inf (2000) 13]
Ante natal and post-natal care
“26. Every effort should be made to meet the specific dietary needs of pregnant women prisoners, who should be offered a high protein diet, rich in fresh fruit and vegetables.
27. It is axiomatic that babies should not be born in prison, and the usual practice in Council of Europe member States seems to be, at an appropriate moment, to transfer pregnant women prisoners to outside hospitals.
Nevertheless, from time to time, the CPT encounters examples of pregnant women being shackled or otherwise restrained to beds or other items of furniture during gynaecological examinations and/or delivery. Such an approach is completely unacceptable, and could certainly be qualified as inhuman and degrading treatment. Other means of meeting security needs can and should be found.
28. Many women in prison are primary carers for children or others, whose welfare may be adversely affected by their imprisonment.
One particularly problematic issue in this context is whether - and, if so, for how long - it should be possible for babies and young children to remain in prison with their mothers. This is a difficult question to answer given that, on the one hand, prisons clearly do not provide an appropriate environment for babies and young children while, on the other hand, the forcible separation of mothers and infants is highly undesirable.
29. In the view of the CPT, the governing principle in all cases must be the welfare of the child. This implies in particular that any ante and post-natal care provided in custody should be equivalent to that available in the outside community. Where babies and young children are held in custodial settings, their treatment should be supervised by specialists in social work and child development. The goal should be to produce a child-centred environment, free from the visible trappings of incarceration, such as uniforms and jangling keys.
Arrangements should also be made to ensure that the movement and cognitive skills of babies held in prison develop normally. In particular, they should have adequate play and exercise facilities within the prison and, wherever possible, the opportunity to leave the establishment and experience ordinary life outside its walls.
Facilitating child-minding by family members outside the establishment can also help to ensure that the burden of child-rearing is shared (for example, by the child’s father). Where this is not possible, consideration should be given to providing access to creche-type facilities. Such arrangements can enable women prisoners to participate in work and other activities inside the prison to a greater extent than might otherwise be possible.”
94.The Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 29 November to 6 December 2011 (CPT/Inf (2012) 30) reads as follows:
“43. The delegation gained a generally positive impression of the material conditions in the units for juveniles at the [SIZO] in ... Kharkiv.
However, conditions of detention were quite simply appalling in many of the other detention units of the [SIZO]. Numerous cells were in a poor state of repair and had only very limited access to natural light. In addition, the CPT is concerned about the severe overcrowding observed in a number of detention units of [the establishment]. At the time of the visit, the [...] Kharkiv SIZO [was accommodating] 3,415 prisoners (official capacity: 2,808 places).”

***

8.The first applicant was born in 1992, the second applicant in 1995, and the third applicant in 1993. They are female and reside in Latvia.
9.The relevant facts of the case as submitted by the parties and emerging from the documents furnished to the Court may be summarised as follows.
10.From a young age the applicants trained in modern pentathlon. In 2007 they enrolled in a State sports school in Riga.
11.According to their submission, the first and third applicants commenced training with the sports school’s coach O.B. in summer 2008 and the second applicant was coached by him during the summer of 2009.
12.In addition to the above-mentioned training, O.B. organised sports summer camps on the school’s campus, which the first and third applicants attended in 2008 and all the applicants attended in 2009.
13.At the time of the events in issue, the applicants were under eighteen years of age.
A.The investigation into the applicants’ allegations
1.Opening of the investigation
14.On 4 January 2010 the mother of the first and second applicants submitted a complaint to the State police alleging that the coach, O.B., had sexually abused her daughters.
15.The same day the police opened a criminal investigation under section 162 of the Criminal Law (Krimināllikums) (sexual abuse (pavešana netiklībā)) with respect to the period between summer 2008 and September2009.
16.In the course of investigation the police took statements from various individuals, including the applicants and their parents, and O.B.’s former students and their parents.
2.Police investigation
(a)Statement made by the first and second applicants’ mother
17.On 4 January 2010 the mother stated that she had learnt from her daughters that O.B. had requested that after training they attend the sauna fully undressed. The coach had explained that wearing clothes was unhealthy. The second applicant had refused. However, other girls between thirteen and sixteen years of age, including the first applicant, had attended the sauna naked. The mother named the girls who had attended the sauna naked.
18.On one occasion when the second applicant had been in the sauna half-undressed, O.B. had entered the sauna and had told her that she was still little, thereby embarrassing her.
19.On another occasion, after the sauna O.B. had massaged the first applicant while touching her intimate body parts.
20.He had furthermore watched the girls changing and had touched their intimate body parts.
21.The first and second applicants’ mother submitted with regard to the third applicant that she had travelled with O.B. to a competition in Lithuania, where he had pressurised her to share the same bed. The third applicant however had refused.
(b)The applicants’ statements
22.On 5 and 14 January 2010 the police took statements from the three applicants, who were granted the status of injured parties in the proceedings. The police took an additional statement from the third applicant on 1April2010 and from the second applicant on 6 April 2010.
(i)Sauna and massages
23.The applicants stated that the sauna sessions took place after training around twice a week. The second applicant had attended the sauna only twice.
24.Having arrived for the sauna, the first and second applicants had seen the other girls undressing fully. The other girls had told that it had been O.B.’s request that the sauna be attended naked. O.B. had said that it was very healthy to attend the sauna in that way.
25.At the beginning, the first applicant had felt shy. Yet, as she had seen the other girls attending the sauna naked, she had started doing so. For the same reason, the third applicant had also started going to the sauna naked.
26.The second applicant had removed only the top part of her swimsuit and had entered the sauna. Suddenly O.B., wearing shorts and a cap, had entered, which had startled the second applicant. She therefore had covered herself with her hands, to which O.B. had reacted by telling the other girls to look at how little she still was and saying that the other girls were already grown up and therefore naked. The second time, she had attended the sauna wrapped in a towel.
27.According to the applicants’ account, even though girls had been in the sauna naked, O.B. – dressed in shorts – had come in and massaged them using a special bath brush (a birch “besom” for a steam bath, used to swat or massage the body during a steam-bath procedure). Although the second applicant had refused that massage, she had witnessed O.B. asking the other girls to lie on their back and then massaging them. The second applicant had seen O.B. telling the third applicant to go to the sauna, and that he would come to massage her. The third applicant had listened to him. The second applicant stated as follows:
“... when [O.B.] was massaging [the girls] in the sauna, he did not touch [their] intimate body parts, [he] touched [their] bodies only with the bath brush, [he] did not touch [them] with [his] hands.”
28.The second applicant had told the other girls that the above‑mentioned practice was not normal. However, they had responded that, as it had been requested by the coach, it had to be complied with. The first and third applicants stated that O.B. had been their trainer and teacher, whom they had to obey. The second applicant, however, considered that there had been a possibility to refuse. To her mind the other girls had attended the sauna as they had not wished to disobey O.B. They had practically worshipped him, and had listened to everything he said.
29.From the documents furnished to the Court it appears that the applicants gave the police the names of the other girls who had attended the sauna, A.F., A.B. – who appears to have been a relative of O.B. – and V.A. The third applicant indicated that V.A. had rarely been to the sauna. According to the second applicant’s account, there had been another girl, K.D.
30.The first applicant also recounted an occasion when she had experienced pain in her leg. O.B. had told her that he would give a massage and after the sauna had laid her on a bed and massaged her while she had been wearing only underpants. O.B. had touched the lower part of her stomach.
(ii)Changing room
31.The applicants stated that there had been times when O.B. had entered the girls’ changing room as if looking for someone. When passing by them he had – as if accidently – touched the girls’ intimate body parts. The second applicant stated that he had also tried to touch her, which she had prevented.
(iii)Trip to Lithuania
32.The first applicant stated that she had heard that in November 2009 the third applicant and some boys had travelled with O.B. to a competition in Lithuania. There he had told the third applicant that she would sleep with him in the same bed. The third applicant had gone to a separate bed to sleep and O.B., while drunk, had entered the room and had pulled at the children’s legs, including those of the third applicant.
33.The third applicant also gave evidence regarding the trip to Lithuania with O.B. and the other two boys, whose names she provided.
34.At a hotel O.B. had told her that she would sleep with him in the same bed. She had spoken to one of the boys and had taken one of the single beds. At around 10 p.m. O.B. had returned to the hotel room drunk. After some time he had gone to sleep. The third applicant had felt afraid that O.B. might do something bad to her.
35.During all three days of the competition, O.B. had consumed alcohol, even though he had also been driving a vehicle.
(c)Psychologist’s report
36.In April and May 2010 the police ordered a psychologist’s report regarding the applicants.
37.During the psychologist’s examination the first applicant commented that she had been surprised that the sauna had to be attended and that girls had attended it naked and that O.B. would enter and massage them with a besom, which had not seemed normal and had been unpleasant. However, the first applicant had felt afraid to tell her parents. O.B. had often touched her body, putting his arm around her waist, sitting her on his lap and hugging her, and also during massages. On one occasion during a massage he had touched her between her legs. The first applicant had been confused as to whether the coach’s behaviour had been normal or bad. She had not wished to tell O.B. anything bad as he had helped her a lot. However, at the workplace he had almost always been under the influence of alcohol. When any of the girls had not wished to sit on his lap, he would use force to pull them down.
38.The second applicant likewise told the psychologist that she had been very surprised about all the girls attending the sauna naked and O.B. entering and massaging them with a besom. She had tried to persuade the girls that it was not normal and had gone to the sauna dressed in a swimsuit. O.B. had ridiculed her about it in front of the other girls, saying that she was so shy because she was little. Also, the coach had always been trying to touch her, and to put his arm around her waist. It had been unpleasant and she had tried to avoid him. The second applicant had gone to the sauna twice. She had gradually started telling her parents about O.B.’s behaviour.
39.The third applicant did not wish to speak about the events in issue. Thoughts about O.B.’s behaviour caused negative emotions in her and she was trying to forget it. She confirmed her earlier testimonies. The psychologist noted her statements to the police of 14 January and 1April2010. Concerning the sauna sessions, the third applicant had not found it normal that the sauna needed to be attended naked. However, she had started doing the same as the other students. The report referred to the applicant’s character report from her previous school, which stated that on 1September2009 the applicant had been observed in a tense condition, unwilling to participate in extracurricular activities, in low spirits and suffering from loss of concentration. Suddenly in the mid-December 2009 she had decided to change school.
40.According to the psychologist’s report, the three applicants had been able to understand the nature and meaning of actions directed towards them.
41.However, the first applicant’s ability to object could have been diminished due to personality traits such as a difficulty in saying “no” and in objecting, especially to older persons, and the wish to avoid conflict situations and to maintain a friendly relationship with everyone. The third applicant’s ability to resist could have been diminished by personality traits such as a difficulty in expressing her own opinion where it contradicted the expectations of others, in assessing her own attitude and feelings with regard to events, judging what is right and what is not, an insecurity in communication, and the wish to avoid conflict situations and to maintain a friendly relationship with everyone. With regard to the second applicant, the psychologist’s report stated that she had been able to exhibit resistance appropriate to the situation.
42.The report noted that the events in issue had caused the first applicant unpleasant feelings, insecurity, and anger and had made her distrustful in her communication with other coaches and with older men. With regard to the second applicant the report stated that she had retained anger, and had felt offended and guilty. The third applicant had been in low spirits, unable to concentrate, tense, and unwilling to participate in extracurricular activities, but this had lessened over time. She had felt offended. She still retained shame, anger, unpleasant thoughts and memories about the coach’s conduct.
43.The report concluded that the alleged conduct of the coach had not caused the applicants to suffer psychological trauma. Owing to their psychological condition, however, the applicants’ participation in a trial or confrontation was not recommended.
(d)The coach, O.B.
44.On 27 January 2010 the police apprehended and questioned O.B. as a suspect.
45.According to O.B., girls had entered the sauna either wrapped in towels or wearing swimsuits. He had not entered the sauna with naked girls. They had exited the sauna dressed. O.B. would ask a particular child whether they required a massage. If the child responded in affirmative he would enter the sauna and massage the child with a besom.
46.In the sauna O.B. had massaged the first and third applicants at their request. He continued that during the massage they had been fully naked. No complaints however had been made. He had massaged by first lifting up one or both legs and massaging them and had then moved on to massage their arms. He had not touched the girls’ intimate body parts. He had known that touching breasts during massage was unhealthy. He had not known how it had come about that girls had been in the sauna naked. He had not told them that they needed to attend the sauna in that way.
47.O.B. stated that in summer 2009 he had massaged the first applicant on her hip muscle. It had been hurting and she had asked him to massage it.
48.On 29 January 2010 the police released O.B. subject to his not changing his place of residence and complying with a prohibition on approaching the applicants or the sports school.
(e)Third applicant’s mother
49.On 21 January 2010 the mother of the third applicant gave evidence. In September 2009 her daughter had told her that girls attended the sauna naked together with O.B., who himself had been dressed in shorts. She had also mentioned a trip to Lithuania during which O.B. had touched her leg and she had run into the bathroom.
(f)O.B.’s students and their parents
50.Of the other students mentioned by the applicants, it appears that the police interviewed V.A. on 14 January 2010 and her mother on 19January 2010. Also, K.D.’s statement was taken on 13August 2010 and her mother’s had been taken on 1 February 2010.
51.In particular, V.A. stated that she did not like the sauna. She had attended it only twice. Girls had attended the sauna naked and O.B. had massaged them. She had had good relations with O.B. According to V.A.’s mother, V.A. did not like the sauna in principle and it was unlikely that she had often attended it.
52.According to K.D.’s account of events, she had trained with O.B. until 2008. He had been a good coach (the copy of K.D.’s statement furnished to the Court by the Government in some parts was illegible). At a sports camp in summer 2005 her mother had gone into the sauna together with the girls. K.D. had told her that, as a sports doctor, O.B. would usually massage them. The mother had asked her: “...but how, naked?” Her daughter had replied that they would cover their bodies up with towels. Therefore the mother had understood that O.B. had not massaged them naked.
53.With regard to the other students referred to by the applicants, the police interviewed the mother of A.F. on 15 January 2010. The latter stated that her daughter had not paid any attention to attending the sauna naked as she had trained with O.B. from a young age. She had seen the other girls undressing for the sauna and had followed their example. A.F. had stated that the coach had not harassed them. In the view of A.F.’s mother, O.B. should not have allowed the girls to attend the sauna undressed and should have informed the parents. She stated that she would allow A.F. to be questioned only on a prosecutor’s authorisation.
54.On 25 January 2010, the police questioned D.B. – who had been referred to by the first and second applicants’ mother – and D.B.’s mother. D.B. had trained with O.B. between 2005 and 2008. From a copy of D.B.’s statement furnished to the Court by the Government it appears that she stated:
“... at the beginning [students] were going to the sauna in swimsuits, but [O.B.] said that [they] should not be shy and should attend the sauna without swimsuits in order for the body to relax fully. [D.B.] had started to take massages naked, as had the other girls.”
D.B. had not found it inappropriate, because the coach had entered the sauna only in order to demonstrate how to massage using a besom. Neither D.B. nor her mother had any complaints to lodge against him.
55.Between January and August 2010 the police also took other statements.
56.It emerges that the police interviewed a parent of one of O.B.’s students at the time of the investigation; specifically, on 3 February 2010 they questioned A.K., whose son, V.K., trained with O.B. He did not have any complaints concerning the coach and did not know any details about the situation in issue.
57.The police also questioned numerous former students of the coach. On 28 January 2010 J.R. gave evidence that she had been coached by O.B. until 2004. She described him positively. With regard to O.B.’s massaging naked girls in the sauna, she believed that he had done it through ignorance or a lack of understanding about the situation. But at the same time, he had done it in order to prepare aspiring athletes. She did not believe that he had had a sexual purpose. Parents of O.B.’s former students, J.P., J.A., and I.S.H., and also N.I. – who had herself trained with O.B. between 1991 and 1992 – described O.B. as a very good coach. I.S.H. had learnt from her son that boys had taken sauna massages wearing swimming trunks. Two other former students of O.B., A.D. – coached between 1994 and 2001 – and J.M., described O.B. as a very good coach.
(g)Other witnesses
58.On 1 February 2010 the doctor L.G. submitted evidence that the sauna was one of the most important renewal procedures after training. However, if a male was present in the sauna together with girls, it was recommended that they all wear swimwear.
3.Closure of the investigation
59.On 18 October 2010 the investigator, T.M., terminated the investigation.
60.In her decision T.M. cited the evidence collected. She concluded that the investigation had revealed that the sauna sessions had been voluntary. Girls had attended the sauna fully undressed, either on their own initiative or because that had been the practice by others. As explained by O.B., sauna sessions were healthy and necessary after training. He had massaged students at their request. During massages they had been undressed but O.B. had had no interest in the girls. He had merely assisted with the massages.
61.T.M. could not establish that O.B. had acted with a sexual purpose, an element required under section 162 of the Criminal Law (sexual abuse). For that reason and referring to the principle of in dubio pro reo T.M. closed the investigation against O.B. for the lack of elements of crime.
4.First-level prosecution review
(a)Appeal against closure of the investigation
62.On 29 October 2010 the applicants’ parents appealed to the prosecutor’s office against the termination decision. In November2010 they supplemented the appeal.
63.They claimed that the applicants’ allegations had been ignored. The first applicant had indicated that O.B. had touched her intimate body parts; according to the second applicant, O.B. had ridiculed her in front of the other girls with regard to undressing in sauna; and the third applicant had recounted her experience in Lithuania. The allegation that O.B. had entered the changing rooms had not been addressed.
64.Contrary to the parents’ request, the students who had travelled to Lithuania together with O.B. and the third applicant had not been questioned. The statements of children present in the sauna had not been taken.
65.The parents contended that their reference to a recognised trainer who maintained that sauna sessions harmed the health of athletes under the age of eighteen had been neglected. They named a witness in that regard and asked that a statement be taken from him. They also requested that the first applicant’s current coach and the school psychologist be interviewed.
66.They furnished the report by the psychologist, K.V., to the effect that the first and second applicants had suffered psychological trauma. The appeal therefore sought the commissioning of another expert report.
(b)Appeal decision
67.On 1 December 2010 the prosecutor I.G. dismissed the appeal.
68.She reasoned that the applicants had been questioned thoroughly. Sixteen of O.B.’s former students, and their parents had been interviewed, as had two further witnesses as regards the usefulness of sauna.
69.Endorsing the investigator’s conclusion, I.G. stated that the investigation had not shown that O.B. had acted with a sexual purpose. All the witnesses had stated that O.B. had never touched students’ naked body parts other than with a besom and when massaging parts causing pain. Accordingly, the elements of crime under section 162 of the Criminal Law (sexual abuse) were not present. Nor could the elements under section 174 of the Law (cruelty and violence against a minor) be identified. None of O.B.’s students had stated that O.B. had treated his students in a cruel or violent way. The phrase he had used [with regard to the second applicant] had not reached that threshold.
70.I.G. dismissed the parents’ requests that further evidence be collected. Likewise, the report of the psychologist, K.V. concerning the first and second applicants could not be included in the investigation file as it had already been closed.
5.Second-level prosecution review
(a)Appeal to a higher prosecutor
71.On 13 December 2010 the applicants’ parents appealed against the aforementioned decision to a higher prosecutor. In January 2011 they supplemented the appeal.
72.They disputed the conclusion that the element of a sexual purpose had not been present. In particular, they noted that according to the first applicant O.B. had touched the lower part of her stomach, the area between her legs, and her breasts during massages. The second applicant had told of O.B. ridiculing her in front of the other girls regarding undressing for the sauna. The third applicant’s account regarding the events in Lithuania had been ignored and other students who had been present on the trip to Lithuania had not been interviewed. No consideration had been given to the allegation of O.B. entering changing rooms and, as if by accident, touching girls’ breasts.
73.The appeal referred to the report by the psychologist, K.V., stating that the first applicant exhibited symptoms associated with violence or serious psychological trauma.
(b)Higher prosecutor’s decision
74.On 14 January 2011 the higher prosecutor, E.B., dismissed the appeal.
75.He endorsed the findings of the lower prosecutor, including the view that O.B. had regarded sauna sessions as beneficial to athletes’ health and had offered them to his students for this reason. Attendance of the sauna had been voluntary. Students had been naked because that had been the practice of the other students. Sometimes O.B. had entered the sauna but in order to perform massages only.
76.With regard to the episode in Lithuania, E.B. deemed that the third applicant’s allegation had not in itself revealed that a crime had been committed and statements from students present were therefore unnecessary. The investigation had been thorough and no further investigative actions were required.
6.Highest-level prosecution review
(a)Appeal to chief prosecutor
77.On 26 January 2011 the applicants’ parents lodged an appeal against the aforementioned decision to the chief prosecutor, V.O.
78.They maintained their previous requests and arguments, including the contention that the girls had attended the sauna naked because O.B., using his coach’s authority, had convinced them that wearing swimsuits was harmful to health. Initially all the applicants had been wearing swimsuits but the other girls had told them that O.B. had insisted on their being undressed.
79.No regard therefore had been given to the claim that the first and third applicants had undressed due to pressure from O.B.
80.That aspect and the reasons which had led children to undress for the sauna had not been investigated. Even though the testimonies of other parents stated that their children had also attended the sauna naked, these children had not been interviewed.
81.Furthermore, according to boys coached by O.B. they had not been asked to attend the sauna undressed, which, in the parents’ submission, signalled that O.B. had been interested in naked girls. None of the other coaches at the sports school had massaged their students in the sauna, especially not naked. Moreover, O.B. had been in the habit of entering the sauna without the applicants’ permission.
82.The parents further argued that the lower prosecutor had referred to the allegation that during a massage O.B. had touched the first applicant between her legs without specifying further detail, even though the first applicant had specifically stated that the coach had touched her intimate body parts. The first applicant had spoken about it to the psychologist, who had affirmed that she had been speaking the truth.
(b)Final appeal decision
83.On 28 February 2011 the chief prosecutor, V.O., dismissed the appeal and affirmed the closure of investigation.
84.V.O. endorsed the lower prosecutor’s findings. With regard to the parents’ request for the hearing of further witnesses, V.O. stated as follows:
“[A]fter having assessed [the applicants’] testimonies in that part, no grounds exist to conclude that a crime has been committed. Moreover, in these testimonies [the applicants] gave no evidence on the circumstances mentioned in the appeal in question.”
85.No appeal lay against the aforementioned decision.
B.Attempts to reopen the investigation
86.On 17 June 2011 the mother of the first and second applicants, arguing that the report by the psychologist, K.V., constituted newly discovered facts, asked the State police to reopen the investigation. She stated that K.V. had concluded that the first applicant had suffered psychological trauma.
87.By a final decision of 1 September 2011 that request was dismissed.
88.On 22 November 2011 the mother of the third applicant, arguing that the report of the psychologist, K.V., constituted newly discovered facts, asked the police to reopen the investigation. According to K.V.’s report, the third applicant exhibited possible post-traumatic stress symptoms.
89.By a final decision of 6 February 2012 that request was dismissed.
C.Civil proceedings
1.First instance proceedings
90.In the meantime, on 20 April 2011 a compensation claim against O.B. was lodged on behalf of the applicants before the Riga City Vidzeme District Court (Rīgas pilsētas Vidzemes priekšpilsētas tiesa).
91.Relying on Article 92 of the Constitution (Satversme) (right to compensation) and section 1635 of the Civil Law (Civillikums) (right to compensation), it was requested that O.B. pay compensation of 3,000Latvian lati (LVL) (roughly corresponding to 4,286 euros (EUR)) with regard to the first and the third applicants and LVL1,000 (roughly corresponding to EUR 1,428) with regard to the second applicant.
92.On 30 October 2013 the District Court delivered its judgment.
93.According to the District Court, it was not disputed that the first and third applicants had started to train with O.B. in June 2009 and the second applicant in August 2009 (sic). The first and second applicants had trained with him until September 2009 and the third applicant until November2009.
94.It was established that O.B. had recommended sauna sessions to his students. It was not, however, established that O.B. had psychologically influenced the applicants with regard to attending the sauna. At the same time, the District Court continued, it was not proved that the sauna sessions had been necessary in order to achieve good results in sports without harming health. They had not been included in the training programme. It was not proved that either the applicants or their parents had consented to the coach’s presence in the sauna together with naked girls. The applicants had been minors and therefore unable to fully understand or assess the situation. They had trusted and obeyed a person of the age of majority and could not have fully protected themselves against interference with their privacy.
95.According to generally accepted ethical norms, it was not a tradition in the society of the region to appear naked – even in the sauna – in front of the opposite sex. Massaging naked girls with a besom had been unethical and in contravention of general moral principles, as had been the suggestion to a girl under the age of eighteen to sleep with the coach in the same bed. The District Court found that these actions on part of O.B. had violated the applicants’ right to privacy.
96.Noting, inter alia, that none of the applicants had been caused grievous or irreversible consequences, the District Court ordered that O.B. pay LVL 300 (roughly corresponding to EUR 428) each to the first and third applicants and LVL 100 (roughly corresponding to EUR 143) to the second applicant.
2.Appeal proceedings
97.As submitted by the Government and not disputed by the applicants, on 2 December 2013 O.B. lodged an appeal against the aforementioned judgment before the Riga Regional Court (Rīgas apgabaltiesa). No appeal, however, was lodged by the applicants.
98.On 12 March 2014 O.B. withdrew his appeal. On 19 March 2014 the appeal proceedings were discontinued and the judgment of the District Court became final on 1 April 2014.
A.The United Nations Convention on the Rights of the Child 1989
110.The United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the States parties, including all member States of the Council of Europe (see Söderman v. Sweden [GC], no.5786/08, § 51, ECHR 2013). Latvia acceded to this convention on 14April 1992. The relevant Articles read:
Article 19
“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
Article 34
“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.”
111.As interpreted by the United Nations Committee on the Rights of the Child in its General Comment No. 13 (2011):
“4.Definition of violence. For the purposes of the present general comment, ‘violence’ is understood to mean ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’ as listed in article 19, paragraph 1, of the Convention ... In common parlance the term violence is often understood to mean only physical harm and/or intentional harm. However, the Committee emphasizes most strongly that the choice of the term violence in the present general comment must not be interpreted in any way to minimize the impact of, and need to address, non-physical and/or non-intentional forms of harm (such as, inter alia, neglect and psychological maltreatment).
...
25.Sexual abuse and exploitation. Sexual abuse and exploitation includes:
(a) The inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity; (Sexual abuse comprises any sexual activities imposed by an adult on a child, against which the child is entitled to protection by criminal law...)
...
(d) ... Many children experience sexual victimization which is not accompanied by physical force or restraint but which is nonetheless psychologically intrusive, exploitive and traumatic.
...
51.Investigation. Investigation of instances of violence, whether reported by the child, a representative or an external party, must be undertaken by qualified professionals who have received role-specific and comprehensive training, and require a child rights-based and child-sensitive approach. Rigorous but child-sensitive investigation procedures will help to ensure that violence is correctly identified and help provide evidence for administrative, civil, child-protection and criminal proceedings. Extreme care must be taken to avoid subjecting the child to further harm through the process of the investigation. Towards this end, all parties are obliged to invite and give due weight to the child’s views.
...
61. Article 3 (best interests of the child). The Committee emphasizes that the interpretation of a child’s best interests must be consistent with the whole Convention, including the obligation to protect children from all forms of violence. It cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity. An adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention...
...”
B.The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse
112.This convention obliges its parties to take the necessary legislative or other measures to prevent all forms of sexual exploitation and sexual abuse of children and to criminalise certain intentional conduct. The convention was ratified by Latvia on 18 August 2014 and entered into force with respect to it on 1 December 2014. The relevant parts read as follows:
Chapter VI – Substantive criminal lawArticle 18 – Sexual abuse
“1 Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is criminalised:
a engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;
b engaging in sexual activities with a child where:
- use is made of coercion, force or threats; or
- abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or
- abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence.
2 For the purpose of paragraph 1 above, each Party shall decide the age below which it is prohibited to engage in sexual activities with a child.
3 The provisions of paragraph 1.a are not intended to govern consensual sexual activities between minors.”
Article 24 – Aiding or abetting and attempt
“...
2 Each Party shall take the necessary legislative or other measures to establish as criminal offences, when committed intentionally, attempts to commit the offences established in accordance with this Convention.
3 Each Party may reserve the right not to apply, in whole or in part, paragraph 2 to offences established in accordance with Article 20, paragraph 1.b, d, e and f, Article21, paragraph 1.c, Article 22 and Article 23.”
Article 25 – Jurisdiction
“1 Each Party shall take the necessary legislative or other measures to establish jurisdiction over any offence established in accordance with this Convention, when the offence is committed:
a in its territory; ...
...”
Chapter VII – Investigation, prosecution and procedural lawArticle 30 – Principles
“1 Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child.
...
3 Each Party shall ensure that the investigations and criminal proceedings are treated as priority and carried out without any unjustified delay.
...
5 Each Party shall take the necessary legislative or other measures, in conformity with the fundamental principles of its internal law:
– to ensure an effective investigation and prosecution of offences established in accordance with this Convention, allowing, where appropriate, for the possibility of covert operations;
...”
Article 31 – General measures of protection
“1 Each Party shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and criminal proceedings, in particular by:
...
c enabling them, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented, directly or through an intermediary, and considered;
...”
Article 34 – Investigations
“1 Each Party shall adopt such measures as may be necessary to ensure that persons, units or services in charge of investigations are specialised in the field of combating sexual exploitation and sexual abuse of children or that persons are trained for this purpose. Such units or services shall have adequate financial resources.
...”
Article 35 – Interviews with the child
“1 Each Party shall take the necessary legislative or other measures to ensure that:
a interviews with the child take place without unjustified delay after the facts have been reported to the competent authorities;
...”
113.In the Explanatory Report to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, the following relevant comments are given to Chapter VI, “Substantive criminal law”, of that convention:
“112. Articles 18 to 23 are concerned with making certain acts criminal offences...
113. The offences referred to in these articles represent a minimum consensus which does not preclude supplementing them or establishing higher standards in domestic law.
...”
Article 18 – Sexual abuse
“117. Article 18 sets out the offence of sexual abuse of a child. This offence has to be committed intentionally for there to be criminal liability. The interpretation of the word ‘intentionally’ is left to domestic law, but the requirement for intentional conduct relates to all the elements of the offence.
...
127. The term ‘sexual activities’ is not defined by the Convention. The negotiators preferred to leave to Parties the definition of the meaning and scope of this term.
...”

***

6.The applicants were born in 1978 and 1986 respectively and live in Bucharest and Curtea de Argeş respectively.
A.The incidents as described by the applicants
7.On 3 June 2006 the applicants participated in the annual gay march in Bucharest. It was organised by ACCEPT, a non-governmental organisation whose goal is to provide information and to assist the LGBTI community. The march was given police protection. Several individuals who had actively expressed their disapproval over the gay march were stopped by the police, their pictures taken and their identity papers checked and noted.
8.At around 7 pm, at the end of the march, the applicants and four other participants left the area using the routes and means of transport recommended by the authorities in the guidelines prepared by the organisers for march participants. As recommended in the same leaflet, they wore no distinctive clothing or badges that would identify them as having participated in the march.
9.After boarding a metro train, they were attacked by a group of sixyoung men and a woman wearing hooded sweatshirts. The attackers approached the victims directly and started punching them and kicking their heads and faces. They also swung from the metal bars above their heads, kicking their victims. During the attack they kept on shouting: “You poofs go to the Netherlands!” (Poponarilor, duceţi-vă în Olanda!)
10.The victims were pushed into a corner of the carriage. One of them tried to protect the others with his body, but the second applicant remained exposed and suffered several blows.
11.The attack lasted for about two minutes. On their way out of the carriage, the attackers punched the first applicant again in the face.
12.The other passengers withdrew to the opposite side of the carriage during the attack. Among them was a photographer, Z.E., who had also been at the march. The victims asked him to take pictures of the incident, which he did. As a consequence, the attackers hit him as well.
B.The medical examinations
13.The same evening, accompanied by a representative of ACCEPT, the victims went to the Mina Minovici National Forensic Institute and to Bagdasar Emergency Hospital for medical consultations.
14.The forensic medical certificate stated that the first applicant had bruises which could have been produced by blows from a hard object; they did not require “days of medical care”.
15.The second applicant was diagnosed with multiple contusions (related to the incidents), minor cranio-cerebral trauma, contusion on the left shoulder and the left side of his face, and bruises. No bone damage was found. The forensic medical certificate concluded that the applicant needed one to two days of medical care.
C.The criminal investigation
16.Later that night of 3 to 4 June 2006 the victims, including the applicants, and a representative of ACCEPT went to Bucharest Police Station no. 25. They filed a criminal complaint against the attackers and stated that the assault was based on the victims’ sexual orientation. They reiterated not having worn any visible signs that could have given away the fact that they were returning from the gay march. They argued that the attackers had identified them at the march (as they had not worn masks) and followed them afterwards, with the intention of harming them. They informed the police about the offensive remarks made during the attack.
17.According to the applicants, the police agents were surprised when they realised that the applicants and the other victims, although gay, were affluent individuals with regular jobs and positions of responsibility. They tried to dissuade them from pursuing their complaint, warning them that they would have to confront their aggressors in court.
18.On 5 June 2006 the applicants’ representative submitted to the police several pictures of the attack taken by Z.E. In some of the pictures the attackers’ faces were visible, as their hoods were down. The photographer gave statements and was able to identify one of the perpetrators.
19.The first applicant was also shown pictures taken by the police during the march. She was able to identify two of the individuals from their photos. The police had the suspects’ names and addresses on record.
20.The victims gave statements to the police.
21.On 8 June 2006 the police received copies of fifteen police reports drawn up on the day of the march concerning administrative fines imposed on counter-demonstrators.
22.Due to a reorganisation within the police force, the case file was moved from one police station to another, and on 4 April 2007 it was registered at the Metro Police Station.
23.As it appeared that nothing was happening in the case, the applicants sought information on the progress of the investigation by means of letters sent by ACCEPT on 25 September 2006, 28March 2007 and 20 July 2011. On 19March 2007 they also complained to the Ministry of Internal Affairs about the lack of an effective investigation in the case, but to no avail.
24.On 27 April 2007 they were informed that, following the reorganisation within the police force, their file had finally been logged by the Metro Police Station. The letter also informed the applicants that the investigation was ongoing and steps were being taken to identify the culprits.
25.On the same day, the police submitted a request to the Romanian Intelligence Service (the “SRI”) to confirm whether R.S.A. – an intelligence officer who had been identified among the attackers – had been on an official mission that night. On 24 May 2007 the Intelligence Service asked for clarification concerning the nature of the request. It was not until September 2007 that the police were able to obtain a statement from R.S.A., who declared that he had been off duty that day and offered information on one other person in the group of attackers. The actions undertaken by the police to identify the other individuals remained without success.
26.The Metro Police received, on 12 June 2007, a list of forty five names and identification numbers of persons who had been fined by the police during the gay march.
27.As one of the suspects was believed to be a Steaua football club supporter, the investigators attended twenty-nine football matches between 16September 2007 and 13 December 2009 in an attempt to identify him. On 12 February, 14 May, 4 August and 7 December 2010 and 10 March 2011 the investigators tried to identify the suspects at metro stations. On eight occasions between 12 June 2007 and 6 July 2011, the investigators successfully asked the prosecutor to extend the deadline for completing the investigation.
28.On 10 June 2011 the police stated their view that the investigation should come to an end and asked the prosecutor’s office not to institute criminal proceedings in the case. The police gave the following explanation for their request:
“... the investigation was rendered difficult by the fact that the file arrived at the Metro Police Station ... almost one year after the incidents, and the police agents ... who had been in charge of the case until September 2006 could not continue the investigation as the Intelligence Service had refused to cooperate and allow their agent ‒ who was the only identified eye-witness to the events ‒ to be interviewed; it is to be noted that the police lost their motivation to use the information for the purposes of finding the truth in this case, of identifying and bringing to justice those responsible. In addition, to a certain extent the victims lost their interest in how their complaint was being dealt with (they did not ... adduce the medical certificates ... which had been obtained at the request of the police ... on 27October 2009 when it was noted that none of the victims had needed more than two days of medical care). It is observed that all the evidence-gathering methods for this type of crime have been exhausted and, given the lapse of time from the date when the complaints were lodged, the validity and relevance of the evidence gathered ... [have decreased], leaving the investigation into the identity of the culprits without an outcome. At the same time, it is observed that ... the criminal acts had become time-barred, removing criminal responsibility from the culprits.
29.On 9 August 2011, in response to a request from the applicants for information, the Metro Police informed them that their intention was to not institute a criminal prosecution (neînceperea urmăririi penale) as the alleged crimes had become statute-barred (s-a împlinit prescripţia specială). The police explained that the investigation had been rendered more difficult by the fact that the file had not arrived at the Metro Police office until a year after the events. Moreover, all the actions undertaken by police in order to identify the alleged culprits had failed.
30.On 4 October 2011 the prosecutor’s office attached to the Bucharest District Court of the Fourth Precinct endorsed the police proposal and decided to terminate the investigation. The decision was sent to the first applicant’s home on 27 February 2012.
31.On 19 March 2012 the applicants lodged a complaint with the Prosecutor‑in‑Chief against the decision of 4 October 2011. They argued that the prosecutor should have investigated the more serious crime of organising a criminal group (asocierea pentru savârşirea de infracţiuni), which had not yet become time-barred. They also complained that the investigators had failed to pursue their allegation that the attack had been motivated by their sexual orientation.
The prosecutor-in-chief dismissed their objections on 18 June 2012.
32.The applicants reiterated their objections against both the decisions delivered by the prosecutors in two separate complaints lodged with the Bucharest District Court.
33.On 9 August 2012 the District Court dismissed the complaint lodged by the applicants against the prosecutor’s decision of 4 October 2011. The court made the following observation:
“It is true that the authorities were apparently not sufficiently diligent in carrying out within a reasonable time an effective investigation capable of identifying and punishing those responsible for the criminal acts (the long periods of police inactivity, the transfer of files, the lack of cooperation from some authorities are all duly noted). On the other hand, this situation – although not imputable to the [applicants] – cannot prevent the application of the statute of limitation of criminal responsibility.”
34.On 12 November 2012 the District Court dismissed the complaint lodged against the prosecutor’s decision of 18 June 2012 as a mere reiteration of that already dealt with by the court in its decision of 9 August 2012.
35.Throughout the proceedings the applicants repeatedly sought access to the prosecution file. It was partially granted on 9 May 2012 and the applicants gained full access to the file once their objections had been lodged with the courts.

***

6.The applicant, who is of Roma origin, was born in 1988 and lives in Gyöngyöspata, a village of 2,800 people, about 450 of whom are of Roma origin.
7.On 6 March 2011 the Movement for a Better Hungary (Jobbik Magyarországért Mozgalom), a right-wing political party, held a demonstration in Gyöngyöspata. Between 1 and 16 March 2011, in connection with the demonstration, the Civil Guard Association for a Better Future (Szebb Jövőért Polgárőr Egyesület) and two right-wing paramilitary groups (Betyársereg and Véderő) organised marches in the Roma neighbourhood of the village.
8.On 6, 9, and 10 March 2011, during the demonstration and the marches, there was a considerable police presence in Gyöngyöspata.
9.At around 11 a.m. on 10 March 2011 Mr J.F., the president of the local Roma minority self-governing body, informed the police that he and the mayor of the municipality had been threatened by people they did not know. The mayor reported on the same events to the police, explaining that earlier that day some fifty members of the Roma minority had confronted approximately fifteen members of the Civil Guard Association, who were joined by four or five unknown persons, one of whom had an axe and another a whip.
10.As it appears from the case file, at around the same time four men passed by the applicant’s house, yelling “Go inside, you damned dirty gypsies!” At this time the applicant was outside the house in her garden together with her daughter and some acquaintances. In response to the four men, the applicant and her acquaintances told them to leave, saying that it was their village. One of the men continued threatening them by yelling that he would build a house in the Roma neighbourhood “out of their blood”. He stepped towards the fence swinging an axe towards the applicant, but was held back by one of his companions.
11.At around 2 p.m. on the same day police officers K.K. and A.B. stopped and searched four individuals, Mr S.T., Mr F.W., Mr Cs.F., and MrG.M. The mayor of Gyöngyöspata identified two of them, Mr S.T. and Mr F.W., as having participated in the incident that morning. The men were members of Betyársereg. Mr S.T. informed the police that he was the leader of one of the “clans” within the organisation. He said that because some members of his group, about 200 people, intended to come to Gyöngyöspata “to put the Roma situation in order”, he was there to “scout” the village. Later the same day, Mr S.T., who by then was extremely drunk, was again spotted by the police being dragged away from the Roma settlement by a female acquaintance. When questioned by the police, he said he only wanted to play football with the Roma children.
12.On 7 April 2011 the applicant lodged a criminal complaint against “unknown perpetrators” with the Heves County Regional Police Department, alleging offences of violence against a member of an ethnic group, harassment and attempted grievous bodily assault. The police opened an investigation on charges of violent harassment under section 176/A (2) of the Criminal Code.
13.In parallel, the Gyöngyös District Public Prosecutor’s Office opened an investigation on suspicion of harassment based on the report of a third person, MrJ.F., the president of the local Roma minority self-governing body.
14.On 12 April 2011 the applicant was heard as a witness concerning the events. She testified that three men and a woman had passed by her house and one of them, brandishing a whip, had threatened to build a house out of her blood.
15.At the request of her lawyer, the Gyöngyös Police Department informed the applicant that criminal proceedings had been instituted on charges of harassment on the basis of the criminal complaint lodged by MrJ.F. Subsequently, the applicant was informed that her complaint had been joined to that of Mr J.F.
16.On 14 July 2011 the Gyöngyös Police Department discontinued these proceedings on the grounds that harassment was punishable only if directed against a well-defined person, and that criminal liability could not be established on the basis of threats uttered “in general”.
17.The police also instituted minor offence proceedings on the ground that the impugned conduct was “antisocial”.
18.On 14 September 2011 a hearing was held in the ensuing minor offence proceedings in which MrS.T. and five other persons, Mr C.S.F., MrF.W., Mr G.M., Mrs A.B.I., and MrI.N.I. appeared before the Gyöngyös District Court on charges of disorderly conduct.
All six persons subject to the proceedings denied having threatened any members of the Roma community.
Mr J.F., questioned as a witness, maintained that two of the persons subject to the proceedings had been wielding an axe and a whip and had threatened the inhabitants of the Roma settlement that they would kill them and paint the houses with their blood.
Mr L.T., the mayor of Gyöngyöspata, identified one of the persons as having been present in Gyöngyöspata on 10 March 2011, but could not confirm that the threats had been directed at the Roma.
Another witness, P.F., identified three of the persons as having participated in the incident and maintained that it was Mr I.N.I. who had threatened the inhabitants of the Roma settlement.
The applicant, who was also heard as a witness, identified Mr S.T. and MrF.W. as having been armed and Mr S.T. as having said that he would “paint the houses with [the applicant’s] blood.”
19.On an unspecified date the applicant attached to the criminal file extracts from comments posted on a right-wing Internet portal in which MrS.T. had been referred to as the man who had “enforced order among the Roma of Gyöngyöspata with a single whip”.
20.At a further court hearing on 5 October 2011 the applicant’s legal representative requested that the minor offence proceedings be stayed because criminal proceedings against unknown perpetrators were pending.
21.On 7 October 2011, following a complaint that procedural errors had been committed by the Heves County Regional Police Department in the investigation of Mr J.F.’s complaint, the Gyöngyös District Public Prosecutor’s Office informed the applicant that it had opened a separate investigation into the allegations of harassment on the basis of the applicant’s complaint.
22.On 20October 2011, in the criminal proceedings on charges of harassment, the applicant’s lawyer requested the Gyöngyös District Prosecutor’s Office to open an investigation into “violence against a member of an ethnic group” under article 174/B (1) of the Criminal Code. He maintained that the motive of the threats uttered against the applicant was her Roma origin. His allegation was supported by the fact that at the material time various paramilitary groups were “inspecting” the Roma settlement with the aim of “hindering Gypsy criminality”.
23.On 3 November 2011 the prosecutor’s office refused the request, finding that the use of force, the objective element of the criminal offence of “violence against a member of a group” under article 174/B (1) of the Criminal Code as in force at the material time could not be established at that stage of the proceedings.
On 28 November 2011 the applicant reiterated her request, apparently without success.
24.The identities of the persons who had passed by the applicant’s house and that of the alleged perpetrator, Mr S.T., were established by the investigating authorities. Moreover, the Police Department questioned a number of witnesses, including the applicant’s acquaintances present during the incident, but only two of them provided statements relevant for the case. MrS.T. refused to testify.
25.On 2 February 2012 the Gyöngyös Police Department discontinued the investigation into harassment on the grounds that none of the witnesses heard had substantiated the applicant’s allegation that she had been threatened. The Police Department noted that Mr S.T. had refused to testify and the witness testimony of Mrs I.B. had confirmed only that threats had been made, but not that they had been directed against a certain person.
26.The applicant challenged that decision, arguing that the witness testimonies had clearly stated that Mr S.T. had uttered degrading threats and that from the circumstances of the case it was clear that they had been directed against her. She also submitted that the investigating authorities had failed to hear Mr S.T. and two other individuals suspected of the offences.
27.On 21 March 2012 the Gyöngyös District Public Prosecutor’s Office upheld the first-instance decision. The Prosecutor’s Office found that it could not be established on the basis of the witness testimonies whether MrS.T. had been armed and whether the threats and insults he had uttered had been directed at the applicant. Thus neither the criminal offence of harassment, nor “violence against a member of a group” could be established.
This decision was served on the applicant on 2 April 2012, informing the applicant of the possibility to pursue substitute private prosecution proceedings.
28.On 1 June 2012 the applicant, acting as substitute private prosecutor, lodged an application with the Gyöngyös District Court, which was declared admissible on 13 June 2012.
29.On 6 November 2012 the criminal proceedings were discontinued since the applicant had withdrawn the charges, in her submission, because of for fear of reprisals.

***

1. The applicant, Ms Małgorzata Stefaniak, is a Polish national who was born in 1964 and lives in Koszalin. She is represented before the Court by Mr A. Bodnar and Ms I. Pacho, lawyers working for the Helsinki Foundation for Human Rights in Warsaw. In 2015 Mr A. Bodnar was appointed to the post of Ombudsman and no longer represents the applicant.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Hearing aid
4. Since 2003 the applicant has been serving various prison sentences. The end of her current sentence falls in 2030.
5. The Government maintained that during her imprisonment in various prisons the applicant had been given constant medical care. The applicant had been treated for various illnesses and had received specialist treatment, specifically gynaecological, dental and psychiatric care.
6. The applicant submitted that the medical attention she had received had not been adequate. For instance she had refused a gallbladder removal as the prison hospital had offered her only standard surgery, not a laparoscopic operation. She had also reported problems with her spine and was undergoing constant psychiatric treatment.
7. On 1 September 2010 the applicant consulted a laryngologist who, for the first time, diagnosed a hearing impairment and recommended the use of a hearing aid. On 28 September 2010 an audiogram was carried out, on the basis of which a doctor confirmed, on 30 September 2010, that the applicant was suffering from hearing loss.
8. Her first request to be provided with a hearing aid had been dismissed by the prison authorities in December 2010 as it had not been absolutely necessary in her condition. In particular, the prison authorities did not find it established that her hearing impairment had been such as to cause her difficulties in her everyday life in prison.
9. On 31 January 2011, while detained in the Bydgoszcz prison, the applicant made a new request for a hearing aid. On 21 February 2011 the director of the prison hospital at the Bydgoszcz prison informed her that it had not been possible for the authorities to fund a device.
10. On 7 April 2011 the Koszalin medical prison service issued a certificate referring to the audiogram of 28 September 2010 and to the consultation with the laryngologist. The doctor stated that the applicant was suffering from a hearing impairment and recommended the use of a hearing aid, paid for either by the applicant or by the prison medical services.
11. On 31 August 2011 a doctor from a private practice issued a certificate on the basis of the audiogram of 28 September 2010 without examining the applicant. She certified a 60% hearing loss, justifying the need for a hearing aid.
12. On 8 September 2011 a second audiogram was carried out. The applicant was of the view that it proved deterioration of her hearing but the Government submitted that her condition had remained the same.
13. During that period the applicant underwent a re-education program to ease her spinal condition and various basic and more specialised medical examinations. Those included scans or X-rays of the spine, abdomen, breasts, and chest, as well as further audiograms.
14. The applicant submitted that she had requested a hearing aid on numerous subsequent occasions, but to no avail. The prison authorities referred to lack of funds.
15. On 15 April 2013 the applicant received a medical certificate confirming her various medical conditions, referring in particular to her spine, ovaries, kidneys and hearing. The certificate concluded that the applicant should continue receiving re-education treatment for her spine and recommended fitting her with a hearing aid.
16. On 14 March 2014 the applicant was transferred to the Chojnice Remand Centre. On 16 June 2014 she consulted a specialist doctor who recommended that the applicant be provided with a hearing aid.
17. On 23 July 2014 the authorities provided the applicant with a hearing aid. The entire cost of 877 Polish zlotys (PLN) was covered by the Chojnice Remand Centre.
18. On 31 November 2014 the director of the Chojnice Remand Centre explained in a letter that its limited financial resources had not allowed the purchase a different model of hearing aid, as requested by the applicant. The model given to her was of a type also used by other detainees, who had never complained about it. The Director referred to the provisions of domestic law, which allow the authorities to partly or entirely cover the cost of medical equipment such as hearing aids.
2. Leave from prison
19. During her detention the applicant frequently requested leave from prison for various purposes. She was granted leave in 2004 and 2008 for medical purposes.
20. On 19 April 2011 the Penitentiary Division of the Koszalin Regional Court dismissed the applicant ’ s request for temporary leave on health grounds. The court found that the applicant had obtained prison leave in 2008 for the purpose of having an operation. During the leave she had committed further offences and had undergone surgery on the very last day of her leave. She had also failed to return from the leave on time. The court sought a medical expert opinion which stated that the applicant could be treated in prison for her spinal condition. The court concluded that the applicant ’ s medical condition was not incompatible with detention and that she was receiving appropriate medical care from the prison health services. On 20 July 2011 the Szczecin Court of Appeal upheld the decision and refused her leave from prison.
21. In September 2011 the applicant again applied for leave from prison in order to take up employment. The penitentiary courts refused the application on 31 January 2012. The Government submitted that the medical opinion prepared in this set of proceedings had demonstrated a generally good state of health and the fact that she had been continuously receiving medical attention in prison.
3. Prison conditions
22. The applicant complained to the prison authorities on many occasions about the conditions of her detention, in particular the allegedly inadequate treatment of her chronic back pain. On each occasion the complaints were dismissed by the authorities as manifestly ill-founded.
23. The applicant lodged civil claims for compensation against some prisons by way of complaint about the prevailing conditions, for instance the type of cells to which she was assigned, the attitude of the prison guards towards her, etc. There is no evidence that any of those claims referred to the delay before the authorities provided her with a hearing aid.
B. Relevant domestic law
24. The provisions pertaining to medical care in detention facilities, and the relevant domestic law and practice are set out in the Court ’ s judgments in the cases of Sławomir Musiał v. Poland (no. 28300/06, §§ 48-61, 20 January 2009); Kaprykowski v. Poland (no. 23052/05, §§ 36-39, 3 February 2009); and the decision in Ostrowski v Poland (dec.), no. 26945/07, 1 September 2015.

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1. The case originated in two applications (nos. 39496/14 and 39727/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Ye. V. Gribanova, on 27 May 2014, on behalf of two Uzbek nationals, N. and M.
2. Ms Gribanova did not provide any written authority to act on behalf of N. and M.
3. N. and M. were born in 1972 and 1975 respectively and prior to their alleged disappearance lived in Kaliningrad.
4. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Background of N. and M. and their arrival in Russia
6. Prior to 2008 N. lived in Uzbekistan. In December 2008 he left Uzbekistan for Russia, and settled in Kaliningrad.
7. Prior to 2009 M. lived in Uzbekistan. In November 2009 he left Uzbekistan for Russia and settled in Kaliningrad.
8. Both N. and M. are practising Muslims.
B. Criminal proceedings against N. and M. in Uzbekistan and extradition proceedings in Russia
9. In 2010 the Uzbek authorities charged N. and M. in absentia with being members of banned religious organisations, issued international warrants for their arrest, and ordered that they be placed in detention once arrested. During those criminal proceedings, on two occasions (in December 2008 and August 2010) the Uzbek authorities questioned N. ’ s relatives about his whereabouts.
10. In 2011 and 2012 the Russian police arrested N. and M. in Kaliningrad under an international warrant. The Kaliningrad Tsentralnyy District prosecutor ’ s office ordered their detention pending extradition. This was subsequently extended by the Kaliningrad Tsentralnyy District Court.
11. N. and M. retained Ms Gribanova to represent them in the extradition proceedings. She applied to the Prosecutor General ’ s Office of Russia (“the GPO”) with a request for their extradition to Uzbekistan to be refused.
12. The GPO refused to extradite N. and M. on the grounds that the acts imputed to them by the Uzbek authorities were not regarded as criminal under Russian law.
13. On 13 March and 12 July 2012 respectively the Kaliningrad regional prosecutor ordered N. and M. ’ s release. The Government submitted that since their release N. and M. had not informed the relevant authorities of their place of residence on the territory of the Russian Federation.
14. In April 2012 N. and M. addressed the following statements to Ms Gribanova:
Statement by N.:
“In the event I give any written or oral submissions to the mass media to the effect that I have voluntarily decided to return to Uzbekistan, this should be regarded as a forced return to the Republic of Uzbekistan.”
Statement by M.:
“In the event I give any written or oral submissions to the mass media to the effect that I have voluntarily decided to return to Uzbekistan, this should be regarded as a statement made under pressure and my return to my country of origin, Uzbekistan, should be regarded as a forced return.”
15. In March 2012 and May 2013 respectively N. and M. ’ s names were removed from the international wanted list following the prosecutor ’ s decision not to extradite them to Uzbekistan.
C. Applications for refugee status and temporary asylum
16. N. and M. applied for refugee status and temporary asylum in Russia. They lodged their applications with the Kaliningrad regional branch of the Russian Federal Migration Service (“the FMS”). They submitted that they had been persecuted in Uzbekistan on the basis of their religious beliefs, and would be subjected to ill-treatment if they returned. They indicated that Ms Gribanova was their point of contact.
17. In July 2012 and April 2013 respectively the FMS dismissed their requests for refugee status. In 2013 the Russian courts upheld those decisions. M. was represented in the proceedings by Ms Ye. Ryabinina, a lawyer practising in Moscow.
18. In October 2013 and April 2014 respectively the FMS dismissed their applications for temporary asylum. They lodged appeals against those decisions. The outcome of those proceedings is unknown.
D. Administrative proceedings against N.
19. On 11 February 2014 N. was arrested for violating residence regulations for foreign nationals. On 13 February 2014 the court refused to expel him and terminated the administrative proceedings for lack of corpus delicti. N. was represented by Ms Gribanova in those proceedings.
E. Alleged disappearance of N. and M.
20. On 22 May 2014 N. was summoned to the FMS and questioned about his place of residence. After being questioned he telephoned Ms Gribanova. According to her, he seemed very scared.
21. According to Ms Gribanova, on 23 May 2014 N. received a call from the Uzbek security service, which insisted that he return to Uzbekistan.
22. On the morning of 26 May 2014 N. was again summoned to the FMS and was asked to bring copies of all the appeals he had lodged with the FMS and the courts in connection with the asylum proceedings. Ms Gribanova stated that he seemed scared, and asked her to attend in his place.
23. At 8 p.m. on 26 May 2014 N. telephoned Ms Gribanova to ask for help. He said that unknown persons had forced him into a car and taken him to the airport. Immediately after this call his mobile telephone was switched off.
24. That evening Ms Gribanova informed M. that N. had been abducted, and asked him to be extremely careful.
25. Around 3 p.m. on 27 May 2014 Ms Gribanova received a call from a man who introduced himself as one of M. ’ s friends. According to him, at around 9 a.m. that day three unidentified men had approached M. in the street. Two of them were wearing camouflage uniforms, while one was in civilian clothes. They forced M. into a yellow minibus and drove him away to an unknown destination.
26. Ms Gribanova submitted that prior to their abduction N. and M. had given her their passports, which she still held.
F. Indication of interim measures under Rule 39 of the Rules of Court
27. On 27 May 2014 Ms Gribanova sought the application of Rule 39 of the Rules of Court. She asked the Court to indicate to the Russian Government that N. and M. ’ s removal to Uzbekistan should be suspended.
28. On the same date the Court granted that request, indicating to the Russian Government that N. and M. should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or any other country for the duration of the proceedings before the Court. It also asked the Government for information as to N. and M. ’ s whereabouts.
G. Subsequent events
1. Information provided by the Government
29. On 17 June 2014 the Government informed the Court that N. and M. had not been arrested by the Russian authorities on 26 and 27 May, and that since 25 May 2014 they had not passed through any border crossing points in the Kaliningrad region. Their whereabouts were unknown.
2. Information provided by Ms Gribanova
30. On 28 May 2014 Ms Gribanova received a telephone call from N. ’ s wife, who told her that she and N. ’ s father had been summoned by the Uzbek security service several times. The Uzbek authorities had insisted that N. return to Uzbekistan voluntarily or else he would be forcibly returned.
31. On 25 July 2014 Ms Gribanova submitted to the Court that there were grounds to believe that N. and M. had been transferred to Uzbekistan on one of the two direct flights from Kaliningrad which had been scheduled after the Court ’ s indication of interim measures. She also submitted that at the time of their abduction N. and M. had not been in possession of their passports, so they could not have crossed the border without the knowledge and passive or active involvement of the Russian authorities.
32. On an unspecified date Ms Gribanova was visited by a man who introduced himself as N. ’ s “mate”. He said that N. ’ s father had informed him that N. was in Uzbekistan.
33. On an unspecified date M. ’ s relatives informed Ms Gribanova that he had been transported to Uzbekistan on 2 June 2014.
34. In mid-October 2014 Ms Gribanova was contacted by some people who introduced themselves as N. and M. ’ s relatives. They asked her to return N. and M. ’ s passports. They explained that N. and M. were standing trial in Uzbekistan and therefore needed them. She refused to hand them over unless they made a written statement confirming that the passports had been taken by them and why. The people disappeared and never contacted her again.
H. Investigation into the disappearance of N. and M.
35. At the end of June 2014 the Kaliningrad regional department of the interior informed Ms Gribanova that enquiries had been made after she had reported that N. and M. had been abducted, but that their abduction by unknown persons and transportation to Uzbekistan had not been confirmed. In particular, N. ’ s relatives in Uzbekistan had submitted that he had been living in Kaliningrad, and there had been no information regarding N. and M. ’ s possible arrest by Russian law-enforcement bodies or their departure from the Kaliningrad region. Nor were their names on the list of deceased persons.
36. Between July 2014 and January 2015 the investigating authorities on several occasions refused to initiate criminal proceedings into N. and M. ’ s disappearance, for lack of corpus delicti. However, the decisions were overruled each time by the head of the Investigation Committee, and the matter was sent for additional investigation.
37. In one of the refusals to initiate criminal proceedings, namely a decision taken on 20 November 2014, the investigator referred to information provided by the information centre of the Kaliningrad department of the interior, to the effect that N. had been arrested in Uzbekistan on 11 June 2014.
38. On 31 March 2015 an investigator from the local investigation committee initiated criminal proceedings into N. and M. ’ s abduction by unknown persons. The Government did not inform the Court of the outcome of those proceedings.
39. Ms Gribanova submitted that on 16 June 2015 she had been summoned by the investigator in charge of the case to give evidence as a witness.
40. On 17 June 2015 she appeared before the Investigation Committee and claimed that she could not be questioned as a witness. She applied to be acknowledged as representing N. and M. She was allegedly told that the investigator possessed information to the effect that M. had been detained by the Uzbek authorities in Tashkent, Uzbekistan, shortly after his disappearance from Kaliningrad.
I. Family situation of N. and M.
41. In various proceedings in Russia N. and M. were questioned about their family situation, among other things.
42. N. submitted that all his relatives lived in Uzbekistan. He had been married but was divorced. He had a son from his marriage. He was not in contact with his former wife or their son. Since 2003 he had been living with his female partner B., an Uzbek national, with whom he had two daughters. Between 2011 and 2013 B. and their daughters had lived in Kaliningrad. In August 2013 B. and the children had returned to Uzbekistan, because one of their daughters needed to undergo an operation there. N. was in regular telephone contact with his parents, sisters and brothers. He submitted that he was not aware of any persecution of his family members in Uzbekistan.
43. M. submitted that all his relatives lived in Uzbekistan. He was married to Kh., an Uzbek national, and they had two sons. In 2011 his wife came to Russia to visit him and stayed with him. Their children stayed in Uzbekistan with their grandparents. In March 2013 his wife returned to Uzbekistan. He was in regular telephone contact with his wife and their two young children, as well as his father and brothers and sisters.

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5.The applicant was born in 1966 and is currently in detention in Daugavpils.
A.Alleged ill-treatment of the applicant
6.On 8 May 2006 the applicant was transferred from the Central Prison (Centrālcietums) to Riga Regional Court, where he was placed in a holding cell.
7.At 11.25 a.m. the applicant asked the detainee escort officers from the State Police to call an ambulance. He had pain around the waist area and was nauseous. The ambulance arrived at 11.35 a.m. It was established that the applicant was suffering from kidney stones and renal colic. He was given painkillers.
8.The Government submitted that the pain in the area of the applicant’s waist had later returned, and that at approximately 1 p.m. he had once again asked his escort officers to call an ambulance, shouting and cursing whilst so doing. One of the escort officers, M.P., had entered the cell in order to calm him down. The applicant had attempted to hit M.P. In order to prevent the attack, M.P. had forced the applicant onto the floor, using physical force and a restraint technique in accordance with section13(1)5)and 6) of the Law on Police (likums “Par Policiju”).
9.The applicant submitted that at approximately 1.30 p.m. he had asked the officers to call an ambulance. They had refused to do so. As he had been in pain, he had continued to ask for medical assistance. At some point, one of the officers had entered the holding cell and had kicked him in the chest, as a result of which the applicant had fallen to the floor. Whilst the applicant was trying to stand up, he had received several more kicks. The applicant’s screaming was heard by two other escort officers, who had rushed to the cell. One of the officers had forced him onto the floor and had kicked him several times in the back in order to keep him quiet. Then the officers had left.
10.At 1.48 p.m. the escort officers called the ambulance for the second time. The ambulance arrived at 2.04 p.m. The applicant informed the ambulance staff that the officers had hit him on his left side. He also told them that following an injury in 2005 he had suffered a right kidney rupture. In the ambulance log it was noted that he had no visible injuries. The applicant was taken to the prison hospital in Olaine, where he was diagnosed with a fracture to the third lumbar vertebra and contusion of the left kidney.
11.On the same day the escort officers M.P. and A.P. submitted reports to their superior regarding the incident.
12.On 19 May 2006 the applicant was discharged from the hospital.
B.The applicant’s state of health
13.The Government referred to an extract from the applicant’s medical file at the prison hospital in Olaine. It stated that on 6May 2006 (two days prior to the incident at issue) the applicant underwent an X-ray examination which revealed a fracture to his lumbar vertebrae. His condition was described as “similar” following an X-ray on 9May2006 (sic) (the day after the incident at issue).
14.According to a letter from the prison in Olaine the applicant was treated at the prison hospital in Olaine between 8 and 19 May 2006. He was diagnosed with a transverse process fracture and a left kidney contusion. There were no injuries such as bruises or scratches on the applicant’s body. The prison was unable to provide information as regards the applicant’s medical care prior to 8 May 2006.
C.Investigation into alleged ill-treatment
1.The applicant’s complaint
15.On 17 May 2006 the applicant’s complaint of 10 May 2006 regarding the incident was received by the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs). The applicant alleged that he had been beaten by the escort officers.
2.Criminal investigation
(a)First round of investigation
(i)The Internal Security Office of the State Police
16.On 2 June 2006 the Internal Security Office of the State Police commenced criminal proceedings for the offence of exceeding official authority.
17.On 30 June 2006 the Internal Security Office of the State Police requested an expert medical report in respect of the applicant’s injuries.
On 10 July 2006 an expert from the State Forensic Centre (Valsts tiesu medicīnas ekspertīzes centrs) examined the applicant’s medical records. The expert noted his medical history, including the fact that he had been treated for polycystic kidney disease and a urinary tract infection between 1 and 10March 2006. She requested the applicant’s X-ray from the prison hospital in Olaine. On 19 September 2006 the expert concluded that the applicant had sustained a fracture of the third lumbar vertebra which was classified as a moderately severe injury. The injury could have been caused by a blunt solid object on 8 May 2006. However, the possibility that the injury had been caused by the applicant’s falling against a solid object could not be excluded.
18.In the meantime, a senior inspector questioned the applicant on 5July 2006. During the interview he had been unable to identify, from numerous photographs, the officers who had allegedly used excessive force against him.
19.On 22 and 23 August 2006 the senior inspector questioned detainee escort officers M.P., R.T. and A.P., who denied that excessive force had been used against the applicant.
20.The applicant referred to the evidence of S.Š., who stated that the applicant and two other individuals had been placed in the same cell as him. After the applicant’s condition deteriorated, the officers had placed him in another cell opposite their cell. S.Š. could see what was happening in the corridor by looking through the peephole in the door. He had seen two or three officers entering the applicant’s cell and then kicking “something”. He had heard the applicant groan.
21.On 26 October 2006 the senior inspector closed the investigation.
22.She found that at approximately 1.30 p.m. on 8 May 2006 the applicant had been swearing and banging on the door of the holding cell while asking the escort officers to call an ambulance for the second time. One of the officers, M.P., had entered the cell in order to calm him down and the applicant had attempted to hit him. In order to prevent the attack, M.P. had forced the applicant onto the floor, using physical force and a restraint technique in accordance with section 13(1)5) and 6) of the Law on Police.
23.The senior inspector also noted that the applicant had at first been placed in the holding cell together with the witness S.Š. and two other individuals. According to S.Š. the applicant had been taken to another cell and S.Š. had heard the applicant groan. Thereafter the ambulance had arrived.
24.While the expert report of 19 September 2006 indicated that the applicant had been diagnosed with a moderately severe injury in the form of a fracture of a lumbar vertebra, the possibility could not be excluded that this injury had been caused by the applicant’s falling against a hard object, which corresponded to the escort officers’ account of the incident.
25.The senior inspector concluded that the constituent elements of an offence under section 317(2) of the Criminal Law (Krimināllikums) (exceeding official authority) were lacking in the officers’ actions.
(ii)Prosecution service
26.The applicant lodged an appeal against the aforementioned decision with two levels of the prosecution service. On 22 December 2006 a prosecutor upheld the impugned decision.
27.On 29 January 2007 the deputy chief prosecutor quashed that decision. She found that the investigation had been superficial and that the decision concerned had lacked “sufficient justification”.
28.There was no evidence that the applicant had fallen against a hard object. According to witness statements, he had fallen to the floor. It was therefore necessary to inspect the holding cell in which force had been used against the applicant and to verify the statements of both the applicant and of M.P. and A.P. at the scene to establish how the applicant had fallen and whether there had been any object against which he could have fallen. It was also necessary to obtain an expert report to find out whether or not the applicant could have sustained the injury prior to 8 May 2006.
29.The deputy chief prosecutor referred the case back to the Internal Security Office of the State Police.
(b)Second round of investigation
(i)The Internal Security Office of the State Police
30.On 28 February 2007 the Internal Security Office of the State Police ordered a further expert report.
31.Between 21 and 26 March 2007 the senior inspector questioned A.P. and M.P. and verified the applicant’s evidence at the scene. A.P. and M.P. stated that they could not recall in which holding cell the applicant had been placed. Neither could they recall or demonstrate how force had been used against him.
32.On 26 March 2007 the senior inspector closed the investigation.
33.She noted that the ambulance had arrived for the second time at 2.06p.m. on 8May 2006. The applicant had complained of a pain in the area of his left kidney, alleging that the officers had kicked him there. During the investigation, however, he had alleged that the officers had kicked him on the right side of his body. Furthermore, he had stated that the officers had kicked him in the chest, as well as hitting him with a truncheon. At the same time, he had had no visible injuries.
34.According to the expert report dated 12 March 2007, the applicant could have remained mobile even after sustaining a lumbar vertebral fracture, and the possibility could not be excluded that the applicant had sustained this injury prior to 8May 2006.
35.It could not therefore be established when the applicant had sustained the injuries. The senior inspector concluded that the constituent elements of an offence under section 317(2) of the Criminal Law (exceeding official authority) were lacking in the officers’ actions.
(ii)Prosecution service
36.The applicant lodged an appeal against the aforementioned decision with two levels of the prosecution service. On 11 May 2007 the prosecutor upheld that decision.
37.On 12 June 2007 the chief prosecutor quashed the impugned decision. He found that the investigation had not been thorough and that the decision had been made without assessing all the evidence in the case.
38.The senior inspector had not verified the evidence of A.P. and M.P. at the scene. Their questioning had been merely formal. The escort officers had previously stated that they had used force against the applicant. It was therefore necessary to establish whether or not the applicant had sustained injuries as a result thereof. In addition, the evidence of S.Š. had not been considered. According to S.Š. there had been two other individuals in the holding cell but these individuals had not been questioned.
39.The chief prosecutor referred the case back to the Internal Security Office of the State Police for the second time.
(c)Third round of investigation
(i)The Internal Security Office of the State Police
40.On 28 June 2007 the senior inspector visited the scene together with M.P. and A.P. to verify their evidence. The latter could no longer recall in which cells the various detainees, including the applicant, had been held, nor were they able to show how force had been used against him. They maintained their previous statements.
41.The senior inspector obtained an additional statement from S.Š. and questioned fourteen detainees who had been escorted by the officers on the day in question. Some of them had heard noise and shouted requests for a beating to be stopped. The whereabouts of other four detainees could not be established. The applicant referred to the evidence of M.R., who stated that S.Š. had been placed in the same cell as him. M.R. had not seen the incident but had heard some noise and a man shouting. He did not know the applicant.
42.On 24 April 2009 the senior inspector closed the investigation.
43.She noted that the applicant had given different accounts as to how force had been used against him. There were several other discrepancies. The applicant had stated that an officer had beaten him in his cell, whereas S.Š. had stated that three to four officers had beaten him in the corridor. Another detainee, V.J., had given evidence that the applicant had told him that he had been kicked once on the leg.
44.Furthermore, the applicant’s allegation that he had been kicked in the chest and hit on the head with a truncheon was not corroborated by the expert report, which had not recorded injuries to those areas of his body.
45.As regards the lumbar vertebral fracture, according to the expert report, this injury could have been caused by the applicant’s falling against a hard object. This corresponded to the accounts given by M.P. and A.P.
46.The senior inspector concluded that the applicant had not sustained the injuries as a result of unlawful conduct by the escort officers. It could not be established that the use of force had been unjustified.
(ii)Prosecution service
47.On 29 May 2009 the prosecutor, in response to a complaint from the applicant, upheld the aforementioned decision.
48.He noted that force had been used against the applicant in compliance with section 13(1)6) of the Law on Police. It was impossible to determine when the applicant’s injuries had been caused. The constituent elements of an offence under section 317(2) of the Criminal Law (exceeding official authority) were lacking in the officers’ actions.
49.Lastly, the prosecutor found that the senior inspector had taken all the investigative steps requested by the prosecution service. The duration of the investigation had been lengthy because many of the individuals who had been escorted on the day in question had been released and their whereabouts were unknown.
50.An appeal lay to a higher prosecutor against the aforementioned decision. According to information from the prosecution service dated 11and 19 February 2015, furnished by the Government, the applicant did not appeal.
51.On 20 November 2013 the applicant wrote to the prosecution service asking for a final decision in the criminal proceedings. On 28November2013 the prosecution service replied that an appeal against the prosecutor’s decision should have been lodged within ten days. Although the applicant had been notified of the decision, he had not appealed against it within the statutory time-limit. The prosecution service could therefore not exercise its powers in respect of the criminal proceedings.
3.Internal inquiry
52.In the meantime, on 16 June 2006 the State Police instigated an internal inquiry into the events of 8 May 2006.
53.The applicant alleged that he had been kicked on various parts of his body, including his head, chest and spine, as well as in the kidney area. He said he had also been hit with a truncheon.
54.Between 26 and 29 June 2006 the escort officers gave their explanations (paskaidrojumi). M.P. and A.P. stated that M.P. had used force against the applicant as the latter had attempted to hit him. A.P. had helped to restrain the applicant.
55.On 30 June 2006 the State Police found that without carrying out procedural acts it was impossible to establish the circumstances in which the applicant had sustained the injuries and whether the force used against him by M.P. or A.P. had been in compliance with section 13 of the Law on Police.

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5.The applicant was born in 1992, and at the time of the introduction of the application was detained in Lyster Barracks Detention Centre, in Ħal Far.
A.Background to the case
6.The applicant entered Malta in an irregular manner by boat on 6 May 2012. On arrival she was registered by the immigration police, given an identification number (12D-001) and presented with a Return Decision and a Removal Order. The applicant was immediately detained in Lyster Barracks; her detention was based on Article 14 (2) of the Immigration Act (see Relevant domestic law below).
7.The Return Decision stated that she was a prohibited immigrant by virtue of Article5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and that she had the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that she would remain in custody until removal was effected, and that an entry ban would be issued against her. The two documents further informed the applicant of her right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.
8.On 9 May 2012 the applicant was assisted to submit a Preliminary Questionnaire (PQ), thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta. On 21May 2012 the applicant was called for an interview by the Office of the Refugee Commissioner (ORC).
9.On 30 June 2012 the ORC rejected her application on the basis, inter alia, that she had failed to support her claim that she was from central/southern Somalia with convincing evidence (in particular, she had shown insufficient knowledge about Mogadishu and her speech displayed phonological, grammatical and lexical features not typical of those spoken in Mogadishu). Her appeal was also rejected by the Refugee Appeals Board (the “RAB”) on 18 December 2012. The appeal decision reads as follows:
“The Refugee Appeals Board refers to a fill-in-the-blanks form received in its Office on 18 July 2012 and to a legal submission on your behalf received in its Office on 8October 2012.
The Board notes that you travelled to Libya in December 2011, first via Kenya and then via Sudan. In none of these countries did you consider applying for refugee status. During the popular insurrection against the Gaddafi regime in Libya you disembarked on the island of Malta, illegally and undocumented on 6 May 2012, claiming that you were looking for peace, although seven of your siblings still live in Somalia. You also claim that your brother had been killed by a terrorist Islamic organization, Al Shabab, because they thought he worked for the Government. However, you also claim that if there was peace back home, you would be prepared to return. Since you left, as you may know, Al Shabab has been driven out of Mogadishu and Presidential elections have been successfully held and several Somalis are repatriating.
Your appeal for the grant of refugee status by Malta cannot be upheld according to law.”
10.Up to the date of the lodging of her application with the Court on 19August 2013 the applicant had heard no news about any steps being taken in connection with her removal. In practice Malta effected no removals to Somalia or Somaliland.
B.The AWAS Adult Vulnerability Assessment Procedure
11.Ever since her arrival in Malta the applicant suffered from several medical problems, such as headaches, earaches and fainting, and was frequently hospitalised (see paragraphs 16-19 below). She showed signs of severe anxiety and depression which got worse following the refusal of her asylum request. In consequence, on 1 October 2012, she was referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Jesuit Refugee Service (JRS). This referral was made with a view to obtaining her release from detention in terms of government policy on the grounds of vulnerability due to physical and psychological ill-health. According to the referral form, filled in by an official of the JRS:
“Sagal has been complaining of several medical problems ever since she arrived in Malta. She had several appointments in hospital was also taken to emergency by ambulance after collapsing in detention. Sagal was also rejected by the Office of the Refugee Commission, causing her to be very depressed. Every time we visit she is in her bed crying and showing signs of severe anxiety.”
12.In December 2012 the applicant was interviewed (for a few minutes) by the Vulnerable Adults Assessment Team of AWAS, with a view to determine whether she should be released on the grounds of vulnerability. The interview was held in English and the applicant was assisted by another detainee who was not fluent in the language. Her impression is that she was verbally informed that she would be released. On 10 August 2013, that is just under one year after the referral, the interviewers verbally informed her that she would be released. The Government also confirmed that eventually the applicant’s request for release on the ground of vulnerability was acceded to by AWAS.
13.Nevertheless, up to the date of the lodging of her application with the Court on 19 August 2013 the applicant was still in detention. She hoped to be released in November 2013 after the lapse of an eighteen month detention as per domestic practice at the time.
14.The applicant submitted that the Vulnerable Adult Assessment Procedure operated by AWAS was developed by the said organisation in order to give effect to a government policy introduced in January 2005 which stated that vulnerable individuals should not be detained. The applicant submitted that although AWAS was not formally charged with the responsibility of this procedure by the law which set it up, in practice the agency had full responsibility for the procedure. However, in spite of the fact that this procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The determining authority does not give written reasons for its decision and there is no possibility of appeal, although it may be possible to request a review if more evidence is available or there is a degeneration of the individual’s condition.
15.According to the Government the Vulnerable Adult Assessment Procedure, which was operated to assess vulnerability, was widely known within the migration sector and a policy document had been issued about it. Forms were distributed to individuals working in the sector such as NGOs. The Government submitted that the Vulnerable Adult Assessment Procedure was a quick process in straightforward cases (such as pregnant women and families with very young children) which were usually determined within two weeks. However, less straightforward cases such as assessments on the grounds of mental health, psychological problems or chronic illness, required a more complex assessment procedure which was therefore lengthier.
C.The applicant’s medical condition
16.A certificate issued by a doctor in May 2012 confirmed that the applicant had been hospitalised on 7 and 8 May 2012 (upon her arrival in Malta) for dehydration, she was seen again on 15 May and 15 June of the same year. She suffered “fits” and was waiting for an appointment.
17. According to the documents provided by the applicant, after her initial hospitalisation, and apart from the two visits mentioned above, she was seen by a doctor at the state hospital around sixteen times between May and September 2012, and each time was prescribed medication. On these occasions she suffered from, inter alia, epigastric pain and nausea (repeatedly), bilateral conjunctivitis, inflammation, bleeding gums, insomnia, otalgia/earaches (also repeatedly) causing reduced hearing, as well as headaches and toothaches, and dizziness. In none of these occasions was she kept under observation overnight, or hospitalised. In June 2012 following claims by the applicant that she had been falling repeatedly, and that she was having episodes of jerking and tongue biting (which had left evident marks), the doctor requested her referral to a specified department to run the relevant tests to exclude epilepsy – the result of these tests, if undertaken, are unknown to the Court.
18.A medical certificate issued in March 2013 states that at the time the applicant was suffering from “low mood and insomnia” and had been “complaining of somatic symptoms such as chest pain”. The doctor noted “evident deterioration of her mental state” and suggested she be considered as vulnerable.
19.An attestation issued by a doctor in May 2013 states that according to available records “she has stayed unwell and been treated or referred to Mater Dei Hospital [the State hospital] more than usual” and that “her health has posed challenges in keeping her at the Ħal Far detention centre and any assistance will be appreciated”.
D.Conditions of detention
20.The applicant was detained in Hermes Block in Lyster Barracks, in conditions which she considered prison-like and basic. She explained that the Block is divided into five zones alike in terms of layout and facilities. The applicant was detained in Zone C for the first seven to eight months and was afterwards transferred to Zone D for a number of months until she moved to Zone A.
21.She noted that in Zone C there were over eighty (sic) single women and at one point the detention centre was so crowded that there were not enough beds and people had to sleep on metal tables in the television room. She noted that Zone D was less crowded but that it still lacked privacy and sanitation.
22.She complained about the lack of constructive activities to occupy detainees, overcrowding (particularly during the summer months), lack of privacy, limited access to open air, difficulties in communication with staff, other detainees and with the outside world, lack of information about their own situations, and the lack of proper arrangements for heating and cooling, leading to extreme cold in winter and extreme heat in summer. The applicant highlighted the lack of female staff - in particular she noted that every morning male soldiers barged into her dormitory while the inmates were still asleep to make a head count, during which they removed the sheets to check for their presence. This meant that the applicant had to sleep fully dressed every night, including her headscarf, to avoid embarrassing moments.
23.The applicant also complained of limited access to medical care, also because of a lack of interpreters to enable communication with medical staff.
E.Latest Developments
24.The applicant was informed of the AWAS decision to accede to her request and was released from detention on 12 September 2013.
30.The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 September 2011, published on 4 July 2013, in so far as relevant in connection with Lyster Barracks, reads as follows:
“44. At the time of the visit, Lyster Detention Centre was accommodating 248 foreign nationals (including 89 women), in five different detention units.
In keeping with the Government’s Detention Policy, no unaccompanied minors were held in either of the two detention centres visited. Upon issuance of a care order by the Minister of Social Policy, unaccompanied minors were always transferred to a juvenile institution. Single women were always accommodated separately from male detainees.
47. More generally, the CPT has serious misgivings about the fact that female detainees at Lyster Detention Centre were frequently supervised exclusively by male detention officers, since only one female officer was employed by the Detention Service at the time of the visit.
The CPT recommends that the Maltese authorities take steps as a matter of priority to ensure the presence of at least one female officer around the clock at Lyster Detention Centre.
48. As was the case in 2008, a number of detainees complained about disrespectful behaviour and racist remarks by detention officers (in particular in the Warehouses at Safi Detention Centre). The CPT reiterates its recommendation that the Maltese authorities remind all members of staff working in detention centres for foreigners that such behaviour is not acceptable and will be punished accordingly.
55. At both Lyster [and Safi Detention Centres], material conditions have improved since the 2008 visit. In particular, at Lyster Barracks, these improvements are significant: the Hermes Block, which had been in a very poor state of repair at the time of the 2008 visit, had been completely refurbished and the Tent Compound, which had also been criticised by the Committee in the report on the 2008 visit, had been dismantled. At Safi Barracks, additional renovation work had been carried out in Block B. It is noteworthy that all foreign nationals received personal hygiene products on a regular basis and were also supplied with clothes and footwear.
...
56. At Lyster Detention Centre, the situation had clearly improved as regards activities. Each zone comprised a communal room, and groups of detainees could attend English-language courses which were organised by an NGO (usually, three times a week for two hours per group). Further, single women and couples were provided with food so that they could prepare meals themselves in a kitchenette. Every day, detainees could go outside and play football or volleyball in a rather small yard for a total of two hours.
...
60. As regards contact with the outside world, the CPT welcomes the fact that, in both detention centres visited, foreign nationals could receive telephone calls from the outside. They were also were provided with telephone cards free of charge on a regular basis, although these were limited to a total of 5€ every two months.”
31.The 9th General report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (the “CPT”) on the CPT’s activities covering the period 1January to 31 December 1998, at point 26, reads as follows:
“Mixed gender staffing is another safeguard against ill-treatment in places of detention, in particular where juveniles are concerned. The presence of both male and female staff can have a beneficial effect in terms of both the custodial ethos and in fostering a degree of normality in a place of detention.
Mixed gender staffing also allows for appropriate staff deployment when carrying out gender sensitive tasks, such as searches. In this respect, the CPT wishes to stress that, regardless of their age, persons deprived of their liberty should only be searched by staff of the same gender and that any search which requires an inmate to undress should be conducted out of the sight of custodial staff of the opposite gender; these principles apply a fortiori in respect of juveniles.”
32.Rule 53 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, reads as follows:
“(1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.”
33.The report “Not here to stay: Report of the International Commission of Jurists on its visit to Malta on 26-30 September 2011”, May 2012, pointed out, inter alia, that:
“The ICJ delegation found a lack of leisure facilities in all three detention facilities visited. ... In the Lyster Barracks there was also a small recreation yard, but without direct access from the detention section. Detainees had two hours per day of “air” in the courtyard. They reportedly seldom received visits from outside, apart from the occasional NGO.”
34.Bridging Borders, a JRS Malta report on the implementation of a project to provide shelter and psychosocial support to vulnerable asylum seekers between June 2011 and June 2012, highlights the fact that not all medication prescribed by medical personnel in detention is provided free by the Government health service. In fact the said report notes that during the lifetime of the project the organisation purchased medication for 130detainees.

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1. The applicant, Mr Aleksandre Manukian, is a Georgian national, who was born in 1965 and is currently in detention in Tbilisi. He was represented before the Court by Ms E. Fileeva, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze of the Ministry of Justice.
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
4. At the material time, the applicant was serving a prison sentence for various offences in Rustavi Prison no. 1. According to the bill of indictment, he and four other inmates attacked the head of the prison department (the authority in charge of prisons at the time), B. Akh, the governor of Rustavi Prison no. 1, T. T., and three other representatives of the prison department while they were inspecting the prison early on 30 January 2006. The head of the prison department and the accompanying prison officials were granted victim status in the above criminal proceedings.
5. On 1 August 2006 the Rustavi City Court convicted the applicant and his co-defendants under Article 378 § 4 of the Criminal Code of Georgia ( disobedience to a public authority, obstruction of prison activities and attacking prison officers). The trial judge concluded that the applicant had attacked the victims by throwing bottles and other items at them, by verbally insulting them and also by inciting other prisoners to riot against the prison administration. The applicant was sentenced to eight years ’ imprisonment. The final sentence, which included the unserved part of his previous sentence, was set at ten years and four months.
6. In finding the applicant guilty, the first-instance court relied on the statements of the five victims, including pre-trial statements by the head of the prison department and the prison governor. The two men, despite repeated requests from the defendants, were not heard in court. The court also relied on the testimony of seven members of the prison department ’ s special unit (“the special unit”), which was involved in the incident, as well as on statements by two prisoners who had witnessed the events at issue.
7. According to the applicant, the Rustavi City Court found him guilty without considering the version of events given by him and his co ‑ defendants. They alleged, in particular, that on 30 January 2006, they had been woken up at around 5 a.m. by the head of the prison department, accompanied by the governor of Rustavi Prison no.1, several prison department employees and members of the special unit, who had verbally insulted them and subjected them to humiliating treatment. The applicant had been threatened by the head of the prison department and then ill ‑ treated by several special unit officers. The prisoners had protested and the head of the prison department and his colleagues had left. However, after a short while, at around 7 a.m. the special unit had re-entered the prison, forced the prisoners out of their dormitories and had severely beaten them. According to the applicant, they were made to pass through a so-called corridor formed of special unit officers, who had beaten and insulted them. A group of prisoners, including the applicant, had then been transferred to Ksani Prison, where they were put in a punishment cell and left for a month in extremely poor conditions, without any medical assistance. In support of their version of events, the applicant and his co ‑ defendants requested that the trial judge question several other prisoners and the doctor who had recorded the injuries of the prisoners who had been ill ‑ treated. The requests were, however, refused.
8. The applicant appealed against his conviction, protesting his innocence and stating that the statements of the prosecution witnesses had been contradictory, that his ill-treatment allegations had not been considered and that certain evidence given in his defence had been ignored.
9. On 23 April 2007 the Tbilisi Court of Appeal dismissed an appeal by the applicant, finding that the first-instance court had properly established the applicant ’ s guilt and had given the correct legal classification to his actions. The appeal court failed to summon the two victims, B. Akh. and T. T., to the proceedings. As for defence witnesses, it only allowed the questioning of one prisoner who had witnessed the events of 30 January 2006. The appeal court did not examine the applicant ’ s allegation of ill ‑ treatment.
10. By a decision of 11 February 2008, the Supreme Court of Georgia rejected an appeal on points of law by the applicant as inadmissible.
B. Relevant domestic law
11. The relevant provisions of the Code of Criminal Procedure, as in force at the material time, read as follows:
Article 261 – Obligation to initiate a preliminary investigation
“Upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. ...”
Article 263 – Information concerning the commission of a crime
“1. A preliminary investigation shall be opened on the basis of information concerning the commission of a crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity ... reported in the media, or brought to light during the investigation of a case by the authority in charge of the investigation ...”
501. Referral of criminal case for additional investigation
“If the prosecutor requests that a charge against the accused be classed as a more serious offence, the judge (court) shall rule on referring the criminal case back for additional investigation ...”

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6.The applicant was born in 1982 and until his arrest lived in Moscow.
A.Criminal proceedings against the applicant
7.On 27 February 2012 the police opened a criminal investigation into large-scale fraud. According to investigators, an unknown person had convinced a businessman to hand over 10,000,000 Russian roubles (approximately EUR 248,000) on the pretext of selling some equipment. However, the person had had no intention of selling the equipment or returning the money.
8.On 24 January 2013 the applicant was accused of aggravated fraud. The police ordered him not to leave his place of residence, but he fled and was put on a wanted list by the police.
9.On 16 July 2013 he was arrested and taken to a police custody facility.The next day the Tverskoy District Court of Moscow (“the District Court”) authorised his pre-trial detention until 16 September 2013, having regard to the seriousness of the charges against him and the risk of his absconding, reoffending and interfering with justice.
10.The applicant appealed. He referred to, among other things, his poor health.
11.On 19 August 2013 the Moscow City Court (“the City Court”) upheld the detention order on appeal after examining his recent medical documents, stating that his health did not preclude his detention on remand.
12.On 13 September 2013 the District Court extended the applicant’s detention until 16 November 2013, citing the risk of his absconding given his previous attempt to evade prosecution and the seriousness of the charges against him. The District Court also linked that risk to the applicant’s lack of stable income or work. In the court’s view, no alternative measure, such as house arrest or bail, could have ensured that the criminal proceedings ran smoothly. Lastly, the court noted the complexity of the case and several steps in the investigation which had yet to be performed, including some which required the applicant’s presence and participation.
13.The applicant appealed. He applied to the City Court to be released on bail because of his worsening health. He insisted that he could no longer move without assistance. In the meantime, in October 2013 he was served with the final version of the bill of indictment and was committed to stand trial before the District Court.
14.On 13 November 2013 the City Court upheld the detention order of 13 September 2013, endorsing the District Court’s reasoning. After examining medical evidence pertaining to the applicant’s health, it found that the illnesses he suffered from were not severe enough to warrant his release.
15.On an unspecified date the police searched the applicant’s flat and found a passport with his photograph but under another name.
16.On 14 November 2013 the District Court extended the applicant’s detention until 30 March 2014. It again cited his unemployment status and ability to abscond, in view of the seriousness of the charges and his having been on the run from January to July 2013. Noting that his state of health was compatible with the detention conditions, the court concluded that the extension of his detention was justified.
17.On 13 January 2014 the District Court dismissed the applicant’s request for release on bail or under a written undertaking not to leave Moscow. It reiterated the arguments contained in the preceding detention orders and noted the discovery of the forged passport in his flat during the police search, which for the court was a clear sign of his intention to flee. It also addressed his arguments that he had become paraplegic and thus no longer posed a flight risk. It noted that according to a recent conclusion of a medical panel (see paragraph 32 below), his health did not call for his release.
18.On the same day the District Court convicted the applicant of aggravated fraud and sentenced him to six years’ imprisonment in a correctional colony.
19.On 20 February 2014 the City Court upheld the conviction, but reduced the sentence to four years.
B.The applicant’s detention, transfer conditions and medical treatment in detention
1.Police ward
20.For about a week after his arrest on 16 July 2013 the applicant was kept in a Moscow police ward.
21.His cell measured 12 square metres, had three sleeping places and usually housed two or three inmates. He did not complain about his health and was not seen by a doctor, save for a general check-up on admission.
2.Remand prisons
22.On 24 July 2013 the applicant was taken to remand prison no.IZ‑77/2 in Moscow. He underwent the usual general medical check-up on arrival. Informing the resident doctor about serious back injuries he had sustained in 2008 and 2010, he did not make any specific complaints, except about his hypertension. He was considered to be in good health.
23.According to the Government, he was placed in a cell which measured 26.96 square metres and housed four other inmates. Subsequently he was transferred between less spacious cells, which he shared with two or three inmates. The living space afforded to him varied between 3.8 and5.7 square metres. Throughout his detention he slept on an individual prison bunk. The applicant did not dispute the above information submitted by the Government.
24.According to the applicant, in August 2013 he fell and hurt his back. Severe back pain was accompanied by numbness in the legs and resulted in him being unable to walk unaided. He spent the major part of his day in bed being assisted by his cellmates. They took him for walks in the prison yard, carried him to the toilet and washed him with wet towels, which was their way of showing that they were annoyed with his helplessness.
25.The applicant’s medical records show that on 8 October 2013 he complained to the resident doctor that he was suffering from a headache and back and abdomen pain. The doctor prescribed him drugs and a consultation with a neurologist.
26.On 19 October 2013 he was taken to a medical unit in the same remand prison for inpatient treatment. The attending doctor noted that, owing to a pain syndrome, he had been unable to move unaided. After blood tests and a CAT (computerized axial tomography) scan, he was injected with painkillers, muscle relaxants, nootropics and vitamins.
27.The applicant submitted that on 24 October 2013 during his transfer to a court hearing in a standard prison van, he had again severely hurt his back and head.
28.On 13November 2013 the applicant was discharged from the medical ward to be transferred to the hospital in remand prison no.IZ-77/1 in Moscow for more comprehensive treatment.
29.The transfer occurred a week later. On admission to hospital the applicant complained of head and back pain and numbness in his legs. The hospital performed a number of medical tests, including blood and urine tests, a CAT scan and a cerebrospinal fluid analysis. As a result he was diagnosed with paraplegia of unknown origin, headaches and chronic inflammatory demyelinating polyneuropathy. He received antibiotics, muscle relaxants, vitamins and other medication. His health improved, but not significantly. The paraplegia remained unchanged. He was discharged from hospital on 9December 2013 to undergo treatment in a civilian hospital and to check whether his state of health called for his early release.
30.From 9 to 13 December 2013 the applicant stayed in Moscow City Hospital no. 20, where he underwent a medical expert examination and received treatment. He had an MRI (magnetic resonance imaging) scan of his spinal column and spinal cord, a scintigraphy and an X-ray of his pelvis. According to a medical report dated 13 December 2013, he suffered the consequences of a reduced blood supply to the Adamkiewicz artery, including lower limb spasticity, dysfunction of the pelvic organs and bedsores developed outside the hospital. In addition, he was diagnosed with hypertension, a small hydrothorax on the right side and some residual effects of pneumonia that did not call for any treatment. The conditions did not fall within the established list of illnesses warranting early release.
31.The applicant was taken to the intensive care unit of remand prison no. IZ-77/1, where he continued his drug regimen in line with the hospital’s recommendations. The doctors were, however, unable to ensure any improvement in his conditions. A week later he was sent back to Moscow City Hospital no. 20.
32.A report drawn up on 31December 2013 by a medical panel from the hospital stated that, in addition to the previous diagnosis, the applicant suffered from neurogenic bladder and bowel dysfunction. However, his conditions still did not reach the level of severity to warrant his release.
33.The stay in hospital was followed by two weeks of detention in remand prison no. 77/1. There is nothing to suggest that his treatment was interrupted during that period.
34.On 15 January 2014 the applicant was again taken to Moscow City Hospital no. 20 for a month of treatment. The hospital staff changed his drug regimen, completing it with antioxidant and neutrophil treatment, muscle relaxants, painkillers, and introducing physiotherapy, which resulted in “certain positive changes in [his] state of health”.
35.Meanwhile, the applicant’s lawyer asked an independent medical specialist to provide an opinion on the quality of medical care afforded to the applicant in the remand prison. In a report dated 11 February 2014 the specialist stated that the applicant’s conditions required enhanced medical attention and inpatient treatment that could only be performed in a neurological medical facility. Remand prison no. 77/1 was not licensed to provide neurological treatment or perform neurosurgery. His bedsores were a sign of insufficient medical attention. The report ended with a recommendation that he be classified as disabled.
36.On 14 February 2014 the applicant was taken to remand prison no.77/1, where he was detained until 1 March 2014. According to the Government, he shared his cell measuring around 11.4 square metres with another inmate. As he was unable to care for himself, medical staff and inmates assisted him with his daily needs. It is apparent from the case file that he continued to receive treatment as prescribed.
37.On 1 March 2014 he was sent to serve his sentence in a correctional colony in Kostroma, over 300 kilometres away.
3.Transfer to correctional colony
38.In the early hours of 1 March 2014 the applicant was taken in a Gazel minivan designed to transfer the seriously ill, to a Moscow train station. The trip took two hours.
39.At the train station he was placed on board a standard train carriage, where he had to stay for four hours awaiting departure. The journey to the destination, the town of Yaroslavl, took approximately five hours. The Government only stated that the applicant had shared his carriage with other detainees and had been accompanied by escort officers ready to assist him if necessary.
40.In Yaroslavl the applicant was taken from the train to a prison van. According to the written statements by escort officers submitted by the Government, he was put on a thin blanket on the floor of the van. In the next half hour he was taken to a remand prison, so that new escort officers could join the transfer team. The applicant had to wait for another hour, lying on the floor of the van, while the official procedure involving the escort officers was under way. He was then taken back to the train station in Yaroslavl.
41.At the station the applicant was taken to a prison train carriage, which he shared with other inmates. After another two hours the train departed for Kostroma. The trip took three hours. At around midnight the train arrived at the Kostroma train station. The Government did not provide any description of the conditions in which the applicant travelled.
42.Within the next hour a prison van took the applicant to a nearby remand prison, where he was detained from 2 to 6 March 2014.
43.On the morning of 6 March 2014 the applicant was taken in the same prison van to correctional colony no. IK-15/1 (“the correctional colony”). The trip took around an hour.
44.The parties disagreed whether the vehicles used to transfer the applicant, with the exception of the Gazel minivan, were equipped to accommodate ill inmates. While the Government argued that all vehicles could transport bedridden patients, the applicant stated that they had had no special equipment on board. He had been forced to lie on the floor of the prison vans on a thin blanket used as a stretcher. During the entire journey he had been in severe pain, but had not received any painkillers.
4.Correctional colony
45.The applicant was placed in the medical unit of the colony. He continued receiving various drugs and injections, including nootropic drugs, muscle relaxants and antioxidants and vitamins, to improve the function of the central and peripheral nervous systems. He was regularly seen by doctors. His condition remained stable.
46.The applicant spent all his time in bed. Personal care workers provided him with bedside care, including basic nursing procedures.
47.The applicant was examined by a panel of doctors to check whether he should be released early on health grounds. In their report dated 15April 2014 they concluded that his conditions, in particular his lower limb spasticity and bladder and bowel dysfunction called for his early release.
48.On the panel’s recommendation, the colony administration asked the court to authorise the applicant’s early release on health grounds.
49.The Sverdlovskiy District Court of Kostroma granted the request and on 3 July 2014 ordered his release. On 26 August 2014 the Kostroma Regional Court upheld the order on appeal. Two days later the applicant was released.
54.The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Russia ratified the Convention on 25 September 2012. It did not ratify the Optional Protocol.
Article 1of the Convention provides:
“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”
The relevant part of Article 14 provides:
“2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”
The relevant part of Article 15 provides:
“2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
The requirements regulating personal mobility are laid down in Article20, which reads as follows:
“States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:
Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;
Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;
Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities;
Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.”
55.In Interim Report of 28 July 2008 (A/63/175), the then UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, noted as follows:
“50. ... Persons with disabilities often find themselves in [situations of powerlessness], for instance when they are deprived of their liberty in prisons or other places ... In a given context, the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ...
...
53. States have the further obligation to ensure that treatment or conditions in detention do not directly or indirectly discriminate against persons with disabilities. If such discriminatory treatment inflicts severe pain or suffering, it may constitute torture or other form of ill-treatment. ...
54. The Special Rapporteur notes that under article 14, paragraph 2, of the CRPD, States have the obligation to ensure that persons deprived of their liberty are entitled to ‘provision of reasonable accommodation’. This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others, when such adjustments do not impose disproportionate or undue burden. The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill-treatment and torture.”
56.The relevant extracts from the 3rd General Report (CPT/Inf (93) 12; 4 June 1993) by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
e. Humanitarian assistance
“64. Certain specific categories of particularly vulnerable prisoners can be identified. Prison health care services should pay especial attention to their needs.”
...
iv) prisoners unsuited for continued detention
“70. Typical examples of this kind of prisoner are those who are the subject of a short‑term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.”
...
g. Professional competence
“76. To ensure the presence of an adequate number of staff, nurses are frequently assisted by medical orderlies, some of whom are recruited from among the prison officers. At the various levels, the necessary experience should be passed on by the qualified staff and periodically updated.
Sometimes prisoners themselves are allowed to act as medical orderlies. No doubt, such an approach can have the advantage of providing a certain number of prisoners with a useful job. Nevertheless, it should be seen as a last resort. Further, prisoners should never be involved in the distribution of medicines.
77. Finally, the CPT would suggest that the specific features of the provision of health care in a prison environment may justify the introduction of a recognised professional speciality, both for doctors and for nurses, on the basis of postgraduate training and regular in-service training.”
57.Recommendation no. R (98) 7 of the Committee of Ministers of 8April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant:
III. The organisation of health care in prison with specific reference to the management of certain common problems
C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis
“50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. ...”
58.Recommendation CM/Rec (2012) 5 of the Committee of Ministers of 12 April 2012 on the European Code of Ethics for Prison Staff, provides, in particular:
IV. Guidelines for prison staff conduct
D. Care and assistance
“19. Prison staff shall be sensitive to the special needs of individuals, such ... disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs.
20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.
21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules.
22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.”

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1. The applicant, Ms S.M.H., states that she is a Somali national who was born in 1981. She is currently living in the Netherlands. The President decided that the applicant ’ s identity was not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Ms J. Jansen, a lawyer practising in Kapelle.
2. The Netherlands Government were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The Italian Government, who had been invited to intervene under Rule 44 § 3 of the Rules of Court, were represented by their Agent, Ms E. Spatafora, and their co-Agent, Ms P. Accardo.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties and the Italian Government, may be summarised as follows.
4. On 1 April 2003, the applicant entered Italy, landing in Lampedusa. On 15 April 2003, she applied for asylum in Italy, stating that she had been born in 1983. She was registered accordingly by the Italian authorities. After her fingerprints had been taken and verified, it transpired that she had already been registered in Italy under another identity in October 2000 at the Milan Malpensa border.
5. The applicant applied for asylum on 15 April 2003 and was admitted to a reception centre in Capo Rizzuto. She was later transferred to another reception facility in Cirò Marina and also provided with a temporary residence permit for asylum - seekers. On 14 February 2004, the reception facility in Cirò Marina informed the authorities that the applicant had left the centre for an unknown destination.
6. By a decision of 20 January 2005, having noted that the applicant had left for an unknown destination, the competent territorial commission for the recognition of international protection ( Commissione Territoriale per il Riconoscimento della Protezione Internationale ) dismissed the applicant ’ s request for international protection.
7. On an unspecified date, the applicant was transferred back to Italy, in accordance with EU Council Regulation No. 343/2003/EC of 18 February 2003 establishing the criteria and mechanisms for determining the member State responsible for examining an asylum application lodged in one of the member States by a third-country national (“the Dublin Regulation”). On 13 September 2005, she was notified of the decision of 20 January 2005 and ordered to leave Italy within 15 days. However, the applicant did not leave and found shelter in accommodation run by a non-governmental organisation.
8. On 25 October 2005, the special bench of the National Commission for Asylum ( Commissione Nazionale per il diritto d ’ Asilo, Sezione Speciale Stralcio ) heard the applicant and held that she did not qualify for the status of a refugee within the meaning of the 1951 Geneva Refugee Convention, but granted her a residence permit for compelling humanitarian reasons under Article 5 § 6 of Legislative Decree ( decreto legge ) no. 286/1998. On the basis of that decision, the applicant was provided with a residence permit that was valid until October 2006.
9. On 22 December 2006, having moved to Naples, the applicant applied to the Naples police headquarters for a renewal of the residence permit. After that request had been accepted by the National Commission, which found that she was still entitled to international protection, the applicant received a residence permit which was valid until 22 December 2007. On 12 February 2008, at the applicant ’ s request, the basis for her residence permit was converted into a residence permit for employment purposes, which was valid until 27 December 2009.
10. On 19 November 2009, the applicant entered the Netherlands and applied for asylum. In her interviews with the Netherlands immigration authorities, she stated, inter alia, that she was a Somali national, born in 1981. She further stated that she was pregnant, but that the father had left her after she had become pregnant. She also declared that she had lived in Italy before going to the Netherlands and that she had a sister who was living in the Netherlands.
11. An examination and comparison of the applicant ’ s fingerprints by the Netherlands authorities generated a Eurodac report, indicating that she had applied for asylum in Italy on 15 April 2003.
12. On 27 March 2010 the applicant gave birth to a daughter in the Netherlands.
13. On 7 May 2010 the Italian authorities accepted a request by the Netherlands authorities to take the applicant back, in accordance with the Dublin Regulation.
14. On 7 June 2010, the Netherlands Minister of Justice ( Minister van Justitie ) rejected the applicant ’ s asylum request. The Minister found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application and that this was not altered by the fact that she had a baby. The Minister rejected the applicant ’ s argument that she would risk treatment in breach of Article 3 of the Convention in Italy.
15. An appeal by the applicant against that decision was dismissed on 22 October 2010 by the single-judge chamber ( enkelvoudige kamer ) of the Regional Court ( rechtbank ) of The Hague. The applicant did not avail herself of the possibility of lodging a further appeal with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State.
16. On 31 January 2011, with reference to the acceptance of 7 May 2010, the Netherlands authorities informed their Italian counterparts that the transfer of the applicant and her child had been scheduled for 3 February 2011. It was specified that they would not be accompanied, that the applicant was pregnant, with delivery expected on 6 May 2011, but that that did not prevent a transfer.
17. On 2 February 2011, the applicant filed a fresh asylum request in the Netherlands. Pursuant to section 4 ( 6 ) of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), the application had to be based on newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden; “nova”) warranting a revision of the initial decision. During her interview on the new request, the applicant stated, inter alia, that her sister had been granted international protection in the Netherlands, that the father of her daughter was living in Norway, that she had seen him in July 2010 when he had visited a relative in the Netherlands and that she was now carrying a second child by him. On the basis of the fresh asylum request, the scheduled transfer to Italy was cancelled.
18. On 8 February 2011, the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie, Integratie en Asiel ) rejected the fresh asylum request, concluding that it had not been based on nova. The Minister rejected the applicant ’ s claim that she should be admitted to the Netherlands asylum procedure because she was pregnant and that the principle of mutual inter -State trust could no longer be regarded as applicable in respect of Italy.
19. On 7 May 2011, the applicant gave birth to a second child in the Netherlands.
20. An appeal by the applicant against the Minister ’ s decision of 8 February 2011 was accepted in December 2011 by the single-judge chamber of the Regional Court of The Hague. The court quashed the impugned decision and ordered the Minister to take a fresh decision. It took into account several reports on the situation for asylum - seekers in Italy, drawn up between January and May 2001 by various non-governmental organisations, a report by Thomas Hammarberg, the Council of Europe ’ s Commissioner for Human Rights, drawn up in September 2011 after a formal visit to Italy in May 2011, and the indication of several interim measures by the Court under Rule 39 of the Rules of Court. It considered that the applicant had submitted sufficient concrete indications that Italy was failing to respect its international treaty obligations in respect of asylum - seekers and refugees. It therefore concluded that the Minister could not have relied on the principle of mutual inter -State trust without carrying out a further examination.
21. On 20 May 2012, the applicant gave birth to a third child in the Netherlands.
22. An appeal by the Minister against the judgment in the applicant ’ s favour was accepted on 13 November 2012 by the Administrative Jurisdiction Division. It quashed the parts of the judgment of 21 December 2011 where the court had not indicated that the legal effects of the decision of 8 February 2011 were to remain intact and where it had ordered the Minister to take a fresh decision. It further ordered that the legal effects of the decision of 8 February 2011 were to remain intact and upheld the rest of the impugned judgment. Although it accepted that the applicant, being a pregnant, single mother, could be regarded as a vulnerable alien, it agreed with the Minister that the applicant ’ s transfer to Italy would not be contrary to her rights under Article 3 of the Convention. It took note of the Court ’ s judgment in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), observed that the applicant had relied from the outset on the Hammarberg report and other documents and found that they had not been examined by the Minister in the manner described in M.S.S. v. Belgium and Greece. However, it did not find any reason for reaching a different decision in the applicant ’ s case, noting in particular that prior to every transfer the Italian authorities were notified by the Netherlands authorities about the personal situation and, where necessary, the special care needs of the person concerned. No further appeal lay against that decision.
23. On 21 December 2012, with reference to the Italian authorities ’ acceptance in 2010 to take the applicant back, the Netherlands authorities informed their Italian counterparts that the transfer of the applicant and her three children had been scheduled for 10 January 2013. It was specified that they would not be escorted. That transfer was subsequently cancelled.
24. On 7 January 2013 the applicant filed a request under section 64 of the Aliens Act 2000 ( Vreemdelingenwet 2000 ) for deferral of her removal for medical reasons. She pointed out that she was pregnant and due to give birth in April 2013 and submitted that she was therefore unfit to travel. The Minister rejected her request on 15 January 2013 after referring to Chapter A4/7.6 of the Aliens Act 2000 Implementation Guidelines ( Vreemdelingencirculaire 2000 ), pursuant to which expulsion of pregnant women by air cannot take place in the six weeks leading up to the due date or the first six weeks after giving birth.
25. On 21 January 2013, submitting that she was a single mother of three children and pregnant with a fourth child, the applicant filed an objection with the Minister of Security and Justice ( Minister van Veiligheid en Justitie ) against their scheduled transfer to Italy. On the same day, she filed a request for a provisional measure with the Regional Court of The Hague for a stay of her transfer to Italy, pending determination of her objection.
26. On 28 January 2013, the Netherlands authorities informed their Italian counterparts that the transfer of the applicant and her three young children had been scheduled for 7 February 2013. Apart from detailed flight information, the letter further specified in bold characters that the applicant was pregnant, that the due date was 21 April 2013, that she would be examined by a doctor before the transfer and that she and her three children would be escorted.
27. On 4 February 2013, the provisional-measures judge of the Regional Court of The Hague dismissed the applicant ’ s application for a provisional measure, noting that the Italian authorities had been duly notified of the transfer of the applicant and her children and their particular circumstances, and that they would be accompanied by four escorts who would personally hand them over to the Italian authorities. The judge did not find that the transfer would entail a violation of Article 3 or Article 8 of the Convention.
28. After that decision, an additional notification of transfer was sent to the Italian authorities on 5 February 2013, informing them that the transfer had been scheduled for 7 February 2013. The notification contained a further specification, set out in bold, stating that the applicant would “ be transferred with her three minor children, age below 3 years. They are considered as vulnerable persons. ” The transfer was later cancelled, pursuant to an indication given under Rule 39 of the Rules of Court (see paragraph 29 below).
B. Events after the lodging of the application
29. The application was lodged with the Court on 17 January 2013. On 6 February 2013, the Acting President of the Section decided, under Rule 39, to indicate to the Netherlands Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Italy until further notice. The Acting President further decided under Rule 54 § 2 (b) to give notice of the application to the Netherlands Government. The Acting President also decided to put a factual question to the Netherlands Government (Rule 54 § 2 (a)), which concerned the information provided to the Italian authorities in relation to the applicant ’ s scheduled transfer to Italy. The Netherlands Government submitted their reply on 26 February 2013.
30. On 6 February 2013, the Acting President of the Section further decided that information was required from the Italian Government and a number of factual questions were put to the Government of Italy (Rule 44 § 3 (a)), which concerned the applicant ’ s situation in Italy before her arrival in the Netherlands. The Italian Government submitted their replies on 26 and 28 March 2013 and the applicant ’ s comments in reply were submitted on 6 May 2013.
31. On 13 January 2013, the respondent Government were invited to submit their written observations on the admissibility and merits of the application. These were received by the Court on 24 February 2015. The applicant was invited to submit her observations in reply and claims for just satisfaction under Article 41 of the Convention by 10 April 2015.
32. On 10 April 2015, the applicant ’ s representative requested an extension of this time-limit until 17 April 2015. This request was granted by the President. When the time-limit expired, no observations in reply or just satisfaction claims had been submitted by the applicant. By letter of 30 April 2015, the Court brought this failure to the knowledge of the applicant ’ s representative, drawing her attention to Article 37 § 1 (a) of the Convention.
33. On 15 June 2015, the applicant ’ s representative requested two more weeks for submitting the applicant ’ s observations in reply to those of the respondent Government. Having noted that the time-limit fixed for that purpose had expired on 20 April 2015 and that no further extension had been sought before or on this date, the President rejected the request on 17 June 2015.
34. By letter of 5 August 2015 the respondent Government submitted a copy of a circular letter dated 8 June 2015 and sent by the Dublin Unit of the Italian Ministry of the Interior ( Ministero dell Interno ) to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children. The relevant part of the Netherlands Government ’ s letter which accompanied the circular reads:
“A new policy was considered necessary in view of the fact that reception facilities specifically reserved for such families frequently remained unused as a result of families having left for an unknown destination prior to transfer, or having obtained a court order barring their transfer. In order to safeguard appropriate facilities where families may stay together, the Italian authorities earmarked a total of 161 places, distributed over twenty-nine projects under the System for Protection of Asylum Seekers and Refugees (SPRAR). The authorities confirmed that this number will be extended should the need arise. As may be inferred from the letter of 8 June, this comprehensive guarantee is intended to avoid the need for guarantees in specific cases.
The Dutch Dublin-Unit will continue to inform its Italian counterpart at an early stage of an intended transfer of a family with minor children. On 13 July 2015, the Dutch, German and Swiss migration liaison officers to Italy issued a report on SPRAR in general, including the requirements the accommodation must fulfil, and on two projects they had visited at the invitation of the Italian Government. It is understood that later this year the European Asylum Support Office (EASO) will also report on the matter.
The Government is of the opinion that the new Italian policy will provide adequate safeguards that families with minor children are kept together in accommodation appropriate to their needs.”
35. On 26 January 2016, the applicant filed written comments on the respondent Government ’ s submissions of 5 August 2015.
36. On 22 February 2016, the respondent Government submitted a copy of a fresh circular letter dated 15 February 2016 and sent by the Dublin Unit of the Italian Ministry of the Interior to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit provided an updated list of “the SPRAR projects where asylum-seeker family groups with children will be accommodated, in full respect of their fundamental rights and specific vulnerabilities”.
C. Relevant law and practice
37. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum - seekers and transfers of asylum - seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 28-48, ECHR 2014 (extracts) ); Hussein Diirshi v. the Netherlands and Italy and 3 other applications (( dec. ), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013); Halimi v. Austria and Italy (( dec. ), no. 53852/11, §§ 21-25 and §§ 29 ‑ 36, 18 June 2013); Abubeker v. Austria and Italy ( ( dec. ), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013); Daybetgova and Magomedova v. Austria (( dec. ), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy (( dec. ), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013).

***

1. The applicant, Ms M.M.R., stated that she is a national of the Democratic Republic of the Congo (“the DRC”) and that she was born in 1988. She is currently living in the Netherlands. The President decided not to disclose the applicant ’ s identity to the public (Rule 47 § 4). She was represented before the Court by Mr G. Vergouw, a lawyer practising in Arnhem.
2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On an unspecified day in July 2010 the applicant fled from her native DRC to the Netherlands. She arrived on 8 July 2010 and applied for asylum. On 26 July 2010 she was interviewed by the immigration authorities about her identity, nationality and travel route. On 27 July 2010 she submitted corrections and additions ( correcties en aanvullingen ) to the report drawn up of the first interview ( eerste gehoor ). On 28 July 2010, the applicant was interviewed about her reason for seeking asylum. On 29 July 2010 she submitted corrections and additions to the report drawn up of the second interview ( nader gehoor ). In the interviews she gave the following account.
5. She was of Banyamulenge (ethnic Tutsi) origin and came from Bukavo, the capital of the South Kivu province in the east of the DRC. In August 2000 her father was killed in a fight with members of an angry crowd who had entered her family home in Bukavo, screaming that the Banyamulenge should leave the country. The applicant ’ s mother fled into the woods, together with the applicant and one of her sisters. Her older sister Ms E. and two of her brothers also fled, but after the incident she did not see them again. After the death of her father, the applicant and her remaining family were given a house and financial aid by Papa K., a friend of her father ’ s. In September 2004 six or seven men entered the applicant ’ s home, initially looking for Banyamulenge men and boys. They did not find any. The men then raped the applicant, as well as her mother and sister. Afterwards, the applicant was taken to a house where there were other women. She was raped and ill-treated on a daily basis. After four months, in January 2005, a man acting at the request of Papa K. managed to free her and took her to Papa K. ’ s house. After she recovered the applicant was moved at the instigation of Papa K. to her grandparents ’ house in the Nguba neighbourhood in Bukavo. In 2007 anti-Banyamulenge sentiments in the Congolese population resurfaced again. The applicant was hassled at school but eventually obtained a university diploma in 2008. For a while nothing major happened. Around the end of January or early February 2009, unknown men entered her grandparents ’ home, looking for Banyamulenge men and boys. They raped her grandmother, chopped off her grandfather ’ s arm and leg because he had refused to rape the applicant, raped the applicant, killed both her grandparents and took the applicant with them. As before, the applicant was taken to a house where there were other women and girls. She was sexually abused and ill-treated every two to three days. On 6 July 2010 a man acting for Papa K. came to the house and took the applicant with him.
6. On 30 July 2010 the Minister of Justice ( Minister van Justitie ;“the Minister”) notified the applicant of his intention ( voornemen ) to reject her asylum application. The certificate of loss of documents ( attestation de perte des pièces ) submitted by her was found to be a forgery. The certificate, which concerned the applicant ’ s loss of her voting card ( carte d ’ électeur ), was also found to be unauthentic in that it had not been drawn up by the competent authority. As the applicant gave incorrect statements about the document and continued to claim that it was authentic, the Minister found that serious doubts had arisen as to the applicant ’ s claimed identity and nationality. The absence of any other travel or identity documents and her inability to give a consistent, detailed and verifiable account of her journey to the Netherlands further detracted from the credibility of her account. The Minister also considered it odd that for someone who had lived virtually her entire life in Bukavo and who had gone to university, the applicant had hardly any basic knowledge about her hometown. For instance, she did not know the former colonial name of the town, who the mayor was, and that a “khadafi” is a petrol seller. She had to think about the name of the cathedral and anthem of the DRC, and she did not know the colour of car licence plates. The Minister therefore found it unlikely that the applicant actually came from Bukavu. As she had failed to establish her identity, her asylum claim, which was based on her having lived in Bukavu, was found to lack credibility.
7. In written comments ( zienswijze ) made on 3 August 2010, the applicant maintained her account and gave explanations for her inability to answer certain questions about Bukavu. She further requested to have a language analysis conducted to prove her origin.
8. In a decision of the same date the Minister rejected the applicant ’ s asylum application, confirming the finding that as she had failed to demonstrate her identity and nationality, her asylum claim lacked credibility. The Minister further found that there was no need for a language analysis test.
9. On 5 August 2010 the applicant lodged an appeal with the Regional Court ( rechtbank ) of The Hague, accompanied by a request for a provisional measure ( voorlopige voorziening ) to stay her expulsion pending the outcome of her appeal.
10. On 20 August 2010 a hearing took place before the Regional Court of The Hague sitting in Arnhem. It was attended by the applicant ’ s sister Ms E. who was living in the Netherlands and had obtained Netherlands nationality. She had been tracked down by the Dutch Council for Refugees ( VluchtelingenWerk Nederland ). The purpose of her attendance was to prove the applicant ’ s identity and nationality. To this end, Ms E. submitted documents concerning her own first asylum interview in the Netherlands, during which she had mentioned the applicant as a family member who had not accompanied her on her flight there.
11. By judgment of 27 August 2010 the provisional-measures judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Arnhem rejected the applicant ’ s appeal and the accompanying request for a provisional measure. The judge accepted the Minister ’ s decision and the underlying reasoning. The submissions of the applicant ’ s sister Ms E. were not taken into account by the judge.
12. The applicant ’ s further appeal to the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ) was dismissed on 28 October 2010. The Administrative Jurisdiction Division found that there were no grounds for quashing the impugned ruling ( kan niet tot vernietiging van de aangevallen uitspraak leiden ). Having regard to section 91(2) of the Aliens Act 2000, no further reasoning was required as the arguments submitted did not raise any questions requiring a determination in the interests of legal unity, legal development or legal protection in the general sense. No further appeal lay against that decision.
B. Relevant domestic law and practice
13. The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012).
14. At the material time, the respondent Government ’ s policy on asylum seekers from particular countries was devised by the Deputy Minister of Justice ( Staatssecretaris van Justitie ) on the basis of official country assessment reports published by the Minister of Foreign Affairs on the countries of origin of asylum seekers.
15. On 10 July 2013, the Deputy Minister for Security and Justice ( Staatssecretaris van Veiligheid en Justitie ) adopted a moratorium on decisions on asylum applications and expulsions ( besluit- en vertrekmoratorium) for asylum seekers of Tutsi origin hailing from the east of the DRC, including the provinces of North Kivu and South Kivu.
16. The moratorium was lifted by the Deputy Minister on 3 February 2014. That policy decision, published in the Official Gazette ( Staatscourant ) of 12 February 2014 (no. 4196), was based on the contents of an official country assessment report ( ambtsbericht ) on the DRC released by the Minister of Foreign Affairs on 27 November 2013. It was found in this report that there was no systemic, structural and organised discrimination of Tutsis in the DRC, that there was no structural violence in the DRC against the Tutsi population or other Congolese with a Tutsi background and that Tutsi groups could obtain protection from the DRC authorities. Although the general situation in the provinces of North Kivu, South Kivu, Haut-Uele and Bas-Uele in the eastern part of the DRC continued to be considered to fall within the scope of Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”; see, for further details, Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, §§ 30-32, 28 June 2011 ), an internal protection alternative was found to be available in other parts of the DRC, including Kinshasa, for asylum seekers hailing from those provinces who did not qualify for refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees.
17. In December 2014 the Minister of Foreign Affairs issued a new official country assessment report on the DRC, according to which the general situation in the provinces of North Kivu and South Kivu remained unsettled and unpredictable and that the situation of the Tutsis in the rest of the DRC, including Kinshasa, remained unchanged in comparison with the last reporting period. As regards the situation of women, the report reads:
“Women in the DRC occupy a subordinate position. Discrimination against women is widespread and they often have no access to decision-making, adequate healthcare, clean water, basic sanitation and legal remedies. The general position of women remained consistently bad during the reporting period. Several NGOs are active in the DRC in the area of women ’ s rights and the improvement of the position of women. A draft bill for equal treatment between men and women, which has been taken up for examination in parliament, has not yet been adopted during the reporting period.
The Constitution stipulates that the government is to see to it that sexual violence against women is eliminated, in particular when it is used as a weapon aiming at destabilising or disrupting the family. Such forms of sexual violence are classified in the constitution as a crime against humanity.
Sexual violence against women and girls is widespread throughout the entire country. Cases of sexual violence are most numerous in areas of war where rape is often used as a weapon in the conflict. The BCNUDH [United Nations Joint Human Rights Office] registered from January 2014 to June 2014 256 victims of sexual violence: 156 women in the Orientale province, 70 women and 3 men in North Kivu, 16 women in Katanga and 11 women in South Kivu. In August 2014 the BCNUDH registered 257 human rights violations, including 50 cases of sexual violence...
On 9 July 2014 President Kabila appointed Jeanine Mabunda Lioko Mudiayi as special advisor in the fight against sexual violence and the recruitment of child soldiers. She declared on 20 August 2014 that remarkable progress had been made in North Kivu in the fight against sexual violence. The Ministry of Defence announced [at the] end of August 2014 a national fight against sexual violence committed by Congolese soldiers. The police have trained special units in Goma and Bukavu to combat sexual violence. ...
For most women in the DRC is it difficult to call in protection against sexual violence. In theory it is indeed possible to report rape but in practice women decline to do so, due to social stigma and lack of confidence in the judicial system. When a victim decides to turn to the authorities, it remains questionable whether her case will be taken up. Police officers nearly always ask victims for a financial contribution for carrying out the investigation.
... the Congolese NGO LIZADEEL [ Ligue de la Zone Afrique pour la Défense des Droits des Enfants, Etudiants et Elèves ] has small centres in various towns in the DRC where victims of sexual violence are accommodated and accompanied to medical care facilities. There is a special telephone number for reporting sexual violence ...
In Kinshasa, a single woman with a job and able to fend for herself has sufficient freedom ... Single women from other parts of the country can join their own ethnic community ( communauté ) in Kinshasa. A single woman from out of town – who has no family in town – can temporarily find shelter with someone from their own community. Single women also seek support from the Catholic Church or one of the many awakening [evangelical] churches in Kinshasa. In Kinshasa legal training is given with a view to prosecuting perpetrators of sexual violence. The NGO LIZADEEL runs a shelter for traumatised women in Kinshasa.”
18. In a letter of 27 January 2015, the Deputy Minister informed the Lower House of Parliament that on the basis of the official country assessment report on the DRC of December 2014 the provinces of North Kivu and South Kivu continued to be considered to fall within the scope of Article 15(c) of the Qualification Directive, but that this qualification no longer applied to the provinces of Haut-Uele and Bas-Uele and therefore the “15(c) policy” in respect of these regions was discontinued.
C. Relevant international materials
19. The summary of the report on the “Conditions for Tutsis in Kinshasa”, published on 19 January 2015 by the Norwegian Country of Origin Information Centre, reads:
“The Tutsis ’ share of the population of the Democratic Republic of Congo is fairly small, but they have played a political role in the country that is much more significant than their number would lead one to expect. The Tutsi population of Kinshasa has always been rather small. When the second Congo war broke out in August 1998, Tutsis were victims of large pogroms in Kinshasa after they were collectively blamed for Rwanda ’ s interference in Congolese politics by the country ’ s president and authorities. During and after the pogroms, the Tutsis who survived were either evacuated or managed to leave Kinshasa by themselves. Since the early 2000s, there have been no reports of human rights violations against Tutsis in Kinshasa. This can be explained partly by there being few Tutsis living there, and partly by political circumstances that differ from those present at the outbreak of the second Congo war in 1998.”
20. The main findings of the report “Situation des femmes seules à Kinshasa”, released on 15 January 2016 by the Swiss State Secretariat for Migration SEM (Country Analysis) states:
“In a country which ranks among the lowest according to the Human development index, women are [also] subject to obvious discrimination. Already vulnerable as a woman, a single woman deprived of a family or a social network is even more vulnerable without a means of existence. However, some single women can organise [themselves] in Kinshasa and find support to improve their living conditions and attempt to secure their financial independence.”

***

1. The applicants, Ms M.R. and her two minor children, are Iraqi nationals who were born in 1 980, 2005 and 2008 respectively. They were represented before the Court by Ms Sini Ruutu, a lawyer practising in Helsinki.
2. The Finnish Government were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants ’ account of their circumstances
4. The applicant mother is a Kurd from Kirkuk, Iraq, who escaped from Iraq with her husband and two children due to persecution. The applicants claimed that the husband had been threatened by the “Islamic State” for having denounced to the authorities persons who were in possession of firearms. He had subsequently received many death threats, for which reason the family was relocated elsewhere in Northern Iraq. Despite the internal flight, the persecution continued. The family fled first to Turkey, where their persecutors tried to kidnap the children. They then fled to Italy.
5. The applicant mother fell gravely ill after her second pregnancy in 2009. Both of her kidneys were removed and she received a kidney transplant. Due to a lack of proper medication, she was in very poor condition during their escape from Kurdistan and does not even remember being in Italy.
Asylum proceedings in Finland
6. The applicants apparently arrived in Finland in July 2015 and sought asylum on 29 July 2015. The applicant mother was immediately admitted to hospital and was thereafter admitted to hospital on a monthly basis for periods of varying length. It appears that her husband has in the meantime been convicted of rape and that she has decided to divorce him. Upon their application for asylum in Finland on 29 July 2015, it was discovered that the applicants had previously been registered in Italy on 11 July 2015.
7. On 2 February 2016 the Finnish Immigration Service ( Maahanmuuttovirasto, Migrationsverket ) rejected the applicants ’ application and decided to order their return to Italy. The Service found that, on 31 August 2015, the Finnish authorities had informed the Italian Government about the applicants ’ family situation and the scheduled arrival of the applicant mother and her children, and that the Italian authorities had not opposed to receive them. The parents were capable of taking care of their children and removal to Italy was not against the best interest of the children, in whose interest it was to live with their parents. Italy had agreed to comply with the fundamental rights guaranteed by the EU Charter on Fundamental Rights and was to examine the applicants ’ asylum application. The applicants had a right to services provided by Italian authorities. In a Dublin transfer decision the substance of the asylum claim is not examined, so the decision regarding the applicants did not deal with the applicant mother ’ s illness or her factual position as a single mother due to the pre-trial detention of the children ’ s father.
8. By letter dated 10 February 2016 the applicants appealed to the Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ), requesting also a stay on removal.
9. On 12 February 2016 the Administrative Court decided not to grant a stay on removal.
10. By letters dated 17 February and 8 March 2016 the applicants made their second and third requests for a stay on removal. On unspecified dates the Administrative Court refused these requests.
11. The proceedings before the Administrative Court are still pending. However, a Dublin transfer decision is enforceable, notwithstanding that the case has not been finally determined.
B. Procedure under Rule 39
12. The application was lodged with the Court on 11 March 2016. On 15 March 2016 the duty judge of the Court decided to suspend the examination of Rule 39 of the Rules of Court until receipt of information from the respondent Government and to put factual questions to the Finnish Government under Rule 54 § 2 (a), which concerned, inter alia, the guarantees obtained from the Italian authorities in relation to the applicants ’ scheduled transfer to Italy.
13. The Finnish Government submitted their reply on 29 March 2016. In their letter, the respondent Government noted that the Italian authorities had informed the Finnish authorities of the guarantees for vulnerable cases, including families with children, by their letters of 8 June 2015 and 15 February 2016. A copy of these circular letters sent by the Dublin Unit of the Italian Ministry of the Interior ( Ministero dell ’ Interno ) was attached to the Government ’ s letter. In these circular letters the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children and provided an updated list of accommodation available to such families.
14. The Finnish Government noted that the Immigration Service would transfer the medical information detailing the special needs of the applicants to the competent authorities in Italy and, accordingly, those needs would be taken care of in such a manner that the applicants would receive any necessary medical care in Italy without interruption. They noted that the Finnish authorities had made sufficient efforts to obtain individual and specific guarantees from the Italian authorities, and that there was no reason to suspect that the applicants would be separated from each other or subjected to any treatment contrary to Article 3 of the Convention upon arrival in Italy. The examination of the applicants ’ application by the Court was premature, as no final decision by the relevant domestic courts had yet been made. Accordingly, the Government considered that the applicants ’ application should be declared inadmissible by virtue of Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies.
15. On 1 April 2016 the applicants were sent a copy of the Government ’ s letter for information.
16. On 5 April 2016 the duty judge of the Court decided, under Rule 39, to indicate to the Finnish Government that the applicants should not be transferred to Italy for the duration of the proceedings before the Court.
17. On 22 April 2016 the applicants commented on the information submitted by the Government, maintaining that they had not been informed to date of any individual or specific guarantees concerning their possible removal to Italy. A mere agreement between Finland and Italy to keep families with children together and to arrange accommodation for them could not be regarded as sufficient. The applicants ’ situation would be unclear if Italy could give no individual guarantees by the time of the possible removal. According to the applicants, the children ’ s father had been convicted of rape and sentenced to two years ’ imprisonment. The applicant mother was certain that her marriage was over, but acknowledged that the children ’ s well-being was fully dependent on their father ’ s presence. Regular family visits to prison had already been arranged for the children. The applicants wished the Court to continue the examination of their case.

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5.The applicant was born in 1978 and until his arrest lived in Sarapul, the Republic of Udmurtiya.
6.He was arrested on 18 October 2006. On 28 May 2007 the Sarapul Town Court convicted him of several criminal offences, including aggravated robbery committed by a criminal group, and sentenced him to six years and ten months’ imprisonment.
A.Conditions of detention
7.After the arrest on 18 October 2006 the applicant was taken to a police station in Sarapul and shortly thereafter to remand prison no. IZ-18/1 in Izhevsk. Twenty days later he was admitted to prison hospital no.4 (“the prison hospital”).
8.The parties provided conflicting descriptions of the conditions of the applicant’s detention in the prison hospital between March and October 2007.
1.Description submitted by the applicant
9.From March to May 2007 he was detained with nine other sick inmates in cell no. 4, which measured 36 sq. m. Accordingly, each detainee was afforded around 3.6 sq. m of personal space. The living space was further diminished by six bunk beds and a table. The cell had a window measuring 150 by 150 cm and two lamps, only one of which was functional. Inmates were allowed to smoke in the cell. The ventilation system, which was switched on in the mornings and evenings, and a small ventilation window measuring 25 by 30 cm, was unable to ensure sufficient inflow of fresh air. The cell had a squat toilet separated by a metal screen from the sink, but not from the table or the door.
10.In May 2007 the applicant was transferred to cell no. 1 which was not different in any aspect from cell no. 4, save for the facts that the cell had two windows and was located in the semi-basement and was therefore excessively humid.
11.In late June 2007 the applicant was placed in cell no. 20. The conditions of detention there were satisfactory. It was designed for ten detainees but only accommodated five.
12.Shortly after the applicant was returned to cell no. 4. He did not describe his further transfers between the cells, only claiming that the conditions of his detention had been deplorable.
13.As to the general conditions of detention, the applicant argued that daily outdoor exercises were dispiriting, as the prison yard, secured by high walls, was gloomy and small, and the outdoor activities did not last longer than an hour, or were sometimes even shorter.
14.The applicant used communal shower facilities which were in an appalling unsanitary condition. The floor was covered by a mixture of mud and detergent. Each detainee was afforded fifteen minutes to take a shower.
15.The quality of food served in the prison hospital was poor and scarce. Dishes largely comprised of cabbage, potatoes and barley grit. Meat or fish was only served on public holidays.
16.The applicant supported his claims with photos of the prison hospital and a dish served there.
2.Description submitted by the Government
17.Relying on certificates issued by the prison hospital administration on 22, 23 and 24 April 2013, extracts from records of inmates’ transfers on 7 and 28 February, 27 March, 5 and 23 April, 7 August, 7 and 11September, 1October 2007, and a detailed plan of the prison hospital, the Government claimed that the facility had not been overcrowded. Their submissions may be summarised as follows:
Period of detention
Cell no.
Cell surface area (sq. m)
Number of detainees
28 February to 21 March 2007
4
37
7
21 to 27 March 2007
6
22.5
5
27 to 31 March 2007
4
37
7
31 March to 5 April 007
Punishment cell no. 1
6.1
1
5 to 23 April 2007
4
37
7
23 April to 7 August
1
30.4
7
7 August to 7 September 2007
20
36.8
7
7 to 11 September 2007
4
37
8
11 September to 1 October 2007
14
39.4
9
1 to 9 October 2007
Punishment cell no. 2
6.7
1
18.Relying on photos of the prison hospital, written statements about the conditions of detention in 2007 made by three inmates in 2013, and on certificates issued by the prison hospital administration on 22 and 24 April 2013, the Government argued that the cell windows had allowed sufficient daylight so that inmates had been able to read and write. The cells had been equipped with four 40‑watt fluorescent tubes which had been lit from 6a.m. to 10 p.m. At night the cells had been lit by security lights.
19.A ventilation system had been installed in every cell. The natural ventilation had also been ensured through the windows. The heating system had properly functioned.
20.Toilets in the cells had been separated from the main area by a partition for privacy. Due to the security considerations involved, punishment cells designed for solitary confinement had no such partition, but were equipped with a curtain. The applicant had been able take a shower once a week for at least fifteen minutes.
21.The premises of the prison hospital had been in good sanitary condition, as it had been checked daily by staff members. The cells had been cleaned and disinfected every day.
22.In addition to a daily hour-long walk in the prison hospital’s yard, the applicant had been able to walk freely during the daytime within sanitary block.
23.The applicant had been provided with three hot meals per day and an extra allowance for ill inmates comprising bread, vegetables, meat, milk, cheese and fruit juice.
B.Medical treatment
24.Despite the Court’s request to produce the applicant’s complete medical record, the Government only submitted several illegible pages apparently belonging to his medical file. They further produced extracts from his medical history. The extracts contained fragments of information concerning the drugs prescribed.The following information on the applicant’s treatment may be deduced from the submitted documents.
25.The applicant did not suffer from tuberculosis prior to his arrest.
26.On the day of his arrest, 18 October 2006, the applicant was seen by a prison paramedic, who performed a general check-up, noting, inter alia, that the applicant’s lungs were clear. The next day a prison doctor confirmed that he was in good health. In late October a periodic chest X-ray showed traces of tuberculosis. The prison doctor studied the X-ray record and recommended the applicant’s transfer to the prison hospital.
27.Five days later the applicant was admitted to the prison hospital. A sputum smear test performed on admission led to his being diagnosed with infiltrative tuberculosis at the stage of lung tissue destruction, with inactive Mycobacterium tuberculosis (“MBT”). Two days later a new X-ray test confirmed the diagnosis.
28.Between 16 November 2006 and 11 January 2007 the applicant underwent inpatient anti-tuberculosis treatment in the prison hospital. There is no information describing the nature of the treatment. For unknown reasons it was unsuccessful.
29.According to the medical records, in the following year the applicant “received standard anti-tuberculosis treatment”. However, he stated that between March 2007 and March 2008 he had only been given basic febrifuges and painkillers. During that period he was seen by the prison doctor on three occasions. No significant changes were registered. The size of the lung cavities remained the same.
30.In the beginning of 2008, when a chest X-ray and tomography examinations registered a new focal point of infiltration in the right lung, the applicant’s doctor confirmed the extent of the deterioration of the applicant’s health.
31.In early March 2008 the applicant was examined by a commission of doctors and certified as having a second-degree disability. A three-month drug regimen based on pyrazinamide, ethambutol, capreomycin and other medication was prescribed. According to the applicant, one of the drugs was out of stock.
32.On 18 March and 1 April 2008 the applicant failed to see the attending doctor.
33.In May 2008 the treatment regimen was amended with capreomycin removed and new drugs (rifampicin, cycloserine and others) added into the applicant’s daily drug intake.
34.In the following two months the applicant interrupted his treatment for a period of two or three weeks, having refused to take some drugs and having gone on hunger strike. In the late June 2008 his tuberculosis transformed into MBT-positive form.
35.Between July 2008 and March 2009 the applicant received inpatient treatment which had no effect on his medical condition. The deterioration of his health continued in the summer and autumn of 2009.
36.An X-ray and a tomography examination performed in September2009 indicated that the applicant’s lungs were filled with caseation. The applicant was taken for a month-long inpatient treatment in the hospital with his condition had been brought under control. By September 2010 his health had improved and the lung cavities had disappeared.
37.According to his medical records, in December 2010 the applicant refused to take a few of the anti-tuberculosis drugs. In April, September and November 2011 he did not consult the attending doctor.
38.In September 2011 tuberculomas replaced the lung cavities. In2012‑13 calcifications and pulmonary fibrosis scars were only registered in the applicant’s lungs. The most recent sputum smear test in February2013 did not indicate whether the applicant remained MBT‑positive.
39.The parties did not submit information on the applicant’s further treatment.
C.Complaints regarding medical treatment
40.In the end of 2006 the applicant complained about the poor quality of medical care to the Ministry of Health of the Republic of Udmurtiya. By a letter of 17 January 2007 his claim was rejected.
41.In the early 2007 he lodged a similar claim with the Service for the Execution of Sentences in the Republic of Udmurtiya. It was dismissed on 23 April 2007.
42.In 2008 the applicant unsuccessfully complained to the Federal Ombudsman about his alleged lack of access to information about his health and diagnoses. His claim was not examined on the merits.
43.He further complained of the lack of medical assistance to the prosecutor’s office of the Republic of Udmurtiya. On 21August 2008 his complaint was dismissed.
44.In 2010 the applicant lodged two claims with the Industrialnyy District Court of the Republic of Udmurtiya arguing that he had not benefitted from adequate medical care in detention. The claims were dismissed. According to the Government, the applicant did not appeal. The parties did not submit copies of the judgments.

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5.The applicant was born in 1992 and lives in Cotiglet, Romania. At the time of the events complained of, she was aged fourteen years and four months.
A.The events of 13 January 2007
6.On 13 January 2007 the applicant was attending a funeral wake in her village. At around 8 p.m. she went with two girlfriends, P.A. (ten years old) and Z.F.D. (fourteen years old) to fetch some drinking water at a neighbour’s house. On their way, three boys, M.I.C. (fifteen years old), M.S. (fifteen years old) and M.C.S. (sixteen years old), approached the girls. M.I.C. pulled the applicant’s arm behind her back, grabbed her head and told her to go with him. The boys took her into the garden of a nearby deserted building, where a man, M.C. (twenty-two years old), was waiting.
7.The three boys left and M.C. pushed the applicant to the ground, partially undressed her and had sexual intercourse with her. In the meantime, another man, A.C.L. (twenty-six years old), arrived at the scene and tried to have sex with the applicant, but was physiologically incapable. A third man, V.F. (thirty years old) was also there. He had also intended to have sexual intercourse with the applicant but finally decided to help her get up, clean and dress herself, and accompanied her back to the house where the funeral wake was being held. Twenty minutes later the applicant’s father came looking for her and she told him that she had been raped. He immediately alerted the police.
B.The applicant’s subsequent medical condition
8.The applicant underwent a forensic examination by a doctor on 14January 2007. According to the subsequent forensic medical report, there were no signs of traumatic lesions on the applicant’s body and no sperm could be found either. The forensic doctor found signs of pathology which could have resulted from sexual intercourse. Lastly, the doctor mentioned that the applicant was in a state of anxiety and fear, and he recommended psychological counselling and possibly a neuropsychiatric examination.
9.On 15 February 2007 the applicant was admitted to the Oradea Psychiatric Hospital. The hospital observation sheet stated that the applicant had sought treatment because she had been raped. She was diagnosed with stress-related anxiety, irritability, a sleep disorder, slight intellectual disability (an IQ of 68) and lice infestation. She was prescribed treatment with anxiolytics and anti-depressives, and was discharged from hospital in a slightly improved condition on 20 February 2007.
10.On 5 March 2007 an additional forensic medical report was issued at the request of the applicant’s father. It stated that the applicant presented a psychological disorder caused by a physical and psychological trauma to which she had been exposed on 13 January 2007. The doctor held that, according to the documents presented by the Oradea Psychiatric Hospital, the applicant’s condition had required fourteen days of medical care. No signs of pregnancy had been detected.
11.On 24 April 2007 the applicant was readmitted to the Oradea Psychiatric Hospital. According to the hospital observation sheet, her state of health was slightly improving but she had started to have headaches. She was discharged from hospital the following day, having been told to continue the initial treatment and to return for further tests at the end of May.
12.In July 2007 the applicant was again hospitalised in the Oradea Psychiatric Hospital for fourteen days with symptoms including frontal headaches, depression, tearfulness and feelings of social isolation. She was diagnosed with an emotional disorder, a sleep disorder and anaemia, among other conditions. She received treatment with neurotropic drugs, anxiolytics and vitamins. The doctors prescribed further treatment with neurotropic drugs and anxiolytics until a follow-up examination scheduled for September.
C.The criminal investigation
13.On 14 January 2007 the applicant, accompanied by her father, lodged a formal complaint with the police. On the same day she made a written statement about the events of the previous day, accusing the three adult men involved in the incident of rape. She also mentioned that, all the way to the deserted house, M.I.C. and M.S. had held her by her arms and neck, not allowing her to leave, and had threatened to beat her if she screamed for help. The police accompanied the applicant and her father to the scene of the incident and took photographs. No objects or other evidence were found.
14.Later the same day, written statements were given to the police by M.C. and M.I.C. M.C. stated that he had not forced the applicant in any way and he had not been aware that she was under fifteen. He alleged that he had seen the applicant during the wake and had invited her to go with him to the deserted house, which she had done voluntarily. After he had had consensual sex with the applicant, he had left her in the company of M.C.S. and had returned to the wake. M.I.C. denied any involvement in the events, stating that he had not left the house where the wake had been held.
15. On 15 January 2007 A.C.L., V.F. and M.C.S. gave statements to the police.
16.A.C.L. stated that on the evening of 13 January 2007 he had been passing by the deserted house when he had heard noises coming from the garden. He decided to go inside to see what was happening. There he met V.F., who told him that M.C. was there with a girl. He saw M.C. on top of the applicant, having sex. After he had finished, M.C. called him to do the same thing. He tried, but was physiologically incapable of having sex so he stood up and put his clothes back on. He left together with M.C., who was waiting for him nearby.
17.M.C.S. stated that he had seen how M.I.C. had grabbed and twisted the applicant’s arm and had left with her from the wake. He had followed them together with M.S., but received a phone call and continued on a separate road.
18.In his statement, V.F. claimed that he had been at the wake when the applicant’s brothers had asked him to help them look for their sister. He left alone and went to the deserted house where he found the applicant with M.C. A.C.L. was also there. At that moment his phone rang so he did not pay attention to the three people. When he finished on the phone he heard the applicant calling him and went to her. She was alone, lying on the ground, undressed from the waist down. He asked her what had happened but she did not say anything. When she asked him to come closer, he started kissing her and wanted to have sex with her, but felt uneasy about it, so he helped her get dressed and clean up the mud on her coat, and accompanied her back to the wake.
19.On 17 January 2007 the applicant’s two girlfriends made statements to the police. They mentioned that M.I.C., M.S. and M.C.S. had approached the applicant, twisted her arm to her back and taken her with them. When she returned to the wake, the applicant did not tell them where she had been. P.A. also stated that she had heard the applicant shouting at the three boys to leave her alone. Z.F. had also seen the three boys surround the applicant and take her with them.
20.The applicant gave another detailed account of the facts in a statement drafted on 18 January 2007. She repeated that the three boys had forced her to go with them without saying where they were taking her, so she had not known what was going on. Once they arrived at the deserted house, there was M.C. who threatened to beat her if she would not accept to have sex with him. She further clarified that M.C.S. had kept her there by force until M.C. had raped her a second time. Then A.C.L. and V.F. came around and tried to rape her but failed and it was V.F. who had finally helped her leave the scene of the incident. Lastly, she mentioned that she had never had sex before the incident of 13 January and that M.C., A.C.L. and V.F. had known her and had been aware of her age.
21. M.S. stated to the police on 22 January 2007 that he had heard M.C. asking M.I.C. to take the applicant to the deserted house without telling her why. When the girls came out of the house where the wake was being held, he saw M.I.C. going after them and grabbing the applicant’s head, twisting her arm to her back and taking her in the direction of the deserted house. He denied having touched or spoken to the applicant. He had just walked behind her and continued on his way past the deserted house. M.C.S. gave the same account of the facts.
22.M.I.C. was questioned again on 22 January 2007, when he re‑considered his initial statement and told the police that M.C. had asked him, M.S. and M.C.S. to “grab” the applicant and take her to the deserted house. He then admitted having grabbed her by the arms, but claimed that afterwards she had walked along with him voluntarily.
23.On 6 February 2007 the police took another round of statements from those involved in the events, who reiterated their previous statements. In addition, all the men questioned stated that they knew for a fact that the applicant had had sex before with other men and that they had been unaware of her age at the time.
24.On 2 March 2007 the case was transmitted to the prosecutor’s office attached to the Bihor County Court in order for it to pursue the investigation into the crime of sexual intercourse with a minor.
25.On 26 April 2007 the applicant gave a statement before the prosecutor and requested that M.C., A.C.L., M.I.C., M.C.S. and M.S. be investigated for rape and complicity to rape.
26.M.C. and A.C.L. also gave brief statements before the prosecutor. M.C. claimed on this occasion that the applicant was the one who had sent word through M.I.C. that she wished to meet with him. A.C.L. stated that he knew the applicant had already had sex before and she had poor school results.
27.On 23 May 2007 the prosecutor indicted M.C. for the crime of sexual intercourse with a minor and A.C.L. for attempt to commit the same crime. The prosecutor based the decision on the following facts: the two men declared that they had not forced the applicant in any way; the forensic medical certificate attested to no signs of violence on the applicant’s body; and after returning to the wake she had not told her girlfriends what had happened to her. In view of those elements it was considered that the applicant had consented to have sex with M.C. and A.C.L. The witnesses, M.I.C., M.C.S. and M.S., did not know about M.C.’s intentions and therefore it was considered that they had no criminal responsibility in the case. The criminal proceedings were discontinued with respect to V.F. because he had not had sexual intercourse with the applicant.
D.The trial
28.The Beiuş District Court scheduled a first hearing in the case on 15June 2007. The applicant stressed before the court that M.C. had twice had sexual intercourse with her without her consent. In support of her allegations, she submitted copies of the medical reports referred to in paragraphs 8-11 above. She also claimed civil damages for the suffering caused by the actions of the two defendants.
29.M.C. testified before the court that, once he had arrived at the funeral wake, M.I.C. had told him that the applicant was waiting for him at the deserted house. When he reached the meeting point, the applicant started kissing him and asked him to go with her to the back of the garden, away from the road. They then lay down on his coat and the applicant started undressing herself. They had sexual intercourse once, which was consensual. He did it because V.F. had told him once that he had had sex with the applicant in the past. Lastly, M.C. mentioned that he had done this before with other girls at other funeral wakes.
30.A.C.L. reiterated the statements he had given during the investigation. He concluded his testimony before the court with the remark:
“... I was asked by someone in the village whether it was true what happened and whether I was not ashamed of what I had done, but I replied that it was not safe to leave girls alone on the streets.”
31.On 31 August and 28 September 2007 the court heard statements from the applicant’s two girlfriends, as well as from M.I.C. and M.C.S. In her testimony Z.F. claimed that the applicant had been scared when she had returned to the wake. She also mentioned that the applicant was a well‑behaved girl who did not go out with boys or go to bars. M.C.S. stated that he had heard the applicant asking M.I.C. to let go of her hand, but the latter had refused.
32.In his testimony M.I.C. also stated as follows:
“The next morning we went to the police to give statements and afterwards I asked M.C. what had really happened. He then told me that he had raped her [the applicant]. He did not seem too happy about his actions. We have played this game before at another wake: you must take the girl to a secluded place where she must be kissed by the boy she chooses. When the defendant [M.C.] told me he had raped the victim, he also mentioned that he had kissed her.”
33.On 12 October 2007 the Beiuş District Court convicted M.C. of sexual intercourse with a minor and gave him a suspended sentence of one year and four months. A.C.L. was convicted of attempted sexual intercourse with a minor and given a suspended sentence of one year.
34.In reaching its decision the court firstly observed that the forensic medical report indicated that no signs of violence had been detected on the victim’s body. The court further established the course of the events on the evening of 13 January 2007 as described by M.I.C., M.C.S. and M.S. It cited the parts of the statements given by the applicant’s two girlfriends in which they had mentioned that the applicant had not cried for help. Lastly, the court concluded that the two defendants ought to have known that the injured party was under the age of fifteen. The court did not address the applicant’s statement, the medical reports attesting to her medical condition or her requests for the incident to be examined as rape. It rejected her claim for civil damages, considering that the medical conditions described in the forensic reports had no connection with the incident at issue. In addition, it had come to light from witness statements that the applicant had had sex before the impugned incident.
35.All parties to the trial, including the applicant represented by her lawyer, appealed against the decision of the Beiuş District Court. In her reasons for appeal the applicant claimed that the sexual abuse committed against her could only be classified as rape. She asked the court to extend the examination of the case to M.I.C., M.C.S. and M.S., whom she considered accomplices to rape. Lastly, the applicant considered that the medical reports submitted clearly attested to the suffering she had endured and therefore the court had erred in rejecting her claim for damages.
36.On 27 February 2008 the Bihor County Court decided to increase the sentences imposed on the two defendants to three years’ imprisonment for M.C. and eighteen months’ imprisonment for A.C.L. The decision of the Beiuş District Court concerning the classification of the crime and the suspension of the execution of the sentences was upheld. The County Court also decided to award the applicant 2,000 Romanian lei (RON) (approximately 600 euros (EUR)) in respect of non-pecuniary damage. In reply to the applicant’s reasons for appeal, the court reasoned:
“It must be mentioned that the victim tried to convince the court that, in fact, she had not agreed to have sexual intercourse with the two defendants and that she had been the victim of a rape, but these allegations had not been proved in any way. Hence, the witnesses Z.F. and P.A. ... stated that ... the injured party had not cried for help ... and had not told them what had happened. ...
It must also be noted that from the forensic medical report ... it does not appear that the injured party was the victim of a rape, since she displayed no signs of post‑traumatic injury on her body.”
37.An appeal on points of law (recurs) lodged by the applicant against that judgment was rejected as ill-founded on 8 May 2008 by the Oradea Court of Appeal. The court declared briefly that by corroborating the victim’s statement with the forensic medical report of 14 January 2007, the existence of a crime of rape had been excluded in the case.
40.A detailed description of the relevant international material concerning sexual violence against children and women can be found in M.G.C. v. Romania (cited above, §§ 38-46).
41.As regards people with disabilities, on 2 February 2005 the Committee of Ministers of the Council of Europe adopted the Resolution ResAP(2005)1 on safeguarding adults and children with disabilities against abuse. The Resolution recognizes that abuse against people with disabilities may also take the form of sexual abuse and exploitation, including rape, sexual aggression, indecent assault or indecent exposure. In this respect it reads as follows:
“These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘abuse’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners. ...
They should encourage cooperation between authorities and organisations in finding measures to prevent abuse, to improve detection and reporting of abuse, and to support the victims.”
42.The relevant parts of Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society read as follows:
“Persons with disabilities constitute a varied population group, but all have in common ... the need for additional safeguards in order to enjoy their rights to the full ... There are indicators that the rate of abuse and violence committed against persons with disabilities is considerably higher than the rate for the general population, and higher in women with disabilities ...
While governments cannot guarantee that abuse will not happen they must do their utmost to establish protection and the strongest possible safeguards ... Persons with disabilities who experience abuse or violence should have access to appropriate supports. They must have a system in which they can have sufficient confidence to report abuse and expect follow-up action, including individual support. Such systems require personnel who are skilled and qualified to detect and respond to situations of abuse.”
43.The United Nations Special Rapporteur on Disability stated the following in her 2006 report on the question of monitoring the situation of people with disabilities:
“2. People with developmental disabilities are particularly vulnerable to human rights violations. Also, people with disabilities are rarely taken into account, they have no political voice and are often a sub group of already marginalized social groups, and therefore, have no power to influence governments. They encounter significant problems in accessing the judicial system to protect their rights or to seek remedies for violations; and their access to organizations that may protect their rights is generally limited. While non-disabled people need independent national and international bodies to protect their human rights, additional justifications exist for ensuring that people with disabilities and their rights be given special attention through independent national and international monitoring mechanisms.”
44.In the context of the Convention on the Rights of Persons with Disabilities the United Nations had published the following relevant findings:
“Persons with disabilities are more likely to be victims of violence or rape, according to a 2004 British study, and less likely to obtain police intervention, legal protection or preventive care.
Research indicates that violence against children with disabilities occurs at annual rates at least 1.7 times greater than for their non-disabled peers.”

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6.The applicants were born in 1955 and live in Baku.
7.The first applicant is a well-known human rights defender and civil society activist. She is the director of the Institute for Peace and Democracy (“the Institute”), a non-governmental organisation specialising in human rights protection and conflict resolution.
8.The second applicant, the first applicant’s husband, is a researcher and the head of the Conflict Resolution Department of the Institute.
A.Institution of criminal proceedings against the first applicant and her detention pending trial
9.On 30 July 2014 the first applicant was arrested by the police and was taken to the Serious Crimes Department (“the SCD”) of the Prosecutor General’s Office. On the same day she was charged under Articles 178.3.2 (large-scale fraud), 192.2.2 (illegal entrepreneurship), 213.2.2 (large-scale tax evasion), 274 (high treason), 320.1 and 320.2 (falsification of official documents) of the Criminal Code.
10.On 30 July 2014 the Nasimi District Court, relying on the official charges brought against the first applicant and the prosecutor’s request for application of the preventive measure of remand in custody (həbs qətimkan tədbiri), ordered her detention pending trial for a period of three months. The court justified its application of the preventive measure by the gravity of the charges and the likelihood that if released, she might abscond from the investigation.
11.On 1 August 2014 the first applicant appealed against this decision, claiming that her detention was unlawful. She submitted, in particular, that there was no reasonable suspicion that she had committed a criminal offence, and that there was no justification for the application of the preventive measure of remand in custody. She pointed out in this connection that her detention was related to her activities as a human rights defender and that she had been punished for her activities. She further complained that the court had failed to take into account her personal circumstances, such as her state of health and age, when it had ordered her detention pending trial.
12.On 6 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the first-instance court’s decision was lawful.
13.On 24 October 2014 the Nasimi District Court extended the first applicant’s detention pending trial by four months, until 28 February 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed.
14.On the same day the Nasimi District Court also dismissed the first applicant’s request to be released on bail or placed under house arrest instead of in pre-trial detention.
15.On 27 October 2014 she appealed against these decisions, reiterating her previous complaints.
16.On 30 October 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court’s decisions of 24 October 2014.
17.No further extension decisions were included in the case file.
B.Institution of criminal proceedings against the second applicant and his detention pending trial
18.On 30 July 2014 the second applicant was questioned by an investigator at the SCD. Following the interrogation, he was charged under Articles 178.3.2 (large-scale fraud) and 274 (high treason) of the Criminal Code.
19.On the same day the investigator decided to apply the preventive measure of placement under police supervision (polisin nəzarəti altına vermə qətimkan tədbiri), taking into account his state of health, in particular the fact that he suffered from chronic hypertension. The relevant part of the decision reads as follows:
“Taking into consideration the state of health of the accused, Arif Yunusov, who was diagnosed with grade 3 hypertension and hypertensive crisis, and given medical treatment in the Central Oil Workers’ Hospital and Baku City Clinical Hospital No. 1 ... it was appropriate to choose the preventive measure of placement under police supervision.”
20.It appears from the documents submitted by the Government that on 30 July 2014 the second applicant was examined by two experts, who issued forensic medical report no. 185/KES dated 31 July 2014. The report confirmed that the second applicant suffered from chronic hypertension. The report also indicated that “considering A. Yunusov’s current state of health, it is possible to carry out investigative actions with him” (“A.Yunusovun hal-hazırkı sağlamlıq durumu ilə əlaqədar onunla istintaq hərəkətlərinin aparılması mümkündür”).
21.On 5 August 2014 the second applicant was arrested by the police. On the same day the prosecutor lodged a request with the Nasimi District Court asking it to replace the second applicant’s placement under police supervision with detention pending trial. The prosecutor justified his request by the second applicant’s failure to comply with the requirements of the preventive measure of placement under police supervision. The request also indicated that forensic medical report no. 185/KES dated 31 July 2014 did not reveal anything that would prevent the second applicant from participating in the investigation.
22.On 5 August 2014 the Nasimi District Court ordered the second applicant’s detention pending trial for a period of three months. The court justified the detention by the gravity of the charges and the likelihood that if released he might abscond from the investigation.
23.On 8 August 2014 the second applicant appealed against this decision. He submitted, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for replacing the preventive measure of placement under police supervision with detention pending trial. He also pointed out that his detention was related to his and his wife’s activities as a civil society activist and human rights defender and that the court had failed to take into account his personal circumstances, such as his state of health and age, when it had ordered his detention pending trial.
24.On 11 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the detention order was justified.
25.On 29 October 2014 the Nasimi District Court extended the second applicant’s detention pending trial by four months, until 5 March 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed.
26.On 30 October 2014 the Nasimi District Court also dismissed the second applicant’s request to be released on bail or placed under house arrest instead of in pre-trial detention.
27.On 3 November 2014 the second applicant appealed against these decisions, reiterating his previous complaints and arguing that the first‑instance court had failed to justify his continued detention.
28.On 6 November 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court’s decisions of 29 and 30October 2014.
29.No further extension decisions were included in the case file.
C.The applicants’ state of health before their arrest
30.The medical documentation submitted by the parties shows that the first applicant suffers from a number of illnesses. In particular, she has suffered from chronic hepatitis (hepatitis C) since 1997. People with hepatitis C usually suffer from constant exhaustion, joint, muscle and abdominal pain, general sickness and weakness, and often depression. A low-fat diet is required to reduce liver damage. The disease is potentially fatal. The first applicant regularly underwent medical treatment in Germany before her arrest.
31.Since 2009 she has also had type 2 diabetes, which is non-insulin dependent and requires sufferers to follow a special diabetic diet and take regular exercise. In addition, she suffers from myogelosis (muscle stiffness), arterial hypertension and a single cyst in the left kidney.
32.It also appears from the medical documents in the case file that she underwent surgery on both eyes in Germany before her arrest and needs specialist medical care as a follow-up, to avoid any risk of damage to her eyesight. The relevant part of a letter dated 5 September 2014 from the head of the Department of Ophthalmology at the Asklepios Clinic in Hamburg reads as follows:
“Mrs Yunusova’s right and left eyes were both myopic with cataracts.
It is absolutely necessary that she undergoes a repeat consultation and examination for the development of capsular fibrosis, which can lead to visual impairment and needs surgical laser treatment.
It is also absolutely necessary that she undergoes a complete bilateral examination of her retina since she has had myopia and her risk of retinal detachment is substantially higher than in normal eyes and is further increased by the previous surgery. Any signs of retinal tears must be treated early with a laser retinopexy to prevent further damage and minimise the risk of permanent visual impairment.”
33.The medical documentation submitted by the parties shows that the second applicant suffers from grade 3 chronic hypertension and hypertensive crisis, with an increased risk of cardiovascular complications. He regularly underwent medical treatment in Germany before his arrest. He was also hospitalised from 25 to 28 April 2014 in the Central Oil Workers’ Hospital and from 29 April to 6 May 2014 in Baku City Clinical Hospital No. 1.
D.The applicants’ conditions of detention and medical care
1.The first applicant’s conditions of detention and medical care
(a)The first applicant’s account
34.The first applicant was detained in a cell with four other detainees, two of whom were extremely noisy. Heating was available but inadequate. The electricity was cut off from 2 to 3 p.m. and from 1 to 8 a.m., which made it impossible to use a heater. The temperature inside the cell and in the walking area was very low in winter. There was no proper ventilation inside the cell and the temperature was very high in summer. There was a problem with hot water distribution in the cell. In particular, she was not informed of the distribution time for the hot water and could not obtain more when necessary. Moreover, there was only one refrigerator for all the detainees on her floor which was not sufficient.
35.According to the first applicant, upon her arrival at the detention facility, she was examined by a doctor who confirmed that she had type 2 diabetes and chronic hepatitis C.
36.From 31 July to 5 August 2014 she was provided with the necessary diabetic food and medicine by the second applicant who, as a close family member, was entitled to deliver her parcels. However, following his arrest on 5 August 2014, she was deprived of the necessary diabetic food and medicine. In particular, the detention facility administration did not allow her lawyer or friends to deliver her parcels until 23 August 2014, arguing that only the family members of a detainee could send in parcels.
37.In this connection, it appears from the documents submitted by the first applicant that on 6 August 2014 her lawyer asked the investigator in charge of the case to allow her friends, A.I. and S.A., to deliver her a parcel. He pointed out that, taking into consideration that on 5 August 2014 her husband had been arrested and that her only daughter lived abroad, the first applicant did not have any other family member to do this. On 22 August 2014 the lawyer also lodged a request with the administration of the detention facility (“the administration”), complaining that on 21 August 2014 employees had refused to receive a parcel for the first applicant on the grounds that it had not been sent in by a family member.
38.On 22 August 2014 the first applicant lodged a request with the administration and the investigator in charge of the case, asking for a medical examination at her own expense by a doctor of her own choosing, A.G. She specified in her request that she suffered from diabetes and other serious illnesses, and that under domestic law detainees could be examined by a doctor of their own choosing.
39.By a letter of 4 September 2014, the deputy governor of the detention facility replied to her request, noting that there was no need for a medical examination by A.G. In this connection, he pointed out that the first applicant’s state of health was stable and being monitored by the detention facility doctors. The letter also indicated that on 19 August 2014 she had been examined by an endocrinologist from the Ministry of Health, who had recommended that she continue her previous treatment.
40.By a decision of 9 September 2014, the investigator dismissed her request, finding that all the necessary measures had been taken for her medical treatment in the detention facility.
41.On 23 September 2014 the first applicant’s cell was searched. On the same day she was deprived of her right to make phone calls for one month. She was also obliged to take a cold shower because the shower room had no hot water.
42.On 26 September 2014 the first applicant’s lawyer asked the administration to provide him with a copy of the administrative decision depriving the first applicant of her right to make phone calls. He did not receive any response to his request.
43.On 14 October 2014 the first applicant’s lawyer asked the administration to provide him with a list of medication prescribed to the first applicant during her detention. He did not receive any response to his request.
44.By a letter of 21 October 2014 the deputy governor of the detention facility responded to the first applicant’s complaint of being unable to receive parcels following her husband’s arrest. He noted that she had received a parcel sent in by A.I. on 23 August 2014. The letter was however silent as to the delivery of any parcels between 5 and 23 August 2014.
45.In a statement dated 4 May 2015 submitted by the first applicant to the Court with the applicants’ reply to the Government’s observations, she stated that she had not been provided with any documents concerning her state of health. As regards her medical treatment in detention, she stated that she had been examined on 29 December 2014 and 12 March 2015 at the Baku Diagnostic Centre by C.W., a German doctor from Charité, a university hospital in Berlin. During the examination on 29 December 2014, she had been insulted and humiliated by a doctor named R.A when C.W. had been out of the room. In March 2015 the eyesight in her left eye had drastically deteriorated. The ophthalmologist who had examined her on 31March 2015 stated that the same process would soon begin to happen to her right eye. She further stated that in detention her weight had dropped dramatically because of her illnesses and conditions of detention.
(b)The Government’s account
46.On 31 July 2014 the first applicant was admitted to the Baku Pre‑trial Detention Facility of the Ministry of Justice.
47.She was held with four other detainees in a cell measuring 26.32sq.m designed to hold six detainees. The cell was adequately lit. It had two windows measuring 1.2 x 1.4 metres. The sanitary facilities were separate from the rest of the cell and were adequately ventilated. She was provided with food, water, bedding, clothing and other essentials.
48.Upon her arrival at the detention facility on 31 July 2014, she underwent a series of medical examinations. Fluorography and electrocardiography examinations did not reveal any changes to her pathological condition. Her neuropsychological status was evaluated as satisfactory. An ultrasound examination of her abdomen and external examination of her body confirmed that she had previously undergone surgery. General and biochemical blood tests concluded that her blood sugar level was a little higher than average. Following these examinations, she was diagnosed with chronic hepatitis C, type 2 diabetes, gallstones, a single cyst in the left kidney (measuring 0.91 cm) and pseudophakia (replacement of the natural lenses of the eyes with intraocular lenses). The Government provided the Court with copies of the results of the medical tests and examinations carried out that day.
49.It further appears from the extracts of the first applicant’s detention facility medical records (məhkumun tibbi kitabçası) submitted by the Government that on 31 July 2014 the doctor recommended that the first applicant continue the medical treatment for diabetes prescribed by her previous doctor, the drug Galvus.She also had the rules of a diabetic diet explained to her and was provided with a blood glucose meter to monitor the level of sugar in her blood.
50.On 2 August 2014 the first applicant was provided with medication brought in by her relatives, including 20 Galvus Met capsules, 90 Glifer capsules, 308 Galvus tablets, 30 Beloc tablets and 17 Spasmalgon tablets. The next delivery of medication, comprising 20 Spasmalgon tablets, took place on 29 August 2014. The first applicant’s need for medication during this period was fully covered by the medication delivered on 2 August 2014. As to the provision of diabetic food from 5 to 23 August 2014, upon her arrival at the detention facility, the first applicant was registered on a list of diabetic detainees and was consequently provided with diabetic food during this period.
51.On 19 August 2014 she was examined by an endocrinologist in the detention facility, who recommended that she continue her previous treatment. On the same day she also underwent a blood test to determine her sugar level and the state of the hepatitis C. The Government provided the Court with copies of the results of the medical tests and examinations conducted that day.
52.On 23 September 2014 she was examined by a detention facility doctor. She complained of general sickness without raising any particular complaints.
53.On 8 and 10 October 2014 she was examined by a neurologist and a therapist. No pathological conditions were revealed.
54.On 19 November 2014 the first applicant refused to be examined by an ophthalmologist at the National Ophthalmology Centre in order to establish the impact of the diabetes on her eyesight. According to the Government, on 25 and 26 November and 2 and 3 December 2014 she again refused to be examined by the detention facility doctors. They submitted various records compiled by the doctors to support this claim.
55.On 11 December 2014 she was examined by an endocrinologist who assessed her state of health as stable. The Government did not submit any documents concerning this medical examination.
56.On the same day she refused to undergo various medical examinations by a virologist, endocrinologist and physician from the Ministry of Health in the presence of the members of the joint working group on human rights and members of the public committee under the Ministry of Justice. However, she refused to sign anything to say that she had refused to be examined.
57.On 12 December 2014 the first applicant’s lawyer lodged a request with the prosecution authorities, complaining of the deterioration of her state of health in detention and asking for a forensic medical examination. The lawyer submitted that her hepatitis C and diabetes were serious and that since her detention her weight had dropped dramatically from 61 to 47 or48kg. The lawyer also pointed out that, as the first applicant had not been provided with adequate medical care in detention, she refused to be examined by the detention facility doctors.
58.On the same day the investigator in charge of the case ordered a forensic medical examination of the first applicant. The experts could only examine her on 8 January 2015 in the presence of her lawyer due to her initial refusal. They issued forensic medical report no. 424/KES, which indicated that the examination had begun on 18 December 2014 and ended on 28 January 2015. The report confirmed that the first applicant suffered from a number of illnesses, including hepatitis C and diabetes. However, the experts concluded that the illnesses were not life-threatening and could be treated in detention. The relevant part of the conclusion of the report reads as follows:
“4. The illnesses revealed in L.Yunusova, being chronic in nature, do not pose any danger to her life and she does not currently need immediate and specialist treatment.
5. If necessary, L. Yunusova can receive outpatient treatment in her conditions of detention in respect of the hepatitis C and diabetes which were diagnosed.
6. L. Yunusova’s current state of health allows her to remain in detention and does not pose any danger to her life.”
59.In the meantime, on 29 December 2014 the first applicant underwent a number of medical tests and examinations in the presence of C.W from Charité. In particular, she underwent a general and biochemical blood test, an ultrasound examination of the abdominal cavity, a chest computed tomography (CT) scan, and electrocardiography and echocardiography examinations. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any information regarding medical recommendations or prescriptions made by the doctors following the examinations dated 29 December 2014.
60.On 26 January 2015 the first applicant again underwent various medical tests and examinations. She was examined by a group of doctors, including international doctors C.W., L.U. (a professor from the Budapest Metropolitan Cancer Centre) and A.B. (a gynaecologist). The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant’s medical treatment.
61.On 12 March 2015 she was examined in the presence of C.W. and Z.R. (the director of ExaMed Medical Centre in Budapest). On the same day, she underwent a blood test and gynaecological ultrasound examination. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant’s medical treatment.
62.The extracts of the first applicant’s detention facility medical records contained further information concerning her state of health from 31July 2014 to 12 March 2015:
-On 19 and 20 September 2014 she was provided with the relevant medication brought in by her lawyer and friends.
-On 22 September 2014 she complained of constant exhaustion, general sickness and weakness.
-On 23 September 2014 she again complained of general sickness and stayed in bed. That day and the next she was examined by a prison doctor who assessed her state of health as satisfactory. In particular, it was established that her blood pressure, temperature and sugar level were within the permitted range.
-On 30 September 2014 she was provided with medication for diabetes brought in by her friends.
-On 3 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends.
-On 8 and 10 October 2014 she was examined by a neurologist and a therapist. During the examination, she complained only of frequent urination.
-On 17 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends.
-On 25, 28 and 31 October 2014 she was provided with medication brought in by her friends.
-On 15, 21, 25 and 26 November she refused to be examined.
-On 12 December 2014 she was provided with medication brought in by her friends.
-On 3, 13 and 16 December 2014 she refused to be examined.
-On 19 December 2014 she complained of a migraine and stress, but refused to be examined by a doctor.
-On 23 December 2014 she was provided with medication brought in by her friends.
-On 29 December 2014 she was examined in compliance with international standards by a group of doctors, including an international doctor.
-On 6, 7 and 10 January 2015 she did not complain about her state of health.
(Illegible)
-On 23 January 2015 she complained of headaches, but refused to be examined by a doctor.
-On 26 January 2015 she was again examined by a group of international doctors.
-(date illegible) January 2015 she again refused to be examined by a doctor and was provided with medication brought in by her friends.
-On 6 and 17 February 2015 she again refused to be examined.
-On 19 February 2015 she complained of headaches.
-On 12 March 2015 she was again examined by a group of doctors, including international doctors.
2.The second applicant’s conditions of detention and medical care
(a)The second applicant’s account
63.The second applicant was detained alone in a cell at the Pre-trial Detention Facility of the Ministry of National Security.
64.According to his lawyer, his state of health significantly deteriorated after his arrest. In particular, the domestic authorities had failed to provide him with adequate medical care in detention. He further submitted that in the absence of any information concerning the second applicant’s conditions of detention and medical care, it was impossible for him to give an account about either.
(b)The Government’s account
65.On 6 August 2014 the second applicant was admitted to the Pre-trial Detention Facility of the Ministry of National Security.
66.He was held in a cell measuring 8 sq.m designed to hold two inmates. He was placed alone in the cell at his own request. The cell had two beds and was adequately lit and ventilated. He was provided with hot and cold water, bedding, clothing and other essentials.
67.According to a letter by the governor of the detention facility dated 13 March 2015, heating was available and functioned well. The sanitary conditions were acceptable and the food served was of good quality. The second applicant also had the right to listen to the radio for five hours a day and to use the detention facility library. He was also entitled to receive one food parcel a week (weighing up to 31.5 kg) from his relatives.
68.Upon his arrival at the detention facility, the second applicant underwent a medical examination, during which he stated that he had suffered from arterial hypertension since 2006. However, he did not make any particular complaint about his state of health which was assessed as satisfactory.
69.On 7 August 2014 the second applicant underwent an electrocardiography examination which did not reveal any problems.
70.It further appears from a medical certificate dated 29 September 2014 from the head of the medical service of the detention facility that the second applicant’s state of health was satisfactory and that he had not sought medical attention during his pre-trial detention.
E.The first applicant’s alleged ill-treatment in prison by prison guard and her cellmate
1.The first applicant’s account of events
71.On 7 August 2014 a repeat offender, N.H., was transferred to the applicant’s cell. After being transferred, N.H. frequently subjected the first applicant to verbal and physical violence. She complained to the administration, but no action was taken.
72.On 19 September 2014 she lodged a request with the administration, complaining about N.H.’s unlawful behaviour. In particular, she complained that she had been subjected to physical violence and that the placement of a repeat offender in her cell was not in compliance with domestic law.
73.On 23 September 2014 the first applicant was subjected to verbal and physical violence by Major Y., a prison guard.
74.By a letter of 21 October 2014, the governor of the detention facility responded to the first applicant’s request of 19 September 2014. He claimed that she had not been subjected to violence by N.H. and that her conditions of detention complied with the established standards.
2.The Government’s account of events
75.Following publication in the media of information concerning the first applicant’s alleged beating in the detention facility, on 25 September 2014 an investigator from the Sabunchu District Prosecutor’s Office ordered a forensic medical examination. He asked experts to establish whether there were any signs of ill-treatment on the first applicant’s body.
76.Following examinations on 29 September and 10 October 2014, the experts issued forensic medical report no. 285 dated 13 October 2014. They concluded that there were no signs of injury on the first applicant’s body.
77.On 22 October 2014 the investigator in charge of the case refused to institute criminal proceedings, finding that there was no evidence that the first applicant had been subjected to violence in the detention facility. The decision relied on the conclusions of the forensic medical report of 13October 2014, statements by the first applicant’s cellmates and video footage from the detention facility.
78.No appeal was lodged against this decision.
F.The Government’s monthly reports on the applicants’ state of health
79.Following the indication of the interim measure under Rule 39 of the Rules of Court by the Acting President of the Section on 30 September 2014, the Government responded by a letter dated 3 November 2014 submitting that the relevant domestic authorities had been immediately informed of the interim measure indicated by the Court under Rule 39. They further submitted that the applicants’ state of health was stable and did not require their transfer to an appropriate medical facility. The letter also contained an overview of the medical examinations that the applicants had undergone in October 2014, although no medical documents were attached to the letter.
80.The Government subsequently provided the Court with monthly information reports concerning the applicants’ state of health and medical treatment in detention. All the monthly reports submitted were one or two pages long. They began in a standard format and said that “the applicants’ state of health is stable and does not require [their] transfer to a specialist medical facility”. They were not accompanied by any medical documents.
81.The reports sent by the Government from November 2014 to June2015 contained the same information in respect of the first applicant’s state of health and medical treatment as they submitted in their observations of 27May 2015. As regards the second applicant’s state of health and medical treatment, all the reports contained the two following sentences:
“Over the past month, the second applicant’s state of health was under constant medical supervision, and it was assessed as satisfactory; no deterioration in his health has been noted.
(date), the second applicant passed [his] latest general medical examination, which did not reveal any deterioration in his health.”
82.As regards the subsequent reports, the two-page report dated 30 July 2015 indicated that on 13 July 2015 the first applicant had been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. recommended that the first applicant take Harvoni and she started treatment with this drug on 14 July 2015. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached to the information report.
83.The two-page report dated 7 September 2015 indicated that on 14August 2015 the first applicant had again been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. prescribed the drug Velmetia for the regulation of her blood sugar level. As regards the second applicant, in addition to the above-mentioned two sentences, the report indicated that on 3 August 2015 at a court hearing, the second applicant had asked for medical help. His blood pressure had been 210/110 mm Hg and could be stabilised following the intervention of the emergency services. The hearing had been postponed upon a doctor’s advice. No medical documents were attached to the information report.
84.The one-page report dated 6 October 2015 indicated that the first applicant had finished her medical treatment with Harvoni. The report also contained information relating to her blood pressure and sugar level. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached.
85.The reports dated 19 November and 2 December 2015 contained information relating to the first applicant’s blood pressure and sugar level and indicated that on 3 and 7 October 2015 the first applicant had refused to be examined by the doctors. On 30 October 2015 she had been examined by C.W, at whose request she had been transferred to the medical department of the Prison Service. As regards the second applicant, he had been examined by C.W on 30 October 2015. His blood pressure had been 224/122 mm Hg and he had been prescribed with the relevant medical treatment. On 2November 2015 he had been transferred to the medical department of the Prison Service, where he had received the necessary medical treatment. Following this treatment, his blood pressure had lowered to 160/110 mm Hg. No medical documents were attached to the information report.
G.The applicants’ criminal conviction and subsequent release from detention
86.On an unspecified date the criminal investigation was completed and the applicants’ case was referred to the Baku Assize Court for trial.
87.On 13 August 2015 it convicted and sentenced the applicants to eight and a half and seven years’ imprisonment respectively.
88.On an unspecified date the applicants appealed against this judgment to the Baku Court of Appeal.
89.It appears from the information submitted by the Government that on an unspecified date the medical department of the Prison Service requested the Baku Court of Appeal to change the second applicant’s detention pending trial due to his emotional state and the possible repeat of hypertensive crisis. The Government did not provide the Court with a copy of this request.
90.On 12 November 2015 the Baku Court of Appeal granted the request and ordered the second applicant’s release. The Court was not provided with a copy of this decision.
91.On 9 December 2015 the Baku Court of Appeal quashed the Baku Assize Court’s judgment of 13 August 2015 and gave the applicants a conditional sentence of five years’ imprisonment. The first applicant was released from the court.
A.Extracts from the 3rd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) covering the period 1 January to 31 December 1992
100.The requirements concerning the organisation of health care services in detention facilities were described by the CPT in its 3rd General Report (CPT/Inf (93) 12 - Publication Date: 4June 1993). The relevant part of the Report reads as follows:
“a. Access to a doctor
33.When entering prison, all prisoners should without delay be seen by a member of the establishment’s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.
34.While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay.
...
35.A prison’s health care service should at least be able to provide regular out‑patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.
As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36.The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital.
...
b. Equivalence of care
i) general medicine
38.A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).
39.A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40.The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.
...
c. Patient’s consent and confidentiality
45.Freedom of consent and respect for confidentiality are fundamental rights of the individual. They are also essential to the atmosphere of trust which is a necessary part of the doctor/patient relationship, especially in prisons, where a prisoner cannot freely choose his own doctor.
i) patient’s consent
46. Patients should be provided with all relevant information (if necessary in the form of a medical report) concerning their condition, the course of their treatment and the medication prescribed for them. Preferably, patients should have the right to consult the contents of their prison medical files, unless this is inadvisable from a therapeutic standpoint.
They should be able to ask for this information to be communicated to their families and lawyers or to an outside doctor.
47. Every patient capable of discernment is free to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole.
...
ii) confidentiality
50. Medical secrecy should be observed in prisons in the same way as in the community. Keeping patients’ files should be the doctor’s responsibility.
51. All medical examinations of prisoners (whether on arrival or at a later stage) should be conducted out of the hearing and - unless the doctor concerned requests otherwise - out of the sight of prison officers. Further, prisoners should be examined on an individual basis, not in groups. ...”
B.Extracts from Recommendation (Rec(2006)2) of the Committee of Ministers to Member States on the European Prison Rules, adopted on 11 January 2006 (“the European Prison Rules”)
101.The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:
“Part I
Basic principles
1.All persons deprived of their liberty shall be treated with respect for their human rights.
2.Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
3.Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
4.Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.
...
Scope and Application
10.1.The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.
...
Part III
Health
Health care
39.Prison authorities shall safeguard the health of all prisoners in their care.
Organisation of prison health care
40.1Medical services in prison shall be organised in close relation with the general health administration of the community or nation.
40.2Health policy in prisons shall be integrated into, and compatible with, national health policy.
40.3Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
Medical and health care personnel
41.1Every prison shall have the services of at least one qualified general medical practitioner.
41.2Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.
...
41.4Every prison shall have personnel suitably trained in health care.
...
Duties of the medical practitioner
42.1The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary.
...
42.3When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:
a. observing the normal rules of medical confidentiality;
b.diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;
c. recording and reporting to the relevant authorities any sign or indication that prisoners may have been treated violently;
...
43.1The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.
...
Health care provision
46.1Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison.
46.2Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”
C.Extracts from the UN Committee Against Torture’s concluding observations on the fourth periodic report of Azerbaijan
102.In November 2015 the UN Committee Against Torture considered the fourth periodic report of Azerbaijan (CAT/C/AZE/4) and adopted, inter alia, the following concluding observations at its 1382nd meeting (CAT/C/SR.1382) held on 26 November 2015:
“Arbitrary imprisonment and ill-treatment of human rights defenders
10. The Committee is deeply concerned by consistent and numerous allegations that a number of human rights defenders have been arbitrarily deprived of their liberty, subjected to ill-treatment, and in some cases have been denied adequate medical treatment in retaliation for their professional activities, such as: Leyla and Arif Yunus ...
11. The State party should:
(a)Investigate promptly, thoroughly and impartially all allegations of arbitrary arrest, denial of adequate medical treatment, and torture or ill treatment of human rights defenders, including those listed above, prosecute and punish appropriately those found guilty, and provide the victims with redress;
(b) Release human rights defenders who are deprived of their liberty in retaliation for their human rights work;”
D.Joint Statement of the UN Special Rapporteurs and the Chair‑Rapporteur of the UN Working Group on Arbitrary Detention dated 20 August 2015
103.On 20 August 2015 the UN Special Rapporteurs on the situation of human rights defenders, on the rights to freedom of peaceful assembly and of association, on freedom of opinion and expression, on the independence of judges and lawyers and on the right to health made a joint statement with the Chair-Rapporteur of the UN Working Group on Arbitrary Detention condemning the applicants’ criminal conviction. They expressed concern about the serious deterioration of the applicants’ health during their extended period of pre-trial detention and called “on the Azerbaijani authorities to immediately provide them with adequate medical care”.

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5.The applicants are a married couple, Mrs R.B.A.B. and Mr H.S., their two daughters, X and Y, and their son Z. The children were born in 1991, 1993 and 1996, respectively. The applicants have been in the Netherlands since 2001.
A.Proceedings before the introduction of the application
6.On 28 April 2001 the applicants entered the Netherlands, where the first and second applicants filed separate asylum applications, and MrsR.B.A.B. also filed applications on behalf of the other three applicants (the children, who were all minors). The immigration authorities conducted interviews with the first and second applicants on 8 May 2001 (eerste gehoor) and 9 August 2001 (nader gehoor). An additional interview (aanvullend gehoor) was conducted with the second applicant on 2November 2001.
7.The first and second applicants stated that they had previously lived in Dilling in Sudan’s South Kordofan province and that they had fled Sudan after Mr H.S. had attracted the attention of the Sudanese authorities on account of his activities for the opposition movement M.
8.On 7 December 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie, the “Deputy Minister”) notified the first and second applicants of her intention (voornemen) to reject their asylum requests. In the light of various contradictions in the statements given by the first and second applicants, their inability to answer basic questions about the respective tribes they claimed to belong to, and the second applicant’s inability to provide simple topographic details of the city and the surroundings of the place where he claimed he had grown up and/or to provide any details about the M. opposition movement (goal, members, structure, leader) for which he claimed to have been active, the Deputy Minister concluded that no credence could be attached to the applicants’ asylum statement.
9.In two separate decisions of 17 January 2002, after the applicants’ lawyer had filed written comments (zienswijze) concerning the intended refusals, the Deputy Minister rejected the first and second applicants’ asylum requests, finding that the written comments had not dispelled her doubts concerning the credibility of their asylum statement.
10.The first and second applicants’ appeal against this decision were declared inadmissible on procedural grounds by the Regional Court (rechtbank) of The Hague sitting in Zwolle in a joint ruling, the first and second applicants having failed to submit the requisite grounds for their appeals, even though they had been given extra time to remedy this shortcoming. The applicants’ objection (verzet) was dismissed on 10September 2002 by the Regional Court. No further appeal lies against this ruling.
11.On 12 April 2003 the first and second applicants – and Mrs R.B.A.B. also on behalf of the other applicants – filed a second asylum request, which was based on essentially the same grounds as their initial request. They submitted various documents in support of their declaration. On 13April 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the first and second applicants of her intention to reject their fresh asylum request, holding that their repeat requests were not based on newly emerged facts or altered circumstances as required by section 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). The new documents submitted by the first and second applicants only served to increase the already existing doubts as to the credibility of their asylum statement. In two separate decisions of 14April 2003, having received the applicants’ written comments on the intended decision, the Minister rejected the applicants’ second asylum request on the grounds given in his notice of intention. The first and second applicants did not lodge an appeal against this decision before the Regional Court of The Hague even though it would have been possible to do so.
12.On 14 June 2005 the first and second applicants, and Mrs R.B.A.B. also on behalf of the other applicants, filed a third asylum request based on the claim that, if they were to be sent back to Sudan, their daughters X and Y would be subjected to female genital mutilation (“FGM”), contrary to Article3 of the Convention, due to tribal and social pressure. In interviews with the immigration authorities held on 16 June 2005, the first and second applicants stated that they opposed FGM but would be unable to protect their daughters against it. They further submitted a document issued by the Sudanese Embassy in the Netherlands on 26 April 2005 stating that the applicants “are all Sudanese citizens although they do not possess the requisite documents to enable them to obtain a Sudanese laissez-passer”.
13.On 17 June 2005, the Minister for Immigration and Integration notified the first and second applicants separately of her intention to reject their third asylum request. The Minister doubted the sincerity of the applicants’ purported fear that their daughter would be subjected to FGM because they had not raised this argument in their previous asylum requests. The Minister also took into consideration the order amending the Aliens Act 2000 Implementation Guidelines 2004/36 (Wijzigingsbesluit Vreemdelingencirculaire 2000, “WBV 2004/36”), which was based on an official report on Sudan drawn up by the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on 3 February 2004 (DPV/AM‑823666), according to which women who had had the benefit of a higher education (namely a university or higher professional level education) and who were living in the larger cities in Sudan did not experience any social stigma for not subjecting their daughters to FGM, whereas women in the rural areas who had received little or no schooling had little choice but to subject their daughters to this practice. As the first and second applicants had still not substantiated their personal identities or given a credible statement concerning their place of residence in Sudan, the Minister considered that they had not established that they did not belong to the group of more highly educated people able to reject the practice of female circumcision. The Minister also considered that the second applicant constituted a danger to public order, having accepted a negotiated penalty (transactieaanbod) in order to settle out of court a criminal charge for shoplifting.
14.On 20 June 2005 the applicants filed their written comments concerning the intended refusal of their third asylum request. They argued that the Minister had failed to present a proper reasoning for her finding that it had not been demonstrated that the first applicant did not belong to the group of highly educated women who would be able to resist the social pressure to circumcise their daughters, especially as the first applicant had stated in her first request for asylum that she had only had a primary school level education. The first applicant therefore offered to take an IQ test to prove her level of education.
15.In two separate decisions of 20 June 2005 the Minister rejected the first and second applicants’ asylum request on the grounds detailed in her notice of intention. The Minister added that it was not for her to examine the first applicant’s level of education through an IQ test but rather for the applicants to prove their identities and background in their asylum application.
16.In a joint ruling given on 12 June 2005 the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zwolle granted the first and second applicants’ appeals, quashed the impugned decisions and remitted the case to the Minister for a fresh decision. The provisional-measures judge held:
“The judge notes that it is no longer in dispute that the petitioners are Sudanese nationals. Nor is it in dispute that both daughters of the petitioners, currently 14 and 11 years old, have not been circumcised.
According to the policy guidelines set out in C1/4.3.3 Vc 2000, a girl can – if return would entail a real risk of genital mutilation – qualify for an asylum-based residence permit ... The following conditions apply:
- there exists a risk of genital mutilation;
- the authorities of the country of origin are unwilling or unable to provide protection to persons exposed to an imminent risk of genital mutilation; and
- no internal relocation possibility is deemed to exist in the country of origin.
According to chapter A8 Vc 2000 “Country-specific part, the asylum policy in respect of Sudan” under 5.5 Vc, genital mutilation is widespread in Sudan. Although there is a Health Act forbidding genital mutilation, the Sudanese authorities hardly ensure compliance with that act. The parental freedom of choice (as the court understands, whether or not to have their daughters circumcised) is connected to the cultural attitudes of the family and surroundings. Women with a higher education in larger towns will generally not have their daughters circumcised. This will generally not give rise to problems from their social environment. The term ‘women with a higher education’ is to be understood to mean women who have had an academic or higher vocational education. According to the official report of 3 February 2004, women with a low level of education living in rural areas have little choice. According to the same chapter it cannot be deduced from the official report whether it is possible to avoid circumcision by settling elsewhere in Sudan, meaning that for the assessment of the question whether there is an internal relocation alternative, each individual’s declaration is of decisive importance.
The defendant’s refusal to grant the requested residence permit is based to a large extent on the fact that the identity and origin of, in particular, [the first applicant] has not been demonstrated, but also because in the proceedings concerning the first asylum request, it was found that statements lacking credence had been given. For that reason, it is not possible to assess whether the conditions set out in the policy guidelines are met.
The refusal thus reasoned cannot be upheld.
The policy guidelines are aimed at protecting girls and women against circumcision, an act which according to the policy is to be seen as a violation of Article 3 [of the Convention]. ...
The assertion that [the first applicant] based her first asylum request on an asylum statement subsequently found to be implausible is correct. However, it is unclear what the relevance of that conclusion is in the context of the present [asylum] application, which is concerned with the protection of the daughters and not of [the parents].”
17.On 19 July 2005 the Minister filed a further appeal against this judgment with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State.
18.On 25 August 2005, the Administrative Jurisdiction Division granted the Minister’s further appeal, quashed the judgment of the Regional Court and rejected the first and second applicants’ appeal against the Minister’s decision of 20 June 2005. It considered that, pursuant to section 31 §1 of the Aliens Act 2000 (Vreemdelingenwet 2000), it was for the applicants to demonstrate as plausible those facts and circumstances which could lead to the conclusion that they were eligible for admission pursuant to the policy in force, and not for the Minister to demonstrate the opposite. As not only the applicants’ statements about their identity and origin but also their asylum statement had been found to lack credibility in a decision of 17January 2002 which had obtained the force of res iudicata, the Minister could reasonably have found that the applicants had not made out a persuasive case to show that they complied with the conditions for admission under the policy concerned, that the authorities could not provide them with protection, and that there was no internal relocation alternative for them. No further appeal lay against this ruling.
B.Developments subsequent to the lodging of the application
19.The third applicant, Ms X., gave birth to a daughter on 11 June 2011 and to a son on 15 March 2013.On 1 September 2015 Ms X. was granted a Netherlands residence permit for the purpose of remaining with her partner. On 15 September 2015 she informed the Court that she did not wish to maintain the application in so far as it concerned her.
20.In the meantime, on 7 November 2012, the Minister for Immigration, Integration and Asylum Policy (Minister voor Vreemdelingenzaken en Integratie) rejected a request for a residence permit filed by the fourth applicant, Ms Y., who had come of age in the meantime. On the same day Ms Y. filed an objection (bezwaar) against this refusal and, on 30November 2015, she attended a hearing on that objection before an official commission during which she stated that in 2012, as a volunteer for two non-governmental organisations, she had disseminated information about FGM, for which purpose she had attended a training course.
21.On 29 December 2015 the Minister rejected the fourth applicant’s objection. In so far as the fourth applicant would allegedly be exposed to the risk of being subjected to circumcision in Sudan, the Minister noted that her parents opposed this practice and therefore found it likely that they would not force Ms Y. to be circumcised. As regards pressure from the social environment, the Minister noted that Ms Y had still not submitted any documents substantiating her identity or alleged Dilling origin. In this situation, the Minister found that it was not necessary to address the question of whether internal relocation would be a possibility. No further information about these proceedings has been submitted.
22.On 11 April 2013 the fifth applicant, Mr Z., applied for a residence permit under the Transitional Regulation on Children Residing Long-Term in the Netherlands (overgangsregeling langdurig in Nederland verblijvende kinderen), which provided that minors without a residence permit who had been residing in the Netherlands for over five years could obtain a residence permit if they met certain criteria. These criteria included that the minor in question must have applied for asylum at least five years before reaching the age of 18 and must not have evaded monitoring by the Netherlands authorities for more than three months. The close family members of such minors could also qualify for accompanying family-member residence permits for close relatives (that is to say parents and siblings). The fifth applicant also sought accompanying family-member residence permits for his parents, his sisters Y. and X., and for the latter’s two children, who are minors.
23.On 30 July 2013 this request was rejected by the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie), who held that the applicants had not been in touch with the designated immigration authorities for over three months. On 1 September 2015, after remittal of the case by the Administrative Jurisdiction Division on 22 July 2015, the petitioners’ objection was again rejected by the Deputy Minister. No further information about these proceedings has been submitted.
24.In a letter of 24 September 2014, the Deputy Minister informed the Mayor of Amsterdam that he would not avail himself of his discretionary powers to admit the applicants to the Netherlands. The applicants’ objection was declared inadmissible by the Deputy Minister, who held that the content of the letter of 24 September 2014 was not a decision within the meaning of section 1:3 of the General Administrative Law Act which could be challenged in administrative appeal proceedings. Although the applicants’ appeal against this decision was granted on 1 September 2015 by the Regional Court of The Hague sitting in Amsterdam, it nevertheless held that the legal effects of the impugned decision were to remain intact. No further information about these proceedings has been submitted.
25.The official report (ambtsbericht) on Sudan released by the Netherlands Minister of Foreign Affairs in April 2010 states the following in respect of the situation of women in Sudan:
“After the regime change in 1989, the position of women deteriorated. Women were forced into the background of public life. Many highly educated women lost both their jobs and their freedom of movement. Strict dress codes and codes of behaviour were imposed on women employed by educational and (semi-)governmental institutions.
Genital mutilation
There is no specific statutory provision rendering genital mutilation of women (FGM) a criminal offence. The Criminal Code merely mentions a prohibition of damaging acts against girls and women. The interpretation of this legislative provision is left to the judge. In practice, perpetrators of genital mutilation are not prosecuted. In 2008 Sudan pledged to eradicate FGM within 10 years. However, the Sudanese authorities have not been consistent in the implementation of this policy. Whilst the National Council of Child Welfare is active in combatting FGM, inter alia in collaboration with UNICEF, the Council of Ministers, on the other hand, deleted in February 2009 a. provision prohibiting FGM from the draft bill for the Children’s Act. The Children’s Act was adopted on December 2009 and contains no provision prohibiting FGM.
FGM is widespread in Sudan. The percentage of women in North-Sudan having undergone FGM is estimated at about 90%. In so far as known, FGM is practiced by all North-Sudanese population groups (Arab and non-Arab). However, other population groups residing in the north, including the southern Sudanese, have also adopted the practice. Nothing is known about the extent to which pressure in exerted on communities in northern Sudan that do not traditionally practise FGM. ...
Genital mutilation takes place in childhood, generally between the ages of four and ten. It may occur that women who have not undergone FGM are forced to undergo this when they get married. It is not possible to say anything about the specific circumstances in which circumcision takes place at a later age, such as the place of residence or the level of education of the woman concerned.
Because genital mutilation is a parental choice, the question does not arise whether and to what extend girls can avoid it. The parents’ decision is closely connected with the cultural attitudes of the family and the surrounding community. In practice it does not occur that people move home in order to avoid genital mutilation. There are no shelters in Sudan for women or girls seeking to avoid FGM.
An increasing number of urban, educated families are refusing to have their daughters circumcised. Generally these families do not experience any problems. The lesser educated and people living in rural areas are often unable or unwilling to make the choice not to have their daughters circumcised due to great pressure emanating from the community.”
26.The country assessment report on Sudan drawn up by the Netherlands Minister of Foreign Affairs in July 2015 reads in its relevant part:
“There is no specific statutory provision rendering genital mutilation of women (FGM) a criminal offence. The Criminal Code merely mentions in general terms the ban on ‘female circumcision’ without any further definition. The interpretation of this legislative provision is left to the judge. In practice, those who commit FGM are not prosecuted.
FGM in Sudan is still being carried out at a large scale. Girls are circumcised traditionally to prepare them for marriage, for religious reasons and – based on superstition – for ‘health reasons’. The most recent estimate of the percentage of circumcised women between 15-49 years old in Sudan is 89%. ... UNICEF and UNFPA [United Nations Population Fund] conduct large-scale campaigns to stop FGM. These campaigns have rendered circumcision a topic of debate. Discussions are being held within families and in the press and on social media even photographs are being shown. There is, however, also a strong influence of the pro-FGM lobby which presents it as the traditional values and norms being affected by the West. Sheikh Abdel-Hay Yusuf is voicing this. It appears from UNICEF figures that the percentage of girls having been circumcised between the ages of 5 to 9 has reduced from 41 percent in 2006 to 35.5 percent in 2010.
Because genital mutilation is a parental choice, the question does not arise whether and to what extend girls can avoid it. The parents’ decision is closely connected with the cultural attitudes of the family and the surrounding community. In so far as known, in practice it does not happen that people move home for the purpose of avoiding genital mutilation. The local NGO SEEMA refers victims for medical help.”
27.FGM comprises all procedures that involve partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. The World Health Organisation (“the WHO”) noted the following key facts in its Fact Sheet on FGM (as updated in February 2016): more than 200 million girls and women alive today have been cut in 30countries in Africa, the Middle East and Asia where FGM is concentrated and is mostly carried out on young girls between infancy and 15years of age.
28.There are different forms of FGM (see “Eliminating Female Genital Mutilation: An Interagency Statement”, 2008, authored by various international organisations including the WHO, the UN High Commissioner for Refugees (UNHCR), the UN Children’s Fund (UNICEF) and the UN Development Fund for Women (UNIFEM)). These include clitoridectomy, excision and infibulation. The same Interagency Statement described FGM as a violation of the right to freedom from torture, inhuman and degrading treatment, meaning that protection from FGM was provided for by various international treaties (the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women), by regional treaties (the Protocol to the African Charter on Human and People’s Rights Relating to the Rights of Women in Africa, the “Maputo Protocol”) as well as by consensus documents published by several international organisations. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment considers that FGM amounts to torture even if it is legal and/or medicalised (Report to the UN General Assembly, 14 January 2008. See also the “Global strategy to stop health-care providers from performing female genital mutilation”, 2010, published jointly by the WHO, UNHCR, UNICEF, UNIFEM and others). Sudan signed the Maputo Protocol on 30 June 2008 but has not yet ratified it.
29.The United Kingdom Home Office Country of Origin Information Report on Sudan of 16 April 2010 includes the following observations on the subject of FMG:
“25.40 The USSD [United States Department of State] Report 2008 recorded that: ‘...The law does not prohibit FGM. While a growing number of urban, educated families no longer practiced FGM, there were reports that the prevalence of FGM in Darfur had increased as persons moved to cities. The government actively campaigned against it. Several NGOs worked to eradicate FGM.’ The UNICEF Sudan country page, accessed 15 January 2010, reported that ‘[FGM] and cutting affects 68 per cent of women and girls – mostly in the north of Sudan.’
25.41 UNICEF reported on 6 February 2009 that the organisation commended the efforts made by the Sudanese government, civil society and local communities to bring an end to the practice of FGM in the country.
‘The dangers that female genital mutilation and cutting create for girls and women have been recognized by the government, religious leaders, health professionals, community elders and individual families in Sudan, and we applaud the collective efforts now being taken to eradicate the practice entirely. It is unacceptable that any girl should face this dangerous and unnecessary violation of her rights,’ noted UNICEF Acting Representative Dr. Iyabode Olusanmi.
25.42 However, The Sudan Tribune reported on 8 February 2009 that Sudanese activists had slammed a decision by the Sudanese cabinet to drop an article banning the practice of female genital cutting in the country. The report stated that the government took its decision in accordance with an Islamic fatwa on the issue:
‘The Council of Ministers on February 5 dropped the article (13) of the draft Children’s Act of 2009, which provides for the ban of female genital mutilation as part of other customs and traditions harmful to the health of the child, and after approval of the draft Children’s Act 2009. The cabinet decided to drop the article, which deals with female circumcision, taking into account the advisory opinion of the Islamic Fiqh Academy, which distinguish between harmful circumcision or infibulation (Pharaonic circumcision) and the circumcision of Sunna, a less extensive procedure.
25.43 A press statement issued by UNICEF on 7 January 2010 however stated that the ‘article dealing with female genital mutilation/cutting which was taken out of this bill [The Child Act] will be included in the revision of the Criminal Act in the near future’.”
30.As regards FGM in Sudan, the Operational Guidance Note on Sudan released in August 2012 by the United Kingdom Home Office cites the following extracts from a country guidance determination issued by the United Kingdom Immigration and Asylum Tribunal (FM (FGM) Sudan CG [2007] UKAIT00060) on 27 June 2007:
“‘Significant action is being taken in Sudan, both within government and by NGOs, to combat the practice of female genital mutilation in all its forms. Legal sanctions are, however, unlikely to be applied where a woman has been subjected by her family to FGM’.
...
‘There is in general no real risk of a woman being subjected to FGM at the instigation of persons who are not family members. As a general matter, the risk of FGM being inflicted on an unmarried woman will depend on the attitude of her family, most particularly her parents but including her extended family. A woman who comes from an educated family and/or a family of high social status is as such less likely to experience family pressure to submit to FGM. It is, however, not possible to say that such a background will automatically lead to a finding that she is not at real risk.’
...
‘The risk of FGM from extended family members will depend on a variety of factors, including the age and vulnerability of the woman concerned, the attitude and whereabouts of her parents and the location and “reach” of the extended family.’
...
‘If a woman’s parents are opposed to FGM, they will normally be in a position to ensure that she does not marry a man who (or whose family) is in favour of it, regardless of the attitude of other relatives of the woman concerned.’”
31.The “Joint Evaluation of the UNFPA-UNICEF Joint Programme on FGM/C: Accelerating Change 2008–2012” in respect of Sudan, published in July 2013, includes the following:
“In 1983, when Sharia law was introduced, the article prohibiting FGM/C was removed from the penal code.
Since then there have been several attempts to criminalise all forms of FGM/C but none have been successful. The most significant recent setback occurred in 2009, when the Council of Ministers decided to remove Article 13 of the 2009 Child Act, which would have prohibited FGM/C as a harmful practice and tradition affecting the health of children.
Despite limited progress made at the national level, several states in Sudan have managed to pass laws prohibiting all forms of FGM/C. An anti-FGM/C law was passed in the state of South Kordofan in 2008 and is now being used as a model for other states.”
32.The United States Department of State’s “Country Reports on Human Rights Practices 2014”, published on 25 June 2015, reads:
“Female Genital Mutilation and Cutting (FGM/C): There is no national law prohibiting FGM/C. The states of South Darfur and Red Sea passed laws prohibiting FGM/C as a harmful practice affecting the health of children.
FGM/C is traditionally practiced in the country. According to UNICEF and the UN Population Fund (UNFPA), the national prevalence of FGM/C among girls and women 15-49 years old was 88 percent. Within the country prevalence varies geographically and depends on the custom of local ethnic groups. The 2010 Sudan Household Health Survey indicated considerable variations in the practice of FGM/C from one region to another, from 99.4 per cent in the Northern State compared with a rate of 68.4 per cent in Western Darfur.
Girls are generally cut when they are five to 11 years old. Comprehensive figures were not available for the year. The government and UNICEF reported a shift in attitudes towards FGM/C and observed downward trends in the prevalence of FGM/C between the household health surveys in 2006 and 2010. The 2010 survey concluded 34.5 percent of girls ages five to nine were cut, as compared with 41 percent in 2006. Of girls and women ages 15-19, 37 percent favored FGM/C in 2010, compared with 73 percent in 2006.
The government attempted to curb the prevalence of FGM/C and made public awareness campaigns on the subject a top priority. In 2008 the National Council on Child Welfare, with support from UNICEF, launched the National Strategy to Abolish FGM/C in Sudan (2008-18). Under the strategy the government introduced ‘Saleema’, a public awareness campaign to counter FGM/C, which received significant attention through local media.
The government agreed to a three-year program with UNICEF, the UNFPA, and the WHO to seek to end FGM/C in the country. In October the government hosted a conference in Khartoum to promote the ‘Saleema’ campaign and anti-FGM/C initiatives.”

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5.The applicant was born in 1969 and lives in Astrakhan.
A.The applicant’s arrest, detention and trial
6.At approximately 8 p.m. on 15 June 2004 the applicant was arrested on suspicion of attempted fraud. On the same day at 11.37 p.m. criminal proceedings were instituted against him.
7.On 16 June 2004 at 12.58 a.m. a record of the applicant’s arrest was drawn up by the investigator. The record indicated that the applicant’s arrest took place at 11.05 p.m. on 15 June 2004.
8.On 17 June 2004 the Leninskiy District Court of Astrakhan (“the District Court”) authorised the applicant’s detention pending investigation. The court noted as follows:
“[The applicant] is charged with a serious offence representing an increased danger to society; the material submitted contains sufficient data about [his] involvement in the crime, including the testimony of the victim ... [The applicant] is an acting police officer, and under such circumstances the court finds that the Prosecutor has made a well-founded argument about the necessity to isolate [the applicant] in view of the risk of [his] absconding and obstructing the establishment of the truth in the early stage of the investigation by putting pressure on witnesses using his [status].”
9.On 25 June 2004 the Astrakhan Regional Court (“the Regional Court”) upheld the above decision on appeal. The appeal hearing was held in the applicant’s absence. The applicant’s lawyer was present.
10.On 13 August 2004 the applicant was informed that the investigation had been completed and that the case file had been submitted to the District Court for trial.
11.In the meantime, on 15 August 2004, the two-month time-limit for the applicant’s detention pending investigation expired. The applicant, however, remained in detention.
12.On 25 August 2004 the District Court scheduled a preliminary hearing and ordered that the preventive measure applied to the applicant should remain unchanged until a date for the opening of the trial had been set.
13.The applicant challenged the above decision in a supervisory review procedure. He argued that since there had been no valid court order authorising his detention from 15August to 25 August 2004, the decision to retain the custodial measure unchanged had been unlawful.
14.On 9 September 2004 the District Court scheduled the opening of the trial and ordered that the preventive measure remain unaltered.
15.On 16 February 2005 the District Court extended the applicant’s detention pending trial for two months, until 16 April 2005, noting as follows:
“[The applicant] is charged with a serious crime, representing an increased danger to society. The crime, according to the charges brought, was committed in abuse of office. So far [the applicant] has not been suspended from [his post]. Under these circumstances, if released, [the applicant] may put pressure on the victim and the witnesses. The sanction for the offence with which [the applicant] is charged varies from 5 to 10 years’ imprisonment; therefore the arguments of the prosecution that [the applicant] may abscond from justice and render the examination of the case on the merits impossible are well-founded.”
16.On 7 April 2005 the District Court dismissed the application for release and extended the applicant’s detention pending trial for another two months, until 16 June 2005. The decision mentioned that an appeal could be lodged within three days to the Regional Court and the applicant appealed. However, on 20May 2005 the Regional Court discontinued the examination of the applicant’s appeal. Referring to Article355 § 5 of the Code of Criminal Procedure, the Court held that rulings rendered by a court in the course of the trial were not amenable to separate appeal.
17.On 15 June 2005 the District Court extended the applicant’s detention for three months, until 15 September 2005. The court applied the same reasoning as in its decision of 16February 2005. On 21 July 2005 the Regional Court upheld the above decision on appeal.
18.On the same day, the Regional Court dismissed the applicant’s application to quash the decision of 25 August 2004 by means of supervisory review. The court held, inter alia, that the applicant’s detention from 16August to 25 August 2004 had been lawful and that the decision of 25August 2004 should stand.
19.On 14 September 2005 the District Court, applying the same arguments as in its previous decisions, extended the applicant’s detention until 15 December 2005. During the hearing, the applicant requested that the court let his sister represent him. However, in view of the fact that the applicant was already represented by two professional advocates, the court dismissed the request. On 27October 2005 the Regional Court upheld the above decision on appeal.
20.On 15 December 2005 the District Court extended the applicant’s detention until 15 March 2006. The court again relied on the gravity of the charges against the applicant, his position and the risk of his putting pressure on the victim and witnesses, and of absconding and obstructing justice. One of the applicant’s lawyers was absent from the hearing. On 26January 2006 the Regional Court upheld the above decisions on appeal.
21.On 13 March 2006 the District Court extended the applicant’s detention until 15 June 2006, noting that the grounds for detention had not changed.
22.The applicant lodged another application for release, relying on a deterioration of his health and the unavailability of adequate medical assistance in the remand prison. However, on 11 April 2006 the District Court dismissed the application.
23.The applicant appealed, but on 25 May 2006 the Regional Court, relying on Article 355 § 5 of the Code of Criminal Procedure, discontinued the appeal proceedings.
24.On 9 June 2006 the District Court extended the applicant’s detention until 15 July 2006.
25.On 29 June 2006 the District Court convicted the applicant of attempted large-scale fraud in abuse of office and sentenced him to six years and six months’ imprisonment and a fine. During the hearing the applicant was kept in a metal cage.
26.On 11 January 2007 the Regional Court upheld the judgment on appeal.
27.On 27 January 2009 the applicant obtained a conditional early release.
B.Conditions of the applicant’s detention in IZ-30/1 and conditions of his transport to and from the courthouse
28.From 17 June 2004 to 22 January 2007 and from 5 May 2007 to 25February 2008 the applicant was held in remand prison IZ-30/1 in the Astrakhan Region. He claimed that the facility had been severely overcrowded and that the cells had been in a poor sanitary condition.
29.In the above periods, the applicant was transported between the remand prison and the District Court on no less than one hundred occasions. He claimed that the conditions of his transport to and from the courthouse had been appalling.
C.Medical assistance in IZ-30/1
1.The Government’s account
30.Upon the applicant’s arrival at IZ-30/1 remand prison in June 2004 he underwent a mandatory medical examination, including clinical laboratory tests and an examination by medical specialists. No abnormalities were found. The applicant subsequently underwent scheduled health examinations.
31.On 16 April 2006 the applicant sought medical assistance. In connection with this application, on 21 April 2006 he was referred to the prison hospital in IK-2 correctional colony for examination and treatment. The examination showed that the applicant was suffering from the initial stages of a cardiovascular disease. He was prescribed and provided with the necessary treatment and his condition improved. The applicant was discharged on 10May 2006 in a satisfactory condition with a recommendation to continue outpatient supervision. Upon return to IZ-30/1 the applicant was put under outpatient supervision and given the recommended treatment.
32.From 30 August to 27 September 2006, from 30 May to 29 June 2007 and from 20 July to 27 August 2007 the applicant underwent subsequent scheduled courses of inpatient treatment in IK-2 correctional colony’s prison hospital. The applicant’s health condition remained satisfactory and no complications were noted.
33.Despite the Court’s request to submit a copy of the applicant’s medical file, the Government’s account was not supported by any relevant documents.
2.The applicant’s account
34.Several times during his detention in IZ-30/1 the applicant applied for treatment for acute toothache. However, he was informed on each occasion that there was no dentist on the medical staff of the remand prison. In October 2005 a dentist was recruited by the remand prison. The only treatment available was extraction and there was a three-week waiting list.
35.A medical certificate issued by the applicant’s dentist (who had provided dental care to the applicant since 2001, up to his detention) confirmed in January 2009 that there were no traces of dental care having been provided to the applicant in the period between June 2004 and January 2009 and noted a serious worsening of the state of the latter’s teeth. It also stated that the applicant needed treatment for tooth decay (nine teeth) and a dental prosthesis.
36.The applicant also complained on numerous occasions about hypertension. He was given unidentified pills and a prescription for a more effective and costly medicine, with reference to the facility’s lack of finance. The applicant could not afford to buy the medication prescribed.
37.The applicant developed chronic gastritis while in remand prison.
38.At the request of the applicant’s lawyer, on 14 December 2005 the doctor at IZ-30/1 remand prison issued a medical certificate reading as follows:
“During his detention in IZ-30/1 [the applicant] repeatedly turned to the medical unit of the [remand prison] for medical assistance. He was examined by a physician and diagnosed with neurocirculatory dystonia of a hypertonic type, and chronic gastritis of typeB at the stage of unstable remission.
Appropriate treatment was prescribed with the medicine available at the remand prison. Furthermore, a prescription was given to the applicant to purchase more efficient medication.
At the present moment [the applicant’s] state of health is relatively satisfactory.
In the event of a worsening of his state of health the applicant can be transferred to the regional prison hospital for inpatient treatment.”
39.An ambulance was called for the applicant at the court hearings on several occasions and he was given treatment for high blood pressure. The applicant submitted a medical certificate dated 14 December 2005, which shows that the ambulance was called for him on that date during the court hearing and that he was provided with the necessary medical assistance for a hypertensive crisis.
40.Following numerous complaints about inadequate medical assistance in the remand prison, the applicant was transferred on several occasions to the hospital in the IK-2 correctional colony in the Astrakhan Region. However, no effective treatment was available in the hospital either, because the applicant was not transferred there when his health required, that is following his hypertensive crises, but in accordance with an unclear schedule fixed by the administration of the remand prison.
41.As is apparent from the documents submitted by the applicant in support of his allegations, on 19 September 2006 an inspection of IZ-30/1 was carried out by the prosecutor’s office of the Astrakhan Region. The inspection revealed, inter alia, that there was a problem of deficient health care in the remand prison.
42.The applicant brought the issue of inadequate medical assistance before various domestic authorities, including the head of the remand prison, the Astrakhan regional prosecutor’s office, the Ombudsman and a judge of the District Court, but all to no avail.

***

7.The applicant was born in 1955 in the village of Z., the Omsk Region. Until his arrest he lived in the village of O. in the same region.
8.The applicant suffers from various illnesses, including rectal cancer. He has twice had colorectal surgery, in 1994 and 1995, and has been certified as having a second-degree disability.
A.Criminal proceedings
9.On 1 November 2006 the applicant was arrested on suspicion of committing, with accomplices, large–scale bank fraud by abuse of position. After being questioned by the police the applicant was released.
10.Two days later, the Kuybishevskiy District Court of Omsk authorised his detention pending investigation. The court concluded that he could abscond or hamper the investigation if released and that he had attempted to influence witnesses after they had been interviewed by the police. The applicant was taken to remand prison no. IZ-55/1 in Omsk.
11.The defence appealed, stating that the applicant had serious health problems and was therefore not fit enough to exert pressure on witnesses. The defence also referred to the non-violent nature of the offence and the fact that it was not a particularly serious crime.
12.On 13 November 2006 the Omsk Regional Court rejected the appeal, endorsing the reasoning of the District Court.
13.On 27 December 2006 the District Court extended the applicant’s detention until 14 March 2007. Despite arguments by the defence that his health was fragile and that he was unable to receive the necessary care in the detention facility, which did not employ a proctologist, the court, after examining medical evidence submitted by the prosecution, found that his health condition did not call for his release. Having cited the risks of the applicant absconding and obstructing justice, the court also noted that the case was complex and that the investigating authorities were proceeding with it with due promptness. The applicant’s continued detention was therefore warranted.
14.The defence challenged the detention order, referring mainly to the applicant’s deteriorating condition and a lack of adequate medical care in detention. They stated that the applicant was in need of constant medical assistance, supervision and treatment in a surgical department of a hospital.
15.On 29 December 2006 the Regional Court, without addressing the defence’s arguments, found the detention order to be lawful and well‑founded.
16.On 9 March 2007 the District Court concluded that the circumstances which had called for the applicant’s arrest and detention had not changed. His further detention was necessary so that the authorities could complete the investigation. The detention was extended until 14June2007.
17.On 14 March 2007 the Regional Court upheld the detention order, stressing that the accused’s health was not the decisive factor in the assessment of the need for detention. The court also noted that Russian law guaranteed medical treatment to every detainee.
18.On 9 June 2007 the applicant’s detention was extended until 14September 2007. The court endorsed its previous reasoning, namely the risks of absconding and influencing witnesses and the necessity to complete the investigation.
19.In appeal statements, the defence disagreed that there was a risk of influencing witnesses, and cited the applicant’s serious health condition and the detention facility’s continued failure to ensure his transfer to a hospital. The lawyers also argued that the investigative authorities had been idle in the previous three months.
20.On 18 June 2007 the Regional Court upheld the detention order without going into the defence arguments.
21.On 31 August 2007 the Tsentralniy District Court of Omsk extended the detention until 1 November 2007, given that the bill of indictment had not yet been drafted or served on the applicant.
22.The detention order was upheld on appeal on 10 September2007, including a specific reference to the detention authorities’ consent to ensure the applicant’s prompt admission to a civilian hospital if necessary.
23.Another extension followed on 29 October 2007 when the Regional Court ordered that the applicant had to remain in custody until 1 December 2007 because one of his alleged accomplices had not yet finished studying the case file. The court noted that there were no grounds for concern about the applicant’s access to medical aid since the authorities had made assurances about his transfer to an adequate medical facility if needed.
24.On 6 February 2008 the Supreme Court of Russia upheld the detention order of 29 October 2007, finding it to be well-reasoned.
25.In the meantime, the pre-trial investigation was closed and the applicant was committed to stand trial before the Russkaya Polyana District Court of the Omsk Region.
26.On 30 November 2007 the Russkaya Polyana District Court held a preliminary hearing in the case in which it extended the applicant’s detention in view of the continued presence of the factors which had initially warranted his arrest.
27.On 13 December 2007 the Regional Court dismissed an appeal against the extension order, noting the lawfulness and reasonableness of the District Court’s findings.
28.In early 2008 the applicant sought release from detention on medical grounds. He cited colorectal surgery, which he had undergone in December, and his inability to take part in court hearings for three or four months given his need for bed rest.
29.On 8 February 2008 the District Court found that the circumstances justifying the applicant’s continuous detention had ceased to exist. His health condition had become serious. Against that background the gravity of the charges no longer sufficed to justify continued detention. The court ordered the applicant’s release against a written undertaking not to leave his home town. The criminal proceedings against the applicant were stayed. Three days later the applicant was released from detention. The release order became final.
30.The parties have not provided any information on subsequent progress in the case.
B.Medical treatment
31.Following admission to remand prison no. IZ-55/1 on 3November 2006, the applicant was examined by the prison doctor, who noted that he had twice undergone colorectal surgery and that he was suffering from various illnesses, including coronary disease, angina pectoris, mild hypertension, moderate obesity, chronic gastritis and chronic enterocolitis.
32.In December 2006 a large part of the applicant’s sigmoid colon prolapsed and fell out of the rectum, resulting in the development of faecal incontinence. On 21 December 2006 a generalist surgeon from Omsk Regional Penitentiary Hospital no. 11 (“the Penitentiary Hospital”) examined the applicant and prescribed the use of adult absorbent briefs and the washing of his intimate areas twice a day. A consultation by a proctologist was recommended.
33.The authorities did not provide the applicant with adult absorbent briefs. It is apparent from a certificate signed by the detention authorities that the applicant received a small number of absorbent briefs from his relatives.
34.According to a written statement by Mr. P., a detainee who claimed to have shared a cell with the applicant between November 2006 and January 2007, the applicant complained of acute pain which intensified during the night. On a number of occasions the applicant lost consciousness owing to unbearable pain. A doctor called by inmates only gave painkillers to him. The applicant could only walk by taking small steps as walking caused a great deal of pain. He had to endure the pain each time he wanted to go to the prison shower room, which was located in the basement area of the prison. The authorities did not give him any hygiene products. Even toilet paper was supplied by his relatives.
35.On 6 January 2007 the applicant was admitted to the medical unit in the remand prison. Six days later, at the request of the applicant’s lawyer, the head of the colorectal department of the State Regional Civilian Hospital, Dr N., examined the applicant in the remand prison and found his condition to be moderately serious. The applicant was diagnosed with a serious dysfunction of the anal sphincter and the presence of rectal strictures. An inpatient in-depth examination in a civilian hospital, as well as rectal surgery, was prescribed. Dr N. noted that the detention authorities were unable to ensure that the applicant receive the necessary examinations or provide him with treatment owing to a lack of equipment and medical specialists. Dr N. stressed that any delay in treatment could lead to complications and even death.
36.At the end of January 2007 the applicant was seen by a prison surgeon. Considering the applicant’s condition to be satisfactory, the doctor concluded that there was no urgent need to perform surgery or admit the applicant to hospital. The applicant was, however, relieved from morning physical exercises, marching drills and lifting weights.
37.On 2 February 2007, again at the initiative of the applicant’s lawyer, a senior doctor from the State Regional Civilian Hospital, Dr Z., visited him and recorded a further deterioration of his health in the form of an inflammation of the prolapsed part of his bowels. The doctor interpreted the inflammation as a serious complication which could result in the patient’s death if urgent medical examinations and treatment did not take place. He stated that the penitentiary institutions were unable to perform a fibre endoscopic examination of the colon and a multislice computed tomography, the tests required for the correct diagnosis and treatment of the applicant’s condition. The doctor endorsed the recommendations made on 12January 2007 and added that bed rest was required.
38.On 22 March 2007 the applicant was admitted to the Penitentiary Hospital where, by means of an endoscopy, he was diagnosed with dysfunction of the sphincter, and prolapse and inflammation of the sigmoid colon. Treatment with drugs was prescribed. The treatment was meant to reduce the applicant’s pain and help cure his secondary illness.
39.On 2 April 2007 Dr Z. visited the applicant and confirmed the diagnosis. The doctor established that the inflammation had progressed, the patient’s health had deteriorated and that the overall state of his health had become serious. He was in need of urgent colorectal surgery.
40.On 10 May 2007 the applicant was sent back to the medical unit in the remand prison, where he stayed for eleven days. Treatment with painkillers in that period was unsuccessful and the applicant was re‑admitted to hospital, apparently with a complication of his heart conditions.
41.At the end of May 2007 Dr N. examined the applicant and noted further progression of the inflammatory process and the aggravation of other illnesses. He insisted on an in-depth medical examination and surgery, noting that surgery could only be performed after bringing the applicant’s heart-related problems under control.
42.The applicant was taken back to the prison medical unit at the beginning of June 2007. However, re-admission to the Penitentiary Hospital followed after just seven days. The applicant was again sent back and forth between the two institutions in August 2007. In that period he received painkillers and antispasmodic drugs. His condition deteriorated further. The attending doctors recorded enlargement of the prolapsed segment of the bowel and that the surrounding skin was macerated and oedematous.
43.On 20 and 27 June 2007 the applicant’s lawyer arranged for an ultrasound examination by an independent doctor, who recorded pathologic changes in the liver and suggested that they could, in fact, be a sign of metastasis caused by the developing colorectal cancer. A liver puncture test was required for the correct diagnosis.
44.On 9 August 2007 the applicant was released from the Penitentiary Hospital and sent to the remand prison, where he stayed for a month.
45.On 16 August 2007 the applicant was examined by a surgeon from the Penitentiary Hospital who confirmed the necessity for colorectal surgery on the patient “in due course in the very near future”.
46.Eight days later Dr N. stated that owing to the deterioration of the applicant’s condition he was in need of urgent colorectal surgery. Any postponement, in his view, could lead to irreparable damage, including the applicant’s death.
47.According to a written statement by Mr S., who shared a cell with the applicant at the beginning of autumn 2007, at the time in question the applicant looked very sick. He had a sallow complexion, was thin and exhausted. The applicant could only take small steps when walking and supported the lower part of his abdomen. A pungent smell surrounded him. Mr S. helped the applicant to bathe. The applicant’s perineum was inflamed. A bleeding segment of bowel the size of a fist prolapsed through his rectum. The applicant was not provided with incontinence wear and had to wash himself in a sink with cold water.
48.After another stay in the Penitentiary Hospital, from 6 September to 3October 2007, the applicant was taken back to the prison medical unit. In the notes accompanying his discharge the doctors noted that the applicant was suffering from stage 2 colorectal cancer. They recommended colorectal surgery after the applicant’s release from detention.
49.On the following day the applicant was taken back to the Regional Hospital as an urgent case as his condition had become worse.
50.In the meantime, on 1 October 2007 he had lodged an application with the Court and had also asked for the application of an interim measure under Rule 39 of the Rules of Court. He wanted an indication to the Russian Government that he should be allowed to have colorectal surgery, an X-ray computer tomography and a paracentesis of a space-occupying lesion of the liver.
51.On 3 October 2007 the applicant had a new ultrasound examination. It was unable to give a definite answer as to whether the changes in the applicant’s liver were indeed caused by metastasis.
52.According to a medical certificate issued in the Penitentiary Hospital on 29 October 2007, the applicant’s health condition was considered to be satisfactorily and stable with no signs of negative trends. The detention authorities repeatedly insisted that there was no need for urgent surgery.
53.On 23 November 2007, following receipt from the Government of information on the applicant’s state of health, the Court decided to apply Rule 39 and to draw the Russian Government’s attention to the urgent necessity of the applicant having the following medical procedures: colorectal surgery in a specialist hospital, an X-ray computed tomography, as well as a surgical puncture of the space-occupying lesion of the liver.
54.Between 21 and 26 November diagnostic tests indicated by the Court were performed. They revealed no signs of liver metastasis or space‑occupying lesions.
55.On 26 November 2007 Dr N. examined the applicant. He observed a tumor-like stained mass measuring 10 cm in diameter with an opening measuring 1.3 cm, surrounded by coarse cicatrix. The doctor again urged the authorities to perform colorectal surgery.
56.The applicant’s fellow inmate, Mr R., in a statement submitted to the Court, wrote that in November and December 2007 the applicant’s state of health was serious. The applicant was stained with faeces, being unable to control his defecation function. He had to defecate in a standing position, supporting the prolapsed bowel, otherwise his rectum began bleeding. The faeces were liquid and flowed down his legs. He had to wash himself with cold water as no hot water was available in the cell.
57.On 24 December 2007 the applicant was admitted to Omsk Regional Hospital where a colostomy was performed. After a month-long stay, the applicant was discharged from the hospital back to the prison medical unit. Seventeen days later he was released from detention.
58.On 14 October 2008 the Court decided to lift the interim measure indicated under Rule 39.
59.According to the applicant, he underwent inpatient and outpatient treatment in various hospitals after his release.
C.Conditions of detention
60.The parties provided conflicting descriptions of the conditions of the applicant’s detention in the remand prison.
1.The Government’s version
61.On the applicant’s admission to the remand prison, on 3 November 2006, the administration found him unfit for detention in a cell for common occupation and ordered his confinement in a cell for single occupation. An order to that effect was issued and the applicant signed it.
62.Relying on certificates issued by the administration of the remand prison in December 2011 the Government claimed that the facility had not been overcrowded. The applicant had been detained in ten different cells which fully complied with regulatory standards. Lavatory pans in the cells had been separated from the living area by a partition. The Government’s submissions may be summarised as follows:
Period of detention
Cell
no.
Cell surface area (sq.m.)
Design capacity (pers.)
Height of the partition
(m.)
3 November 2006 to 4 January 2007
143
21
6
1.6
4 January to 6January 2007
239
39.9
10
ceiling height
6 January to 22March 2007
252
10.16
2
1.1
11 to 21 May 2007
248
11.35
2
1.1
8 to 16 June 2007
232
40
10
ceiling height
10 August 2007
39
-
-
-
10 August to 6September 2007
249
11.4
2
1.1
4 October 2007
276
40
5
ceiling height
17 to 20December 2007
247
12.6
2
1.1
20 to 24December 2007
278
41
10
ceiling height
63.According to the Government, there was hot and cold water in the cells. The facility had had separate shower rooms. The applicant had been given a bucket for his daily washing needs.
2.The applicant’s version
64.The applicant disputed the idea that he had been put in a cell for single occupation and stated that no such order had ever been issued by the detention authorities. He stressed that he had always shared a cell with other detainees in the remand prison. To support that statement, the applicant submitted a certificate issued by a remand prison official on an unspecified date, apparently between 2006 and 2007.
65.In 2012 the applicant’s lawyer questioned three inmates, MrP., Mr.S. and Mr R., who stated that they had been detained with the applicant in overcrowded cells. One cell had measured 41 square metres and housed between eighteen and twenty detainees, while two of the cells had measured between 18 and 20 square metres and had accommodated at least eight detainees. Each inmate, including the applicant, had thus been afforded between 2.05 and 2.5 square metres of living space.
66.The applicant submitted that during his detention in the remand prison he had only been able to take a shower once a week. However, acute pain while walking had sometimes prevented him from using the shower even on those occasions. After each instance of uncontrolled defecation he had had to wash himself while standing over the lavatory pan, exposed to the view of his cellmates. The partitions were low and therefore could not provide any privacy. No special arrangements had been made for him by the authorities.
67.In their statements, MrP., Mr. S. and Mr R. also confirmed the applicant’s submissions about the lack of any possibility for him to take regular showers and about the conditions in which he had had to perform the daily washes caused by his illness. The inmates described the insults that the applicant had had to endure as a result of the need to wash himself in front of his cellmates. The three former detainees stressed that the applicant had had to make amends for the inconvenience he had caused to his fellow detainees by, for instance, giving them cigarettes, tea, or other valued products supplied by his relatives.

***

1. The applicant, Ms G.J., is a Nigerian national who was born in 1985. According to the case file, she lives in Nigeria. She was represented before the Court by Ms G. Fernández Rodríguez de Liévana, a lawyer at the non ‑ governmental organisation Women ’ s Links Worldwide (hereafter “WLW”) based in Madrid.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. First set of asylum proceedings
3. In 2006 the applicant arrived in Spain and submitted an asylum request (also referred to hereafter as the first set of asylum proceedings). She alleged that she was a Catholic and had fled Sudan after her father ’ s assassination by a radical Muslim group.
4. On 12 July 2007 the Spanish authorities issued an expulsion order in respect of the applicant. According to the case file, the applicant did not seek judicial redress against that order.
5. Her first asylum request was dismissed on 13 July 2009. The administrative authorities found that the inconsistent and contradictory statement of facts provided by the applicant cast doubts on her current nationality and the existence of the alleged persecution. On 7 December 2009 Ms M.E. was appointed as the applicant ’ s legal aid lawyer.
6. The dismissal decision of 13 July 2009 was challenged on 22 March 2010 by means of an appeal introduced by Ms M.E. before the Audiencia Nacional ( Court sitting in Madrid with jurisdiction in asylum cases).
7. On 15 October 2010 the Audiencia Nacional dismissed the appeal on its merits. It found that the applicant had not provided any documents proving her identity and nationality. Nor had the applicant provided a minimum of evidence to support her allegations. The court noted that she did not speak Arabic, the official language in Sudan, and that her mother tongues were English and Niala, the latter being a dialect which was not spoken anywhere in Sudan. Lastly, violent incidents similar to those recounted by the applicant had been reported as occurring in Dafur, but not in Yala, the applicant ’ s alleged city of origin.
2. Second set of asylum proceedings
8. In the meantime, on 19 February 2010 two police officers stopped the applicant on the street and asked her to prove her identity. She was detained and, with a view to enforcement of the 2007 expulsion order, placed in an aliens ’ detention centre. At the time of her detention the applicant was pregnant.
9. On 25 February 2010 the applicant filed a new asylum request (hereafter referred to as the second set of asylum proceedings). She claimed that she was of Nigerian nationality and a Catholic and had fled Nigeria after her parents ’ assassination, having been helped to flee by a man called V. Upon her arrival in Spain, however, V. had forced her into prostitution in order to repay her travel expenses, which amounted to 20,000 euros (EUR). After having sex with clients she had become pregnant and V. had suggested she should have an abortion, but she had been detained just a few days prior to her appointment at the abortion clinic. She wished to have the baby and feared being killed if returned to Nigeria as she had not managed to repay her debt.
The United Nations Refugee Agency (hereafter, the “UNHCR”) had supported the applicant ’ s request since it considered that, on the basis of the facts recounted by the applicant, she had been a victim of ‒ and might still be a victim of ‒ human trafficking. In the second set of asylum proceedings the applicant was represented by the lawyer Mr A.P.
10. On 26 February 2010 this second asylum request was declared inadmissible by the Deputy Director on Asylum. She found that the applicant ’ s account of facts as to the alleged persecution was incoherent and inconsistent and she had already presented similar submissions in her first asylum request, which had been rejected.
11. On 3 March 2010 the NGO Proyecto Esperanza ‒ an agency which specialises in the investigation of trafficking and which had been informed about the applicant ’ s case by the UNHCR ‒ interviewed the applicant at the aliens ’ detention centre and submitted a report to the Asylum Office of the Ministry of Internal Affairs supporting the applicant ’ s allegations.
12. On 4 March 2010 the applicant applied for a re-examination of the second asylum request. She departed from her initial claim alleging persecution on religious grounds, instead focussing exclusively on the fact that she had been trafficked to Spain for the purpose of being forced into prostitution, and provided a more detailed account of facts. The request for re-examination was dismissed on 5 March 2010, the applicant ’ s new submissions not being sufficient to alter the conclusions reached in the inadmissibility decision.
13. The applicant instituted administrative judicial proceedings ( procedimiento contencioso administrativo ) against the refusal decision. Additionally, the applicant requested the suspension of the expulsion order, arguing that she was a victim of trafficking and that she should not be removed from Spain until the identification procedure was completed.
14. On 10 March 2010 Madrid administrative judge no. 6 rejected the applicant ’ s request to have her expulsion suspended on the following grounds: the applicant had failed to demonstrate the existence of a risk to her life or physical integrity if returned to Nigeria; the applicant had submitted an international protection request only after having been detained and held in immigrant detention; the applicant had already sought asylum unsuccessfully in 2007; the reports compiled by the administrative authorities supporting rejection of the asylum request were better reasoned and more convincing than the report produced by the UNHCR office. According to the case file, the applicant did not appeal against the rejection of the suspension.
15. On 13 April 2010 Madrid administrative judge no. 6 ruled that he lacked jurisdiction to examine the applicant ’ s appeal, and relinquished the case to the Audiencia Nacional. It does not follow from the case file that either the applicant or the administrative courts have taken any further steps in pursuance of these proceedings.
3. The intervention of WLW
16. On 11 March 2010, while the above-mentioned judicial proceedings were pending before Madrid administrative judge no. 6, two lawyers from WLW visited the applicant in the detention centre. The applicant signed a written authority to act (hereafter referred to as “the authority dated 11 March 2010”), instructing Ms Fernández Rodríguez de Liébana, one of the lawyers, to apply for the granting of a “recovery and reflection period” under section 59 bis of Organic Law 4/2000 of 11 January on the rights and freedoms of aliens in Spain. In the application, which was introduced on 12 March 2010, WLW asked for a stay of the applicant ’ s expulsion.
17. WLW informed Mr. A.P., the applicant ’ s lawyer in the second set of asylum proceedings, that the organisation ’ s lawyers would represent the applicant from 11 March 2010 onwards. On an unknown date Mr. A.P. gave his consent thereto, but no power of attorney was signed by the applicant to formalise this.
18. On 15 March 2010 WLW applied to the Government Delegation in the Community of Madrid ( Delegación del Gobierno en la Comunidad de Madrid ) to have the applicant ’ s expulsion order revoked. It claimed that the applicant satisfied all the legal requirements to be granted a residence permit in view of her social integration in Spanish society.
19. On 17 March 2010 at 7 a.m. the applicant was expelled to Nigeria. WLW first learnt of the applicant ’ s expulsion on 18 March 2010, the date on which she was served with a decision by the Government Delegation dated 16 March 2010 rejecting the request for a recovery and reflection period. On the basis of an interview conducted by police officers, the Government Delegation found that there was no evidence to support the argument that the applicant was a victim of human trafficking. It was clear that she had not been forced into prostitution since she worked independently and voluntarily without being controlled, lived alone and had not been deprived of her freedom of movement. Furthermore, she had no relatives in Nigeria who might be threatened.
4. Judicial proceedings concerning the applicant ’ s expulsion
20. On 31 March 2010 WLW instituted administrative judicial proceedings for the protection of fundamental human rights ( procedimiento contencioso administrativo para la defensa de los derechos fundamentales ), claiming that the applicant had been expelled before the Spanish authorities had examined the substance of her request for a recovery and reflection period.
21. On 5 April 2010 Madrid administrative judge no. 14 asked WLW to submit a power of attorney signed by the applicant before a relevant authority, namely a notary, a judicial secretary or a consular authority. He stated that the application would be deemed valid if the applicant had signed it herself.
22. On 7 May 2010 WLW argued before the judge that the manner in which the applicant had been expelled had prevented the organisation from having a power of attorney signed by the applicant before a notary or a judicial secretary. WLW contended that it had not been informed about the expulsion beforehand and had not been able to contact the applicant since then. In its view, the written authority dated 11 March 2010 (see paragraph 16 above) should be regarded as valid for the purposes of representation before domestic courts.
23. On 7 June 2010 the administrative judge rejected WLW ’ s submissions. He referred to sections 23 and 45 (2) (a) of Law 29/1998 of 13 July on Administrative Judicial Procedure, which established the obligation to furnish a power of attorney in cases where applicants had instructed a lawyer to represent them before an administrative judge, and to section 24 of Law 1/2000 of 7 January on Civil Judicial Procedure, which provided that the power of attorney must be signed before a notary or a judicial secretary. The judge observed that the aim of these requirements was to demonstrate the genuine existence of the person intending to apply to the judicial authorities for the purpose of defending his or her individual rights.
24. On 19 July 2010, as a result of a claim lodged by WLW concerning the applicant ’ s case, the Spanish Ombudsman issued a recommendation to the Asylum Office of the Ministry of Internal Affairs to the effect that the asylum authorities should automatically initiate a procedure aimed at determining whether the alleged victim should be granted a recovery and reflection period in cases where an international protection request has been supported by the UNHCR office because it is thought that the person concerned might be a victim of human trafficking.
25. On 3 August 2010, after holding a hearing in the presence of WLW, Madrid administrative judge no. 14 declared the appeal inadmissible as WLW had no locus standi to represent the applicant. The judge found that WLW had failed to substantiate its assertion that its lawyers had tried three times to procure the attendance of a notary at the aliens ’ detention centre.
26. On 27 May 2011 the Madrid High Court of Justice upheld this decision, observing that WLW had not demonstrated that it had approached the professional association of notaries for the purpose of requesting the attendance of a duty notary at the aliens ’ detention centre. The High Court also found that no evidence had been produced showing that the applicant was unable to avail herself of consular services in her country of origin as provided by section 65 (2) of Organic Law 4/2000 of 11 January on Rights and Freedoms of Aliens in Spain. In view of the above, the High Court declared that the written authority dated 11 March 2010, which was valid for the purposes of the applicant ’ s representation in administrative proceedings, was not sufficient to satisfy the representation requirements under section 24 of Law 1/2000. On 7 March 2012 the Constitutional Court declared the applicant ’ s amparo appeal inadmissible for lack of any special constitutional significance.
B. Relevant domestic law
27. Section 59 bis of Organic Law 4/2000 of 11 January on the Rights and Freedoms of Aliens in Spain imposes on the competent domestic authorities the obligation to adopt the measures necessary for the identification of victims of trafficking in human beings. This provision reads:
Section 59 bis
“1. The competent authorities shall adopt the necessary measures for the identification of victims of trafficking in human beings in compliance with Article 10 of the Council of Europe Convention on Action against Trafficking in Human Beings, of 16 May 2005.
2. Whenever they consider that there are reasonable grounds to believe that an illegal immigrant is a victim of trafficking in human beings, the competent administrative bodies shall inform the person concerned of the provisions of this section and shall submit, in accordance with the relevant procedure, a proposal to the competent authority for the adoption of a decision on whether a recovery and reflection period should be granted in the case.
The recovery and reflection period shall last at least thirty days and shall be sufficient for the victim to make a decision on cooperating with the authorities in the investigation of the crime and, if appropriate, in the criminal proceedings thereafter. During the victim identification period and the recovery and reflection period no infringement proceedings may be instituted for a violation of section 53 (1) (a). Any infringement proceedings that may have been instituted and any expulsion or deportation decisions adopted will be suspended. Likewise, during the recovery and reflection period, the person concerned shall be authorised to stay in the territory temporarily and the competent administrations will provide for his or her subsistence and, if necessary, for the security and protection of the victim and any of his or her children who are minors or disabled and were in Spain at the moment of identification ...
3. The recovery and reflection period may be denied or revoked for reasons of public order or if it is found that victim status has been claimed improperly. The denial or revocation shall be properly reasoned and can be appealed against as provided for by Law 30/1992 of 26 November on the Legal System of the Public Administration and on Common Administrative Procedure.
...”
28. The relevant Spanish legislation setting out the formal requirement to provide legal representation (in force on the date of the institution of the proceedings for the protection of fundamental rights) provides as follows:
1. Law 29/1998 of 13 July on Administrative Judicial Procedure
Section 23
“1. In proceedings before a single judge, the parties may choose to be represented by a procedural representative and shall, in any event, be advised by a legal counsel ... ”
Section 45
“1. Claims for judicial review shall be initiated in the form of a written application that merely cites the decision, act, inaction or action constituting the challenged ultra vires operation and the petitum that the claim be held to have been filed, unless otherwise provided by this law.
2. This application shall be accompanied by:
a) The document ascertaining the capacity of the person appearing on behalf of the party, unless this document has been previously attached to the judicial file of a case pending before the same court, in which case a certificate may be requested, to be attached to the new judicial file.
...”
2. Law 1/2000 of 7 January on Civil Judicial Procedure
Section 24. Procedural representative ’ s authority to act
“1. The authority to act on behalf of a party shall be conferred through a notarial power of attorney witnessed by a public notary or through the party ’ s appearance in the office of a judicial secretary.
...”
3. Law 4/2000 of 11 January on Rights and Freedoms of Aliens in Spain
Section 65. Appealable nature of the decisions issued as regards aliens
“1. The administrative decisions imposing an administrative sanction may be appealed against as provided for in the relevant regulations. These decisions shall be enforced according to the relevant general legislation.
2. Where the alien is outside Spain, he or she may introduce administrative or judicial proceedings through the relevant diplomatic or consular services, which shall forward the appeal to the relevant body in Spain.”

***

A.Criminal proceedings against the applicant
5.On 27 June 2006 a nineteen-year old woman, K., went to a party in Novy Sanzhary, a small town, and never returned home.
6.On 4 July 2006 her relatives reported her disappearance to the police.
7.Having questioned a number of witnesses, the police established that K. had left the party with her cousin R. and the applicant, one of his friends. At about 6 a.m. on 28 June 2006 K., R. and the applicant were seen drinking beer in a café. Several witnesses stated that while the applicant had been in the café he had carried a certain “pennant” of a mobile operator company. Shortly afterwards, a witness saw the applicant walking down a road with his arms around K. After that nobody saw K.
8.R. told the police that in the morning on 28 June 2006 he had left K. with the applicant and had gone to work.
9.On an unspecified date between 4 and 8 July 2006 the police questioned the applicant as a witness in connection with K.’s disappearance. During that questioning the applicant said that in the morning on 28 June 2006 he had left K. with two unknown men, had taken a taxi at a taxi stand and had gone home. Police officer I. brought the applicant to the taxi stand and asked the taxi drivers whether they had seen him on 28 June 2006. The taxi drivers did not recognise the applicant and the applicant could not indicate the car and the driver who had allegedly driven him on 28 June 2006. He also could not provide any details about the appearances of the car or the driver.
10.After the applicant’s questioning as a witness and the visit to the taxi stand (see paragraph 9 above), on 8 July 2006 the police detained the applicant for an “offence of minor public disorder” and placed him in a cell at the Novy Sanzhary Police Station. Before the Court and the trial court the applicant submitted that he had not committed any such offence and had been placed in the cell without any reasons. No further information about the nature of the offence in question was made available to the Court.
11.Before the Court the applicant stated that on 8 and 9 July 2006, while he had been kept in the cell, police officers had beaten him and threatened him urging him to “tell the truth” about K.’s disappearance. The material in the case file (namely, a copy of the applicant’s indictment) contains reference to the statements of police officers I. and F. saying thaton 8 or 9 July 2006, while the applicant was in the cell at the Novy Sanzhary Police Station, they questioned him without a lawyer in connection with K’.s disappearance. On 10 July 2006 they questioned him again on the same issue without a lawyer and he confessed to K.’s murder, robbery and rape.
12.On 10 July 2006 during the questioning by I. and F. the applicant made a written statement saying that in the morning on 28 June 2006, after R. had left, he had decided to walk K. home. As he and K. had been walking down a road, he had tried to hug her but she had struck him in the groin. He had reacted by suddenly grabbing her by the neck with his two hands and holding her for several seconds. K. had fainted so he had let her go. After that he had dragged her body into some bushes, pulled down her knickers, bra and t-shirt and had raped her. After that he had taken 20Ukrainian hryvnias (approximately 3 euros) from her wallet and had left. As he had been leaving, K. had been unconscious, but he had not known whether she had been dead or alive, he had had no intention to kill K. when he had grabbed her neck but he had realized that such actions could theoretically result in her death. I. and F. passed the applicant’s written confessions to investigator G. from the local prosecutor’s office.
13.Still on 10 July 2006 investigator G. opened a criminal case against the applicant for the rape, robbery and murder of K. and read him his procedural rights as a suspect, including his rights of defence. The applicant confirmed in writing that he understood his rights. G. also arrested the applicant on suspicion of murder, robbery and rape.
14.Some forty minutes later investigator G. carried out a reconstruction of events in the presence of the applicant, attesting witnesses B. and L., and a forensic medical expert, B. The applicant showed them the place where he had grabbed K. by the neck and her body lying in the bushes. The experts and the investigator inspected the crime scene and collected physical evidence. Investigator G. kept written minutes of the inspection of the crime scene. He noted that the corpse was heavily damaged from decay, worms and insects, it was lying face up with legs spread apart. K.’s bra, t-shirt and knickers were pulled down. Near the corpse the police found a pennant of a mobile operator company and K.’s open wallet.
15.On the same day after the reconstruction of events, investigator G. questioned the applicant in his capacity as a suspect without a lawyer being present. The applicant confirmed his previous statements.
16.In his application form the applicant stated that for the first time he had been allowed to see a lawyer on 22 August 2006. However, from the material in the case file, the authenticity of which the applicant did not dispute before the Court, it follows that on 11 July 2006 the investigator G. appointed lawyer V. to represent the applicant under the legal aid scheme and questioned the applicant in his presence. The applicant confirmed that he had strangled K. with both hands, taken 20 hryvnias from her wallet, put her body in the bushes, pulled down her clothes and raped her.
17.On 12 July 2006 S. was appointed as the applicant’s lawyer instead of V. at the request of the applicant’s father. The applicant confirmed in writing that he wished to have S. as his lawyer.
18.Later that day the police conducted a further reconstruction of events which the applicant, lawyer S., two attesting witnesses and two forensic medical experts took part in. The applicant confirmed that he had strangled K. with both hands, and that after she had fainted he had put her body in the bushes, taken 20 hryvnias from her wallet, pulled down her clothes and raped her. During the reconstruction, he told the medical experts that he had not been ill-treated by the investigative authorities.
19.On 14 July 2006 the applicant was questioned again without a lawyer. Before the questioning he noted in writing that he did not object to being questioned without a lawyer. He described the clothes he had worn on the day of the murder and said that after the murder the clothes had been washed. The police seized the clothes in question from the house of the applicant’s parents.
20.On 18 July 2006 the applicant was examined by a forensic medical expert, who observed no injuries and reported no complaints.
21.On the same date the investigator read the applicant his procedural rights as an accused, including his rights of defence. The applicant indicated that he wanted to have S. as his lawyer.
22.Later that day the applicant was charged with rape, robbery and murder. He was questioned in lawyer S.’s presence and confirmed having strangled K. with both hands, taken 20 hryvnias from her, put her body in the bushes, pulled down her clothes and raped her.
23.Forensic examinations conducted in July and August 2006 revealed that K. had died because she had been strangled by the neck on both sides. The forensic experts did not find on the corpse any forensic evidence (fingerprints, body fluids, genetic material, and the like) originating from the applicant. No such evidence was discovered on the crime scene either. The experts also found no forensic evidence of rape on the body because its soft tissues had been destroyed by decay and worms. However, in their report the forensic medical experts noted that the corpse’s position and the fact that the clothes on it had been displaced proved that K. had been raped.
24.On 9 September 2006 the applicant confirmed that he wished to have S. as his lawyer. Later that day he was questioned in S.’s presence and said that he had not intended to kill or rape K. He had only decided to rape her after she had fainted. He said that he had not taken 20 hryvnias from K.’s wallet. In fact, he had seen 20 hryvnias on the ground near her body, decided that they had fallen from his own pocket and had taken them. He also said that he had given his earlier statements voluntarily without being physically or psychologically coerced into doing so.
25.Witnesses questioned during the pre-trial investigation stated that the pennant found on the crime scene looked exactly as the one which they had seen on the applicant in the morning on 28 June 2006 (see paragraph 7above). The applicant did not deny that it was the same pennant.
26.On 19 September 2006 the investigator granted the applicant’s request to have his mother appointed as his representative.
27.On the same day the applicant was informed that the pre-trial investigation was completed and the indictment was drafted. The applicant was allowed to study the case file with S. and his mother.
28.On 28 September 2006 the case was sent for trial to the Poltava Regional Court of Appeal.
29.On 16 November 2006, during a court hearing at which lawyer S. was present, the applicant stated that after K. had kicked him in the groin he had suddenly struck her on the neck with one hand. She had fainted and he had put her body in the bushes and left. He denied having strangled K. with his two hands, robbed her, pulled down K.’s clothes, and raped her. He submitted that the police had detained him several days before 10 July 2006, kept him in a cell and ill-treated him until he agreed to confess to the murder, robbery, and rape.
30.The court ordered the prosecution authorities to conduct a pre‑investigation inquiry into the applicant’s allegation of ill-treatment.
31.On 5 February 2007 the Novi Sanzhary prosecutor’s office refused to institute a criminal investigation into the applicant’s complaint of ill‑treatment after questioning F. and I., who denied that they had subjected him to any pressure. Copies of the written minutes of the questioning of F.and I. are not available to the Court.
32.The applicant requested the Poltava Regional Court of Appeal to send his case for additional investigation on the ground that his right to defence had been restricted on 10 July 2006 when he had been questioned without a lawyer. On 23 October 2007 the Poltava Regional Court of Appeal rejected that request noting that although the applicant’s right to legal assistance had indeed been restricted on 10 July 2006, the situation had been remedied because starting from 11 July 2006 the applicant had been represented by a lawyer and confirmed his self-incriminating statements in his presence.
33.The court questioned F. and I. and the attesting witnesses present during the reconstruction of events on 10 July 2006. They all denied that the applicant had been coerced. The forensic experts who had examined K.’s body were questioned by the court; they refuted the applicant’s claim that he had struck the victim once on the neck. They said that her injuries proved that she had died because she had been strangled by the neck on both sides, in the exact same way the applicant had described during the pre-trial investigation.
34.Being questioned at a court hearing in the presence of a lawyer the applicant stated that he had involuntarily killed K. by striking her with one hand, he had not strangled, robbed or raped her. According to him, the police had pulled down K.’s clothes, put her body face up and spread her legs because they wanted to accuse the applicant of her rape.
35.On 20 November 2007 the Poltava Regional Court of Appeal convicted the applicant of robbery, rape, and murder of K. and sentenced him to fourteen and a half years’ imprisonment. The court found that the applicant had wanted to rob and rape K. and had strangled her in order to supress her resistance. The court referred to the statement which the applicant had made in the presence of his lawyer, the minutes of the inspection of the crime scene on 10 July 2006, the results of the forensic examination of K.’s body and other material evidence found on the crime scene, forensic expert’s statements made before the court, and statements of witnesses who on 28 June 2006 had first seen the applicant with R. and K. and then later with K. alone walking down the road. The court also noted that the pennant which the applicant had with him when he had been in the café (see paragraph 7 above) had been later found on the crime scene. The court also referred to the statements of witnesses who had seen that on 27June 2006 K. had with her a note of 20 hryvnias. The conclusion that K. had been raped was made having regard to the position of K.’s body when it had been discovered by the police and the fact that her clothes had been pulled down. In its reasoning the court did not refer to the clothes which the applicant described on 14 July 2006 (see paragraph 19 above) as an evidence of his guilt. However, in the operative part of the judgment the court ordered the police to return the clothes to the applicant’s mother. As to the applicant’s allegation of ill-treatment, the court dismissed this as unsubstantiated referring to the prosecutor’s decision of 5 February 2007.
36.The applicant appealed to the Supreme Court. He complained, in particular, that the trial court had relied on his confessions extracted under duress and without a lawyer.
37.On 27 March 2008 the Supreme Court upheld the judgment of 20November 2007. It noted, in particular, that when convicting the applicant the trial court had mainly relied on the statements which he had made in the presence of the lawyer S. on 9 September 2006.
B.Conditions of detention
38.In a letter to the Court in September 2009, the applicant described the conditions of his detention in Poltava SIZO. He stated that he had been held there since 27 August 2006 in a cell measuring approximately 15square metres with three other inmates. The window had been covered by a plastic sheet making it impossible to open. Because of this no fresh air had entered the cell and in summer, the temperature would sometimes reach 45oC. He had never been allowed to leave the cell. The food had been inadequate.
39.The applicant submitted photos of a building which he claimed was Poltava SIZO. The windows appear to have bottom-hinged shutters made of transparent plastic. On the photographs the shutters are open, and there are several tens of centimetres of space between the window and shutter and the shutter and wall.
40.The Government submitted that during his detention in the SIZO, the applicant had been held in various cells and it was unclear which of them he had been referring to in his letter to the Court. From 29 December 2008 to 26 January 2009 he had been detained with three other detainees in cell no.135, which measured 10.34 square metres. He had therefore enjoyed 2.6square metres of personal space. From 26 January 2009 to 12 March 2010 he had been detained with three other inmates in cell no.24, which measured 12.42square metres. The space allocation for one person had therefore been 3.1square metres. Both cells were equipped with four beds. The SIZO windows could be opened and had not been blocked with plastic sheets. The food the applicant had received met the standard set by domestic law. The Government did not deny that the applicant had been unable to leave the cells he had been held in.

***

5.The applicant was born in 1963 and lives in the town of Shargorod, Ukraine.
A.Events of 30-31 December 2002
1.The applicant’s version
6.According to the applicant, at around 1.30 p.m. on 30December2002, while working in the backyard of his home, he saw three young men on the premises of the nearby Shargorodskiy Food Products Factory (“the factory”). Since there had previously been thefts at the factory premises, during which scrap metal had been thrown over the fence into the applicant’s yard, the latter decided to enter the factory yard to chase after the young men. However, having climbed over the fence and realising the young men were no longer there, the applicant went to look inside the building, entering “through an opening in the wall”. The factory premises were empty but the applicant claimed to have heard adult voices. He did not want to meet anybody and so he crawled out through the same opening and quickly returned home.
7.Five to ten minutes later a police officer, L., arrived at the applicant’s house. According to the applicant, he had a gun in his hand, swore at the applicant, grabbed him by his collar and hit him on the head with the gun handle. The applicant fell to the ground and the police officer started kicking him. The applicant’s mother-in-law appeared and asked the police officer not to beat the applicant, whereupon he grabbed the applicant by the sleeve and took him to the police station. The applicant was accused of stealing aluminium sheets from the factory.
8.The applicant also submitted that, at the police station, L., in the presence of two other police officers, had kicked him in the kidneys, at which point the applicant fell to the ground. After he got up, one of the police officers gave him some water. L. then took the applicant into one of the offices, where he and another police officer, P., beat the applicant about the head and kicked him on various parts of his body for 15-20 minutes. Another police officer, G., arrived and L. and P. continued to beat the applicant, wanting him to confess to theft. After a while the applicant was placed in a cell.
9.That night the applicant complained of a headache and general sickness. He was told by the duty police officer that a doctor would come. After some time a man wearing a white coat arrived, emptied two ampules labelled “Analgin” and “Dimedrol” (diphenylhydamine) into a plastic water bottle and gave it to the applicant.
10.On the morning of 31 December 2002 the applicant was taken to court, where he was fined in administrative proceedings for disobeying a police officer’s order to stop. According to the applicant, he had wanted to show the judge his injuries but the latter refused, advising the applicant to go to a hospital and file a complaint.
11.The applicant was brought back to the police station, where he signed a paper stating that nobody had ill-treated him and that his personal belongings had been returned to him. The material in the case-file includes a note, allegedly signed by the applicant and dated 31December2002, stating that he had no complaints about the police officers and that no physical force had been used against him.
12.On the same day a decision not to institute criminal proceedings against the applicant for stealing aluminium was adopted. It was noted that the applicant had not had any intention of stealing the aluminium sheets and that he had entered the factory premises out of curiosity.
13.The applicant came home and told his family what had happened. The applicant’s sister-in-law, who is a nurse, gave him an injection but the applicant did not feel any better. He was suffering from headache, nausea and fever which he claimed continued for eight months.
2.The Government’s version
14.The Government did not provide a detailed description of the events of 30-31 December 2002 but it appears from their observations that they agreed with the findings of the national investigation authorities (seeparagraphs 48-50 below).
B.Applicant’s stay in hospital
15.On 2 January 2003 the applicant was examined at a hospital and was hospitalised the next day. The applicant stayed in hospital until 11 February 2003. According to the applicant’s medical records, upon arrival at the hospital, his condition was of “medium seriousness”. He had bruises mostly on the left side of his body and some scratches on his back. On his left thigh there was a large bruise measuring 12 by 6 centimetres. The applicant was suffering from headache and nausea. He told the doctors that he had been beaten by police officer L.
16.In a medical certificate dated 11 February 2003, issued by the hospital, the applicant was diagnosed with multitrauma, closed brain injury, brain contusion of medium severity causing numerous neurological problems, two broken ribs, post-traumatic pneumonia and injuries to his kidneys, face and body.
C.Investigation into the events of 30 December 2002
17.On 10 February 2003 the applicant requested the Vinnytsya Regional Prosecutor that criminal proceedings be instituted against the police officers. In support of his complaint the applicant outlined his version of the events which took place on 30-31 December 2002 (see paragraphs 6‑13 above).
18.On 18 February and 3 March 2003 several factory employees (F., S., Lo. – the wife of police officer L. –, V. and A.) testified before the investigation authorities that a noise had been heard in one of the factory buildings. V. had asked a police officer, L., to check the origin of this noise. All of the above persons had approached the building and had seen footprints in the snow leading to a conveyor belt opening in the wall. Two of them had stayed outside while the others, accompanied by L., had entered the building and had seen aluminium sheets from the ceiling piled on the floor and a man trying to escape through the conveyor belt opening. V., who had stayed outside, had tried to catch the man, but the latter had broken free. When jumping from the conveyor belt, the man had slipped and fallen onto the asphalt and had then run away. The police officer had chased after the man. The latter had climbed over the 2.5 metre high fence but had lost his balance and fallen onto the other side. The witnesses had heard a thud and a shriek.
19.L. gave similar testimony. He added that the applicant had also fallen when jumping over the fence of his house. L. had found the applicant in a coal bunker in the backyard of the applicant’s house and said that he had taken him to a police station.
20.On 3 March 2003 the applicant’s mother-in-law, M., testified that L. had arrived at her house and had said that he was looking for a criminal. Later she had heard a noise behind the barn and had seen L. aiming a blow with the handle of his gun at the applicant, who was lying on the ground. M. had begged L. not to beat the applicant. After that L. had taken the applicant to a police station.
21.On the same day the Vinnytsya Regional Police Department (Управління МВС України у Вінницькій області) approved the results of an internal investigation in response to the applicant’s complaint. The investigation found that on 30 December 2002 around 2 p.m. the factory employees had asked L. to check the origin of a suspicious noise that had been coming out of one of the factory’s abandoned halls. L., accompanied by five factory employees, checked the hall and found aluminium sheets, which had been torn from the ceiling and piled up on the floor. He also saw the applicant, who tried to escape. While running away, the applicant fell twice – once when climbing through a conveyor belt opening in the wall and a second time when climbing over the fence. He fell for a third time when jumping over the fence of his house. In the yard of his house the applicant hid in a coal bunker, where he was found and taken to a police station. The police officers testified that they had not ill-treated the applicant. The applicant’s mother-in-law testified that a police officer L. had aimed a blow at the applicant as he was lying on the ground but she had not seen the applicant being beaten. Although summoned by a prosecutor, the applicant did not appear for questioning and neighbours ‒ who did not want their names to be cited ‒ described him as an alcoholic inclined to involvement in scandalous conduct, theft and fraud. The internal police investigation concluded that since the submissions of the applicant, the police officers and the witnesses were contradictory, the case-file of material should be sent to a prosecutor’s office.
22.On 7 March 2003 the deputy prosecutor of the Shargorodskiy District (заступник прокурора Шаргородського району) refused to institute criminal proceedings following the applicant’s complaint. The deputy prosecutor noted that the applicant had stated that he had not intended to steal aluminium but had entered the factory premises out of curiosity and had run away out of fear of being accused of theft, that L. and P. had denied using physical force on the applicant and that the factory employees said that they had not seen L. beat the applicant. It was also noted that the applicant had not appeared for the forensic medical examination. The deputy prosecutor concluded that the applicant had sustained his injuries when trying to run away from L.
23.On 10 April 2003 this decision was quashed by a higher prosecutor since it had not been established how the applicant’s injuries had been inflicted.
24.According to a forensic medical conclusion of 12 May 2003, the applicant had sustained the following injuries: closed concussion, two broken ribs on the left and one on the right, post-traumatic pneumonia and a kidney injury. He had numerous bruises: on the chest (20x15 cm), left shoulder (3x3 cm and 4x3 cm), left hip (12x6 cm), under the right knee (2x2cm), left shoulder blade (5x4 cm) and scratches on the back. Those injuries were of medium severity and had been inflicted by a blunt, hard object possibly on 30 December 2002.
25.Between 15 June 2003 and 27 October 2004 the Shargorodskyy District Prosecutor’s Office (прокуратура Шаргородського району) twice refused to institute criminal proceedings in response to the complaint from the applicant. Those decisions were quashed by higher prosecutors for reasons similar to those mentioned in the decision of 10 April 2003 and the case was referred for additional investigation.
26.Between 15 June 2003 and 27 October 2004 the following investigative steps were taken:
 on 30 August 2004 the applicant’s mother-in-law testified that she had seen L. kicking the applicant whilst he was lying on the ground;
 on 30 August-1 September 2004 the applicant, his wife and the factory employees were questioned;
 on 30 August 2004 a forensic expert concluded that the applicant had sustained bodily injuries of medium seriousness and that those injuries could have been inflicted by blunt objects or by several falls from different heights;
 on 6-8 September 2004 police officers P. and L. were questioned;
 on 27 September 2004 the factory premises were examined;
 according to a forensic medical report dated 6 October 2004, the applicant could have sustained his injuries between 30 December 2002 and 2 January 2003 by being beaten or by falling from a height.
27.On 27 October 2004 the Vinnytsya Regional Prosecutor’s Office (прокуратура Вінницької області) instituted criminal proceedings on suspicion of abuse of power.
28.On 30 November 2004 the applicant was questioned and he reiterated his version of events (see paragraphs 6-10 above), submitting, in particular, that in the police station ‒ in the presence of two police officers ‒ L. had struck him on the chest; P. had hit him several times on the head; P. and L. had kicked him on various parts of his body and P. had struck him on the chest and on the abdomen and had then beaten him in the presence of a police officer.
29.On 10 January 2005 the forensic medical commission confirmed the previous expert conclusions and added that the applicant had been able to move after the injuries had been inflicted.
30.Between February and June 2005 the applicant, his family members, factory employees and police officers were again questioned and a reconstruction of events was staged in the police station. The applicant’s mother-in-law testified that she had seen L. kicking the applicant as he lay on the ground. She also stated that L. had hit the applicant on the head with his gun handle. The factory employees F. and A. testified that they had seen the applicant running away and falling over on his way to the fence and again when climbing over the fence. Face-to-face confrontations between the applicant and police officers P., L. and G., and between the applicant and the factory employees were conducted.
31.On 19 April 2005 the police officers P. and L. were charged with abuse of power accompanied by violence.
32.By a letter of 5 May 2005 the Vinnytsya Regional Prosecutor’s Office informed the applicant that investigating officers K. and T. had been disciplined for delaying the investigation.
33.On 18 May 2005 P. and L. were questioned as witnesses.
34.On 26 May 2005 the Vinnytsya Regional Prosecutor’s Office asked the Head of the Internal Security Department of the Vinnytsya Region, which is part of the Ministry of the Internal Affairs of Ukraine (начальник УВБ у Вінницькій області ДВБ ГУБОЗ МВС України), to identify and question witnesses who had seen or talked to the applicant at the time of the events in question. On an unspecified date the police stated that it had not been possible to find any witnesses. Similar requests were also submitted on 16 May 2006 and 11 January 2007. The answers to those requests were also negative.
35.On 2 June 2005 the Shargorod Territorial Medical Unit (Шаргородське територіальне медичне об’єднання), in reply to a request from Vinnytsya Regional Prosecutor’s Office, submitted that on 30and 31 December 2002 the applicant had not received any medical assistance from an ambulance team.
36.On the same day, judge Tr. was questioned. He submitted that when he had seen the applicant in court on 31 December 2002 the applicant had had no injuries to his head or hands, nor had he complained about any health problems. The applicant also did not complain that he had been beaten.
37.On 10 June 2005 the investigating officer from the Vinnytsya Regional Prosecutor’s Office terminated the proceedings against the police officers for absence of corpus delicti. On 16 August 2005 this decision was upheld by the Leninskyy District Court of Vinnytsya. On 22 September 2005 the Vinnytsya Regional Court of Appeal quashed these decisions and remitted the case for a fresh investigation. The court found that the investigating officer had failed to check whether an ambulance had been called for the applicant when he had been at the police station, and had failed to question the witnesses to the applicant’s arrest. It was also unclear whether the applicant’s injuries could have occurred as a result of his falls.
38.On 28 October 2005 the Shargorod Territorial Medical Unit again submitted that on 30 and 31 December 2002 the applicant had not received any medical assistance from an ambulance team while at the police station.
39.In November 2005 L., A. and S. were again questioned.
40.On 22 December 2005 the forensic experts concluded that the applicant’s injuries could have occurred as a result of several falls.
41.On 28 December 2005 the investigating officer of the Vinnytsya Regional Prosecutor’s Office again terminated the proceedings for absence of corpus delicti.
42.On 20 February 2006 the Leninskyy District Court of Vinnytsya quashed that decision because witnesses to the applicant’s arrest had not been sought and the hospital doctors had not been questioned. The applicant’s family members and some factory employees were to be additionally questioned and the evidential material from the administrative case-file against the applicant was to be included in the file. The case was remitted for further investigation.
43.On 13 April 2006 the Vinnytsya Regional Court of Appeal rejected the prosecutor’s appeal against the decision of 20 February 2006.
44.Between 13 April 2006 and 19 October 2008 the proceedings were terminated three times for absence of corpus delicti and re-opened, in particular, in the light of the failure to obtain the applicant’s medical file from the hospital or to conduct a reconstruction of events with the participation of L., witnesses and a forensic medical expert in order to establish where the applicant had fallen and the circumstances in which the applicant had suffered his injuries.
45.By letters of 7 July 2006 and 7 February 2007 the Shargorodskyy District Prosecutor’s Office informed the Vinnytsya Regional Prosecutor’s Office, inter alia, that the applicant’s mother-in-law, wife and sister-in-law had refused to testify, that a factory guard who had been on duty on 30December 2002 had moved to Russia, and that “it had been impossible to question doctors at Shargorod Hospital since there was no information about any medical assistance that might have been provided to the applicant”.
46.On 14 October 2008 a reconstruction of events at the factory had been conducted with the participation of L. and a forensic medical expert. The expert had also been asked additional questions on the same day.
47.On 19 October 2008 an investigating officer of the Tomashpilskyy District Prosecutor’s Office terminated the criminal proceedings against the police officers for absence of evidence of a crime.
48.It was found that on 30 December 2002 at around 1 p.m. employees of the Shargorodskiy Food Products Factory had asked a police officer L., who had been present at that time on the factory premises, to check the origin of noises coming from inside one of the locked factory buildings. L. together with V., F., A., Lo. and S. went to the premises in question. Inside the building, L. and the factory employees found aluminium sheets torn from the ceiling and piled up against a wall. They also saw the applicant, who ran away after tripping up several times. The applicant was later apprehended at his home and taken to a police station.
49.After being questioned on 30 August and 30 November 2004 (seeparagraphs 26 and 28 above), the applicant admitted that whilst running away he had heard people shouting behind him but had not paid any attention to them. The applicant also submitted that he had climbed over the fence having stepped on a manure pile on another side. However, the applicant’s neighbours testified that the manure pile was located 1.5 metres away from the wall. The prosecutor also referred to the testimonies given by the police officer L., factory workers, other police officers and a judge Tr. during the investigation. Numerous forensic medical experts concluded that the applicant’s injuries could have been caused by having fallen onto hard objects several times. The forensic medical expert who participated in the reconstruction of events testified that the applicant’s injuries had most probably been caused as a result of his having fallen down several times, bearing in mind the frozen ground, the height of the conveyor belt and the fence, and the body’s acceleration when running.
50.In view of the above the Tomashpilskyy District Prosecutor’s Office concluded that there was no evidence of any crime and, since the events in question had taken place six years earlier, that there was no possibility of finding such evidence.
D.Search of the office of the applicant’s representative
51.On 22 September 2010 the Leninskyy District Court authorised a search of premises at K. Street 54/1. This search was the result of criminal proceedings instituted the previous day following the placement of pornographic material on an Internet page which allegedly belonged to the applicant’s representative.
52.On 15 October 2010 Ya., who was using the premises at K. Street 54/3, allowed the police to inspect those premises after receiving authorisation from the owner. She confirmed that the items of property in the room at that address belonged to the applicant’s representative.
53.On the same day the police officers inspected the premises at K.Street 54/3 and seized, inter alia, three computers. According to the applicant’s representative, the office of a human rights organisation was located at that address, which was where he worked.
54.The applicant’s representative complained about the seizure to a prosecutor indicating that one of the seized computers contained part of confidential correspondence with the Court in the present case.
55.On 5 November 2010, in response to complaints by the applicant’s representative about alleged breaches of the law in the course of the search and seizure, the Vinnytsya City Prosecutor’s Office issued a decision refusing to institute criminal proceedings. According to the applicant’s representative, he appealed against that decision but to no avail.
56.According to reports in the media, in August 2013 the applicant’s representative was acquitted.

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A. The circumstances of the case
1. The facts of the case, as submitted by the applicant, may be summarised as follows.
2. The applicants are Somali nationals, a mother and her two children. They were born in 1993, 2014 and 2015 respectively. They are currently living in Denmark. They are represented by the Danish Refugee Council ( Dansk Flygtningehjælp ).
3. The applicant mother entered Italy on 15 January 2014.
4. On 26 February 2014 she entered Denmark, where she had a child on 23 March 2014.
5. On 7 March 201 4 the Immigration Service ( Udlændingestyrelsen ) found that the applicant should be returned to Italy under the Dublin Regulation. The Italian authorities accepted this on 16 May 2014.
6. On 15 July 2014 the Refugee Appeals Board decided to suspend transfer until judgment was delivered in Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)). The judgment was delivered on 4 November 2014.
7. In the light thereof, on 11 December 2014 the present case was referred back to the Immigration Service for a review.
8. On 27 March 2015 the Italian authorities provided a general guarantee stating that all families with minors transferred to Italy under the Dublin III Regulation would be kept together and accommodated in a facility where the reception conditions were appropriate for the family and the age of the children.
9. On 14 April 2015 the Immigration Service found that the applicants could be returned to Italy under the Dublin Regulation, which was accepted by Italy on 16 May 201 5.
10. On appeal, on 12 June 2015 the decision was upheld by the Refugee Appeals Board ( Flygtningenævnet ), on the condition that the Immigration Service could obtain an individual guarantee meeting the criteria set out in the Tarakhel judgment, prior to the transfer of the applicants.
11. In the meantime, on 8 June 2015 the Dublin Unit of the Italian Ministry of the Interior sent a letter to the Dublin Units of the other member States of the European Union, setting out the new policy of the Italian authorities on transfers to Italy of families with small children. The new policy was considered necessary in view of the fact that reception facilities, specifically reserved for such families, frequently remained unoccupied as a result of families having left for an unknown destination prior to transfer, or having obtained a court order barring their transfer. In order to safeguard appropriate facilities where families may stay together, the Italian authorities earmarked a total of 161 places, distributed over twenty-nine projects under the System for Protection of Asylum Seekers and Refugees (SPRAR). The Italian authorities confirmed that this number would be extended should the need arise. The circular letter read as follows: ‘ RE: DUBLIN REGULATION Nr. 604/2013. Guarantees for vulnerable cases: family groups with minors. Further to the previous circular letters dd. February 2nd 2015 and in relation to the current European case - law concerning the guarantees in case of transfers of family groups with minors in compliance with the Dublin Regulation, you will find herewith enclosed the list of the SPRAR projects, which can provide reception to the international protection applicants. Specifically, in the framework of the SPRAR – Protection System for International Protection Applicants and Refugees – provided for by the Act nr. 189/2002 and consisting of the network of the local bodies, as it can also be seen from the www.sprar.it website, specific places have been reserved for family groups in the framework of the implementation of local reception projects. These projects of “integrated reception” are financed by means of public resources on the basis of calls for tender with specific requirements, on a continuous basis, and they are implemented by the Municipalities with the support of the voluntary sector; they also provide for information, guidance, assistance and orientation measures, by creating individual and family paths of socioeconomic integration (autonomy and social inclusion paths) as well as specific paths for minors. These projects also ensure family unity, Italian language courses and job training. Any checks of the abovementioned requirements lie with the competent Authorities for the transfer to Italy of family groups, by means either of their delegates, or of their liaison officers or of Easo personnel with this specific task. We are therefore of the opinion that, despite the objective difficulties which Italy is facing on the grounds of the high number of migrants and international protection applicants who reach Europe through the Italian coasts, the guarantee requests by Member States concerning the reception standards specifically ensured to family groups with minors can be regarded as fulfilled, also in consideration of the principle of mutual trust, underlying the legislation which regulates the relations among member States. ’
12. On 24 June 2015, Italy stated at a meeting of the [Dublin] Contact Committee in Brussels that the circular letter of 8 June 2015 from Italy had replaced the previous letter of 27 March 2015 according to which the member States had been requested to ask Italy for an individual guarantee at least 15 days before a removal was to take place. Italy also said at the meeting that individual guarantees would no longer be issued, but that it was the perception of Italy that the SPRAR centres that had been identified and would be used in future to accommodate families with minor children satisfied the requirements set out in the Tarakhel judgment.
13. It appears from The SPRAR System, a joint report of 13 July 2015 by the Ministries of Immigration of the Netherlands, Germany and Switzerland following a fact-finding mission to two SPRAR projects, that all SPRAR projects are to provide beneficiaries with personalised programmes to help them (re)acquire autonomy, and to take part and integrate effectively in Italian society, in terms of finding employment and housing, access to local services, social life and education. It further appears that a number of minimum services are guaranteed to beneficiaries of SPRAR projects, including provision by the managing entity of food, clothes, bed linen and sanitary products and pocket money. Moreover, the managing entity must facilitate access to and the use of public services and health care, and ensure the inclusion of children in the local school system and access to education for adults, as well as Italian language classes, without interruption for the whole year, for a minimum of 10 hours per week. The managing entity must also facilitate the recognition of the beneficiaries ’ degrees and professional qualifications and encourage university enrolment. Moreover, the managing entity must provide information on Italian labour legislation and support the integration of beneficiaries into the labour market. As regards the housing market, it is incumbent on the managing entity to provide information about Italian housing legislation and to facilitate access to the public and private housing market by supporting and mediating between beneficiaries and potential landlords. The managing entity must also facilitate access to protected housing if the specific personal situation of the beneficiary so requires. Finally, the managing entity must promote dialogue between beneficiaries and the local community and procedures and provide support relating to family reunification and Italian and European asylum law.
14. On 9 September 2015 the applicant mother had a child with a refused asylum seeker of Somali nationality.
15. In October 2015 the Immigration Service decided four test cases, including the present case, concerning transfer of asylum-seeking families with minor children to Italy under the Dublin Regulation.
16. In the present case it found, on 2 October 2015, that reception conditions for the applicant and her two children in Italy would be suitable. It emphasised, inter alia, that the Italian authorities had launched a number of initiatives to improve reception and accommodation conditions for families with minor children, and at a meeting in Brussels on 24 June 2015, the Italian authorities informed the other member States that the capacity of centres deemed suitable for the accommodation of families with minor children would be adapted according to need. The Italian authorities had also said that the circular letter of 8 June 2015 replaced the previous Italian letter of 27 March 2015, and that it appeared from the circular letter of 8 June 2015 that families with minor children will be offered accommodation in conditions appropriate for families and minors and intended to guarantee the unity of the family, and that offers of language courses and job training are also made. The Danish Immigration Service further referred to The SPRAR System, published on 13 June 2015.
17. On 8 October 2015 the applicants, represented by the Danish Refugee Council, appealed against the decision to the Refugee Appeals Board and simultaneously requested representation by the Danish Refugee Council during the appeal proceedings. They requested that their case be examined in Denmark by virtue of Article 17(1) of the Dublin Regulation, and submitted that a removal would be contrary to Article 3 of the European Convention on Human Rights and Article 4 of the Charter of Fundamental Rights of the European Union. The Danish Refugee Council also referred to the fact that the removal of the applicant to Italy would separate the applicant from her spouse and the children from [M.A.A.], who is the biological father of the applicant ’ s newborn child and acts as a father to the applicant ’ s older child, as [M.A.A.] is an asylum-seeker in Denmark and cannot go to Italy. The Danish Refugee Council made the primary claim that the decision made by the Danish Immigration Service on 2 October 2015 on suitable reception conditions did not satisfy the requirements set out in the decision made by the Refugee Appeals Board on 12 June 2015, and the Danish Refugee Council also claimed that the circular letter of 8 June 2015 could not be considered a sufficient guarantee that the applicant and her minor children will be given one of the reception places in Italy which satisfy the requirements set out in Tarakhel, in the event of their removal. The Danish Refugee Council further submitted that a number of places corresponding to 161 was not sufficient to meet the current needs. Moreover, the circular letter was addressed to all Dublin Units, for which reason 161 places were far from sufficient to accommodate the number of families with children currently awaiting transfer under the Dublin Regulation, and this also had to be viewed in the context of the large number of individuals who continued to enter Italy, for which reason the Danish Refugee Council disagreed with the assessment made by the Danish Immigration Service that conditions had improved or were ‘ significantly different compared with previous conditions ’. The Danish Refugee Council further claimed that no detailed information on the individual accommodation centres appeared in the circular letter or on the website to which reference was made in the circular letter, nor was it specified for how long an asylum-seeker might use this kind of accommodation. The Danish Refugee Council further referred to the circumstance that the description given by Switzerland, Germany and the Netherlands in the report of 13 July 2015 was not an adequate description of the general conditions at SPRAR centres. The Danish Refugee Council further observed that the circular letter was dated prior to the decision made by the Refugee Appeals Board on 12 June 2015, but that it was apparently not considered a sufficient guarantee of suitable reception conditions when the decision was made. As regards the consultation response from the Danish Immigration Service of 7 September 2015, the Danish Refugee Council failed to understand why most of the member States assumed that the Italian circular letter constituted a sufficient guarantee to transfer families with children, considering that there was a total of 31 member States, and only three member States had responded that their authorities accepted the Italian circular letter as a sufficient guarantee. The Danish Refugee Council made the alternative claim that the application for asylum submitted by the applicant and her children should be examined according to the standard asylum procedure in Denmark due to the long processing time, and in consideration of the best interests of the child to guarantee effective access to the asylum procedure as described in recital 5 of the Dublin Regulation. The Danish Refugee Council observed in this regard that it had brought ten cases before the European Court of Human Rights in which the applicants and their children also risked being transferred to Italy under the Dublin Regulation and that in October 2015 the Danish Immigration Service had decided to permit an examination of half of those cases according to the standard asylum procedure. The Danish Refugee Council found that the processing time of the case of the applicant and her children had been almost as long, and they were correspondingly vulnerable. Finally, the Danish Refugee Council appended an opinion of 8 October 2015 by a network officer of the Jammerbugt Municipality from which it appeared that the officer was concerned about whether the applicant would be able to manage her life and her children ’ s if she had to manage the children on her own, and that [M.A.A.] provided great support for the applicant and her children.
18. On 3 February 2016, in a decision which ran to 11 pages, the Refugee Appeals Board upheld the decision by the Immigration Service, setting out, inter alia:
“ ... the Refugee Appeals Board makes the following statement:
The applicant is a currently 22-year-old Somali woman who entered Italy illegally and was registered in Italy on 15 January 2014. On 26 February 2014, the applicant entered Denmark and applied for asylum. On 23 March 2014, she gave birth to her daughter [S.]. On 16 May 2014, Italy agreed to take back the applicant and her daughter under Article 13(1) of the Dublin Regulation. On 9 September 2015, the applicant gave birth to yet another daughter. According to the information available, the applicant and her children are in perfect health. [M.A.A.], the father of the younger child, who is also a Somali national, has been refused asylum in Denmark.
The members of the Refugee Appeals Board agree that the formal rules of the Dublin Regulation governing the return of the applicant and her children to Italy have been satisfied.
The issue to be determined by the Refugee Appeals Board is whether such circumstances exist that the applicant and her children cannot be returned to Italy anyway and that the application must be examined in Denmark, see Articles 3(2) and 17 of the Dublin Regulation. The issue at stake is therefore whether the applicant and her children must be assumed to be subject to circumstances on their return to Italy which are so burdensome that the circumstances would be contrary to Article 3 of the European Convention on Human Rights and Article 4 of the Charter of Fundamental Rights of the European Union.
The majority of the members of the Refugee Appeals Board find that the applicant, as a single mother with two children, must be deemed to belong to a particularly underprivileged and vulnerable group in need of special protection.
Based on the circular letter of 8 June 2015 from Italy and Italy ’ s subsequent assurances on the adaptation of its reception capacity at the meeting of the Contact Committee on 24 June 2015, the majority of the members of the Refugee Appeals Board find that Italy must be considered to satisfy the requirements to take charge of the applicant and her children. The majority also refer to the unanimous decisions made by the European Court of Human Rights in J.A. and Others v. the Netherlands (decision of 3 November 2015) and A.T.H. v. the Netherlands (decision of 17 November 2015) finding inadmissible applications from other asylum-seekers with minor children who had complained that they would be subjected to treatment proscribed by Article 3 of the European Convention on Human Rights if returned to Italy under the rules of the Dublin Regulation.
It is observed that the Refugee Appeals Board had not yet received the circular letter of 8 June 2015 from Italy when it made its decision on 12 June 2015, for which reason the circular letter was not included in the basis of the decision of the Refugee Appeals Board.
The majority of the members of the Refugee Appeals Board further find that the applicant had not demonstrated that her future prospects, if transferred to Italy together with her two children, whether taken from a material, physical or psychological perspective, would be contrary to Article 3 of the European Convention on Human Rights. It is observed in this respect that the applicant is a young woman in perfect health, according to her own statement to the Danish Immigration Service at the asylum screening interview. It cannot lead to a different conclusion that the Danish Refugee Council has submitted that it appears from the appended opinion of 8 October 2015 that an officer of the Jammerbugt Municipality expressed concern as to whether the applicant is able to manage the lives of herself and her children if she is to manage the children on her own and that [M.A.A.] is a great support for the applicant and the children. Accordingly, the majority of the members of the Refugee Appeals Board find no basis on which it could be assumed that the applicant would not be able to benefit from the resources available in Italy to a female asylum-seeker with two minor children or that, in case of health-related or other difficulties, the Italian authorities would not respond in an appropriate manner. The majority find that the consideration of the applicant ’ s children cannot independently justify that the family should not be transferred to Italy. It is observed in this respect that the applicant ’ s application for asylum has to be processed according to the regular asylum procedure, no matter which country is responsible for examining the application for asylum lodged by the applicant and her children, and within the processing time that can be expected for the procedure.
Furthermore, the majority of the members of the Refugee Appeals Board find that the length of the processing time cannot justify the processing of the application in Denmark. The majority emphasise in this respect that the applicant was informed already on 8 December 2014 that she was to be transferred back to Italy and that the subsequent processing time is attributable solely to the applicant ’ s complaint and the need to clarify the consequences of the Tarakhel judgment. The consequences must now be deemed clarified by Italy ’ s letter of 8 June 2015 and the decisions of the European Court of Human Rights of 3 and 17 November 2015. The circumstance that the Danish Immigration Service has decided to process other applications in Denmark cannot lead to a different decision.
The Refugee Appeals Board also finds that the applicant ’ s relationship with [M.A.A.], who is the father of her younger child, cannot lead to the decision to process the application in Denmark. In this connection, the Board emphasises that the applicant only established cohabitation with [M.A.A.] in Denmark and after being notified of the decision to return her to Italy. Moreover, [M.A.A.] has been finally refused asylum in Denmark and must leave Denmark.
Against that background and based on a review of the case, the Refugee Appeals Board informs you that the Board finds no basis for reversing the decision made by the Danish Immigration Service, see section 48a(1), first sentence, cf. section 29a(1), of the Danish Aliens Act ( udlændingeloven ), see the Dublin Regulation.
The Refugee Appeals Board observes that the Board presumes that the Danish National Police will ensure, prior to the removal of the applicant and her children to Italy, that the Italian authorities agree to receive the applicant ’ s younger child as well and that the Italian authorities are notified of the relevant information on the applicant ’ s needs. ”
19. Another circular letter dated 15 February 2016 was sent by the Dublin Unit of the Italian Ministry of the Interior to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit provided an updated list of “the SPRAR projects where asylum-seeker family groups with children will be accommodated, in full respect of their fundamental rights and specific vulnerabilities”.
B. Relevant domestic law and practice
20. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum - seekers and transfers of asylum - seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 28-48, ECHR 2014 (extracts) ); Hussein Diirshi v. the Netherlands and Italy and 3 other applications (( dec. ), nos. 2314/10, 18324/10, 47851/10 and 51377/10, §§ 98-117, 10 September 2013); Halimi v. Austria and Italy (( dec. ), no. 53852/11, §§ 21-25 and §§ 29 ‑ 36, 18 June 2013); Abubeker v. Austria and Italy ( dec. ), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013); Daybetgova and Magomedova v. Austria (( dec. ), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013); and Mohammed Hussein v the Netherlands and Italy (( dec. ), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013).
21. Pursuant to section 56, subsection 8, of the Aliens Act, decisions by the Refugee Appeal Board are final, which means that there is no avenue for appeal against the Board ’ s decisions.
22. Aliens may, however, by virtue of Article 63 of the Danish Constitution ( Grundloven ) bring an appeal before the ordinary courts, which have authority to adjudge on any matter concerning the limits to the competence of a public authority.
Article 63 of the Constitution reads as follows:
“1. The courts of justice shall be empowered to decide any question relating to the scope of the executives ’ authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority.
The courts will normally confine the review to the question of deciding on the legality of the administrative decision, including shortcomings of the basis for the decision and illegal assessments, but will generally refrain from adjudging on the administrative discretion exercised.”
Review by the courts pursuant to section 63 of the Constitution is a common legal remedy. Consequently, in cases where an alien claims that a refusal to grant a residence permit or a deportation order would be in violation of the Convention, the courts examine intensively whether the Administration ’ s decision is in accordance with Denmark ’ s obligations under the Convention, including Article 8 (see, for example, Priya v. Denmark ( dec. ), no 13594/03, 6 July 2006, and Saeed v. Denmark ( dec. ), no. 53/12, 24 June 2014 ). The courts cannot grant an alien a residence permit but they can annul the decision of the Administration and thus send the case back to the Administration for a renewed examination, for instance if the courts find that the refusal to grant a residence permit constitutes a violation of the alien ’ s right to respect for family life according to Article 8 of the Convention. An application pursuant to section 63 of the Constitution has no automatic suspensive effect. However, an application pursuant to section 63 of the Constitution may be granted suspensive effect if very particular circumstances ( ganske særlige omstændigheder ) exist.

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1. The applicant, Mr Gadaa Ibrahim Hunde, is an Ethiopian national who was born in 1992 and lives in Amsterdam. He was represented before the Court by Mr P. Fischer, a lawyer practising in Haarlem. The facts of the case, as submitted by the applicant and as apparent from public documents, may be summarised as follows.
A. Background to the case
2. In December 2012 a group of approximately 200 irregular migrants in the Netherlands who – as rejected asylum-seekers – were no longer entitled to State-sponsored care and accommodation for asylum-seekers, squatted the St. Joseph Church in Amsterdam. These irregular migrants formed an action group called “ We Are Here / Wij Zijn Hier ” seeking attention for and relief from their situation. During their stay there, the St. Joseph Church was colloquially referred to as the Refuge Church ( Vluchtkerk ). It appears that the group was evicted from the Refuge Church on 31 March 2013.
3. On 4 April 2013 the municipality of Amsterdam offered temporary shelter to the original members of the group “We Are Here” who had been staying in the Refuge Church since December 2012. Accordingly, 159 persons were housed temporarily in a former detention facility on the Havenstraat in Amsterdam – which came to be known as the Refuge Haven ( Vluchthaven ) – until 31 May 2014. The remaining persons from the Refuge Church who had been evicted from there and not been offered shelter in the Refuge Haven, squatted an indoor car park, which came to be known as the Refuge Garage ( Vluchtgarage ).
4. A number of residents of the Refuge Garage initiated administrative proceedings against the municipality of Amsterdam demanding that they be provided with shelter, food and clothing. In one of those proceedings, lodged by three residents of the Refuge Garage, not including the applicant, a provisional measure ( voorlopige voorziening ) was granted on 17 December 2014 pending further appeal proceedings before the Central Appeals Tribunal ( Centrale Raad van Beroep ). At the request of the three petitioners, the provisional-measures judge ( voorzieningenrechter ) of the Central Appeals Tribunal ordered the municipality of Amsterdam to provide overnight shelter, a shower, breakfast and dinner to the petitioners. In that decision, account was taken of the fact that the Netherlands Institute for Human Rights ( College voor de Rechten van de Mens ) had found degrading living conditions in the Refuge Garage. In addition, regard was had to two decisions of the European Committee of Social Rights (hereinafter the “ECSR”) of 1 July 2014, in which the Netherlands was found to have breached Articles 13 § 4 and 31 of the European Social Charter (hereinafter the “Charter”) by failing to provide adult irregular migrants with adequate access to emergency assistance, that is food, clothing and shelter (see paragraph 37 below).
5. In response to this provisional measure, the Association of Netherlands Municipalities ( Vereniging van Nederlandse Gemeenten ) – in agreement with the Deputy Minister of Security and Justice ( Staatssecretaris van Veiligheid en Justitie ) – set up a scheme to offer basic provisions to irregular migrants, the so-called Bed, Bath and Bread Scheme ( bed-bad-broodregeling ). That scheme entailed that the central municipalities [1] would provide basic accommodation to irregular migrants including night shelter with shower facilities, breakfast and dinner, starting from 17 December 2014. It was announced from the outset that this scheme would be temporary, awaiting the adoption of a resolution by the Committee of Ministers of the Council of Europe concerning the ECSR ’ s two decisions, pursuant to Article 9 of the Additional Protocol to the European Charter Providing for a System of Collective Complaints. Although these resolutions were adopted by the Committee of Ministers on 15 April 2015 (see paragraph 38 below), the scheme has been prolonged and is currently still in place.
B. Particular circumstances of the case
6. The applicant fled from Ethiopia to the Netherlands in September 2011. His application for asylum was rejected as unfounded. Apart from the fact that, for reasons found imputable to him, the applicant did not hold any identity or travel documents, he was found to have given inconsistent, contradictory, vague and summary statements to the immigration authorities. In July 2013 he was released from immigration detention ( vreemdelingendetentie ) because, according to the applicant who has not provided any further details, an effective removal to his country of origin proved not possible. As a rejected asylum-seeker who had failed to leave the country within the voluntary return grace period of four weeks, the applicant was no longer entitled to State-sponsored accommodation and care in one of the reception centres for asylum-seekers.
7. In December 2013 the applicant, having joined the group “We Are Here”, took shelter in the Refuge Garage in Amsterdam together with approximately 100 other irregular migrants. It appears that he lived in the Refuge Garage until March 2015. Meanwhile, the applicant instituted the proceedings set out in paragraphs 9-19 and 20-24 below.
8. On 11 February 2015 the applicant filed a fresh asylum application, which was accepted on 30 March 2015. He was provided with a temporary residence permit for asylum purposes valid from 30 March 2015 until 30 March 2020, based on section 29 § 1(a) of the Aliens Act 2000 ( Vreemdelingenwet 2000 ).
1. Proceedings lodged against the municipality
9. On 30 December 2013 the applicant requested the municipality of Amsterdam to grant him State-sponsored care and reception facilities similar to the facilities offered to asylum-seekers by the Central Agency for the Reception of Asylum-Seekers ( Centraal Orgaan Opvang Asielzoekers; hereinafter “COA”), submitting, inter alia, that he found himself in an emergency situation considering the appalling living conditions in the Refuge Garage. He further submitted that he had applied for shelter in the Refuge Haven but that, unlike other irregular migrants from the Refuge Church in a similar situation, he had not been admitted to the Refuge Haven.
10. The applicant submitted that the living conditions in the Refuge Garage were poor. Housing more than 150 persons, it was overcrowded. A limited, insufficient number of toilets was available and there were no washing facilities. Electricity was not always available. The irregular migrants staying in the garage were dependent on volunteers for food and the atmosphere between them was tense, regularly resulting in confrontations which were sometimes violent. The applicant himself had once been threatened and assaulted by a co-resident in the garage. He had sustained a light stab wound. He had reported that incident to the police.
11. On 31 March 2014 the Mayor and Aldermen ( college van Burgemeester en Wethouders ) of the municipality of Amsterdam, treating the applicant ’ s request as an application for access to community shelter services ( maatschappelijke opvang ) under the Social Support Act ( Wet Maatschappelijke Ondersteuning ), rejected it as the applicant was neither a Dutch national nor did he hold a residence permit as required by the aforementioned act. An exception to that rule could apply when the right to respect for physical or psychological integrity flowing from Article 8 of the Convention was at stake, in particular if the person concerned was a minor or vulnerable because of a medical emergency. However, as the applicant had not provided any medical information – even though he claimed that he required medical care – he was considered as not falling within the category of vulnerable persons.
12. With regard to the fact that the applicant had been denied access to the Refuge Haven, the Mayor and Aldermen held that accommodation at that location had been offered to the original members of the group “We Are Here” who had stayed in the Refuge Church for an uninterrupted period of time and who were willing to cooperate with the municipality and other institutions in the organisation of their return to the country of origin. The applicant did not fulfil those requirements.
13. The Mayor and Aldermen further made reference to the possibility of the applicant requesting the Repatriation and Departure Service ( Dienst Terugkeer en Vertrek ) of the Ministry of Security and Justice ( Ministerie van Veiligheid en Justitie ) to impose a measure on him within the meaning of section 56 of the Aliens Act 2000 in order to gain access to reception facilities at a centre where his liberty would be restricted ( vrijheidsbeperkende locatie ). In such centres the focus is on departure from the Netherlands of the person concerned, meaning that reception facilities are provided on condition that the person concerned cooperates in the organisation of his or her departure to the country of origin.
14. The applicant lodged an objection ( bezwaar ) against the decision of 31 March 2014 which was dismissed by the Mayor and Aldermen on 11 July 2014, in accordance with an advice drawn up by the objections committee ( Bezwarencommissie ) on 9 July 2014 and on the same grounds as those on which the initial decision had been based. The applicant lodged an appeal ( beroep ) with the Amsterdam Regional Court ( rechtbank ).
15. On 8 May 2015 the Amsterdam Regional Court accepted the applicant ’ s appeal and quashed the Mayor and Aldermen ’ s decision of 11 July 2014. Proceeding to decide on the matter itself, the Regional Court considered that the ECSR ’ s decisions of 1 July 2014, in which the ECSR had found violations of Articles 13 and 31 of the Charter, could not be overlooked notwithstanding the fact that they were not binding for the State Parties to the Charter. Accordingly, the Regional Court considered that the denial of shelter, food and clothing to irregular migrants touched upon the right to respect for human dignity in such a way as to preclude a person ’ s enjoyment of private life within the meaning of Article 8 of the Convention. It concluded that the State was under a positive obligation to provide the applicant with shelter, food and clothing and that that provision should not be made conditional on the applicant ’ s cooperation in the organisation of his departure from the Netherlands. It was noted, however, that the municipality of Amsterdam, simultaneously with other municipalities in major cities of the Netherlands, had established the Bed, Bath and Bread Scheme (see paragraph 5 above), providing, as of 17 December 2014, basic accommodation to irregular migrants including night shelter with shower facilities, breakfast and dinner. As far as the applicant had argued that the Bed, Bath and Bread Scheme was insufficient, he had failed to substantiate that argument with any prima facie evidence.
16. Moreover, the applicant had obtained a residence permit on 30 March 2015 as a consequence of which he was already entitled to State-sponsored social benefits. The applicant ’ s argument that his right to emergency social assistance should nevertheless be acknowledged retroactively and that he should be granted living allowances ( leefgeld ) by way of compensation was dismissed. The Regional Court held that although such a right to emergency social benefits should be acknowledged retroactively, that is from 29 November 2013, there was no legal basis on which to conclude that this right included a right to living allowances. It was open to the applicant to claim compensation for damage in separate proceedings.
17. Both the applicant and the Mayor and Aldermen lodged a further appeal ( hoger beroep ) with the Central Appeals Tribunal.
18. On 26 November 2015 the Central Appeals Tribunal dismissed the applicant ’ s appeal but accepted the Mayor and Aldermen ’ s appeal and quashed the Regional Court ’ s judgment. The Central Appeals Tribunal found that the Mayor and Aldermen ’ s rejection of the applicant ’ s request for shelter under the Social Support Act was justified as the applicant had the possibility of receiving shelter at a centre where his liberty would be restricted. Unlike the Regional Court, it agreed with the Mayor and Aldermen that irregular migrants may be denied access to such a centre if they refuse to cooperate in the organisation of their return to their country of origin, unless there existed exceptional circumstances. Such exceptional circumstances could exist when the person concerned had demonstrated that he or she was unable to foresee the consequences of his or her actions or omissions due to his or her psychiatric state of mind. It was, however, incumbent upon the irregular migrant to claim that such exceptional circumstances pertained.
19. No further appeal lay against this decision.
2. Proceedings lodged against the Deputy Minister of Security and Justice
20. In the meantime, on 24 March 2014, the applicant had also requested the Deputy Minister of Security and Justice to grant him, either in cooperation with the municipality of Amsterdam or independently, State-sponsored care and accommodation, in particular to offer him shelter as well as (allowances for) food and clothing.
21. On 25 March 2014 the Deputy Minister rejected the applicant ’ s request, considering that he could apply for admission in a centre run by the Repatriation and Departure Service where his liberty would be restricted and where he would have to cooperate in the organisation of his departure from the Netherlands. The applicant was reminded of the fact that he was already under a statutory obligation to leave the Netherlands pursuant to section 61 § 1 of the Aliens Act 2000 as his asylum request had been rejected.
22. The applicant filed an objection against this decision, which was dismissed by the Deputy Minister on 16 June 2014.
23. An appeal lodged by the applicant was declared inadmissible by the Regional Court of The Hague on 8 September 2015, which considered that the applicant no longer had any interest in challenging the impugned decision in view of the provisional measure issued by the Central Appeals Tribunal on 17 December 2014, pursuant to which the municipality of Amsterdam had been ordered to provide night shelter, breakfast and dinner to irregular migrants (see paragraph 5 above).
24. Although possible, the applicant did not lodge a further appeal with the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ) against the decision of the Regional Court.
C. Relevant domestic law
25. The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000. Section 5 § 1 of the said act reads as follows:
“An alien who has been refused entry into the Netherlands shall leave the Netherlands immediately, duly observing such directions as may have been given to him for this purpose by a border control officer.”
26. Section 10 of the Aliens Act 2000 provides as follows:
“1. An alien who is not lawfully resident may not claim entitlement to benefits in kind, facilities and social security benefits issued by decision of an administrative authority. The previous sentence shall apply mutatis mutandis to exemptions or licenses designated in an Act of Parliament or Order in Council.
2. The first subsection may be derogated from if the entitlement relates to education, the provision of care that is medically necessary, the prevention of situations that would jeopardise public health or the provision of legal assistance to the alien.
3. The granting of entitlement does not confer a right to lawful residence.”
27. Section 45 of the said Act provides the following on the legal consequences of a rejection of an application for a residence permit in the Netherlands:
“1. The consequences of a decision whereby an application for the issue of a residence permit for a fixed period [...] or a residence permit for an indefinite period [...] is rejected shall, by operation of law, be that:
(a) the alien is no longer lawfully resident [...];
(b) the alien should leave the Netherlands of his own volition within the time limit prescribed in section 62, failing which the alien may be expelled;
(c) the benefits in kind provided for by or pursuant to the Act on the Central Agency for the Reception of Asylum-Seekers or another statutory provision that regulates benefits in kind of this nature will terminate in the manner provided for by or pursuant to that Act or statutory provision and within the time limit prescribed for this purpose;
(d) the aliens ’ supervision officers are authorised, after the expiry of the time limit within which the alien must leave the Netherlands of his own volition, to enter every place, including a dwelling, without the consent of the occupant, in order to expel the alien;
(e) the aliens ’ supervision officers are authorised, after the expiry of the time limit referred to in (c), to compel the vacation of property in order to terminate the accommodation or the stay in the residential premises provided as a benefit in kind as referred to in (c).
2. Subsection 1 shall apply mutatis mutandis if:
...
(b) A residence permit has been cancelled or not renewed.
3. The consequences referred to in subsection 1 shall not take effect as long as the application for review lodged by the alien suspends the operation of the decision.
4. [The] Minister may order that, notwithstanding subsection 1, opening words and (c), the benefits in kind provided for by or pursuant to the Act on the Central Reception Organisation for Asylum-Seekers or another statutory provision that regulates benefits in kind of this nature will not terminate for certain categories of alien. The order shall be repealed no later than one year after its notification.
5. An alien to whom an order as referred in subsection 4 is applicable shall be deemed to be lawfully resident as referred to in section 8 (j).”
28. Under the Act on the Central Agency for the Reception of Asylum-Seekers ( Wet Centraal Orgaan Opvang Asielzoekers ) and related regulations, including the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens ( Regeling verstrekkingen asielzoekers en andere categorieën vreemdelingen ), the Central Agency – an autonomous administrative authority – is responsible for the provision of reception facilities which comprise housing, basic subsistence means and health care to asylum-seekers.
29. If no residence permit is granted to an asylum-seeker, he or she will remain entitled to benefit from the reception facilities for asylum-seekers for a grace period of four weeks after the date of the final decision taken on his/her request. The rejected asylum-seeker is given this grace period to leave the Netherlands voluntarily – if need be assisted by the International Organisation for Migration – as he/she is no longer lawfully staying in the Netherlands and under a legal obligation to leave. After the expiry of this period, access to reception facilities is automatically terminated without a specific decision. Nevertheless, an alien in such a situation may apply to the Central Agency for continued reception facilities. If highly exceptional circumstances so require, the Central Agency can take a decision to that effect. A negative decision can be appealed to the Regional Court and, subsequently, to the Administrative Jurisdiction Division. Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure pending the outcome of the appeal proceedings.
30. Rejected asylum-seekers and other migrants in an irregular situation are entitled to health care in cases of medical emergency (as well as legal aid and education for minors). Rejected applicants for a residence permit with physical and/or psychological problems severe enough to make them unfit for travel may furthermore apply for the deferral of their departure from the Netherlands under section 64 of the Aliens Act 2000. The expulsion is then suspended for the duration of the severe medical condition and the migrant concerned is granted a right to accommodation.
31. A migrant, who is under the legal obligation to leave the Netherlands because his or her lawful residence or entitlement to State-sponsored care and accommodation has come to an end, can be offered accommodation in a centre where his or her liberty is restricted. Such accommodation is based on a so-called liberty-restricting measure ( vrijheidsbeperkende maatregel ) within the meaning of section 56 of the Aliens Act, which measure entails that the person concerned can move in and out of the centre freely but is prohibited from crossing the municipal boundaries where the centre is located. That accommodation is offered for twelve weeks and its main focus is the migrant ’ s departure from the Netherlands to the country of origin with the Repatriation and Departure Service ’ s assistance: there has to be a realistic prospect of an effective return within twelve weeks and the migrant must be willing to cooperate by taking steps to effectuate his or her departure from the Netherlands.
32. A temporary residence permit may be issued to migrants who, through no fault of their own, cannot leave the Netherlands ( buitenschuldvergunning ) pursuant to section 3.48 § 2a of the Aliens Decree 2000 ( Vreemdelingenbesluit 2000 ). Section B8/4.1 of the Aliens Act Implementation Guidelines 2000 ( Vreemdelingencirculaire 2000 ) lays down the conditions with which an alien must comply in order to be eligible for such a residence permit. At the relevant time the conditions were that:
“[T]he alien has:
- done everything within his power to organise his departure independently;
- no doubt exists about his nationality and identity; and
- he cannot be blamed for his inability to leave the Netherlands.
the alien has:
- turned to the International Organisation for Migration in order to facilitate his departure; and
- this organisation has indicated that it is not capable of organising the aliens ’ departure due to the fact that the alien submits that he is unable to have travel documents at his disposal[;]
the alien has:
- requested the Repatriation and Departure Service to mediate in obtaining the required documents of the authorities of the country to which departure is possible; and
- the mediation has not led to the desired result; and
the alien:
- is residing in the Netherlands without a valid residence permit;
- does not comply with other conditions for being granted a residence permit; and
- has not also filed an application for a residence permit for the purpose of residence on other grounds.”
33. From 1 January 2014 onwards, section 8 of the Social Support Act ( Wet Maatschappelijke Ondersteuning; “WMO”) has provided as follows:
“1. An alien can only be eligible for individual assistance, women ’ s shelter services or a payment as referred to in section 19a if he is lawfully resident within the meaning of section 8, subsection (a) to (e) inclusive and (l) of the Aliens Act 2000.
2. An alien can only be eligible for community shelter services if he is lawfully resident within the meaning of section 8, subsection (a) to (e) inclusive and (l) of the Aliens Act 2000, except in cases referred to in article 24, paragraph 2 of Directive 2004/38/EC.
3. Notwithstanding subsections 1 and 2, in cases designated by order in council, if necessary notwithstanding section 10 of the Aliens Act 2000, categories of aliens residing unlawfully in the Netherlands specified by or pursuant to that order may be wholly or partially eligible for assistance specified by that order or for a payment as referred to in section 19a. Eligibility for assistance or a payment as referred to in section 19a does not confer any right to lawful residence on an alien.
4. The order referred to in subsection 3 may provide that the municipal executive is responsible for delivering the assistance designated by that order.”
D. The European Social Charter and the ECSR
34. Article 13 of the Charter, entitled “The right to social and medical assistance”, provides as follows:
“Anyone without adequate resources has the right to social and medical assistance.
With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake:
1. to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition;
...
4. to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953.”
35. Article 31 of the Charter, entitled “The right to housing”, provides as follows:
“Everyone has the right to housing.
With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed:
...
2. to prevent and reduce homelessness with a view to its gradual elimination;
...”.
36. The first paragraph of the Appendix to the Social Charter reads:
“ Without prejudice to Article 12, paragraph 4, and Article 13, paragraph 4, the persons covered by Articles 1 to 17 include foreigners only insofar as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned, subject to the understanding that these articles are to be interpreted in the light of the provisions of Articles 18 and 19.
This interpretation would not prejudice the extension of similar facilities to other persons by any of the Contracting Parties. ”
37. On 1 July 2014 the ECSR adopted two decisions on the merits in the cases of Conference of European Churches (CEC) v. the Netherlands (complaint no. 90/2013) and in European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands (complaint no. 86/2012). It found that the Netherlands had violated Article 13 §§ 1 and 4 of the Charter, which guarantees the right to social assistance, and Article 31 § 2 of the Charter, the right to housing, by failing to provide adequate access to emergency assistance (food, clothing and shelter) to adult migrants in an irregular situation. In CEC v. the Netherlands the ECSR held the following:
“73. With regard to Article 13 § 4 in particular, the Committee recalls that emergency social assistance should be provided under the said provision to all foreign nationals without exception (Conclusions 2003, Portugal). Also migrants having exceeded their permitted period of residence within the jurisdiction of the State Party in question have a right to emergency social assistance (Conclusions 2009, Italy). The beneficiaries of the right to emergency social assistance thus include also foreign nationals who are present in a particular country in an irregular manner (Conclusions 2013, Malta).
74. The Committee observes in this connection that the complaint concerns the provision of the necessary food, water, shelter and clothing to adult migrants in an irregular situation. It considers the issues at hand to be closely linked to the realisation of the most fundamental rights of these persons, as well as to their human dignity.
75. Pursuant to the above, Article 13 § 4 applies to migrants in an irregular situation.
...
115. The Committee recalls that human dignity is the fundamental value and the core also of European human rights law (FIDH v. France, cited above, §31).
116. Even though the Convention and the relevant legal rules of the European Union on asylum are applicable only to foreigners staying in a regular manner within the jurisdiction of the States Parties, the Committee observes that both the Court and the Court of Justice in their recent case-law have acknowledged the importance of preserving human dignity in connection with the minimum protection provided to migrants (see paragraphs 28-29, 47-48).
117. The Committee observes in this connection that the scope of the Charter is broader and requires that necessary emergency social assistance be granted also to those who do not, or no longer, fulfil the criteria of entitlement to assistance specified in the above instruments, that is, also to migrants staying in the territory of the States Parties in an irregular manner, for instance pursuant to their expulsion. The Charter requires that emergency social assistance be granted without any conditions to nationals of those States Parties to the Charter who are not Member States of the Union. The Committee equally considers that the provision of emergency assistance cannot be made conditional upon the willingness of the persons concerned to cooperate in the organisation of their own expulsion.”
38. Following the abovementioned decisions of the ECSR, the Committee of Ministers, on 15 April 2015, adopted two substantially the same resolutions (Resolution nos. CM/ResChS(2015)5 and CM/ResChS(2015)4). Taking note of the Netherlands ’ Government ’ s submissions in which they had expressed their concern that the ECSR had not given a correct interpretation of the appendix to the Charter which excludes from the scope of the Charter all aliens who are not lawfully residing on the territory of a State Party, these resolutions read, in so far as relevant:
“The Committee of Ministers,
...
2. recalls that the powers entrusted to the ECSR are firmly rooted in the Charter itself and recognises that the decision of the ECSR raises complex issues in this regard and in relation to the obligation of States parties to respect the Charter;
3. recalls the limitation of the scope of the European Social Charter (revised), laid down in paragraph 1 of the appendix to the Charter;
4. looks forward to the Netherlands reporting on any possible developments in the issue.”
E. Other relevant information
39. The information contained on the website of the Repatriation and Departure Service concerning possibilities for migrants in the Netherlands to return to Ethiopia, reads, in so far as relevant:
“Voluntary return
Voluntary return is possible. The diplomatic representation issues laissez-passers to aliens who wish to return to Ethiopia and who can demonstrate their identity and Ethiopian nationality. The establishment of the identity and nationality depends on the presence of a (copy of) passport or an original and validated birth certificate. The alien must sign the laissez-passer, otherwise it is not valid.
Forced return
Forced return is possible with an original passport. The diplomatic representation may issue replacing documents if the alien wishes to return.”

***

1. Mr Abdulazhon Mamadzhanovich Isakov was born in 1963 and lived, prior to his disappearance, in Tyumen. He is a stateless person. The application in his name was submitted to the Court by Ms N. Yermolayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Background information and the Court ’ s judgment in Mr Isakov ’ s earlier case ( Abdulazhon Isakov v. Russia, no. 14049/08, 8 July 2010)
3. In 1989 Mr Isakov moved from Uzbekistan to the Tyumen Region in Russia.
4. In 1998 the Uzbek authorities opened a criminal case against Mr Isakov on charges of attempting to overthrow the State ’ s constitutional order in Uzbekistan and put his name on the wanted persons ’ list.
5. On 6 March 2008 Mr Isakov was arrested in Tyumen, Russia, and remanded in custody with a view to extradition.
6. On 12 August 2008 the Russian Prosecutor General ’ s office decided to extradite Mr Isakov to Uzbekistan. The domestic courts at two levels of jurisdiction upheld the extradition order. A final decision on the matter was taken by the Supreme Court of the Russian Federation on 22 December 2008.
7. On 21 March 2008 Mr Isakov lodged an application with the Court in which he complained about his detention in Russia with a view to extradition to Uzbekistan where he faced politically-based persecution by the local authorities. On 30 September 2008 Mr Isakov signed an authority form authorising several lawyers, including Ms Yermolayeva, to represent him in the proceedings before the Court.
8. On 10 November 2008 the Court granted Mr Isakov ’ s request for the application of interim measures under Rule 39 of the Rules of the Court and indicated to the Russian Government that he should not be extradited to Uzbekistan until further notice. On the same date the application was communicated to the Government which were requested to submit observations concerning the risk of ill-treatment if the extradition order in respect of Mr Isakov were enforced, lawfulness and review of his detention in Russia and alleged lack of effective remedies in this respect. The parties ’ observations were received on 28 July and 2 October 2009 respectively. The Government complied with the Court ’ s request as to the application of interim measures and submission of observations.
9. On 5 March 2010 Mr Isakov was released from custody and on 17 March 2010 he was granted temporary asylum in Russia.
10. On 8 July 2010 the Court delivered a judgment in Mr Isakov ’ s case (see Abdulazhon Isakov v. Russia, no. 14049/08, 8 July 2010) where it found, inter alia, that in the event of the extradition order against Mr Isakov being enforced, there would be a violation of Article 3 of the Convention.
11. On 1 June 2011 the Presidium of the Supreme Court quashed the decision of 12 August 2008 and the ensuing judicial decisions, including the Supreme Court ’ s decision of 22 December 2008 (see paragraph 6 above).
12. Mr Isakov and his family (wife and children) continued to reside in Tyumen, Russia.
13. On 3 February 2012 the Government informed the Committee of Ministers of the individual measures taken within the framework of the execution of the judgment in Mr Isakov ’ s case. In particular, the Government reported that (1) the judgment had been enforced as regards the payment of non-pecuniary damage and reimbursement of costs and expenses and (2) the extradition-related judicial decisions had been quashed.
14. In September 2013, within the framework of the supervision of the execution of a number of judgments against Russia relating to disappearances and/or forcible transfers and also repeated allegations of such incidents, the Committee adopted an Interim Resolution (CM /ResDh(2013)200) exhorting the Russian authorities to develop without further delay an appropriate mechanism tasked with both preventive and protective functions to ensure that applicants belonging to the risk group benefit from immediate and effective protection against unlawful or irregular removal from the Russian territory.
B. Mr Isakov ’ s disappearance and new proceedings before the Court
15. In the night of 21-22 July 2014 Mr Isakov ’ s car was found damaged on the road and Mr Isakov had disappeared. His family ’ s attempts to establish his whereabouts were to no avail.
16. On 22 July 2014 A.M., Mr Isakov ’ s nephew, reported Mr Isakov ’ s disappearance to the regional department of the interior. Mr Isakov ’ s family retained counsel Kh. to represent them in connection with the investigation into Mr Isakov ’ s disappearance.
17. On 23 July 2014 the Court granted a request lodged by Ms Yermolayeva, under Rule 39 of the Rules of the Court, and indicated to the Government that Mr Isakov should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or another country for the duration of the proceedings before the Court. The Government were also requested to furnish any information about Mr Isakov ’ s whereabouts and possible arrest and detention in Russia and/or removal to Uzbekistan. The application was also granted priority under Rule 41 of the Rules of the Court.
18. On 6 August 2014 the Government reported that the investigation into Mr Isakov ’ s disappearance was pending and that his whereabouts were unknown to the authorities.
19. On the same date, relying on the authority form issued by Mr Isakov in 2008, Ms Yermolayeva lodged an application in Mr Isakov ’ s name. She alleged that Mr Isakov had been abducted by Russian state agents and forcefully removed to Uzbekistan where he would be subjected to treatment contrary to Article 3 of the Convention. Referring to Article 34 of the Convention, she argued that the Government had failed to comply with the Court ’ s indication made under Rule 39 of the Rules of the Court.
20. On 25 August 2014 the senior investigator with the regional investigative committee opened criminal investigation into Mr Isakov ’ s disappearance.
21. On 4 September 2014 the senior investigator in charge of Mr Isakov ’ s disappearance questioned Kh.I., Mr Isakov ’ s brother. Kh.I. submitted that, according to his older sister who lived in Uzbekistan, Mr Isakov was allegedly in Tashkent, Uzbekistan.
22. On 12 September 2014 the President of the Section gave notice of the application to the Government and invited the latter to submit written observations on the admissibility and merits of the case.
23. On 24 October 2014 the senior investigator in charge of Mr Isakov ’ s disappearance questioned Z.I., Mr Isakov ’ s son.
24. On 29 October 2014 the Government submitted the observations.
25. On 8 January 2015 Ms Yermolayeva submitted the observations on the matter maintaining the complaints on Mr Isakov ’ s behalf and claims for just satisfaction.
26. On 12 February 2015 the Government provided comments on the claims for just satisfaction and further observations.
27. On 15 April 2015 the President of the Section invited the parties, under Rule 54 § 2 (c) of the Rules of the Court, to submit further observations on the admissibility and merits of the case. The parties were to comment as to whether the application was compatible ratione personae with the provisions of the Convention and the Government ’ s failure to submit a complete investigation file concerning Mr Isakov ’ s alleged abduction and disappearance.
28. On 31 May and 1 June 2015 Ms Yermolayeva and the Government respectively submitted further observations (see paragraphs 34-35 below).
29. Mr Isakov ’ s whereabouts remain unknown to date.
C. Committee of Ministers ’ supervision of the execution of the judgment in the case of Mr Isakov
30. In its decisions adopted at 1214th and 1230th meetings (December 2014 and June 2015), the Committee of Ministers, responding to the situation concerning disappearances and/or forcible transfers, noted that the Russian authorities adopted a number of awareness-raising measures and instructions. Nevertheless, the Committee of Ministers considered that these measures were insufficient and invited the authorities to adopt special protective measures in respect of the applicants who were exposed to such risks and underlined the need for special measures to ensure rapid and effective investigations into such incidents.
31. On 2-4 December 2014 ( CM/Del/Dec(2014)1214E/05 December 2014) at its 1214th meeting (DH), the Committee of Ministers noted as follows, as regards Mr Isakov ’ s situation:
“As to the investigation of the alleged abductions of Messrs Abdulazhon Isakov and Mukhitdinov reported in July 2014, criminal cases have been opened. No evidence has thus far been obtained regarding the removal of Mr Abdulazhon Isakov from the territory of the Russian Federation. The Russian authorities also insisted that the Committee of Ministers was not competent to supervise this issue as it was already being examined in the adversarial proceedings before the European Court.
As regards the Russian authorities ’ comments with respect to the Committee ’ s competence to supervise the investigations into the recent alleged abductions of Messrs Abdulazhon Isakov and Mukhitdinov, the following factors have to be taken into account. As regards the first case, there already exists a final Court judgment establishing a violation, granting the Committee full competence to look into both individual and general measures, irrespective of any new application made on behalf of the same person to the Court. Such situations are frequent and have never led the Committee to exempt the State concerned from its obligation to keep the Committee informed of the developments. As regards the second case, while it is true that there is no final judgment at the moment, the case is relevant for execution purposes as an example, among others, of the development of the situation and the efficiency of the general measures adopted (see e.g. the Court ’ s indication in the Savriddin Dzhurayev judgment (§263).”

***

6.The applicants were born in 1978, 1980 and 2007 respectively.
7.They fled Armenia on account of fears of persecution related to the first applicant’s activity as a journalist and his political activism.
8.After arriving in France on 4 October 2009 they filed applications for asylum, which were rejected by the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides – OFPRA), on 21 December 2009, then by the National Asylum Court (Cour nationale du droit d’asile – CNDA), on 28 February 2011. Their subsequent requests for re-examination were also rejected.
9.On 3 May 2011 the prefect of Loiret issued orders rejecting the applicants’ requests for leave to remain and obliging them to leave French territory. On 18 October 2011 the Orleans Administrative Court, on an appeal from the applicants, refused to overturn those orders.
10.The first applicant was arrested by the police in connection with a theft on the evening of 16 February 2012 and was taken into police custody that same day. The second and third applicants were arrested the next day at the reception centre for asylum seekers (Centre d’accueil des demandeurs d’asile – CADA) at Chaingy, where the family had been living. The applicants were taken that same day to the administrative detention centre (Centre de rétention administrative – CRA) of Toulouse-Cornebarrieu. The detention orders in respect of the first two applicants read as follows:
“Whereas the immediate enforcement of the [order to leave France] is not possible on account of the organisation of [their] departure for [their] country of origin.
Whereas [the applicants] [have] not presented sufficient guarantees that [they] will not abscond, not having a valid passport, [having] neither a fixed abode nor sufficient resources, not [having] complied with the previous removal directions issued to [them] and [having] formally opposed, when interviewed, [their] return to [their] country of origin.”
11.The first two applicants challenged their detention orders and in parallel lodged an urgent application for a stay of execution. They claimed that they had a fixed addressed at the reception centre (CADA), that a friend was prepared to accommodate them and that, in any event, their detention would be incompatible with the best interests of their child. In this connection they indicated that their child, who was too young to be left on his own, was obliged to accompany them in all their administrative formalities and therefore to come into contact with armed police officers in uniform.
12.On 21 February 2012 the President of the Toulouse Administrative Court dismissed the urgent application without a hearing, finding as follows:
“Under the [domestic statutory] provisions, the legality of decisions ordering administrative detention in connection with removal measures can be challenged fully through a specific procedure, which itself has the nature of an urgent procedure, separately from the remit of the urgent applications judge ...; it follows therefrom that the applicants’ request for that judge to order ... the stay of execution of the detention orders made for the purpose of enforcing the removal directions, a stay which would in fact have an equivalent effect to that of the annulment of the same decision on the merits, is inadmissible.”
13.On the same day, the Toulouse Administrative Court dismissed the application lodged by the first two applicants for the annulment of the administrative detention order, on the following grounds:
“It is not in dispute that [the applicants] cannot present any valid identity or travel document; although [they claim] that [they] have a fixed address in an asylum-seekers’ reception centre, it can be seen from the evidence in the file that this centre asked [them] to vacate the premises, where [they have] unduly remained since June 2011; nor [have] the [applicants] adduced evidence of lawful income; lastly, since the notification of the judgment of the Orléans Administrative Court of 18 October 2011 dismissing [their] application against the order of the prefect of Loiret of 2 May 2011, [the applicants] [have] avoided the said removal measure; under those circumstances, the choice of the administrative authority to place [them] in administrative detention instead of ordering a measure of restricted residence ... is not vitiated by a manifest error of judgment.”
Responding more specifically to the argument raised by the applicants concerning the child’s best interests, the Administrative Court found it to be inapplicable, as the decisions appealed against pertained only to the parents’ personal situation.
14.The prefect asked the Liberties and Detention Judge of the Toulouse tribunal de grande instance to extend the detention, after which the first two applicants tried to obtain the third applicant’s voluntary intervention in the proceedings. On 22 February 2012 that judge authorised the extension of the applicants’ detention for a period of twenty days, after finding inadmissible the request for voluntary intervention on behalf of the child, and having dismissed the argument that the conditions of detention were incompatible with the presence of a minor child, on the following grounds:
“It is not for the judicial authority to interfere in the running of an administrative detention centre”.
15.That decision was upheld on 24 February 2012 by the President of the Toulouse Court of Appeal, who found in particular as follows:
“... the administrative detention centre of Cornebarrieu, where the child is held, has been authorised to receive families and contains all the necessary facilities to ensure the comfort of a family with children.
Thus the whole family is together and they have, in an autonomous area and separated from the rest of the detainees, rooms for them alone and for their exclusive use.
In addition, there is a playground on the site, like those to be found in town squares.
Lastly, a doctor and a nurse are available every day in the Toulouse administrative detention centre and Mr and Mrs A.B. have not shown that they met with a refusal when they asked to present their child – a request of which the existence has not been established.
The Convention provisions, especially Article 8, do not therefore appear to have been breached.”
16.On 24 February 2012 the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the detention orders concerning them. On 29February 2012 the Court decided not to indicate the requested interim measure.
17.On 5 March 2012 the applicants were released, after expressing their wish to return to Armenia, and after seeking voluntary return assistance for that purpose. However, they did not leave France, on account of the third applicant’s state of health. On 13 July 2012 the first applicant was granted leave to remain as the parent of a sick child.
18.In two judgments of 15 November 2012, the Bordeaux Administrative Court of Appeal annulled the administrative detention orders of 17February 2012 in respect of the first two applicants. Its judgments contained the same wording for each spouse:
“4.Article L. 561-2 of the Entry and Residence of Aliens and Right of Asylum Code provides, by way of exception to the cases where a foreign national may be placed in detention, the possibility of ordering a measure of restricted residence (assignation à résidence) if the alien can present guarantees to allay the risk of non-compliance with his or her obligation to leave France. Under provision 3o of part II of Article L. 511-1 of the same Code, such risk must in particular be regarded as established, save in specific circumstances, in cases where the alien has already evaded the execution of a removal measure. The finding by the administrative authority of facts falling within provision 3o of part II of Article L. 511-1, while it is such as to create a presumption of a risk that the alien might fail to comply with his or her obligation to leave France, does not dispense that authority, before any decision to place him or her in detention, from specifically examining the circumstances of the case. As regards aliens who are the parents of minor children and who do not have sufficient guarantees of compliance, such aliens being provided for by ArticleL. 562-1 of the said Code, and in accordance with the aims of Article 17 of Directive 2008/115/EC, recourse to placement in detention can only constitute an exceptional measure in cases where the alien does not have a stable place of abode at the time when the prefectoral authority takes the necessary measures to prepare for the removal.
5.For the purposes of transposition of the above-mentioned Directive, Article L. 562-1 of the Entry and Residence of Aliens and Right of Asylum Code, as inserted by Law no.2011‑672 of 16 June 2011, provides: ‘In the cases provided for in ArticleL.551‑1, where the alien is the parent of a minor child residing in France and has effectively contributed to the raising and education of that child in the conditions prescribed in Article 371-2 of the Civil Code since the birth of the child or at least for the past two years, and where the conditions for a restricted residence measure under Article L. 561-2 of the present Code are not fulfilled, the administrative authority can decide on a measure of curfew with electronic tagging, with the agreement of the alien concerned.
The measure of curfew with electronic tagging is decided by the administrative authority for a period of five days. The measure may be extended by the Liberties and Detention Judge under the same conditions as the extension of the administrative detention provided for in chapter II of title V of the present book.’
6.It can be seen from the evidence in the file that on the date of the decision appealed against, Mr [A.B.], accompanied by his wife and four-year-old son [A.B.], had been accommodated for several years in the hostel of the asylum-seekers’ reception centre in Chaingy, and that the child had been going to school. Mrs [A.A.B.] was apprehended on 16 February 2012 in that hostel, where the family had remained unlawfully, even though they had been requested to leave the premises by the centre’s administration, following the rejection of their requests for a review of their asylum situation by a decision of 28 July 2011 of the French Office for the Protection of Refugees and Stateless persons. In deciding on their placement in detention the prefect of Loiret merely stated that Mr [A.B.] did not present sufficient guarantees against the risk of non-compliance, as he did not have a valid passport, had no stable place of abode or sufficient income, and had not complied with the previous directions for his removal. It does not appear from the decision appealed against that the prefect had considered, having regard to the presence of a child, whether a less coercive measure than detention was possible for the necessarily short duration of the removal procedure. In those conditions, his decision was vitiated by an error of law and had for that reason to be declared null and void.
7.It transpires from the foregoing that, without there being any need to examine the other arguments in the application, Mr [A.B.] is justified in submitting that the judge appointed by the President of the Toulouse Administrative Court, in the judgment appealed against, had been wrong to reject his request for the annulment of the decision of 17February 2012 placing him in administrative detention.”
...

***

6.The applicant was born in 1991 and lives in Vladivostok.
A.Criminal proceedings against the applicant in Kyrgyzstan and his arrest and detention in Russia
7.The applicant is an ethnic Uzbek. He lived in the town of Osh in Kyrgyzstan. After the mass disorders and inter-ethnic clashes in the region in June 2010, he left Kyrgyzstan for Russia.
8.On 4 July 2010 the applicant arrived in Russia.
9.On 9 July 2010 the Kyrgyz authorities charged the applicant in absentia with violent crimes related to these clashes, including the kidnapping and murder of two law-enforcement officers.
10.On 10 July 2010 they ordered the applicant’s arrest.
11.On 12 July 2010 the applicant’s name was put on a national wanted list, and on 16 September 2010 on an international wanted list.
12.On 23 January 2014 the applicant was apprehended in Vladivostok, Primorsk Region, and placed in detention.
13.Shortly after his arrest, the applicant gave an explanation (объяснение) in which he admitted having participated in the beating of one of the law-enforcement officers in June 2010 but denied his involvement in other crimes for which he was to be prosecuted in Kyrgyzstan. He also indicated that although he had not been directly informed about the charges being brought against him in Kyrgyzstan, he knew that his father had been sentenced to life imprisonment for the murder of the same law-enforcement officers and suspected that he was himself also wanted by the Kyrgyz authorities.
14.On 24 January 2014 the Frunzenskiy District Court of Vladivostok decided to remand the applicant in custody. His detention was subsequently extended several times.
15.On 29 January 2014 the Russian Prosecutor’s Office informed the Kyrgyz authorities about the applicant’s arrest.
16.On 16 January 2015 a judge of the Primorsk Regional Court extended the applicant’s detention until 23 July 2015. The applicant’s lawyer appealed, arguing that the applicant would be deprived of judicial review of his detention for a long period of time.
17.On 11 February 2015 the Primorsk Regional Court upheld the extension order on appeal. It did not address the applicant’s argument that he would be deprived of judicial review of his detention for a long period of time.
18.On 27 July 2015 the applicant was released. It appears that the applicant is currently at large.
B.Extradition proceedings
19.On 11 February 2014 the Kyrgyz General Prosecutor’s Office requested the applicant’s extradition. The request was accompanied by assurances that the applicant would not be subjected to torture or inhuman treatment and that Russian diplomats would be granted the opportunity to visit him.
20.On 17 October 2014 the Deputy Prosecutor General granted the extradition request submitted by the Kyrgyz authorities.
21.On 6 November 2014 the applicant appealed, arguing that as an ethnic Uzbek charged with serious crimes in relation to the mass disorders of June 2010 he would face a serious risk of torture and ill-treatment if extradited. He also referred to the principle of non‑refoulement of asylum seekers pending the examination of his application for refugee status.
22.On 12 December 2014 the Primorsk Regional Court rejected his appeal in the light of the diplomatic assurances given by the Kyrgyz authorities and the improvement of the situation in Kyrgyzstan. As to the non‑refoulement principle, the Regional Court noted that the applicant’s application for refugee status had been refused by the migration authority.
23.On 25 March 2015 the Supreme Court rejected the applicant’s appeal and the extradition order became final. It noted in particular that in addition to the diplomatic assurances provided in writing by the Kyrgyz authorities, the representatives of the General Consulate of the Russian Federation in this country were able to monitor the situation of persons already extradited to Kyrgyzstan, including those held in relation to the mass disorders. For instance, on 30 and 31 July 2014 Russian diplomats had visited some such detainees, who had made no complaints in relation to their transfer, detention, prosecution or treatment. In the Supreme Court’s view, such a monitoring mechanism was effective in observing compliance by the Kyrgyz authorities with their obligations to ensure the rights of the extradited persons, including the right not to be subjected to torture and inhuman treatment.
24.The Supreme Court noted that the applicant belonged to a vulnerable group whose members were at risk of being subjected to torture by the law‑enforcement agencies, according to international reports. It considered, however, that in the absence of specific evidence submitted by the applicant that he would personally be subjected to torture or inhuman and degrading treatment, these circumstances were not in themselves enough to reject an extradition request, since he had been charged with ordinary criminal offences to some of which he had confessed on 23 January 2014.
C.Refugee status proceedings
25.On 7 February 2014 the applicant applied to the Primorsk Region Department of the Federal Migration Service (Управление Федеральной миграционной службы по Приморскому краю) (hereinafter the “Primorsk Region FMS”) seeking refugee status.
26.On 23 April 2014 the Primorsk Region FMS refused the applicant’s application for refugee status. Although it referred in its decision to inter‑ethnic conflicts existing in Kyrgyzstan, it considered that the applicant’s arrival in Russia had rather been motivated by the unemployment situation existing in his country of origin and his wish to escape from criminal prosecution.
27.The applicant appealed to the Federal Migration Authority, (Федеральная миграционная служба (ФМС)) (hereinafter the “FMS”). He claimed that he was being persecuted on the grounds of his ethnic origin and, if extradited, would be subjected to torture.
28.On 18 July 2014 the FMS dismissed his appeal on account of his prolonged failure to apply for refugee status and in view of the opportunity offered to the Russian diplomats to monitor the compliance by the Kyrgyz authorities with international standards as regards persons extradited from Russia.
29.On 13 November 2014 the Basmannyy District Court of Moscow upheld the refusal of the FMS to grant the applicant refugee status, referring in particular to his protracted failure to apply for refugee status. It also indicated that the applicant was not a member of any political, religious, military or public organisation, had neither served in the army nor taken part in any military activities, had never been prosecuted or threatened by the authorities, and had not been involved in any violent incidents.
30.On 8 April 2015 the Moscow City Court upheld this judgment on appeal. The City Court endorsed the reasoning of the District Court, referring in addition to several international sources demonstrating positive developments in the human rights situation in Kyrgyzstan during the period 2011-2012.
32.For relevant international documents see Abdulkhakov, cited above, §§79‑82 and 94).
33.For a number of relevant reports and items of information concerning Kyrgyzstan, in particular, the human rights situation in 2011‑2015, see Tadzhibayev v. Russia (no. 17724/14, §§ 19‑26, 1December 2015, with further references) and Turgunov v.Russia (no. 15590/14, §32, 22October 2015).

***

8.The applicants, a married couple and their son, were born in 1964, 1965 and 2000 respectively.
A.Account of events in Iraq
9. The applicants were brought up in Baghdad. Since the 1990s the husband (the first applicant) had run his own construction and transport business with exclusively American clients and had had his office at the United States military base “Victoria camp” (seemingly referring to Camp Victory). Several of his employees had on occasion been warned not to cooperate with the Americans.
10.On 26 October 2004 the first applicant was the target of a murder attempt carried out by al-Qaeda. He had to stay in hospital for three months. There, unknown men asked for him, after which he was treated in three different hospitals.
11.In 2005 his brother was kidnapped by al-Qaeda members, who claimed that they would kill him because of the first applicant’s collaboration with the Americans. His brother was released through bribery a few days later and immediately fled from Iraq. The applicants fled to Jordan and stayed there until December 2006, before returning to Iraq.
12.Soon afterwards, al-Qaeda members placed a bomb next to the applicants’ house. However, it was detected by the first applicant’s wife (the second applicant), and the American forces arrested the perpetrator. During interrogation, the perpetrator confessed that he had been paid by al-Qaeda to kill the first applicant and disclosed the names of sixteen people who had been designated to watch the applicants. Thereafter, the applicants moved to Syria, although the first applicant continued his business in Iraq. During this time, al-Qaeda destroyed their home and the first applicant’s business stocks.
13.In January 2008 the applicants returned to Baghdad. In October 2008 the first applicant and his daughter were shot at when driving. The daughter was taken to hospital, where she died. The first applicant then stopped working and the family moved to a series of different locations in Baghdad. The first applicant’s business stocks were attacked four or five times by al-Qaeda members, who had threatened the guards. The first applicant stated that he had not received any personal threats since 2008 as the family had repeatedly moved around. The son (the third applicant) had spent most of his time indoors for fear of attacks and had only attended school for his final examinations. The applicants had never asked the domestic authorities for protection, fearing that the authorities lacked the ability to protect them and might disclose their address, on account of al‑Qaeda’s collaboration with the authorities. The applicants maintained that, in the event of their return to Iraq, they risked persecution by al-Qaeda and that the first applicant appeared on al-Qaeda’s death list.
B.Ordinary asylum proceedings
14.On 14 December 2010 the first applicant applied for asylum and a residence permit in Sweden. On 11 July 2011 his application was rejected since he was registered as having left the country.
15.On 25 August 2011 the first applicant applied anew for asylum and a residence permit in Sweden, as did the other applicants on 19September 2011. As to their state of health, the first applicant still had an open and infected wound on his stomach where he had been shot in 2004. They submitted several documents, including identity papers, a death certificate for the first and second applicants’ daughter and a medical certificate for the first applicant’s injury.
16.All three applicants were given an introductory interview by the Migration Agency (Migrationsverket) on 26 September 2011. Subsequently, the first and second applicants were given a further interview on 11October 2011, which lasted almost three and a half hours. The third applicant was interviewed briefly for a second time and the first applicant was interviewed a third time. The applicants were assisted by State-appointed counsel.
17.On 22 November 2011 the Migration Agency rejected the applicants’ asylum application. In respect of the Iraqi authorities’ ability to provide protection against persecution by non-State actors, the Agency stated:
“...
Every citizen should have access to police authorities within a reasonable visiting distance. During the past few years the police authorities have taken numerous measures to fight against corruption, clan and militia connections and pure criminality within the police.
The current country information, however, shows that there are serious shortcomings in the police’s work on crime-scene investigations and inquests. One of the reasons is probably that many police officers are relatively new and lack experience, and that it takes time to introduce a new method of investigation based on technical evidence. This problem is naturally accentuated by the fact that many individual police officers live under a threat emanating from different terrorist groups, which is likely to diminish their effectiveness. Nevertheless, the current country information shows that the number of suspects who have been prosecuted during the past few years has increased significantly. Even if fewer than half of all suspects are eventually prosecuted, this is still an improvement.
The Iraqi security forces have been reinforced significantly and no longer have any shortcomings in human terms. Instances of police infiltration, which were previously widespread, have decreased significantly. The leading representatives of the police authority have expressed both their willingness and their ambition to maintain general security in Iraq. The current country information also shows that it has become more difficult for al-Qaeda Iraq to operate freely in Iraq and that there has been a significant decline in sectarian violence. Today violence is mainly aimed at individual targets, especially civil servants, police, security forces and some minorities.
...”
Regarding the assessment of the applicants’ refugee status, as well as their need for alternative protection, the Agency held as follows:
“...
The Migration Agency notes that [the first applicant] had a contract with the Americans until 2008. For this reason [the first applicant] has been exposed to two murder attempts, his brother has been kidnapped and [the first and second applicant]’s daughter has been killed. Furthermore, on several occasions, [the first applicant] has suffered physical damage to his house and stock. [The first and second applicants] are convinced that al-Qaeda is behind these abuses. The family are also afraid of al-Qaeda in the event of their return.
The Migration Agency notes that [the first applicant] stopped working for the Americans in 2008 after his and [the second applicant]’s daughter was killed. The Migration Agency further notes that [the first applicant] stayed in Baghdad until December 2010 and that [the second and third applicants] lived in Baghdad until September 2011. During this period they were not exposed to any direct abuses. [The first applicant] has, however, been indirectly threatened on four or five occasions by the people who guard his stock. Also, his stock has been attacked. [The first and second applicants] explained that they had managed to escape from abuses because they were in hiding and living in different places in Baghdad. The Migration Agency notes that [the first and second applicants] have two daughters who live with their grandmother in Baghdad and a daughter who is married and lives with her family in Baghdad. These family members have not been exposed to any threats or abuses.
The Migration Agency notes that the abuses which the family claim to be at risk of being exposed to are criminal acts which their home country’s authorities have a duty to prosecute. In order to decide whether the family can enjoy protection against the abuses they fear, the Migration Agency notes the following.
In accordance with the principle that it is for an asylum-seeker to justify his or her need for protection and that it is primarily for the applicant to provide relevant information for the assessment in the case, the onus must be on the applicant to plead that he or she cannot or, owing to a severe fear of the consequences, for example, will not avail himself or herself of the protection of the authorities available in Iraq. In addition, the applicant must justify this. The shortcomings which still exist in the Iraqi legal system are then to be noted and evaluated in the context of the individual assessment of each asylum case. The circumstances on which an applicant relies in arguing that protection by the authorities is deficient are first of all examined in the usual way. In those cases in which the alleged risk of persecution or other abuses does not emanate from the authorities, which as a rule is the case in Iraq, the applicant must show what efforts he or she has made to be afforded protection by the authorities. The applicant can do this either by relying on evidence or by giving a credible account of events which appear plausible. When assessing the authorities’ ability to protect against threats of violence emanating from terrorist groups or unknown perpetrators in a specific case, the individual’s situation, as well as the severity of the violence or threats, their nature and their local reach, must be assessed individually (see Migration Agency, Legal opinion on protection by the authorities in Iraq, 5 April 2011, Lifos 24948).
The Migration Agency considers that the family have been exposed to the most serious forms of abuses (ytterst allvarliga övergrepp) by al-Qaeda from 2004 until 2008. Such abuses, however, took place three years ago and nowadays it is more difficult for al-Qaeda to operate freely in Iraq. [The first and second applicants] never turned to the Iraqi authorities for protection. [The first applicant] has stated that the Iraqi authorities lack the capacity to protect the family. Further, he has stated that he did not dare to turn to the authorities because he would then have been forced to disclose his address, which could have resulted in al-Qaeda being able to find him. [The second applicant] has stated that al-Qaeda works together with the authorities. As stated earlier, the Migration Agency finds that there has been a significant decline in instances of police infiltration, which previously were widespread. Against the background of the fact that [the first and second applicants] have not even tried to seek the protection of the Iraqi authorities, the Migration Agency considers that they have not made a plausible case that they would not have access to protection by the authorities in the event of potential threats from al-Qaeda upon returning to Iraq.
Against this background, the Migration Agency finds that [the first and second applicants] have not made a plausible case that the Iraqi authorities lack the capacity and the will to protect the family from being exposed to persecution within the meaning of Chapter 4, section 1, of the Aliens Act or to abuses within the meaning of Chapter 4, section 2, first subsection, first point, first line, of the Aliens Act. The Migration Agency notes in this context that there is no armed conflict in Iraq. The Migration Agency therefore finds that the family are not to be regarded as refugees or as being in need of alternative or other protection, for which reason the family do not have the right to refugee status or alternative protection status.
The Migration Agency notes that fierce tensions between opposing factions are prevalent in Baghdad. Nevertheless, against the background of the above reasoning, the Migration Agency finds that the family also cannot be regarded as being otherwise in need of protection, within the meaning of Chapter 4, section 2a, first subsection, of the Aliens Act. The family do not therefore have any right to a status falling under any other need of protection.
...”
In conclusion, the Migration Agency found that there were no grounds to grant the family residence permits. Against this background, the Migration Agency rejected the family’s application and ordered their deportation from Sweden on the strength of Chapter 8, section 1, of the Aliens Act.
18.The applicants appealed to the Migration Court (Migrationsdomstolen), maintaining that the Iraqi authorities had been and would be unable to protect them. They had contacted the police following the fire to their home and the first applicant’s business stock in 2006 and 2008 and the murder of the first and second applicants’ daughter in 2008, but thereafter they had not dared to contact the authorities owing to the risk of disclosing their residence. Together with their written submissions, they enclosed a translated written statement allegedly from a neighbour in Baghdad, who stated that a masked terrorist group had come looking for the first applicant on 10 September 2011 at 10 p.m. and that the neighbour had told them that the applicants had moved to an unknown place. The neighbour also stated that, just after the incident, the first applicant had called him and been told about the incident. The applicants also submitted a translated residence certificate/police report allegedly certifying that their house had been burned down by a terrorist group on 12 November 2011. Furthermore, the applicants submitted a DVD containing an audiovisual recording of a public debate on television concerning corruption and the infiltration of al-Qaeda members within the Iraqi administration. The applicants mentioned in that connection that the first applicant had participated in the public debate, which had been broadcast on the Alhurra channel in Iraq on 12 February 2008, that is to say, four years earlier. Finally, submitting various medical certificates, the applicants contended that the first applicant’s health had deteriorated and that he could not obtain adequate hospital care in Iraq.
The Migration Agency made submissions before the Migration Court. It stated, among other things, that the documents submitted concerning the alleged incidents on 10 September and 12 November 2011 were of a simple nature and of little value as evidence.
19.On 23 April 2012 the Migration Court upheld the Migration Agency’s decision. Concerning the need for protection, the court held:
“It is undisputed in the present case that the applicants’ grounds for protection must be examined in relation to Iraq. The general situation in Iraq is not such that as to confer the automatic right to a residence permit. Therefore, an individual assessment of the grounds for protection invoked by the applicants must be made.
The applicants have alleged that they are in need of protection upon returning to Iraq as they risk being exposed to ill-treatment by al-Qaeda because [the first applicant]’s company did contract-based work for the Americans in Iraq until 2008.
The Migration Court considers that the alleged events took place in the distant past, that it is difficult to see why there would still be a threat as [the first applicant] no longer performs such work, and that, in the event that some threats should still exist, it appears likely [framstår som troligt] that the Iraqi law-enforcement authorities are both willing and able to offer the applicants the necessary protection. In such circumstances, there are no grounds to grant the applicants any residence permit on the basis of a need for protection.
...”
20.The applicants appealed to the Migration Court of Appeal (Migrationsöverdomstolen). Their request for leave to appeal was refused on 9 August 2012.
C.Extraordinary proceedings
21.On 29 August 2012 the applicants submitted an application to the Migration Agency for a re-examination of their case. They maintained that the first applicant was under threat from al-Qaeda because he had been politically active. They enclosed a video showing the first applicant being interviewed in English, a video showing a demonstration, and a video showing a television debate.
22.On 26 September 2012 the Migration Agency refused the applicants’ application. The applicants did not appeal to the Migration Court against that decision.
30.Extensive information about the general human rights situation in Iraq and the possibility of internal relocation to the Kurdistan Region can be found in, inter alia, M.Y.H. and Others v. Sweden (no. 50859/10, §§ 20-36, 27June 2013) and A.A.M. v. Sweden (no. 68519/10, §§29-39, 3 April 2014). The information set out below concerns events and developments occurring after the delivery of the latter judgment on 3 April 2014.
A.General security situation
31.In mid-June 2014, following clashes which had begun in December 2013, the Islamic State of Iraq and al-Sham (ISIS – also known as Islamic State of Iraq and the Levant (ISIL)) and aligned forces began a major offensive in northern Iraq against the Iraqi Government during which they captured Samarra, Mosul and Tikrit.
32.According to a briefing by Amnesty International entitled “Northern Iraq: Civilians in the line of fire”, dated 14 July 2014:
“The takeover in early June by the Islamic State in Iraq and al-Sham (ISIS) of Mosul, Iraq’s second largest city, and other towns and villages in north-western Iraq has resulted in a dramatic resurgence of sectarian tensions and the massive displacement of communities fearing sectarian attacks and reprisals. Virtually the entire non-Sunni population of Mosul, Tal ‘Afar and surrounding areas which have come under ISIS control has fled following killings, abductions, threats and attacks against their properties and places of worship.
It is difficult to establish the true scale of the killings and abductions that ISIS has committed. Amnesty International has gathered evidence about scores of cases. To date, ISIS does not appear to have engaged in mass targeting of civilians, but its choice of targets – Shi’a Muslims and Shi’a shrines – has caused fear and panic among the Shi’a community, who make up the majority of Iraq’s population but are a minority in the region. The result has been a mass exodus of Shi’a Muslims as well as members of other minorities, such as Christians and Yezidis. Sunni Muslims believed to be opposed to ISIS, members of the security forces, civil servants, and those who previously worked with US forces have similarly fled – some after they and their relatives were targeted by ISIS.
ISIS has called on former members of the security forces and others whom they consider were involved in government repression to ‘repent’, and has promised not to harm those who do. The process involves a public declaration of repentance (towba), which in effect also entails a pledge of allegiance and obedience to ISIS, in mosques specially designated for the purpose. Many of those who have remained in ISIS-controlled areas are taking up the invitation and publicly repenting. The practice, however, is not without risks, as it allows ISIS to collect names, addresses, ID numbers and other identification details of thousands of men, who it could decide to target later.
Meanwhile, Amnesty International has gathered evidence pointing to a pattern of extrajudicial executions of detainees by Iraqi government forces and Shi’a militias in the cities of Tal ‘Afar, Mosul and Ba’quba. Air strikes launched by Iraqi government forces against ISIS-controlled areas have also killed and injured dozens of civilians, some in indiscriminate attacks.
This briefing is based on a two-week investigation in northern Iraq, during which Amnesty International visited the cities of Mosul, Kirkuk, Dohuk and Erbil and surrounding towns and villages in these areas, and the camps for displaced people in al-Khazer/Kalak and Garmawa; and met with survivors and relatives of victims of attacks perpetrated by ISIS and by government forces and allied militias, civilians displaced by the conflict, members and representatives of minorities, religious figures, local civil society organizations, international organizations assisting the displaced, and Peshmerga military commanders. All the interviews mentioned in the document were carried out during this visit.
...
Amnesty International’s assessment is that all parties to the conflict have committed violations of international humanitarian law, including war crimes, and gross abuses of human rights. What is more, their attacks are causing massive displacement of civilians.
Where armed actors operate in populated residential areas, the warring parties must take all feasible precautions to minimize harm to civilians. They must take precautions to protect civilians and civilian objects under their control against the effects of attacks by the adversary, including by avoiding – to the maximum extent feasible – locating military objectives within or near densely populated areas. International humanitarian law also expressly prohibits tactics such as using ‘human shields’ to prevent attacks on military targets. However, failure by one side to separate its fighters from civilians and civilian objects does not relieve its opponent of its obligation under international humanitarian law to direct attacks only at combatants and military objectives and to take all necessary precautions in attacks to spare civilians and civilian objects. International humanitarian law prohibits intentional attacks directed against civilians not taking part in hostilities, indiscriminate attacks (which do not distinguish between civilian and military targets), and disproportionate attacks (which may be expected to cause incidental harm to civilians that would be excessive in relation to the concrete and direct military advantage anticipated). Such attacks constitute war crimes. These rules apply equally to all parties to armed conflicts at all times without exception.
The conflict in northern Iraq has displaced hundreds of thousands of civilians, who have fled to neighbouring Kurdish areas administered by the KRG. Most are living in dire conditions, some in camps for internally displaced people (IDPs) and others sheltering in schools, mosques, churches and with host communities. At first civilians who fled after ISIS captured large areas of north-western Iraq were being allowed to enter the Kurdistan Region of Iraq (KRI), but in recent weeks access for non-Kurdish Iraqis has been severely restricted by the KRG. Some of those who fled are seeking refuge in the KRI while others, mostly Shi’a Turkmen and Shabak, want to travel southwards to the capital and beyond where the majority of the population is Shi’a and where they feel they would be safer.
While the Iraqi central government remains beset by political and sectarian divisions, and the KRG appears increasingly focused on annexing more territory to the areas it controls, Iraqi civilians caught up in the conflict are finding it increasingly difficult to find protection and assistance.
Amnesty International calls on all parties to the conflict to put an immediate end to the killing of captives and the abduction of civilians; to treat detainees humanely at all times; to refrain from carrying out indiscriminate attacks, including the use of artillery shelling and unguided aerial bombardments in areas with large concentrations of civilians. It also reiterates its call on the KRG to allow civilians who are fleeing the fighting – whatever their religion or ethnicity – to seek refuge in and safe passage through KRG-controlled areas.”
33.The position of the Office of the United Nations High Commissioner for Refugees (UNHCR) on returns to Iraq, dated October 2014, stated among other things:
“Introduction
1. Since the publication of UNHCR’s 2012 Iraq Eligibility Guidelines and the 2012 Aide Mémoire relating to Palestinian refugees in Iraq, Iraq has experienced a new surge in violence between Iraqi security forces (ISF) and Kurdish forces (Peshmerga) on the one hand and the group ‘Islamic State of Iraq and Al-Sham’ (hereafter ISIS), which operates both in Iraq and Syria, and affiliated armed groups on the other hand. Civilians are killed and wounded every day as a result of this surge of violence, including suicide attacks and car bombs, shelling, airstrikes, and executions. As a result of advances by ISIS, the Government of Iraq is reported to have lost full or partial control over considerable parts of the country’s territory, particularly in Al-Anbar, Ninewa, Salah Al-Din, Kirkuk and Diyala governorates. Although the ISF and Kurdish forces, supported by US airstrikes, have recently regained control over some localities, mostly along the internal boundaries with the Kurdistan Region, overall frontlines remain fluid. The conflict, which re-escalated in Al-Anbar governorate in January 2014 and since then spread to other governorates, has been labelled as a non-international armed conflict. Casualties so far in 2014 represent the highest total since the height of sectarian conflict in 2006-2007.
...
UNHCR Position on Returns
27. As the situation in Iraq remains highly fluid and volatile, and since all parts of the country are reported to have been affected, directly or indirectly, by the ongoing crisis, UNHCR urges States not to forcibly return persons originating from Iraq until tangible improvements in the security and human rights situation have occurred. In the current circumstances, many persons fleeing Iraq are likely to meet the 1951 Convention criteria for refugee status. When, in the context of the adjudication of an individual case of a person originating from Iraq, 1951 Convention criteria are found not to apply, broader refugee criteria as contained in relevant regional instruments or complementary forms of protection are likely to apply. In the current circumstances, with massive new internal displacement coupled with a large-scale humanitarian crisis, mounting sectarian tensions and reported access restrictions, particularly into the Kurdistan Region of Iraq, UNHCR does in principle not consider it appropriate for States to deny persons from Iraq international protection on the basis of the applicability of an internal flight or relocation alternative. Depending on the profile of the individual case, exclusion considerations may need to be examined.”
34.According to Human Rights Watch’s World Report 2015 on Iraq, issued on 29 January 2015:
“Abuses by Security Forces and Government-Backed Militias
In March, former Prime Minister al-Maliki told senior security advisers that he would form a new security force consisting of three militias: Asa’ib, Kita’ib Hezbollah, and the Badr Brigades. These militias kidnapped and murdered Sunni civilians throughout Baghdad, Diyala, and Hilla provinces, at a time when the armed conflict between government forces and Sunni insurgents was intensifying.
According to witnesses and medical and government sources, pro-government militias were responsible for the killing of 61 Sunni men between June 1 and July9,2014, and the killing of at least 48 Sunni men in March and April in villages and towns in an area known as the ‘Baghdad Belt’. Dozens of residents of five towns in the Baghdad Belt said that security forces, alongside government-backed militias, attacked their towns, kidnapping and killing residents and setting fire to their homes, livestock, and crops.
A survivor of an attack on a Sunni mosque in eastern Diyala province in August said that members of Asa’ib Ahl al-Haqq entered the mosque during the Friday prayer, shot and killed the imam, and then opened fire on the other men in the mosque, killing at least 70 people. Three other Diyala residents reported that Asa’ib Ahl al-Haqq had kidnapped and killed their relatives.
Iraqi security forces and militias affiliated with the government were responsible for the unlawful execution of at least 255 prisoners in six Iraqi cities and towns in June. The vast majority of security forces and militias are Shia, while the murdered prisoners were Sunni. At least eight of those killed were boys under age 18.”
35.The Briefing Notes of 9 February 2015 issued by the German Federal Office for Migration and Asylum, Information Centre Asylum and Migration, stated in relation to Iraq:
“Security situation
Daily reports of armed clashes and suicide bombings continue unabated. A suicide attack carried out in Baghdad on 9 February 2015 killed at least 12 people. More than 40 people were wounded. The attack was carried out in the Kadhimiya district which has a large Shia population. So far, no one has claimed responsibility for the attack. On 7 February 2015, more than 30 persons were killed and more than 70 were wounded in suicide bombings in Baghdad. The majority of casualties were reportedly Shia Muslims and security officers.
The night-time curfew was lifted in Baghdad on 7 February 2015.
The Islamic State (IS) is said to have killed 48 people on its territory in Iraq since the beginning of the year, the vast majority in the city of Mosul (Ninive province) and in the suburbs surrounding Mosul.
...”
36.The United States (US) State Department’s Country Reports on Human Rights Practices for 2014, issued in February 2015, noted the following in respect of Iraq:
“ISIL committed the overwhelming number of serious human rights abuses. In a systematic and widespread fashion, ISIL targeted government officials and members of the security forces as well as civilians, especially Shia, religious and ethnic minorities, women, and children. To a lesser extent, Iraqi security forces (ISF) and Shia militias also reportedly committed abuses in the disorganized security environment.
Destabilizing violence and fighting between government forces and ISIL escalated in Anbar Province at the end of 2013 and spread to other provinces during the year. On June 9, ISIL launched an assault and quickly captured Mosul, the second largest city. Subsequently ISIL forces took control of large areas of Anbar, Ninewa, Salah ad Din, and Diyala provinces. Armed clashes between ISIL and the ISF, including the Peshmerga – the armed forces of the Kurdistan regional government – caused massive internal displacements, with the United Nations estimating more than two million persons forced to flee their homes nationwide. The humanitarian crisis worsened in July and August, as ISIL targeted ethnic and religious minorities, perpetrated gender-based violence, sold women and children off as slaves, recruited child soldiers, and destroyed civilian infrastructure.
Severe human rights problems persisted. Large-scale and frequent killings, the vast majority of which ISIL carried out, destabilized the country. They included the June 10 mass killing of more than 600 inmates, almost all Shia, at Badoush prison near Mosul. ISIL also killed, abducted, and expelled from their homes members of religious and ethnic groups, including Christians, Shia Shabak, Shia Turkmen, and Yezidis. Simultaneously, but on a much smaller scale, there were unverified reports of government actors and Shia militias killing Sunni prisoners.”
37.On 9 March 2015 Iraqi News (IraqiNews.com) reported that the US Chief of Staff Martin Dempsey, at a joint press conference with the Iraqi Minister of Defence, Khalid al-Ubaidi, had said: “Protecting Baghdad and al-Mosul Dam as well as Haditha district are among the top priorities of the International Coalition.”
38.The United Kingdom Home Office’s Country Information and Guidance on the security situation in Iraq, issued in November 2015, stated as follows under the heading “Policy Summary”:
“The security situation in the ‘contested areas’ of Iraq, identified as the governorates of Anbar, Diyala, Kirkuk, Ninewah and Salah Al-din, has reached such a level that a removal to these areas would breach Article 15(c) of the Qualification Directive (QD).
The security situation in the parts of the ‘Baghdad Belts’ (the areas surrounding Baghdad City), which border Anbar, Salah Al-Din and Diyala governorates, has reached such a level that a removal to these areas would breach Article 15(c) of the QD.
In the rest of Iraq – the governorates of Baghdad (including Baghdad City), Babil, Basrah, Kerbala, Najaf, Muthanna, Thi-Qar, Missan, Quadissiya and Wassit, and the Kurdistan Region of Iraq (KRI) which comprise Erbil, Sulaymaniyah and Dahuk governorates – indiscriminate violence does not reach such a level that is in general a 15(c) risk. However, decision makers should consider whether there are particular factors relevant to the person’s individual circumstances which might nevertheless place them at enhanced risk.
The security situation remains fluid and decision makers should take into account up-to-date country information in assessing the risk.”
B.Situation of persons who collaborated with foreign armed forces
39.The United Kingdom Home Office’s Country of Origin Information Report on Iraq of 10 December 2009 stated:
“... civilians employed or otherwise affiliated with the MNF-I [Multi-National Force in Iraq] are at risk of being targeted by non-state actors. In areas where security has improved over the last year, the risks to persons affiliated with the MNF-I have diminished to some extent, but are still considerable given the continued influence of extremist groups. In areas where AQI [al-Qaeda in Iraq] and other insurgent groups continue to be present, in particular in Ninewa and Diyala Governorates, the risk of being targeted remains much higher. The risk is particularly high for persons working as interpreters for the MNF-I given their exposure and possible involvement in military activities, e.g. arrests, raids or interrogation of insurgent or militia members. Reportedly, some 300 interpreters have been killed in Iraq since 2003. There is also a heightened risk of attack in areas with a high concentration of foreign personnel such as the IZ [International Zone] or military compounds, particularly at checkpoints approaching these facilities and when travelling in military convoys ...
...
Iraqi nationals employed by foreign companies are at risk of being attacked when outside a secure compound such as the IZ or a military base.”
40.The interim report of 14 January 2011 issued by the Norwegian Country of Origin Information Centre (Landinfo) and the Swedish Migration Agency on their fact-finding mission to Iraq observed that there had been a number of incidents where Iraqis who had worked for Americans had been killed. The United States had an assistance programme for Iraqis who had been subjected to threats for working at the embassy in Baghdad. Recruitment was carried out only after careful scrutiny, which could take three to six months.
41.The United Kingdom Home Office’s Operational Guidance Note on Iraq, of 22 August 2014, stated the following:
“3.10.9 Conclusion. Persons perceived to collaborate or who have collaborated with the current Iraqi Government and its institutions, the former US/multi-national forces or foreign companies are at risk of persecution in Iraq. This includes certain affiliated professionals such as judges, academics, teachers and legal professionals. A claimant who has a localised threat on the basis that they are perceived to be a collaborator may be able to relocate to an area where that localised threat does not exist. The case owner will need to take into consideration the particular profile of the claimant, the nature of the threat and how far it would extend, and whether it would be unduly harsh to expect the claimant to relocate. A claim made on these grounds may be well founded and a grant of refugee status due to political opinion or imputed political opinion may be appropriate depending on the facts of the case.”
42.According to Amnesty International Deutschland’s 2015 Report on Iraq (translation from German original at https://www.amnesty.de/jahresbericht/2015/irak):
“ISIS soldiers also killed Sunnis, blaming them for insufficient support or alleging that they were working for the Iraqi government and their security forces or were at the service of the US troops during the war in Iraq.”
C.Ability of the Iraqi authorities to protect their citizens
43.According to the report of 5 May 2014 by Landinfo and the Migration Agency on “Iraq: Rule of Law and the Security and Legal System”:
“The Iraqi constitution of 2005 guarantees a security system protected by apolitical and non-sectarian security forces. Also in numbers the forces are well disposed to protect the people of Iraq. However, politicization of the Iraqi security forces (ISF), corruption, sectarianism and lack of proper training blur the picture.
The legal system is also outlined in the constitution, where it is described as an independent system above all powers except the law. However, in reality the police and courts (and other institutions) still have shortcomings.
The regular police are considered the most corrupt institution of the security and legal system and thus people are apprehensive to report crimes, even though there are indications that today police work is better performed than in 2010.
Corruption seems to be less common among judges than the police, but the judiciary is not independent as was envisaged by the constitution and still remained in 2010. Courts may be under pressure from influential politicians, tribes and other actors (like militias and criminals). A considerable lack or shortage of judges combined with the many arrests because of the insurgency has led to a large backlog, which is negative for both the defendants and the injured parties.
Not only cases are pending, but also draft laws and this does not improve the rule of law. For example, the judiciary is not yet governed by the law envisaged in the constitution.
There are some remedies for the people to lodge complaints against the authorities, but perhaps the most important institution to deal with these complaints, the High Commission for Human Rights established in 2012, is still not functioning properly.
The remedies against corruption are weaker today than in 2010, mostly due to political interference and limited capacity.
There are legal measures to punish misconducting officials, but implementing them is not always easy – even if there is a will.
All in all, the worsened security situation and the political tug of war influence each other, and leads to deficits in both the capacity and the integrity of the Iraqi security and legal system – more so than in 2010 when we last assessed the rule of law in Iraq. The system still works, but the shortcomings seem to increase.”
44.The US State Department’s Country Reports on Human Rights Practices for 2014, issued in February 2015, stated the following on the role of the police and the security apparatus in Iraq:
“Due to attacks and offensive operations by the Islamic State of Iraq and the Levant (ISIL) during the year, the government lost effective control over large areas of the country, principally in Arab Sunni and some mixed Sunni/Shia areas. Control over the security forces was inconsistent, and the deterioration of the security situation led to a re-emergence of Shia militias, which operated largely outside the authority of the government.
...
Widespread corruption at all levels of government and society exacerbated the lack of effective human rights protections.
...
International human rights organizations criticized the increasingly sectarian nature of militia activity and the lack of sufficient government oversight. Prime Minister al-Abadi repeatedly called for the elimination of independent militias and ordered all militia groups brought under ISF authority. Shia religious leaders also called for Shia volunteers to fight under the command of the security forces and condemned violence against civilians, including destruction of personal property. Nevertheless, in the vast majority of cases, Shia militias operated independently and without oversight or direction from the government.
...
Problems persisted within the country’s provincial police forces, including corruption and the unwillingness of some officers to serve outside the areas from which they originated. The army and federal police recruited and deployed soldiers and police officers on a nationwide basis, reducing the likelihood of corruption related to personal ties to tribes or militants. This practice led to complaints from local communities that members of the army and police were abusive because of ethnosectarian differences.
Security forces made limited efforts to prevent or respond to societal violence.”
D.Internal relocation in Iraq
45.The United Kingdom Home Office’s Country Information and Guidance on Iraq concerning internal relocation (and technical obstacles), issued on 24 December 2014, included the following under the heading “Policy Summary”:
“Return arrangements from the UK
1.4.1 Current return arrangements from the UK to Iraq, either via Erbil or Baghdad, do not breach Article 3 of the ECHR.
Obtaining civil documentation in a new place of residence
1.4.2 The Civil Status ID Card and the Nationality Certificate are two of the most important forms of civil documentation, because they directly or indirectly provide access to a range of economic and social rights.
1.4.3 A person returned to Iraq who was unable to replace their Civil Status ID Card or Nationality Certificate would likely face significant difficulties in accessing services and a livelihood and would face destitution which is likely to reach the Article 3 threshold.
1.4.4 However, persons from non-contested areas of Iraq who are returned either to Erbil or Baghdad would in general be able to reacquire their Civil Status ID Card, Nationality Certificate and other civil documentation by either returning to their place of origin or by approaching relevant government and non-government agencies found across the non-contested areas.
1.4.5 Persons from contested areas of Iraq who are returned to Baghdad would in general be able to reacquire their Civil Status ID Card, Nationality Certificate and other civil documentation by approaching relevant agencies found in Baghdad and Najaf.
1.4.6 Persons in the UK seeking to reacquire their Civil Status ID Card and Nationality Certificate would be able to approach the Iraqi embassy in London for assistance, providing they can first prove their identity. This would generally be possible for persons compulsorily returned to Baghdad, as they would be in possession of a valid or expired passport of Laissez Passer document.
1.4.7 For those unable to prove their identity to the Iraqi embassy, the individual may be able to reacquire documents via a proxy in Iraq, e.g. from a relative or lawyer with a power of attorney.
Relocation to the Kurdistan Region of Iraq (KRI)
1.4.8 Persons originating from KRI will in general be able to relocate to another area of the KRI.
1.4.9 Persons of Kurdish ethnicity who originate from outside of KRI and who are returned to Baghdad will in general be able to relocate to KRI providing they first regularise their documentation in Baghdad (or elsewhere).
1.4.10 For non-Kurdish persons with established family or other links to KRI (e.g. tribal or previous employment), internal relocation will usually be a reasonable alternative.
1.4.11 If a person is of Arab or Turkmen ethnic origin, internal relocation to KRI will be difficult. Internal relocation to Baghdad or the south is more likely to be reasonable. If this is not reasonable due to the particular circumstances of the case, a grant of protection may be appropriate.
Relocation to Baghdad and the south
1.4.12 In general Arab Sunnis; Kurds and Shias will be able to relocate to Baghdad, where it is noted there is a sizable Arab Sunni IDP population.
1.4.13 Shia Muslims seeking to internally relocate will in general be able to relocate to southern governorates. Sunni Muslims may be able to relocate to the south.
1.4.14 In general currently there are no insurmountable barriers preventing Iraqi nationals from relocating to Baghdad or the governorates in the south, although all cases need to be decided on their individual facts.”
46.The United Kingdom Home Office’s Country Information and Guidance on Iraq concerning internal relocation, issued in November 2015, stated the following under the heading “Policy Summary”:
“Possibility of internal relocation
In general, relocation to Baghdad from Anbar, Diyala, Kirkuk (aka Ta’min), Ninewah and Salah Al-din, and the north, west and east parts of the ‘Baghdad Belts’ (the ‘contested areas’) is possible. Decision makers will, however, need to take into account all the relevant personal factors which will impact on a person’s ability to relocate, and the up-to-date country information.
The southern governorates (Basra, Kerbala, Najaf, Muthana, Thi-Qar, Missan, Qadissiya and Wassit) do not reach the threshold of 15(c) and there is no real risk of harm to ordinary civilians travelling to those areas from Baghdad. It is likely to be reasonable in general for persons from the ‘contested areas’ (or elsewhere) to relocate to Baghdad, although decision makers must take into account a person’s individual circumstances and up to date country information.
Relocation to the Iraqi Kurdistan Region (IKR) is possible in general for Iraqi Kurds from IKR and those not from the IKR via Baghdad, although decision makers must take into account relevant factors which will impact on their ability to relocate.
In general, it is not reasonable for non-Kurds who do not originate from the IKR to relocate to the IKR.
Feasibility of return
A person can only be returned to Baghdad city if they have an Iraqi passport (current or expired) or a laissez-passer. If they do not have one of these documents then return is not ‘feasible’.
A lack of these travel documents is a technical obstacle to return, and is not a reason itself to grant protection.
Only when return is feasible (i.e. the person has or can obtain a current or expired passport or a laissez-passer) can the issue of documentation (or lack of it) be considered in any assessment of protection.
Persons originating from the IKR who have been pre-cleared by the IKR authorities are returned to Erbil Airport, do not require a passport or a laissez-passer.”
52.According to the UNHCR standards, while the burden of proof lies with the asylum-seeker, owing to the special circumstances of an asylum claim, the State official who examines an asylum claim carries with the asylum-seeker a shared duty to “ascertain and evaluate all relevant facts”.
53.The relevant parts of the UNHCR 1998 Note on Burden and Standard of Proof in Refugee Claims state as follows:
“II. Burden of Proof
5. Facts in support of refugee claims are established by adducing proof or evidence of the alleged facts. Evidence may be oral or documentary. The duty to produce evidence in order affirmatively to prove such alleged facts, is termed ‘burden of proof’.
6. According to general legal principles of the law of evidence, the burden of proof lies on the person who makes the assertion. Thus, in refugee claims, it is the applicant who has the burden of establishing the veracity of his/her allegations and the accuracy of the facts on which the refugee claim is based. The burden of proof is discharged by the applicant rendering a truthful account of facts relevant to the claim so that, based on the facts, a proper decision may be reached. In view of the particularities of a refugee’s situation, the adjudicator shares the duty to ascertain and evaluate all the relevant facts. This is achieved, to a large extent, by the adjudicator being familiar with the objective situation in the country of origin concerned, being aware of relevant matters of common knowledge, guiding the applicant in providing the relevant information and adequately verifying facts alleged which can be substantiated.
III. Standard of Proof – General Framework and Definitional Issues
7. In the context of the applicant’s responsibility to prove facts in support of his/her claim, the term ‘standard of proof’ means the threshold to be met by the applicant in persuading the adjudicator as to the truth of his/her factual assertions. Facts which need to be ‘proved’ are those which concern the background and personal experiences of the applicant which purportedly have given rise to fear of persecution and the resultant unwillingness to avail himself/herself of the protection of the country of origin.
8. In common law countries, the law of evidence relating to criminal prosecutions requires cases to be proved ‘beyond reasonable doubt’. In civil claims, the law does not require this high standard; rather the adjudicator has to decide the case on a ‘balance of probabilities’. Similarly in refugee claims, there is no necessity for the adjudicator to have to be fully convinced of the truth of each and every factual assertion made by the applicant. The adjudicator needs to decide if, based on the evidence provided as well as the veracity of the applicant’s statements, it is likely that the claim of that applicant is credible.
9. Obviously the applicant has the duty to tell the truth. In saying this though, consideration should also be given to the fact that, due to the applicant’s traumatic experiences, he/she may not speak freely; or that due to time lapse or the intensity of past events, the applicant may not be able to remember all factual details or to recount them accurately or may confuse them; thus he/she may be vague or inaccurate in providing detailed facts. Inability to remember or provide all dates or minor details, as well as minor inconsistencies, insubstantial vagueness or incorrect statements which are not material may be taken into account in the final assessment on credibility, but should not be used as decisive factors.
10. As regards supportive evidence, where there is corroborative evidence supporting the statements of the applicant, this would reinforce the veracity of the statements made. On the other hand, given the special situation of asylum-seekers, they should not be required to produce all necessary evidence. In particular, it should be recognised that, often, asylum-seekers would have fled without their personal documents. Failure to produce documentary evidence to substantiate oral statements should, therefore, not prevent the claim from being accepted if such statements are consistent with known facts and the general credibility of the applicant is good.
11. In assessing the overall credibility of the applicant’s claim, the adjudicator should take into account such factors as the reasonableness of the facts alleged, the overall consistency and coherence of the applicant’s story, corroborative evidence adduced by the applicant in support of his/her statements, consistency with common knowledge or generally known facts, and the known situation in the country of origin. Credibility is established where the applicant has presented a claim which is coherent and plausible, not contradicting generally known facts, and therefore is, on balance, capable of being believed.
12. The term ‘benefit of the doubt’ is used in the context of standard of proof relating to the factual assertions made by the applicant. Given that in refugee claims, there is no necessity for the applicant to prove all facts to such a standard that the adjudicator is fully convinced that all factual assertions are true, there would normally be an element of doubt in the mind of the adjudicator as regards the facts asserted by the applicant. Where the adjudicator considers that the applicant’s story is on the whole coherent and plausible, any element of doubt should not prejudice the applicant’s claim; that is, the applicant should be given the ‘benefit of the doubt’.
IV. Standard of Proof in Establishing the Well-Foundedness of the Fear of Persecution
13. The phrase ‘well-founded fear of being persecuted’ is the key phrase of the refugee definition. Although the expression ‘well-founded fear’ contains two elements, one subjective (fear) and one objective (well-founded), both elements must be evaluated together.
14. In this context, the term ‘fear’ means that the person believes or anticipates that he/she will be subject to that persecution. This is established very largely by what the person presents as his/her state of mind on departure. Normally, the statement of the applicant will be accepted as significant demonstration of the existence of the fear, assuming there are no facts giving rise to serious credibility doubts on the point. The applicant must, in addition, demonstrate that the fear alleged is well-founded.
15. The drafting history of the Convention is instructive on this issue. One of the categories of ‘refugees’ referred to in Annex I of the IRO Constitution, is that of persons who ‘expressed valid objections to returning’ to their countries, ‘valid objection’ being defined as ‘persecution, or fear, based on reasonable grounds of persecution’. The IRO Manual declared that ‘reasonable grounds’ were to be understood as meaning that the applicant has given ‘a plausible and coherent account of why he fears persecution’. The Ad Hoc Committee on Statelessness and Related Problems adopted the expression ‘well-founded fear of persecution’ rather than adhered to the wording of the IRO Constitution. In commenting on this phrase, in its Final Report the Ad Hoc Committee stated that ‘well-founded fear’ means that a person can show ‘good reason’ why he fears persecution.
Threshold
16. The Handbook states that an applicant’s fear of persecution should be considered well-founded if he ‘can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable...’.
17. A substantial body of jurisprudence has developed in common law countries on what standard of proof is to be applied in asylum claims to establish well-foundedness. This jurisprudence largely supports the view that there is no requirement to prove well-foundedness conclusively beyond doubt, or even that persecution is more probable than not. To establish ‘well-foundedness’, persecution must be proved to be reasonably possible. Attached as an annex is an overview of some recent jurisprudence, by country.
Indicators for assessing well-foundedness of fear
18. While by nature, an evaluation of risk of persecution is forward-looking and therefore inherently somewhat speculative, such an evaluation should be made based on factual considerations which take into account the personal circumstances of the applicant as well as the elements relating to the situation in the country of origin.
19. The applicant’s personal circumstances would include his/her background, experiences, personality and any other personal factors which could expose him/her to persecution. In particular, whether the applicant has previously suffered persecution or other forms of mistreatment and the experiences of relatives and friends of the applicant as well as those persons in the same situation as the applicant are relevant factors to be taken into account. Relevant elements concerning the situation in the country of origin would include general social and political conditions, the country’s human rights situation and record; the country’s legislation; the persecuting agent’s policies or practices, in particular towards persons who are in similar situation as the applicant, etc. While past persecution or mistreatment would weigh heavily in favour of a positive assessment of risk of future persecution, its absence is not a decisive factor. By the same token, the fact of past persecution is not necessarily conclusive of the possibility of renewed persecution, particularly where there has been an important change in the conditions in the country of origin.”
54.The UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (originally issued in 1979 and most recently reissued in 2011; hereinafter “the UNHCR Handbook”) develop further the principles spelled out in the 1998 Note. Paragraphs 196 and 197 of the Handbook state as follows:
“196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.”

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5.The applicant was born in 1976 and lives in Narva, Estonia.
A.The applicant’s arrest
6.On 29 April 2009, some time before 6 p.m., the police emergency call centre received a call about two young men who were at the junction of Kreenholmi and Kerese streets in Narva, Estonia. The caller reported that one of the men was carrying a knife and that the other was obviously drunk and had difficulty walking. He considered the men to be dangerous to passers-by. At 5.55 p.m. Officers S.B. and E.V., who were on patrol duty, were given instructions to respond to the call. At around 6 p.m. they found the men – the applicant and M.Z. – at a public playground.
7.The applicant’s version of events relating to his encounter with the police, as it appears from his application and the documents submitted to the Court, is the following. At around 6 p.m. on 29 April 2009, he and M.Z. were waiting for an acquaintance, Y.B., at a playground. Both the applicant and M.Z. were drunk. Two policemen approached him. He did not behave aggressively or swear at them. The applicant spoke with the officers. He did not remember exactly what they talked about, except that it concerned a knife and that the applicant said that he did not have one. He also recalled that the name of one of the policemen was Andrei (this later turned out to be S.B.). He was then punched on the jaw by S.B. and fell to the ground, his face landing in a hole in the pavement. He momentarily lost consciousness, and when he attempted to get up he received another blow on the back, close to the bottom of his neck. One of the police officers put his knee on his neck and pushed him to the ground. He was handcuffed and then the officers started punching and kicking him all over his body and head. He lost consciousness after the beating and only regained it at the police station.
8.According to the Government, the criminal investigation carried out by the domestic authorities showed that the applicant’s arrest had taken place in the following manner. The police officers who found the applicant and M.Z. at the playground had been given information about two men, one of whom was possibly carrying a knife, while the other one was reportedly drunk and walking with difficulty. At the playground, the applicant behaved aggressively and used obscene language. Officer E.V. tried to talk to the applicant, but the applicant acted in an erratic manner, and started waving his hands around and shouting at the officers. Officer E.V. decided to force him to the ground and keep him there until a police patrol vehicle arrived. He handcuffed the applicant with the help of two police officers, S.J. and N.S., who had arrived by car. While he was being kept on the ground, the applicant attempted to get up, kicked out and continued to utter obscenities at the officers. The police officers did not use excessive force against him and did not beat him. The applicant continued to resist the police while he was being put into a police van, which was last to arrive and was carrying Officers S.T. and J.S. Some force therefore had to be used to get the applicant in the van. In the course of that process, the applicant hit his left temple against the door of the van. The applicant also remained aggressive during his transportation. The officers on the front seats of the van heard what sounded like something being pounded against another object from the back compartment.
B.The applicant’s detention at the police station and his admission to hospital
9.The applicant’s account of the events during his detention, as it appears from his application and the documents submitted to the Court, is the following. When he woke up in a room next to the detention cells in the police station, he saw the two police officers who had been present at the playground in front of him. He was lying on the floor with his hands cuffed. When he attempted to stand up, S.B. kneed him in the area of his left ear. When the applicant tried to sit on a chair, he was knocked off his feet and ordered to sit on the floor. After E.V. left the room, S.B., who had on black leather gloves, started systematically punching and kicking the applicant. The applicant stood up and fell over several times. At one point, he was taken to the toilet, the sink tap was turned on and his head was put under the water. He was then taken back to the detention room. While passing the detention cells, he asked those inside whether they would confirm anything they had seen or heard. In the detention room, the applicant sat on the chair and S.B. punched him again several times. When E.V. returned, the applicant was knocked off the chair and beaten again on every part of his body. S.B. continued beating him after E.V. left the room. The applicant lost consciousness for a while and when he came around he had blood on his face and was eventually put on the chair. His handcuffs were removed and he was allowed to go to the toilet, where he washed himself. He returned to the detention room and was then placed in a cell to sober up. After a while, an ambulance came and he was taken to a hospital in the company of different policemen. He had blood on his clothes, but he threw away the T-shirt, while his mother washed his trousers.
10.According to the Government, the facts as they were established in the subsequent criminal investigation showed the following. The applicant, who was still handcuffed, continued to behave aggressively at the police station. He ran up to detainees in other cells, shouting that he was being beaten by the police. As he did not obey orders to calm down and stay still, physical force had to be used to make him sit or to place him on the floor. When he began to calm down, he was placed on a chair with his hands cuffed. He suddenly lost his balance and fell off the chair face down. The police officers lifted him up and put him back on the chair. Shortly after, the applicant again fell on the floor. In the interests of the applicant’s safety, the officers left him sitting on the floor. The police removed the applicant’s handcuffs as soon as he calmed down. He was then taken to a cell to sober up. A test showed that the applicant was in a moderate state of alcoholic intoxication.
11.At 7.45 p.m. Officers S.B. and J.S. drafted a report that the applicant had been taken from 10 Kreenholmi Street to recover from alcoholic intoxication. The report stated that the applicant had been in a state of alcoholic intoxication, had walked with difficulty, had fallen over and had been aggressive. It also stated that the applicant’s face had been dirty and that he had had abrasions on his head.
12.At 1.42 a.m. on 30 April 2009 Officer P.S. called an ambulance to the police station at the request of the applicant. According to ambulance registration card no. 1419, the applicant complained of pain in the left part of his head and the right wrist, as well as nausea, vomiting and loss of hearing in the left ear. The findings on examination were that he had haematomas on the left part of the cranium and a swollen right wrist and was in a state of alcoholic intoxication. He was diagnosed with an intracranial injury and a fracture of the right hand and wrist. The applicant was taken to hospital.
13.Later at the hospital, according to patient registration card no. 4460, dated 30 April 2009, the applicant complained about losing consciousness and vomiting. The findings on examination were that he had haematomas and an oedema in the area of the left ear and eye. He was diagnosed with concussion and being in a state of alcoholic intoxication.
14.At 2.15 a.m. on 30 April 2009 other police officers, not those who had allegedly beaten the applicant at the police station, took a statement from him at the hospital. At 2.40 a.m. those officers drafted a misdemeanour report where they stated that the applicant had been drunk in a public place, Kreenholmi Street, and had been brawling, shouting and using obscene language, actions which amounted to a breach of the peace and a disturbance to others.
15.At 6.26 a.m. on 30 April 2009 a computer tomography scan was performed on the applicant. The results showed “temporal extracranial swelling on the left side, no haemorrhage, no intracranial pathology or haemorrhage, ventricular system symmetric, no midline shift, cranial bones intact and paranasal sinuses, middle ear spaces aerated”. He was then released from hospital.
16.On 1 May 2009 the applicant, when close to home, called an ambulance. Ambulance registration card no. 1454 shows that he complained of severe headaches, dizziness, nausea, vomiting and pain in the neck. The findings on examination were that he had a haematoma around the left ear, an oedema in the area of the left eye, and was in a state of alcoholic intoxication. He was diagnosed with concussion and taken to hospital. He was examined at the hospital by a traumatology doctor who found paraorbital haematoma and swelling around the left eye, bruises on the neck and upper limbs, a smell of alcohol from the mouth, dysarthria, and that he staggered. He was diagnosed with concussion and being in a state of alcoholic intoxication. The applicant did not wish to stay in hospital.
C.The investigation into the applicant’s allegations of ill-treatment
17.On 30 April 2009 the applicant complained to the police of his ill-treatment. He alleged that police officers had beaten him while arresting him, and that this had also happened later, while he was in detention at the police station. The police officer on duty refused to deal with the complaint and said it had to be submitted to a prosecutor’s office. The prosecutor also refused to deal with the complaint and said it had to be submitted to the police. When the applicant returned to the police station, a police investigator allowed him to file his complaint.
18.On 5 May 2009 the applicant sent a letter to the prosecutor’s office related to the same circumstances. On the same day the police decided to open a criminal investigation based on his complaint. According to the Government, the next day, on 6 May, the police investigator asked the hospital for the applicant’s medical records.
19.On 13 May 2009 the applicant made a statement to the police investigator and gave his account of events (see paragraphs 7 and 9 above).
20.On the same day, the investigator took a statement from A.P., who had been held in the police station’s sobering-up cell until 9 p.m. on 29 April 2009. He explained that he had looked through the eyehole of his cell door and had seen that a young man, with his hands cuffed behind his back, had been taken to the room in front of the sobering-up cells. Officer S.B., whose name he saw on his nametag, knocked the young man off his feet. He attempted to stand up, but the officer stopped him and ordered him to stay on the floor. Each time the young man attempted to stand up he was again knocked off his feet. Both men used foul language. He also heard someone being slapped on his body and saw how the police officer swung his hands towards the detainee. He understood from these gestures that the young man was being hit. The young man was then taken to a neighbouring room. After that, A.P. heard the man shouting and begging for his beating to stop. According to A.P. there was certainly some kind of fight between the young man and the officers. Subsequently, the man was put in a cell, where he continued to shout and requested a doctor, but he went quiet after a while.
21.On 15 May 2009 the applicant’s legal representative sent a letter to the police requesting, among other measures, that the two police officers who had arrested the applicant, taken him to the police department and used force against him at the police station be shown to the applicant for identification. He also wanted the applicant to be taken to the police station so that his statements could be compared with the actual layout of the premises and so he could relate on the spot what happened. He further requested that the applicant’s mother to be questioned about the applicant’s state of health when he had left home on 29 April and when he had returned on 30 April; that the ambulance doctor and nurse be questioned as witnesses; and that a forensic medical examination of the applicant’s injuries be ordered.
22.On 15 May 2009 the police investigator took a statement from M.S., who had been held at the police station’s sobering-up cell on 29 April 2009. He said that while he had heard that somebody in the neighbouring room had at one point shouted for help and that the police officers had shouted back at him, he had not seen police officers beating anybody when he had from time to time looked through the eyehole.
23.On 15 May 2009 the police investigator also took statements from Police Officer S.J., who had arrived in a police car with Officer N.S. at the scene of the applicant’s arrest. While still in the police car, they had seen Officer E.V. talking to the applicant and that there had then been a scuffle between the applicant and the officer. S.J. and N.S. ran out of the car, but by the time they reached the scene the applicant had already been placed on the ground. He was aggressive and uttered obscenities at E.V. Officer S.J. kept him on the ground by using his knee to restrict the applicant’s movement. Together with N.S., he helped E.V. to cuff the applicant’s hands behind his back as the applicant was still putting up physical resistance. The applicant attempted to get up, continued to use indecent language and did not obey orders. The officers therefore kept the applicant on the ground until the police van arrived to transport him to the police station. No other force was used against him. S.J. added that at some point an elderly man had approached them and attempted to give them some money which allegedly belonged to the applicant. He was told that it was not necessary at that time to hand over the money. S.J. further stated that at the time of the events in question Officer S.B. had been in the vicinity talking to another young man who had a knife.
24.On 18 May 2009 the police investigator took a statement from R.L., who had been detained in the police station’s sobering-up cell on 29 April 2009. He told the investigator that he had heard through the door how officers had dragged somebody into the room facing the cells. He had heard how the officers provoked that person into using rude language, shouted at him, themselves using foul language, and then started to beat him. R.L. did not remember exactly in what way the officers had hit the person, but thought that it involved punches and kicks. The person had attempted to stand up, but had not been allowed to do so as he had been knocked off his feet. He had then been taken to another room.
25.On 18 May 2009 the police investigator took a statement from M.Z. As to the arrest, he explained that before the events that happened at around 6 p.m. on 29 April 2009, he had had several beers with the applicant. They had just sat down at the playground behind some buildings when three police officers arrived in a police car. One of the officers came to talk to him and two went to the applicant and pushed him over. One of the policemen put his leg on the applicant’s neck, while the other attempted to stand on the applicant’s legs. M.Z. was taken to where the applicant had been beaten. The applicant was lying on the asphalt with his face down in some sand as there was a hole in the asphalt. After a while a police van arrived with two police officers. The applicant’s hands were put behind his back and he was handcuffed, lifted onto his feet and moved towards the van. In the course of that process, one of the police officers slapped the applicant on the head. He was put in the van and taken to the police station.
26.Regarding the events at the police station, M.Z. explained that the applicant had been taken to a room where the cells were located. M.Z. himself had been left in the corridor which was situated immediately after the detention section. He could see through the open doors how the applicant was put on the floor right in front of the doors and two policemen started to beat him. They hit the applicant with their elbows and kicked him on the back of the head and elsewhere. No other police officers entered the room. The doors were open, as was the door to the duty room, but no one came out of that room. After some time, one of the police officers who had been beating the applicant came to M.Z. and took him to an office to make a statement. He gave a statement against the applicant because he was afraid as he had seen how the police officer had beaten his friend.
27.On 18 May 2009 the police investigator also took a statement from P.S., a police officer on duty at the police station at the time of the applicant’s detention. He explained that when he had arrived at work at 8 p.m. on 29 April 2009 Officer E.V. had told him that the person who had been put in a temporary detention cell, that is, the applicant, might request that an ambulance be called and that he should be checked from time to time. During the night, the applicant went by himself to the toilet, complained of pain but declined an offer for an ambulance to be called. When during the night he was about to be released he requested an ambulance and P.S. called it for him. P.S. overheard the applicant telling the doctor and nurse that he had been beaten by police officers. When P.S. asked who had beaten the applicant, he replied that it had been the police officers who had taken him to the police station. When P.S. asked where the applicant had been beaten, he replied that it had happened on the street during his arrest. The ambulance then took him to the hospital.
28.On 27 May 2009 the police investigator took a statement from K.I., who had been on duty at the police station’s command centre at the time of the events in question. He said that when he had passed the detention room on his way out, he had seen the applicant sitting on the floor of the detention room with his hands cuffed. He was using offensive language, behaving aggressively and was intoxicated. K.I. said that the applicant had not been beaten in his presence. The applicant had not complained of being beaten or requested an ambulance.
29.On 2 June 2009 the police investigator took a statement from one of the suspects, Police Officer S.B. According to him, when he arrived with Officer E.V. on foot at the playground between the buildings at 10 Kreenholmi Street and 18 Kerese Street, the applicant was very drunk and was having an argument over some money with another man. As he had gone further on to talk to M.Z., he had not seen what had happened between the applicant and Officer E.V. or how E.V. had forced the applicant to the ground. M.Z. did not have a knife on him, but was wearing a large sheath on his belt. S.B. had no contact with the applicant. However, he saw that the applicant continued to be aggressive after E.V. had put him on the ground, while Officers S.J. and N.S had helped E.V. to handcuff him and kept him on the ground. He also saw what happened when Officers S.T. and J.S. helped to place the applicant in the police van. The applicant was not kicked or punched. On the way to the police station thumps and bangs could be heard from the back compartment of the police van.
30.S.B. also stated that at the police station officers had put the applicant in the room facing the detention cells. The door of the room had stayed open. He was alone in the room with the applicant for about 40 minutes, but did not beat him. The applicant did not obey orders to calm down and stay on the floor. S.B. could not therefore remove his handcuffs and had to use force against the applicant to make him stay on the floor and to calm him down. At one point E.V. had helped him. When the applicant calmed down a little, he was taken to another room to take his statement and was put on a chair with his hands still handcuffed behind his back. While sitting on the chair in the detention room, the applicant suddenly fell face down off the chair. Together with E.V., who had entered the interrogation room at that moment, S.B. put the applicant back on the chair, but he fell off again and was again helped back up onto the chair. When the paperwork had been done, the applicant was taken to a cell to sober up. He did not have any bodily injuries, except for some old scratches on the head, and did not request medical assistance.
31.On 3 June 2009 the police investigator took statements from four children who had seen the applicant’s arrest (A.N., D.K., D.B. and E.G.). Three of the children (A.N., D.K., and D.B.) had seen the applicant when he was drunk and having an argument with an elderly man over some money. According to the statements of A.N. and D.K., two police officers arrived and first went to speak with the applicant and the older man. A.N., D.K., and D.B. said one of the officers had then gone further away to deal with the applicant’s companion, who was carrying a knife sheath. According to A.N. the applicant started to shout obscenities at the police officer who had stayed with him. A.N., D.K. and D.B. stated that following an exchange with the applicant the police officer forced him to the ground. A.N. and D.K. said that the officer pushed the applicant over. D.K. added that the applicant was put on the ground with his right cheek facing down. Two other officers, who had arrived by car, helped the first police officer to cuff the applicant’s hands behind his back. All of the children, including E.G., who had arrived after the applicant was put on the ground, confirmed that the officers kept the applicant on the ground by force. According to A.N. and E.G. that was done by standing on his legs, while D.K. and D.B said one officer knelt on the applicant’s neck to keep his head down, while the other stood on his legs, close to his heels. All the children said the officers had neither punched nor kicked the applicant. The applicant had attempted to get up off the ground, had continued to swear and said that the officers were hurting him. All of the children confirmed that the applicant resisted being walked over to the police van. The police used force to put the applicant in the van and he had hit his head (the left side of his head, according to D.B. and E.G.) against the door of the van.
32.On 4 June 2009 the police investigator took statements from the ambulance nurse, L.G., and the ambulance doctor, V.K. They had received a call about a man with a head trauma at the police station. The applicant, who was drunk, said that police officers had beaten him at the police station. He did not have any blood on his clothes, and he did not vomit. However, given the nature of his injuries, the doctor decided to take him to the hospital for a further examination.
33.On 8 June 2009 the other suspect, Police Officer E.V., gave a statement. He explained that he had received an order to respond to a call that a man in a state of heavy alcoholic intoxication, possibly carrying a knife, was walking along Kreenholmi Street. He had then immediately gone with his partner, Officer S.B., to where the man was presumed to be. On reaching the building at 10 Kreenholmi Street he saw the applicant was not behaving appropriately as he was waving his hands and staggering. When he approached the men, M.Z. led the applicant by the hand behind the building at 10 Kreenholmi Street. The police officers followed them and found the applicant sitting on a kerbstone with M.Z. and an elderly man, who was standing next to him. When E.V. and S.B. approached, the applicant stood up and staggered towards them. M.Z. went in a different direction. When the applicant reached the officers, E.V. asked him politely to stop. As the applicant did not react and walked past him, E.V. stopped him by taking his elbow and spoke to him again. The applicant reacted quite violently, and started arguing and waving his hands around. E.V. therefore used the radio to call for assistance to have the applicant removed so he could sober up. Meanwhile, the elderly man had approached and told the applicant to calm down because he was dealing with police officers. The applicant replied that he did not care and started throwing money on the ground, telling the man to keep it. The man picked the money up, said he did not need it and put it back in the applicant’s pockets. By that time, S.B. had gone after M.Z. E.V. attempted to calm the applicant down, but he continued to walk back and forth, waving his hands around and uttering obscenities. E.V. decided to handcuff the applicant because there were a lot of children around. The applicant was also clearly being aggressive and might have hurt other people, particularly given the possible presence of a knife. As the applicant did not let E.V. handcuff him, he forced the applicant to the ground, but did not hit him. Officers N.S. and S.J. arrived and helped in handcuffing the applicant and then took him to the police car, which was 10 metres away. The applicant did not have a knife. E.V. had no further contact with the applicant at the playground. While in the police van on the way back to the station the applicant continued his aggressive behaviour and E.V. heard what sounded like the applicant hitting himself against something.
34.E.V. further stated that at the police station the applicant shouted that the police were beating him, while S.B. tried to calm him down and conduct a search. E.V. left the room to interview M.Z. as a witness to the applicant’s breach of the peace. When E.V. returned he saw that the applicant had fallen face down off his chair and he helped S.B. to lift him back onto the chair. The applicant fell to the ground for a second time and was then left on the floor. According to E.V., the applicant intentionally tried to injure himself in order to later accuse the police. When he started to behave calmly, the handcuffs were removed. The applicant walked unaided to the sobering-up cell. He did not have any injuries that required immediate medical attention. He had haematomas in the area of his face, but he could have received those during his transportation or when he fell off the chair. The applicant’s clothes were dirty but did not have any bloodstains. E.V. informed the applicant that an ambulance would be called for him if he had any complaints about his health.
35.On the same day, 8 June 2009, the investigator took a statement from Officer N.S., who had arrived by police car with Officer S.J. at the scene of the applicant’s arrest. When N.S. arrived, Officer E.V. was already holding the applicant down on the ground. When he and S.J. reached them they saw the applicant behaving aggressively and using foul language. N.S. helped E.V. to cuff the applicant’s hands behind his back. The applicant was then lifted onto his feet and taken to the police car, but he refused to obey orders to keep still and calm down and started to kick the police car. The officers therefore removed him from the car and put him on the ground. N.S. held his feet and hands, while another officer knelt on the applicant to keep his head down. The applicant constantly resisted the officers, used bad language and behaved aggressively. He was kept down to prevent him from hurting himself and others. The officers did not beat him. The applicant continued to resist the police officers while he was being put in the police van and continued to be aggressive in the van. N.S. added that at some point an elderly man came to them offering to hand over some money which had allegedly belonged to the applicant. He was, however, informed that it was not necessary to hand over the money at that moment.
36.On the same day, 8 June 2009, the police investigator took statements from Officers S.T. and J.S., who had arrived in the police van at the scene of the applicant’s arrest. When J.S. got out of the van, he saw that Officers S.J. and N.S. were holding the applicant down on the ground. The applicant was aggressive, was shouting and swearing and attempting to break free. N.S. and S.J. took the applicant to the police van. J.S. opened the door for them. He did not see the applicant banging into anything, but while he was being transported sounds could be heard from the back compartment which sounded like something being hit. S.T. stated that he did not get out of the van. He did not hear the applicant banging against anything while he was being put in the van. At the police station he and J.S. carried the applicant to the detention room and left him in front of the cells. He did not see any blood on the applicant or his clothes. Nor did he notice any visible injuries on the applicant.
37.That day, 8 June 2009, the police investigator ordered a forensic medical assessment of the injuries on the basis of the available documentary evidence (the ambulance cards, patient registration card and the statements of the applicant, the suspects in the case and two other police officers as witnesses).
38.On 9 June 2009 the police investigator took a statement from D.R., a police officer who had been on duty at the police station on 29 April 2009. He stated that he had arrived at work at 8 p.m. At around 2 a.m. he started to work on the applicant’s documents. The applicant told D.R. that he had a bad headache and that his hands were hurting because of the handcuffs. He requested an ambulance. He also said that his head injury had been caused by other police officers. He had no blood on his clothes and did not vomit. When the applicant was taken to hospital, D.R. accompanied him.
39.On 15 June 2009 the applicant’s legal representative lodged a complaint against the police with the prosecutor’s office. He stated that the police had not taken the investigative measures he had requested on 15 May 2009 (including the presentation of the police officers for identification; a formal confrontation between the applicant and M.Z., who had allegedly witnessed him committing a breach of the peace; a comparison of the applicant’s statements with the circumstances at the scene of the alleged offence; a forensic medical examination of the applicant’s injuries; and interviews with the children that the applicant’s representative had identified and about whom he had informed the police investigator on 27 May 2009). He requested that the prosecutor take measures to secure the collection of evidence. The prosecutor rejected the complaint on 1 July 2009, stating that the applicant had not challenged any acts or orders of an investigative authority.
40.On 17 June 2009 the police investigator showed the applicant photos to identify the possible suspects. According to the record of the meeting, the applicant was shown four lists with an unspecified number of photos of police officers who were similar in appearance. The applicant identified S.B. as the police officer who had beaten him at the police station. He did not remember whether that police officer had also beaten him during his arrest. The applicant was unsure in his idenfication of E.V. from the photos. Nevertheless, he added that he would be able to identify the other officer on the basis of his features and height if he saw him in person.
41.On 6 July 2009 the police investigator took a statement from V.Z., who was the person who had called the police on 29 April 2009 about the applicant’s alleged breach of the peace. He explained that from his car on the crossroads of Kreenholmi and Kerese Street he had seen two young men crossing the street. One of them was carrying a knife. Another young man who was very drunk was walking in front of him, but was having trouble walking. He had called the police after seeing the young men and the knife as he considered them to be clearly dangerous and was worried about the safety of passers-by.
42.On 13 August 2009 the forensic medical expert delivered his opinion about the applicant’s injuries. He concluded that the injuries found on the applicant on 30 April and 1 May had been caused by blows with a blunt object or objects. The exact cause of those injuries could not be established as their description in the documents was not sufficiently detailed. Nevertheless, the expert concluded that they had been inflicted shortly before the applicant had seen a doctor, possibly on 29 April 2009. He also noted that as there were no detailed descriptions of the injuries to the upper limbs, it was not possible to conclude whether those injuries had been received in self-defence. None of the documents disclosed any information about the ethanol content in the applicant’s blood, but stated simply that the applicant had been in a state of alcoholic intoxication.
43.On 2 September 2009 the forensic expert gave an oral statement to the police investigator about his written opinion. In reply to a question about whether the applicant had had a haematoma in the area of the left eye on both 30 April and 1 May, the expert replied that there was no information about that in the documents of 30 April. He explained that it could not be excluded that the haematoma had been inflicted on 29 April, but it could also have been inflicted on 30 April or 1 May. He also stated in relation to a question about the cause of the injuries that since the documents had not contained detailed descriptions of the injuries, it was not possible to establish the exact nature of the object which had caused the traumas.
44.On 14 September 2009 the police investigator presented photos of officers to M.Z. for him to identify. According to the report of the meeting, M.Z. was shown four lists with an unspecified number of photos of police officers who were similar in appearance. M.Z. identified one of the police officers (E.V.) as the officer who, together with the other officer (S.B.), had beaten the applicant at the police station and had used force against the applicant at the playground. He was not certain in his recognition of S.B. on the photos, but pointed out another officer who, in his words, was very similar to S.B. He also stated that there had been no beating at the playground, but that the applicant’s hands had simply been twisted behind his back and that he had been forced to the ground.
45.On 8 January 2010 the applicant complained to the prosecutor that he had still not been informed of a decision to carry out a forensic medical examination, despite repeated requests. He added that he had still not been examined by an expert, even though he had complained about headaches and a loss of vision after the beating. He requested that he be sent a copy of any expert reports if one had been carried out without his knowledge. He also complained that he had not had a formal confrontation with M.Z. and the suspects in order to eliminate any contradictions in their statements. The prosecutor rejected the complaint on 14 January 2010, stating again that the applicant had not challenged any acts or orders of an investigative authority.
46.On 20 January 2010 the police investigator decided to discontinue the investigation, concluding that there was no evidence that the police officers had committed the criminal offence of abuse of authority. Their use of force had not violated the Police Act, it had been lawful, justified and not excessive. The decision of the police investigator was approved by the prosecutor on 15 February 2010.
47.Regarding the applicant’s arrest, the police investigator was of the view that the applicant’s allegations about his beating were completely groundless. She concluded in substance that the use of force against the applicant during his arrest had been justified by the applicant’s breach of the peace while being in a state of alcoholic intoxication; his refusal to obey the officers’ lawful orders; and his attempt to leave the scene without the officers’ consent. The physical force used to put the applicant on the ground, put on handcuffs and keep him on the ground had not been excessive.
48.In the decision, it was considered as established that the applicant’s arrest had taken place in the following manner. While at the playground in the vicinity of 18 Kerese Street, the applicant had not behaved appropriately, had waved his hands around, used foul language and had been staggering a lot. He had not reacted to the orders given by the police officers. Police Officer E.V. had decided to put handcuffs on the applicant given that children were standing around, that the applicant was clearly of an aggressive state of mind, that he might have injured others and that there was a certain context to the call (the suspicion of carrying a knife). At that moment Officers N.S. and S.J. had arrived and helped to put the handcuffs on. The applicant had not complied with the officers’ orders to stay still and calm down, but had started kicking the police vehicle. N.S. and S.J. had kept the applicant on the ground to restrain him. The applicant had continued to resist, use foul language and behave aggressively. Because of his aggressive behaviour, E.V. had been forced to call for a police van to transport the applicant to the police station. The applicant had resisted being put in the police van and had continued to behave aggressively and use foul language while being transported. Sounds from the transportation compartment made it seem like the applicant had hit himself against something.
49.In arriving at the conclusion that the applicant had not been beaten and that only lawful force had been used, the police investigator relied concretely on the statements of the children, Police Officers N.S., S.J., J.S., S.T., the suspected police officers, S.B. and E.V., and on the statements of M.Z., who had said during the presentation of the identification photos that there had been no beating at the playground, that the applicant’s hands had simply been forced behind his back and that he had been forced to the ground.
50.Regarding the events at the police department, the police investigator rejected the statements of M.Z. as unreliable as he could not have seen what was happening to the applicant in the detention room. Though the door of that room had been open, M.Z. had been standing further away. As to the people detained at the police station, the investigator concluded that their statements had not directly confirmed that the applicant had been beaten. The statements of the detainees A.P. and R.L., who had stated that the applicant had been beaten, were dismissed as they contradicted the statements of the third detainee – M.S. – and other evidence. Four other police officers involved in the arrest and the transportation of the applicant, as well as one police officer who had been present at the police station during the applicant’s detention, had also stated that the applicant had not been beaten.
51.As to the applicant’s injuries, the police investigator cited observations in the report from when the applicant was taken to sober up, and from the ambulance and patient registration cards. Regarding the haematoma around the left eye, first documented at the hospital on 1 May 2009, the investigator referred to the forensic expert’s opinion that it could have been caused on 29 April, 30 April or 1 May 2009 and that on the basis of the documents it was impossible to establish its cause. On the basis of that information the investigator concluded that the applicant’s allegation that the haematoma around the left eye had been caused during his beating at the police department was unfounded and untrue. Turning to the applicant’s allegations that he had vomited and that there had been blood on his clothing, the investigator viewed them as being disproven by the statements of the police officers as well as those of the ambulance doctor and the nurse who had not seen any blood on the applicant’s clothes or witnessed any vomiting.
52.The police investigator found in conclusion that while at the police station the applicant had been aggressive, continued to use foul language and ignored orders to keep still. The force that S.B. and E.V. had used against him had been justified and lawful, and had not been excessive.
53.On 15 March 2010 the applicant lodged an appeal against the decision to discontinue the criminal investigation. He submitted among other things that the investigation had not been objective, that the statements of witnesses had been selectively cited and distorted, that some of the witnesses (such as Y.B., who had seen the applicant’s arrest, and A.D., who had been detained in the police station at the same time as the applicant) had not been questioned, that he himself had not had a forensic medical examination; and that formal confrontations to eliminate any contradictions in statements in the case had not been arranged.
54.On 23 March 2010 the State Prosecutor’s Office rejected the applicant’s appeal against the decision to discontinue the investigation as having been lodged out of time. The decision to discontinue the criminal proceedings had stated that the applicant had to lodge an appeal to the State Prosecutor’s Office within ten days of the receipt of the relevant decision. The decision had been sent to the applicant’s address by ordinary mail on 26 February 2010. Estonian Post had indicated that a standard letter was sent to an addressee on the next working day of the post office. The letter should therefore have reached the applicant on 1 March 2010, so the final day for lodging an appeal had been 11 March 2010. The applicant had lodged his appeal on 15 March 2010. The applicant stated that he had only received the letter on 5 March 2010 after returning home from his job in another city. Though the applicant had not requested the restoration of the time-limit for his appeal, the State Prosecutor’s Office stated that in any event there had been no grounds for such a procedure. The State Prosecutor’s Office was of the view that the applicant had a duty of diligence regarding his mail because he knew that there were proceedings pending where decisions concerning his situation might be made. The applicant had had several options available to him to avoid exceeding the time-limit.
55.On 30 April 2010 the Tartu Court of Appeal upheld the decision of the State Prosecutor’s Office. The court agreed with the applicant’s counsel that the time-limit for an appeal started to run from the date of actual receipt of the decision and not from the date it should have been received according to calculations based on mail delivery deadlines. It nevertheless considered that the decision to discontinue the criminal proceedings had reached the applicant’s mailbox on 1 March 2010, without however explaining on the basis of what evidence this conclusion was reached. The court also stated that there was no need to express an opinion with regard to the restoration of the deadline for the appeal, because the applicant had not believed that he had breached the deadline and had not sought its restoration.
D.Applicant’s acquittal of misdemeanour charges
56.On 25 May 2009 the East Police Prefecture found the applicant guilty of the misdemeanour of committing a breach of the peace at Kreenholmi Street and ordered him to pay a fine. The applicant lodged an appeal against that decision with the Viru County Court.
57.On 17 November 2010 the Viru County Court, having held a public hearing on 4 November, acquitted the applicant of the charges. The court considered that there was no evidence to prove that his behaviour had constituted a misdemeanour.
58.The court, pointing to the fact that it was unlawfully obtained evidence, set aside the applicant’s statements given on 30 April 2009 at 2.15 a.m. in the hospital, and which had been contained in the misdemeanour report drafted the same night at 2.40 a.m. It noted that the evidence had been gathered more than eight hours after the offence had allegedly been committed and after the person had in the meantime been taken to sober up, at 7.45 p.m.
59.The court considered that the witness M.Z. had given reliable testimony at the court hearing on 4 November 2010 when he had said that the police had unduly influenced him to give evidence against the applicant by letting him hear the applicant being beaten. The court considered that statement to be corroborated by the fact that the applicant had been taken to the hospital and had been interrogated there.
60.The court concluded that the evidence in the misdemeanour proceedings had been collected in an unlawful manner which infringed the applicant’s honour and dignity and endangered his health. That conclusion was based on the statements of the applicant, M.Z., information from the hospital and the place and time of the drafting of the misdemeanour report.
61.The court further stated that there had been a material violation of the provisions governing misdemeanour proceedings because the applicant had been arrested at 5.40 p.m. and transported immediately to the police station, but had not been taken to sober up until 7.45 p.m.; also, his statement had only been taken at the hospital at 2.15 a.m. and the misdemeanour report not drafted at the hospital until 2.40 a.m.
62.The East Police Prefecture did not appeal against that judgment.