fact

5.The applicant was born in 1955. At the time of lodging his application, he was detained in Kaisheim Prison. He was released subsequently.
A.The applicant’s medical condition and treatment received in detention
6.The applicant has been continuously addicted to heroin since 1973, when he was aged 17. He has also been suffering from hepatitis C since 1975 and has been HIV-positive since 1988. He has been considered 100% disabled and has been receiving an employment disability pension since 2001. He has tried to overcome his addiction to heroin with various types of treatment (including five courses of in-house drug rehabilitation therapy), all of which failed. From 1991 to 2008 the applicant’s heroin addiction was treated with medically prescribed and supervised drug substitution therapy. Since 2005, the applicant had reduced the dosage of his drug substitution medication (Polamidon) and consumed heroin in addition to that medication.
7.In 2008 the applicant was arrested on suspicion of drug trafficking and taken in detention on remand in Kaisheim Prison, where his drug substitution treatment was interrupted against his will. On 3 June 2009 the Augsburg Regional Court convicted the applicant of drug trafficking, sentenced him to three years and six months’ imprisonment and, having regard to a previous conviction, to another two years and six months’ imprisonment. It further ordered the applicant’s placement in a drug detoxification facility, to be executed after a period of six months’ detention in prison. The applicant was still not provided with substitution treatment for his heroin addiction. On 10 December 2009 he was transferred to a drug rehabilitation centre in Günzburg, Bavaria, where he underwent abstinence‑based treatment for his addiction, without additional substitution treatment.
8.On 19 April 2010 the Memmingen Regional Court declared the applicant’s detention in the detoxification facility terminated and ordered his retransfer to prison. In a decision dated 25 June 2010 the Munich Court of Appeal dismissed the applicant’s appeal. Having regard, in particular, to the views expressed by the applicant’s treating doctors, the court considered that it could no longer be expected with sufficient probability that the applicant could be cured from his drug addiction or could be prevented for a considerable time from relapsing into drug abuse. He had secretly consumed methadone at the clinic and lacked motivation to lead a drug-free life.
9.The applicant was transferred back to Kaisheim Prison on 30 April 2010. The prison doctors gave him various painkillers for chronic pain resulting from his polyneuropathy, on a daily basis. During his detention, the pain in his feet, neck and spine became such that, at least during certain periods, he spent most of his time in bed.
10.The applicant was examined by an external doctor for internal medicine, H., on the prison authorities’ request in October 2010. H. did not consider any changes in the treatment of the applicant’s HIV and hepatitis C infections necessary. Having regard to the applicant’s chronic pain linked to his long-term drug consumption and polyneuropathy, he suggested that the prison medical service reconsider the possibility of drug substitution treatment. He subsequently confirmed that the applicant should be examined by a doctor specialised in drug addiction therapy to that end.
11.The applicant also obtained, on his request, an opinion drawn up by an external doctor specialised in drug addiction treatment (B.) dated 27 July 2011, on the basis of the written findings of doctor H. and the Kaisheim Prison doctor’s and authorities’ findings and statements, but without having been able to examine the applicant in person. B. considered that from a medical point of view, drug substitution treatment had to be provided to the applicant. Heexplained that in accordance with the Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts (Richtlinien der Bundesärztekammer zur Durchführung der substitutionsgestützten Behandlung Opiatabhängiger) of 19 February 2010 (see paragraph 30 below), drug substitution therapy was internationally recognised as being the best possible therapy for long-standing opioid addicts. Detoxification caused the person concerned serious physical strain and extreme mental stress and should only be attempted in cases of a very short opioid dependence. Drug substitution therapy prevented a deterioration of the patient’s state of health and a high risk to life, which arose particularly after forced abstinence in detention. It further prevented the spreading of infectious diseases such as HIV and hepatitis C. It had to be clarified whether, in the applicant’s case, further treatment for the hepatitisC from which he suffered was necessary.
B.The proceedings at issue
1.The decision of the prison authorities
12.By submissions dated 6 June 2011, which he supplemented subsequently, the applicant made a request to the Kaisheim prison authorities for treatment with Diamorphin, Polamidon or another heroin substitute for his heroin addiction. Alternatively, he requested that the question of whether such substitution treatment was necessary be examined by a drug addiction specialist.
13.The applicant claimed that drug substitution treatment was the only adequate treatment for his medical condition. Under the relevant Guidelines of the Federal Medical Association for the Substitution Treatment of Opiate Addicts, drug substitution treatment, which he had received prior to his detention, was the required standard treatment for his condition and had to be continued during his detention.
14.The applicant claimed that, as confirmed by doctor H., the serious chronic neurological pain from which he was suffering could be considerably alleviated by drug substitution treatment, as had been the case during his previous substitution treatment. Having been addicted to heroin for almost forty years, he stood hardly any chance of leading a totally drug‑free life on release from prison. His rehabilitation could therefore better be furthered by providing him drug substitution treatment. While undergoing such treatment previously, he had been able to lead a relatively normal life and to complete training as a software engineer.
15.Furthermore, referring to doctor B.’s opinion, the applicant claimed that he was in need of Interferon therapy in order to treat his hepatitis C infection. In view of his poor physical and mental health, it was impossible to carry out such treatment without simultaneous drug substitution therapy. Substitution also helped to protect other prisoners from infection when using the same needles as he did for the consumption of drugs and diminished the trafficking and uncontrolled consumption of illegal drugs in prison. He also considered that the prison doctors did not have specialist knowledge in drug addiction treatment and asked to be examined by an external specialist.
16.After the prison authorities’ first decision dismissing the applicant’s application was quashed by the Augsburg Regional Court on 4 October 2011 for lack of sufficient reasoning, the prison authorities, on 16 January 2012, again dismissed the applicant’s request.
17.The prison authorities argued that substitution treatment was neither necessary from a medical point of view nor a suitable measure for the applicant’s rehabilitation. With regard to the medical necessity of drug substitution therapy, the prison authorities, relying on prison doctor S.’s statement, considered that drug substitution therapy was not a necessary treatment for the purposes of section 60 of the Bavarian Execution of Sentences Act (see paragraph 27 below). They found that the applicant, who was severely addicted to drugs, had not received drug substitution treatment prior to his current detention in Kaisheim Prison. He had been placed in a drug rehabilitation centre for five months before his transfer to Kaisheim Prison, where he had been treated by medical experts with considerable knowledge of drug addiction treatment. The applicant had neither been given substitution treatment in the clinic, nor had the doctors recommended substitution treatment in prison. After three years in detention, he no longer suffered from physical withdrawal symptoms. Moreover, his condition with regard to his HIV and hepatitis C infections was stable and did not require any therapy for which substitution treatment was a necessary precondition. As suggested by the prison doctor, the applicant should use the opportunity to wean himself off opioids, such as heroin and its substitutes, while in prison, as it was very difficult to obtain drugs there.
18.With regard to the applicant’s social rehabilitation and treatment (sections 2 and 3 of the Bavarian Execution of Sentences Act, see paragraph27 below), the prison authorities added that the main reason for which addicts underwent drug substitution therapy was to prevent them from becoming impoverished and from becoming involved in drug-related criminality. In prison, these risks were not present. Furthermore, the applicant had already shown that substitution therapy while he was at liberty had not prevented him from consuming other drugs or committing crimes, which had been caused by his antisocial nature. Moreover, the applicant had also consumed drugs while in detention. Therefore, providing him substitution treatment could lead to a risk to life and limb.
2.The proceedings before the Augsburg Regional Court
19.On 26 January 2012 the applicant, relying on the reasons he had submitted to the prison authorities, appealed against the decision of the prison authorities to the Augsburg Regional Court. He further submitted that the authorities of Kaisheim Prison, where no substitution treatment had ever been provided, had omitted to examine the medical necessity of drug substitution therapy under the relevant criteria laid down, in particular, in the Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts, which were clearly met in his case. He further argued that under the applicable administrative rules for substitution treatment in prison in the Land of Baden-Württemberg, he would be provided with drug substitution therapy, which is carried out in the prisons of the majority of the German Länder.
20.On 28 March 2012 the Augsburg Regional Court, endorsing the reasons given by the prison authorities, dismissed the applicant’s appeal. It added that it was not necessary to obtain the opinion of a drug addiction expert. The prison doctors of Kaisheim Prison had sufficient training to decide on the medical necessity of drug substitution therapy, irrespective of the fact that drug substitution therapies might never have been used in that prison. The administrative rules for substitution treatment in prison applicable in the Land of Baden-Württemberg were irrelevant, given that Kaisheim Prison was situated in the Land of Bavaria.
3.The proceedings before the Munich Court of Appeal
21.On 4 May 2012 the applicant lodged an appeal on points of law with the Munich Court of Appeal. He submitted that the Regional Court’s failure to investigate sufficiently whether drug substitution treatment was necessary, under the applicable Federal Medical Association’s Guidelines and with the help of an independent doctor specialised in drug addiction treatment, had breached section 60 of the Bavarian Execution of Sentences Act and Article 3 of the Convention. Refusing him the alleviation of his intense neurological pain with an existing and medically necessary treatment constituted inhuman treatment.
22.On 9 August 2012 the Court of Appeal dismissed the appeal as ill‑founded. In the court’s view, the applicant had failed to show why drug substitution therapy was the one specific medical treatment he needed. He had further failed to prove that the prison doctors of Kaisheim Prison were not qualified to decide about the medical necessity of heroin substitution. The applicant’s objection against the Court of Appeal’s decision was rejected.
4.The proceedings before the Federal Constitutional Court
23.On 10 September 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that his right to respect for his physical integrity under the Basic Law had been breached because he was denied drug substitution therapy, the only suitable therapy to treat his chronic pain, which would make Interferon therapy possible and allow him to reduce his craving for heroin and lead a “normal” everyday prison life without isolation. He further complained that his right to be heard under the Basic Law had been violated as the domestic courts had not taken into consideration the medical opinions he had submitted to show that a substitution treatment was necessary and had failed to consult an independent specialised expert.
24.On 10 April 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons (file no. 2 BvR 2263/12).
C.Subsequent developments
25.On 17 November 2014 the Kaisheim prison authorities rejected the applicant’s fresh request to be provided with substitution treatment in preparation for his release. The applicant’s counsel was advised to ensure that the applicant was taken to a drug rehabilitation clinic immediately on his release in order to prevent him from taking an overdose of heroine as soon as he was at liberty.
26.On 3 December 2014 the applicant was released. When examined by a doctor on 5 December 2014 he tested positive for methadone and cocaine. The doctor confirmed that the applicant would receive drug substitution treatment from 8 December 2014 onwards.
32.The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of the Council of Europe issues the CPT standards, in which the “substantive” sections of the CPT’s yearly General Reports are summarised. In its CPT standards as established at the time of the applicant’s detention (CPT/Inf/E(2002)1 ‑ Rev.2010), which have not been amended since then in respect of the issues relevant here (see CPT/Inf/E(2002) 1 ‑Rev.2015), the CPT made the following relevant findings and recommendations:
“Health care services in prisons
Extract from the 3rd General Report [CPT/Inf (93) 12], published in 1993
31.... the CPT wishes to make clear the importance which it attaches to the general principle - already recognised in most, if not all, of the countries visited by the Committee to date - that prisoners are entitled to the same level of medical care as persons living in the community at large. This principle is inherent in the fundamental rights of the individual. ...
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.”
33.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”), provides a framework of guiding principles for the treatment of persons deprived of their liberty. The relevant extracts in Part III of the appendix to the Recommendation, on “Health”, provide:
“Organisation of prison health care
... 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.”
34.Recommendation no. R(98)7 of the Committee of Ministers to member States concerning the ethical and organisational aspects of health care in prison, adopted on 8 April 1998 at the 627th meeting of the Ministers’ Deputies, provides, in its Appendix, in so far as relevant:
“7.The prison administration should make arrangements for ensuring contacts and co-operation with local public and private health institutions. Since it is not easy to provide appropriate treatment in prison for certain inmates addicted to drugs, alcohol or medication, external consultants belonging to the system providing specialist assistance to addicts in the general community should be called on for counselling and even care purposes. ...
Equivalence of care
10.Health policy in custody should be integrated into, and compatible with, national health policy. A prison health care service should be able to provide medical, psychiatric and dental treatment and to implement programmes of hygiene and preventive medicine in conditions comparable to those enjoyed by the general public. Prison doctors should be able to call upon specialists. If a second opinion is required, it is the duty of the service to arrange it. ...
45.The treatment of the withdrawal symptoms of abuse of drugs, alcohol or medication in prison should be conducted along the same lines as in the community.”
35.According to the Policy paper on preventing risks and reducing harm linked to the use of psychoactive substances adopted in November 2013 by the Permanent Correspondents of the Co-operation Group to Combat Drug Abuse and Illicit trafficking in Drugs (Pompidou Group) of the Council of Europe (P-PG (2013) 20), there is a growing recognition that drug dependence must be understood and treated as a chronic, preventable, treatable and recoverable disease. At the same time national differences in political acceptance, interpretation and variance in the type of feasible measures, as well as access to them and their availability, persist. Despite these differences, there is a general prevailing consensus that abstinence and recovery-oriented policies need to be supplemented by measures that can demonstrably reduce the harms and risks of psychoactive substance use (ibid., § 10).
36.According to the data collected by Harm Reduction International (HRI), a non-governmental organisation, in 2012 opioid substitution therapy programmes were operational in the community in 41 of the Council of Europe Member States. No such programmes existed in Andorra, Monaco, the Russian Federation and Turkey (in the latter country, they were introduced by 2015); no statistical data was available in respect of Liechtenstein and San Marino. In 2012, opioid substitution programmes were available also in prison in 30 of the Council of Europe Member States whereas no such treatment was available in prison in 15 of the Council of Europe Member States (Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Greece, Iceland, Lithuania, Monaco, the Russian Federation, the Slovak Republic, Turkey and Ukraine); no statistical data was available in respect of Liechtenstein and San Marino. By 2015, opioid substitution programmes had been made available also in prison in Bulgaria, Estonia, Turkey and Ukraine.
37.The HRI data for 2012 correspond to those published by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), a European Union decentralized agency, in their 2012 study entitled “Prisons and drug abuse in Europe: the problem and responses”, which contains data in respect of all (then) European Union Member States, Croatia, Turkey and Norway.

A. The circumstances of the case
1. The facts of the case, as submitted by the applicants, may be summarised as follows.
2. The applicants are Iranian nationals, a mother and her two daughters. They were born in 1976, 2001 and 2007 respectively. They are currently living in Denmark. They are represented by the Danish Refugee Council ( Dansk Flygtningehjælp ).
3. The applicants entered Italy in the beginning of June 2014.
4. On 20 June 2014 they entered Denmark.
5. On 7 July 2014 the Immigration Service ( Udlændingestyrelsen ) found that the applicant should be returned to Italy under the Dublin Regulation. The Italian authorities accepted this on 1 October 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 7 January 2015 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.
10. On appeal, on 8 July 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 of 2 February 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, Italian authorities 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 6 October 2015 the Immigration Service decided, 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. It appeared from the circular letter of 8 June 2015 that families with minor children would be offered accommodation in conditions appropriate for families and minors in order to guarantee the unity of the family and that offers of language courses and job training would also made. The Danish Immigration Service further referred to The SPRAR System, published on 13 June 2015.
15. On appeal, on 3 February 2016, the Refugee Appeals Board upheld the decision by the Immigration Service, setting out, inter alia:
“ ... the Refugee Appeals Board makes the following statement:
... 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 circular letter of 8 June 2015 was not included in the basis of the previous decision by 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 in good 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 the applicants are in need of special support due to their mentally vulnerable situation; that the eldest daughter sees a psychologist; that they have obtained a network through the school and the church; which they do not have in Italy; and that accordingly they will lose their daily security. 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 2 October 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.
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 and that the Italian authorities are notified of the relevant information on the applicant ’ s needs.”
16. 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
17. 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).
18. 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.
19. 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.

6.The applicant was born in 1953 and lived in Magnitogorsk, in the Chelyabinsk Region until his arrest.
A.Arrest and conviction
7.On 28 June 2011 the applicant was arrested on suspicion of having committed a criminal offence. He remained in custody throughout the investigation and trial.
8.On 29 March 2012 the Pravoberezhniy District Court of Magnitogorsk sentenced him to thirteen years and ten months’ imprisonment. The sentence was upheld on appeal by the Chelyabinsk Regional Court on 16August2012.
B.The applicant’s health and his medical treatment in detention
9.In 2012, following a complaint by the applicant of pain in his lower abdomen, he was diagnosed with an enlargedprostategland and underwent surgery in relation to that condition.
10.In April 2013 the applicant was transferred to the prison tuberculosis hospital in Chelyabinsk for testing of his urogenital system. Two operations were performed in the hospital, but various problematic symptoms relating to his urinary system persisted.
11.In February 2014 a biopsy of prostate tissue revealed the presence of cancer cells. The applicant was diagnosed with terminal prostate cancer which had spread to his liver and inguinal lymph nodes. His condition was aggravated by a wasting syndrome and paraneoplastic syndrome.
12.According to the applicant, he did not have access to the required medication in the hospital, and therefore his condition worsened.
13.On 30 October 2014 a medical panel confirmed his diagnosis, adding a list of secondary illnesses to it. The doctors concluded that the applicant’s medical condition made him eligible for early release.
14.On 26January 2015 the Metallurgicheskiy District Court of Chelyabinsk “the District Court” examined the applicant’s request for early release on health grounds. In the proceedings the applicant was represented by MrA.Lepekhin, a lawyer from Agora.
15.At the hearing the doctor who was treating the applicant testified that his condition had significantly deteriorated since the beginning of 2014. He received painkillers in hospital, but effective medical treatment was unavailable, owing to a lack of the required medication.
16.The acting head of the hospital stated that the applicant could only receive adequate medical treatment in another hospital.
17.The prosecutor opposed the applicant’s being released, citing his failure to reform while in detention. He also stated that the release was not necessary, as the applicant could receive the required medical treatment within the prison system.
18.The court rejected the applicant’s request for release. It found that he had failed to improve himself, that is to say, the aim of reforming him as a prisoner had not been achieved. His medical condition did not preclude further detention, as the requisite medical treatment was available within the prison system. To receive it, the applicant only needed a transfer to a different hospital.
19.On 7 April 2015 the Chelyabinsk Regional Court upheld the above decision on appeal, having fully endorsed the reasoning of the lower court. It also noted that, in addition to pain relief and therapy to relieve symptoms, the applicant could have chemotherapy, should the prison hospital receive the required medication.
C.Rule 39 request
20.In the meantime, on 26 March 2015 the applicant sought interim measures from this Court underRule 39 to ensure adequate medical treatment or his release from detention.
21.On 27 March 2015 the Court decided to applyRule 39, indicating to the Government thatit was desirable in the interests of the proper conduct of the proceedings that the applicant should be immediately examined by medical experts who were independent of the prison system, with a view to determining: (1)whether the treatment he was receiving in the prison hospital was adequate with regard to his condition; (2) whether his state of health was compatible with detention in prison hospital conditions; and (3)whether his condition required his placement in a specialist, possibly civilian, hospital. Furthermore, the Government were also to ensure his transfer to a specialist hospital, should the medical experts conclude that he required it.
22.On 9April 2015 the Government responded to the Court’s letter of 27March 2015, asserting that the scope and quality of the applicant’s medical treatment in the prison hospital corresponded to his needs. They alleged that, owing to the gravity of the applicant’s condition, only treatment of his symptoms was recommended, and such treatment was being provided in full. They submitted the following documents: a typed copy of the applicant’s medical file; certificates from detention facilities summarising the applicant’s treatment and describing his state of health; a report by a medical panel of 30 October 2014 confirming his eligibility for early release; a copy of the District Court’s decision of 26 January 2015; a statement by the acting head of the hospital in which he noted that the District Court had misinterpreted his testimony given on 26 January 2015, as he had never discussed the possibility of the applicant being treated in another hospital; and a statement by the head of the prison hospital in which he confirmed that the cancer treatment was only possible in a special oncological centre, and that he had never argued that it was accessible within the prison system.
23.On 28May 2015 the applicant’s lawyer submitted that the Government had not made arrangements for the independent medical examination indicated by the Court to be carried out. However, two independent doctors summoned by the applicant’s lawyer had assessed the quality of his medical treatment in detention and the compatibility of further detention in the prison hospital with his state of health. In an expert report dated 23 May 2015 the doctors had concluded that the treatment the applicant was receiving in the prison hospital was inadequate. The belated diagnosis of prostate cancer and the failure to provide active treatment, such as glandular therapy, radiation therapy or surgery were mentioned among other major shortcomings on the part of the medical authorities. The doctors had also noted that the applicant could not be provided with adequate medical treatment in the prison hospital, because it had no licence for inpatient treatment of cancer patients and urological diseases. Accordingly, the experts had concluded that his detention in that facility did not correspond to his medical needs, and threatened his life.
D.Developments following the application of Rule 39
24.Over the following months the applicant’s health continued to deteriorate, and the wasting syndrome progressed.
25.On 24 August 2015 the medical panel prepared a new report, again recommending the applicant’s early release on health grounds. A court hearing on the matter was scheduled for 11 September 2015. Four days before that date the applicant died of cancer.
26.At the request of the applicant’s lawyer, MrA.Lepekhin, the Investigative Committee carried out a preliminary inquiry into the circumstances surrounding the applicant’s death, which ended with a decision of 15 October 2015 not to open a criminal case.

The applicant, Mr Vladimir Ilyich Ivanov, is a Russian national, who was born in 1956.
The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
Mr Ivanov was the defendant in criminal proceedings. He was detained in the IZ-47/1 remand prison in St Petersburg. On 17 September 2008 an application form was introduced on his behalf and signed by Ms Maria Zhiglaeva. No authority form was enclosed.

5.The applicant was born in 1973 and is currently serving a prison sentence in Sokyryany Prison no. 67.
A.The applicant’s arrest on 18 September 2001, his alleged ill‑treatment by the police and the investigation into the matter
6.In September 2001 the applicant and an acquaintance, F., decided to carry out a carjacking. On the night of 17-18September 2001 they stopped a taxi for that purpose. F. shot the driver in the head and the two then took him to a forest, where F. and the applicant fired several more shots into the victim and abandoned the body. According to the applicant, he believed that the driver was already dead when he shot at him. When driving the car later on, the applicant and F. encountered the traffic police who ordered them to stop. They did not obey the order and attempted to flee. The applicant threw a grenade at the police, but it went wide. Eventually F., who was driving, lost control of the car, which caused it to stop. The applicant opened fire and seriously wounded one of the police officers.
7.In order to overcome the applicant’s resistance, the police officers hit him on the head several times with the handle of a gun. He lost consciousness and was handcuffed. His apprehension took place at about 3a.m. on 18September 2001.
8.While the parties were not in dispute as regards the facts summarised above, their account of subsequent events differed.
9.According to the Government, no further coercive measures were used against the applicant.
10.According to the applicant, he was seriously ill-treated after his arrest and his account of subsequent events is as follows. In his application form he submitted that once the police had seen him regain consciousness, at about 5 a.m., they had taken him to the Suvorivskyy district police station where they had beaten him. In his observations in reply to those of the Government, the applicant added that he had also been beaten in the two hours between his apprehension and transportation to the police station. The applicant also alleged that upon his arrival at the police station the officers had thrown him to the floor and had started kicking and punching him and hitting him with rubber truncheons. They had allegedly sought to take revenge on him for wounding their colleague and to make him confess to the criminal offences under investigation. The applicant’s beating had allegedly continued until 7 or 8 a.m.
11.At an unspecified time on the morning of 18 September 2001 a forensic medical expert examined the applicant. As noted in the report of the examination, the applicant was 195 cm tall and was of strong constitution. The following injuries were detected: four painful swellings (two of which were coupled with sores) of up to 4 cm in diameter on the back part of the head and on both temples, two oval bruises on the forehead of 8 x 5 cm and 5 x 4 cm, bruises on both eyelids, a slightly swollen bridge of the nose, bruises on the sides of the nose extending to the eyelids, and linear sores on both wrists. The expert found that the applicant could have sustained the injuries in question in the course of his arrest. The applicant stated to the expert that he had not been beaten in police custody.
12.According to the applicant, his medical examination was limited to the visible parts of his body not covered by clothes, and the expert failed to document the many bruises that covered the rest of his body. The applicant also alleged that the police officers had talked to the doctor in private before the examination. Furthermore, they had allegedly threatened the applicant that if he complained they would kill him.
13.As further submitted by the applicant, on 29September 2001 the police tried to transfer him from the Kherson Temporary Detention Facility (“the ITT”, part of the police system) to the Kherson Pre-Trial Detention Centre (“the SIZO”), but the SIZO’s administration refused to admit him because of his many injuries.
14.On 5 October 2001 the applicant was transferred to the SIZO, where a doctor examined him. No injuries were documented. The applicant submitted to the Court, without providing any further details, that the report of the examination had been wrongly dated as 8 October 2001 (instead of 5October) and that it had been false.
15.The applicant stated that throughout his detention in the ITT, from 18September to 5 October 2001, he had been subjected to torture such as the administration of electric shocks, being suspended from a horizontal metal bar while his hands were handcuffed behind his back, suffocation with a gas mask and plastic bag, and having his fingers crushed in doors. The applicant also alleged that police officers had jumped on his chest from a desk while he lay on the floor.
16.With his observations to the Court of 16July 2014 the applicant submitted a handwritten copy of a complaint to the Kherson regional prosecutor’s office (“the Kherson prosecutor’s office”) dated 5 October 2001 (with a handwritten confirmation by two inmates that the applicant had handed the complaint to the guard on duty for dispatching). He complained about his “continual beating, torture and humiliation” following his arrest on 18September and during his detention in the ITT. He further submitted that the medical examination of 18September 2001 had been incomplete and that the Kherson SIZO had disregarded his requests for a medical examination and the documentation of various injuries, which he did not specify.
17.According to another, similar handwritten note submitted to the Court on 16July 2014, the applicant had on 7October 2001 complained to the governor of the Kherson SIZO that the guards had torn up his complaints to the prosecution authorities on 5 and 6October 2001. He also complained that although he had been taken to the SIZO on 5 October 2001 with injuries all over his body, the SIZO official on duty had rejected his request for a medical examination.
18.According to the applicant, on 9 October 2001 he sent another complaint to the Kherson prosecutor’s office.
19.On 18 February 2002 a forensic medical report was issued in respect of the applicant’s injuries following his arrest. Having studied the case file, the forensic expert stated that the applicant had had a hemorrhage in the soft tissues of his head, sores and bruises on his face and scalp, and sores on his wrists. The injuries in question could have been inflicted on 18September 2001 in the circumstances the applicant had described during his questioning as an accused (that is resulting from being hit on the head with the handle of a gun). The expert classified the injuries as minor. There is no further information in the case file about the report or where it was used.
20.The applicant raised his complaint of ill-treatment during his trial at the Kherson Regional Court of Appeal (“the Kherson Court”, see, in particular, paragraphs 40 and 41 below). As a result, on 21 May 2003 a trial court judge requested that the Kherson prosecutor’s office carry out an investigation into the matter.
21.On 30 May 2003 the Kherson prosecutor’s office refused to open a criminal case against the police officers for lack of corpus delicti in their actions. The prosecutor relied on the statements of the police officers, who denied ill-treating the applicant and his co-defendants, as well as on documents from the SIZO administration, which stated that no injuries had been found on the defendants during their medical examinations and that they had not raised any complaints. According to the applicant, he had only been able to familiarise himself with the prosecutor’s decision after almost a year, on 2March 2004.
22.As the applicant and his co-defendants maintained their complaints during the trial, in June 2003 the judge once again requested that the prosecution authorities investigate the matter.
23.On 7 November 2003 the Kherson prosecutor’s office again refused to open a criminal case against the police officers, using the same reasoning as before.
24.The applicant challenged that decision before the courts.
25.On 30July 2004 a judge at the Kherson Komsomolskyy District Court (“the Komsomolskyy Court”), following a hearing which included the prosecutor but not the applicant or his lawyer, dismissed the applicant’s complaint as unfounded.
26.On 7 September 2004 the Kherson Court quashed that decision as being formalistic and lacking reasoning. It remitted the case to the same court for fresh examination by a different judge.
27.On 10 September 2004 the Komsomolskyy Court once again dismissed the applicant’s complaint. This time the applicant’s lawyer was present at the hearing. The judge heard the parties and studied the case file. He noted that the prosecutor had rightly dismissed the applicant’s allegation of ill-treatment after questioning all those involved and studying the relevant reports on the medical examinations.
28.On 19 October 2004 the Kherson Court, siting as a panel of three judges, upheld that decision and its reasoning.
29.On 3 December 2004 the Supreme Court rejected the applicant’s request for leave to appeal against the above decisions on points of law on the ground that the criminal proceedings against him were still pending.
B.Criminal proceedings against the applicant and his detention
30.On 18 September 2001, at about 3 a.m., the applicant was arrested by the traffic police. At 10 a.m. the police drew up a report about his arrest. He was placed in the Kherson ITT.
31.On the same date criminal proceedings were instituted against the applicant on suspicion of aggravated robbery and murder, illegal arms handling and an attempt on the life of law-enforcement officials. By that time there were already other criminal proceedings pending against him.
32.On an unspecified date further charges were brought against the applicant and several other people. Overall, the criminal proceedings in question involved twelve suspects and concerned twelve episodes of criminal activity, including numerous counts of theft, robbery and murder, committed between 1998 and 2001.
33.On 22September 2001 the Komsomolskyy Court ordered the applicant’s pre-trial detention for an initial period of two months. The court referred to the seriousness of the charges against the applicant and noted that he might abscond or hinder the investigation if at liberty. That decision could be challenged on appeal within three days of its pronouncement. Thehearing took place in the presence of the prosecutor, but in the absence of the applicant and his lawyer. According to a handwritten note with the judge’s signature, the applicant was told of the decision on the day it was pronounced. The applicant, however, said that he became aware of it after a considerable delay, which prevented him from lodging an appeal.
34.On 24 September 2001 the investigator in charge of the case issued a decision to extend the term of the applicant’s detention in the ITT to ten days (instead of the legally allowed maximum of three days, after which the applicant had to be transferred to the local SIZO – see paragraph77 below). That decision was explained by the need to carry out witness confrontations, crime reconstructions and other investigative measures with the applicant’s participation.
35.On 12 November 2001 the Komsomolskyy Court extended the applicant’s pre-trial detention to four months on the ground that he was suspected of grave criminal offences and there were no reasons to change the preventive measure. The applicant’s lawyer, who was present at the hearing, did not object. The applicant could appeal against that decision within three days, but did not do so.
36.On 10 January 2002 the Kherson Court, following a hearing which included the prosecutor, but not the applicant or his lawyer, extended the applicant’s pre-trial detention to six months (until 18March 2002) on the same grounds as before. That decision was not amenable to appeal. According to the applicant, he only became aware of it after a long delay.
37.On 1 March 2002 the pre-trial investigation was completed and the applicant and his lawyer received access to the case file.
38.On 18 March 2002 the applicant complained to both the prosecution authorities and the courts that the period of his pre-trial detention had expired on that date and had not been extended. Accordingly, he requested to be released without delay. It appears that there was no follow-up to his complaints.
39.On 14 June 2002 the applicant and his co-accused were indicted.
40.On 5 August 2002 the Kherson Court held a preparatory hearing, during which it decided to keep the applicant in detention. The case file does not contain a copy of that decision.
41.On 7 December 2004 the Kherson Court found the applicant guilty of the charges and sentenced him to life imprisonment.
42.On 11 May 2006 the Supreme Court quashed that judgment and remitted the case to the same trial court for fresh examination. It held, in particular, that the applicant’s defence rights had been violated on account of his removal from the hearing, in breach of procedural rules. The Supreme Court also ruled to keep the applicant in detention as a preventive measure, without further reasoning.
43.On 20 April 2007 the Kherson Court delivered a new judgment convicting the applicant of various criminal offences and sentenced him to fifteen years’ imprisonment.
44.On 8 April 2008 the Supreme Court quashed that judgment in the part concerning the applicant on the grounds that the trial court had modified the charges against him without respecting the applicable procedural rules. Accordingly, the case was remitted for fresh consideration again. The ruling of the Supreme Court made no mention of any preventive measure in respect of the applicant pending the delivery of a new judgment.
45.On 29 December 2009 the Kherson Court again found the applicant guilty on a long list charges and sentenced him to life imprisonment.
46.On 20 September 2011 the Supreme Court quashed that judgment too and remitted the case to the trial court for fresh examination.
47.On 6 October 2011 the Kherson Court transferred the case to the Bilozerka Town Court (“the Bilozerka Court”) following jurisdiction‑related amendments to the Code of Criminal Procedure.
48.In July, August and September 2012 the applicant applied to the trial court for release on an undertaking not to abscond. He submitted that he had already been detained for over eleven years and that his continued detention was unjustified. He referred, in particular, to the poor conditions of his detention and his deteriorating health. The applicant also noted that he had already settled the victims’ civil claims.
49.On 19 July, 6 August and 27 September 2012 the Bilozerka Court dismissed the applicant’s applications for release on the grounds that he had failed to show that he would not abscond or hinder the implementation of various procedural decisions if he was released.
50.On 6 August 2012 the Bilozerka Court discontinued the criminal proceedings against the applicant on a number of charges as they had become time‑barred.
51.On 8 October 2012 the same court found the applicant guilty of armed robbery, aggravated murder and an attempt on the life of a law‑enforcement official and sentenced him to fifteen years’ imprisonment.
52.In the absence of any appeals, on 28 October 2012 the judgment became final.
C.Alleged beating of the applicant by a guard in the Kyiv SIZO on 16August 2005
53.During the daily outdoor walk on 16 August 2005 in the Kyiv SIZO one of the guards allegedly hit the applicant with a rubber truncheon in the stomach and on the hip. The applicant did not submit any further details about that incident.
54.On 12 September 2005 the applicant was transferred to the Kherson SIZO. According to the authorities, he was examined on the same day by doctors, who did not detect any injuries. The applicant submitted that no such examination had taken place.
55.On 20 September 2005 the applicant’s lawyer wrote to the governor of the Kherson SIZO that the applicant had complained of having been beaten by a guard in the Kyiv SIZO. The lawyer therefore requested a medical examination of his client.
56.On 4October 2005 a commission of three doctors examined the applicant. According to the applicant, that was his first examination in the Kherson SIZO. The doctors documented a 3.5-cm-long brown pigmented linear mark on the side of the applicant’s left hip and a round mark of slightly pigmented skin with irregular edges in the paraumbilical area of the left part of his stomach.
57.On 6 October 2005 the SIZO administration informed the applicant’s lawyer of the above report.
58.On 26 October 2005 three doctors examined the applicant again. Their findings were the same as on 4 October 2005. On a later, unspecified date the SIZO governor wrote about the findings to the applicant’s lawyer.
59.The applicant complained to various authorities that he had been beaten on 16 August 2005 and that his injuries had never been properly documented. His complaints were forwarded to the Kyiv city prosecutor’s office (“the Kyiv prosecutor’s office”).
60.Extracts from the applicant’s medical records in detention, which were provided to the Court by the Government, contain a copy of a report on a medical examination of the applicant in the Kherson SIZO of 13February 2006. It mentioned, in particular, that the applicant had pigmented skin marks. Their description was identical to that given in the reports of 4 and 26 October 2005 (see paragraphs 56 and 58 above).
61.On 22 March 2006 the Kyiv prosecutor’s office wrote to the applicant that his complaints were without basis.
62.It is not known whether the applicant took that complaint further.
63.On 5 February 2014 the administration of the Kyiv SIZO informed the Government’s Agent that all the records for 2005 had been destroyed after the expiry of a five-year limit for their storage.
D.Conditions of the applicant’s detention from 5October 2005 to 24December 2012
64.During various unspecified periods from 5October 2005 until his transfer to Sokyryany Prison on 24 December 2012, the applicant was detained in SIZOs in Kherson, Odessa and Kyiv.
65.According to the applicant, he was held in overcrowded, unheated and damp cells, with no ventilation and poor lighting. There were allegedly no laundry facilities for detainees, and the cells were infested with insects. The applicant also contended that his cell mates had smoked all the time and that he had been exposed to passive smoking. He submitted numerous statements by his cellmates confirming the accuracy of the above description of their conditions of detention. The applicant also submitted several colour photographs of his cells in the Kherson and Kyiv SIZOs showing, in particular, tight metal grids on the windows, an extremely small space between the various items of furniture in the cell, poor sanitary facilities, and a lavatory which could be seen from the door.
66.According to the Government, the conditions of the applicant’s detention were acceptable. They noted that the parts of the Kherson SIZO where he had been detained in 2005 had been demolished since that time because they had been dilapidated and not subject to capital repairs. The Government therefore submitted that they could not provide any more details about the conditions of detention there.
67.During his transportation between the SIZOs and to court hearings, the applicant was allegedly handcuffed at all times (sometimes for up to thirty-two hours), not given sufficient food and water, deprived of sleep and unable to use the toilet when needed.
68.The applicant complained about the conditions of his transportation to the prosecution authorities and sought to bring criminal charges against the escorting officers concerned.
69.On 29 June 2006 the Kyiv Garrison Military Prosecutor’s Office refused to open criminal proceedings against the escorting officers owing to a lack of corpus delicti in their actions. The applicant unsuccessfully challenged that decision before the courts at three levels of jurisdiction.
70.According to the Government, the conditions of the applicant’s transportation were not in breach of his rights.
71.The applicant also alleged that during his detention his health had seriously deteriorated. In particular, he had contracted tuberculosis and had had unspecified heart problems, for which he had not obtained adequate medical treatment. His requests for medical assistance had allegedly been refused by the authorities.
72.The Government provided the Court with detailed information in chronological order about the applicant’s health and the medical care provided to him in detention. His health-related concerns included the residual effects of tuberculosis (contracted in 2003), micro-cardiosclerosis, and some digestive disorders. As can be seen from the applicant’s medical file, he had regular medical examinations and received treatment for his health problems.
E.The applicant’s access to documents in the criminal file in the context of his application to the Court
73.In January 2007 the Court asked the applicant to submit copies of his cassation appeals against the judgment of 7 December 2004, showing the dates he had lodged them with the courts dealing with the criminal case against him.
74.On 11 March and 25 April 2007 the applicant asked the trial court to provide him with copies of all his cassation appeals and those of his co‑defendants.
75.On 7 May 2007 the trial court judge dealing with the criminal case in question wrote to the applicant that there were no grounds to grant his request as he had already received all the copies he had asked for, which was confirmed by acknowledgments of receipt with his signature in the case file. Furthermore, the judge noted that the applicant had also been given the possibility to familiarise himself with the case file.
78.On 23 November 2011 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) published the Report [CPT/Inf (2011) 29] to the Ukrainian Government on a visit to Ukraine from 9 to 21 September 2009, which had included a visit to the Kyiv SIZO. The relevant extracts from the Report read as follows (original emphasis):
“74. At the time of the 2009 visit, the total number of prisoners in Ukraine stood at 145,000 (including 36,000 on remand), compared to some 178,000 at the time of the 2005 visit. Thus, the positive trend towards a reduction of the prison population already noted in the report on the 2005 visit continues. That said, overcrowding persists in remand establishments, the ones in Kyiv, Kherson, ...Odessa ... being cited as the most problematic. The delegation observed for itself that the overcrowding was particularly acute in the Kyiv SIZO, where there was some 1 m² of space per prisoner in certain cells, with inmates sharing beds or sleeping on the floor ...
3. Prisoners sentenced to life imprisonment
87. The 2009 visit provided an opportunity to review the situation of prisoners sentenced to life imprisonment. ... [The] Kyiv [SIZO was] accommodating ... 41lifers at various stages of appeal processes.
88. [Material conditions] were ... acceptable in the lifers’ cells of the ... Kyiv [SIZO]; that said, the occupancy levels in the cells were too high (e.g. three inmates in cells measuring some 10 m²).
...
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. ...
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. ...
101.The vast majority of the cells holding male prisoners were seriously overcrowded (for example, 52 prisoners in a cell measuring some 50 m² and containing 40 beds; 32 prisoners in a cell measuring 33 m² and containing 20 beds). In some cells, the number of prisoners exceeded the number of beds available, and inmates took turns to sleep on the available beds or slept on the floor. The cells were packed with double bunk-beds, leaving very little space for any other furniture. In some cells, there were TV sets which belonged to the occupants.
Because of the human mass, ventilation was almost non-existent and the cells were very hot and stuffy. The level of hygiene was also highly unsatisfactory: in some cells the delegation saw cockroaches, and prisoners also referred to the presence of mice and rats. The in-cell sanitary installations (a partitioned toilet and sink) were generally in a decrepit state and were clearly not sufficient for the numbers of inmates held in the larger cells.
The negative consequences of the deplorable material conditions described above were compounded by the fact that some prisoners had spent lengthy periods of time at the SIZO ... In the CPT’s view, the combination of negative factors to which a large number of prisoners were subjected at the Kyiv SIZO (overcrowding, appalling material conditions and levels of hygiene, and practically non-existent activity programmes) could easily be described as inhuman and degrading treatment. ...”
79.The CPT’s later report, which was published on 14November 2012 and which concerned its visit to Ukraine from 29November to 6December 2011, also contained the following relevant extracts regarding the conditions of detention in the Kyiv SIZO (original emphasis):
“43. The delegation gained a generally positive impression of the material conditions in the units for juveniles at the [SIZO] in Kyiv ....
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 Kyiv SIZO was accommodating 3,761prisoners (official capacity: 2,850 places) ...
The Committee acknowledges the efforts made by the Ukrainian authorities to reduce overcrowding in the [SIZO] visited. ...”
80.The relevant extracts from some earlier CPT reports (following visits to Ukraine in 1998, 2000 and 2002) concerning the conditions of transportation of detainees in Ukraine are quoted, in particular, in the Court’s judgment in the case of Andrey Yakovenko v. Ukraine (no.63727/11, §§71-73, 13March 2014).

7.The applicant was born in 1967 and lived before his arrest in the town of Yoshkar-Ola in the Mariy El Republic.
A.The applicant’s state of health
8.In 2010 the applicant was convicted of murder, possessing firearms and aggravated robbery. He was sentenced to fifteen years’ imprisonment.
9.In April 2012 he was diagnosed with cancer of the left kidney. According to a medical certificate, on 25July 2012 he underwent ablation in the prison hospital. A month later he was discharged and transferred to a correctional colony, despite complaining of deteriorating health.
10.On 18December 2012 a pulmonary fluorography revealed that the applicant had “suspected nidal shadows (in the middle zones) on the right and left sides”. An MRI performed a month later confirmed that he had metastases in the lungs.
11.On 6March 2013 a medical panel diagnosed him with “stage3 cancer” of the left kidney (stage 4 is the final in the development of cancer).
12.On 28March 2013 the applicant was examined by another medical panel. The diagnosis included stage 4 cancer of the left kidney and multiple metastases in the lungs, as well as various secondary illnesses of the cardiovascular and digestive systems. The panel concluded that the applicant was eligible for early release as he suffered 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 of 6February 2004.
13.A month later the Ingondinskiy District Court ordered the applicant’s release, finding that his condition was “serious enough” to warrant his discharge. The decision was quashed upon an appeal by a prosecutor and the matter was sent back to the District Court for re‑examination.
14.On 24July 2013 the District Court rejected a request by the applicant for release, citing the panel’s report of 6March 2013 and, in particular, the fact that he had been diagnosed with stage 3 cancer, which was not included in the list of illnesses. At the same time, the District Court dismissed the findings made by another medical panel on 28March2013, considering that examination to have been “unlawfully conducted”. It also noted that the “applicant’s behaviour did not show his determination to get on the road to recovery”.
15.On 21November 2013 the District Court dismissed another request for early release by the applicant. Accepting that he suffered from stage 4 cancer, the court nevertheless held as follows:
“... [the applicant] is a particular danger to society, his improvement level is negligible, and according to the [colony] administration he has not got on the road to recovery. [The applicant] regularly receives symptomatic treatment and, in view of the specifics of his disease, does not need another kind of treatment.”
The decision of 21 November 2013 was appealed against and became final on 14 May 2014.
16.The applicant’s lawyer sought the opinion of an independent expert from the Blokhin Cancer Research Centre of the Russian Academy of Sciences. On 22April 2014 three of its specialists prepared a reply, stressing that appropriate treatment could prolong the life expectancy of those suffering from stage 4 cancer for up to thirty months and that there were grounds to believe that the applicant needed specific antitumour treatment.
17.In May and June 2014 Ms Artemyeva unsuccessfully applied to have the applicant transferred from the correctional colony, where no anti-cancer treatment was available, to the prison hospital.
18.On 2July 2014 a new medical panel diagnosed him with stage 3 kidney cancer with growing multiple lung metastases and metastases in the mediastinal lymph nodes. The panel’s findings also referred to the results of a computer tomography, which had revealed tuberculomas in the left lung.
19.In August 2014 the applicant’s lawyer lodged a complaint against the administration of the correctional colony, alleging that they had failed to provide her client with adequate medical care. She requested that the court authorise the applicant’s transfer to the prison hospital.
20.On 1October 2014 the District Court dismissed the complaint, but granted the transfer request. Relying on statements by a representative of the applicant’s correctional colony and Ms Artemyeva, the court found that the applicant was not receiving anti-cancer treatment in the colony as such treatment had to be prescribed by an oncologist. The colony medical unit did not employ this type of specialist.
21.On 20October 2014 an independent forensic expert studied the applicant’s medical file at the request of his lawyer, and concluded that since the end of 2012 his condition had called for tumour immunotherapy. The expert also noted that since August 2012 his treatment had been merely symptomatic and that his drug regimen was limited to painkillers.
B.Rule 39 request and subsequent developments
22.At the end ofJuly 2014 the applicant asked the Court to apply Rule 39 of the Rules of Court and to indicate to the Russian authorities that he should be provided with the necessary medical care or released from prison on health grounds.
23.On 5August 2014 the Government were requested under Rule54 §2 (a) of the Rules of Court to submit information about the applicant’s health, the quality of the medical assistance he was receiving and the conditions of his detention.
24.On 15 September 2014 the Government responded, providing the Court with the applicant’s entire medical file. In addition, in merely a few lines, they stressed that:
(a) the applicant was undergoing treatment in the prison hospital;
(b) his health was satisfactory and “nothing was life-threatening”;
(c) the medical care was afforded to him “in full”, was “appropriate” to his condition and complied both with the requirements of Russian law and the guarantees of Article 3 of the Convention; and
(d) his illnesses were not included in the list of illnesses precluding the serving of sentences in correctional institutions.
25.The applicant responded in November 2014, maintaining his claims of absent or sporadic medical assistance. He again relied on the conclusions of the forensic medical expert made on 20 October 2014.
26.Following receipt of the Government’s submissions and the applicant’s comments on them, on 12November 2014 the Acting President of the Section decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should be immediately examined by medical experts independent from the penal system, including by an oncologist, with a view to determining (a) whether the treatment he was receiving in detention was adequate to his condition; (b) whether his current state of health was compatible with detention in a correctional colony or prison hospital; and (c) whether his current condition required his admittance to a specialist hospital or release. The Government were also asked to ensure his immediate transfer to a specialist hospital if the medical experts concluded that such admittance was required.
27.The Court wrote to the Government on 13 November 2014. On 4December 2014 the Government responded, submitting various documents.
(i)A typed copy of the applicant’s medical history drawn up between September and November 2014, which contained a detailed schedule showing his daily intake of drugs. It appears from that document that he received basic analgesic and hypotensive drugs and cough medicine, and that an oncologist had prescribed him “lifelong” immunotherapy with a drug called “reodoron”. However, the drug intake schedule did not contain any mention of the drug “reodoron”.
(ii)Certificates issued by the acting head of the medical unit in the applicant’s correctional colony, listing the diagnosis and giving a short description of general medical procedures. According to the certificates, on 20 November 2014 the applicant’s condition was “satisfactory” and his illnesses “did not present any danger” to his life. The certificates also indicated that there were no signs of progressive lung failure or “cancer intoxication” (paraneoplastic syndromes, such as fever). The acting head of the unit nevertheless noted that any illness, including those suffered by the applicant, could be life-threatening.
(iii)A certificate dated 24 November 2011 issued by the head of the applicant’s correctional colony setting out his criminal record and convictions and indicating that since 23August 2014 he had been detained in the correctional colony as there were no grounds to keep him in the prison hospital.
28.In a one-page document the Government also answered the three questions which on 12 November 2014 the Court had asked to be addressed to independent medical experts. In particular, they stressed that upon the applicant’s arrival at each correctional institution he had undergone clinical tests and had been examined by medical specialists. He had thus been placed under regular medical supervision in relation to his illnesses. The Government argued that his condition was satisfactory and that there was no threat to his life as he was afforded medical care appropriate to his condition and in the required amount. They concluded that his condition did not call for admittance to a specialist hospital or release.
29.The applicant commented on the Government’s information, insisting that the medical assistance afforded to him was inadequate and that his life was in imminent danger unless antitumor and radiation treatment were administered to him. He relied on the results of a medical examination on 18December 2014, which had revealed new and growing metastases in the right adrenal gland, the left brain hemisphere and the right cerebellar hemisphere.
30.The applicant also submitted an alternative expert report commissioned by his lawyer. On 17 January 2015 two forensic medical experts from St. Petersburg State Medical University prepared a report responding to the three questions put by the Court in its decision of 12November 2014. Assessing the quality of the applicant’s medical assistance, the experts noted that since August 2012 the applicant had only received symptomatic treatment with anaesthetics for his kidney cancer. No other cancer-related treatment had been given until December 2014. The experts drew up a list of various established and widely applied medical procedures, including immunotherapy, extensive chemotherapy and radiotherapy, which should have been provided to a patient such as the applicant to improve his condition and extend his life. The experts stressed that even after the growing metastasis in the applicant’s brain was discovered in December 2014 the prison doctors had not considered the possibility of radiotherapy. The experts noted that the drug “reodoron” mentioned in his medical record did not exist. They further criticised other aspects of his medical assistance, including the frequency and direction of important medical examinations. The experts concluded that the applicant’s life expectancy was critically low. He had no more than a few months to live, particularly in view of the fact that he was not being afforded the necessary treatment.
C.Developments after communication of the case
31.Following communication of the case to the parties, on 29 June2015 the Government informed the Court that the applicant had died on 8April 2015. They submitted a copy of the death certificate and asked the Court, in the absence of any person wishing to pursue the application on his behalf, to strike the case out of the list of cases pursuant to Article 37 § 1 (c) of the Convention.
32.The Government included the applicant’s medical record drawn up between December 2014 and April 2015 in a letter to the Court dated 24September 2015. They also enclosed a number of certificates prepared by the acting heads of the correctional colony and colony medical unit. The acting head of the colony laid down the details of the applicant’s criminal record, indicated that he had not made any complaints to the colony administration between 21November 2014 and 8 April 2015 and that a request he had made for early release had been dismissed by the Ingodinskiy District Court on 16 March 2015. In separate certificates the acting head of the medical unit recorded the progress of the applicant’s illness, placing particular emphasis on the rapid deterioration of his health in 2014 when new and growing metastases had been discovered in his lungs, lymph nodes, adrenal gland and brain, and the development of cancer intoxication, accompanied by serious bilateral polysegmental pneumonia, brain oedema and terminal kidney failure. The applicant’s condition had been considered particularly serious between 18December 2014 and 1 February 2015, and then between 24 March and 8April 2015. The assessment had been changed to moderately serious for the period 1 February to 23 March 2015, although no changes in the long list of conditions had been recorded.
33.In the letter of 18 August 2015 the applicant’s lawyer informed the Court that Ms Artemyeva, the applicant’s sister and heir, wished to continue the proceedings before the Court on the applicant’s behalf. The lawyer enclosed a birth certificate as proof of the applicant and Ms Artemyeva’s relationship and copies of letters sent by various Russian authorities to MsArtemyeva in response to complaints alleging that they had failed to properly treat the applicant.

6.The applicant was born in 1983 and lived in Verkhnyaya Pyshma, Sverdlovsk Region.
A.Arrest and conviction
7.On 27 May 2012 the applicant was arrested on suspicion of murder. He remained in detention throughout the investigation and trial.
8.On 18 January 2014 the Verkhnyaya Pyshma Town Court convicted the applicant of the charges and sentenced him to ten years’ imprisonment.
B.The applicant’s medical condition
9.The applicant was seriously ill at the time of the arrest. He suffered from advanced HIV, long-term tuberculosis at the stage of lung tissue destruction and chronic hepatitis C.
10.In June 2012 the applicant was admitted to the tuberculosis unit of the medical wing of remand prison no. IZ-66/1 in Yekaterinburg for treatment. On his admission to prison he had informed the doctor that he had been receiving tuberculosis treatment for several years, but that it had not been successful. A drug regimen based on a combination of five anti‑tuberculosis drugs was prescribed for him. In the second half of 2012 a highly active antiretroviral therapy was ordered by a medical panel for his HIV.
11.A chest X-ray carried out on 26 September 2012 revealed the formation of lung cavities, showing the further progress of the disease.
12.On 23 January 2013 drug susceptibility testing was performed. It showed that the applicant’s tuberculosis was resistant to all the drugs he had received since June 2012, when his treatment had begun. No alteration in his treatment took place until 18 April 2013, when the applicant was admitted to Prison Hospital no.6 in StDonato in Sverdlovsk Region. Given the development of the applicant’s drug resistance, a medical panel at the hospital ordered different antibiotics to be used.
13.The applicant’s condition improved slightly and on 10 February 2014 he was discharged from the hospital to a medical wing. However, in the following months he started experiencing back pain. In July 2014 a tuberculous infection of the vertebrae was diagnosed and the applicant was readmitted to the prison hospital.
14.On 26 September 2014 a medical panel found him eligible for early release on health grounds. His application for release was examined by the Leninskiy District Court of Nizhniy Tagil on 27November 2014. At the hearing the applicant’s doctor testified that he was suffering from serious diseases, that he could not care for himself and that the prospects of his recovery were poor. On the same day the District Court dismissed the application, citing the applicant’s history of previous convictions which, in the court’s opinion, demonstrated that he “had failed to take the path of improvement”. The decision was upheld on appeal by the Sverdlovsk Regional Court on 24February 2015.
C.Rule 39 request
15.On 12 March 2015 the applicant asked the Court to apply Rule 39 of the Rules of Court and to indicate to the Government that he should be provided with adequate medical care and immediately released. The applicant stated that he was not receiving the necessarymedical care and treatment in detention, despite suffering from a life-threatening and rapidly progressing illness.The deterioration of his condition required an urgent medical intervention, which was unavailable in the prison hospital.
16.On 23 March 2015 the President of the Section, acting upon the applicant’ s request, decided to apply Rules 39 and 41 of the Rules of Court, indicating to the Government that the applicant should be immediately examined by medical experts which were independent from the prison system. They were to determine (1) whether he was receiving adequate treatment in the prison hospital for his condition; (2) whether his state of health was compatible with detention in the conditions of a prison hospital; and (3) whether his condition required his admission to a specialist, possibly civilian, hospital. Furthermore, the Government were to ensure his transfer to a specialist hospital if the medical experts concluded that admission to such a hospital was necessary.
17.On 7April 2015 the Government responded to the Court’s letter of 24March2015. It submitted documents related to the applicant’s conviction; certificates issued by the head of the detention facility where the applicant had been previously detained, describing the state of his health and giving a list of medical procedures he had undergone; documents showing that the detention facility was authorised to provide medical services to inmates; extracts from the applicant’s medical history; certificates issued by the head of the prison hospital describing the state of the applicant’s health, the quality of the medical treatment and the conditions of his detention; handwritten statements by three of the prison hospital’s staff stating that they had provided the applicant with the necessary care; the report of the special medical panel of 26September2014; and copies of the decisions of 27November2014 and 24February2015 on his applications for early release.
18.The Government also asserted that the scope and quality of the treatment provided to the applicant in the prison hospital was appropriate for his state of health. However, they admitted that there had been a serious deterioration in the applicant’s condition in 2014. Lastly, they submitted that an examination of the applicant by a medical panel to check his entitlement to early release had been scheduled for 9April2015.
19.On 22May2015 the applicant’s representative reported that the independent medical examination had not been carried out by the Government. However, two independent doctors acting at the request of the applicant’s lawyer had assessed the quality of the applicant’s medical treatment in detention and whether his further detention in the prison hospital was appropriate for someone as ill as him. In their report, dated 20May2015, the doctors concluded that the medical care provided by the detention authorities had been inadequate, particularly in view of the continued use of ineffective drugs. They also stated that the applicant required spinal surgery owing to the tuberculous infection of the vertebrae and that it was vital he be transferred from the prison hospital to a specialist medical facility.
D.Developments following the application of Rule 39
20.On 22May 2015 the Leninskiy District Court of Nizhniy Tagil dismissed the applicant’s second application for release on health grounds, referring to his failure to improve his character.
21.On 21 August 2015 the Sverdlovsk Regional Court set aside that decision. The court held that the applicant should be released immediately, owing to the state of his health and the absence of disciplinary violations.
22.After his release the applicant was admitted to a civilian hospital in Verkhnyaya Pyshma, where he died on 3 October 2015.

1. The applicants are Jihana Ali (the “first applicant”), born in 1984; her brother, Netschirwan Ali (the “second applicant”), born in 1992 and sister, Saida Ali (the “third applicant”), born in 1993; and the first applicant ’ s daughter, Nesrin Ali (the “fourth applicant”), born in 2003. They are all Syrian nationals of Kurdish descent and were represented by Mrs S. Motz, a lawyer practicing in Zurich.
2. The Swiss Government were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice. The Italian Government 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 applicants, may be summarised as follows.
4. The applicants arrived in Italy on 15 August 2013 where they were registered as asylum seekers. On 27 August 2013 they entered Switzerland and formally applied for asylum there. On 23, 25 and 30 September 2013, at the request of the Swiss Federal Office for Migration (the “FOM”), the Italian authorities accepted to take responsibility for the determination of the applicants ’ asylum situation pursuant to Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). Accordingly, on 30 September 2013, the FOM refused to consider the applicants ’ asylum application on the merits.
On 21 October 2013, the Swiss Federal Administrative Court dismissed the applicants ’ appeal against the FOM ’ s decision considering inter alia that the applicant had failed to establish that Italy was in breach of its international obligations with respect to the treatment of asylum seekers, in particular the Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the Member States.
In the meantime, the third applicant, who claimed to be religiously married with a man holding a temporary humanitarian residence permit ( vorläufige Aufnahme ) became pregnant. Her request to the FOM for reconsideration of the removal decision and interim relief was rejected on the ground that a humanitarian temporary permit did not constitute a stable right of residence and therefore she could not rely on Article 8 of the Convention.
5. According to the applicants, several of their relatives reside in Switzerland (brother, uncle, cousins, brother in law).
B. Events after the lodging of the application
6. The application was lodged with the Court on 17 April 2014. On 23 April 2014 the Court issued an interim measure within the meaning of Rule 39 of the Rules of Court indicating to the Swiss 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 applicants to Italy for the duration of the proceedings before the Court.
7. On 2 September 2014 the third applicant married.
8. On 13 February 2015 the Swiss Government informed the Court that the third applicant had married and given birth to a child. Since her husband had in the meantime been admitted to Switzerland as a refugee, on 11 February 2015 the Secretariat of State for Migration (the “SEM”), which had in the meantime replaced the FOM, had decided not to remove her to Italy and to proceed with the examination of her asylum application in Switzerland. The Government therefore requested the Court to strike the application out of the list of cases pursuant to Article 37 § 1 of the Convention with respect to the third applicant.
9. On 9 March 2015 the third applicant was granted refugee status in Switzerland.
10. On 23 March 2015 the Swiss Government informed the Court that the Italian authorities had requested all their counterparts participating in the “Dublin” system to inform them at least 15 days in advance of any transfer to Italy of a family with minor children so that they could be in a position to provide the guarantees required by the Court in its judgment in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, § 122, 4 November 2014).
On the same day the Italian Government confirmed that in order to book housing places for “Dublin” transferees they needed to be given notice of a confirmed date for any transfer reasonably in advance.
11. On 30 March 2015, in reply to the Swiss Government ’ s request to strike the application out in respect of the third applicant, the applicants ’ representative considered that the Court should nevertheless award Swiss Francs (CHF) 1,390.83 (approximately EURO (EUR) 1,280), for costs and expenses incurred by the third applicant as a result of the Swiss authorities ’ refusal to recognise her right to maintain family life in Switzerland. The Swiss Government opposed this claim.
12. On 6 June 2015, the Court decided to lift the application of the interim measure.
13. On 22 June 2015 the first and fourth applicants requested that the SEM re-examine their asylum application in Switzerland. After their request was rejected by the SEM, they appealed to the Federal Administrative Court.
In an interim decision of 3 September 2015 the Federal Administrative Court considered that the Italian authorities had given sufficient guarantees and, on 15 October 2015, rejected the first and fourth applicants ’ appeal.
14. On 11 November 2015, the first and fourth applicants, whose transfer to Italy was scheduled for 17 November 2015, lodged a fresh Rule 39 request considering that the Swiss authorities had not received sufficient guarantees from their Italian counterparts.
15. In their comments submitted on 16 November 2015, the Swiss Government referred to a leading judgment delivered by the Federal Administrative Court on 12 March 2015 (E-6629/2014) pursuant to which transfers to Italy of families with minor children could not take place in the absence of guarantees that the family would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.
They also submitted copies of official guarantees provided by the Italian Government. In a circular letter of 2 February 2015, specifically referring to the Tarakhel judgment, the Italian Ministry of the Interior guaranteed their Dublin counterparts that “all families with minor children (...) [ would ] be kept together and accommodated in a facility which the reception conditions [ were ] adapted to the family and to the age of the children”. In a second letter of 15 April 2015, the Italian Ministry of the Interior informed the European Commission that housing facilities within the SPRAR ( Sistema di protezione per richiedenti asilo e rifugiati ) had been reserved for families transferred to Italy in the context of a Dublin procedure. The list of available facilities was circulated among States participating in the Dublin system by a circular letter from the same ministry of 8 June 2015. This letter stated that each family with minor children would be assigned to a specific local reception ensuring family unity and social integration.
Moreover, the Swiss Government indicated that in a judgment of 27 July 2015 (D-4394/2015), the Federal Administrative Court had considered that the list of SPRAR facilities provided by the Italian authorities constituted per se a sufficient guarantee with regard to the Tarakhel requirements.
16. On 16 November 2015, having noted the parties ’ submissions, the Court decided to reject the applicants ’ fresh Rule 39 request.
17. On 8 December 2015, the Swiss Government informed the Court that the transfer of the first and fourth applicants to Italy had been scheduled for 17 November 2015 but did not take place because the first applicant refused to leave and the fourth applicant had disappeared. The second applicant had also disappeared.
The Government therefore considered that these applicants did not intend to maintain their application and requested that the application be struck out in their respect pursuant to Article 37 § 1 of the Convention.
18. On 20 January 2016, the applicants ’ representative informed the Court that the second and fourth applicants had left the asylum centre because they were afraid of being removed to Italy. However, they had maintained contact with their family and wished that the Court continue the examination of their application.
19. On 18 February 2016, the applicants ’ representative informed the Court that the fourth applicant had returned to the asylum centre where she was living with her mother.
20. On 24 March 2016, the Swiss Government informed the Court that a tentative transfer of the first and fourth applicants to Italy, scheduled for 16 March 2016, had had to be cancelled due to the violent resistance of the first applicant who, on that occasion, had injured a police officer with a razor blade.
21. On 11 May 2016, the Swiss Government informed the Court that the first and fourth applicants had been transferred to Italy on 5 May 2016.
C. Relevant domestic law with regard to the Dublin Regulation
22. The relevant domestic law is set out in the Tarakhel judgment (cited above, §§ 22-23 and 26-27).
23. The relevant instruments and principles of European Union law are set out in the same judgment (§§ 28-36).
24. In particular, 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 has since been 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.
25. 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.
D. The Italian context
26. 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).

1. The applicants, Mr M.A.-M. (“the first applicant”), his wife (“the second applicant”) and two minor children, are Iraqi nationals who were born in 1986, 1996 and 2015 respectively (“the applicants”). They were represented before the Court by Ms Anna Smallenburg, 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.
4. The couple arrived in Finland from Iraq via Italy on 16 February 2015 and sought asylum on the same day. The second applicant was already pregnant at the time. On 23 March 2015 the Finnish Immigration Service ( Maahanmuuttovirasto, Migrationsverket ) contacted the Italian authorities and asked them to receive the applicants. The Italian authorities agreed to receive the first applicant on 28 April 2015 and did not oppose receiving the second applicant by the end of the time-limit of two months, expiring on 23 May 2015. On 27 May 2015 the Italian authorities were further informed that, if the second applicant gave birth before the removal, the Finnish Government would request guarantees from the Italian Government that the family would be kept together and that the family would be placed in appropriate accommodation. The couple ’ s twins were born prematurely in Finland on 25 May 2015 but this information was submitted to the Finnish Immigration Service only on 3 June 2015.
5. On the same date, the Immigration Service rejected the applicants ’ asylum application and decided to order their removal back to Italy. This decision did not take into account the new information submitted about the birth of the twins. In its reasoning, the Immigration Service stated that the second applicant was in good medical condition and that she could be removed despite her pregnancy. According to the post ‑ Tarakhel practice which had been agreed upon between the Finnish and Italian authorities, individual guarantees would be requested by the Finnish authorities 15 days before the planned removal. The applicants ’ removal would therefore comply with the Tarakhel judgment. This decision was served on the applicants on 16 June 2015.
6. By letter dated 18 June 2015 the applicants appealed to the Administrative Court ( hallinto-oikeus, förvaltningsdomstolen), requesting also a stay on removal.
7. On 25 June 2015 the Administrative Court decided not to grant a stay on removal.
8. On 29 October 2015 the Administrative Court rejected the applicants ’ appeal. It found that the Italian authorities had agreed to receive the first applicant on 28 April 2015 and had not opposed receiving his wife by 23 May 2015. The Finnish and Italian Governments had agreed on arrangements according to which families with children were to be kept together and placed in appropriate accommodation. Before the removal, the Finnish authorities would inform the Italian authorities of the special needs of the family, including their need for medical assistance. The court found that the medical condition of the twins was not such as they could not receive appropriate treatment in Italy. On these grounds, and on those already expressed by the Immigration Service, the court held that the applicants would not be subject to a risk of treatment in violation of Article 3 of the Convention.
9. By letter dated 27 November 2015 the applicants appealed further to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting again a stay on removal.
10. On 18 May 2016 the Supreme Administrative Court refused the applicants leave to appeal.
B. Procedure under Rule 39
11. The application was lodged with the Court on 2 July 2015. On the same day, the duty judge of the Court decided to apply Rule 39 of the Rules of Court for the duration of the proceedings before the Court 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.
12. The Finnish Government submitted their reply on 10 July 2015. 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 letter of 8 June 2015. In this circular letter, the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children and provided a list of accommodation available to such families.
13. Furthermore, 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 their arrival in Italy. The examination of the applicants ’ application by the Court was premature as no final decision had yet been made by the relevant domestic courts. 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.
14. On 3 August 2015 the applicants were sent a copy of the Government ’ s letter for information.
15. On 12 October 2015 the applicants commented on the information submitted by the Government. They argued that 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. They claimed that Italy was not capable of giving such individual guarantees as demanded by the Tarakhel judgment. The applicants ’ situation would be unclear if Italy could give no individual guarantees by the time of the possible removal. The applicants wished the Court to continue the examination of their case.
16. On 3 November 2015 the Government reiterated their previous observations and considered that, even after the delivery of the Administrative Court ’ s decision of 29 October 2015, the applicants had still not exhausted all effective domestic remedies since it was still open for them to request leave to appeal from the Supreme Administrative Court.
17. On 19 February 2016 the applicants commented on the Government ’ s letter of 3 November 2015, indicating that they had sought leave to appeal from the Supreme Administrative Court. They continued to claim that they had not yet been informed about any individual and specific guarantees concerning their possible removal to Italy. They also submitted the latest medical certificates for the twin babies.

5.The applicant was born in 1978 and lived in Cheboksary before his conviction. He is currently serving a sentence in Novocheboksarsk.
A.The applicant’s arrest and subsequent events
6.In April 2006 a criminal case was opened into the theft of money belonging to the applicant’s cousin, Ms G.
7.On 8 September 2006 G. was found dead in her flat with several gunshot wounds. On 9 September 2006 a criminal case was opened into her murder.
8.On 14 September 2006 the applicant, who was suspected of the theft and whose whereabouts were unknown, was placed on a police wanted list.
9.At around 10 p.m. on 6 October 2006 the applicant was arrested on the street. He was handcuffed and taken to the police station of the Moskovskiy district police department of Cheboksary (Московский РОВД г.Чебоксары – “the district police”).According to Ms P. and two other female witnesses, the applicant had no injuries before his arrest.
10.The applicant was escorted to the police station at around 11p.m. He was taken in handcuffs to room no. 217 on the first floor (“second floor” in Russian) and interviewed by operative police officers Ch. and F. about the theft and murder. He gave a partial confession, stating that he had stolen less money from the victim, but denied murder.
11.The parties provided different accounts of the events at the police station.
12.According to the applicant, police officers Ch. and F., who were drunk at the time, demanded that he confess to the theft and murder. They allegedly beat him up, delivering blows to his head, ears, body and legs, and threatened him with rape. At about 3 a.m. they shackled a 40 kg weight to his hands, which he was made to hold while they continued to physically assault him. At about 4a.m. they made him stand on the windowsill of an open window and threatened to throw him out and make it look as if he had attempted to flee or commit suicide if he did not confess to the murder. After refusing to do so, one of the police officers allegedly pushed him out of the window.
13.According to the Government, in the course of the police interview the applicant, who was drunk when he was taken to the police station, suddenly climbed on a table and jumped out of the window. This course of events was reported by police officers Ch. and F. to their superior on 7October 2006. They stated that they had taken the applicant for an interview in room no. 217 in handcuffs as he had been drunk, had had a strong smell of alcohol coming from his mouth, had behaved aggressively and inadequately and had used obscene and threatening language towards them.
14.Shortly before 6 a.m. on 7 October 2006 the applicant was given first aid by the ambulance service, which diagnosed him with a closed head injury, concussion and bruises of the soft tissue on the face and on both feet. According to the paramedic and his assistant, they found the applicant lying on the tarmac conscious; he was handcuffed without any weight shackled to him.
15.At 6.15a.m.the applicant was taken to the Cheboksary Town Emergency Hospital handcuffed on a stretcher, accompanied by police officers Ch. and F. After surgery his right foot was in plaster and his left foot had a weight fixed to it. The applicant was shackled to the bed by one of his hands and guarded by a police officer.
16.From 11.20 to 11.55 a.m. on 7 October 2006 an investigator from the district police questioned the applicant in hospital as a suspect in the theft case, in the presence of a lawyer. He reiterated his confession (see paragraph 10 above). From 7 to 8.30 p.m. that evening an investigator from the Moskovskiy district prosecutor’s office questioned him as a witness in the murder case.
17.According to Ms P. and the applicant’s mother, who visited the applicant in the hospital, the applicant’s eyes were both bruised (which is also evident on photographs of the applicant in hospital), his left ear was swollen, his teeth were loose and he could hardly talk. According to his mother, his left ear was unresponsive and he could not hear, his head and chin were badly bruised, and he had bruises and cuts on his wrists. The applicant told his mother that he had been beaten up and threatened with rape by two police officers, who had shackled a 40 kg weight to him and threatened to throw him out of a window if he did not confess to the crimes. He could not remember what had happened next.
18.At 1.10 p.m. on 10 October 2006 an investigator from the district police drew up a record of the applicant’s arrest at 1p.m. that day as a suspect in the theft case. On 11October2006 the Moskovskiy District Court of Cheboksary (“the District Court”) dismissed the investigator’s request to have the applicant remanded in custody on the grounds that he had been hospitalised and could not participate in the hearing himself.
19.At 2.15 p.m. on 13October 2006 an investigator from the Moskovskiy district prosecutor’s office drew up a record of the applicant’s arrest at 2.10p.m. that day on suspicion of the murder. On the same day the District Court extended his arrest until 16October 2006.
20.On 16October 2006 the criminal cases concerning the theft and murder were joined and the applicant was charged with both crimes. The District Court remanded him in custody.
21.On the same day the applicant, who had been undergoing continuous inpatient treatment in hospital since 7 October 2016, was transferred to the Cheboksary pre‑trial detention facility.
22.By an order of 21 October 2006 the Ministry of Internal Affairs of Chuvashiya held police officers Ch. and F. liable in disciplinary proceedings for failing to properly guard the applicant and leaving him without permanent surveillance on 7October 2006. They were issued with a severe warning. The order stated that in the course of the applicant’s interview the police officers, who had failed to carry out their duties in accordance with the service regulations and to take into account the applicant’s personality, had opened a window thereby creating conditions for the applicant to jump out of it.
23.On 22 November 2006 the applicant confessed to the murder of G. in the course of his questioning as an accused, in the presence of his lawyer.
24.On 8 February 2007 the District Court convicted him of theft, murder and possession of a firearm, and sentenced him to fourteen years’ imprisonment. The period of his arrest and remand in custody from 10 to 12October 2006 and from 13 October 2006 onwards was counted towards his sentence. The judgment entered into force on 5April 2007.
B.The applicant’s medical records
25.The following injuries were recorded during the applicant’s initial examination at the Cheboksary Town Emergency Hospital on 7October 2006: a soft tissue injury to the head, scratches on the face and knees, swelling and bruises on the left hip, a fractured left foot and a dislocated right foot. He was diagnosed with a closed head injury, concussion, bruises and scratches on the head soft tissue and left hip and knee joints, and fractures to both feet.
26.On 8 October 2006, during his inpatient treatment in hospital, the applicant, who had complained that one of his teeth was loose and painful, was examined by a dentist and diagnosed with a “contusion of tooth 41” (lower tooth on the right side).On 11 October 2006 an otolaryngologist examined him in connection with the impaired hearing in his left ear and diagnosed him with otitis.
27.From 22 October to 12November 2006 the applicant received inpatient treatment in the medical facility of Chuvashiya correctional colony no. 4 (IK-4).
28.It appears from a report by a panel of forensic psychiatrists dated 24November 2006 that the applicant suffered from a personality disorder which did not require medical treatment or exclude his criminal responsibility. The experts did not assess the applicant’s fall from the window of the police station.
29.On 11 December 2006 an investigator of the Moskovskiy district prosecutor’s office ordered a forensic medical examination of the applicant. The investigator stated that at about 5 a.m. on 7 October 2006 the applicant had fallen from office no. 217 on the first floor of the police station and received injuries to both feet. The investigator asked whether on 7October 2006 the applicant had had any injuries other than those to both of his feet, and if so, how and when they had been received, whether they could have been received as a result of a fall onto tarmac from the first floor, where they were located and how serious they had been.
30.Following an examination of the applicant’s hospital records, a forensic medical expert concluded on 14December2006 that the information concerning the applicant’s initial examination in hospital on 7October 2006 was undetailed. Information on the exact location, number and morphological characteristics of the injuries was missing, and was insufficient to determine the time and order they had been inflicted to distinguish them and determine which could have been as a result of the applicant being punched and kicked and which could have been as a result of his fall from the first floor. It was stated in the expert’s report that the applicant had not attended the examination, after asking in writing to carry it out in his absence.
C.Pre-investigation inquiry into the applicant’s allegations of police ill-treatment and unlawful deprivation of liberty
1.Refusal to open a criminal case
31.On 11 October 2006 the applicant’s mother lodged a complaint with the Chuvashiya prosecutor’s office concerning her son’s alleged ill‑treatment and unlawful deprivation of liberty from 6 to 10 October 2006.
32.On 8November 2006 the applicant lodged a complaint with the Moskovskiy district prosecutor’s office concerning his alleged ill‑treatment by the police officers, requesting that criminal proceedings be opened against them.
33.The Moskovskiy district prosecutor’s office and subsequently the Cheboksary inter-district investigation department of the investigative committee at the Chuvashiya prosecutor’s office refused to open a criminal case into the applicant’s alleged ill-treatment and unlawful deprivation of liberty twenty-four times, pursuant to Article 24§1(2) of the Code of Criminal Procedure (“CCrP”), because none of the elements of the offences provided for in Articles 127, 285, 286, 299 and301 of the Criminal Code (unlawful deprivation of liberty, abuse of powers, criminal prosecution of persons known to be innocent and unlawful arrest and detention respectively) were present in respect of the actions of the police officers. They concluded that the applicant’s allegations could not be confirmed by a pre-investigation inquiry.
34.The pre-investigation inquiry was resumed twenty-three times as the decisions refusing to open a criminal investigation were set aside by higher authorities within the prosecutor’s office and subsequently the investigative committee as unsubstantiated, unlawful or based on an incomplete inquiry.
(i)A refusal on 21 October 2006 was overruled on 5 December 2006 on the grounds, inter alia, that nothing had been done to establish whether there had been a 40 kg weight in office no. 217. Moreover, police officers Ch. and F. had carried out non-investigative actions involving the applicant, a suspect in the criminal case, from 11 p.m. to 5.42 a.m. on the night of 6October 2006, and no assessment of the lawfulness of those actions had been carried out.
(ii)A refusal on 12 December 2006 was overruled on 13December 2006. It was noted that office no. 217 had been inspected and no weights had been found.
(iii)Twenty further decisions refusing to open a criminal case taken between 18 December 2006 and 9 October 2008 were overruled. In particular, a refusal on 22 May 2008 was overruled on 5 June 2008 on the grounds that instructions by the deputy head of the investigative committee of Chuvashiya given on 22November 2007 had still not been fulfilled. A refusal on 16 June 2008 was overruled on 16 June 2008 on the grounds that deficiencies identified by the deputy head of the prosecutor’s office of Chuvashiya on 5December 2006, the Moskovskiy District Court of Cheboksary on 6March 2007 and the Supreme Court of Chuvashiya on 12April 2007 had still not been corrected.
(iv)A refusal on 27 October 2008 was overruled on 28 October 2008 on the grounds that the investigative committee of Chuvashiya acknowledged that investigator S. had been found liable in disciplinary proceedings for stalling the inquiry and issuing unlawful and unsubstantiated decisions based on an incomplete inquiry.
(v)A refusal on 2 December 2008 was upheld by the courts as a result of a review under Article 125 of the CCrP (see paragraph 40 below).
35.In the most recent refusal issued on 2December 2008 investigator A. from the Cheboksary investigative committee found that the applicant, who had been wanted in the theft case, had been arrested and taken to the police station and remained there on suspicion of committing it. His being held in room no. 217 for five hours had been necessary for carrying out operational‑search measures. Police officers Ch. and F. had handcuffed him lawfully in order to guard him and prevent him from escaping or harming himself or others. His hospitalisation had made it impossible for him to be arrested as a suspect on 7October 2006. He had been handcuffed in hospital to prevent him from attempting to escape again.
36.The investigator also found that the applicant had jumped out of the window himself in order to flee, without any coercion by the police officers. His allegations that he had been subjected to physical violence had not been confirmed. The investigator stated that injuries other than those to both feet had been found on the applicant at the time of his admission, as set out in the forensic medical expert’s report of 14 December 2006. However, the lack of any detailed description of those injuries in the applicant’s medical records had made it impossible to establish when and how they had been received, in particular whether they had been received as a result of him falling from the first floor or being beaten up.
37.The investigator’s decision of 2 December 2008 referred, inter alia, to statements by police officers Ch. and F. They said that after the applicant’s arrest on 6 October 2006 they had interviewed him in room no.217 about the theft and the murder of G. of which he had been suspected. The applicant had given a partial confession to the theft but had denied murder. He had been convicted of a criminal offence in the past and had tried to escape from a police station by jumping out of a toilet window. The incident had prompted the police to install iron bars on it. In September 2006, after the murder of G., the applicant had been hospitalised for a drug overdose, but had not been arrested because after the hospital had alerted the police he had managed to escape. During the interview on 6October 2008 the applicant, who had been drunk and had smelled of alcohol, had behaved provokingly and insulted them with obscene words. They had therefore handcuffed him (placing his hands in front) to avoid any attempts to escape or commit suicide. At about 5 a.m., as F. had been leaving the room, the applicant had jumped on a table adjacent to an open window and jumped out. Ch. claimed that he had been putting documents into a safe at the time, while F. said that Ch. had been sitting at the table and the applicant had been sitting on a chair near the table immediately before jumping out of the window. Access to the window had been blocked by the table. It had been possible to reach and open it while sitting at the table. They had taken the applicant to hospital and guarded him there to prevent him attempting to flee again.
38.The decision of 2 December 2008 also referred to the applicant’s statements that immediately before his arrest he had been drinking, and to statements by the investigator from the district police and a police officer who had guarded the applicant at the hospital on 9October 2006 that the applicant had allegedly stated off the record that he had jumped out of the window himself trying to flee, without any influence by the police officers. It also relied on statements by duty police officer T. that in the early morning of 7 October 2006 he had seen on a monitor (no video recordings had been made) that somebody had fallen out of the window of the police station. He had been the first to go near the applicant lying on his back with his hands handcuffed to his front. Nothing had been attached to his hands. In his earlier statements set out in the refusal to open a criminal case of 21October 2006, T. explained that at around 5 to 6 a.m. on 7 October 2006 he had seen on a monitor that somebody was lying near the entrance of the police station. Police officers and ambulance staff approached him. T. had not gone near him himself and had neither seen him nor whether there had been any objects near him.
2.Judicial review of the investigating authority’s decisions
39.Refusals of 17February 2007 and 25April 2007, as well as the refusal of 2December 2008, were reviewed by the domestic courts in accordance with Article125 of the CCrP. The applicant’s complaints concerning the two 2007 refusals were allowed. In decisions of 6March and 13 September 2007 the District Court found that they were unlawful and lacked reasoning. The decision of 6 March was upheld on appeal on 12April 2007 by the Supreme Court of Chuvashiya, which noted that it was necessary to assess the lawfulness of the handcuffing and guarding of the applicant in hospital before his detention in the criminal proceedings. The decision of 13September 2007 also found the Moskovskiy district prosecutor’s failure to enforce the District Court’s previous decision of 6March 2007 unlawful.
40.On 3 November 2009 the District Court dismissed the applicant’s appeal against the most recent refusal to open a criminal case, finding that the investigating authorities had carried out all the measures necessary for establishing the relevant facts fully, objectively and thoroughly, and had taken a reasoned decision on the basis of a full and comprehensive inquiry in accordance with the law. On 10 December 2009 the Supreme Court of Chuvashiya upheld that decision on appeal, noting that in disagreeing with the District Court’s findings, the applicant’s representative had misinterpreted the relevant domestic law.

6.The applicant was born in 1940 and lives in Donetsk.
A.History of the applicant’s conflict with the co-owners of her flat
7.In the end of November2001 the applicant was visited by two unfamiliar men, V.S. and A.N., who offered to buy half of the flat she lived in for 700 United States dollars (USD). It was a one-bedroom flat, measuring 43.3square meters, recently privatised and acquired in equal shares by the applicant and her adult son, Y. The applicant refused to sell her half of the flat. According to her, the price offered was extraordinarily below the market value. In any event, she had no reason to sell the flat, which had been her long-established home for several decades. In response, V.S. and A.N. warned the applicant that she would regret her decision, because Y., (who was married and lived elsewhere), had offered the other half of the flat as a gift to V.S. If the applicant refused to sell her half for the price, which was offered to her, or to exchange it for a smaller flat on the outskirts of the city, V.S. would move into the flat and create intolerable living conditions for her.
8.Subsequently the applicant learned that on 18December 2001 Y. had signed a notarised gift deed in which he transferred his title to half of the flat (which was not as divided into allocated parts of the whole) to V.S.
9.From November 2002 A.N., V.S. and their acquaintances started regularly visiting the applicant’s flat, demanding that she sell. According to the applicant, on numerous occasions they broke the locks, insulted and harassed her and caused damage to her property. Subsequently a part and then the entire of V.S.’s share in the flat was formally acquired by A.N. as a gift, whose value amounted to 5,602 Ukrainian hryvnias (UAH) according to the gift certificates. However, irrespective of this transfer, A.N. and V.S. continued to act in concordance in demanding the applicant move out and sell her share.
10.For instance, on 23November 2002 A.N. and V.S. broke the locks on the entrance door when the applicant was away, entered the flat and, upon the applicant’s arrival, reiterated their demands that she sell her share. As the applicant protested against their presence in the flat and their overall conduct, a conflict emerged, in the course of which A.N. hit the applicant in the chest inflicting a bruise and causing soft tissue swelling.
11.On 26November 2002 A.N., V.S. and several strangers broke into the applicant’s flat again. As they were irritated by the barking of the applicant’s dog, V.S. started kicking her and chased her out. Subsequently the applicant found her dog’s dead body in a garbage container.
12.Also on an unspecified date in November 2002 V.S. arrived in the flat after 11p.m. (when the applicant was already asleep) and opened the balcony door, holding it open for some four hours notwithstanding the freezing temperature outside. In response to the applicant’s subsequent reprimands, he explained that he wished for her to catch a cold as she had been disagreeable.
13.On 15December 2002, when the applicant’s daughter was visiting the applicant, V.S. arrived in the flat again. A conflict emerged, in the course of which V.S. hit the applicant on the head and stomach, inflicting concussion and blunt trauma of the abdominal wall. He also hit the applicant’s daughter on the head and other parts of the body, inflicting cerebral concussion and bruising of legs and arms. As a result of the conflict, the applicant and her daughter had to seek medical assistance for their injuries and the applicant received inpatient hospital treatment.
14.Subsequently V.S. and A.N. started installing in the flat from two to six strangers without the applicant’s consent. These tenants, mostly young males, behaved in a discourteous way. In particular, they organised loud parties; frivolously used, damaged and stole the applicant’s belongings; created insanitary conditions; carelessly used electricity, gas and appliances, frequently left the entrance door open, and ignored requests to contribute towards the maintenance charges on the flat.
15.On numerous occasions the applicant attempted to drive the tenants away or to call them to order. Her efforts resulted in conflicts, in the course of which she was harassed and intimidated. Her attempts to replace the locks on the entrance doors to prevent unauthorised entry into the flat resulted in them being broken and in the tenants, who frequently changed, moving in again, in spite of her discontent. As she was unable to withstand such living conditions and was afraid for her life and limb, the applicant effectively moved out, contending herself with odd living arrangements. However, she paid short visits to the flat regularly, to supervise the situation.
16.In the beginning of June 2003 V.S. drove his car onto the footpath, where the applicant was standing waiting for a bus, scaring and nearly hitting her.
17.On 11July 2003 at about 9.20a.m. V.S. again arrived in the flat, when the applicant was in it, and demanded that she surrender her share. A conflict emerged, in the course of which V.S. punched the applicant in the stomach, causing her physical pain.
18.On three further occasions (30July 2004, 5 August and 1December 2005) the applicant was severely beaten by V.S., twice accompanied by his acquaintance A.L. The applicant suffered physical pain and bruising. On 30July 2005, in addition to that, she also sustained a second concussion, which necessitated inpatient treatment.
19.On various dates the applicant learned that A.N. and V.S. had also acquired ownership of shares in numerous other flats in Donetsk and that they had behaved similarly with the co-owners of these flats, inducing them to sell their shares on unfavourable terms.
B.The applicant’s action for rescission of the gift deed (first set of civil proceedings)
20.On 16 October 2003 the Voroshylivsky district prosecutor instituted civil proceedings on the applicant’s behalf, seeking rescission of the gift deed between Y. and V.S. and the eviction of the latter on the grounds that the gift deed had been executed without the applicant’s consent.
21.On 12 November 2003 the Voroshylivsky District Court of Donetsk (hereafter “the Voroshylivsky Court”) allowed this claim, having found, in particular, that Article113 of the Civil Code of Ukraine of 1963 did not authorise the transfer of title to a part of shared property, which had not been divided into allocated parts and that it also obliged co-owners of a shared property to seek the consent of their counterparts before carrying out transactions in it.
22.On 5February 2004 the Donetsk Regional Court of Appeal (hereinafter “the Regional Court”) quashed this judgment following an appeal by the applicants’ opponent and dismissed the prosecutor’s claim, having found that, unlike in the case of selling part of a shared property, giving it as a gift to a third party did not require the co-owners’ consent.
23.On 10 August 2004 the Supreme Court of Ukraine dismissed the applicant’s and the prosecutor’s requests for leave to appeal in cassation against the Regional Court’s judgment. The judgment became final.
C.The applicant’s action with a view to dispossessing V.S. and A.N. and rescinding their right of occupancy of the flat (second set of civil proceedings)
24.On 5October 2004 the applicant instituted civil proceedings seeking the dispossession of V.S. (joined by A.N., when he acquired part of V.S.’s share and replaced by him, when he acquired the entire share), of his share in the flat, regard being had to his unlawful conduct towards her, the impossibility of joint use of the flat, and his refusal to pay his share of the maintenance costs. She further sought a judicial rescission of their right to occupy the flat and compensation for the costs she had borne on the flat with their shares. The defendants lodged a counterclaim, alleging, in particular, that the applicant had been interfering with their personal life and belongings, provoking conflicts, harassing them and creating intolerable living conditions, which made it impossible for them to fulfil their desire to settle in the flat. They sought damages from the applicant for this conduct and demanded that the flat be divided into allocated parts.
25.On 21 June 2005 the District Court allowed the applicant’s claim in part and dismissed her opponents’ counterclaim. In particular, referring to Article365 of the new Civil Code of Ukraine of 2003, it ordered the dispossession of A.N. (by then the owner of half the flat) of his share against payment by the applicant of compensation in the amount of UAH5,602. The court noted, in particular, that there was extensive evidence that the defendants had allowed numerous strangers to live in the flat; that the applicant had been harassed; and that the flat’s appliances and the applicant’s belongings had been misused and damaged. It further concluded that, regard being had to the flat’s size and layout, it was not possible for the co-owners to use it jointly in a harmonious manner or to have it reasonably divided into two independent halves for each of them to use separately. At the same time, A.N.’s dispossession in return for fair compensation would not put him at a substantial disadvantage, since he had another registered residence and predominantly used the disputed flat for subletting to other persons. The court next found that, since A.N. had received the flat as a gift, fair compensation would be the payment of the indicative price (UAH 5,602) declared by the parties as that share’s value in the latest gift deeds. Finally, the court found that A.N. and V.S. had no longer any right to occupy the flat and ordered partial reimbursement of the maintenance costs incurred by the applicant on the flat.
26.On 20 October 2005 the Regional Court, having reviewed the case on appeal by the applicant’s opponents, upheld the judgment with respect to the reimbursement of the costs borne on the flat by the applicant and the revocation of V.S.’s right to occupy it, as he no longer owned any share in the flat. It then quashed the ruling to dispossess A.N., having noted that, according to the expert assessment, the market value of the disputed flat had been appraised at UAH 147,756, which meant that value of half the flat had been UAH 73,878. The court further stated that the applicant’s claim for dispossession of A.N. and revocation of his right of occupancy had not been based on any legal provision. The relevant part of the judgment read as follows:
“Neither the provisions of the Housing Code of Ukraine nor those of the Civil Code of Ukraine of 2003, which the applicant cites as the basis for her claims, nor the Property Law of Ukraine, envisage dispossession of the owner of his or her property and his or her eviction from a flat owned by him or her on the grounds cited by the applicant.”
27.The applicant appealed in cassation. She noted, in particular, that A.N. and V.S. had acquired shares in a number of Donetsk flats and had deliberately created intolerable living conditions for their co-owners in order to obtain the flats in their entirety on terms grossly unfavourable to the other co-owners. She further alleged that, having no other residence and being a victim of constant harassment, she had abandoned the flat and had been requesting refuge from various acquaintances.
28.On 2December 2005 the district prosecutor also lodged a cassation appeal on the applicant’s behalf, in which he corroborated her submissions that the defendants had been harassing her, had been using the flat in bad faith and had forced the applicant, a senior lady, to leave the dwelling she had occupied for many years. He also alleged that the sum proposed by the applicant in compensation for the defendants’ share in the flat had been fair, as it had been equal to the flat’s value indicated in the gift deeds on the basis of which A.N. had received the disputed share.
29.On 11 January 2006 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal.
30.On 22 January 2006 it likewise rejected the prosecutor’s request for leave to appeal and the Regional Court’s judgment became final.
D.The applicant’s complaints to the law-enforcement authorities and criminal proceedings against A.N., V.S. and A.L.
31.On numerous occasions between 2002 and 2007 the applicant complained to the Voroshylivsky district police in Donetsk (“the district police”) about various instances of verbal and physical harassment, damage to and taking of her property and attempts by V.S. and A.N. to extort her share in the flat.
32.On various dates police officers arrived in the applicant’s flat in response to her calls for help. They examined the situation, questioned the applicant and her opponents, and subsequently refused to institute criminal proceedings (in particular, 22 January, 7 February and 24 December 2002; 22and 24 January, 22 February, 5 and 22 March, 15 July, 30 August, 18September, 12, 16 and 24 October, 4, 15 and 19 November and 5December 2003; 1 June, 3 and 9 August and 15 November 2004, 20January, 23 July, 6 August, 19 November, 13 and 28 December 2005; and 4 and 31 March and 16 and 27 July 2006). In their refusals, the police noted that the prosecution of A.N., V.S. and their acquaintances was unwarranted since the relevant facts disclosed the existence of a chronic domestic conflict between lawful occupants of a flat, who attempted to engage the police in resolving their private disagreements. The hostilities took place inside the household and did not breach the public peace. Both parties had accused each other of provoking conflict and it was not evident, which party had in fact assaulted the other and which had acted out of self‑defence. In any event, during these conflicts the applicant had sustained no serious damage to her health and had not presented any evidence that her belongings had in fact been taken or damaged by the accused individuals. It was not possible to exclude that she had falsified the disappearance of her belongings in order to compromise the unwanted tenants. The police further recommended that the applicant resolve the dispute concerning the use of the flat in civil proceedings and assured her that “pre-emptive conversations” had been had with the purported offenders to foster respectful conduct on their part. On several occasions the police had issued official warnings to them, advising them of the impermissibility of antisocial behaviour.
33.On 30 January 2003 the prosecutor’s office quashed a decision not to institute criminal proceedings in connection with the injuries caused to the applicant on 15December2002. On several occasions the applicant enquired about the status of these proceedings and received no reply. In 2006 the applicant was informed that the investigation had been suspended.
34.On 19October2005 the head of the district police instructed his officers to place the applicant’s flat on the police register for frequent visits with a view to preventing any offences and infringements of applicable law. He noted, in particular, that the investigations had confirmed the applicant’s allegations concerning A.N.’s and V.S.’s disruptive conduct. In particular, it had been established that they had been allowing numerous tenants to live in the co-owned flat, who had brought it into a decrepit and insanitary state. The persons who had been occupying the flat had also taken the applicant’s personal belongings without her authorisation and had used her furniture, equipment and appliances in a careless manner, as a result of which these objects were deteriorating. Moreover, these persons had interfered with the applicant’s ability to access the flat by changing the locks and thus effectively precluding her from living there. He also acknowledged that numerous pre-emptive conversations and warnings given by the police had not brought about any improvements.
35.On several other occasions (in particular, 28 February 2006, 4September 2006, 19 February 2007 and 6 March 2007) the Ministry of the Interior in Donetsk acknowledged, in response to the applicant’s further complaints, that her allegations concerning A.N.’s and his associates’ interference with her home had some basis. They further assured the applicant that her address had been placed on the police register for frequent visits.
36.On 18 July 2006 the applicant lodged a private criminal complaint against V.S., A.N. and A.L. with the Voroshylivsky Court. Relying on Articles 125 and 126 of the Criminal Code of Ukraine, she alleged that the defendants had systematically beaten and verbally harassed her. In this respect the applicant referred to the incidents of 23 November and 15December 2002, 30 July 2004 and 5 August 2005 (see paragraphs 10, 13 and 18 above). She also submitted that, in her view, these incidents had to be approached not as isolated instances of ill-treatment, but as episodes of systematic and premeditated criminal conduct by an organised criminal association functioning with a view to extorting flats from Donetsk residents. She submitted that the same individuals had engaged in similar conduct vis‑à-vis a number of other co-owners of properties in the city. Accordingly, she requested the District Court’s assistance in transmitting her complaints to the public law-enforcement authorities with a view to instituting criminal proceedings concerning extortion and coercion.
37.On various dates five other residents of Donetsk joined the proceedings, alleging that the same defendants had acquired shares in their flats and had been pressurising and terrorising them with a view to extorting the remaining shares.
38.On 19 December 2006 Judge M. of the Voroshylivsky Court decided that the applicant’s and other complainants’ allegations disclosed an appearance that serious crimes, warranting institution of public criminal proceedings, had been committed. Accordingly, the judge instituted criminal proceedings on suspicion of fraud, extortion, coercion, circumvention of the law and several other crimes, and transferred the case to the Donetsk regional prosecutor for investigation.
39.On 24 January 2007 the prosecutor’s office appealed against this decision, alleging that applicable law did not authorise judges to institute public criminal proceedings in the above circumstances.
40.On 27 March 2007 the Regional Court upheld the prosecutor’s office’s appeal and returned the case to the Voroshylivsky Court to be examined by another judge with respect to the complaints which could be addressed in private prosecution proceedings.
41.Subsequently (23 August 2007) Judge P. of the Voroshylivsky Court returned the applicant’s and other complainants’ submissions without examination. She found that the injured parties had failed to comply with the rules on territorial jurisdiction and with other unspecified procedural requirements.
42.On 26 July 2007 the regional police instituted criminal proceedings in respect of a complaint about extortion lodged by a certain A.C., who had allegedly been forced to abandon her flat on account of the intolerable living conditions created by the co-owners of her flat.
43.On 15 August 2007 the police joined the applicant’s complaints concerning extortion to the aforementioned criminal proceedings.
44.On the same date A.N., V.S. and A.L. were arrested and placed in custody.
45.On various further dates complaints by eleven other individuals relating to the same persons’ misconduct were joined to the proceedings.
46.On 29 December 2007 deputy head of the regional prosecutor’s office signed the bill of indictment in respect of A.N., V.S. and A.L. charging them, in particular, under Article189§4 of the Criminal Code, with extorting property in an organised group and transferring the case to the Kyivskiy District Court of Donetsk (hereafter “the Kyivskiy Court”) for trial.
47.On various dates in 2008 the defendants were released from custody pending trial.
48.On 24 May 2011 the Kyivskiy Court acquitted all the defendants of the charges under Article189 of the Criminal Code. It noted, in particular, as follows:
“... The court comes to a conclusion that the basis of the present criminal proceedings is the existence of a private-law dispute between the defendants and the injured parties concerning the use of shared property, which the injured parties demand to resolve by way of criminal proceedings in view of their extremely antagonistic relationship with the defendants.”
49.On 27 February 2012 the Regional Court quashed this verdict on appeal by the prosecution and the injured parties and remitted the case for retrial.
50.On 17 April 2012 the defendants were rearrested and placed in custody.
51.On 12 October 2012 the Kyivskiy Court found that all the defendants were guilty of extortion under Article 189§4 and sentenced them to eleven, ten and eight years’ imprisonment respectively. It also ordered the confiscation of all their personal property. The court found, in particular, that the case-file contained sufficient evidence that the episodes of the applicant’s harassment (listed in paragraphs 10, 12-13 and 16‑18 above) had indeed taken place. It also awarded the applicant UAH35,273.47 in pecuniary and UAH30,000 in non-pecuniary damage to be paid jointly and separately by the defendants.
52.On 6 March 2013, following an appeal by the defendants, the Regional Court upheld this verdict on appeal concerning all points, except one episode unrelated to the applicant’s case.
53.On 18 September 2014 the Higher Specialised Civil and Criminal Court rejected the cassation appeals lodged by A.N. and V.S.
58.In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention.
59.The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, and ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge.

5.The applicant was born in 1977 and is currently serving a life sentence in Ladyzhynska prison no. 39.
A.Criminal proceedings against the applicant and his alleged ill‑treatment by the police
6.In the evening on 17 August 2005 the applicant arrived from Sumy, where he lived, to Kyiv. Shortly thereafter, at 21.20 p.m., while still being at the railway station, he was arrested on suspicion of two counts of murder and robbery committed earlier that month in Sumy. Some items belonging to the victims were found in his luggage.
7.The applicant stated in his application that no coercive measures had been applied to him during or after his arrest on 17 August 2005. He also noted that immediately after his arrest he had been brought to the local police station, where the officer on duty had examined him and had drawn up a report about his injuries in the presence of two attested witnesses. The report stated that the applicant had abrasions on his back and stomach.
8.The applicant spent the night at the police station, without any investigative measures undertaken.
9.On 18 August 2005 three police officers, who had arrived from Sumy, transported the applicant to that city (340km from Kyiv) in their vehicle.
10.The applicant’s account of the subsequent events is as follows. He was handcuffed and had one of his ankles shackled in a tight manner. When he protested, one of the officers hit him several times in the stomach. The police stopped their car in a forest, made him go out and subjected him to cruel ill-treatment with a view to extracting his confession to the investigated criminal offences. Theapplicant maintained that he had only witnessed the offences in question, whereas those were his acquaintances, A. and Se., who had committed them. The police officers severely beat him all over his body. Subsequently they undressed him, stuffed his mouth with earth and grass, and raped him with a wooden stick. The applicant urinated involuntarily. He conceded to all their requirements. After a pause, during which the officers drank alcohol, while the applicant stayed in the car with the driver, they made him “rehearse” his confessions. They insisted that he should plead guilty without mentioning the involvement of anybody else.
11.The police car arrived at the Kovpakivskyy police station in Sumy at about 6 p.m. on 18 August 2005.
12.According to the case-file materials, on 18 August 2005, at 6.20p.m., the applicant’s arrest was reported and his rights of a criminal suspect were explained to him.
13.On the same day, at 7 p.m., a forensic medical expert (a woman), acting at the investigator’s instruction, examined the applicant, who was naked. She finalised the examination report on 16 September 2005, in which she documented the following injuries: abruise measuring 2 x 1 cm in the applicant’s left temple, another bruise of about the same size on the right part of his head, a6x0.2cm bruise and abrasion under his right eye, a horizontal linear abrasion on the right part of his torso measuring 3 x0.6cm, a bruise of 2 x 1 cm and a vertical linear abrasion measuring 18x 3 cm on his left thigh. Furthermore, there were linear abrasions up to 1cm wide around both wrists of the applicant. The applicant explained the origin of his injuries as follows: upon his arrival to Kyiv some unknown persons had beaten him up at about 9 p.m. at the railway station. The expert stated that the injuries in question had been inflicted “by blunt hard objects” and that the applicant could have sustained them at the time he indicated. Lastly, the injuries were evaluated as insignificant.
14.The applicant submitted that the expert had not reported all his injuries and that he had not dared to complain to her of his ill-treatment, firstly, because of the presence of the officers in question during his examination and, secondly, because he had been ashamed in front of a woman.
15.As indicated by the applicant in his application form and confirmed by the case-file materials, from 7.20 to 10.50p.m. on 18August 2005 he was questioned in respect of and confessed to one count of murder (of MsCh.), in the presence of a lawyer, Mr M., appointed for him by the investigator. More specifically, he submitted that Ms Ch. had been his acquaintance, he had met her by chance near a forest, they had had a conflict and he had killed her with a knife that had fallen out of her picnic bag. The applicant also stated that he had taken the victim’s jewelleries and mobile phone and had sold them.
16.Furthermore, according to the applicant’s account submitted in his application form, his questioning had started before and continued during his medical examination, in the presence of many police officers including those who had ill-treated him. He also alleged that he had not had the possibility to talk in private to the lawyer, who, in any event, had not shown any interest in the case and had remained passive.
17.In his reply to the Government’s observations on the admissibility and merits of the application, the applicant submitted a different version of the events: that his first questioning had actually taken place on 19August 2005 and that its report had wrongly been dated 18August 2005.
18.The applicant was placed in the Sumy Temporary Detention Facility (“the Sumy ITT”, a part of the police infrastructure), in which he was detained until his transfer to the Sumy Pre-Trial Detention Centre (“the Sumy SIZO”) on 7 October 2005.
19.On an unspecified date the administration of the Sumy ITT issued an information note about the meetings the applicant had with police officers. It appears that two of the officers, who had convoyed him from Kyiv to Sumy and whom he accused of his ill-treatment, visited him in the ITT on seven occasions during the period from 18 August to 7 October 2005.
20.On 19 August 2005, during the crime reconstruction, the applicant reiterated his confession to MsCh.’s murder and the theft of her belongings.
21.On the same date the applicant was questioned, in the presence of his lawyer Mr M., in respect of another count of murder, of Ms S. (some household appliances from her flat and her husband’s military identity card had been found in the applicant’s luggage following his arrest on 17August 2005 – see paragraph 6 above).
22.On 27 and 30 August 2005 the applicant reiterated his confessions. During his questioning on the last-mentioned date he, however, modified his account of the events as regards the murder of Ms Ch. He submitted that he had in fact used his own butterfly-type knife, which he had bought at a market in July that year.
23.On 1 September 2005 a reconstruction of the criminal offences was carried out, during which the applicant maintained his confessions, in the presence of his lawyer.
24.According to the applicant, on 28 September 2005 his lawyer and the investigator had an informal conversation with him. They requested him to tell them the truth regarding his role in the criminal offences under the investigation. By that time the applicant had written seven “pleas of guilt”, but, as his interlocutors had supposedly stated, none of them appeared convincing. The applicant complained of his ill-treatment and submitted that he was remaining under the constant pressure on the part of the police officers concerned. The investigator promised him to take measures to protect him.
25.During his questioning on 30 September 2005 the applicant retracted his earlier confessions as obtained under duress. He stated that he had only been a witness of the crimes and that the murders had been committed by other persons, A. and Se., who had later forced him to sell the property belonging to the victims. The applicant indicated those persons’ first names and physical description.
26.Two police officers implicated in the alleged ill-treatment of the applicant visited him in the SIZO (where he had been transferred from the ITT on 7 October 2005) on 18, 22 and 30 November 2005. They allegedly continued putting pressure on him, to which the investigator failed to react.
27.On 31 January 2006 the investigator in charge of the applicant’s criminal case was replaced.
28.On an unspecified date in January 2006 Mr M. allegedly admitted in his conversation with the applicant’s mother that he was under pressure and was not therefore in a position to duly defend her son’s rights.
29.On 6 February 2006 the applicant started to be represented by Ms S., a lawyer contracted by his mother, instead of the appointed lawyer Mr M.
30.On 13 February 2006 the formal charges of two counts of murder for profit and aggravated robbery were brought against the applicant. During his questioning on that date the applicant stated once again that his initial confessions had been the result of his ill-treatment by the police officers who had ensured his transfer from Kyiv to Sumy on 18 August 2005 (see paragraphs 9 and 10 above).
31.On 15 February 2006 an investigator of the Sumy Regional Prosecutor’s Office refused to institute criminal proceedings in respect of the applicant’s complaint of ill-treatment by the police officers for the lack of corpus delicti in their actions. It was noted in the decision that the applicant had raised that complaint for the first time during his questioning on 13February 2006. The officers concerned denied the veracity of his allegations. One of them submitted that the applicant had voluntarily decided to confess to the criminal offences in question during his transfer from Kyiv to Sumy. Although the applicant had some injuries, he had himself explained that he had sustained them during a conflict with unidentified persons prior to his arrest.
32.On 21 March 2006 the above decision was sent to the applicant with a note that he could challenge it before a court within seven days of the date of its receipt. The applicant did not, however, appeal against that decision. According to him, he intended to raise the complaint of his ill-treatment during his trial as his lawyer had advised him.
33.On 12 May 2006 the Sumy Regional Court of Appeal (“the Sumy Court”) sitting as a court of first instance found the applicant guilty as charged and sentenced him to life-term imprisonment with confiscation of all his property. The court relied on the applicant’s confessions made during the pre-trial investigation as eventually modified by him (see paragraph22 above). It noted certain factual inconsistencies in his statements, but considered them insignificant. The court also took into account the forensic and material evidence in the case. Namely, it could not be ruled out that the blood discovered under Ms Ch.’s fingernails could have originated from the applicant. Nor could it be excluded that the applicant had smoked the cigarettes found at the crime scene in Ms S.’s flat. Furthermore, certain items belonging to the victims had been discovered on him or sold by him to other persons, which he did not contest.
34.The applicant had requested the court to summon a number of witnesses, who might have seen him in a local bar together with A. and Se. or who might have been able to identify those persons. The court called numerous witnesses indicated by the applicant, but not all of them. Those heard by the court could not identify the persons described by the applicant.
35.The trial court examined and dismissed as unfounded the applicant’s allegation of his ill-treatment by the police. It noted that although some injuries had been detected on him following his arrest, he had himself explained their origin as resulting from his beating by unknown persons. Furthermore, he had stated in writing that he had no complaints against the police. Lastly, the court noted that the applicant had complained for the first time about his ill-treatment only on 13 February 2006. It relied on the prosecutor’s decision of 15 February 2006 not to initiate criminal proceedings against the police, which the applicant could but had not challenged.
36.On the same date the Sumy Court also issued a separate ruling criticising the applicant’s delayed transfer from the Sumy ITT to the SIZO (see paragraph 18 above). It noted that instead of the legally established maximum of three days the applicant had been detained in the ITT for three weeks.
37.Both the applicant and the lawyer acting on his behalf appealed against the conviction, arguing principally that the applicant’s guilt had not been proven (there had been no sufficient material evidence and the statements of the applicant and of the witnesses had been inconsistent) and that the conviction was based on the applicant’s statements obtained under duress. They also argued that the court had not allowed the applicant’s requests to summon a witness who had been acquainted with the supposed murderers and that the statements of several witnesses who had allegedly seen those persons had not been attached sufficient weight.
38.On 17 August 2006 the Supreme Court partly changed the reasoning of the verdict, having upheld, on the whole, the findings of the first-instance court and the applicant’s sentence. The Supreme Court noted that the applicant’s complaints of ill-treatment were unsubstantiated and that they had been rejected by the prosecutor’s decision against which the applicant had failed to lodge an appeal. The Supreme Court also noted that the applicant’s allegation about other persons’ responsibility for the crimes had been duly examined at the pre-trial stage and during the trial and that it was unsubstantiated.
39.On 9 April 2007 the applicant was transferred from the SIZO to Ladyzhynska prison no. 39 to serve his sentence.
B.Other relevant facts
40.On 31 January 2007 the Registry of the Court acknowledged receipt of the completed application form from the applicant. By the same letter it requested him to specify whether he had appealed against the prosecutor’s decision of 15February 2006 and to provide a copy of his cassation appeal, as well as any other documents in substantiation of his complaints under Article 6 § 3 (c) and (d) of the Convention.
41.On 31 May 2007 the applicant informed the Court that he had not challenged the decision in question. He also sent a copy of the cassation appeals against his conviction lodged by him personally and by his lawyer.
42.On 6 July 2007 the Registry wrote to the applicant that his case was ready for examination by the Court and that he would be informed about the subsequent procedures in due time.
43.The applicant submitted numerous supplements to his application. He provided, in particular, extensive details as regards the conditions of his detention in the pre-trial detention facilities in Sumy (the ITT and the SIZO). Subsequently the Court declared those complaints inadmissible (see paragraph 4 above). As regards the applicant’s conditions of detention in Ladyzhynska prison no. 39, the submissions before the Court are confined to the following two letters from the applicant’s mother.
44.On 24 November 2009 the Registry received a letter from the applicant’s mother (who represented him at the time) of an unspecified date, in which she submitted that her son was in a desperate situation in prison being subjected to constant beatings and humiliations. She noted that he had been “placed in a cell without light for seven days” and that he “had been wearing a winter hat whereas the temperature was about 30ºC”.
45.On 10 October 2011 another letter from the applicant’s mother was received, in which she submitted that the conditions of his detention in the prison amounted to his “constant torture”. In substantiation, she enclosed an incomplete photocopy of the applicant’s letter to her dated 9August 2011. The applicant had complained to his mother about poor conditions in the prison, about his harassment by the guards and about having had to share his cell with an inmate, with whom he had a conflict. He had also written that he had cut his left wrist as a protest and that no adequate medical care had been provided to him in that regard.

5.The applicant was born in 1977 and lives in Athens.
6.While studying in Turkey (1994-1999) the applicant had become a pro-communist and pro‑Kurdish political activist. In 1997 he opened a literary café, which was frequented by individuals favourable to such a political stance. In 2000 the Turkish police arrested the applicant, and he was prosecuted for infringing State constitutional order (Article 146 of the Turkish Criminal Code). The applicant was also held in the “white (isolation)cells” in Kandra Prison. He went on hunger strike for 171 days, causing him to develop Wernicke-Korsakoff syndrome, a pathology which can cause irreversible damage to health and prove fatal. Given the threat to the applicant’s life, the Turkish authorities decided to release him.
7.In 2002 the applicant fled to Greece, where he submitted an asylum application on 15 January 2002. On 18 February 2002 the General Secretary of the Ministry of Public Order, adjudicating at first instance, rejected that application, giving summary reasons.
8.On 21 March 2002 the applicant appealed to the Ministry of Public Order against that decision. On 29 January 2003, having been summoned to attend the Advisory Board on Asylum, he presented the latter with a number of documents showing that he had suffered torture in Turkey on account of his political opinions, including a medical report drawn up by the Greek Medical Centre for the Rehabilitation of Torture Victims and an Amnesty International document. On the same day the Advisory Board on Asylum issued a favourable opinion in respect of the applicant.
9.Further to that favourable opinion, under Article 3§5 of Presidential Decree No. 61/1999 (on the procedure for the examination of asylum applications), the Minister for Public Order should have taken a decision within twenty-four hours on whether or not to grant the applicant international protection. However, by the date on which the application was referred to the Court, the Minister had not taken any decision and therefore had neither ratified nor rejected the Board’s opinion.
10.Between 2003 and 2015 the applicant lived in Athens and attended the police station every six months in order to renew his asylum-seeker’s card. Under domestic law that card did not constitute a residence permit and therefore did not secure all the attendant rights: it only allowed the asylum-seeker not to be expelled and to reside in the national territory with “tolerated status” while his application was being examined. More specifically, under domestic law the asylum-seeker was not entitled to engage in an occupation, undertake vocational training, marry, obtain a driving licence, hold a bank account or apply for family reunion.
11.In 2003, while he was living in Athens, the applicant was joined by his wife from Turkey. However, her presence in Greece only became lawful in 2008, when she obtained a short-term work permit. In 2010 the couple had a son. In 2011 the applicant’s wife returned to Istanbul with the child owing to health problems. The couple divorced in 2012.
12.Meanwhile, on 5 August 2005, the Turkish Interpol Office had issued an extradition request in respect of the applicant. That request had been based on accusations similar to those used in 2000 which had been assessed by the Greek authorities during the examination of his asylum application.
13.On 12 March 2013 the applicant was arrested in Patras. On 26 March 2013 the indictment division of Patras Court of Appeal examined the extradition request and unanimously decided to reject it. The division based its decision on the risk run by the applicant of suffering ill-treatment on account of his political opinions, should he be extradited. It further noted that the nature of the offences for which extradition had been requested had only been described vaguely and abstractly in the request submitted by the Turkish authorities.
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14.On 27March 2013 the public prosecutor appealed to the Court of Cassation against the decision of the indictment division of Patras Court of Appeal.
15.On 26 April 2013 the Court of Cassation upheld the impugned decision.
16. The applicant had meanwhile been actively seeking to secure a final decision. He had written to the Ombudsman of the Republic on 21 March and 25 June 2012, and to the Minister for Public Order on 19November 2013, 16 June 2014 and 27 February 2015.
17.Furthermore, it emerged from correspondence among a number of different authorities (between police authorities and between the police and other authorities) on 23February 2007, 16 October 2012, 14November 2012 and 28January 2015, that the applicant’s asylum application was still pending before the Minister for Public Order.
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5.The applicants were born in 1996 and 1995 respectively. At the time of the introduction of the application the two applicants were detained in Safi Barracks Detention Centre, Safi, Malta.
A.Background to the case
1.Mr Burhaan Abdullahi Elmi (the first applicant)
6.Mr Burhaan Abdullahi Elmi entered Malta in an irregular manner by boat on 16 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12U-029). During the registration process the immigration authorities asked the applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1996 and therefore was sixteen years old. The Government claimed that he was seventeen years old. Although no interpreter was present the applicant was helped by some other irregular immigrants who had arrived with him and who could speak English.
7.He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the first applicant that his 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 him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.
8.The first applicant claimed that the contents of the decision in English were not explained to him, and that he 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.He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the first 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 first applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks, and in 2013 was moved to BlockB.
2.Mr Cabdulaahi Aweys Abubakar (the second applicant)
11.Mr Cabdulaahi Aweys Abubakar entered Malta in an irregular manner by boat on 31 August 2012. Upon arrival, he was registered by the immigration police and given an identification number (12W-062). During the registration process the immigration authorities asked the second applicant to provide his personal details, including name, nationality, and age. He informed them that he was born in 1995 and therefore was seventeen years old.
12.He was then presented with two documents in English, one containing a Return Decision and the other a Removal Order. The Return Decision stated that he was a prohibited immigrant by virtue of Article5 of the Immigration Act (Chapter 217 of the Laws of Malta) because he was in Malta “without means of subsistence and liable to become a charge on public funds” and “without leave granted by the principal Immigration Officer”. The Return Decision also informed the second applicant that his 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 him that he would remain in custody until removal was affected and that an entry ban would be issued against him. The two documents further informed him of the right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.
13.The second applicant claimed that the contents of the decision in English were not explained to him, and that he 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.
14.He was further provided with an information leaflet entitled “Your entitlements, responsibilities and obligations while in detention” in Arabic, a language he did not understand. According to the Government the second applicant did not request a booklet in another language.
15.In accordance with Article 14 (2) of the Immigration Act (see Relevant domestic law), the second applicant was detained. He was originally detained in Warehouse 2 at Safi Barracks and in January 2013 was moved to Block B.
B.Asylum proceedings
1.Mr Burhaan Abdullahi Elmi
16.A few days following Mr Burhaan Abdullahi Elmi’s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the Preliminary Questionnaire (PQ), thereby registering his wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta (see Relevant domestic law, below). He stated on the form that he was sixteen years old.
2.Mr Cabdulaahi Aweys Abubakar
17.A few days following Mr Cabdulaahi Aweys Abubakar’s arrival he was called for an information session provided by the Staff of the Office of the Refugee Commissioner. He was assisted in submitting the PQ, thereby registering his wish to apply for asylum. He stated on the form that he was born in 1995 and was seventeen years old.
C.The AWAS Age-Assessment Procedure
1.Mr Burhaan Abdullahi Elmi
18.In Mr Burhaan Abdullahi Elmi’s case, on 31 August 2012 he was referred to AWAS for age assessment. Within a few weeks of his arrival, three people from AWAS interviewed him. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a further age verification (FAV) test ‑ this would be an X-ray of the bones of the wrist. He was taken for the FAV test shortly after his interview. The first applicant claimed that, some weeks later, in or around October 2012, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly.
19.Until the date of the lodging of the application, that is eight months after his arrival in Malta, Mr Burhaan Abdullahi Elmi had not received a written decision informing him of the outcome of the age‑assessment procedure, and was still in detention.
2.Mr Cabdulaahi Aweys Abubakar
20.In Mr Cabdulaahi Aweys Abubakar’s case, on 18September2012 he was referred to AWAS for age assessment. He was interviewed by three people from AWAS in the third week of September 2012. After the interview they informed him that as they could not confirm his minor age through the interview they would send him for a FAV test. He was taken for the FAV test on 8 February 2013, five months after his interview with AWAS. The second applicant claimed that, some weeks later, in March2013, he was informed verbally by AWAS staff that he was found to be a minor and that he would be released shortly.
21.Until the date of the lodging of the application, that is almost eight months after his arrival in Malta, Mr Cabdulaahi Aweys Abubakar had not received a written decision informing him of the outcome of the age‑assessment procedure, and was still in detention.
22.In the meantime both Mr Cabdulaahi Aweys Abubakar and members of the Jesuit Refugee Service who visited him in detention contacted AWAS on a number of occasions to inquire about the case, but no reply was forthcoming.
D.Conditions of detention
1.Mr Burhaan Abdullahi Elmi
23.Mr Burhaan Abdullahi Elmi claims to have been held in very difficult conditions of detention with adult men of various nationalities. In Warehouse 2 and Block B, of Safi Detention Centre, physical conditions were basic and he often lacked the most basic necessities, including clothing, particularly shoes, which were only replaced every four months. Recreational activity was limited, and the yard was taken over by adult males, making it difficult for a young person like him to play with them. Educational activities were virtually non-existent. There was a lack of information, difficulties communicating with the outside world, and obstacles in obtaining the most basic services. Moreover, the centre was overcrowded and lacked protection from abuse and victimisation. Fights often broke out between men of different origins, nationalities or tribes, and he also referred to an episode where he had been beaten up by a fellow detainee. Noting there was no privacy or security, Mr Burhaan AbdullahiElmi stressed that he felt very insecure in detention, and that his food was often stolen by detainees as was his blanket. He explained that Warehouse 2 was worse than Block B, it was like a big hall of people, hundreds of people, and he had a bunk bed in this big warehouse. He considered that the conditions in Warehouse 2 were very similar to those in Warehouse 1, which had been documented in a number of reports, including two CPT reports of 2007 and 2011. The first applicant also stated that he had difficulty communicating with a doctor in the absence of an interpreter and that he suffered from dizziness and eye problems.
2.Mr Cabdulaahi Aweys Abubakar
24.Mr Cabdulaahi Aweys Abubakar’s narration about the conditions of detention in Warehouse 2 and Block B are similar to those referred to by the first applicant. Mr Cabdulaahi Aweys Abubakar also noted that in the first two weeks of his detention he had had stomach pains, but no doctor was available, nor was an ambulance called. He alleged that he had headaches and rashes on his scalp; however, the detention authorities would not provide him with the shampoo prescribed by the doctor. He noted that in October 2012 the detention authorities had not taken him to a hospital appointment; it had had to be rescheduled to March 2013. On that date, the doctor prescribed medication, however, up to the date of the introduction of the application (17 April 2013) this had not been forthcoming. He also referred to an incident in which he had been beaten up by a fellow detainee who had allegedly also previously attacked another detainee with a knife. He noted that when he arrived in detention he was given two bed sheets, a blanket, a T-shirt, and two pairs of underwear, but no shoes, not even flip‑flops. The second applicant further explained that they were fed chicken every day and that he was unable to keep in touch with his relatives, as the five-euro phone card distributed to them every two months only allowed four minutes of talk time to Somalia.
E.Latest developments
1.Mr Burhaan Abdullahi Elmi
25.The Government informed the Court that following the lodging of the application with the Court, on 19 April 2013 Mr Burhaan Abdullahi Elmi was released from detention under a care order and placed in an open centre for unaccompanied minors. He subsequently left Malta before the termination of his asylum proceedings; indeed the last day of registration at the open centre was 2 August 2013. In the absence of any further contact with the Office of the Refugee Commissioner, on 31 August 2013 the applicant’s asylum claim was implicitly “withdrawn as discontinued”.
26.It appears that the first applicant absconded and went to Germany and was held by the German authorities, who in turn requested the Maltese authorities to take him back in terms of the Dublin Regulation. Following the acceptance of that request on 7May 2014 the Maltese authorities were informed by the German authorities that return was suspended pending proceedings in Germany.
27.In a signed declaration sent to the Court by his legal representatives the first applicant admitted to being in Schonbach, Germany, as he was waiting there for the outcome of the judicial proceedings as to whether he would be sent back to Malta in terms of the Dublin II Regulation to have his asylum claim determined.
2.Mr Cabdulaahi Aweys Abubakar
28.The Government informed the Court that following the lodging of the application with the Court, on 24 April 2013 Mr Cabdulaahi AweysAbubakar was released from detention under a care order and placed in an open centre for unaccompanied minors. He was granted subsidiary protection on 14 September 2013.
40.Under European Union law, in particular Article 24 of The Reception Conditions Directive provides guidance on the type of accommodation to be provided to unaccompanied minors, which must be with adult relatives, with a foster family, in reception centres with special provisions for minors, or in other suitable accommodation. Detention of unaccompanied minors is not fully prohibited but is only allowed in exceptional circumstances and never in prison accommodation (Article11 (3) of the Recast Directive). The directive considers that a ‘minor’ means a third-country national or stateless person below the age of 18 years; it also notes that applicants aged sixteen and over, but under the age of eighteen and therefore still minors, may be placed in accommodation centres for adult asylum seekers, but only if it is in the best interests of the child[1].
41.In so far as relevant the United Nations Convention on the Rights of the Child, of 20 November 1989, ratified by Malta in 1990, reads as follows:
Article 1
“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”
Article 2
“1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”
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, 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.”
Article 37
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(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. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(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.”
42.In Recommendation Rec(2003)5 of the Committee of Ministers of the Council of Europe, to member States, on measures of detention of asylum seekers, adopted by the Committee of Ministers on 16 April 2003 at the 837th meeting of the Ministers’ Deputies, the Committee of Ministers recommended, in particular in respect of minors, that:
“20. As a rule, minors should not be detained unless as a measure of last resort and for the shortest possible time.
21. Minors should not be separated from their parents against their will, nor from other adults responsible for them whether by law or custom.
22. If minors are detained, they must not be held under prison-like conditions. Every effort must be made to release them from detention as quickly as possible and place them in other accommodation. If this proves impossible, special arrangements must be made which are suitable for children and their families.
23. For unaccompanied minor asylum seekers, alternative and non-custodial care arrangements, such as residential homes or foster placements, should be arranged and, where provided for by national legislation, legal guardians should be appointed, within the shortest possible time.”
43.In Recommendation 1985 (2011) of the Parliamentary Assembly of the Council of Europe, of 7 October 2011, entitled “Undocumented migrant children in an irregular situation: a real cause for concern”, the Parliamentary assembly considered that undocumented migrant children are triply vulnerable: as migrants, as persons in an undocumented situation and as children. They recommended that member States refrain from detaining undocumented migrant children, and protect their liberty by abiding by the following principles:
“9.4.1. a child should, in principle, never be detained. Where there is any consideration to detain a child, the best interest of the child should always come first;
9.4.2. in exceptional cases where detention is necessary, it should be provided for by law, with all relevant legal protection and effective judicial review remedies, and only after alternatives to detention have been considered;
9.4.3. if detained, the period must be for the shortest possible period of time and the facilities must be suited to the age of the child; relevant activities and educational support must also be available;
9.4.4. if detention does take place, it must be in separate facilities from those for adults, or in facilities meant to accommodate children with their parents or other family members, and the child should not be separated from a parent, except in exceptional circumstances;
9.4.5. unaccompanied children should, however, never be detained;
9.4.6. no child should be deprived of his or her liberty solely because of his or her migration status, and never as a punitive measure;
9.4.7. where a doubt exists as to the age of the child, the benefit of the doubt should be given to that child;”
44.Prior to the above recommendation, in Resolution 1707 (2010) 28January 2010, the Parliamentary Assembly, called on member states of the Council of Europe in which asylum seekers and irregular migrants are detained to comply fully with their obligations under international human rights and refugee law, and encouraged them to abide by a number of guiding principles, inter alia, that vulnerable people should not, as a rule, be placed in detention and specifically that unaccompanied minors should never be detained.
45.TheReport by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe following his visit to Malta from 23 to 25March 2011, 9 June 2011, paragraphs 19-20, reads as follows;
“19. At the end of their detention, migrants, including refugees, beneficiaries of subsidiary protection, asylum seekers and persons whose asylum claims have been rejected, are accommodated in open centres around Malta. Conditions prevailing in these centres vary greatly, with adequate arrangements reported in the smaller centres that cater for some vulnerable groups, such as families with children or unaccompanied minors, and far more difficult conditions in the bigger centres. As mentioned above, when the Commissioner’s visit took place the number of irregular arrivals had been very low for over 18 months and the 2011 arrivals from Libya had not yet started. As a result, the vast majority of migrants had moved out of the detention centres and were living in open centres, with the respective populations numbering at 49 and 2 231 respectively. The Commissioner visited the detention centre in Safi, and three open centres - the Hal-Far tent village, the Hangar Open Centre in Hal-Far and Marsa.
20. At the time of the visit the material conditions in the Safi detention centre, where all 49 of the migrant detainees were kept, appeared to be considerably better than those in open centres. Although a number of issues remained to be addressed, including those regarding the detainees’ access to a diversified diet and water other than from the tap, the premises visited, including the dormitories, toilets and showers had been recently refurbished. The only female detainee of the centre was accommodated in a separate facility. The Commissioner wishes to note however, that in accordance with the mandatory detention policy referred to above, most of the persons (approximately 1 100) who have arrived from Libya since his visit have been placed in detention centres. This is naturally bound to have a significant impact on the adequacy of the conditions in these centres.”
46.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 19 to 26May 2008, 17February 2011), in so far as relevant reads as follows:
“52. In accordance with Maltese policy on administrative detention of foreigners under aliens’ legislation, all foreigners arriving illegally in Malta are still detained for prolonged periods, in the case of asylum seekers until such time as their request for refugee status is determined (normally 12 months) and for irregular immigrants for up to a maximum of 18 months. In practice, however, some may spend even longer periods in detention. The only declared exceptions to this general rule concern persons deemed to be vulnerable because of their age and/or physical condition, unaccompanied minors and pregnant women ...
53. The situation found in the detention centres visited by the delegation had not substantially improved since the CPT’s previous visit in 2005. Indeed, many of the problems identified in the report on that visit still remain unresolved. In several parts of the detention centres, the combined effects of prolonged periods of detention in poor, if not very poor, material conditions, with a total absence of purposeful activities, not to mention other factors, could well be considered to amount to inhuman and degrading treatment.
...
60. At Safi Barracks Detention Centre, which at the time of the visit accommodated a total of 507 immigration detainees, living conditions for detainees had slightly improved in comparison to the situation observed by the CPT in 2005.
At Warehouse No. 1, living conditions were less cramped than when last visited by the CPT, and the toilet facilities were new and clean. That said, the Committee has strong reservations as regards the use of converted warehouses to accommodate detainees. This should only be seen as a temporary - and short term - solution.
B Block has been refurbished since the CPT’s last visit. The sanitary facilities have been renovated and a large exercise area is at the disposal of the immigration detainees. However, conditions were still difficult in certain rooms, where immigration detainees were sleeping on mattresses on the floor.
Surprisingly, poor conditions of detention were observed in the new C Block. Living conditions were cramped, access to natural light was insufficient and ventilation very poor. Further, access to running water was limited, as well as access to hot water, the latter being unavailable for prolonged periods.
In addition, the internal regulation in force at Safi Barracks provided for the compulsory closing of the doors in B and C Blocks every afternoon at 5 p.m., thereby preventing access to the outdoor yard. This exacerbated significantly the already far from ideal living conditions in these blocks.”
47.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 30September 2011, published on 4 July 2013, in so far as relevant in connection with Safi barracks, reads as follows:
“44. At the time of the visit, Safi Detention Centre was accommodating a total of 506 male adult detainees (236 in Warehouse No. 1, 113 in Warehouse No. 2 and 124 in Block B).
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.
...
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. ... 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.
However, material conditions of detention were still appalling in the two Warehouses at Safi Barracks. In particular, at Warehouse No. 1, foreign nationals were being held in extremely crowded conditions and the sanitary facilities consisting of seven mobile toilets (without a flush) and seven mobile shower booths, located in the outdoor exercise yard, were in a deplorable state. In fact, the Warehouses are not suitable for accommodating persons for prolonged periods, but should only be used in the event of an emergency.
The CPT recommends that the Maltese authorities take the necessary measures to ensure that all immigration detainees currently being held in the two Warehouses at Safi Barracks are transferred as soon as possible to Ta’ Kandja Detention Centre and that both Warehouses are in future only used for short‑term detention in emergency situations.
...
57. At Safi Detention Centre, conditions of detention in the two warehouses were further exacerbated by the total lack of any organised activities. The situation was slightly better, but far from satisfactory in Block B, where detainees could play football in the exercise yard (surrounded by high walls), which was accessible from 8.30 a.m. to 7 p.m.
The CPT calls upon the Maltese authorities to introduce a regime providing purposeful activities to foreign nationals held at Safi [and Ta’ Kandja Detention] Centres.
...
58. Medical and nursing services in detention centres for foreigners were provided by two separate privately-run companies. There was a pool of doctors ensuring the presence of one doctor from Mondays to Fridays (including public holidays), for five hours per day at Safi [and four hours per day at Lyster Barracks]. Further, a nurse was present in each detention centre from Mondays to Fridays from 8 a.m. to 3 p.m. In addition, at Safi Barracks, a nurse from the local health-care service came to the establishment to administer medication requiring supervision in the evenings and at weekends.
The CPT must stress that, given the size of the inmate populations, the current arrangements for the provision of health care were clearly insufficient to ensure that detainees’ health problems were dealt with in a timely and effective manner. The delegation was overwhelmed by complaints from detainees about delays in seeing a doctor (up to several days) and, subsequently, in receiving prescribed medicines (up to one week). In practice, only a limited number of requests (usually five) per detention block were forwarded by detention officers to the nurse on duty on a first-come first‑served basis. This was described by many detainees as source of constant tension among themselves. ...
In the two Warehouses at Safi Barracks, the delegation observed that a significant number of detainees were lying in bed all day in total apathy. Given that nurses never entered the detention areas, the likelihood was great that detainees in need of urgent psychological support remained undetected for a long time. Regrettably, both centres were still not being visited by a psychologist and a psychiatrist.
Another major shortcoming was the lack of systematic medical screening of detainees upon admission to a detention centre. The delegation was informed by health-care staff that, on arrival at the port, all foreign nationals had undergone a chest X-ray, but no further screening was performed at the detention centres. In this regard, the CPT wishes to recall that systematic medical screening is not only an essential means of protecting detainees and staff alike (in particular, with regard to transmissible diseases) but also an important safeguard against ill-treatment. ...
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.”
In their report the CPT noted that, at Safi Detention Centre, attempts were made by the management to provide misleading information and to hide from the delegation a significant number of complaints which had been lodged by foreign nationals.
48.In a report by the International Commission of Jurists (“ICJ”) entitled “Not here to stay”, Report of the International Commission of Jurists on its visit to Malta on 26‑30 September 2011, May 2012, which assessed migration and asylum practice in Malta (at the time of the Libyan crisis), the ICJ expressed concern that the Safi Barracks detention centres, including B-Block, were located on two military bases – a situation at odds with international law and standards. The ICJ report concluded that the accumulation of poor conditions of detention, brought the situation in the Safi Barracks detention centre beyond the threshold of degrading treatment, in violation of Malta’s international human rights obligations under Article3 of the Convention.
49. They considered that a lesser, though still worrisome, situation of overcrowding existed in B-Block of the Safi Barracks at the time of the ICJ visit. While this centre was provided with open cells, these were overcrowded with bunk beds, and the only privacy was that which had been tentatively achieved through hanging blankets from the top of the bunks. In their view in B-Block, the kitchen and the bathroom appeared rather dirty.
50.They noted, inter alia, that in the Warehouse the number of toilets and showers appeared to the delegation to be insufficient in comparison to the number of people detained. The migrants detained in Warehouse One had no facilities for cooking, mainly due to the structure of the detention centre, which did not allow for a kitchen, big enough for all detainees, to be installed.
51.Other relevant extracts from their report read as follows:
“There is a lack of leisure facilities in the detention centres visited. In Warehouse One, the only entertainment was provided by a single television in the main common room and by the recreation-yard. In B-Block, there was also a recreation‑yard, although of rather limited dimensions, and the detainees expressly complained of the lack of means of recreation, claiming that they had only one ball at their disposal. No books seemed to be present in the detention facilities.” ...
“The detainees in Warehouse One also complained about the clothing provided to them. According to them, clothes were given to them through charity and some of them were wearing very worn out t-shirts.” ...
“ [the ICJ] considers that in Safi Barracks, the accumulation of poor conditions of detention, including sanitary conditions, together with the apparent existence of cases of psychological instability, with the lack of leisure facilities, the overcrowded conditions and the mandatory length of 18 months of detention brought, at the time of the visit, the situation in the detention centre beyond the threshold of degrading treatment, and therefore in violation of Article 3 ECHR, Articles 1 and 4 EU Charter, Article 7ICCPR and Article 16 CAT.”
52.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 130 detainees.
53.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 health care 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.”
54.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.”
55.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”
56.The relevant extracts of General Comment no.6 (2005) of the Committee on the Rights of the Child, entitled “Treatment of unaccompanied and separated children outside their country of origin” read as follows:
“61. In application of article 37 of the Convention and the principle of the best interests of the child, unaccompanied or separated children should not, as a general rule, be detained. Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof. Where detention is exceptionally justified for other reasons, it shall be conducted in accordance with article 37(b) of the Convention that requires detention to conform to the law of the relevant country and only to be used as a measure of last resort and for the shortest appropriate period of time. In consequence, all efforts, including acceleration of relevant processes, should be made to allow for the immediate release of unaccompanied or separated children from detention and their placement in other form of appropriate accommodation....
63. In the exceptional case of detention, conditions of detention must be governed by the best interests of the child and pay full respect to article 37(a) and (c) of the Convention and other international obligations. Special arrangements must be made for living quarters that are suitable for children and that separate them from adults, unless it is considered in the child’s best interests not to do so. Indeed, the underlying approach to such a program should be “care” and not “detention”. Facilities should not be located in isolated areas where culturally-appropriate community resources and access to legal aid are unavailable. Children should have the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel and their guardian. They should also be provided with the opportunity to receive all basic necessities as well as appropriate medical treatment and psychological counselling where necessary. During their period in detention, children have the right to education which ought, ideally, to take place outside the detention premises in order to facilitate the continuance of their education upon release. They also have the right to recreation and play as provided for in article 31 of the Convention. In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.”
57.In their report “20 years of combatting torture” 19th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 1 August 2008 - 31 July 2009, the CPT remarked as follows:
“97. The CPT considers that every effort should be made to avoid resorting to the deprivation of liberty of an irregular migrant who is a minor. Following the principle of the “best interests of the child”, as formulated in Article 3 of the United Nations Convention on the Rights of the Child, detention of children, including unaccompanied and separated children, is rarely justified and, in the Committee’s view, can certainly not be motivated solely by the absence of residence status.
When, exceptionally, a child is detained, the deprivation of liberty should be for the shortest possible period of time; all efforts should be made to allow the immediate release of unaccompanied or separated children from a detention facility and their placement in more appropriate care. Further, owing to the vulnerable nature of a child, additional safeguards should apply whenever a child is detained, particularly in those cases where the children are separated from their parents or other carers, or are unaccompanied, without parents, carers or relatives.
98. As soon as possible after the presence of a child becomes known to the authorities, a professionally qualified person should conduct an initial interview, in a language the child understands. An assessment should be made of the child’s particular vulnerabilities, including from the standpoints of age, health, psychosocial factors and other protection needs, including those deriving from violence, trafficking or trauma. Unaccompanied or separated children deprived of their liberty should be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a guardian or legal representative. Review mechanisms should also be introduced to monitor the ongoing quality of the guardianship.20 years of combating torture: CPT General Report 2008-20
99. Steps should be taken to ensure a regular presence of, and individual contact with, a social worker and a psychologist in establishments holding children in detention. Mixed-gender staffing is another safeguard against ill-treatment; the presence of both male and female staff can have a beneficial effect in terms of the custodial ethos and foster a degree of normality in a place of detention. Children deprived of their liberty should also be offered a range of constructive activities (with particular emphasis on enabling a child to continue his or her education).”

5.The applicant was born in 1972 and lives in Baku.
6.He was a journalist and at the relevant time was working as editor‑in‑chief of the Demokrat newspaper. He was also a member of the Musavat Party.
A.The applicant’s arrest and alleged ill-treatment by the police
1.The applicant’s version of events
7.On 2 April 2011 a number of opposition parties held a demonstration at Fountains Square in Baku. The applicant went to the place where the demonstration would be held, intending to participate in it.
8.On arriving at Fountains Square at around 2.15 p.m. on 2 April 2011, the applicant was arrested by a group of police officers and taken to the Nasimi District Police Office (“the NDPO”).
9.After his arrival at the police office, the applicant was placed in the exercise yard of the NDPO temporary detention centre with other arrested persons. A few minutes later the deputy head of the NDPO, S.N., arrived at the detention centre with two men, one of whom was wearing a police uniform while the other was in plain clothes. The applicant introduced himself as a journalist and asked S.N. the reasons for his arrest. The two men accompanying S.N. then held the applicant’s arms while S.N. punched and kicked him in different parts of his body. After having physically assaulted the applicant, S.N. and the other two men left the detention centre.
10.At around 11 p.m. on 2 April 2011 the applicant was given a formal warning, under Article 298 of the Code of Administrative Offences, for participating in an unauthorised demonstration and was released from detention.
2.The Government’s version of events
11.The Government maintained that the applicant had not been subjected to torture or inhuman or degrading treatment in police custody.
12.The Government also submitted an administrative offence record drawn up at 4.30 p.m. on 2 April 2011, according to which the applicant had been warned, under Article 298 of the Code of Administrative Offences, for violation of the rule regulating the organisation and holding of gatherings. The applicant had signed the record and made a comment confirming his participation in the demonstration.
B.Remedies used by the applicant
13.On 4 April 2011 the applicant lodged a criminal complaint with the Nasimi district prosecutor’s office, claiming that on 2 April 2011 he had been ill-treated by S.N. in police custody.
14.On 6 April 2011 the investigator in charge of the case questioned the applicant, who reiterated his allegation of ill-treatment. In particular, he stated that on 2 April 2011, while he had been detained in the exercise yard of the temporary detention centre of the NDPO with other arrested persons, he had been beaten by S.N. and two other men, one of whom had been wearing a police uniform while the other had been in plain clothes. When he had asked S.N. the reasons for his arrest, the two men accompanying S.N. had held his arms and S.N. had physically assaulted him by punching and kicking him in different parts of his body.
15.On 6 April 2011 the applicant was examined by a forensic expert. It appears from forensic report no. 01/MES dated 9 April 2011 that the expert noticed a bruise (qançır) measuring 4.5 by 2.5 cm on the outer side of the applicant’s right calf (baldır). He concluded that the injury had been caused by a hard blunt object and that the time at which it had been inflicted corresponded to 2 April 2011.
16.On 12 and 14 April 2011 the investigator questioned T.Y. and N.S. as witnesses in connection with the applicant’s ill-treatment complaint. The two witnesses, who had also been arrested on 2 April 2011 and detained in the temporary detention centre of the NDPO, confirmed that on 2 April 2011 the applicant had been beaten by S.N. in the exercise yard of the NDPO temporary detention centre. In this connection, T.Y. stated that, when S.N. and two other men had arrived at the temporary detention centre, S.N. had begun insulting the applicant. S.N. had also kicked him in the stomach. As the applicant had objected to it, S.N. and the two men accompanying him began to beat the applicant. N.S. also stated that S.N. and the two men accompanying him had begun insulting the arrested persons immediately after their arrival at the temporary detention centre. As the applicant had objected to their attitude, they had beaten him severely.
17.On 15 April 2011 the investigator questioned S.N., who refuted the applicant’s allegations. S.N. claimed that he had not used force against the applicant and that, in any event, he had not been on the premises of the NDPO between 1 and 7 p.m. on 2 April 2011 when the applicant had been taken there.
18.On 18 April 2011 the investigator separately questioned two police officers, M.V. and R.M., who had been on guard duty at the NDPO on 2April 2011. The wording of their statements was identical. They each stated that none of the persons arrested on 2 April 2011 had been placed in the exercise yard of the temporary detention centre and that none of them had been beaten. They also stated that S.N. had not been present when the arrested persons had been taken to the police office.
19.On 20 and 22 April 2011 the investigator separately questioned two police officers, I.M., who had participated in the applicant’s arrest on 2April 2011, and I.S., who was the neighbourhood police officer for the area where the applicant was arrested. Their statements were identical. They each claimed that the applicant had not been placed in the exercise area of the temporary detention centre and had not been beaten in police custody. They also claimed that S.N. had not been present at that time at the police office. Moreover, I.M. stated that when he had taken the applicant to the police office he had not been aware of any injury on the applicant’s body. However, such an injury might have been inflicted during the unlawful demonstration.
20.On 25 April 2011 the deputy prosecutor of the Nasimi district prosecutor’s office issued a decision refusing to institute criminal proceedings in connection with the applicant’s complaint of ill-treatment. In his decision, after having summarised the conclusions of the forensic report and the statements given by the applicant, T.Y. and N.S., as well as S.N. and the other four police officers questioned during the inquiry, the prosecutor concluded in one sentence that the available evidence did not disclose any appearance of a criminal act. The relevant part of the decision reads as follows:
“As no appearance of a criminal act was disclosed in the material collected during the inquiry at the request of Hajili Mustafa Mustafa oglu, who claimed that on 2 April 2011 he had sustained injury as a result of a beating by the deputy head of the NDPO, S.N., the institution of criminal proceedings should be refused.”
21.On 5 January 2012 the applicant lodged a complaint against that decision with the Nasimi District Court, arguing that the prosecutor’s decision was unsubstantiated. In particular, he claimed that the prosecutor had not taken into consideration the conclusions of the forensic report and the statements from T.Y. and N.S. The applicant also complained that the prosecutor had failed to give any explanation as to the circumstances in which the injury had been caused.
22.It appears from the transcript of the court hearing of 16 January 2012 that in the proceedings before the Nasimi District Court the applicant’s lawyer asked the court to hear T.Y. and N.S., who had testified during the inquiry in support of the applicant’s complaint of ill-treatment. He also asked the court to order the examination of video recordings from the NDPO’s security cameras. In reply to the lawyer’s requests, the investigator in charge of the case stated at the hearing that the NDPO’s security cameras were only for surveillance purposes and did not record. The court granted the lawyer’s request concerning the examination of the video recordings from the security cameras.
23.On 24 January 2012 the Nasimi District Court dismissed the complaint, finding that the prosecutor’s decision of 25 April 2011 had been lawful and properly substantiated. The court held that, although the expert had noticed a bruise on the applicant’s body, it had not been established that the injury had been inflicted by S.N. As regards the video recordings, the court noted that they were no longer available. The NDPO had replied to its request relating to the examination of the video recordings that the security cameras in question had not contained a memory card and, therefore, the video recordings had been automatically deleted one month later. The judgment made no mention of the witness statements made in favour of the applicant’s ill-treatment claim.
24.On 27 January 2012 the applicant appealed against the decision, reiterating his previous complaints. In particular, he complained that the prosecutor had failed to give any explanation of how the injury noticed by the forensic expert had been caused. He also requested the appellate court to hear T.Y. and N.S., claiming that the first-instance court had ignored their witness statements without any reason. The applicant further complained about the conflicting explanations given by the investigator and the Nasimi District Court as to the impossibility of obtaining video recordings from the NDPO’s security cameras. Whereas the investigator had explained that those cameras were simply for surveillance purposes and did not record, the first-instance court had indicated in its decision that the impossibility was due to the absence of memory cards in the security cameras, which led to automatic deletion of the video recordings one month later.
25.On 6 February 2012 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court’s decision of 24 January 2012. The appellate court’s decision made no mention of the applicant’s particular complaints.

1. The applicants, Mr S.N. (“the first applicant”) and Mr T.D. (“the second applicant”), are two Russian nationals, who were born in 1977 and 1972 respectively and live in Moscow. The President of the Section decided that their names should not be disclosed (Rule 47 § 4 of the Rules of the Court). The Chamber also decided not to notify the Government of the Russian Federation of the present application on the grounds that Article 36 § 1 of the Convention did not apply in the circumstances of the present case (see I v. Sweden, no. 61204/09, §§ 40-46, 5 September 2013).
2. The applicants were represented before the Court by Ms C. Kruger and Mr O. Rode, lawyers practising in Strasbourg and Riga respectively. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.
3. The applicants complained, in particular, that their expulsion to the Russian Federation had put them at risk of being subjected to torture or inhuman treatment contrary to Article 3 of the Convention, and that they did not have effective remedies in that regard. They also complained under Article 8 of the Convention about interference with their family life and absence of procedural safeguards in that regard.
4. On 6 February 2014 the above-mentioned complaints were communicated to the Government.
A. The circumstances of the case
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. The applicants were born in what is now the Chechen Republic in the Russian Federation. The first applicant moved to Latvia in 1997 and has lived there ever since, on the basis of regularly renewed residence permits. In 2002 he was granted a permanent residence permit, which was renewed in 2007 and 2012. The second applicant moved to Latvia in 2002 and has lived there subsequently, on the basis of regularly renewed residence permits.
1. Inclusion in the list of aliens prohibited from entering in Latvia
7. On 26 July 2012 the Latvian Minister of Interior adopted decisions to include the applicants in the list of aliens prohibited from entering and remaining in Latvia and the Schengen Area (hereinafter “the blacklist”) for an indeterminate period of time. These decisions were taken on the basis of a report by the Constitution Protection Bureau, one of the Latvian intelligence services ( Satversmes aizsardzības birojs – hereinafter “the SAB”), submitted on 9 July and amended on 20 July 2012. The SAB had informed the Minister of Interior that both applicants had been engaging in criminal activity and planning to commit a serious crime, and hence posed a threat to national security and public order and safety. The part relating to national security grounds was identical in both decisions and stated:
“The SAB indicated that the information obtained attests to [the applicant ’ s] criminal activity in a leading role within an organised criminal group. Similarly, it is apparent from the information provided by the SAB that [the applicant] is planning to commit a serious or especially serious crime which may have irreversible consequences on national security. As a consequence [the applicant] in his activity [is] a threat to public order and national security.”
8. The applicants were not made aware of the SAB ’ s report.
9. The decision concerning the first applicant pointed to the fact that he was married to a Russian national. It was therefore concluded that he would not encounter any obstacles in meeting his spouse outside Latvia.
10. In the decision concerning the second applicant it was noted that he was married to a Latvian national. His former wife (a Russian national) and their minor child were also residing in Latvia. The decision went on to state that an interference with the second applicant ’ s right to respect for his private and family life was justified, taking into account, among other things, that during the nine years he had resided in Latvia “he had not learned the [State language], which [had] clearly obstructed his integration into society”. It was also pointed out that he had moved to Latvia when he was over eighteen, which meant that his ties to his native country had not disappeared. With regard to him having an opportunity to meet his young son, the decision stated that he had already agreed in 2002, while still residing in Russia, that the child would reside with his mother in Latvia. It was therefore concluded that he “would not be entirely deprived of opportunities to meet [his] son” in Russia. The interference with his family life with his spouse, a Latvian national, was held to be “commensurate with the interests of the society”.
11. Both decisions mentioned that under section 61(8) of the Immigration Law, an appeal could be lodged with the Prosecutor General ’ s Office. The decisions became effective on the day they were signed, 26 July 2012, and were sent to the applicants ’ declared addresses in Riga. On 3 August 2012 they were expelled from Latvia (see paragraph 23 below).
12. On 3 August 2012 the applicants, through their legal representative, applied to the Administrative Cases Division of the Senate of the Supreme Court to challenge the Minister of Interior ’ s decision to put their names on the blacklist. On 7 and 9 August 2012 the Senate refused to accept the applicants ’ complaints for lack of jurisdiction, indicating that such reviews fell within the competence of the Prosecutor General if the decision had been adopted “ on the basis of information obtained as a result of intelligence or counterintelligence ”. The decisions also referred to the Constitutional Court ’ s judgment of 6 December 2004 (see paragraph 53 below) which said that the prosecutor ’ s review as such did not infringe the right of access to court. The Senate ’ s decision was final.
13. On 20 August 2012 the applicants ’ legal representative appealed to the Prosecutor General asking, inter alia, that the decision to put them on the blacklist be revoked and that he be given access to the SAB ’ s report of 9 and 20 July 2012, which had formed the basis of the Minister of Interior ’ s decision. On five occasions the appeals were amended to include, inter alia, the allegations that in 1998 the applicants had collaborated with the Latvian State security services in a hostage liberation operation in the Chechen Republic. Later the appeal was amended to include the second applicant ’ s allegation that subsequently he had refused to cooperate with a SAB officer in relation to certain activities of the leaders of the Chechen community in Latvia, and therefore the expulsion had been instigated in revenge for that.
14. In a reply of 24 September 2012 the Prosecutor General dismissed the request for access to the requested documents. He noted that the possibility to familiarise oneself with information containing State secrets, if necessary with the assistance of specially authorised representatives, as provided in section 65 ³ of the Immigration Law (see paragraph 51 below), applied only to administrative court proceedings. The Prosecutor General in his reply also stated:
“ ... By envisaging in section 61(8) of the Immigration Law that an appeal against a decision the Minister of Interior adopted on the basis of information obtained in the course of intelligence or counterintelligence activities carried out by a State security institution could be lodged with the Prosecutor General [but] not a court, the legislator wished especially to protect information obtained in the course of intelligence or counterintelligence activities; [granting] access to such information to persons not possessing special permission ... could seriously infringe the work of the State security institutions ... thus seriously impairing national security.”
15. In a final decision of 23 November 2012 the Prosecutor General reformulated the Minister of Interior ’ s decision of 26 July 2012 (see paragraph 7 above). The part relating to national security grounds was identical in his decisions relating to both applicants and stated:
“Having familiarised myself with the results of the review carried out by the Prosecutor [General ’ s Office] and the information provided in the conclusions and supporting documents, [I] find that the SAB, as a competent State institution, had grounds to consider that [the applicant] had a role in an organised criminal group and [was] one of its leaders, [had] committed or [was] planning to commit a serious or especially serious crime, and [that his] presence in Latvia was a threat to public order and national security as confirmed by the information [obtained by the SAB in the course of counterintelligence activities], which I have verified and examined.
Nevertheless, when adopting a decision to include [someone] in the list of aliens prohibited from entering the Republic of Latvia, the Minister must assess whether the behaviour of the foreigner and the nature and scope of information held by the competent institution is sufficient to establish any of the ... conditions set out in section 61(1) of the Immigration law.
Having examined the information held by the SAB, [I] consider that [the information] is not sufficient to establish the conditions set out in section 61(1)(1) and (3), [namely] that [the applicant is] acting in an anti-governmental or criminal organisation or [has] a role in such an organisation, and has carried out or is planning to commit a serious or particularly serious crime.
At the same time, the nature and scope of the SAB information obtained in the course of counterintelligence activities clearly attest to [the fact] that [the applicant ’ s] activity is a threat to Latvian national security and public order and safety, as well as a threat to the national security of the States in the Schengen [Area]. The condition set out in section 61(1)(2) has therefore been established, which serves as a basis for the adopted decision to include [the applicant] in the list of aliens prohibited from entering the Republic of Latvia.”
16. The Prosecutor General also dismissed the applicants ’ fear that they could be exposed to ill-treatment in Russia due to their alleged involvement in the hostage liberation in 1998, as that involvement remained unconfirmed. In particular, the witnesses questioned had provided controversial submissions, which did not correspond to the testimony of other witnesses, including the statements obtained from the hostages liberated during the operation. In examining the allegations about the risk of ill-treatment after expulsion, the information the Prosecutor General ’ s Office had obtained from the Border Guard Service and the applicants ’ relatives confirmed that on numerous occasions between January 2010 and July 2012 the applicants had entered the Russian Federation, including the Chechen Republic.
17. In relation to the complaint of unlawful activity by a SAB officer, the Prosecutor General noted that the meeting between the SAB officer and the second applicant had been recorded in accordance with the law, and that the second applicant ’ s allegations were ill-founded.
2. Proceedings for review of the decision of the Minister of Interior
18. Subsequently, in the light of the Prosecutor General ’ s decision to reformulate the basis on which the applicants ’ names had been put on the blacklist, on 22 August 2013 their legal representative wrote to the Minister of Interior and director of the SAB asking for a review of the decisions to include them in the list.
19. On 25 September 2013 the applicants ’ representative received a response from the director of the SAB, stating that his request of 22 August 2013 did not refer to any new circumstances which could serve as a basis for amending or revoking their report to the Minister of Interior in July 2012 (see paragraph 7 above). On 10 October 2013 the Minister of Interior gave a similar reply to the applicants ’ representative.
20. In a letter sent to the Court on 21 October 2013 the applicants ’ representative brought to the Court ’ s attention the following:
“ ... [I]n April 2013 the applicants were informed that in an unofficial conversation with a certain high-ranking police officer, [a staff member of the SAB] had stipulated that he would “take care” of any potential complaints the applicants might submit to the Court, and certain politicians would make sure the complaints were not successful. ... The applicants considered this information irrelevant before the above ‑ mentioned official information [the Government ’ s letter] was received.”
They further drew the Court ’ s attention to two questions, the first being how the SAB became aware of their application to the Court, and the second how the application influenced the decisions of the SAB and Minister of Interior.
3. Other proceedings following the decision of the Minister of Interior of 26 July 2012 to include the applicants in the blacklist
(a) Detention and expulsion
21. The authorities apprehended the first and second applicants on 31 July and 2 August 2012 respectively. They were both placed in a State Police temporary detention facility. The first applicant met one of his lawyers on the day of his detention, and the other one the following day. The second applicant met his lawyer on the day of his detention.
22. On 2 August 2012 the acting chief of the Riga branch of the State Border Guard Service adopted decisions to expel the applicants from Latvia and to deport them to the Russian Federation. The reason was that the applicants constituted a threat to national security, public order or safety under section 51 paragraph 2 part 4 of the Immigration Law (see paragraph 47 below). The decisions indicated that it was possible to lodge an appeal without suspensive effect to the chief of the Border Guard Service. On the same day both applicants were made aware of the respective decisions. They both appealed (see paragraph 26 below).
23. On the morning of 3 August 2012 the applicants were taken to the Russian border and expelled from Latvia.
24. That afternoon one of the legal representatives sent a fax to, inter alia, the Border Guard Service, asking the applicants not to be expelled to the Russian Federation “because they are possibly agents of the Security Police and their expulsion to the receiving State puts them under threat and they could be subjected to torture”.
25. According to the applicants ’ initial submissions to the Court, “five days after their expulsion to the Russian Federation” they were summoned by Chechen police and were questioned about their role in the hostage liberation operation in 1998 before being beaten up. The case file contains an identical certificate for each applicant issued by a Chechen hospital, confirming that on 10 August 2012 both applicants had been found to have concussion, a brain injury and multiple bruises and scratches. The applicants alleged that as a result of what had happened they had had to flee the Chechen Republic and were now hiding in the Russian Federation.
26. The applicants ’ representative submitted appeals against the expulsion orders of 2 August 2012 (see paragraph 22 above), complaining, inter alia, of the authorities ’ failure to strike a fair balance between the right to respect for their family life and the alleged threat to national security, as required under Article 8 of the Convention. The chief of the Border Guard Service dismissed the first and second applicant ’ s complaints on 23 and 27 August 2012 respectively.
27. In their appeal to the Administrative District Court of 7 September 2012 the applicants also said that before adopting the impugned decision the Border Guard Service had not heard them, meaning they had not been able to provide information on the possible threat they would face at the hands of the security services after their expulsion to the Russian Federation.
28. On 7 May 2014 the Administrative District Court, in two judgments, upheld the impugned decisions in relation to both applicants. The Administrative District Court established that prior to expulsion the applicants had not approached the Latvian authorities with allegations concerning the risk of being subjected to treatment contrary to Article 3 if expelled to the Russian Federation. It also noted that on 2 August 2012 both applicants were informed that the expulsion would be carried out the following day, on 3 August 2012. On the same day one of the applicants submitted a request to the chief of the Border Guard Service asking to be given several impounded goods in custody, but no other requests were made. Both applicants met their lawyers after being detained.
29. The court referred to its well-established case-law and noted that the decisions to put the applicants ’ names on the blacklist on national security grounds had been reviewed and upheld by the Prosecutor General, so neither the Border Guard Service nor the administrative court were competent to review the Minister of Interior ’ s decision.
30. By addressing the complaint that in adopting the impugned expulsion decision of 2 August 2012 the applicants were not heard, the court noted that even if it constituted a minor procedural shortcoming, the lack of hearing of the applicants and witnesses could not have an effect on the outcome of the case. In particular, the court noted that the review of the Minister of Interior ’ s decision fell outside the scope of the present administrative proceedings. Any information the applicants might have submitted in relation to the adoption of the above decision could not have any effect on the content of the contested decision of 2 August 2012 to expel the applicants. Moreover, the applicants were not prevented, with the assistance of their legal representatives, from communicating to the Border Guard Service any information regarding the alleged interference the impugned decision would have on their family life.
31. The judgments also stated that there were no obstacles for the applicants to enjoy their family life in the Russian Federation. Nor were there any special circumstances to the effect that the family members could not join them outside Latvia. The wife of the first applicant was a Russian national and she would not have any restrictions to travel to the Russian Federation, whereas the second applicant would not encounter any obstacles in meeting outside Latvia his child whose mother was a Russian national.
32. On 3 September 2015 (in relation to the first applicant) and on 5 February 2015 (in relation to the second applicant) the Administrative Cases Division of the Senate of the Supreme Court refused to initiate cassation proceedings. The Senate stated, in particular, that the contested expulsion orders were a final stage in the proceedings initiated by the decisions of the Minister of Interior. The Senate further noted that it had been made aware of the decisions of the Minister of Interior and the letters of SAB on which the decision was based, and of the decisions of the Prosecutor General. Review of the above decisions fell outside the scope of the present proceedings, but these decisions attested to the lawful basis and legitimate aim of the applicants ’ expulsion.
33. On the question of the proportionality of the interference with the applicants ’ family lives, the Senate upheld the lower court ’ s findings and noted that the applicants had not advanced any arguments indicating any restrictions to enjoy their family life outside Latvia. In relation to the second applicant, the Senate noted that in 2002, while still residing in Russia, he had agreed that the child would reside with the applicant ’ s former wife, a Russian national, in Latvia. The Senate also stated that both applicants had entered the Republic of Latvia as adults and throughout their stay in Latvia they had not learned Latvian, which showed that their ties with the expelling State were not strong.
(b) Withdrawal of the residence permit
34. On 1 August 2012 the acting director of the Office of Citizenship and Migration Affairs decided to withdraw the first applicant ’ s residence permit and refused to grant the second applicant a temporary residence permit because of their inclusion in the blacklist.
35. The applicants ’ legal representative lodged appeals against the above-mentioned decisions on 22 and 28 August 2012 respectively. Two levels of administrative courts dismissed the complaints.
36. On 14 August 2015, the Administrative Cases Division of the Senate of the Supreme Court refused to initiate cassation proceedings in relation to the second applicant. The Senate noted, in particular, that the authorities had concluded that the applicant posed a threat to national security, and that depriving him of residence permit served a legitimate aim. The Senate also did not see any reasons why the applicant could not meet his minor child outside the territory of Latvia, especially in the circumstances where already in 2002, while still residing in Russia, the applicant had agreed that the child would reside with his mother in Latvia.
37. The cassation complaint submitted by the first applicant is pending examination before the Senate.
38. On 15 September 2014 the Ombudsman of the Republic of Latvia issued an opinion following the applicants ’ complaint concerning their expulsion proceedings. The Ombudsman did not find any violation of Articles 3 or 8 of the Convention. In relation to the review procedure, the opinion stated:
“ A decision to include someone in the list of foreigners prohibited from entering the Republic of Latvia is adopted by the Senate of the Supreme Court in the form of oral proceedings by a special panel of judges to whom special access to [State] secrets is granted, as well as interpreters, recordkeepers and other court officials to whom such access is also granted. No prima facie legitimate purpose can currently be established for dividing the appellate procedure into the competence of two other institutions, the Supreme Court and Prosecutor General; no further analysis shall follow, however, as the assessment of this issue is not the subject of this case.”
39. The final conclusions, as far as relevant, stated:
“Firstly, a breach of Article 13 of the [Convention] and [Article 1 § 1 (a)] of Protocol No. 7 to the [Convention] has been committed in respect of the expelled S.N. and T.D. Once a State holds that not only the Supreme Court but also the Prosecutor General has the right to review a decision to include someone in the list of foreigners prohibited from entering the State, observation of the adversarial principle has to be ensured in the latter process, similar to the process guaranteed in Supreme Court [review cases]. If an alien seeks to contest the decision, defence counsel must be provided who has access to classified information, [State] secrets, and the right to familiarise [himself] with the evidence on which the expulsion of foreigners is based, so that a complaint may be filed for the protection of the interests of the expelled foreigner.”
B. Relevant domestic law and practice
1. Constitution
40. The relevant Articles of the Latvian Constitution ( Satversme ) provide:
Article 92
“Everyone has the right to defend his or her rights and lawful interests in a fair court. Everyone shall be presumed innocent until his or her guilt has been established in accordance with the law. Everyone whose rights are violated without justification has the right to commensurate compensation. Everyone has the right to the assistance of counsel.”
Article 96
“Everyone has the right to inviolability of his or her private life, home and correspondence.”
Article 116
“The rights of persons set out [in Article 96] ... of the Constitution may be subject to restrictions in the circumstances provided for by law in order to protect the rights of other people, the democratic structure of the State and public safety, welfare and morals. On the basis of the conditions set forth in this Article, restrictions may also be imposed on the expression of religious beliefs.”
2. The Constitutional Court Law, as in force at the material time
(a) Relevant provisions
41. Section 18 paragraph 1 part 4 of the Constitutional Court Law provides that an application to the Constitutional Court regarding the initiation of constitutional proceedings must, among other criteria, contain legal reasoning ( juridiskais pamatojums ). Pursuant to section 19 ², in addition to the above-mentioned requirements, an individual constitutional complaint must include justification as to how the applicant ’ s fundamental rights as defined in the Constitution have been infringed upon, and show that all available remedies have been used.
42. Section 20 sets out the grounds on which the panel examining the constitutional complaint may refuse to initiate a case. When examining a constitutional complaint (application) the panel may also refuse to initiate a case where the legal reasoning included in the complaint is evidently insufficient to satisfy the claim (section 20(6)).
(b) Interpretation of the “legal reasoning” requirement
43. In a decision of 14 March 2014 ( application no. 29/2014) on the question of institution of constitutional proceedings, the panel of the Constitutional Court stated that the legal reasoning of a complaint is an analysis of the content of a legal provision, an explanation as to how the impugned provision interferes with the applicant ’ s fundamental rights, an assessment of the lawfulness of the procedure according to which the impugned provision has been adopted, and an assessment of the legal aim and proportionality of the interference.
44. On 7 May 2014 ( application no. 61/2014) on the question of institution of constitutional proceedings, the panel of the Constitutional Court stated that in support of an allegation that the impugned provision does not comply with the provisions of the Constitution, the applicant must indicate in the legal reasoning (1) whether the contested provision contains any restriction of rights, (2) whether this restriction is prescribed by law and has a legitimate aim and (3) whether the restriction is proportionate to the aim pursued.
3. Immigration law (wording in force at the material time)
45. Under section 46(5) of the Immigration Law, once a decision to include an alien in a blacklist has been adopted by the Minister of Interior and if the person is on Latvian territory, the chief of the Border Guard Service or someone authorised by him must adopt a decision to expel ( lēmums par piespiedu izraidīšanu ) the person concerned within eight days, to be counted from the date it was established that he or she was on Latvian territory.
46. Section 50(1) provides that an alien has the right to appeal against an expulsion decision within seven days. Under section 50(3), an appeal against a decision taken pursuant to section 46 does not have suspensive effect.
47. Section 51 of the Immigration Law lists the circumstances in which the State Border Guard Service may detain an alien. Paragraph 2 part 4 at the material time, provided that an alien could be detained on grounds of information that a person poses threats to national security, public order or safety.
48. Under section 61(1)(1) the Minister of Interior may decide to include someone who is not a Latvian citizen or a “non-citizen” in a blacklist if, among other things, “competent State institutions have reason to believe” (“ kompetentām valsts iestādēm ir pamats uzskatīt ”) that he or she (i) is a member of an anti-governmental or criminal organisation or has a role in such an organisation, (ii) is a threat to national security or public order and safety, or (iii) may hinder the pre-trial investigation or work of the law enforcement authorities in investigating the crimes upon arriving in Latvia (section 61(1)(2)), or (iv) has carried out or is planning to carry out a serious or particularly serious crime (section 61(1)(3)).
49. In relation to the review, section 61 at the material time provided as follows:
(6) A alien in respect of whom a decision has been taken in accordance with [61(1)] has the right, within one month of becoming acquainted with the decision, to appeal to the Administrative Cases Division of the Senate of the Supreme Court of the Republic of Latvia. Submission of an application to the court may not suspend implementation of the decision referred to [in section 61(1)]. The applicant does not have the right to request the court to suspend the operation of such a decision.
...
(8) If the decision referred to in section 61(1) has been taken on the basis of information acquired by State security institutions as a result of intelligence or counterintelligence operations, it may be appealed to the Prosecutor General ’ s Office, whose decision shall be final.”
50. Section 61(6) came into effect on 1 July 2005 and it was introduced after the Constitutional Court had declared unconstitutional a provision providing that decisions adopted by the Minister of Interior were not amenable to review (see paragraph 53 below). Section 61(8) about the Prosecutor General ’ s Office review came into effect on 10 February 2006.
51. In May 2006 section 65 3 (3) came into force, which provides that if the applicant ’ s representative does not have a special permit for access to State secrets, the court must appoint as the applicant ’ s representative for that part of the proceedings an advocate practising in Latvia who has been issued such a permit. If the applicant does not consent to such representation, the court must examine the information associated with official secrets without involving the applicant or his or her representative.
52. Section 63(7) provides that in cases where the period of an entry ban exceeds three years, the institution which has adopted the decision to include an alien in the blacklist shall review it every three years from the date it was taken.
4. Relevant Constitutional Court case-law
53. The relevant parts of the Constitutional Court ’ s judgment of 6 December 2004 (case no. 2004-14-01) on the compliance of section 61(6) of the Immigration Law with Article 92 of the Constitution read:
“10. In conformity with section 61 of the Immigration Law, the opinion of the competent State authorities (in this particular case, the opinion of the State security institution) lies at the basis of the Minister ’ s [of the Interior] decision. Someone who challenges his or her inclusion in the [blacklist] does not agree, as a matter of course, with the facts expressed in the decision, which are often connected with issues of State security. When reviewing such claims, the use of confidential material may be unavoidable. Even though in cases connected with national security the possibility of legal examination is limited, this does not mean that the national authorities can be free from effective judicial control in all cases, whenever they choose to assert that national security and terrorism are involved ( see ECHR Judgment in case “Chahal v. the United Kingdom ” § 131 ).
...
If the violation of a person ’ s rights is the result of the decision of a competent institution (State security institution), on the basis of which the Minister of Interior has adopted the decision, one can agree with the opinion voiced in the letter by the Ministry of the Interior that the person has the possibility of protecting his rights by lodging a complaint to the prosecutor under the procedure set out in Article 6 of the State Security Institutions Law. As regards an assessment of the activity of the State security institution in this case, the State has secured a protection remedy for the individual, which is as effective as possible in circumstances where the issue is connected with State security and, possibly, the use of confidential information. The Constitutional Court in its judgments has already pointed out that “in Latvia the Prosecutor [General ’ s Office] may be regarded as an effective and available means of protection, because the status and role of the prosecutor in supervising the law secures an independent and impartial review of cases in compliance with Article 13 of the Convention” ( see the Constitutional Court October 11, 2004 Judgment in case no. 2004-06-01; April 23, 2003 Judgment in case no.2002-20-0103 )
Thus, as regards the assessment of the competent (State security) institution, the State has secured effective protection under Article 13 of the Convention.
...
15. ... The fact that the Minister of Interior ’ s decision might be connected with interests of State security does not prevent the State from establishing a procedure under which the judicial institutions in certain cases, and under a definite procedure, may acquaint themselves with the material connected with State security. The institution concerned may even decide to present the required amount of documents separately if [they] do not include State secrets. Article 6 of the Convention, if read together with Article 5, also provides such a solution by, among other things, a special positive duty upon States, in accordance with which they have to create institutional infrastructures necessary for the implementation of a fair court, and enact legal norms which guarantee that the procedure is fair and impartial.
...
The impugned provision thus does not ensure realisation of a person ’ s right to a fair court as guaranteed by Article 92 of the Satversme ”.
54. On 7 October 2010 the Constitutional Court (case no. 2010-01-01 ) noted that international human rights norms and the practice of their application serve as a means of interpretation at constitutional law level to determine the contents and scope of fundamental rights and the principle of the law-governed State, as far as it does not lead to a decrease or limitation of the fundamental rights included in the Constitution.
55. On 6 November 2014 the Constitutional Court (case no. 2013-20-03) held that the contested provision of the domestic law did not comply with the Constitution and was repealed with effect from 1 May 2015. As regards the individual applicant, in order for him to have the possibility to require repeated assessment of the proportionality of the measure adopted against him, the contested legal provision was repealed with effect as of the date of its adoption.

1. A list of the applicants, all of whom are Turkish nationals, is set out in Appendix A.
A. Background to the events giving rise to the applications
2. Since August 2015 a number of curfews have been imposed in certain towns and cities in south-east Turkey by the local governors, including the towns of Cizre and Sur where the applicants live. The stated aim of the curfews was to clear the trenches dug up and the explosives planted by members of a number of outlawed organisations, as well as to protect the civilians from violence. Some of those curfews were lifted and then re-imposed on various dates. In imposing the curfews the governors relied on section 11 (c) of the Provincial Administration Law (see “Relevant domestic law” below).
3. On 14 December 2015 a curfew was imposed in the town of Cizre, prohibiting people from leaving their homes at any time of the day. The 24 ‑ hour curfew in Cizre continued until it was modified on 2 March 2016, whereby people were allowed to leave their homes between the hours of 5 a.m. and 7.30 p.m. Another modification of the modalities of the curfew made on 28 March 2016 allowed people to leave their homes between 4.30 a.m. and 9.30 p.m. and a final modification made on 5 June 2016 limited the curfew hours to between 11 p.m. and 2.30 a.m.
4. On 11 December 2015 a 24-hour curfew was imposed in six of the fifteen neighbourhoods in the town of Sur. On 13 and 16 March and 22 May 2016 the curfew was lifted from some parts of those neighbourhoods.
5. The applicants allege that a large number of people have been killed in areas under curfew and that a large number of houses have been bombed and destroyed by fire opened from military vehicles such as tanks. In support of their allegations the applicants submitted to the Court video recordings and photographs, showing tanks and armed military vehicles driving on the streets and on the outskirts of towns and helicopters flying overhead; houses and blocks of flats being pounded by heavy artillery and the extensive damage caused to the insides and outsides of a number of buildings; smoke billowing from a large number of buildings; injured people - including children and elderly - being carried on makeshift stretchers.
6. According to a report published by the Human Rights Foundation of Turkey on 22 March 2016, the number of civilians killed between August 2015 and 18 March 2016 in areas under curfew ‐ including Cizre and Sur ‐ was at least 310. Of those 310 deceased persons, 72 were children, 62 were women and 29 were aged 60 and older. A further 79 persons killed in the area during that same period were not yet identified. It was estimated that 76 of those persons lost their lives because they had not been able to have access to medical facilities.
7. It was stated in the report pertaining to an Urgent Action launched by Amnesty International on 11 January 2016 that “[i] n all areas under curfew many residents are facing severe electricity and water shortages and they cannot leave their homes to access basic food supplies. Residents requiring medical care have also been unable to safely leave their neighbourhoods to access such care. Ambulances in some cases have been unable to enter areas under curfew due to the security situation or because they were denied access by the security services.”
8. According to the Mardin Chamber of Pharmacies which oversees the pharmacies in a number of towns and cities including Cizre, after 14 December 2015 only five of the nineteen pharmacies in Cizre managed to stay open and even then only for three hours a day. As a result, substantially fewer people were able to obtain their prescription medicines and no baby food was sold. Furthermore, since the beginning of the curfew all family health clinics in Cizre have been closed.
B. The circumstances of the cases
9. The facts of the cases, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows.
1. Ömer Elçi v. Turkey, no. 63129/15
10. The applicant and his family live in the Nur Neighbourhood of Cizre.
11. A curfew had been imposed on Cizre between 4 and 12 September 2015 and according to a report prepared by Mr Tahir Elçi, the president of the Diyarbakır Bar Association at the time, during that period fifteen civilians were killed by firearms and six other civilians lost their lives because they were not taken to hospital. A further nine civilians were injured by firearms.
12. On 9 September 2015 the applicant introduced an individual application before the Constitutional Court concerning that curfew and requested an interim measure. In that application the applicant alleged, inter alia, that as a result of the curfew his rights guaranteed in Articles 2, 3, 5 and 8 of the Convention had been violated and asked for the curfew to be lifted.
13. The applicant ’ s request was rejected by the Constitutional Court on 11 September 2015. The Constitutional Court considered that the applicant had failed to show that his life would be endangered if he complied with the rules of the curfew and that there was no serious danger necessitating the granting of an interim measure (see also paragraph 48 below in “Relevant Domestic Law and Practice”).
14. After the introduction of the round-the-clock curfew in Cizre on 14 December 2015, the applicant and his family members became unable to leave their home and they were cut off from the outside world. They had to live in harsh winter conditions without water or electricity and without access to health and other public services. Because of the lack of a supply of food, the applicant and his family members were able to have only one meal per day.
15. The applicant ’ s house is in an area where the military operations were more intense. After the imposition of the curfew, military tanks surrounded the applicant ’ s neighbourhood and shelled the buildings in it, endangering the lives of those living in the neighbourhood. On one such occasion a tank shell landed in the garden of the applicant ’ s house, smashing the windows of the house. The house belonging to the applicant ’ s brother, which neighboured the applicant ’ s house, was burned down by the security forces. The applicant submitted photographs of his house and garden showing the remains of a tank shell lying in the garden and bullet holes in the walls and windows. He also submitted photographs of his brother ’ s house which show a burned house and extensive damage inside it.
16. Fearing that their house might get bombed, the applicant, his family members and around forty of their neighbours left their homes on 8 January 2016 and moved to another neighbourhood of Cizre where the clashes were less severe. They returned to their homes on 26 February 2016.
17. On 13 January 2016 the applicant ’ s legal representatives sent a letter to the governor of Şırnak and asked for permission to be allowed to see the applicant with a view to obtaining information and documents from him in order to prepare the application form to be submitted to the Court and to obtaining the applicant ’ s signature on the application form. On 15 January 2016 the governor informed the applicant ’ s legal representatives that armed clashes in Cizre were continuing and his office was under an obligation to protect all civilians from violence. They could not, therefore, allow the legal representatives to visit the applicant in Cizre but if the applicant wanted to contact the police and was prepared to go to a secure location to be specified by the authorities, then the security forces could take him from there to a location outside of Cizre where the legal representatives could meet him. The governor also informed the legal representatives that personnel from his office had telephoned the applicant and that the applicant had told them that he had not asked for a meeting with his lawyers but that he would nevertheless meet with the lawyers if they so wished.
18. Fearing for the applicant ’ s safety, the lawyers decided not to meet with the applicant. After the curfew in Cizre was lifted during daytime hours, the applicant ’ s legal representatives went to Cizre and met with the applicant who signed the application form and provided them with an update about his circumstances.
2. Vesek v. Turkey, no. 63138/15
19. After the curfew was imposed in the applicant ’ s home town of Cizre on 14 December 2015, the applicant and his family members became unable to leave their home. The applicant was living in a house together with his wife, their two children and the latter ’ s families. When the security forces started shelling the houses in the applicant ’ s neighbourhood with heavy artillery, the applicant and his family members left their house on 5 January 2016 and moved to a relatively safer neighbourhood of Cizre where they started living with eleven other persons. While moving to that address the applicant noticed that almost all the houses in his neighbourhood had been shelled with artillery. After the applicant had left his house he was unable to obtain any information about the fate of his house. In the opinion of the applicant, given that his entire neighbourhood has been completely evacuated because of the intensive artillery shelling, it was likely that his house was also destroyed.
3. Eroğlu v. Turkey, no. 478/16
20. Following the imposition of the round-the-clock curfew in the town of Sur on 11 December 2015, the two applicants – husband and wife – and their children became unable to leave their home situated in a part of the town covered by the curfew and where there were armed clashes. Their children were unable to go to school or even outside to play with other children. A large number of buildings in their town were demolished during the armed clashes. In support of their allegations the applicants submitted to the Court a number of photographs showing extensive explosives ’ damage to the outsides and insides of a number of houses.
21. The applicants were unable to work and their living standards therefore deteriorated considerably. When on occasions the first applicant Kasım Eroğlu was able to leave the family home in order to buy food and other supplies, he had to persuade the security forces to allow him to return to the house. When he was unable to persuade them, he had to stay with his relatives in other parts of Diyarbakır which were not under curfew. The applicants and their children suffered psychological problems because of hearing frequent explosions, living in constant fear and witnessing their town being destroyed.
4. Görgöz v. Turkey, no. 480/16
22. Following the imposition of the curfew in their home town of Sur on 11 December 2015, the applicants – mother and daughter – became unable to leave their home which is in a part of the town covered by the curfew and where there were armed clashes. The second applicant was unable to go to school. A large number of buildings in their town were demolished during the armed clashes. In support of their allegations the applicants submitted to the Court a number of photographs showing extensive explosives ’ damage to the outsides and insides of a number of houses.
23. The applicants were unable to work and their living standards therefore deteriorated considerably. They suffered psychological problems because of hearing frequent explosions, living in constant fear and witnessing their town being destroyed.
5. Sultan and Süleyman Düzgün v. Turkey, no. 891/16
24. Following the imposition of the curfew in Sur on 11 December 2015, the two applicants – husband and wife – became unable to leave their home situated in a part of the town covered by the curfew and where there were armed clashes. Most of the time they did not have electricity, water or heating. Their children were unable to go to school or even outside to play with their friends. A large number of buildings in the applicants ’ town were demolished during the armed clashes. In support of their allegations the applicants submitted to the Court a number of photographs showing extensive explosives ’ damage to the outsides and insides of a number of houses.
25. The applicants were unable to work and their living standards therefore deteriorated considerably. They suffered psychological problems because of hearing frequent explosions, living in constant fear and witnessing their town being destroyed.
6. Bedri and Halime Düzgün v. Turkey, no. 901/16
26. Following the imposition of the curfew in Sur on 11 December 2015, the applicants – husband and wife – became unable to leave their home which is in a part of the town covered by the curfew and where there were armed clashes. Their children were unable to go to school or outside to play with their friends. A large number of buildings in the applicants ’ town were demolished during the armed clashes. In support of their allegations the applicants submitted to the Court a number of photographs showing extensive explosives ’ damage to the outsides and insides of a number of houses.
27. The applicants were unable to work and their living standards therefore deteriorated considerably. They suffered psychological problems because of hearing frequent explosions, living in constant fear and witnessing their town being destroyed.
7. Çağlak v. Turkey, no. 2200/16
28. The applicant and her family live in the town of Sur. Following the imposition of the round-the-clock curfew on 11 December 2015, they became unable to leave their home and they were cut off from the outside world. They had to live in harsh winter conditions without water, food, electricity and medication, and without access to health care, education, communication facilities or other public services. Severe armed clashes took place in the vicinity of the applicant ’ s home which endangered her and her family members ’ lives.
29. A large number of buildings in the applicant ’ s town were demolished and a number of people were killed and injured during the armed clashes. In support of her allegations the applicant submitted to the Court a number of photographs and a video footage recording, showing extensive explosives ’ damage to the outsides and insides of a number of houses.
8. Dağlı and Others v. Turkey, 6990/16
30. The 22 applicants are members of four families who live in Cizre. Following the imposition of the round-the-clock curfew in Cizre on 14 December 2015, they became unable to leave their homes which were located in areas where there were heavy clashes.
31. Shortly after the imposition of the curfew, the Dağlı family sent their 11-year-old son Kadir to another town so that his life would not be endangered in Cizre. Although the Dağlı family home was not shelled, a neighbouring house was riddled with bullets. As a result of such incidents the applicants lived in constant fear for their lives. Although the applicants were told that some shops would be open, they did not dare to leave their home for fear of being shot at on the street. They also did not want to leave their homes because if they did so they would be subjected to numerous searches and insults by the security forces and ordered to pay a fine of 219 Turkish liras (approximately 65 Euros) for breaching the curfew. The applicant Mr Mehmet Senan Dağlı owned a small shop situated beneath the family home but he was unable to open it for business. The Dağlı family were practically imprisoned in their own house where there were frequent power cuts. Their son, the applicant Muhammed Dağlı, was unable to go to school.
32. The Zeren family live in two neighbouring flats in Cizre. When the curfew was imposed, obtaining food became a life-threatening event for them even though there was a small shop in their block of flats which was open until midday but whose food stocks were not replenished. The Zeren family and their young children lived in fear for their lives because of artillery shelling in nearby neighbourhoods. The applicant Narin Zeren is a pharmacist but she was unable to open her pharmacy after the imposition of the curfew. Four of the applicants from the Zeren family are students but they were unable to go to school.
33. The Kırmızıgül family lived in their family home until the middle of January 2016. When an artillery shell hit a neighbouring house and the shrapnel from that explosion spread to their house, they abandoned the family home and moved to a relative ’ s house in another part of Cizre. However, the houses in that neighbourhood were also hit by bullets and they lived in constant fear. In both houses the members of the Kırmızıgül family suffered extreme difficulties such as a lack of food, drinking water, electricity, heating and access to health facilities. The applicant Emin Kırmızıgül has heart problems and became unable to go to work after the imposition of the curfew. Six of the applicants from the Kırmızıgül family are students but they were unable to go to school.
34. The Değer family lived in their family home in Cizre. On 15 December 2015 - that is the day after the curfew was imposed - there was a power and water cut. The water they had stocked in their house beforehand lasted until the beginning of January 2016 and afterwards they had to abandon their home and move into the house of a friend in another part of Cizre. They were unable to take with them their belongings and had to leave their cow and car behind. Four of the applicants from the Değer family are students but they were unable to go to school. Artillery shelling continued in their new neighbourhood as well, killing one child, injuring two children and demolishing a mosque. The applicants lived in constant fear for their lives.
35. On 29 January 2016 the 22 applicants and four other relatives applied to the Constitutional Court and asked for an interim measure for, inter alia, the curfew to be lifted. They argued that their lives were at risk, that they were unable to obtain the necessary food and other household goods and that their children were unable to go to school.
36. On 3 February 2016 the Constitutional Court rejected their request. While examining the applicants ’ request the Constitutional Court apparently contacted the governor of Cizre and obtained information about the applicants ’ situation. The governor apparently informed the Constitutional Court that the applicants had not contacted the authorities to ask for help. The lawyer representing the applicants informed the Constitutional Court that the reason why the applicants had not asked for help was because they did not trust the authorities. The Constitutional Court also considered that members of the Değer family were in a part of Cizre unaffected by the curfew.
37. In the light of the foregoing the Constitutional Court rejected the request for the interim measure and considered that it was open to the applicants to contact the local authorities and ask for help. In its decision the Constitutional Court also reiterated the reasoning it had adopted in a previous and comparable case (see paragraph 13 above and paragraph 48 below).
9. Kaya v. Turkey, no. 9712/16
38. After the introduction of the round-the-clock curfew in Sur on 11 December 2015, the applicant became unable to leave her home and she was cut off from the outside world. She had to live in harsh winter conditions without water, food, heating or electricity and without access to health care and other public services.
39. Her house was in the midst of heavy clashes and as a result of those clashes the applicant suffered a number of injuries. Her psychological well-being deteriorated as a result of the trauma she suffered because of her fears for her life.
40. After having lived in such circumstances for almost three months, the applicant was evacuated from her house on 2 March 2016 and taken into police custody on suspicion of membership of an outlawed organisation. After having been detained there for four days, a judge ordered her release.
C. The proceedings before the Court
41. On 29 December 2015 Mr Ömer Elçi, that is the applicant in application no. 63129/16, requested the Court, under Rule 39 of the Rules of Court, to indicate to the Turkish Government to lift the curfew imposed in Cizre and to ensure that the operations in Cizre by the security forces were either halted or were conducted in compliance with the applicable international standards.
42. On 31 December 2015 the Court requested the Government to submit the following information:
“1. What is the legal basis for the curfews?
2. Given the curfew, is the applicant able to have realistic and adequate access to health services and obtain his elementary needs such as food, water, electricity, etc.? In that connection, would his life be endangered if he were to leave his house for any emergencies or for procuring basic goods such as food and medicines?
3. In view of the number of civilian casualties reported in the areas affected by the curfew, including, in particular, the area in which the applicant lives, what measures have been and are being taken to safeguard the right to life of the residents living in those areas?”
43. On 8 January 2016 the Government submitted their reply to the above questions.
44. Between 31 December 2015 and 18 February 2016 the applicants in the remaining eight applications also requested similar interim measures from the Court under Rule 39 of the Rules of Court.
45. The applicants ’ requests for interim measures were declined by the Court between 12 January and 19 February 2016. The Court decided to give priority treatment to the applications in accordance with Rule 41 of the Rules of Court and, given the apparent gravity of the situation in the region, it also informed the Government that it relied on the Government to take all reasonable steps in order to ensure that applicants in a vulnerable situation with regard to their physical integrity would be enabled to have access to necessary care if they so requested.
D. Relevant domestic law and practice
46. Article 13 of the Turkish Constitution provides as follows:
“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”
47. Section 11 of the Provincial Administration Law (Law No 5442, 10 June 1949), in so far as relevant, provides as follows:
“A) Governors are the superiors of all regular or private armed forces located within their provinces. They [governors] take the necessary steps in order to prevent a crime from taking place and to maintain the public order and safety. To that end they may employ all regular and private armed forces of the State; managers and employees of such entities are obliged to swiftly comply with the governors ’ orders”.
...
C) Governors have the duty to maintain and to protect the peace and safety, personal integrities, well-being of the public, enjoyment of possessions, and preventative law-enforcement within their provinces.”
48. The Constitutional Court adopted a number of decisions in relation to the requests it received for interim measures for, inter alia, the curfews to be lifted. In its first such decision, which concerned the request made by the applicant Ömer Elçi (see paragraph 13 above), the Constitutional Court stated the following in response to the applicant ’ s allegations that the curfews lacked a legal basis:
“ Pursuant to section 11 § C of Law No. 5442, the Governor of Şırnak declared a curfew in the town of Cizre where the applicants claim they are living. The Governor ’ s reasoning for taking that decision was to apprehend members of the terrorist organisation and to protect the lives and property of members of the public during terrorist incidents. The declaration of the curfew by the Governor for the above-mentioned reasons, in order to maintain public order and to protect the lives and property of the public, cannot be said to be devoid of basis.”
49. In its subsequent decisions the Constitutional Court rejected the requests for interim measures and reiterated its conclusion set out in the preceding paragraph.
E. Relevant international materials
50. On 2 December 2016 the Council of Europe Commissioner for Human Rights published his Memorandum on the “Human Rights Implications of Anti-Terrorism Operations in South-Eastern Turkey” (CommDH(2016)39). The Memorandum ’ s conclusions and recommendations are as follows:
“5. Conclusions and recommendations
118. The Commissioner is fully aware of the extent of the terrorist threat faced by Turkey and recognises the right and duty of the Turkish state to fight against terrorism in all its forms. The Commissioner also understands the circumstances in South-Eastern Turkey, where an armed, separatist organisation, recognised as terrorist by the EU, NATO and many countries, has systematically used violence and terror in a decades-long conflict which has claimed tens of thousands of lives. Nothing in this memorandum should be considered as justifying the actions of the PKK or any other terrorist activity in South-Eastern Turkey.
119. At the same time, the response of the Turkish state, in accordance with its international obligations, must adhere to the principles of rule of law and human rights standards, which require any interference with basic human rights to be defined in law, necessary in a democratic society and strictly proportionate to the aim pursued. In this respect, Turkey has a very long record of extremely grave human rights violations recognised as such by the European Court of Human Rights, with the most severe forms of violation having occurred in South-Eastern Turkey in the 1990s. Following a period of relative peace during the so-called “solution process”, the Commissioner deeply regrets the resumption of hostilities and their rapid escalation in South-Eastern Turkey.
120. For the purposes of this memorandum, the Commissioner examined the response of the Turkish authorities to the situation in the South-East since the summer of 2015, which mainly took the form of declaration of curfews accompanied by police and/or military operations. In the light of this examination as set out in the body of this memorandum and in view of the applicable international and European standards, as well as of the tremendous restrictions on the enjoyment of core human rights that they imposed, the Commissioner considers these measures to have been neither legal, in the sense of being sufficiently foreseeable and defined in law, nor roportionate to the legitimate aim pursued by Turkey.
121. In the opinion of the Commissioner, therefore, the response the Turkish authorities developed since August 2015, characterised by the declaration of open-ended, 24-hour curfews, have caused a number of very serious human rights violations simply by virtue of having been imposed on the affected local populations. The Commissioner urges the Turkish authorities in the strongest possible terms to put an immediate end to this practice. Any future measures deployed in the region must show much higher regard to the human rights of the local civilian population when balancing them against the imperative of the fight against terrorism.
122. As regards numerous allegations of human rights violations committed by security forces, the Commissioner finds them to be extremely serious and consistent. He considers many of these allegations to be credible, given their sources and considering past patterns of human rights violations committed by Turkish security forces during anti-terrorism operations in the South-East, as well as the Turkish authorities ’ efforts to reinforce the immunity of security forces from prosecution during this period. At any rate, given the fact that these allegations concern violations in areas cut off from the world during operations which were under the complete control of the authorities, it is for the Turkish authorities to prove convincingly that they are unfounded.
123. The Commissioner observes that the Turkish authorities not only have not shown any willingness to tackle the long-standing problem of impunity and to implement the recurrent recommendations of the Commissioner ’ s Office on this issue, but that the patterns which have led to serious human rights violations in the past remained in operation during the period in question. All evidence indicates that the authorities did neither treat with the requisite seriousness the allegations of human rights violations, nor conduct ex officio criminal investigations into lives lost during the operations in a way that would be liable to shed light on the events. The priority seems to have rather been to reassure and shield from prosecution the security forces, who have only been subjected to disciplinary sanctions for particularly egregious forms of misconduct with the exception of very few criminal cases where members of security forces were treated as suspects, while at the same time vilifying human rights NGOs and lawyers bringing these allegations. In the Commissioner ’ s opinion, this situation falls woefully short of Turkey ’ s international obligations.
124. For investigations into these allegations to be considered effective, they should have been immediate, diligent and thorough. Unfortunately, given the elapsed time since some of the operations, the fact that evidence might have been actively destroyed with heavy machinery in the affected zones, as well as the general attitude of prosecutors, it seems very improbable that any future investigation will fully satisfy the criteria for effectiveness. Turkish authorities will therefore have to contend with the fact that Turkey will be presumed to have committed many serious human rights violations, including violations of the right to life, during the period in question.
125. This situation brings home the urgency for a mentality shift in Turkey when it comes to the accountability of state agents. The Commissioner considers that impunity has been a nefarious influence throughout Turkey ’ s recent history, legitimising and fostering behaviour fundamentally at odds with human rights, and undermining all efforts to protect and promote them. It is true that the authorities took swift action to punish state agents suspected of involvement in the coup attempt of 15 July 2016, but the Commissioner regrets that one of the first measures taken in this connection was to give administrative, legal and criminal immunity to other state agents enforcing emergency decrees. In the opinion of the Commissioner, a crucial test for human rights in Turkey is whether the same diligence can be shown when the actions are not directed against the state but the human rights of its individual citizens.
126. The Commissioner once more urges Turkey in the strongest possible terms to finally tackle the numerous root causes of impunity in Turkey (see paragraph 83 above) and implement the recommendations he repeatedly made to Turkey for combatting it.
127. In the light of his examination set out in this memorandum, the Commissioner considers that numerous human rights of a very large population in South-Eastern Turkey have been violated in the context of the anti-terrorism operations conducted since August 2015. The priority for Turkey must therefore be to abandon the approach which has led to this situation, followed by the demonstration of a clear will to remedy its effects.
128. This requires, firstly, public recognition by the authorities of the mistakes and human rights violations committed. This must be accompanied by serious efforts to compensate moral and material damages suffered by the people concerned, be it because of the failure of the Turkish state to protect them from terrorism or the direct effect of the anti-terrorist operations themselves. The Commissioner gained the impression that the Turkish authorities do not grasp the scale of the efforts needed in this connection and the existing framework for compensation appears clearly insufficient in many respects. Regarding the approach to expropriate the local population in certain cities affected by the operations, the Commissioner thinks that such a measure would represent a double punishment for the persons affected and cannot be considered a form of redress.
129. The Commissioner wishes to stress his willingness to pursue his constructive dialogue with the Turkish authorities and to offer his assistance and support to their efforts to improve the protection and promotion of human rights in Turkey.”
51. On 13 June 2016 European Commission for Democracy Through Law (Venice Commission) published its opinion on “The Legal Framework Governing Curfews”, which had been adopted at its 107 th Plenary Session (Venice, 10-11 June 2016). The report ’ s conclusions are as follows:
“V. Conclusions
93. The Venice Commission has taken note with concern of the developments occurring since summer 2015 in South-East Turkey, where there have been particularly violent confrontations and major losses of human lives, including a large number of civilian losses, along with considerable material damage.
94. The Commission also recognises the scale and complexity of the challenges facing the Turkish authorities given the seriousness and the number of terrorist attacks which have been carried out recently in the country. Their efforts and their commitment to combating terrorism are legitimate.
95. The Commission would like to point out, however, that although it is a state ’ s duty to muster all its resources to combat the terrorist threat and protect its citizens from such attacks, it is also crucial in a democratic society to strike the right balance between security needs and the exercise of rights and freedoms, showing due regard for the requirements of the rule of law.
96. Despite the seriousness of the situation they were facing, the Turkish authorities chose not to declare a state of emergency to engage in the security operations they considered necessary in the areas concerned, whereas these operations and the related measures (such as curfew) inevitably entail restrictions to rights and freedoms, which sometimes have extremely serious consequences.
97. The Venice Commission has taken note of the authorities ’ choice, which they justify through their desire to protect rights and freedoms in all circumstances including in a context in which, as they themselves state, all the prerequisites to declare a state of emergency were met.
98. The Commission therefore notes that the curfews imposed since August 2015 have not been based on the constitutional and legislative framework which specifically governs the use of exceptional measures in Turkey, including curfew. To comply with this framework, any curfew measure should be associated with emergency rule, as provided for in Articles 119 to 122 of the Constitution. This would also be in keeping with the approach of the Commission, which has stressed in its work that de facto emergency powers should be avoided and it is better to declare them officially along with their accompanying lists of obligations and guarantees including the obligation to inform international organisations of any derogations from fundamental rights and the reasons for these, thus subjecting their application to the supervision of these organisations or to parliamentary debate and approval.
99. In the Venice Commission ’ s opinion, the Provincial Administration Law, on which decisions imposing curfews were based, and the decisions themselves do not meet the requirements of legality enshrined in the Constitution and resulting from Turkey ’ s international obligations in the area of fundamental rights, in particular under the ECHR and relevant case-law.
100. To remedy this situation, the Venice Commission invites the Turkish authorities to implement the following recommendations in particular:
- to no longer use the provisions of the Provincial Administration Law as a legal basis for declaring curfews and to ensure that the adoption of all emergency measures including curfews is carried out in compliance with the constitutional and legislative framework for exceptional measures in force in Turkey, showing due regard for the relevant international standards and complying with national rules and international obligations with regard to the protection of fundamental rights;
- to review the legal framework on states of emergency to ensure that all exceptional decisions and measures such as curfew taken by the authorities when a state of emergency is formally declared are subject to an effective review of legality including, in particular, consideration of their necessity and proportionality;
- to introduce all the necessary amendments to the State of Emergency Law so that there is a clear description in the law of the material, procedural and temporal arrangements for the implementation of curfews, particularly the conditions and safeguards to which they must be subject (including parliamentary and judicial supervision).
101. The Venice Commission remains at the disposal of the Turkish authorities for any assistance they may require.”

THE CIRCUMSTANCES OF THE CASE
5.The applicant was born in 1960 and lives in the village of Krasnyy Yar in the Staropoltavskiy district of Volgograd Region.
A.Alleged ill-treatment by police officers
6.On 5 August 2002 a quarrel broke out between the applicant and T. on one side and the applicant’s brothers V. and P. and P.’s wife, E., on the other. V. and E. called the police.
7.At about 8 p.m. police officers D., S., Sh. and Z. arrived and took statements from E., who complained that at about 6p.m. the applicant and T. had burst into her home. The applicant had used obscene language towards her, threatening to “kill everyone” and attempting to hit her and her seven year‑old daughter. The police also took statements from A. who explained that she had been with E. when the applicant and T. had come over, asked about V. and then entered V.’s home. She had then heard shouting, and E.’s daughter had run in to tell her mother that there was a quarrel taking place in V.’s courtyard. E. had attempted to enter the courtyard but T. had not let her in. The applicant had come out of V.’s courtyard, using obscene language towards E. and threatening her with violence. The applicant and T. had followed E. into her house, continuing to insult and threaten her in the presence of her young daughter. This had continued until E.’s husband, P., had arrived home and the applicant and T. had then left.
8.The police officers took the applicant to the Staropoltavskiy district police station. They arrived at about 11 p.m.
9.According to the applicant, he was thrown into the boot of the police car and driven for about 80kilometres. During the journey the police officers stopped the car and assaulted him. He was allegedly again assaulted at the police station. In particular, he was allegedly punched many times in the head and chest.
10.At an unspecified time that day police officer Sh. drew up a report charging the applicant with petty hooliganism, an offence under Article20.1 of the Code of Administrative Offences. It was stated in the report that at 6p.m. on 5 August 2002 the applicant had started a brawl with E., using abusive language and attempting to hit her.
11.At the police station the applicant was placed in a cell for administrative offenders overnight. Another detainee, K., was also being held in the cell.
12.At about 9 a.m. on 6 August 2002 the applicant was brought before a judge of the Staropoltavskiy District Court, who found that at 6p.m. on 5August 2002 the applicant had started a brawl with E. while drunk and had used obscene language towards her. The applicant was sentenced to two days’ administrative detention for petty hooliganism.
13.After the hearing the applicant was placed in the Staropoltavskiy district police temporary detention facility. At his request and in view of his condition, an ambulance was called.
B.The applicant’s injuries
14.Before taking him to hospital, an ambulance paramedic, N., diagnosed the applicant with a traumatic rupture of the left eardrum, bruising to the left of the ribcage, two fractured left ribs, a stomach injury and bruising to the left hip.
15.On the same day he was examined by an otolaryngologist from the Staropoltavskiy District Polyclinic. He complained of ringing in the left ear and stated that he had been assaulted by police officers. The otolaryngologist concluded that in addition to chronic otitis, the applicant had signs of traumatic otitis of the left ear.
16.On his admission to the Staropoltavskaya Central District Hospital the applicant stated that on 5August 2002 he had been assaulted by his brother and then by police officers. He complained of pain in the left of the ribcage, around the eighth and ninth ribs. He had an abrasion measuring 7by1.2 centimetres on the left of the chest. His final diagnosis was a fractured eleventh left rib confirmed by X-ray images, soft tissue bruising, abrasions on the left of the chest and traumatic otitis of the left ear.
17.On 8 August 2002 he was discharged and sent for outpatient treatment by an otolaryngologist, a physician assessment and monitoring by a surgeon.
18.The applicant received outpatient treatment at home. He was sent for a neurosurgical examination at the Volgograd Regional Polyclinic, where X-ray images showed that he had sustained fractures to the top and bottom of the left of the skull. He was urgently admitted to the Volgograd Regional Hospital. On admission the applicant complained that he had been suffering from recurrent headaches, ringing in the ears and dizziness, and hearing loss in the left ear. He explained that on 5August 2002 he had been assaulted by police officers.
19.The applicant’s hospital treatment lasted from 24October to 11November 2002. He was diagnosed with a closed head injury, mild bruising on the brain, a fractured left temporal bone (confirmed by X‑ray images), otitis of both ears, loss of hearing in the right ear and first degree mixed hearing loss in the left ear.
C.Investigation into the applicant’s complaint
1.Institution of criminal proceedings
20.On 8 August 2002 the applicant lodged a complaint with the chief of the Staropoltavskiy district police regarding his alleged ill‑treatment by police officers. He stated that during the incident before his arrest V. had hit him on the left hip with a spade handle, and he had punched him back in the face.
21.On 10 August 2002 T. submitted a statement to the same chief of police describing the circumstances of the incident before the police arrived. He confirmed the applicant’s version of events.
22.On 20 August 2002 the applicant lodged a criminal complaint with the prosecutor’s office.
23.On 4 September 2002, following a pre-investigation inquiry, the Staropoltavskiy district prosecutor’s office instituted criminal proceedings, finding that there was sufficient indication that the elements of a crime under Article 286 § 3 (a) of the Criminal Code (abuse of powers) were present in respect of the officers’ actions.
24.On 7 September 2002 the applicant was given victim status.
25.On the same day P. was questioned as a witness in relation to the quarrel on 5August 2002. He stated that he had punched T. but had not touched the applicant, and that the applicant had been “absolutely healthy” and had had no bruises or any other injuries.
26.V. stated that on 5 August 2002 the applicant and T. had entered his house, and that the applicant had punched him in the eye. He had managed to trap the applicant underneath him, and T. had pulled him off the applicant by the legs.
27.N., the paramedic who had provided the applicant with first aid on 6August 2002 at the police station, gave the following statements as a witness: the applicant had complained of headaches, loss of hearing in the left ear, pain in the chest, stomach and left hip and shortness of breath. He had had hearing loss and fresh coagulated blood around his left ear, a sharp pain around his left ribs and pain in the stomach.
2.Forensic medical report of 17 December 2002
28.On 23 October 2002 the prosecutor’s office ordered a forensic medical opinion to establish the origin of the applicant’s injuries, stating that at about 2 p.m. on 5August 2002 the applicant had been hit in the right hip by V. with a spade handle, and that the applicant had alleged to have been punched multiple times by police officers on his way to the Staropoltavskiy district police station, where he had allegedly been taken in the boot of a police car.
29.M., an expert from the Volgograd regional forensic medical bureau and A., a radiologist from the Volgograd Regional Hospital examined the applicant’s medical records, X-ray images of his skull and temporal bones taken on 24and 28October 2002 and X-ray images of his ribcage taken on 23October 2002. In their report, dated 17 December 2002, they established that the applicant had a closed head injury in the form of mild bruising on the brain and a fractured left temporal bone, further complicated by traumatic otitis of the left ear. Those injuries had been caused by hard blunt objects and amounted to “severe damage to health”. The applicant also had a blunt injury to his ribcage with a fractured eighth left rib and an abrasion on the left of the chest, caused by hard blunt objects, which amounted to “medium damage to health”. The experts did not exclude the possibility that the injuries had been caused at the time and in the circumstances as alleged by the applicant.
3.Termination of the criminal proceedings against police officers D. and Z.
30.On 4 January 2003 the applicant did not identify Z. during an identification parade, saying that he had not seen whether it had been D. and Z. who had assaulted him on the road, but that they certainly had not assaulted him at the police station. On 15 January 2003 the criminal proceedings concerning the two officers were terminated under Article24§1 (2) of the Code of Criminal Procedure (“CCrP”) because none of the elements of a crime were present in respect of their actions.
4.Forensic medical report of 13 February 2003
31.On 21 January 2003 the prosecutor’s office ordered an additional forensic medical opinion.
32.On 13 February 2003 S., an expert from the Volgograd regional forensic medical bureau, examined the criminal case documents submitted to him by the prosecutor’s office. These included statements by P., V., the paramedic N. and police officers Sh. and S. (see paragraphs 25-27 above and paragraph 33 below), the applicant’s medical records and X-ray images of his ribs, temporal bones and skull dated 23, 24 and 28October 2002. S.concluded that on 5 August 2002 the applicant had received the following injuries: a fractured left temporal bone with a rupture of the left eardrum, a displaced fracture of the eighth left rib and a fractured sixth left rib, and an abrasion on the left of the chest. On 24October 2002 the applicant had been diagnosed with mild bruising on the brain. The expert concluded that all the injuries could have been inflicted in the manner alleged by the applicant, given their nature, number and location, the mechanism of their formation, the means of their infliction, notably by punching and kicking, the positions of the victim and attackers in relation to each other, and the direction of the blows.
5.Decision of 4 March 2003 terminating the criminal proceedings against police officers S. and Sh., annulled on 15 April 2003
33.On 15January 2003, during his examination as a suspect, police officer Sh. stated that he had not noticed any injuries on the applicant during his arrest on 5 August 2002, journey to the police station or at the police station. Nor had the applicant complained that anybody had injured him. Police officer S., who was also examined as a suspect that day, stated that he had seen abrasions on the applicant’s face immediately after his arrest.
34.On 4 March 2003 the Staropoltavskiy district deputy prosecutor terminated the criminal proceedings against police officers S.and Sh. The decision stated that before his arrest on 5August 2002 the applicant, who had been drunk, had committed an act of petty hooliganism against V. The applicant and V. had then physically assaulted each other. The decision also included statements by the applicant saying that V. had hit him in the left hip with a spade handle and that he had punched him back in the face, that he had travelled to the police station in the boot of a police car after being thrown in by police officers, that during the journey the officers had stopped the car and beaten him up, punching him in the head and chest, after seeing that he had dented the boot lid, and that they had assaulted him again at the police station. The decision relied on the statements of D., S., Sh., Z. and other police officers who had denied the applicant’s allegations of ill‑treatment.
35.On 15 April 2003 the Staropoltavskiy district prosecutor annulled the decision of 4 March 2003 as the possibility of the applicant’s injuries being inflicted during the fight with V. had not been properly explored.
6.Decision of 16 May 2003 terminating the criminal proceedings against police officers S. and Sh., annulled on 9 February 2004
36.On 16 May 2003 the Staropoltavskiy district deputy prosecutor issued a new decision terminating the proceedings, containing essentially the same wording as the previous decision. It was annulled on 9 February 2004 by the Volgograd regional deputy prosecutor as the exact circumstances of the applicant’s alleged ill-treatment had not yet been determined.
7.Decision of 9 March 2004 terminating the criminal proceedings against police officers S. and Sh., annulled on 4 February 2005
37.On 9 March 2004 an investigator of the Staropoltavskiy district prosecutor’s office terminated the criminal proceedings against police officers S. and Sh. on the same grounds as previously.
38.According to a letter of 27 August 2004, the Volgograd regional prosecutor’s office requested the Staropoltavskiy district prosecutor’s office to examine complaints by the applicant concerning the improper handling of the investigation and report on the results. According to a letter from the Volgograd regional prosecutor’s office dated 24 December 2004, a similar request was made in relation to a complaint by him concerning the termination of the proceedings. The Staropoltavskiy district prosecutor’s office was requested to submit its report before 13 January 2005.
39.According to letters addressed to the applicant from the Volgograd regional prosecutor’s office and an investigator of the Staropoltavskiy district prosecutor’s office, dated 3February 2005 and 10February 2005 respectively, the decision of 9March 2004 was set aside on 4February 2005 and the investigation was reopened.
8.Decision of 10 March 2005 terminating the criminal proceedings against police officers S. and Sh., annulled on 9 September 2005
40.According to a letter from the Volgograd regional prosecutor’s office dated 3November 2005, a new decision terminating the proceedings was issued on 10March 2005 and annulled on 9 September 2005. According to a letter dated 17 May 2005, the Volgograd regional prosecutor’s office had in the meantime requested the district prosecutor’s office to inform the applicant of the results of the investigation and report back before 4 June 2005.
41.On 24 October 2005 the Prosecutor General’s Office informed the applicant that his complaint concerning the termination of the proceedings had been forwarded to the Volgograd regional prosecutor’s office for examination.
42.On 19 June 2006 it requested the Staropoltavskiy district prosecutor to examine the applicant’s complaint concerning the investigation in the case and report back before 30 June 2006.
9.Reopening of the investigation in 2011
43.On 17 November 2011 the Court invited the Government to submit information concerning the investigation in the applicant’s case.
44.On 21 December 2011 the Volgograd regional prosecutor’s office set aside the decision of 9 March 2004 terminating the criminal proceedings as the possibility of the applicant receiving the injuries in the fight with V. had not been examined. An additional investigation was ordered.
45.The Volgograd regional prosecutor’s office carried out an internal investigation in connection with some irregularities found in the case file. It stated in its report of 31 January 2012 that the decisions of 4February and 9September 2005 (see paragraphs 39-40 above) were nowhere to be found and that according to new information received from the Staropoltavskiy district prosecutor and his deputy, the decision of 9 March 2004 had not been annulled. The prosecutor’s office therefore concluded that the decisions of 4February 2005 and 9September 2005 had never been taken. The report also noted other irregularities, such as the failure of the prosecutor’s office to send copies of the decisions taken in the case to their supervisory authorities or the information centre of the Ministry of the Interior, such as the decision of 9 February 2004.
10.New forensic medical report of 29 March 2012
46.On 1 March 2012 the Pallasovskiy inter-district investigation division of the Volgograd regional investigative committee ordered a new forensic medical examination of the applicant in order to determine what, if any, injuries the applicant had had after the events of 5August 2002, and whether he could have received them as a result of falling over or striking himself against something.
47.Zh., an expert from the Staropoltavskiy district unit of the Volgograd regional forensic medical bureau, examined the applicant but found no injuries on him. As the applicant’s medical records and X-ray images from 2002 had been lost, the expert based his opinion on information contained in previous expert reports, notably a report dated 18September 2002 containing information about his treatment at the Central District Hospital (see paragraph 16 above) and an expert’s suggestion that an opinion should be sought from a more experienced expert, and reports dated 17December 2002 (see paragraph 29 above) and 13 February 2003 (see paragraph32 above).
48.In his report of 29 March 2012 Zh. concluded that the only injuries he could confirm were the abrasion on the chest and bruising to the eighth and ninth ribs. They could have been received on 5August 2002 as a result of the applicant falling over and striking himself against protruding hard blunt objects – it was unlikely that they had been inflicted by punching and kicking.As regards the other injuries, noted in the expert reports of 17December 2002 and 13 February 2003, Zh. considered that they could not be taken into account in the assessment of damage to the applicant’s health because no information about the relevant clinical manifestations or reliable X-ray imaging supporting them could be found in the previous expert reports.
11.Forensic medical report of 19 April 2012
49.On 9 April 2012 the investigative committee ordered a new expert opinion, using the same questions as previously (see paragraph 46 above) because the conclusions made by Zh. in his report of 29March 2012 completely contradicted the conclusions made by the experts in 2002 and 2003.
50.A report of 19 April 2012, prepared by a panel of five experts from the Volgograd regional forensic medical bureau, confirmed the abrasion on the left of the chest which, according to them, could have been caused on 5August 2002 by a hard blunt object with a limited surface area, as a result of hitting or being hit by it.
51.The experts noted that no traumatic injuries to the skull or healed rib fractures had been found on the applicant’s X‑ray images made on 16March 2012 and 9 April 2012 respectively.
52.As the X-ray images of the ribcage, skull and temporal bones of 23,24 and 28October 2002 had been lost, the experts found it impossible to draw any conclusions as to the fractured left temporal bone, bruising on the brain or fractured eighths and eleventh ribs diagnosed previously.
53.The experts considered that the medical records described in the previous expert reports contained no objective confirmation as to the diagnosis of traumatic otitis of the left ear, such as injuries or bleeding in that area, and concluded that the ringing and impaired hearing of which the applicant had complained had been explained by his chronic otitis.
12.Decision of 30 April 2012 terminating the criminal proceedings against police officers S. and Sh., annulled on an unspecified date
54.On 30 April 2012 the investigative committee terminated the proceedings in accordance with Article 24 § 1 (2) of the CCrP, because none of the elements of a crime were present in respect of the actions of police officers S. and Sh.. The decision was based, inter alia, on the following new statements received during the additional investigation in 2012.
55.On 30 January 2012 E. stated that on 5 August 2002 she had seen the applicant assaulting V. but had not seen V. assaulting the applicant. After the quarrel between the two men the applicant had followed her to her house, where V. had retreated. The applicant had threatened and verbally abused her, and she had had no choice but to call the police.
56.On 30 January 2012 P. stated that the applicant had had no injuries before his arrest on 5 August 2002. He had been behaving aggressively, shouting threats at E. and V.
57.On 30 January and 7 February 2012 respectively, the applicant’s wife and T. stated that the applicant had had no injuries before his arrest.
58.On 19 March 2012 V. stated that the applicant and T. had burst into his house and attacked him. He had pushed the applicant, who had fallen onto his left side. He had then jumped on him and punched him in the head.
59.Police officers D., S., Sh. and Z. stated that on arriving in the village of Krasnyy Yar they had learned that the applicant and T. had assaulted V., and that the applicant had also threatened to kill E. and had hit her. They had arrested the applicant and T. and had then gone to E.’s house and taken statements. They had then set off to the police station. Once outside Krasnyy Yar, they had released T. because there had been too many people in the car, the engine had been overheating. T. had been behaving calmly, unlike the applicant. No violence had been used against the applicant, who had been in the passenger compartment of the car and not the boot as alleged. When arrested, the applicant had had traces of blood on his face and T‑shirt and coagulated blood in his left ear. His untidy appearance and dirty face had given the impression that he had been fighting with somebody. He had been moaning and holding the left of his chest, and had clearly been in pain.
60.K., the detainee who had shared the same cell as the applicant on the night of 5 August 2002, stated that the applicant had had coagulated blood in his left ear and a swollen lip. He had been complaining of chest pain and coughing painfully. It also transpires from statements by K. and police officer G. that on their way to court on the morning of 6August 2002 the applicant had been walking slowly. At one point he had crouched down, holding his right hand to the left of his body and saying that his ribs were aching. He had also been coughing painfully. On their way back to the police station the applicant had crouched down and complained of feeling unwell. There had been sweat on his forehead. He had been unable to lift his hands above chest height because of the pain. An ambulance had been called.
61.N., the paramedic who had examined the applicant at the police station, stated that he had complained of headaches, loss of hearing on the left side, chest pain, difficulty breathing and pain in the left hip. He had stated that his brother had hit him on the hip with a spade handle. When asked about the origin of the other injuries, he had not said anything. One of the police officers, who had been present during the examination, had shouted that the applicant had also been hit in the ear with a spade handle.
62.According to an examination report of the police car which had been used to take the applicant to the police station on 5August 2002, the right side of the boot lid, the part closest to the petrol tank, had been dented. The decision stated that the location of the dents was different from where the applicant had said he had dented the lid, that the police officers had been unable to provide any explanation as to the dents, and that it was now impossible to examine the car as it had been written off.
63.Relying on the results of the 2012 forensic medical examination, the decision stated that the only injuries confirmed were the abrasion on the chest and bruising to the ribs, and that the applicant could have received them in the fight with V. as had been confirmed by V. in 2012.
64.It appears that on an unspecified date the decision of 30 April 2012 was annulled and the investigation was reopened.
13.Forensic psychology report of 29 May 2012
65.In his report of 29 May 2012, ordered by the investigating authority on 7 March 2012, a forensic psychologist found that the applicant had a tendency to use fantasy and invention in order to fill gaps in his memory, and that during his examination by the expert he had displayed signs of giving already prepared statements, hiding information or giving false information about the conflict situation between him and T. on one side and his brothers and E. on the other.
66.The report referred to witness statements given in the case about the events of 5August 2002. In particular, on 6 February 2012 V. had stated that the applicant and T. had burst into his house. The applicant had punched him in the face and T. had grabbed him by the legs. The applicant had then, while sitting on him, punched him repeatedly in the face and chest. V. had stated that he had not even struck the applicant once. During his additional examination on 19March 2012 V. had stated that in the course of the fight with the applicant and T. he had managed to slip out, finding himself on top of the applicant and punching him in the head. During the reconstruction of events V. had stated that after bursting into his house the applicant and T. had knocked him down, T. had held him by the legs and the applicant, while sitting on him, had punched him five or six times in the face and chest. He had punched the applicant in the head. He had then managed to slip out and trap the applicant underneath him. Sitting on the applicant, he had tried to punch him but T. had pulled him off by the legs.
14.Decision of 3 June 2012 terminating the criminal proceedings against police officers S. and Sh.
67.On 3 June 2012 the proceedings against police officers S. and Sh. were terminated in accordance with Article 24 § 1 (2) of the CCrP because none of the elements of a crime had been present in respect of their actions. In addition to the evidence set out in the previous decision, the decision of 3June 2012 relied on statements by E.’s daughter that after the incident between the applicant and V. the applicant had attacked her, throwing her to the ground and kicking her about six times. He had then tried to hit her mother, E. The decision also referred to the conclusions made by the expert psychologist (see paragraph 65 above).
68.It was concluded, as in the previous decision, that the applicant’s allegations of police ill‑treatment had not been based on real facts and that the only injuries confirmed in 2012, namely the abrasion on the chest and bruising to the ribs, could have been received by the applicant in the fight with V., as had been confirmed by V. in 2012.

5.The applicant was born in 1970 in Armenia. Until his arrest in 2008 he lived in Kurgan, Russia. On 20 September 2012 the Sverdlovsk Region office of the FederalMigrationService ordered his deportation to Armenia. It seems that the deportation order was executed on 11 October 2012.
A.Circumstances leading to the applicant’s arrest
6.On 3 August 2008 the applicant, while under the influence of alcohol, took a car without the owner’s consent and crashed into a tree. As a result of this accident he sustained multiple injuries, including a thighbone fracture, a dislocated hip and facial wounds.
7.The applicant was taken by ambulance to Kurgan Town Hospital where he was admitted to an intensive care unit. He was connected to a medical ventilator and subjected to emergencyanti-shock treatment. The doctors sutured his wounds. A metal pin for skeletal traction was inserted through the heel bone of his broken leg and the applicant was placed in a special metal frame with weights attached to his injured leg.
8.Several days later his condition improved and he was transferred to a trauma department, where he remained bedridden in a skeletal traction frame. Osteosynthesis surgery was to be performed in due course.
9.On 6 August 2008 the police opened a criminal case into car theft.
10.It appears that during the investigation the authorities learned that the applicant was wanted by the authorities of the Republic of Belarus for a murder allegedly committed in 2003 in Minsk.
11.A police investigator asked the attending doctor whether the applicant could be discharged from hospital and transferred to a detention facility.
12.On an unspecified date the doctor informed the investigator that the applicant was in need of inpatient treatment on account of multiple injuries, including facial injuries, a dislocated hip and a thighbone fracture. Citing the seriousness of his condition the doctor noted that the applicant could not be transported to a court or police station. The doctor stated that police detention centres and remand prisons in Kurgan were unable to ensure the appropriate medical care to the applicant.
13.On 8 August 2008 the investigator reported the content of the above letter to his superior.
14.Four days later, upon a request from an investigator, a medical expert commenced an examination of the applicant to assess the seriousness of his injuries. Without informing the hospital administration and without having received the results of the expert examination, the police arrested the applicant and took him to remand prison no.IZ-45/1 in Kurgan. It does not seem that any special arrangements for the applicant’s transport were made.
15.It was noted in the expert report completed on 3 September 2008 that the applicant’s injuries were of “medium” seriousness.
B.Detention and conviction
1.Detention pending extradition
16.On 13 August 2008 the Kurgan Town Court, at the request of the Kurgan prosecutor and in the absence of the applicant, ordered his detention pending the receipt of an extradition request from the Belarusian authorities. That ruling was based on Article 466 of the Code of Criminal Procedure of Russia (“the CCrP”) and Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“theMinskConvention”).
17.On 21 August 2008 the Kurgan Regional Court quashed the order of 13 August 2008 in view of the applicant’s absence from the hearing before the Town Court. The Regional Court remitted the issue for fresh consideration.
18.A week later, this time after hearing evidence from the applicant, the Town Court, on the basis of the same legal provisions, ordered his detention until receipt of the extradition request from the Republic of Belarus.
19.On 4 September 2008 the Regional Court upheld the applicant’s detention on appeal.
20.According to the applicant, only on 14 October 2008 did the Prosecutor General’s Office inform the competent Belarusian authorities of the applicant’s arrest.
21.The General Prosecutor of the Republic of Belarus requested the applicant’s extradition.
22.On 25 August 2009 the Russian Prosecutor General’s Office ordered the applicant’s extradition to stand trial in Belarus.
23.According to the applicant, in March 2010 he was extradited to the Republic of Belarus.
24.On 23 March 2010 the Belarusian authorities closed the criminal case due to the absence of corpus delicti in the applicant’s actions. He was then returned to Russia.
2.Detention pending investigation into the car accident
25.In the meantime, on 29 August 2008, in the context of the criminal investigation into car theft, the Kurgan Town Court ordered the applicant not to leave Kurgan.
26.On 23 September 2008 the Town Court changed the measure of restraint to detention pending investigation. The decision was based on the seriousness of the charges, the fact that the applicant had been on the run and had no permanent residence in Russia. The Regional Court upheld that detention order on appeal.
27.On 22 November 2008 the Town Court extended the applicant’s detention until 5 December 2008, citing the seriousness of the charges and the lack of a permanent residence in Russia.
28.On 4 December 2008 and 4 January 2009 the Town Court again extended the applicant’s detention until 5 and 30 January 2009, respectively. In addition to the previously employed arguments, the detention orders were held to be justified by the necessity to complete the investigation. The latest detention order was upheld on appeal by the Regional Court on 15January2009.
3.Conviction
29.On 27 March 2009 the Kurgan Town Court convicted the applicant of car theft and sentenced him to four years’ imprisonment in a correctional colony.
30.On 26 May 2009 the Regional Court upheld the conviction and sentence, but amended the type of the detention facility where the applicant was to serve his sentence to a settlement colony.
C.Medical treatment and the conditions of detention
31.It is clear from entries made by civilian doctors in the applicant’s medical history on 12August 2008, the day of his arrest, that he was in satisfactory health; his body temperature, which had fluctuated for several days, was 37.7˚C; the pain syndrome was decreasing; his stitches were dry; and no signs of inflammation were present. The metal pin remained in his leg. In the discharge summary drafted on account of the applicant’s arrest, “continued medical treatment” and crutches were prescribed. The attending doctor explicitly noted that the patient had been taken from the hospital without the consent of the chief doctor.
32.On admission to the remand prison the applicant was examined by a feldsher (medical assistant), who recorded the visible bodily injuries. No medical tests were performed and no treatment was prescribed. The applicant was not provided with any mobility aid devices, such as a wheelchair, crutches or a walking stick.
33.It was not disputed by the parties that the next day the applicant had been placed in a cell designed to accommodate a maximum of four inmates. The cell measured 15.4 sq. m. On 13 August and between 15 and 19August2008 the applicant had to share that cell with seven other inmates, with each inmate thus having no more than 1.9 sq. m of floor space. Several inmates, including the applicant, had no places to sleep.
34.According to the applicant, in the remand prison he experienced a leg pain, nausea and loss of consciousness.
35.Medical entries show that the applicant was seen by a prison doctor for the first time on 18 August 2008, in response to his complaints of pain, nausea and vertigo. After a visual examination, the doctor ordered the transfer of the applicant to Regional Anti-Tuberculosis Prison Hospital no.OF-73/1 in Kurgan (“the prison hospital”) “for treatment and skeletal traction”. The transfer was performed the next day.
36.In the prison hospital several medical tests were performed. Owing to technical problems the applicant could not undergo an X-ray examination of his legs ordered by a doctor. He was seen by a surgeon and a neurologist.
37.The surgeon, having considered the time that had passed from the termination of the skeletal traction, removed the metal pin from the applicant’s leg. A walking stick was prescribed.
38.The neurologist diagnosed the applicant with vegetative-vascular dystonia and prescribed a month-long drug regimen.
39.The applicant was discharged from hospital on 27 August 2008 in a “satisfactory condition”.
40.The medical documents in the Court’s possession cover the period up to 21 May 2009. They show that at that time the applicant was seen by the prison doctor on account of his chronic peptic and liver conditions. It does not appear that he underwent any medical examination or treatment related to the leg condition.
41.As to the conditions of the applicant’s detention during that period, the Government submitted that the applicant had been transferred between several cells of the remand prison, some of which were overcrowded. In particular, between 30September and 8 October 2008, between 26 January and 19 March, 24March and 10 April, 11 April and 2 June 2009 the applicant was afforded less than 2.7 sq. m of floor space, and occasionally less than 2 sq. m. According to the applicant, the cells were poorly ventilated, had non-partitioned toilets and were infested with bugs, mice and lice.
42.On 2 June 2009, the applicant was sent to serve his sentence in a settlement colony. He was released on 22 September 2012, after having served his sentence in full.
43.According to him, he continued to walk with a limp after the release, because the broken leg had knitted in a wrong position.

10.The applicant was born in 1958. He lived in Brussels and died there on 7 June 2016.
11.He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and a six-year-old child. The applicant claimed to be the father of the child, an assertion which the Government contested. The couple subsequently had a child together in August 1999 and another in July 2006.
A.Criminal proceedings
12.On 29 December 1998 the applicant was arrested and taken into custody on charges of theft. On 14 April 1999 he received a sentence of seven months’ imprisonment, which was suspended except for the period of pre‑trial detention.
13.In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences.
14.On 28 April 2000 the applicant’s wife was sentenced to four months’ imprisonment for theft.
15.On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and received a sentence of fourteen months’ imprisonment, which was suspended except for the period of pre-trial detention.
16.On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception or corruption.
17.Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence.
B.Asylum proceedings
18.On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application.
19.As the applicant’s wife stated that she had travelled through Germany, a request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”).
20.After the German authorities had refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999.
21.On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints had been checked.
22.On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the proceedings concerning the asylum application of 26November 1998 had been concluded on 11 June 1999 with the refusal of the application.
C.Requests for leave to remain on exceptional grounds
1.First request for regularisation on exceptional grounds
23.On 20 March 2000 the applicant lodged a first request for regularisation for a period of more than three months, on the basis of section9(3) (since 1 June 2007, section 9bis) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). In support of his request the applicant stated that he and his wife had a daughter born in Georgia before their arrival in Belgium and another daughter born in Belgium in 1999.
24.On 30 March 2004 the Aliens Office declared the request devoid of purpose as the applicant had left the country and been intercepted in Germany. It found that the request was in any case unfounded in view of the fact that the applicant’s medical treatment for tuberculosis had ended (seeparagraph 49 below). The Aliens Office also referred to the applicant’s lack of integration in Belgium and the numerous breaches of public order he had committed.
2.Second request for regularisation on exceptional grounds
25.On 28 April 2004 the applicant lodged a second request for regularisation of his residence status on the basis of section 9(3) of the Aliens Act. He cited as exceptional circumstances the duration of his residence in Belgium and his integration into Belgian society, the risks that a return to Georgia would entail for his children’s schooling, the fact that he had been the victim of persecution and his state of health.
26.The Aliens Office declared the request inadmissible on 5 April 2007 on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section 9(3) of the Act such as to warrant the lodging of the request in Belgium rather than with the competent diplomatic mission or consulate, as was the rule. The Aliens Office noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings, which had been concluded by a final decision. It also cited as reasons the lack of any need for medical supervision, the applicant’s precarious and unlawful residence status, the absence of a risk of persecution in Georgia and the possibility for the children to continue their schooling in that country.
27.In a judgment of 29 February 2008 the Aliens Appeals Board rejected an application by the applicant to set aside the Aliens Office’s decision. It noted in particular that, since the decision complained of had not been accompanied as such by a removal measure, it could not give rise to a risk of violation of Article 3 of the Convention.
3.Third request for regularisation on exceptional grounds
28.On 10 September 2007, relying on the same grounds as those invoked under section 9ter of the Aliens Act (see paragraph 54 below) and on his family situation, the applicant lodged a request for regularisation on exceptional grounds under section 9bis of the Aliens Act.
29.On 7 July 2010 the Aliens Office refused the request for regularisation, taking the view that the protection of the State’s best interests took precedence over the applicant’s social and family interests and that by committing serious punishable acts the applicant himself had placed his family’s unity in jeopardy. That decision was served on the applicant on 11July 2010.
30.On 26 July 2010 the applicant lodged a request with the Aliens Appeals Board under the ordinary procedure for a stay of execution of the decision of 7 July 2010 rejecting his request for regularisation of his status, together with an application to have that decision set aside. In so far as necessary, the application also related to the order to leave the country issued on the same date (see paragraph 78 below). The applicant alleged a violation of Articles 2 and 3 of the Convention and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by the Court in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997‑III), that he would not have access to treatment in Georgia and that the discontinuation of treatment would lead to his premature death. He further alleged an infringement of Article 8 of the Convention and of the International Convention on the Rights of the Child, on the ground that if he were returned to Georgia he would be separated from his family permanently.
31.The request and application were refused by the Aliens Appeals Board in a judgment of 16 March 2015 on the ground that the applicant had not attended the hearing or been represented.
4.Regularisation of the residence status of the applicant’s family
32.On 5 November 2009 the applicant’s wife lodged a request for regularisation on exceptional grounds under section 9bis of the Aliens Act, relying on her family situation and the duration of her residence in Belgium.
33.On 29 July 2010 she and her three children were granted indefinite leave to remain.
D.The applicant’s state of health
1.Chronic lymphocytic leukaemia
34.In 2006, while the applicant was in prison (see paragraph 17 above), he was diagnosed with chronic lymphocytic leukaemia in Binet stage B, with a very high level of CD38 expression. No treatment was commenced.
35.As his health had deteriorated, the applicant was admitted to the Bruges prison hospital complex from 14 August to 23 October 2007 in order to receive a course of chemotherapy.
36.A report prepared on 11 February 2008 by Antwerp University Hospital, where the applicant was being treated, stated that his condition was life-threatening and that, on the basis of the averages observed in 2007, his life expectancy was between three and five years. The report stated that, following treatment, his white blood cell count had fallen significantly.
37.From 8 to 14 May 2010 the applicant was confined to hospital in Turnhout with respiratory problems. The medical report concerning his stay recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist. This treatment did not materialise on his return to Merksplas Prison, where he was being held.
38.On 22 July 2010 a doctor from Antwerp University Hospital visited the applicant in the Merksplas closed facility for illegal aliens (see paragraph 79 below), to which he had been transferred in the meantime, in order to carry out a full medical check-up. The doctor’s report noted that the applicant’s leukaemia, which was progressing rapidly towards Binet stageC, had not been monitored sufficiently and that a different course of chemotherapy was required.
39.In August 2011 the applicant’s condition worsened and the doctors observed that his leukaemia had progressed to Binet stage C, with anaemia and widespread enlargement of the lymph nodes (life expectancy of twenty‑four months). It was decided to switch to a different course of chemotherapy.
40.On 12 September 2012 a doctor from the haematology department of St Pierre University Hospital in Brussels, where the applicant was being treated following his release (see paragraph 82 below), drew up a certificate which stated as follows:
“...
D.Possible complications if treatment is discontinued. Failure to treat the liver and lung disease could result in organ damage and consequent disorders (respiratory insufficiency, cirrhosis and/or liver cancer). Without treatment, the [chronic lymphocytic leukaemia] could lead to the patient’s death as a result of the disease itself or the effects of serious infections.
A return to Georgia would expose the patient to inhuman and degrading treatment.
E.Progression and prognosis. Chronic lymphocytic leukaemia (CLL): good if treated, but the risk of relapse is real, so that close monitoring is required even during remission. ...”
41.After a relapse diagnosed in 2013, the doctors in St Pierre University Hospital observed in March 2014 that the applicant’s leukaemia had developed into lymphocytic lymphoma, and his chemotherapy was adjusted accordingly. A positron‑emission tomography (PET) scan performed on 22September 2014 showed a lack of response to the chemotherapy, a progression of the disease in the lymph nodes and the liver, and a pulmonary infection.
42.The applicant’s treatment was handed over to the Institut Bordet in Brussels, a hospital devoted exclusively to the treatment of cancer patients.
43.In December 2014 the applicant began to receive a new course of treatment as part of a study. He was given Ibrutinib, designed in particular to improve his overall condition, which had been compromised by complications arising out of the treatment (fungaemia, pulmonary infections, septicaemia and cholecystitis, resulting in his being admitted to hospital on several occasions). The treatment was prescribed in order to improve the applicant’s overall condition in preparation for a donor stem cell transplant.
44.A medical certificate issued on 25 May 2015 by the specialist treating the applicant, Dr L., head of the experimental haematology laboratory at the Institut Bordet, stated that the patient’s viral load was stable. The doctor stressed that discontinuing treatment would result in the patient’s death. Because of the patient’s immunosuppression and the aggressive nature of the leukaemia, treatment in a specialised haematology unit was necessary, as was a donor stem cell transplant, which offered the only remaining prospect of a cure provided that it was performed during the two-year “window of response” to Ibrutinib.
45.The applicant stated that the stem cell transplant, originally scheduled to take place in April 2015, had not been performed to date because he did not have a residence permit in Belgium as required by the Organ Removal and Transplant Act of 13 June 1986.
46.On 14 July 2015 a new medical report was prepared by Dr L. which read as follows:
“The patient’s CLL [chronic lymphocytic leukaemia]
...
The patient has been suffering from CLL for nine years (diagnosed in 2006), and by 2011 had already reached stage C and Rai IV [stage IV according to the Rai criteria]. He had already had three lines of treatment prior to Ibrutinib, which he is currently taking, and was refractory to the third line of treatment (R-CVP chemotherapy).
It is clear from the medical literature that if Ibrutinib is discontinued in such a situation, the average life expectancy is three months. ...
The literature also shows that only 7% of patients being treated with Ibrutinib achieve complete remission. Mr Paposhvili is currently in partial remission and is thus wholly dependent on the treatment. This is a new targeted therapy to which he would have no access in his country of origin. With continuous treatment the patient’s prognosis is more favourable, with an 87% survival rate after three years. ...
CLL and especially treatment with Ibrutinib can give rise to serious complications which fully justify regular supervision in a specialised setting. This is particularly true since the patient is in a weak state and has a serious medical history (tuberculosis and stroke) and significant comorbidities (active chronic hepatitis and COPD [chronic obstructive pulmonary disease]). ...
In the case of a young person – Mr Paposhvili is only 57 – the current guidelines advocate using Ibrutinib in order to obtain the best possible response, followed by a donor peripheral blood stem cell transplant. A HLA [human leukocyte antigen] matched donor has been identified for the patient.
Although risky, a donor transplant offers the only prospect of a cure for the patient; he would be unable to have such a transplant in his country of origin.
...
Conclusions
The [Aliens Office’s medical adviser] concludes ... [that] the condition of the patient’s vital organs is not directly life-threatening. That all depends on what is meant by ‘directly’. The patient is suffering from a cancer that is potentially fatal in the short term (median survival time nineteen months) ... and most likely within six months without appropriate treatment.
Moreover, if the treatment is not tailored to the patient’s overall immunosuppression, there is a serious risk of death caused by infection, especially in a Gold stage II COPD patient with a history of tuberculosis. ...”
47.On 1 August 2015 treatment with Ibrutinib became eligible for reimbursement in Belgium.
48.Because of the side-effects of this treatment, which might compromise the donor transplant, the dose of Ibrutinib was reduced from three doses to one dose per day.
2.Other illnesses
49.In 2000 the applicant was diagnosed with active pulmonary tuberculosis. He was treated for that condition under the emergency medical assistance and social welfare assistance schemes.
50.During 2008 the applicant’s tuberculosis was found to have become active again.
51.As a result of that disease the applicant developed chronic obstructive pulmonary disease, for which he received treatment.
52.In addition, the applicant suffered from hepatitis C, which was also diagnosed in 2006 and was probably linked to a history of drug abuse. It was accompanied by liver fibrosis. According to a medical report dated 24April 2015 his hepatitis, which had been treated effectively in 2012 and 2013, had become stable.
53.A magnetic resonance imaging scan carried out in March 2015 showed that the applicant had suffered a stroke, resulting in permanent paralysis of the left arm. The effects of the stroke were managed with an anti-epilepsy drug.
E.Requests for regularisation on medical grounds
1.First request for regularisation on medical grounds
54.On 10 September 2007, relying on Articles 3 and 8 of the Convention and alleging, in particular, that he would be unable to obtain treatment for his leukaemia (see paragraph 34 above) if he were sent back to Georgia, the applicant lodged a first request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act.
55.On 26 September 2007 the Aliens Office refused the request on the ground that, under section 9ter(4) of the Act, the applicant was excluded from its scope on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on 16 August 2007 (see paragraph 73 below).
56.On 17 December 2007 the applicant lodged a request for a stay of execution of that decision under the ordinary procedure, together with an application to set aside. He alleged in particular that the Aliens Office had relied exclusively on the ministerial deportation order in excluding him from the scope of section 9ter of the Aliens Act, without investigating his state of health or the risk he ran of being subjected to treatment contrary to Article 3 of the Convention, and without weighing up the interests at stake as required by Article 8 of the Convention.
57.In a judgment of 20 August 2008 the Aliens Appeals Board dismissed the applicant’s claims in the following terms:
“It is clear from the wording of [section 9ter] that there is nothing to prevent the administrative authority, when dealing with a request for leave to remain on the basis of the above-mentioned section 9ter, from ruling immediately on the exclusion of the person concerned from the scope of the said section 9ter without first being required to take a decision on the medical evidence submitted to it, if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section 55/4, cited above. Indeed, the examination of that evidence is superfluous in such a situation since the person responsible for taking the decision has in any event already decided that the individual is excluded from the scope [of section 9ter].
...
As regards the alleged violation of Article 3 of the Convention, it should be observed that the decision complained of in the present application is not accompanied by any removal measure, with the result that the alleged risk of discontinuation of treatment in the event of the applicant’s return to Georgia is hypothetical.”
58.The Aliens Appeals Board also dismissed the complaint under Article 8 of the Convention in view of the fact that the impugned decision had not been accompanied by any removal measure.
2.Second request for regularisation on medical grounds
59.In the meantime, on 3 April 2008, the applicant had lodged a second request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act. In addition to his various health problems he referred to the fact that he had been continuously resident in Belgium for eleven years and had lasting social ties in that country, and to his family situation. He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had any family ties and where the medical facilities were unsuitable and expensive.
60.The request was refused by the Aliens Office on 4 June 2008 for the same reason it had cited previously (see paragraph 55 above).
61.On 16 July 2008 the applicant lodged an application with the Aliens Appeals Board to have that decision set aside.
62.In a judgment of 21 May 2015 the Aliens Appeals Board rejected the application to set aside. It held that, where the above-mentioned exclusion clause was applied, the Aliens Office was not required to rule on the medical and other evidence contained in the request for regularisation. According to the Aliens Appeals Board, such examination was superfluous by virtue of the exclusion clause alone. The Board pointed out that its task was to review the lawfulness of the measure. This review did not permit it to substitute its own assessment of the facts that were deemed to have been established and were not apparent from the administrative file; rather, its task was confined to ensuring that the formal requirement to provide reasons had been complied with and that the reasoning was not based on a manifest error of assessment. As to the complaints alleging a violation of Articles 2 and 3 of the Convention, the Aliens Appeals Board stated that the assessment of the medical situation of an alien facing removal whose request for regularisation had been rejected should be carried out, as applicable, at the time of enforcement of the removal measure.
63.On 22 June 2015 the applicant lodged an appeal on points of law against that judgment with the Conseil d’État. One of the grounds of appeal was based on Articles 2 and 3 of the Convention. The applicant submitted that the Aliens Appeals Board could not have been unaware that several orders to leave the country had already been issued against him prior to the decision not to examine his request for leave to remain, and that his expulsion had been suspended only as a result of the interim measure applied by the Court (see paragraph 87 below). The applicant further argued that the Aliens Appeals Board had breached the provisions of the Convention by postponing until the date of enforcement of the removal measure the examination of the medical situation of an alien suffering from a serious illness who had requested leave to remain on medical grounds, without studying the specific risks.
64.In an order of 9 July 2015 the appeal on points of law was declared inadmissible. The Conseil d’État held that, contrary to the applicant’s assertion, the grounds for setting aside advanced before the Aliens Appeals Board had simply stressed, in a theoretical and general manner, that section9ter of the Act encompassed the application in domestic law of the obligation under Articles 2 and 3 of the Convention prohibiting the removal of a seriously ill person if such a measure was liable to result in death or inhuman and degrading treatment; no specific explanation had been given, however, as to how the applicant himself risked facing that situation. The Conseil d’État also observed that the applicant had not argued before the Aliens Appeals Board that orders to leave the country had been issued against him, or that a removal measure could be revived; he was therefore unable to rely on those arguments in his appeal on points of law. In any event, the Conseil d’État held that the Aliens Appeals Board had in no way erred in finding that the examination of the medical situation of an alien facing removal whose request for leave to remain had been rejected should be carried out, as applicable, at the time of enforcement of the measure.
3.Review of the applicant’s situation in connection with the proceedings before the Court
65.The applicant was requested to report to the Aliens Office’s medical service on 24 September 2012 for a medical check-up and to enable the Belgian authorities to reply to the Court’s questions.
66.The report prepared by the medical adviser on that occasion listed the consultations held and the treatment that had been administered to the applicant. It stated that his leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely, and that the applicant was under medical supervision for his lung disease.
67.Referring to the Court’s judgment in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), the report concluded as follows:
“On the basis of this medical file it cannot ... be concluded that the threshold of severity required by Article 3 of the Convention, as interpreted by the Court, has been reached ...
It appears from the medical file that the diseases to which the medical certificates refer ... do not disclose a direct threat to the patient’s life. The conditions from which the applicant suffers are serious and potentially fatal but are currently under control.
None of the patient’s vital organs is in a condition that is directly life-threatening. His hepatitis C is not currently causing any cirrhosis. The pulmonary disease is being controlled by treatment consisting solely of an inhaled corticosteroid. The patient’s haematological disorder is currently stable. The lymph nodes are no longer swollen and the patient’s haemolytic anaemia is resolved. Chemotherapy has been discontinued for the time being.
... Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival.
The disease cannot be considered at present to be in the terminal stages. ... The patient is close to Binet stage A at present. His chronic obstructive pulmonary disease is also currently under control.”
68.A medical report drawn up on 23 June 2015 by the medical adviser to the Aliens Office provided a detailed review of the applicant’s clinical history and current state of health and the treatment being administered. It concluded as follows:
“On the basis of [the] medical file it cannot therefore be concluded that the threshold of severity set by Article 3 of the Convention, which requires a risk to life on account of the applicant’s critical condition or the very advanced stage of his or her illness, has been reached (N. v. the United Kingdom [GC], no.26565/05, ECHR 2008, and D.v.the United Kingdom, 2May 1997, Reports of Judgments and Decisions 1997‑III).
The diseases referred to in the most recent update to the medical file ([Dr L.], 25May 2015) ... do not disclose:
– a direct threat to the life of the patient. The illnesses from which the applicant suffers are serious and potentially fatal but are currently under control. ...
– that the condition of the patient’s vital organs is directly life-threatening. ...
– a critical state of health. Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival. The disease cannot be said to be in the terminal stages at present ...”
F.Removal proceedings and the Court’s intervention
1.Order to leave the country under the Dublin Convention
69.On 10 June 1999, on the grounds that the Belgian authorities did not have responsibility under the Dublin Convention for examining the asylum application, the Aliens Office issued an order for the applicant and his wife to leave the country with a view to their transfer to Italy. However, their departure was postponed because the applicant’s wife was pregnant.
70.After the birth, the family was granted leave to remain until 14October 1999 because the new-born baby was in hospital. Their leave to remain was subsequently extended until 15 March 2000 on the ground that the child needed regular supervision by a paediatric gastroenterologist.
71.The time-limit for enforcement of the order for the family to leave the country was extended several times during the first half of 2000 because of the need to treat the applicant’s tuberculosis (see paragraph 49 above) and the six-month course of anti-tubercular treatment required by the whole family.
72.On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the time-limit had been extended until such time as the applicant and his child were fully recovered.
2.Ministerial deportation order
73.On 16 August 2007, while the applicant was serving a prison sentence (see paragraph 17 above), the Minister of the Interior, in a deportation order issued under section 20 of the Aliens Act, directed the applicant to leave the country and barred him from re-entering Belgium for ten years. The order referred to the applicant’s extensive criminal record, allied to the fact that “the pecuniary nature of the offences demonstrate[d] the serious and ongoing risk of further breaches of public order”.
74.The order became enforceable on the date of the applicant’s release but was not in fact enforced because the applicant was undergoing medical treatment at the time.
75.The applicant, who was in hospital, did not contact his lawyer in order to lodge an application to have the ministerial order set aside. However, on 15 November 2007 the lawyer lodged an application on his own initiative. In a judgment of 27 February 2008 the Aliens Appeals Board rejected the application as being out of time.
76.In the meantime, as the applicant was about to finish serving the prison sentence imposed in 2005, he was transferred on 14 August 2007 to Bruges Prison with a view to implementation of the ministerial deportation order. He remained there until 27 March 2010, when he was transferred to Merksplas Prison.
77.During his time in Bruges Prison the applicant was visited on an almost daily basis by his wife and/or his children. The authorities of Merksplas Prison, to which he was subsequently transferred and where he remained until 11 July 2010, informed the applicant that they did not have a record of the number of visits he had received.
3.Orders to leave the country following refusal of the regularisation request
78.In parallel with its decision of 7 July 2010 refusing the applicant’s request for regularisation on exceptional grounds (see paragraph 29 above), the Aliens Office on 7 July 2010 issued an order for him to leave the country, together with an order for his detention. These orders, made on the basis of section 7(1)(1) of the Aliens Act, were served on the applicant on 11 July 2010.
79.Also on 7 July 2010 it was decided that the applicant should be transferred on 13 July to the Merksplas closed facility for illegal aliens with a view to his removal to Georgia.
80.On 16 July 2010 the Georgian embassy in Brussels issued a travel document valid until 16 August 2010.
81.On the same day the applicant lodged a request for a stay of execution under the ordinary procedure, together with an application to set aside, directed specifically against the above-mentioned order to leave the country of 7 July 2010.
82.On 30 July 2010, two days after the indication by the Court of an interim measure (see paragraph 87 below), an order was made for the applicant’s release and he was given until 30 August 2010 to leave the country voluntarily.
83.In a letter dated 30 August 2010 counsel for the applicant applied for an extension of the time-limit for enforcement of the order to leave the country. The time-limit was initially extended until 13 November 2010 and was subsequently extended several times until 19 February 2011.
84.On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” pursuant to the ministerial deportation order of 16 August 2007.
85.The above-mentioned request and application were rejected by the Aliens Appeals Board in a judgment of 29 May 2015 on the ground that the applicant had not attended the hearing or been represented.
4.Indication of an interim measure under Rule 39 of the Rules of Court
86.In the meantime, on 23 July 2010, the applicant applied to the Court for interim measures under Rule 39 of the Rules of Court. Relying on Articles 2, 3 and 8 of the Convention, he alleged that if he were removed to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die even sooner, far away from his family.
87.On 28 July 2010 the Court indicated to the Belgian Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to suspend enforcement of the order for the applicant to leave the country issued on 7 July 2010 “pending the outcome of the proceedings before the Aliens Appeals Board”.
G.Other events
88.The applicant was arrested on several occasions between 2012 and 2015 for shoplifting.
89.In addition, in July 2013 the Aliens Office was contacted by the Luxembourg police and customs cooperation centre, which reported that the applicant was in detention in the Grand Duchy of Luxembourg.
90.In May 2014 a warrant was issued for the applicant’s arrest for theft. The applicant was detained in Bruges Prison and released a few days later.
91.Two notarised deeds of sale dated 24 March and 5 August 2015 record the transfer by the applicant, represented by E.B., to a certain Aleksandre Paposhvili, of a plot of building land for a sum of 30,000 euros (EUR) and a plot of farmland for a sum of EUR 5,000. Both plots are located in the village of Kalauri in the Gurjaani region of Georgia.
123.Basing its findings, inter alia, on the information referred to in the Chamber judgment (paragraphs 90-92), the European Committee of Social Rights assessed the conformity of the Georgian health-care system with Article 11 § 1 of the European Social Charter (Right to protection of health, Removal of the causes of ill-health) and adopted the following conclusions (Conclusions 2015, Georgia, Article 11 § 1):
“...
The Committee takes note of the information submitted by Georgia in response to the conclusion that it had not been established that there was a public health system providing universal coverage (Conclusions 2013, Georgia).
The Committee recalls that the health care system must be accessible to everyone. The right of access to care requires inter alia that the cost of health care should be borne, at least in part, by the community as a whole (Conclusions I (1969), Statement of Interpretation on Article 11) and the cost of health care must not represent an excessively heavy burden for the individual. Out-of-pocket payments should not be the main source of funding of the health system (Conclusions 2013, Georgia).
The report states that on 28 February 2013 a Universal Health Care Programme was launched for persons without medical insurance. The first phase of the programme ensured citizens with a basic medical package, including primary health care and emergency hospitalisation. Since 1 July 2013 the programme has been expanded to include more services of primary health care and emergency hospitalisation, emergency outpatient care, planned surgeries, treatment of oncological diseases and child delivery. According to recent data (April 2014), all citizens of Georgia are now provided with basic healthcare, approximately 3.4 million people in the framework of the Universal Health Care Programme, 560,000 people are beneficiaries of the State Health Insurance Programme and about 546,000 people have a private or corporate insurance.
The Committee notes that the Government has declared health care as a priority field, resulting in funding for state health care programmes almost doubling: from 365million GEL in 2012 (€ 139 million) to 634 million GEL in 2013 (€ 241 million). State spending as a share of GDP has increased from 1.7% to 2.7% and as a share of the state budget from 5% to 9%.
However, the Government acknowledges that despite improvements the cost of medication remains high amounting to 35% of state expenditure on health care. The report does not provide information on out-of-pocket payments as a share of total spending on health care, but according to WHO data it was still between 60% and 70% in 2011 (compared to about 16% on average for EU-27). Very limited coverage of medication costs is now provided under the Universal Health Care Programme, for example for emergency care, chemotherapy and radiotherapy, but the general lack of coverage of medication costs is a major point of dissatisfaction among beneficiaries of the programme according to a recent evaluation (Universal Healthcare (UHC) Program Evaluation by the USAID Health System Strengthening Project, April 2014). The Committee notes the examples provided by the Government of coverage of certain medication costs under the State Health Insurance Programme.
The report states that as a result of deregulation measures the pharmaceutical market has become free and competitive, however no evidence is provided to show that the price of medication has become generally more accessible, especially for vulnerable groups and those with chronic conditions.
While the Committee considers that the Universal Health Care Programme is a positive step forward and that the role of out-of-pocket payments as a source of funding of the health system may have been reduced somewhat, it still considers that the high proportion of out-of-pocket payments for health care, and in particular the high medication costs, represent too high a burden for the individual effectively being an obstacle to universal access to health care. The situation is therefore not in conformity with the Charter.
Conclusion
The Committee concludes that the situation in Georgia is not in conformity with Article 11§1 of the Charter on the ground that out-of-pocket payments in general and medication costs in particular represent too high a burden for the individual effectively being an obstacle to universal access to health care.”

1. The applicants, a married couple, are Afghan nationals who were born in 1985 and 1992 respectively. The President granted the applicants ’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms M. Hellborg, a lawyer practising in Goteborg.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants applied for asylum on 3 May 2012 and were interviewed twice by the Migration Agency ( Migrationsverket ). They submitted that they were Hazaras from the Ghazni province of Afghanistan.
4. At the asylum interviews the first applicant stated the following. He had left Afghanistan for Greece for the first time in 2002 and applied for asylum there in 2004. In 2010 he had voluntarily returned to Afghanistan since his application had been refused by the Greek authorities and the threat in Afghanistan had no longer been present. After having first stayed in Kabul, he had later moved to a smaller town. The mullah there had found his views on other religions too liberal, and he had been seen as an apostate. He had become isolated and could not work. He had met the second applicant and had fallen in love with her, but her family had not accepted him. Sometime later the mullah had given the first applicant a job as a caretaker at the mosque. One day the fireplace had caught fire and parts of the mosque had burned down. He had been suspected of having set the mosque on fire intentionally and had been arrested. Allegedly, the mullah had stated that he had the authority to sentence the first applicant to death by stoning. The applicants had fled Afghanistan together in 2010. The first applicant alleged that he had become interested in Christianity in 2002 during his stay in Greece, where he had handed out Christian magazines to people on the street and had gone to church twice a week and taken part in other church activities. He had not been allowed to be baptised because the priest there found his knowledge of Christianity to be insufficient. In June 2012 he had been baptised in Sweden at the Pentecostal church. He had come to appreciate Christianity ’ s respect for women, honesty and tolerance of other faiths. He did not think that other Afghans in his circle or the Afghan authorities were aware of his conversion, but the authorities would eventually come to know of it because he would not hide his conversion if returned to Afghanistan. This would put his life at risk. He had also taken another man ’ s wife to be his, for which he risked harsh punishment. Finally, the applicants alleged that they were not able to relocate internally in Afghanistan.
5. The second applicant stated at the interviews that she had been kidnapped, assaulted and raped by a man whom she had later been forced to marry. She had run away and divorced her husband and had married the first applicant. Consequently, she would risk being killed if returned to Afghanistan. She had not, however, converted to Christianity.
6. On 12 May 2013 the Migration Agency rejected the applicants ’ asylum applications and ordered their deportation to Afghanistan. It noted that they had failed to substantiate that the first applicant had returned to Afghanistan in 2010, that the marriage certificate that they had submitted only in copy contained a birth date and a family name which differed from the information given in their asylum applications, that they had given numerous diverging explanations as to how their friends in Greece had sent the certificate to them, and that no documents certifying the second applicant ’ s divorce from her first husband had been submitted. In any event, even if their claims concerning the first applicant ’ s return to Afghanistan and the later divorce and marriage were to be accepted, the Agency found that the applicants ’ stories were, in central parts, vague, contradictory and peculiar. It noted that the first applicant had been given work as a janitor in the mosque despite his being seen as an apostate. Furthermore, the information on the possible death sentence was deemed vague and remarkable, as the first applicant had not seen the actual order; the mullah had just waved a piece of paper which allegedly gave him the authority to sentence the first applicant. It was also unclear which authority had issued the document.
7. Concerning the first applicant ’ s conversion, the Migration Agency first noted that he had not mentioned in the first asylum interview that he had previously tried to convert in Greece and planned to convert in Sweden. Moreover, although, in the view of the Agency, a genuine conversion must be seen as an important step in a person ’ s life, the applicant ’ s statements on why he had converted and what Christianity meant to him were vague and of a rather general nature. Despite his alleged ten-year interest in Christianity, he had no knowledge of the main Christian holidays and the disposition of the Bible and had also been unable to give an account of what he considered to be the Christian message. In general, he had not been able to relate any deeper knowledge of the Bible or of Christianity. He had explained that this was due to his not yet having had the opportunity to study the religion. The Migration Agency found that the first applicant had not converted out of a genuine religious conviction and that he had not made it probable that he intended to live as a convert upon return Afghanistan. Furthermore, there was no indication that his baptism or other religious activities had come to the attention of the Afghan authorities.
8. With respect to the second applicant, the Migration Agency noted that she had herself stated that she was a Muslim and had not converted to Christianity. She had changed her story on her alleged kidnapping, and her submissions regarding her ex-husband ’ s background and position were also considered vague. Furthermore, her statements on when she had met the first applicant were deemed vague and lacking in detail and contradicted the first applicant ’ s submissions. Having regard to these credibility issues, the Agency concluded that she had not shown that she would be at risk for having remarried.
9. In sum, the Migration Agency found that the individual reasons put forward by the applicants did not warrant granting asylum.
10. As regards the general situation in Afghanistan, the Agency referred to a legal statement by the head of the Agency ’ s legal department, issued in 2010, according to which there were internal armed conflicts in a number of provinces in Afghanistan, inter alia, Ghazni, and aggravated tensions in a number of others, but that there were internal flight alternatives for families with a male leader. Because of the internal armed conflict in the applicants ’ home province of Ghazni, the Agency examined the possibility of an internal flight alternative. It noted that, according to the available country information, men could settle in a different location in Afghanistan even without the support of a network. Women and families could travel with their men, but might face harassment and ill-treatment if they travelled on their own. Sporadic acts of violence occurred in Kabul, primarily targeting public authorities and officials, but the majority of the city ’ s population had moved from other parts of Afghanistan without the support of an existing social network and all ethnic minorities were represented in the province. Thus, the general situation in Kabul did not in itself warrant granting asylum. Taking into account that the applicants were young, healthy and able to work, the Agency concluded that Kabul was a relevant and reasonable alternative within Afghanistan.
11. The applicants appealed against the decision and in essence made the same submissions as before the Migration Agency. They added that the original marriage certificate had been sent by post but had never arrived. Moreover, the mullah had hired the first applicant in order to bring him back to Islam and to be able to control him. The first applicant ’ s conversion essentially consisted of his having adopted Christian values. He had not been able to study the religion in detail due to his illiteracy. In Afghanistan he had run into trouble merely by questioning the values of Islam. He had not been able to read the document that the mullah had waved in front of him because he was illiterate, but he had recognised the seal of the district office. They did not know the position of the second applicant ’ s ex-husband because Talibans did not have positions as in Sweden. They knew that he was powerful and influential, however, because he had driven expensive cars and money was power in Afghanistan. He had worked for the district office. The second applicant claimed not to have changed her story; rather, she had been misunderstood, either by the interpreter or the Migration Agency ’ s administrator. By leaving her husband, the second applicant had breached Muslim values. Her ex-husband had connections and could kill her, even in Kabul.
12. On 27 September 2013 the applicants ’ appeal was rejected by the Migration Court ( Migrationsdomstolen ). The court, which held an oral hearing, shared the reasoning of the Migration Agency regarding the general situation in Afghanistan and the applicants ’ personal grounds for seeking asylum. It found that the first applicant had not explained why he had returned to his home village and agreed to be employed by the mullah, despite the perceived serious threat from the mullah. It deemed the first applicant ’ s account of the alleged death sentence to be vague and speculative. Consequently, the court considered that he had not made it probable that he would be in need of asylum because of his non-Muslim behaviour or the fire in the mosque. Furthermore, it noted that no original documents had been submitted concerning the second applicant ’ s alleged divorce, or the applicants ’ marriage certificate. Also, the second applicant had given conflicting accounts of the divorce proceedings. The court concluded that the applicants had not made probable the alleged events causing their flight and marriage. Moreover, their accounts of the second applicant ’ s ex-husband and how they had got in touch and fled after the fire in the mosque were deemed vague and lacking in detail. In sum, the court concluded that the applicants had not shown that they were in need of international protection because of the incidents that had allegedly occurred in Afghanistan or their submissions concerning their marriage.
13. Regarding the applicants ’ sur place activities, the court first noted that religious conversion for Muslims was criminalised under Sharia law and punishable by death. It further noted that the first applicant ’ s conversion was not an expression or a continuation of views that he held before leaving Afghanistan in 2002. However, it considered that he had proved that he had formally converted by being baptised. To assess whether or not his conversion was genuine, the court turned to an examination of his credibility. The court held that a religious conversion constituted a major change in a person ’ s life and that, in the light of what is known of the Afghan attitude on the matter, abandoning Islam in favour of Christianity must be considered a very far-reaching step in the life of an Afghan. The court therefore shared the Migration Agency ’ s conclusion that it was remarkable that the first applicant had failed to mention during the first asylum interview that he had tried to convert in Greece and that he had planned to convert in Sweden. Moreover, the court noted that the first applicant had not been able to describe what, in the Christian faith, had convinced him to convert. It found it conspicuous that, despite his ten-year interest in Christianity, he had not demonstrated any profound knowledge of the Bible, Christian holidays or other aspects of the religion. Furthermore, the first applicant had only started attending church services on a more regular basis around the time when the Migration Agency had refused his asylum application. In the light of the above, the court concluded that he had not made it plausible that he had converted out of a genuine religious conviction or that he intended to live as a convert in Afghanistan and consequently risk persecution. It found that there was nothing to indicate that the baptism or other activities within the parish had, or could, come to the attention of the Afghan authorities. In consequence, the second applicant was deemed not to have substantiated a risk of treatment warranting international protection due to having married a convert.
14. Turning to the general situation in Afghanistan and the issue of an internal flight alternative, the court noted that there was an internal armed conflict in the applicants ’ home province. With respect to Kabul, the humanitarian situation was serious and there were aggravated tensions in the province. Having regard to the fact that the applicants belonged to a vulnerable minority without a social network, the court concluded that Kabul was not a reasonable alternative. However, it held that there were other sufficiently safe provinces, such as Herat and Mazar-e-Sharif, to which the applicants could reasonably relocate.
15. On 9 January 2014 the Migration Court of Appeal ( Migrationsöverdomstolen ) refused leave to appeal.
16. Subsequently, the applicants alleged that there were impediments to their deportation and requested the Migration Agency to grant them a new assessment of their case. They submitted in essence the following. In October 2013 the second applicant had converted to Christianity and had been baptised in the same church as the first applicant. She had converted because she had seen that conversion had had a positive impact on the first applicant. She had attended the first applicant ’ s baptism and had started reading the Bible. Her commitment had dawned late and her understanding of the Christian message had taken time. Given the known danger of being an apostate in Afghanistan, their return there would put their lives at immediate risk. Their faith was so strong that they would refuse to follow the religious traditions of their home country. They submitted their baptism certificates and a written statement by a pastor of their parish attesting to their religious activities.
17. On 8 April 2014 the Migration Agency dismissed the petition to stop the deportation. It noted that the first applicant ’ s conversion had already been assessed in the earlier decision, which had acquired legal force. Regarding the second applicant, it noted that it transpired from the oral hearing before the Migration Court that she had denied having converted to Christianity. She had claimed to have been a Muslim but, as she had not adhered to the Muslim dress code, she had been criticised by Afghan women. Also, she had been seen as non-Muslim due to her marriage to a non-Muslim man. In view of the above, and considering that the information on the second applicant ’ s formal conversion was to be viewed as an addition to or modification of circumstances which had already been examined in the earlier decision, the Migration Agency concluded that there were no reasons to stop the deportation or to grant the applicants a new assessment of their case.
18. Upon appeal by the applicants, on 13 May 2014 the Migration Court upheld the impugned decision, sharing the reasoning of the Migration Agency regarding the first applicant. Concerning the second applicant, the court found that the issue of her conversion to Christianity, her baptism and the consequences thereof were new circumstances which had not been assessed in previous proceedings. However, the court noted that she had not been interested in Christianity while living in Afghanistan. Furthermore, although she had denied being a Christian up until the Migration Court ’ s judgment in September 2013, she had been baptised soon after, in October 2013. Also, she had now presented a written statement by a pastor according to which she had attended church as early as in June 2013. The court found these events contradictory and concluded that the second applicant ’ s submissions about her Christian faith were highly questionable and did not constitute an impediment to her deportation.
19. Subsequently, the applicants again alleged that there were impediments to their deportation and requested the Migration Agency to grant them a new assessment of their case. They submitted that their long and deep involvement with Christianity showed that they had lived as established Christians. They had been known for their Christian activities and had pursued missionary work. Their conversion was known in Afghan society, in Sweden and in Afghanistan. They had had an Afghan Muslim guest in August 2014. He had disapproved of their religious conversion and had threatened them. They had later learned that he had been sent back to Afghanistan in October 2014. He had subsequently called them and threatened them with execution for being apostates. He had said that he had told the authorities about the applicants ’ religious conversion.
20. On 27 November 2015 the Migration Agency dismissed the petition to stop the deportation. It noted that the applicants ’ conversion had already been assessed in the earlier decisions which had acquired legal force and which had concluded that their conversion was not based on a genuine religious conviction. The Agency further found that the general situation in Afghanistan had not changed since its previous decisions in such a way that it constituted an impediment to the applicants ’ deportation. Regarding the alleged threats from an Afghan guest, the Agency noted that the allegations had not been corroborated or substantiated in any way.
21. The applicants appealed. In addition to what they had previously stated, they argued that the fact that they now had a child, a daughter born in December 2014, warranted granting asylum.
22. On 4 February 2016 the Migration Court rejected the appeal, sharing the reasoning of the Migration Agency. It noted that the applicants had submitted additional written statements from friends, according to which the applicants had received threats from fellow countrymen because of their religious conversion. The court found that, even if the events described in the written statements had actually occurred and their countrymen had learned about the applicants ’ conversion, those circumstances alone did not warrant granting asylum. The same conclusion was reached with respect to the applicants ’ child.
23. On 30 March 2016 the Migration Court of Appeal refused leave to appeal.
24. The applicants submitted an asylum application on behalf of their daughter. Noting that she had no health issues and that her deportation together with her parents would not violate Article 8 of the Convention, the Migration Agency rejected the application on 27 November 2015, referring to the reasons given in the decisions concerning the applicants. The decision was upheld by the Migration Court on 4 February 2016. On 30 March 2016 the Migration Court of Appeal refused leave to appeal.
25. The present application was lodged with the Court on 20 June 2016. On 20 September 2016 the duty judge decided to indicate to the Government of Sweden that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to deport the applicants to Afghanistan for the duration of the proceedings before it (Rule 39 of the Rules of Court).
B. International materials
26. Information relating to the situation of the Hazaras can be found in, inter alia, A.M. v. the Netherlands, no. 29094/09, 5 July 2016, and M.H.A. v. the Netherlands (dec.) 61402/15, 5 July 2016, and relating to sur place activities of asylum seekers in T.M. and Y.A. v. the Netherlands (dec.) 209/16, 5 July 2016.

10.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 and third applicants”) live in ElMahdia (Tunisia).
A.The applicants’ arrival on the Italian coast and their removal to Tunisia
11.On 16 September 2011 in the case of the first applicant, then the next day, 17 September, in the case of the second and third applicants, the applicants 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.
12.The applicants were transferred to an Early Reception and Aid Centre (Centro di Soccorso e Prima Accoglienza – “CSPA”) on the island of Lampedusa at Contrada Imbriacola where, after giving them first aid, the authorities proceeded with their identification. According to the Government, on this occasion individual “information sheets” were filled in for each of the migrants concerned (see paragraph 224 below); this is disputed by the applicants (see paragraph 222 below).
13.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. They had to eat their meals outside, sitting on the ground. The centre was kept permanently under police surveillance, making any contact with the outside world impossible.
14.The applicants remained in the CSPA 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.
15.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 other people, while the second and third applicants were put on board the Audace, with about 150 others.
16.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 go outside onto the decks twice a day for only 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.
17.The applicants remained on the ships for a few days. On 27September 2011 the second and third applicants were taken to Palermo airport pending their removal to Tunisia; the first applicant followed suit on 29 September.
18.Before boarding the planes, the migrants were received by the Tunisian Consul. In their submission, the Consul merely recorded their identities in accordance with the agreement between Italy and Tunisia of April 2011 (see paragraphs 36-40 below).
19.In their application the applicants asserted 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 in respect of the applicants. Those orders, which were virtually identical and drafted in Italian with a translation into Arabic, read as follows:
“The Chief 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, ‘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 arrival on national territory, and precisely at: ‘island of Lampedusa’;
WHEREAS none of the situations [provided for in] Article 10 § 4 of Legislative Decree no.286 of 1998 is present;
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
–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 will not, in any event, 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 notification, 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 Chief of Police
[Signature]”
20.These orders were each accompanied by a record of notification bearing the same date, also drafted in Italian with an Arabic translation. In the space reserved for the applicants’ signatures, both records contain the handwritten indication “[the person] refused to sign or to receive a copy” (si rifiuta di firmare e ricevere copia).
21.On their arrival at Tunis airport, the applicants were released.
B.Decision of the Palermo preliminary investigations judge
22.A number of 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.
23.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.
24.In a decision of 1 June 2012 the Palermo preliminary investigations judge (giudice per le indagini preliminari) granted the public prosecutor’s request.
25.In his reasoning the judge emphasised that the purpose of placing the migrants in the CSPA was to accommodate them, to assist 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 (Centro di Identificazione ed Espulsione – “CIE”) or taking any measures in their favour. At the CSPA the migrants could, according to him, 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 also agreed with the public prosecutor 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.
The judge noted that the Agrigento police authority (questura) had merely registered the presence of the migrants at the CSPA without taking any decisions ordering their confinement.
26.According to the judge, the unstable 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 at 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 canisters. The judge explained that 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 34 below). It was thus an imperative to arrange for the immediate 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, and 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 ordered in respect of 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 that there had been no infringement 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).
27.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 had been 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, T.R., a member of parliament (MP) had boarded 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 reclining seats (poltrone reclinabili). Some of the Tunisians had been taken to hospital, while others had been treated on board by medical staff. Accompanied by the deputy chief 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, fruit 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.
28.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 34 below).
29.In the light of the foregoing, the preliminary investigations judge concluded that the case 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
30.Two other migrants in respect of whom a refusal-of-entry order had been issued challenged those orders before the Agrigento Justice of the Peace.
31.In two decisions (decreti) of 4 July and 30 October 2011, respectively, the Justice of the Peace annulled those orders.
In his reasoning the judge observed that the complainants had been found on Italian territory on 6May and 18September 2011 respectively and that the orders at issue had been adopted only on 16 May and 24September 2011. While acknowledging that Article 10 of Legislative Decree no.286 of 1998 (see paragraph 33 below) did not indicate any time-frame for the adoption of such orders, the judge took the view that 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 amounted to allowing de facto detention of the migrant in the absence of any reasoned decision of the authority, which would contravene the Constitution.
36.On 5 April 2011 the Italian Government entered into an agreement with Tunisia on measures to control the flow of irregular migrants from that country.
37.The text of the agreement had not been made public. However, appended in an annex to their request for referral to the Grand Chamber, the Government produced extracts from the minutes of a meeting held in Tunis on 4 and 5 April 2011 between the Ministries of the Interior of Tunisia and Italy. According to a press release dated 6April 2011 on the website of the Italian Ministry of the Interior[1], Tunisia undertook to strengthen its border controls with the aim of avoiding fresh departures of irregular migrants, using logistical resources made available to it by the Italian authorities.
38.In addition, Tunisia undertook to accept the immediate return of Tunisians who had unlawfully reached the Italian shore after the date of the agreement. Tunisian nationals could be returned by means of simplified procedures, involving the mere identification of the person concerned by the Tunisian consular authorities.
39.According to the indications given by the Government in their written observations of 25 April 2016 before the Grand Chamber, there had been an initial agreement with Tunisia in 1998; it had been announced on the Interior Ministry’s website, added to the treaty archive of the Ministry of Foreign Affairs and International Cooperation and published in Official Gazette no. 11 of 15 January 2000.
40.The Government produced a note verbale concerning the bilateral agreement that Italy concluded with Tunisia in 1998, appending it in an annex to their request for referral to the Grand Chamber. The document in question, emanating from the Italian Government and dated 6 August 1998, and which does not seem to be the text applied in the applicants’ case (see paragraph103 below), contains provisions on bilateral cooperation for the prevention and repression of illegal immigration, the readmission of the two countries’ nationals, the return of nationals of third countries outside the Arab Maghreb Union to their countries of last departure, and the taking-back of migrants after readmission in error.
The text of the note verbale shows that the Italian Government agreed to support Tunisia’s efforts to combat illegal immigration by providing technical and operational material assistance and by making a financial contribution. Each Party undertook, at the request of the other Party and without further formality, to readmit into its territory any person who did not meet the conditions of entry or residence applicable in the requesting State, in so far as it had been established that the person concerned was a national of the requested State. The text refers to the documents required for the identification of those concerned and provides (part II, point 5) that if the consular authority of the requested State considers it necessary to hear the person concerned, a representative of the authority of that State may go to the court office, or to the reception centre or medical facility where the migrant is legally residing, in order to interview him or her.
The note verbale also describes the procedure for issuing a laissez‑passer and for the removal of migrants, while indicating the Italian Government’s undertaking “not to resort to mass or special removals” of the persons concerned.
41.In the European Union (EU) context, the return of irregular migrants is governed by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 (the “Return Directive”) “on common standards and procedures in Member States for returning illegally staying third-country nationals”. The Directive contains the following provisions in particular:
Article 1Subject matter
“This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.”
Article 2Scope
“1.This Directive applies to third-country nationals staying illegally on the territory of a Member State.
2.Member States may decide not to apply this Directive to third-country nationals who:
(a)are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;
(b)are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.
...”
Article 8Removal
“1.Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7.
2.If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period.
3.Member States may adopt a separate administrative or judicial decision or act ordering the removal.
4.Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned.
5.In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC.
6.Member States shall provide for an effective forced-return monitoring system.”
Article 12Form
“1.Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.
The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.
2.Member States shall provide, upon request, a written or oral translation of the main elements of decisions related to return, as referred to in paragraph 1, including information on the available legal remedies in a language the third-country national understands or may reasonably be presumed to understand.
3.Member States may decide not to apply paragraph 2 to third country nationals who have illegally entered the territory of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State.
In such cases decisions related to return, as referred to in paragraph 1, shall be given by means of a standard form as set out under national legislation.
Member States shall make available generalised information sheets explaining the main elements of the standard form in at least five of those languages which are most frequently used or understood by illegal migrants entering the Member State concerned.”
Article 13Remedies
“1.The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.
2.The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation.
3.The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance.
4.Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC.”
Article 15Detention
“1.Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:
(a)there is a risk of absconding or
(b)the third-country national concerned avoids or hampers the preparation of return or the removal process.
Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.
2.Detention shall be ordered by administrative or judicial authorities.
Detention shall be ordered in writing with reasons being given in fact and in law.
When detention has been ordered by administrative authorities, Member States shall:
(a)either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;
(b)or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.
The third-country national concerned shall be released immediately if the detention is not lawful.
3.In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.
4.When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.
5.Detention shall be maintained for as long a period as the conditions laid down in paragraph1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.
6.Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:
(a)a lack of cooperation by the third-country national concerned, or
(b)delays in obtaining the necessary documentation from third countries.”
Article 16Conditions of detention
“1.Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.
2.Third-country nationals in detention shall be allowed — on request — to establish in due time contact with legal representatives, family members and competent consular authorities.
3.Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided.
4.Relevant and competent national, international and non-governmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third-country nationals in accordance with this Chapter. Such visits may be subject to authorisation.
5.Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4.”
Article 18Emergency situations
“1.In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide to allow for periods for judicial review longer than those provided for under the third subparagraph of Article15(2) and to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2).
2.When resorting to such exceptional measures, the Member State concerned shall inform the Commission. It shall also inform the Commission as soon as the reasons for applying these exceptional measures have ceased to exist.
3.Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive.”
42.When interpreting the Return Directive, the Court of Justice of the European Union (CJEU) held that an alien was entitled, before a decision to return him or her was adopted, to express his or her view on the legality of his or her stay (see, in particular, Khaled Boudjlida v. Préfet des Pyrénées‑Atlantiques, case C-249/13, judgment of 11 December 2014, §§28-35).
43.It can be seen from the CJEU’s case-law that, in spite of the lack of express provision for the right to be heard in the Return Directive, that right applies as a fundamental principle of EU law (see, in particular, Articles 41, 47 and 48 of the EU’s Charter of Fundamental Rights; also the judgments M.G. and N.R v. Staatssecretaris van Veiligheid en Justitie, C-383/13 PPU, 10 September 2013, § 32, and Sophie Mukarubega v. Préfet de police et Préfet de la Seine-Saint-Denis, C-166/13, judgment of 5November 2014, §§ 42-45).
The CJEU clarified that the right to be heard: (a) guaranteed to every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his or her interests adversely (Khaled Boudjlida, cited above, § 36, and Sophie Mukarubega, cited above, § 46); and (b) enabled the competent authority effectively to take into account all relevant information, to pay due attention to the observations submitted by the person concerned, and thus to give a detailed statement of reasons for its decision (Khaled Boudjlida, cited above, §§ 37-38).
In the Khaled Boudjlida judgment (cited above, §§ 55, 64-65 and 67), the CJEU added: (a) that the alien need not necessarily be heard in respect of all the information on which the authority intends to rely to justify its return decision, but must simply have an opportunity to present any arguments against his removal; (b) that the right to be heard in a return procedure does not entitle the person to free legal assistance; and (c) that the duration of the interview is not decisive in ascertaining whether the person concerned has actually been heard (in the case at issue it had lasted about thirty minutes).
44.In the CJEU’s view, a decision taken following an administrative procedure in which the right to be heard has been infringed will result in annulment only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see M.G. and N.R, cited above, §§38 and 44, concerning decisions to extend detention pending removal; in §§ 41-43 of that judgment it is stated that the Directive’s effectiveness would otherwise be undermined and the objective of removal called into question).
45.Lastly, the CJEU has held that the right to be heard can be subjected to restrictions, provided they correspond to objectives of general interest and do not involve, with regard to the objective pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right guaranteed (see M.G. and N.R., cited above, § 33, and Sophie Mukarubega, cited above, §§ 53 and 82, where it is stated that the person concerned does not have to be heard by the national authorities twice, both on his or her application to stay and on a return decision, but only on one of those questions).

A.Background to the case
10.During the period from the end of September 2006 to the end of January 2007 identity checks of Georgian nationals residing in Russia were carried out in the streets, markets and other workplaces and at their homes. Many were subsequently arrested and taken to police stations. After a period of custody in police stations, they were grouped together and taken by bus to a court, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, after sometimes undergoing a medical visit and a blood test, they were taken to detention centres for foreigners where they were detained for varying periods of time, taken by bus to airports in Moscow, and expelled to Georgia by aeroplane. (for further details as to the background of the case see Georgia v.Russia (I) [GC], no.13255/07, §45, ECHR 2014).
B.Circumstances of the present case
11.The applicant was born in 1959 in Senaki (Georgia) and married to Mr Tengiz Togonidze, a Georgian national born in 1958. Together they had lived in St Petersburg since 2004. In April 2006 Mr Togonidze had started suffering from coughing fits, shortness of breath and thickening of the aorta walls.
12.In May 2006 the applicant returned to Georgia because her visa had expired. Mr Togonidze, whose visa had expired on 9 February 2005 and whose registration was no longer valid either, stayed in St Petersburg.
1.The arrest and the conditions of detention and transportation of MrTogonidze
13.At about 8.50 p.m. on 3 October 2006 Mr Togonidze was arrested by police officers in St Petersburg and placed in detention.
14.At about 3.30 p.m. on 4 October 2006 the Nevskiy District Court of StPetersburg ordered Mr Togonidze to be expelled from the Russian Federation and detained at the St Petersburg special detention centre for aliens pending his administrative expulsion on the ground that he had infringed the residence rules governing foreign nationals, namely Article18.8 of the Code of Administrative Offences. The court also fined the applicant in the amount of RUB 1,500.
15.Mr Togonidze was subsequently brought to the reception centre for foreigners of the Main Internal Affairs Directorate for St Petersburg and Leningrad Region. Upon his arrival he was examined by a medical officer, who found that Mr Togonidze did not show any health problems preventing him from being placed in the reception centre. Mr Togonidze informed the medical staff that he suffered from asthma attacks and was subsequently placed together with another Georgian detainee who suffered from asthma in a cell measuring between 35 and 40 m2 with 25 to 30 other Georgian nationals.
16.The sanitary conditions of the cell were very poor, as the toilets were only separated from the rest of the cell by a partition measuring 1.1 m at one side, and there was a lack of fresh air. In addition, while Mr Togonidze was provided with possibilities to take walks, he was not permitted outdoor activities.
17.On 13 October 2006 Mr Togonidze was suffering from nausea and a headache and asked for medical assistance. Subsequently a medical officer checked his blood pressure and temperature, which was slightly raised. He was given paracetamol. A re-examination the same day showed that his temperature was back to normal.
18.On 14 October 2006 Mr Pataridze, Consul of Georgia in the Russian Federation at the material time, visited the detention centre. When he saw Mr Togonidze, who was having difficulties breathing and whose face had turned black, he had requested that Mr Togonidze be immediately transferred to a hospital but that request was not complied with.
19.On 16 October 2006 Mr Togonidze, together with 24 other Georgian nationals, was placed in a bus to Domodedovo Airport in Moscow with a view to his expulsion by aeroplane to Georgia. Prior to entering the bus the detainees and their belongings were searched. In addition the detainees were accompanied by 20 officers of the special police force of the Main Internal Affairs Directorate (OMON) on the bus and two further police cars escorted the bus on the way to the airport.
20.The conditions of transport in the bus were very difficult, with no air conditioning, and although the journey lasted between eight and nine hours, the officers who had been accompanying the detainees had not allowed them to open the windows. On the way to the airport the bus stopped five times to let people, allegedly for a bribe, use the toilet and purchase food. Exiting the bus was closely monitored by the accompanying police officers.
21.On 17 October 2006 between 7 and 8 a.m. the bus arrived at the airport and around 8.30 a.m. MrTogonidze, whose health had deteriorated during the bus ride, was allowed to leave the bus upon the request of MrPataridze, who was awaiting the Georgian nationals at the airport.
22.Mr Pataridze indicated that when MrTogonidze had got off the bus he had seen that he was very ill and was “suffocating like a fish out of water” and begging to be allowed to breathe fresh air.
23.On the way to the terminal MrTogonidze collapsed after walking a few steps and died. A called ambulance was unable to resuscitate him and he was declared dead at 10.20 a.m.
2.The investigation carried out by the Russian authorities following MrTogonidze’s death
24.On 18 October 2006 the Bureau of Forensic Medical Examination of the Moscow Health Department conducted an autopsy of MrTogonidze’s corpse and indicated that his death was caused by tuberculosis. In addition blood and urine samples were taken and sent for forensic chemical examination.
25.On 19 October 2006 the Moscow Regional Prosecutor’s Office decided not to initiate criminal proceedings, as the competent prosecutor found that MrTogonidze had died of a natural cause.
26.During the forensic chemical examination of the taken blood and urine samples methadone was detected in both samples. In regard to the urine sample a high-performance liquid chromatography (HLPC) was applied, which established 0,11 mg% methadone and 0,69 mg% methadone metabolite in Mr Togonidze’s urine. A closer inspection of MrTogonidze’s blood was not conducted and the exact level of methadone in his blood was not established. Based on these findings the Bureau of Forensic Medical Examination of the Moscow Health Department finally concluded that MrTogonidze had died of methadone poisoning.
27.On 8 November 2006 the decision not to initiate criminal proceedings of 19 October 2006 was quashed and the case file was forwarded for additional examination.
28.On 9 November 2006 the Moscow Regional Prosecutor’s Office decided again not to initiate criminal proceedings. This time finding that, owing to detecting methadone in the urine and blood of Mr Togonidze (see paragraph 26 above) and finding three injection marks on his corpse, there was evidence for repeated use of narcotics for a long period of time. Therefore the prosecutor concluded that Mr Togonidze took the methadone voluntarily and that his death was caused by negligent poisoning with methadone.
29.On 14 December 2006 the General Prosecutor’s Office of the Russian Federation proposed that the decision of 9 November 2006 would be quashed and further investigations would be conducted. It held that thus far the deterioration of Mr Togonidze’s health during the bus ride had not sufficiently been examined and that relevant officials had not been interviewed.
30.On 15 December 2006 the Federal Migration Service challenged the allegation that Mr Togonidze had died of methadone poisoning, saying that he had died of tuberculosis.
31.On 20 December 2006 a criminal investigation was initiated against an unknown person for selling methadone to Mr Togonidze at an unknown date and unknown location.
32.On 30 July 2007 the decision to dismiss criminal proceedings was quashed and the case was forwarded for additional examination. In particular it was held that the dismissal was premature and that it should be established whether any narcotics were found on Mr Togonidze, the amount of methadone taken by him, whether such a dose could be lethal, why MrTogonidze’s health deteriorated during the bus ride and whether he received adequate health care during his detention and transfer to the airport.
33.On 8 August 2007 the criminal proceedings were dismissed and on 9August 2007 the dismissal was quashed again, as the instructions of 30July 2007 had not been fulfilled.
34.On 14 August 2007 the criminal proceedings were dismissed again and the dismissal was quashed on 11 December 2007.
35.On 20 December 2007 criminal proceedings were finally dismissed. A subsequent request to quash the dismissal was denied on 14 February 2008 and confirmed on 1 September 2010.
3.Medical Report submitted by the applicant
36.Based on the documents provided by the Government, and in particular on the autopsy report and the report of the forensic chemical examination, the applicant submitted her own medical report regarding her husband’s death. The report was compiled by a forensic pathologist, DrJohn Clark – a former lecturer at different universities in the United Kingdom and chief pathologist for the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) – supported by a forensic toxicologist, DrHilary Hamnett.
37.The experts pointed out that the Russian authorities gave the cause of death as methadone intoxication based on the fact that methadone was detected in the blood and urine of Mr Togonidze and that he had three injection marks on his body. They also emphasised that the authorities concluded from these facts that Mr Togonidze had repeatedly used narcotics for a long period of time. As regards the needle punctures they pointed out that the injection mark at the bend of the left elbow stemmed most probably from the resuscitation attempts at the airport, in which intravenous drugs were given, and that the other two marks, on the lower third of the left shoulder, appear as a very unusual site for self-injection of drugs. They further indicated that methadone is usually taken in liquid form and only very uncommonly by injection. In addition, according to their opinion, the last few hours of Mr Togonidze’s life did not coincide with the ‘normal’ death of a person dying from methadone intoxication. Being a sedative, people dying from methadone intoxication typically do so after a period of unconsciousness. Mr Togonidze, however, did not show any signs of drowsiness and was able to talk to the Georgian consul and walk a few steps before suddenly collapsing. Lastly they pointed out that the conclusion of repeated drug use was not confirmed by an analysis of a hair sample or finding any supporting evidence, such as needles, ampoules or syringes, on Mr Togonidze’s corpse or in his cell.
38.As regards the forensic chemical examination the experts indicated that the applied analyses appear not to have been carried out according to international recommendations and that the level of methadone was only measured in the urine and not in the blood. In their opinion it is unacceptable to conclude intoxication on urine levels alone, as drugs accumulate in the bladder over time and only blood levels can give an indication of a likely intoxication or incapacitation.
39.In sum the forensic pathologist concluded that there was no scientific justification for giving methadone intoxication as the cause of death. He himself would have given the cause of death as suppurative bronchopneumonia due to chronic obstructive airways disease. He further indicated that, given Mr Togonidze’s chronic lung disease, he was more likely to develop a chest infection and to progress his pneumonia in a crowded, airless space. The deterioration of his health, however, would have been noticeable, as he would have been unwell and showed signs such as wheezing and coughing. A timely hospitalisation and antibiotic treatment would have been the correct course of action.

9.The first applicant, Ms Lia Shioshvili, was born in 1977 and lives in Gurjaani (Georgia). She is the mother of the second, third, fourth and fifth applicant, all Georgian nationals and born respectively in 1995, 1997, 2000 and 2004.
A.The background to the case
10.During the period from the end of September 2006 to the end of January 2007 identity checks of Georgian nationals residing in Russia were carried out in the streets, markets and other workplaces as well as at their homes. Many were subsequently arrested and taken to police stations. After a period of custody in police stations, they were grouped together and taken by bus to a court, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, some were taken to detention centres for foreigners where they were detained for varying periods of time, and then taken by bus to various airports in Moscow, and expelled to Georgia by aeroplane. Some of the Georgian nationals against whom expulsion orders were issued left the territory of the Russian Federation by their own means (for further details as to the background of the case see Georgia v.Russia(I), cited above, § 45).
B.The circumstances of the present case
1.The applicants’ arrival in Russia and their expulsion
11.On 29 May 1998 the first applicant, her husband and her two children arrived in the Russian Federation for the first time. At that time there was no visa requirement for Georgian citizens in place. In the subsequent years the first applicant, her husband and the children had been back and forth several times between the Russian Federation and Georgia.
12.In 2003 the first applicant and her children again entered the territory of the Russian Federation with a visa valid for one month. They settled together with their husband/father in the village of Karinskoye, in the Odintsovski district of Moscow city.
13.In September 2004 the first applicant gave birth to her fourth child, the fifth applicant. The first applicant did not apply for a birth certificate for the fifth applicant at that time, since she was unlawfully residing in Russia.
14.At the beginning of October 2006, the applicants moved to the city of Ruza in order to avoid expulsion.
15.On 18 October 2006 a police officer visited the applicants’ family home in Ruza and requested the first applicant to produce her identity papers. Owing to the absence of visa documents the officer asked all applicants to follow him to the local police station, where an administrative offence report was drawn up. The applicants left the police station after approximately 30 minutes. The police officer informed the first applicant that a court hearing concerning her case would take place soon. He further advised her to apply for a birth certificate for the fifth applicant.
16.On 25 October 2006 the Georgian Consulate in Moscow issued a temporary birth certificate for the fifth applicant, valid until 14 November 2006.
17.On 7 November 2006 a hearing before the Ruzskiy District Court of the Moscow Region took place, following which an expulsion decision was issued. The court only ordered the expulsion of the first applicant, even though mentioning in its decision that she was mother to four children. The hearing lasted about ten minutes and despite the first applicant’s limited knowledge of the Russian language, she was not assisted by an interpreter.
2.The applicants’ forced stay in Derbent (Dagestan)
18.On 20 November 2006, after having received the expulsion decision of 7 November 2006 all five applicants left Moscow. Due to suspended air, rail, road, sea and postal communications between the Russian Federation and Georgia, the applicants took the train from Moscow to Baku (Azerbaijan). The first applicant was eight months pregnant at the material time and her four minor children were eleven, nine, six and two years old.
a)The applicants’ version of the subsequent events
19.According to the applicants their train was stopped by Russian migration officers on 22 November 2006 at approximately 10.30 pm near the Russian/Azerbaijani border and all Georgian nationals were asked to get off the train with their belongings. The officers collected the applicants’ identity and travel documents and confiscated 400 USD from the first applicant, which allegedly had not been declared. The officers informed all the Georgians including the applicants, that there were various irregularities in their documents and that they could not continue their journey, whereas all non‑Georgians could resume their journey on the train.
20.The five applicants were then requested to walk with the other Georgian nationals to a bus, which went to Derbent. Two migration officers escorted the group but would not inform them of the authorities’ intention nor where the group was being taken. Due to the cold weather and her advanced pregnancy the walk and the bus ride were particular difficult for the first applicant. In particular, since she had to carry a suitcase and her youngest child. Her oral complaints to the officers about these circumstances were of no avail.
21.Once the group arrived in Derbent, the migration officers asked the group to accompany them to the migration service office. The first applicant was unable to continue walking and waited outside for two hours with her children. She was worried for the health of her minor children and for the unborn child.
22.On 23 November 2006, at about 3 am, the group was taken to Derbent train station for the night. They had to pay 500 rubles to the police officers, who guarded them, to be allowed to go to the toilet. No water or food was provided.
23.At daybreak, the police officers asked the group to go to the migration service office again, where they spent the whole day waiting outside at a temperature of 5o C.
24.In the evening the first applicant’s health deteriorated, her children were crying and coughing and no shelter, water or food was offered by the authorities. Finally, the group of Georgians rented an unheated, four-room basement flat in Derbent, for which the first applicant had to pay 200rubles per day for her and the children. Three women and six children from the group of Georgians, including the applicants, settled in one room, which had four beds. The remaining three rooms were occupied by more than 20Georgian men.
25.According to the applicants the migration officers regularly visited the flat, but the first applicant’s complaints about her worsening health were to no avail.
26.On 29 November 2006 the first applicant tried to cross the Russian/Azerbaijani border with her three eldest children, the second, third and fourth applicant. The fifth applicant stayed with the other Georgians, as her birth certificate had expired on 14 November 2006. However, they were stopped by the customs officers who indicated that the court’s expulsion decision only concerned the first applicant and not her children. They were subsequently sent back to Derbent.
27.The first applicant’s health worsened, she suffered from a cold and had a fever, became depressed and had repeated asthma attacks.
28.On 3 and 4 December 2006, after having gone back and forth to the migration service office, and with the help of an employee from the consulate service of the Georgian Embassy in Moscow, the first applicant finally obtained transit visa for her children and all other necessary documents, so that all five applicants could leave for Georgia.
29.Several national broadcasting television companies reported on the Georgians’ situation in Derbent on a daily basis between 1 and 7December 2006.
b)The Government’s version of the subsequent events
30.According to the Government the border control services, which conducted immigration controls in the trains going to the Republic of Azerbaijan, did not bring any Georgian nationals to the migration services on 22 or 23 November 2006. However, on 23 November 2006 the name of the fifth applicant was registered by the Line Division of the Interior at Derbent station in the register of passengers put off trains. She was, however, registered as a Russian national. The other four applicants were not registered in the aforementioned register.
31.The Government further explained that according to the normal procedure persons, who are put off international trains, are invited to the Police Line Division to include their personal data in the register. These persons, however, are neither coerced to do so, nor accompanied on their route to the station, nor passed over to the migration service department.
32.Further investigations by the Russian authorities revealed, according to the Government, that the first applicant temporarily resided in a house in Derbent with the consent of the house owners. According to the testimony of the house owners the first applicant lived there free of charge, was not accompanied by children and no police officer or other official visited the first applicant in the house.
3.The applicants’ return to Georgia
33.On 5 December 2006 a group of 30 Georgians, including the applicants, travelled to the Russian/Azerbaijani border in two buses that they had hired. At the border the customs officers checked the documents for several hours, while the applicants had to wait standing outside.
34.With another bus the group travelled through the city of Baku to the Azerbaijani/Georgian border. The last 5 kilometres to the border the applicants had to walk, as the bus driver had asked them to get off the bus: The first applicant and her youngest child, the fifth applicant, were able to take a taxi to the border, but the three other applicants had to continue walking; the temperature was below 3o C.
35.After having arrived in Georgia, the first applicant’s health was particularly bad. She suffered from a severe cough and fever, her right leg had grown numb and her general condition was extremely weak. Owing to her financial situation and the lack of health insurance the applicant did not visit a hospital right away. On 11 December 2006 a pregnancy examination showed that the pregnancy was progressing and that the fetus was well.
36.On 12 December 2006, the first applicant’s health worsened, she had an asthma attack and severe abdominal pain.
37.On 14 December 2006, the first applicant was taken to hospital where she gave birth to a stillborn child the next day.
38.According to the death certificate issued by the Ministry of Health and Social Affairs on 15 December 2006, the child died as a result of “intranatal hipoqsy” caused by a viral infection. The birth history no364/12, issued on the same date, stated that “the stress experienced by the pregnant mother during the expulsion could be considered a reason for the child’s death”.
39.During the following months, the first applicant suffered from severe depression and panic attacks. Furthermore, the fourth applicant developed a very bad cough and caught pneumonia. The fifth applicant, the first applicant’s youngest child, was deeply affected psychologically by the expulsion: she was constantly crying and afraid of other people and diagnosed with “behavioral disorder”.
4.The first applicant’s complaint to the Prosecutor
40.On 23 July 2008, the first applicant lodged a complaint with the General Prosecutor’s office of the Russian Federation. She directly mentioned violations of Articles 3 and 14 of the Convention and requested a thorough investigation and the punishment of those responsible.
41.On 9 October 2008, the first applicant’s representative received an answer, informing him that the complaint had been forwarded to the Prosecutor of Derbent and that he would be notified about further procedural actions taken in this respect.
42.However, he received no further information from the Russian authorities.

7.The applicant was born in 1988 in Margilan, Uzbekistan. He arrived in Russia on 2 October 2014.
8.On 5 September 2014 the applicant was charged in absentia with participation in the extremist religious movement Hizb ut-Tahrir al Islami and activities threatening the constitutional order. On the same day the authorities ordered his pre-trial detention and issued an international search and arrest warrant bearing his name.
9.On 24 December 2014 the applicant was arrested in Moscow. On26December 2014 the Cheremushkinskiy District Court of Moscow ordered and subsequently prolonged his detention.
10.On 22 January 2015 the applicant was further charged with organising a local branch of Hizb ut-Tahri al Islami in one of the regions of Uzbekistan.
A.Extradition proceedings
11.On 23 January 2015 the Uzbek prosecution authorities requested the applicant’s extradition on the above charges. The request included assurances regarding the proper treatment of the applicant, which were formulated in standard terms.
12.On 21 May 2015 the applicant’s extradition in respect of certain charges was authorised by the Deputy Prosecutor General of the Russian Federation.
13.The applicant challenged this decision in the courts, arguing that he belonged to a vulnerable group and therefore faced a real risk of treatment contrary to Article 3 at the hands of the Uzbek authorities.
14.On 13 October 2015 his appeals were dismissed by a final decision of the Supreme Court of the Russian Federation. Without reference to any relevant evidentiary material, the Supreme Court considered that the applicant’s claims were hypothetical and lacked specific indications regarding the level of risk, and observed that the situation in a requesting state might change over time. It also found that the assurances of the Uzbek authorities were satisfactory.
B.Refugee status proceedings
15.On 5 June 2015 the applicant lodged a request for refugee status, referring to persecution in Uzbekistan on religious grounds.
16.On 9 November 2015 his request was refused by a final administrative decision of the migration authorities. The applicant challenged this decision in the courts, referring inter alia to the risk of ill‑treatment.
17.On 18 May 2016 his appeals were dismissed by a decision of Moscow City Court.
C.Other relevant proceedings
18.On 25 December 2015 the Meshchanskiy District Court of Moscow ordered the applicant’s expulsion for violating the migration rules. The applicant’s appeal, which referred to the risk of ill-treatment, amongst other factors, was dismissed by the Moscow City Court on 24 February 2016.
19.On 16 February 2016 the applicant applied for temporary asylum. No information concerning the outcome of these proceedings was supplied by the parties.
21.The relevant reports by the UN agencies and international NGOs on the situation in Uzbekistan up until 2015 were cited in the case of Kholmurodov v. Russia (no. 58923/14, §§ 46-50, 1 March 2016).

5.The first and second applicants were born in 1984 and 1982 respectively and live in Vienna. The third applicant was born in 1972 and lives in Switzerland.
6.The following summary of the background of the case and the events in Austria is based on the submissions by the applicants. The account of the investigation in Austria is based on the submissions by both parties.
A.Background of the case
7.The applicants are all nationals of the Philippines. The first and third applicants were recruited in 2006 and 2009 respectively by an employment agency in Manila to work as maids or au pairs in Dubai (United Arab Emirates). The second applicant travelled to Dubai in December 2008 for the same purpose, at the suggestion of the first applicant, not via an agency. All of the applicants had their passports taken away by their employers. During the course of their work in Dubai, they allege that they were subjected to ill-treatment and exploitation by their employers, who also failed to pay them their agreed wages and forced them to work extremely long hours, under the threat of further ill-treatment.
1.The first applicant
8. In late 2006 the first applicant contacted an agency in Manila in order to find a job abroad. She is a single mother with one daughter who was eight months old at the time. She signed a contract in which she agreed to work for a family in Dubai for two years, from December 2006 until December 2008. The contract also stipulated that she would be paid 700United Arab Emirates dirhams (AED – approximately 150 euros (EUR) at that time) per month to work for eight hours each working day. Upon her arrival in Dubai the first applicant was taken to her employers, who were two sisters or sisters-in-law sharing one large residence with their families. One of them took possession of her passport.
9.For most of the initial two-year contract the first applicant was not subjected to physical abuse or direct threats of harm by her employers, and she was paid regularly. However, she had to work from 5 a.m. to midnight throughout the initial two-year period. Her duties included looking after her employers’ children, preparing meals, cleaning the house, doing the laundry and numerous other jobs around the house and garden. During the first nine months she was required to perform this work seven days per week without a single day off, and was not allowed to leave the house unsupervised. She was not allowed to have her own telephone and was only allowed to call her family in the Philippines once a month, the costs of these calls being deducted from her wages. Further, the first applicant was forbidden from speaking to any of the other workers from the Philippines in their native language. She was constantly hungry, as she was generally only given the family’s leftover food. Only when she accompanied the family to the supermarket approximately once a month was she allowed to buy some basic food for herself.
10.After approximately nine months, the first applicant faced the first punishments by her employers. She was forced to sleep on the floor when they found out that she had been talking to another employee from the Philippines in their native language. When she became ill after sleeping on the cold floor, her employers prevented her from buying medicine or contacting a doctor; instead, she had to continue working the same hours.
11.Towards the end of her two-year contract, the first applicant’s employers informed her that they wished her to stay, and offered her better pay, more days off and a telephone of her own, as well as permission to visit her family, provided that she recruited someone to take over her job while she was away. The first applicant finally agreed to extend her contract and returned to the Philippines for three months. Owing to the incentives and the prospect of improved working conditions, she asked the second applicant to take over her role in Dubai during the time she was away.
12.While the first applicant was in the Philippines, she received threats from her employers that if she did not return to Dubai to work, she would be banned from ever going back there, and the second applicant would be subjected to ill-treatment. The first applicant therefore returned to Dubai in April 2009.
13.After she returned to Dubai, she was taught how to drive. After she failed her first driving test, she was forced to pay for further lessons and tests out of her own salary, with four further driving tests costing AED 700 each, a month’s salary. While she was driving, one of her employers hit her on the shoulder on a number of occasions to force her to speed up. The employer also started to slap or hit her regularly for no or little reason. She also repeatedly threatened to let her husband hit the first applicant if she did not follow her orders or made any mistakes.
14.The first applicant accompanied her employers on trips to Europe, Australia, Singapore and Oman, where she spent significant amounts of time locked up in hotel rooms or under the close supervision of her employers. She only had to visit one embassy in person to obtain entry documents, and that was in relation to a trip to London, at which time she was ordered by her employers to lie about her work conditions. When they arrived in London, the first applicant was not allowed at any time to leave the apartment in which they were staying.
2.The second applicant
15.The second applicant was married with three young children in the Philippines. Her husband had no regular work. Because she expected better pay in Dubai, she agreed to work for the same employers as the first applicant. The employers in Dubai arranged a visiting visa for her, under false pretences. As a result of this arrangement, the second applicant did not approach the employment agency in the Philippines and did not have a written contract with her employers. Her understanding was that she would get AED 700 per month, which would be paid directly to her family in the Philippines.
16.In December 2008 the second applicant started to work in Dubai. After the first applicant returned to the Philippines for three months in January2009 (see paragraph 11 above), the employers significantly changed their conduct towards the second applicant. They threatened not to pay her family if she made any mistakes. They refused to let her leave Dubai, including by refusing to return her passport and ordering her to repay them her travel costs and related expenses. They also told her that she would be put in prison if she ran away or went to the authorities in Dubai for help. They physically and emotionally abused her, and there was one incident when one of her employers struck her across the shoulder using significant force. She was also forced to work from around 5 or 6a.m. until midnight or 1 a.m. the following day.
17.Between April 2009 and June 2010 the violent and threatening behaviour of the employers increased. The second applicant was punched by one of her employers on one occasion, and in another incident the employer aimed a hard slap at her face, but instead struck her across the shoulder.
3.The third applicant
18.The third applicant’s family were desperate for money to pay for crucial medical treatment for her brother. Therefore, in 2009 she contacted an employment agency in the Philippines and was offered work as a maid in Dubai. She was informed that she would be earning between AED 800 and 1,000 (approximately EUR 160 to 200 at that time) per month, roughly twice her salary in the Philippines. Upon her arrival in Dubai in 2009 she had to hand over her passport and mobile phone to someone supposedly working for the employment agency. She was told that these items would be returned to her when she finished her work in Dubai.
19.The third applicant was working for a family member of the first and second applicants’ employers. The applicants got to know each other, as the two families met every Friday. They secretly shared their experiences on these occasions.
20.The third applicant was also bound by working hours going from 6a.m. to midnight. Her employer forced her to clean her car in the sun and in unbearable heat, and she was prohibited from going to the toilet without letting her employer know. She was only allowed to call her family in the Philippines once a month, and only in the presence of her employer. She did not receive any remuneration at all for the first three months of her employment. Afterwards, she only received approximately AED 750 per month, less than what had been agreed. On one occasion she was slapped by her employer, and on a different occasion she witnessed another employee being hit over the head.
21.When the third applicant told her employer that she wished to return to the Philippines, she was told that she would have to pay the cost of the flight and the agency fees, which her employer knew she could not afford at that point. Her employer also made it clear that, in any event, her passport would not be returned to her until she had completed at least nine months of work in Dubai. Subsequently, the third applicant was too scared to ask to leave Dubai again, owing to her fear that her employer would take her earnings from her or refuse to return her passport for an even longer period.
B.Events in Austria
22.On 2 July 2010 the applicants’ employers took them along on a short holiday trip to Austria. The applicants all stayed at the same hotel in the city centre of Vienna. The applicants slept in their own, separate apartment together with the female children. The male children slept in the same apartment as their parents. As in Dubai, the applicants had to take care of all of the employers’ children and perform numerous other domestic duties. They were still required to work from approximately 5 or 6 a.m. until midnight or even later. The third applicant was regularly shouted at by her employer, for example if she failed to get all the children ready early every morning. In addition, their employers woke the first applicant up at around 2a.m. and forced her to cook food for them. Furthermore, the first applicant was forced to carry the employers’ twenty suitcases into the hotel by herself. While the applicants were in Austria, their passports remained with their employers. In the hotel in Vienna in which the applicants were staying, they became acquainted with N., an employee at the hotel who could speak Tagalog, the first applicant’s mother tongue.
23.When the applicants accompanied their employers to a zoo one or two days after their arrival in Austria, one of the children went missing for some time. One of the employers started screaming at the first and third applicants in a manner which the applicants had not experienced before. The first applicant found the level of verbal abuse extreme, and this was a particularly distressing and humiliating experience for her. The employer threatened to beat the third applicant, and said that “something bad” would happen to her if the child was not found safe and well. By this stage, the third applicant had formed the impression that this employer, of whom she lived in a constant state of fear, was a dangerous person who might try to hurt her very badly. She had the feeling that the violence towards her was likely to escalate at any time. Therefore, she believed that something bad was going to happen to her if she remained with the family. Similarly, the first applicant believed that they could not live with their conditions of work any longer, and did not want to risk waiting to see what happened if they travelled with their employers from Vienna to London, as they were scheduled to do. The applicants therefore decided to speak to N., the Tagalog-speaking employee at the hotel, to see whether she could help them.
24.The night following the incident – that is, two or three days after their arrival in Austria – the applicants left the hotel with the help of N., who had organised a car to pick them up in a side street near the hotel and take them to a “safe place”. The applicants subsequently found support within the local Filipino community in Vienna.
C.Proceedings in Austria
1.Criminal proceedings against the applicants’ employers
25.In April or May 2011, approximately nine months after they had left their employers, the applicants contacted a local NGO called “LEFÖ” for assistance in reporting their ill-treatment, abuse and exploitation to the police. LEFÖ is actively involved in the fight against trafficking in human beings in Austria. It is financed though government funds, in particular for the provision of assistance to victims of trafficking. In July 2011 the applicants decided to turn to the Austrian police and filed a criminal complaint (Strafanzeige) against their employers. They explained that they had been the victims of human trafficking. On 11 and 21 July and 17August 2011, accompanied by representatives of LEFÖ, they were interviewed at length by officers from the Office to Combat Human Trafficking (Büro für Bekämpfung des Menschenhandels) at the Federal Office of Criminal Investigations (Bundeskriminalamt). In their report, the officers concluded that the offences had been committed abroad.
26.The applicants were informed that their employers had also made allegations about their conduct, alleging, inter alia, that they had stolen money and a mobile phone from them when they had fled the hotel. Those allegations were subsequently formally recognised by the Austrian authorities as false. The applicants all expressed their willingness to actively cooperate with the authorities and to engage in criminal proceedings against their employers.
27.On 4 November 2011 the Vienna public prosecutor’s office (Staatsanwaltschaft Wien) discontinued the proceedings under Article 104a of the Criminal Code (Strafgesetzbuch – hereinafter “the CC”) relating to human trafficking (see paragraph 35 below), pursuant to Article 190 § 1 of the Code of Criminal Procedure (Strafprozessordnung – hereinafter “the CCP” – see paragraph 36 below). On 14 November 2011 the public prosecutor gave a short written decision with reasons for the discontinuation of the proceedings. In the public prosecutor’s view, the offence had been committed abroad by non-nationals, and did not engage Austrian interests within the meaning of Article 64 § 1 (4) of the CC.
28.On 30 November 2011 the applicants lodged an application to continue the investigation (Fortsetzungsantrag) with the Vienna Regional Criminal Court (Straflandesgericht Wien). They submitted that Austrian interests had indeed been engaged, and that their employers had continued to exploit and abuse them in Austria. In their view, the elements of the crime punishable under Article 104a § 1 (2) of the CC had been present.
29.The Vienna public prosecutor’s office then submitted a statement to the Vienna Regional Criminal Court, specifying its reasons for discontinuing the investigation. There had been no indication in the case file that any of the criminal actions exhaustively listed in Article 104a of the CC had occurred in Austria, particularly since the offence had already been completed in Dubai (zumal das Delikt bereits in Dubai vollendet wurde), and the accused were not Austrian citizens. Furthermore, from the applicants’ statements (looking after children, washing laundry, cooking food), it did not appear that they had been exploited in Austria, especially since they had managed to leave their employers only two to three days after their arrival in Vienna.
30.On 16 March 2012 the Vienna Regional Criminal Court dismissed the applicants’ application. The relevant parts of the decision read (translation from German):
“The decision to discontinue [criminal proceedings] requires – by implication – that the facts of a case are sufficiently clear, or a lack of indication that investigations would be promising.
There is no reason for further prosecution if, on the basis of the ... results of the investigation, a conviction is no more likely than an acquittal ...
According to Article 64 § 1 (4) of the CC, if Austrian interests have been harmed by the offence or the perpetrator cannot be extradited, Austrian criminal laws apply independently of the criminal laws of the place where the crime was committed, for example in relation to the offence of kidnapping for ransom under Article 104a of the CC. Owing to the fact that the applicants spent approximately three days in Vienna, the conditions regarding the fulfilment of the elements of the crime under Article 104a § 1 (2) of the CC have not been met, since the relevant acts relating to the exploitation of labour must be committed over a longer period of time; therefore, the commission of the offence in Austria is ruled out.
The jurisdiction of the Austrian criminal-law enforcement authorities cannot be deduced from Article 64 § 1 (4) of the CC either.
Austrian interests are engaged if either the victim or the perpetrator is an Austrian citizen, or if the criminal acts have a concrete connection to Austria, or if an obligation arises under international law in relation to the prosecution of certain offences. Austrian interests are, in any event, engaged if a criminal offence under Articles 102, 103, 104 or 217 of the CC is committed against an Austrian citizen, or if Austrian funds or Austrian securities (Wertpapiere) are the subject of offences under Article 232, or Article 237 in conjunction with Article 232, of the CC.
The applicants’ argument that the elements of the crime under Article 104a of the CC had also been fulfilled in Austria therefore fails, and the plea that the alleged criminal actions against them by their employers in Dubai ... would lead to an obligation on the part of Austria under international law is likewise not convincing. In relation to the present case, [this latter argument] also cannot be inferred from the quoted [Supreme Court] judgment no. 11 Os 161/81, which affirmed that Austrian interests had been damaged as a result of the import into Austria of a large amount of narcotics for transport...”
This decision was served on the applicants’ counsel on 23 March 2012.
2.Civil proceedings against the applicants’ employers
31.In January 2013 two of the three applicants lodged a civil claim against their employers with the Vienna Labour and Social Court (Arbeits‑und Sozialgericht) in order to claim their wages. However, they alleged that because of the high risk of having to pay the costs of the proceedings because the employers did not reside in Austria, they withdrew the action.
3.Proceedings concerning the applicants’ residence permits
32. The NGO LEFÖ not only assisted the applicants in filing a criminal complaint against their employers, but also supported them in applying for a special residence permit in Austria for victims of human trafficking, under the former section 69a of the Residence Act (Niederlassungs- und Aufenthaltsgesetz – see paragraph 46 below).
33.All three applicants were granted a residence permit for special protection purposes in January 2012, valid for one year initially. Subsequently, because of their progressing integration, they were granted other types of residence permits with longer periods of validity.
34.The applicants were officially registered in the Central Register (Melderegister) from the point when LEFÖ started supporting them. A personal data disclosure ban was enacted on the Central Register for their protection, so that their whereabouts would not be traceable by the general public.

5.The applicant, a former police officer, was born in 1962 and lives in Zaporizhzhya. He is also acting on behalf of his son, V., who was born in 1991.
A.Criminal proceedings against the applicant
6.On 13 September 2003 four people, including the applicant, were apprehended by officers of the Zaporizhzhya office of the Security Service of Ukraine (Служба Безпеки України – “the SBU”) in Novokateshchino village while attempting to transport opiate drugs with a view to selling them on. They were taken to the SBU’s premises for questioning. After being informed of his privilege against self-incrimination, the applicant made a written statement to the effect that he had appeared at the crime scene by chance, at the request of a friend with whom he and his son had been looking for a place to fish.
7.Later the same day criminal proceedings were instituted against the applicant and two other people on suspicion of illegal production, storage and sale of drugs.
8.On 14 September 2003 criminal proceedings were instituted against the applicant and the two others on suspicion of membership of an organised crime group.
9.On the same date the applicant was arrested. Having been informed of his procedural rights as a suspect, he refused to give evidence without a lawyer present.
10.On 15 September 2003 the applicant’s wife hired a lawyer, G., to represent the applicant.
11.On 16 September 2003 the applicant’s pre-trial detention was ordered by a court.
12.On 19 September 2003 the applicant requested that G. be admitted to the proceedings as his lawyer.
13.On the same date, in the presence of his lawyer, the applicant denied his involvement in the crime.
14.On 23 September 2003, in the presence of his lawyer, the applicant was charged with drug-related crimes and questioned. He did not want to be informed of his rights and stated that he would not give any evidence during the pre-trial investigation.
15.On 2 October 2003 the applicant was questioned in the presence of his lawyer. He provided some biographical details as well as information on his family status, state of health and place of residence.
16.On 18 November 2003 the applicant was again questioned in the presence of his lawyer.
17.On 15 December 2003 all the criminal proceedings against the applicant were joined.
18.On 18 December 2003 the applicant was questioned in the presence of his lawyer. He did not confess to the crimes.
19.On 22 and 23 December 2003 confrontations between the applicant and his co-accused were conducted with his lawyer present.
20.On 24 December 2003 amended charges were brought against the applicant in his lawyer’s presence. The applicant pleaded not guilty.
21.On 6 February 2004 the applicant’s wife was admitted to the proceedings as the applicant’s lay representative.
22.On 10 February 2004, upon his written consent, the applicant was questioned without a lawyer.
23.On 9 March 2004 the criminal case against the applicant and his co‑accused was sent to the Leninsky District Court of Zaporizhzhya (“the District Court”). During the trial the applicant pleaded not guilty. He maintained that the case had been fabricated by his enemies and that all the evidence had been falsified and was inadmissible. In fact, he, a retired police officer, had been arrested in the company of drug addicts with whom he had been in contact as an advisor to the local police. They might have been producing drugs for their own use. He further claimed that his case should benefit from being examined in camera by a judge who had security clearance, to protect State secrets concerning the functioning of his network of informants.
24.In May 2004 F., a lawyer hired by the applicant’s wife, was admitted to the proceedings to represent the applicant.
25.On 25 October 2005, after having heard the case in public hearings, the District Court convicted the applicant and his co-defendants of drug‑related offences. The applicant was sentenced to eight-and-a-half years’ imprisonment and the confiscation of his personal property was ordered.
26.The applicant, represented by his lawyer and his wife, appealed. He repeated his arguments advanced at trial and complained that he had been unable to defend himself properly during the trial as he had been reticent in order to safeguard confidential information concerning the network of informants. He also complained of various procedural breaches in the collection of evidence. He alleged, with no further details, that he had had no access to a lawyer from the first questioning and, even after his lawyer had been allowed access, the authorities had tried to carry out a number of investigative steps without the lawyer present.
27.On 26 April 2006 the Zaporizhya Regional Court of Appeal allowed the defence’s request to have the proceedings held in camera to prevent public disclosure of information concerning the network of informants and required all the defence lawyers and representatives to undergo security clearance to continue taking part in the proceedings. The applicant’s wife did not receive security clearance in time for the appeal hearing and did not attend it.
28.On 22 June 2006 the Court of Appeal upheld the trial court’s judgment.
29.On 18 December 2007, following a prior appeal by the applicant, the Supreme Court of Ukraine quashed this decision and remitted the case for fresh consideration. It noted, in particular, that the applicant’s right to defence had been breached since the applicant’s wife had been unable to take part in the appeal hearing. It further found that the Court of Appeal had addressed the parties’ arguments in a summary way only, while it should have given detailed explanations in response to those arguments.
30.On 22 December 2008 the Court of Appeal reviewed the case in the presence of the applicant’s wife. It upheld the applicant’s conviction, reduced his sentence to eight years’ imprisonment and ordered the confiscation of his personal property. The conviction was mainly based on the records of the crime-scene inspection and the testimonies of the applicant’s co-defendants, which the trial court found to be corroborated by witness statements, and other evidence in the case.
31.On 2 July 2009 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.
B.Events related to the applicant’s son
32.The applicant’s twelve-year-old son was with him when he was apprehended on 13 September 2003. He was taken with him to the SBU and remained in the same room with the applicant for most of the time. No other family members were informed of the boy’s whereabouts.
33.On the morning of 14 September 2014, after the applicant had been formally arrested, his son was returned to his mother.
34.On 3 January 2004 the applicant’s wife lodged a criminal complaint with the Zaporizhzhya regional prosecutor’s office (“the prosecutor’s office”) in which she alleged, inter alia, that her son had been unlawfully detained at the SBU’s premises between 13 and 14 September 2003.
35.On 9 February 2004, having questioned the applicant and the SBU officers, the prosecutor refused to institute criminal proceedings as it had been established that no pressure had been applied to the applicant’s son and that he had been able to move freely and had not been deprived of his liberty. It was further noted that the applicant had not complained of the SBU staff’s attitude towards his son.
36.On 20 April 2004 the applicant’s son challenged the above decision before the Prosecutor General.
37.In April 2004 the applicant and his wife lodged another complaint concerning the alleged unlawful detention of their son with the prosecutor’s office.
38.On 7 May 2004 the prosecutor’s office, having questioned the applicant, his wife and son, as well as the SBU officers and some witnesses, refused to institute criminal proceedings in respect of the above complaint, having found no corpus delicti in the officers’ actions. It was established during the relevant investigation that the applicant’s son had been taken to the SBU’s premises at the applicant’s request and had not been arrested or detained and had been returned to his relatives as soon as the decision to arrest the applicant had been taken; and that the applicant had raised no complaints during his son’s stay at the SBU. It was also noted in the relevant resolution that the applicant’s wife had refused to provide her son’s medical file to prove her allegations concerning the worsening of his state of health and that there had been a contradiction in the applicant’s statements and between his and his son’s account of events. The prosecutor thus concluded that the allegations of unlawful deprivation of liberty or of other violations of the applicant’s son’s rights appeared to be ill-founded. He noted that no intention on the part of the officers to interfere with the applicant’s son’s personal security, specifically his freedom of movement, had been established. Likewise, there had been no evidence that the applicant’s son had been subject to any form of pressure or ill-treatment.
39.On 11 May 2004 the applicant’s wife and son instituted civil proceedings against the SBU before the Zhovtnevy District Court of Zaporizhzhya claiming damages for the unlawful detention of her son. Following a request of the applicant’s wife of 15 October 2004, her civil claim was joined to the criminal proceedings against the applicant.
40.On 23 July 2004 the deputy prosecutor of Zaporizhzhya Region quashed the resolution of 7 May 2004 as being premature, given that no evidence regarding the applicant’s son’s state of health had been obtained.
41.On 31 July 2004, having questioned the applicant’s son’s doctors who had observed him in the course of his care previously, the prosecutor again refused to institute criminal proceedings for the same reasons as before. It was noted, inter alia, that none of the doctors had observed any worsening of the applicant’s son’s state of health and that no worsening of his health had been evident from his medical file either.
42.On 14 October 2004 the prosecutor’s office instituted disciplinary proceedings against two officers of the SBU for their negligence towards the applicant’s son. It noted, inter alia, that the applicant’s son had not been formally arrested (затриманий) but had been kept at the SBU’s premises for no reason and no measures had been taken to return him to his relatives. The prosecutor further observed that the applicant’s son had not been subject to any form of ill-treatment. He also stressed the fact that the applicant’s arrest report had been drafted only the next day after the applicant’s initial arrest, in breach of the requirements of the domestic law. This resolution had been sent to the SBU for relevant measures to be taken.
43.On 27 October 2004 the SBU informed the prosecutor’s office that the respective officers could no longer be disciplined as the one-year statutory time-limit had expired. It was also observed in that letter that no violations of domestic law by the SBU officers had been established by a number of investigations into the events complained of and that the applicant’s son had stayed with the applicant at the SBU’s premises from 13to 14 September 2003 at the applicant’s own request.
44.On 5 November 2004 the applicant’s wife complained to the Prosecutor General about the prosecutor’s decision of 31 July 2004.
45.On 25 October 2005, when convicting the applicant, the District Court delivered a separate ruling, in which it listed the procedural violations committed by the investigating authorities in the criminal proceedings against the applicant. The fact that the applicant’s son had remained in the SBU’s premises for about twenty-four hours after the applicant’s initial arrest, without his relatives having been informed of his whereabouts and with no medical assistance provided in view of the stress he had been under, was listed among the violations referred to by the court. The Chief of the SBU in Zaporizhzhya was invited by the court to take appropriate measures in view of the above mentioned violations.
46.On 25 January 2006 the applicant appealed to the Ordzhonikidzevsky District Court of Zaporizhzhya against the prosecutor’s refusal of 31 July 2004 to institute criminal proceedings against the SBU officers.
47.On 3 April 2006 the applicant’s complaint was left without consideration on the merits. The court noted in this connection that the relevant investigation files had been joined to the criminal case against the applicant and that therefore the prosecutor’s decision was not subject to appeal outside of those criminal proceedings.
48.During the proceedings in his criminal case before the Court of Appeal and the Supreme Court the applicant and his wife repeatedly requested, referring to the separate ruling of 25 October 2005 by the District Court (see paragraph 45 above), that measures be taken to bring the respective officers to trial for the unlawful detention of their son. The case file does not suggest that in their appeals the applicant or his wife claimed damages in this connection.
49.On 22 December 2008, in its judgment upholding the applicant’s conviction, the Court of Appeal observed that the complaint related to the unlawful detention of the applicant’s son had been considered by the prosecutor’s office and no corpus delicti under criminal law had been found on the part of the SBU officers. The court made no separate ruling in this connection. The Supreme Court did not address this issue in its decision of 2 July 2009.
II.Conditions of the applicant’s detention in Zaporizhzhya Pre-Trial Detention Centre no. 10 (“the SIZO”).
50.The applicant was detained in the SIZO from 17 September 2003 to 14 July 2006 and from 18 March 2008 to 24 February 2009.
A.The applicant’s account
51.According to the applicant, the conditions of his detention were grossly inadequate. The cells were overcrowded. In particular, a cell measuring 3.8square metres with one bed could be occupied by eight to ten persons. As a result, detainees had to take turns to sleep. A bucket, which served as a toilet, was located in plain sight one metre away from the eating area. It had no cover and was emptied only once a day. The ventilation was very poor. The cell smelled of excrement, was filled with cigarette smoke and was damp, in particular as the detainees washed and dried their laundry there. It was also infested with cockroaches, lice and bedbugs. The shower, which had lukewarm water, was available only once every ten days. Access to natural daylight was severely limited because of a dense grill on the window. The electric lighting was so dim that it was impossible to read or write without damage to the eyes. The food was meagre and insufficient to meet the detainees’ nutritional needs. Outside walks were available only on a scarce and irregular basis. Detainees sick with contagious diseases, such as tuberculosis, venereal diseases, pediculosis and scabies, were held in the same cells as healthy detainees and not provided with medical assistance. As a result, the applicant also contracted scabies and other skin diseases.
B.The Government’s account
52.According to the information provided by the Government, the applicant had been held in the following cells while in the SIZO:
cell no. 18 – 21.87 sq. m ( intended for eight detainees );
cell no. 65 – 10.99 sq. m (intended for four detainees);
cell no. 70 – 20.4 sq. m (intended for four detainees);
cell no. 36 – 12.05 sq. m (intended for four detainees).
53.The conditions in those cells had been adequate and the space per detainee had not been less than 2.5 sq. m, as provided for by the relevant domestic legislation. All the cells had been equipped with a toilet and a ventilation system. Running water and mains drainage had been available. They noted, referring to the relevant documents, that there had never been a cell measuring 3.8 sq. m in the SIZO.
54.The Government further stated, referring to the relevant domestic regulations, that detainees had been provided with appropriate food and linen and had had weekly access to shower facilities and one-hour daily walks. They contested the statement that the applicant had shared a cell with smokers and those suffering from infectious diseases, pointing to the applicant’s failure to provide the respective evidence and called attention to the fact that there had been a special isolation wing in the SIZO for detainees suffering from such diseases.
55.On 10 March 2006, following the applicant’s complaints concerning the improper conditions of his detention in the SIZO, the prosecutor’s office carried out an inspection visit there and found the applicant’s complaint to be partially substantiated. It found, inter alia, that some cells – not the ones in which the applicant had been detained – and utility rooms had been in poor sanitary condition and had been infested by cockroaches; and that the cell space for persons infected with tuberculosis had not been in compliance with the relevant domestic standards. The SIZO governor was instructed to remedy the situation. No evidence in support of the applicant’s allegations of improper nutrition and poor lighting had been found.
III.Medical care provided to the applicant in pre‑trial detention
A.The applicant’s medical treatment in the SIZO
56.On 15 May 2001, following retirement from the police service, the applicant underwent a medical examination and was diagnosed with osteochondrosis, chronic gastritis in remission, chronic hepatitis, chronic pancreatitis, trichromatic anomalies, uric acid diathesis and adiposity of the first degree. According to the applicant, he was advised to undergo inpatient treatment twice a year and to appear before a special panel to decide on whether he had to be assigned disability status in view of his illnesses. He submitted that the relevant medical examination had been scheduled for the end of September 2003 but had not been carried out as he had been arrested.
57.Upon his arrival at the SIZO the applicant underwent a medical examination during which he raised no complaints about his state of health. His medical file contained a certificate, issued on 14 September 2003 by an emergency hospital, stating that he was suffering from ischaemic heart disease, cardiosclerosis, angiosclerosis of the coronary vessels, symptomatic hypertension, and chronic bronchitis. In view of the available information on the applicant’s illnesses, he was put on the list for regular medical check-ups and was prescribed medical treatment.
58.On 20 and 23 September, 1 October, 17 November and 24 December 2003, 11 November 2004 and 4 July and 1 December 2005 the applicant complained to the SIZO medical unit of headaches and, on some occasions, of heart pain and dizziness. He was diagnosed with first- or second-degree hypertension and received antihypertensive medication. His blood pressure was subsequently regularly monitored and, when necessary, antihypertensive treatment was provided.
59.On 20 November 2003, 24 and 30 May and 4 July 2004 and 5 July 2005 the applicant complained to the SIZO medical unit of skin eruptions and itching. He was diagnosed with dermatitis and was provided with the necessary medical treatment.
60.On 9 October 2003 the applicant was examined by a panel composed of the head of the SIZO medical unit, a general practitioner and a physiotherapist. He was diagnosed with hypertension and prescribed the relevant treatment.
61.In October 2003 the applicant was registered for follow-up care (диспансерний облік) in respect of his hypertension. He underwent urine and blood tests which revealed no pathology.
62.On 1 March 2004 the applicant underwent a medical check-up. He was diagnosed with second-degree hypertension and nephropathy and was prescribed the relevant medical treatment. It was also recommended that the applicant consult an ophthalmologist and a neuropathologist.
63.On 15 March 2004 the applicant was examined by a neuropathologist from a regional psychiatric hospital located in prison no. 20 and by an ophthalmologist from a civil hospital. The medication prescribed following the examination was administered to the applicant by the SIZO.
64.On 30 March 2003, 27 August 2004, 24 February, 23 August and 14December 2005 the applicant underwent X-ray examinations of his lungs and heart, which revealed no problems.
65.On 23 April 2004, following a request from the applicant’s lawyer, the applicant was examined by the chief neurosurgeon of the Zaporizhzhya Regional Hospital. The prescribed medication was provided to the applicant by the SIZO medical unit.
66.On 14 and 23 June 2004 the applicant was examined by a neuropathologist. He was diagnosed with second-degree hypertension and nephropathy and was prescribed vascular and antihypertensive medication.
67.On 29 October 2004 the applicant underwent a medical check-up. He complained of recurrent headaches and dizziness and was diagnosed with second-degree hypertension and nephropathy. Antihypertensive medications were prescribed.
68.On 7 November 2005 the applicant was examined by a dermatologist. He was diagnosed with neurogenic dermatitis and prescribed the relevant medication. He was also advised to consult a psychiatrist.
69.On 28 November 2005 the applicant underwent a medical check-up. He complained of headaches and dizziness. His second-degree hypertension was confirmed following the examination and the relevant treatment was prescribed.
70.On 2 January 2006 the applicant was examined by a dermatologist and was diagnosed with dermatitis. He was advised to continue the treatment prescribed previously.
71.On 24 January 2006 the applicant was examined by a panel of SIZO physicians comprised of a psychiatrist, a dermatologist and a general practitioner. He was diagnosed with hypertension, chronic gastritis, chronic pancreatitis in remission, chronic hepatitis in remission, heartburn and a hypertensive neurocirculatory dystonia. The relevant medical treatment was prescribed.
72.On 10 February 2006 the applicant underwent a medical check-up and was diagnosed with arterial hypertension and hypertensive encephalopathy. The relevant treatment was prescribed. The applicant was further advised to consult a neuropathologist and an ophthalmologist.
73.On 15 February 2006 the applicant was examined by a medical panel comprised of SIZO and civil-institution physicians (an ophthalmologist, a general practitioner and a neuropathologist). He was diagnosed with symptomatic arterial hypertension and an uncomplicated cerebral crisis. It was concluded that the applicant’s state of health did not necessitate inpatient medical treatment.
74.On 1 November 2006, when serving his prison term in prison no. 45, the applicant was examined by a group of disability experts and recognised as falling into the third (mildest) category of disability for a one-year period. Outpatient treatment for the illnesses he had been suffering from was recommended.
B.Complaints related to the applicant’s health in detention
75.From 15 December 2003 the applicant’s wife lodged a number of complaints with the SBU, prosecutors, courts and other State authorities alleging, inter alia, that the applicant had been unlawfully arrested and detained; that his health was in a critical condition; and that no relevant medical treatment could have been provided to him within the SIZO. She therefore requested that the preventive measure in respect of the applicant be changed and that he be immediately released from detention.
76.On 22 December 2003 and 9 January 2004, after a number of enquiries, the SBU informed the applicant’s wife that the applicant’s state of health was compatible with detention and that the SIZO had all the necessary facilities to provide the applicant with qualified medical assistance.
77.On 3 February 2004 the applicant’s wife complained about the above conclusions before the Prosecutor General.
78.On 2 June 2004, in reply to the applicant’s lawyer’s query about the medical assistance provided to the applicant, the SIZO informed the lawyer that his state of health was compatible with detention and that he was under the regular supervision of the SIZO medical staff. They further submitted that it was at the court’s discretion to allow medical examination of the applicant by medical specialists from civil institutions.
79.On 15 August 2004 the applicant’s wife asked the prosecutor’s office to provide truthful information about the applicant’s state of health and stated that adequate medical assistance could not be provided to the applicant in the SIZO in view of the absence of the relevant medical specialists at the detention facility. In the light of this, she asked that the applicant undergo a medical examination in a civil medical institution.
80.On 24 November 2004 the prosecutor, having conducted an investigation into the matter and having studied the applicant’s medical file, replied to the applicant’s wife that her complaint appeared to be unfounded and that adequate medical assistance was being provided to the applicant in the SIZO.
81.On 4 July 2005 the applicant’s lawyer lodged an application with the District Court requesting that a medical examination of the applicant by neurologists from civil hospitals be ordered.
82.On 7 September 2005, following enquiries made by the court upon the lawyer’s request, the SIZO provided the court with a certificate, according to which the applicant was under the permanent supervision of the SIZO medical unit and did not necessitate medical examination by specialists other than those practising in the SIZO. It was further noted that his state of health was compatible with detention as none of his diagnoses were on the list of the illnesses, provided for by law, for which early release was possible. The applicant challenged this conclusion before the Office of the Prosecutor General alleging, inter alia, that the certificate had been forged and issued unlawfully by an unauthorised and unqualified medical officer. To verify the applicant’s complaint, the Zaporizhzhya regional prosecutor’s office conducted enquiries and ordered, inter alia, that the applicant be examined by different medical specialists.
83.On 24 January 2006, in compliance with the prosecutor’s order, the applicant was medically examined by a panel of SIZO physicians (see paragraph 71 above). It was established in the course of that examination that the applicant had been under the close supervision of the SIZO medical unit and, when the need had arisen, of outside doctors; that twice a year, owing to his diseases, he had undergone a medical checkup; that all his complaints had been adequately addressed; and that his state of health had been compatible with detention. It was further established in the course of the prosecutor’s enquiries that the medical certificate of 7September 2005 had been issued by an authorised person and had contained objective information and had correctly referred to the applicant’s state of health.
84.On 2 and 23 February 2006, on the basis of the above conclusions, the prosecutor’s office informed the applicant that no violations on the part of SIZO medical staff had been established.
85.On 13 February 2006 the applicant again complained to the Prosecutor General regarding the allegedly forged certificate of 7 September 2005.
86.On 3 March 2006, following further enquiries into the applicant’s complaint and another medical examination of the applicant (see paragraph 73 above), the prosecutor’s office informed him that his allegations appeared to be groundless.

7.The applicant was born in 1978. He is currently serving a prison sentence in Uzbekistan.
8.The information provided by the applicant’s representative and the Government concerning the circumstances of the case is limited and conflicting. The elements at the Court’s disposal are described below.
A.Information submitted by the applicant’s representative
9.The following account of events is based on a series of written submissions to the Court by the applicant’s representative.
1.Background information
10.The applicant, while living in Uzbekistan, was a friend of a former boyfriend of Ms Gulnara Karimova, one of President Islam Karimov’s daughters. At some point MsKarimova turned against her former boyfriend’s friends. Fleeing political persecution, on 26December 2010 the applicant moved to Russia. He resided in Moscow with his partner, Ms I., and their child.
11.In 2011 the Uzbek authorities charged the applicant in absentia with crimes related to religious extremism on account of his alleged involvement in the establishment in 2009 of a jihadist organisation, issued an arrest warrant and put his name on an international wanted list.
12.On 10 July 2013 the applicant was arrested in Moscow on the basis of the Uzbek warrant.
13.On 12 July 2013 the Golovinskiy District Court of Moscow authorised the applicant’s detention pending extradition.
14.On 9 August 2013 the Golovinskiy inter-district prosecutor’s office of Moscow ordered the applicant’s release on the grounds that the Uzbek authorities had not lodged a formal extradition request and that the crimes he had been charged with did not constitute criminal offences under Russian law. It was also noted that the applicant could not have established the jihadist organisation in 2009 as the organisation in question had been banned by the Supreme Court of Russia in 2003. The applicant was then released.
15.Following his release, the applicant continued to live in Moscow. At some point he applied for refugee status, referring to a risk of ill‑treatment in Uzbekistan.
16.On 8 November 2013 the Moscow Department of the Federal Migration Service (“the Moscow FMS”) dismissed the allegations of a risk of ill-treatment in Uzbekistan as unfounded and rejected the applicant’s application for refugee status. He challenged that decision in court.
17.On 12 May 2014 the Zamoskvoretskiy District Court of Moscow approved the applicant’s application, quashed the Moscow FMS’s rejection and ordered it to grant the applicant refugee status.
18.The applicant’s passport remained in the Moscow FMS’s file concerning his application for refugee status.
19.Given that no appeal against the judgment of 12 May 2014 was lodged within the required time, the judgment entered into force.
2.The applicant’s disappearance
20.On the evening of 9 June 2014, while the applicant and his family were visiting a friend, Mr T., the applicant’s child fell ill. The applicant and MsI. decided to take him to hospital and the applicant called a taxi. A silver Lada Priora arrived. Mr T. wanted to accompany the applicant and MsI., but the Lada’s driver told him that the car had been ordered for two adult passengers only. The applicant, Ms I. and the child got into the taxi.
21.On their way, at about 7.20 p.m., Ms I. decided to stop at a pharmacy in the centre of Moscow. She took the child out of the taxi and the applicant waited in the car. When Ms I. left the pharmacy she saw that the taxi had driven away. A woman told Ms I. that she had seen two men getting in a parked car, which had then driven off.
22.Ms I. tried calling the applicant but his mobile telephone was turned off. She then alerted Mr T.
23.The applicant’s representative was notified of the applicant’s disappearance shortly after. On the same date, that is, on 9 June 2014, he contacted the Federal Security Service (“the FSB”) and the border control agency, asking them to prevent the applicant’s involuntary removal from Russian territory. According to the applicant’s representative, he suspected the involvement of two FSB officers, “Timur” and “Zakhar”, who had shown an interest in the applicant in 2011. Nevertheless, he did not mention those people in his letters to the FSB and the border control agency.
3.The applicant’s reappearance in Uzbekistan
24.On 18 June 2014 the investigation department of the Uzbek Ministry of the Interior informed the applicant’s father that the applicant had been arrested and placed in custody on 17 June 2014. On 25 June 2015 the applicant’s representative forwarded a copy of the notification to the Court.
25.The criminal case against the applicant was brought to trial before the Tashkent City Court. He was appointed a legal aid lawyer.
4.Information collected by the applicant’s representative in Tashkent
26.At the end of October 2014 the applicant’s representative, MrVasilyev, travelled to Tashkent. He discovered that the applicant had been kept incommunicado in a remand prison in Tashkent. Mr Vasilyev was repeatedly denied access to the applicant.
(a)Information communicated orally to Mr Vasilyev by the applicant
27.Mr Vasilyev attended three hearings at the Tashkent City Court on 31 October, and 3 and 4November 2014. On 31 October and 3November 2014 the trial judge allowed MrVasilyev to talk to the applicant. During the conversations the applicant sat in a cage in the courtroom surrounded by guards. The applicant’s representative summarised the applicant’s description of the events of 9 June 2014, given orally on 31 October and 3November 2014, as follows.
28.At 7 p.m. on 9 June 2014 the applicant had been abducted by two FSB officers. They had put a sack over the applicant’s head during the abduction. They had then taken the applicant to an unidentified house, tied him up and taken the sack off his head. The applicant had recognised the two men as “Timur” and “Zakhar”, the FSB officers whom he had met previously in November 2011. The two men had beaten the applicant and kept him inside the house until the following day.
29.On 10 June 2014 the two FSB officers had taken the applicant to a runway at one of Moscow’s airports without passing through any border or passport controls as the applicant’s passport had remained with the Moscow FMS. The FSB officers had handed the applicant over to Uzbek officials near the steps of a Tashkent-bound airplane.
30.Once in Uzbekistan, the applicant had been placed under arrest by the Main Investigation Department of the Ministry of the Interior of Uzbekistan on suspicion of crimes related to religious extremism. He had been kept in detention for two months and had been subjected to torture and other ill‑treatment by Uzbek law-enforcement officers with a view to securing a self-incriminating statement. The applicant had been tied head downwards to a bar attached to the wall and had been beaten repeatedly. The officers had broken two of the applicant’s ribs and knocked out seven of his teeth.
(b)Information provided by Ms I.
31.On 4 November 2014 the applicant’s representative interviewed MsI.
32.Ms I. stated that on 3 May 2011 an FSB officer named “Zakhar” and some police officers had come to their Moscow flat to search for the applicant, but had not found him.
33.In November 2011 “Zakhar” and another FSB officer, “Timur”, had interviewed Ms I. about the applicant and his religious views and practices.
34.Following the applicant’s abduction, on 10 June 2014 Ms I. had called “Timur” on his mobile phone, enquiring about her partner. “Timur” had replied that he was no longer working for “that office” (the FSB). Ms I. had also tried calling “Zakhar” but had received no response.
35.On 13 June 2014 Ms I. had flown to Tashkent with her son and mother. Upon arrival she had been detained at the airport for seven hours and then released.
36.Ms I. had been questioned by the investigator in charge of the applicant’s case at the Ministry of the Interior of Uzbekistan, Mr K., but had been denied access to the applicant. When she had seen the applicant in the courtroom, he had made signs to her that he had been beaten.
(c)Information provided by the applicant’s mother
37.On 4 November 2014 Mr Vasilyev interviewed the applicant’s mother, Ms Kh.
38.Ms Kh. stated that her younger son had been convicted of crimes related to religious extremism in December 2010, which had influenced the applicant’s decision to leave Uzbekistan. She had had occasional contact with the applicant during his time in Moscow.
39.On 15 June 2014 Ms I. had arrived in Uzbekistan and informed MsKh. of the applicant’s abduction.
40.On 25 June 2014 officers of the Ministry of the Interior of Uzbekistan had come to Ms Kh.’s home and searched it.
41.On 27 June 2014 the applicant’s mother had visited the investigator,K., who had said that the applicant had voluntarily returned to Tashkent on 8June 2014 and had gone to the police with a statement of surrender.
42.Some people had informed Ms Kh. that her son had been severely beaten while in detention. She had not had access to the applicant, but when she had seen him in the courtroom, he had looked very poorly.
5.The applicant’s conviction
43.On 18 November 2014 the Tashkent City Court found the applicant guilty of crimes under Articles 216 (“the illegal establishment of public associations or religious organisations”) and 244² (“the establishment of, management of, participation in religious extremist, separatist, fundamentalist or other proscribed organisations”) of Uzbekistan’s Criminal Code and sentenced him to eight years’ imprisonment.
44.The lawyer appointed for the applicant refused to lodge an appeal against the judgment.
45.On 26 November 2014 Mr Vasilyev lodged an appeal with the Appeal Chamber of the Tashkent City Court on the applicant’s behalf. It appears that later the applicant withdrew the statement of appeal.
46.The applicant remains imprisoned in Uzbekistan.
6.Appeal proceedings relating to the applicant’s refugee status application
47.On 29 July 2014 the Moscow FMS lodged an appeal against the judgment of 12 May 2014. The statement accompanying the appeal did not contain any request to restore the time-limit for lodging it.
48.The Moscow City Court admitted the appeal on an unspecified date. The reasons for admitting it after the time-limit had run out are unknown.
49.On 19 October 2014 the UNHCR Representation in the Russian Federation (“the UNHCR”) submitted a memorandum on the applicant’s case to the Moscow City Court for consideration. It was noted that torture was a widespread method of coercion used by the Uzbek authorities to obtain self‑incriminating statements from those suspected of involvement in “religious extremism”. The statement read, in particular:
“As follows from the document of the Call for Urgent Action published by Amnesty International on 6 November 2014, after the forced return to Uzbekistan, MrKhamidkariyev was subjected to torture and other kinds of proscribed treatment and punishment for two months with a view to obtaining a confession to made-up charges – he was tied head down to a bar attached to a wall and beaten, as a result of which he had seven teeth knocked out and two ribs broken.”
50.On 2 December 2014 the Moscow City Court examined the appeal lodged by the Moscow FMS against the judgment of 12 May 2014, quashed the judgment and upheld the Moscow FMS’s decision of 8 November 2013 owing to the fact that the applicant had not provided “convincing and irrefutable evidence of the existence of well-founded fears of becoming a victim of persecution in Uzbekistan”. The reasons for examining a belated appeal on the merits were not given in the text of the judgment.
B.Information submitted by the Government
51.In the course of the proceedings before the Court, the Government sent four sets of correspondence, the contents of which are described below.
1.Letter of 1 July 2014
52.By a letter of 1 July 2014 in reply to the Court’s request for information of 10 June 2014, made at the same time as the indication of the interim measures (see paragraph 4 above), the Government informed the Court that “the relevant State bodies have been informed about the disappearance of the applicant and the indication by the Court of the interim measures under Rule 39 of the Rules of Court”.
53.They further noted that the applicant had not been “apprehended by the officers of any Russian law-enforcement bodies on 9 June 2014 in Moscow” and that “his current whereabouts [are] unknown”.
54.The Government also stated that on 10 June 2014 the Basmannyy district department of the interior (“the Basmannyy police”) had received a complaint about the applicant’s kidnapping from Mr T. and that on 19 June 2014 a case file with the preliminary inquiry conducted on the basis of that complaint had been forwarded to the Basmannyy district investigative unit of the Moscow investigative department of the Investigative Committee of the Russian Prosecutor’s Office (“the investigative authority”) “for further enquiry and the possible initiation of a criminal case”.
55.Lastly, they noted that the applicant’s representative’s letter of 25June 2014 (see paragraph 24 above) had been forwarded to the investigative authority for consideration.
56. No documents were enclosed with the letter of 1 July 2014.
2.Observations on the admissibility and merits of the application of 24October 2014
57.On 24 October 2014 the Government submitted their observations on the admissibility and merits of the application, the contents of which can be summarised as follows.
58.On 9 September 2014[1] the investigative authority opened an investigation into the applicant’s kidnapping as criminal case no. 815447 under Article 126 § 2 (a) of the Russian Criminal Code (“aggravated kidnapping”).
59.In the course of the investigation CCTV pictures from cameras located in the vicinity of the scene of the incident were examined. They showed that on 9 June 2014 at about 7 p.m. the applicant had been kidnapped by unidentified people and taken away by car.
60.The Government claimed that the Court’s demand to submit lists of passengers checked in on Uzbekistan-bound flights between 9 and 12 June 2014 (see paragraph 5 above) could not be complied with as the lists in question contained personal data about third parties and could not be submitted to the Court without their prior consent.
61.The Government further submitted that there was no information about the arrest of the applicant on 9 June 2014 by law‑enforcement agencies or his detention in remand prisons in Moscow or the Moscow Region, and that no information regarding the applicant crossing the State border had been received at that time.
62.The notification by the Uzbek authorities to the applicant’s father of 18 June 2014 concerning the applicant’s arrest and detention in Uzbekistan had been added to the criminal investigation file.
63.The Government concluded that there was no evidence to prove any direct or indirect involvement of the Russian authorities in the applicant’s alleged kidnapping and transfer to Uzbekistan.
64.The Russian authorities had not been made aware and could not have known of any risk that the applicant might be kidnapped.
65.The Government were not in a position to provide information on the criminal proceedings against the applicant in Uzbekistan as those proceedings fell outside their jurisdiction. However, they had sent a request for mutual legal assistance to the Uzbek authorities in order to establish the applicant’s whereabouts.
66.In conclusion, the Government submitted that there had not been any administrative practice of the involuntary removal of persons in respect of whom Rule 39 had been applied to their countries of nationality. Inquiries and investigations were opened into instances of the disappearance of such people. The Russian Prosecutor’s Office oversaw the compliance with Russian law of any decisions taken in the course of such inquiries and investigations. A large group of State agencies had held a co-ordination meeting on 10 September 2014 on the further enforcement of measures to ensure the security of asylum seekers.
67.No documents were enclosed with the Government’s observations of 24 October 2014.
3.Further observations of 26 February 2015
68.On 26 February 2015 the Government, in reply to the applicant’s observations on the admissibility and merits of the application, submitted that they reaffirmed the position stated in their observations of 24 October 2014 and commented on the applicant’s just satisfaction claims.
69.No documents were enclosed with the Government’s correspondence of 26February 2015.
4.Letter of 15 May 2015
(a)Cover letter
70.Following the Court’s additional question to the Government regarding the respondent State’s compliance with Article 38 of the Convention (see paragraph 6 above), the Government submitted a letter which read as follows:
“With reference to your letter of 24 April 2015 in respect of the above application, please find enclosed copies of the criminal investigation documents disclosed by the investigative authorities after a repeated request.
The Government kindly ask the Court to join the documents to the case-file.”
71.No answer to the Court’s question under Article 38 of the Convention was given.
(b)Documents enclosed
72.Forty-three pages of various documents issued by the Russian and Uzbek authorities were enclosed with the Government’s cover letter.
(i)Documents issued by the Russian authorities
(α)Summary of events in chronological order
73.The contents of the documents issued by the Russian authorities and which were enclosed with the Government’s letter of 15 May 2015 can be summarised as follows.
74.On 10 June 2014 Mr T. reported the applicant’s kidnapping to the Basmannyy police and made a statement. Mr T. stated, in particular, that a woman on the street near the pharmacy had seen two men getting into the parked silver Lada Priora.
75.On 10 June 2014 Ms I. made a statement to the Basmannyy police that at 7p.m. on 9 June 2014 she, her partner and child had taken a taxi, a silver Lada Priora. She had got out of the car to go into a pharmacy, but by the time she had come out the taxi had disappeared.
76.On 30 June 2014 the Basmannyy police reported to the investigative authority that they had failed to identify the applicant’s whereabouts and that there had been no “positive information” concerning any aeroplane or railway tickets issued in the applicant’s name or about the applicant being placed in remand prisons. Furthermore, it was noted that the Moscow department of the FSB and the data centre of the Russian Ministry of the Interior had not sent any reply to the police’s enquiries. The Basmannyy police also reported that the whereabouts of Mr T. and Ms I. were unknown and that it had been impossible to identify the taxi driver who had taken the applicant to the scene of the kidnapping.
77.On 9 July 2014 the investigative authority decided to open a criminal investigation into the applicant’s kidnapping. The decision described the events as follows:
“On 9 June 2014 at about 7 p.m. persons who have not been identified by the investigation, acting jointly and by common accord, approached a car which has not been identified by the investigation parked near house no. 7/2 at Bolshoy Kharitonyevskiy Lane in Moscow, in which Mr Khamidkariyev was travelling, and, having got in the said car against the will of the victim, kidnapped Mr Khamidkariyev, fleeing the scene of the crime in the said car to an unknown destination.”
78.On 11 September 2014 the investigative authority requested the transport police to inform them whether any aeroplane or railway tickets had been issued in the applicant’s name between 1 June and 1 August 2014.
79.On 9 October 2014 the investigative authority granted the applicant victim status in case no. 815447.
80.On 15January 2015 an investigator with the investigative authority decided to suspend the investigation of case no. 815447. The decision stated that the applicant’s whereabouts had been established as he had been detained in a remand prison in Tashkent, the scene of the incident had been inspected, seven witnesses had been questioned, various requests had been sent to the Russian authorities and a request for mutual legal assistance had been sent to Uzbekistan, but no reply had been received.
81.On 29 April 2015 the investigator’s superior at the investigative authority overruled the decision of 25 April 2015 to suspend the case and returned it to the investigator on the grounds that the suspension decision had been taken prematurely. It was noted that the following measures had to be taken to ensure a proper investigation: a response to the request for mutual legal assistance from the Uzbek authorities had still to be received, as had replies to “previously sent requests”. “Other requisite investigative and procedural measures” also still had to be performed.
82.On 29 April 2015 an investigator at the investigative authority decided to resume case no. 815447 following the order from his superior. It is clear from the text of the decision that between 9October 2014 and 29April 2015 the investigation had been suspended and resumed four times on the basis of decisions by a more senior officer at the investigative authority or by a prosecutor.
(β)Other documents
83.The materials provided by the Government included the following documents:
- an undated sheet of paper with no letterhead entitled “Federal Search for an Individual” containing the applicant’s personal information and information on a criminal case pending against him in Uzbekistan, from which it transpires that the applicant was put on a Russian federal wanted list. The sheet contains a handwritten note “Database ‘Region’ of the Russian Ministry of the Interior (has not been arrested)”.
- an undated document entitled “Request for legal assistance” addressed to “the competent State bodies of Uzbekistan” and signed by an investigator at the investigative authority, including a list of questions to ask the applicant, MsI. and the officers in charge of the applicant’s arrest. The questions concerned, in particular, the circumstances of the applicant’s arrival in Uzbekistan, including how he crossed the border and the reasons for his detention in Tashkent.
(ii)Documents issued by the Uzbek authorities
84.The contents of the documents issued by the Uzbek authorities which were enclosed with the Government’s letter of 15 May 2015 can be summarised as follows.
85.According to an arrest record drawn up in Russian by the Uzbek police the applicant was placed under arrest at 10.40 a.m. on 14 June 2014 as a suspect in a crime under Article 244² § 1 of the Uzbek Criminal Code. The place of arrest was not indicated in the record. The grounds for the arrest were stated as “other information leading to a suspicion that a person has committed a crime, and if the person has attempted to flee or has no abode or his or her identity has not been established”. The purpose of the arrest was stated as “there are enough grounds to suspect the person of having committed a crime”. A note observed that “the arrested person has been placed in a temporary detention unit of the Ministry of the Interior of Uzbekistan”.
86.According to a document in Russian entitled “Record of providing an arrested person with the right to make a telephone call” of 14 June 2014, the applicant made use of that right to call his mother between 10.45 and 10.49 a.m. on 14 June 2014 to inform her of his arrest.
87.The record of the search of the applicant in Russian showed that 300Russian roubles and one metallic ring were seized from the applicant when he was searched after being arrested.
88.On 18 June 2014 the Main Investigation Department of the Ministry of the Interior of Uzbekistan informed the applicant’s father that his son, who had been wanted and “declared guilty in absentia”, had been arrested on 17 June 2014, placed in custody and had been participating in investigative measures.
89.According to a Russian translation of a document in Uzbek of 10February 2015 an investigator, K., at the Ministry of the Interior of Uzbekistan asked the State Customs Committee of Uzbekistan to provide information on “the facts of crossing the State border of Uzbekistan” by the applicant between 1 June and 1 July 2014. A Russian translation of the reply in Uzbek by the State Customs Committee of Uzbekistan of 12February 2015 stated that there was no information in the customs’ database on the applicant crossing the Uzbek border between 1 June and 1July 2014. It was noted that the database was compiled on the basis of written statements by those crossing borders and could thus contain errors owing to differences in people’s handwriting.
90.According to the record of an interview held on 11 February 2015 K. questioned the applicant as a victim in an unspecified criminal case. The interview was in Russian. In the course of the interview the applicant stated that he had not been arrested by the Russian authorities and that he had voluntarily left Moscow to go to Uzbekistan to visit his ailing mother. He stated that he had had no documents on him. Once in Uzbekistan, the applicant had taken a taxi to his mother’s, but the taxi had broken down and stopped. After getting out of the car, the applicant had been asked by police officers who had happened to be passing for an identification document. Since he had had no such document, he had been taken to a police station for identification and then arrested. The applicant’s answer to a question about his whereabouts between 9 and 15 June 2014 was as follows:
“On 9 June 2014 I was at home, in the evening I took the child to hospital, then at about 9 p.m. I returned and stayed at home. Then on 10 June 2014 I was at home and at about 11 p.m. went to the railway station, and at 12 midnight left for Uzbekistan by bus. I was on the road for about seventy-two hours or a little longer, and on 14 June 2014 I arrived at the border between Kazakhstan and Uzbekistan, then, using roundabout ways, I crossed the border and at about 7 a.m. was on Uzbek territory, where I was arrested by officers of law-enforcement agencies.”
91.On 12 February 2015 the investigator K. questioned Ms I. as a witness. The interview was in Russian. Ms I. stated that the applicant had voluntarily and secretly left for Uzbekistan by bus on 10 June 2014 and that she had flown to Tashkent on 13 June 2014.
92.On 12 February 2015 K. questioned one of the police officers who had arrested the applicant, Mr Kh., as a witness. The interview was in Russian. The answer to the question about the circumstances of the applicant’s arrest reads as follows:
“On 14 June 2014 at about 7.30 a.m. in the Yakkasarayskiy district of Tashkent MrKhamidkariyev was stopped with a view to checking his identity documents, however, given that he had no documents on him, the latter was taken to the Yakkasarayskiy district department of the interior of Tashkent, where it was established that Mr Khamidkariyev was wanted, accordingly, Mr Khamidkariyev was taken to the initiator of the search for him in the temporary detention facility of the Ministry of the Interior of Uzbekistan, where the requisite documents were filled in.”
93.On an unspecified date K. drew up a report on the actions performed under the request for mutual legal assistance. According to the report, the investigator had questioned Ms I., Mr Kh. and the applicant, had received copies of documents pertaining to the applicant’s arrest, requested information concerning the border crossing and had identified two men allegedly connected with the applicant who as of November 2014 had been fighting on the side of ISIS in Syria.
94.The Government also submitted two documents in Uzbek of 14 June 2014 – a copy of the first page of Ms I.’s passport, and an extract from the Criminal Code of Uzbekistan with the text of Article 244² § 1 in Russian. The Article reads as follows: “the establishment, management, or participation in religious extremist, separatist, fundamentalist or other proscribed organisations shall be punishable by five to fifteen years of imprisonment”.
95.For the relevant reports on Uzbekistan by UN bodies and international non-governmental human rights organisations up to 2014, see Egamberdiyev v. Russia (no. 34742/13, §§ 31-34, 26 June 2014).
96.The relevant parts of the Concluding observations on the fourth periodic report of Uzbekistan (CCPR/C/UZB/CO/4) adopted by the UN Human Rights Committee on 20 July 2015, read as follows:
“State of emergency and counter-terrorism
11. The Committee, while noting that a draft State of Emergency Act has been prepared, remains concerned (CCPR/C/UZB/CO/3, para. 9) that existing regulations on states of emergency do not comply with article 4 of the Covenant. It also remains concerned (CCPR/C/UZB/CO/3, para. 15) about: (a) the overly-broad definition of terrorism and terrorist activities that is reportedly widely used to charge and prosecute members or suspected members of banned Islamic movements; (b) legal safeguards for persons suspected of, or charged with, a terrorist or related crime and allegations of incommunicado detention, torture and long prison sentences in inhuman and degrading conditions in respect of such persons (arts. 4, 7, 9, 10, 14, 18 and 19) ...
Deaths in custody
12. The Committee is concerned about reports of deaths in custody and denial of adequate medical care. It is also concerned about the lack of effective and independent investigations into such cases (arts. 2 and 6) ...
Torture
13. The Committee remains concerned that the definition of torture contained in the criminal legislation, including article 235 of the Criminal Code, does not meet the requirements of article 7 of the Covenant, as it is limited to illegal acts committed with the purpose of coercing testimony and therefore in practice is restricted to acts of torture committed only by a person carrying out an initial inquiry or pretrial investigation, a procurator or other employee of a law-enforcement agency, and results in impunity for other persons, including detainees and prisoners. The Committee is also concerned that the State party continues to grant amnesties to persons who have been convicted of torture or ill-treatment under article 235 of the Criminal Code (arts. 2 and 7) ...
14. The Committee remains concerned about reports that torture continues to be routinely used throughout the criminal justice system; that, despite the existing legal prohibition, forced confessions are in practice used as evidence in court, and that judges fail to order investigations into allegations of forced confessions even when signs of torture are visible; that persons complaining of torture are subjected to reprisals and family members are often intimidated and threatened to ensure that complaints are retracted; and that the rate of prosecution is very low and impunity is prevalent (arts. 2, 7 and 14) ...
Liberty and security of person
15. The Committee remains concerned that the State party retains the 72-hour period of detention of persons suspected of having committed an offence before bringing them before a judge, and therefore welcomes the State party’s statement that the length of custody may be reduced to 48 hours in the future. It is also concerned about deficiencies in the application of the legislation governing judicial control of detention (habeas corpus) in practice, particularly allegations of: (a) forging the time or date of detention to circumvent the legal period of detention: (b) habeas corpus hearings in the absence of the detainee, especially in politically-related cases; (c) violations of the right of detainees to a lawyer, including to a lawyer of their choice, and deficient legal representation provided by State-appointed defence lawyers (arts. 9 and 14).”
97.The Uzbekistan chapter of the World Report 2015 by Human Rights Watch reads, in so far as relevant, as follows:
“Imprisonment and Harassment of Critics
The Uzbek government has imprisoned thousands of people on politically motivated charges to enforce its repressive rule, targeting human rights and opposition activists, journalists, religious believers, artists, and other perceived critics.
...
Criminal Justice and Torture
In November 2013, the United Nations Committee against Torture stated that torture is “systematic,” “unpunished,” and “encouraged” by law enforcement officers in Uzbekistan’s police stations, prisons, and detention facilities run by the SNB. Methods include beating with batons and plastic bottles, hanging by wrists and ankles, rape, and sexual humiliation.
Although authorities introduced habeas corpus in 2008, there has been no perceptible reduction in the use of torture in pretrial custody or enhanced due process for detainees. Authorities routinely deny detainees and prisoners access to counsel, and the state-controlled bar association has disbarred lawyers that take on politically sensitive cases.”
98.The chapter on Uzbekistan of Amnesty International’s report for 2014/15, in so far as relevant, reads as follows:
“Torture and other ill-treatment
Police and officers of the National Security Service (SNB)continued to routinely use torture and other ill-treatment to coerce suspects and detainees, including women and men charged with criminal offences such as theft, fraud or murder, into confessing to a crime or incriminating others. Detainees charged with anti-state and terrorism-related offences were particularly vulnerable to torture. Detainees were often tortured by people wearing masks.
Police and SNB officers regularly used convicted prisoners to commit torture and other ill-treatment on detainees in pre-trial detention. Under the Criminal Code, prisoners, unlike officials, could not be held responsible for torture but only for lesser crimes. A former detainee described witnessing officers and prisoners torture men and women in interrogation rooms in an SNB pre-trial detention centre, as well as in bathrooms and showers, punishment cells and purpose-built torture rooms with padded rubber walls and sound-proofing. He described SNB officers handcuffing detainees to radiators and breaking their bones with baseball bats.
Courts continued to rely heavily on confessions obtained under torture to hand down convictions.Judges routinely ignored or dismissed as unfounded defendants’ allegations of torture or other ill-treatment, even when presented with credible evidence.
Two men, who were sentenced in 2014 to 10 years in prison each for alleged membership of a banned Islamist party, claimed in court that security forces had tortured them to sign false confessions by burning their hands and feet against a stove. One defendant toldthe judge that security forces had pulled out his fingernails and toenails. The judge failed to inquire further into the torture allegations, and admitted the confessions as evidence.
...
Counter-terror and security
The authorities became increasingly suspicious oflabour migrants returning from abroad who may have had access to information on Islam which is censored or banned in Uzbekistan, resulting in an increased number of arrests and prosecutions for “extremism”. The authorities claimed that migrant workers were targeted in Russia for recruitment by the IMU, IS or other groups characterized as extremist.
In November, security forces detained dozens oflabour migrants who had returned from Russia and Turkey, in raids in the capital Tashkent and several regions of the country, amid disputed claims that they were members of the banned Islamist party Hizb ut-Tahrir and had links to IS members in Syria. Human rights defenders reported that security forces used torture to extract confessions from them.”
99.In April 2015, Amnesty International published a report entitled “Secrets and Lies: Forced Confessions under Torture in Uzbekistan”, which reads, in particular, as follows:
“Torture is endemic in Uzbekistan’s criminal justice system. Security forces use torture against men and women charged with criminal offences, such as theft and murder, as well as against individuals who have fallen out of favour with the authorities, including former officials, police officers and entrepreneurs. Increasingly, however, over the last 15 years, those particularly vulnerable to torture and other ill‑treatment have been men and women charged with or convicted of “anti-state” and terrorism-related offences. In particular, these are Muslims worshipping in mosques outside state control or under independent imams, and members or suspected members of political opposition parties and banned Islamic movements or Islamist groups and parties, all of whom the authorities consider a threat to national and regional security.”

5.The applicant was born in 1981 and lives in Piteşti.
A.Background to the case
6.On 4 September 2014 a gynaecologist prescribed the medicine Utrogestan to the applicant, to be taken twice a day for three months.
7.According to the applicant’s own statement before the Court, the medication was prescribed to help maintain her pregnancy and prevent a miscarriage.
8.According to the medicine’s patient information leaflet, it was recommended for the treatment of medical conditions causing an insufficient secretion of the hormone progesterone and could be used for several conditions, including inter alia, aiding a pregnancy. Its potential side effects included drowsiness and dizziness, usually as a result of an overdose. Stopping the treatment did not have any potential effects.
9.On 29 October 2014 M.N., a prosecutor attached to the National Anticorruption Department (Direcția Națională Anticorupție – hereinafter “the DNA”), summoned the applicant to be interviewed as a witness on 31October 2014 in criminal proceedings opened by the authorities into alleged acts of corruption involving her father and others. Her father was the mayor of Pitești and a member of a major political party which formed the Romanian Government at the time.
10.According to the applicant’s own statement before the Court, on the morning of 31 October 2014 she started feeling unwell and asked her chosen legal representative to inform M.N. that she might not be able to testify that day because of her health. Her lawyer called M.N. and informed him of the situation. The lawyer also reassured the prosecutor that he would accompany the applicant to the DNA’s offices for the interview once her medical condition improved. Subsequently, the applicant’s lawyer informed her that the prosecutor had refused to allow a lawyer to be present during her interview and he advised her to attend alone.
11.On the same date a general practitioner issued a medical note and referred the applicant urgently to hospital. The note stated that she was suffering from an inflammation of her uterus.
12.On the same date the gynaecology department of the Panait Sârbu Clinical Hospital in Bucharest took an ultrasound of the applicant’s uterus. The ultrasound image produced by the applicant as evidence before the Court did not provide, contain or was accompanied by any explanation or medical report detailing her condition.
13.According to the applicant’s own statement before the Court, the examination at the Panait Sârbu Clinical Hospital confirmed that she was pregnant and was experiencing some complications as a result of stress and her medication’s side effects. However, the scan could not confirm whether the foetus had stopped developing or not. She was advised to continue the prescribed treatment and rest.
14.On the same date M.N. authorised two police officers to enforce a warrant to appear (mandat de aducere) issued in the applicant’s name. It stated that she had unjustifiably ignored the summons of 29October 2014 and that her presence was required at the DNA’s offices in order to be interviewed as a witness.
15.According to the applicant’s own statement before the Court, on her return from the hospital two police officers presented her with the warrant to appear and took her to the DNA’s offices even though she had informed them of her medical condition and had shown them her medical documents. During the interview she informed M.N. that she was feeling ill and presented him with the medical documents. Even though he was aware that she was pregnant, the prosecutor continued to interview her aggressively, using interview techniques aimed at intimidating her. Her interview was also recorded but in the absence of any procedural rules on the matter she was unable to ask for the recording. When she asked the prosecutor to mention in her statement that she was being interviewed while under treatment, in poor health and after a trip to the hospital, she was told that she would not be allowed to leave the premises for the rest of the evening. She became scared, gave in and fully complied with the investigating authorities’ demands.
16.On 31 October 2014, after the applicant’s interview, prosecutor M.N. prepared a report which stated that according to the statement made by her, she had been late for the interview because she had been feeling unwell on account of health problems (având probleme de sănătate). The report noted that the applicant had supported her statement by submitting a general practitioner’s referral to hospital (see paragraph 11 above) and the results of the ultrasound taken by the Panait Sârbu Clinical Hospital (see paragraph12 above). The applicant signed the report without objection.
17.According to the applicant’s own statement before the Court, she also gave the prosecuting authorities a prescription for her medication and the medication’s patient information leaflet.
18.On 19 January 2015 the applicant underwent a routine pregnancy check-up at a private clinic in Bucharest. According to the medical report prepared that day, she was thirteen weeks pregnant.
B.Time spent by the applicant at the DNA on 6 November 2014
19.At 4 a.m. on 6 November 2014 M.N. authorised the police to enforce a warrant to appear (mandat de aducere) issued in the applicant’s name in order to interview her in the criminal proceedings opened by the authorities into alleged acts of corruption.
20.At 11.30 a.m. two police officers went to the applicant’s home and presented her with the warrant to appear. According to a report produced by the officers, the applicant did not object to the warrant and followed them to the DNA’s offices. The applicant signed the report.
21.According to the applicant’s own statement before the Court, several police officers came to her home and took her to the DNA’s offices. On her arrival, even though M.N. was aware of her pregnancy, he left her waiting for eight hours in the corridor. During that time she was forced to stand and had no access to food or water. She started feeling very unwell because of her treatment and its side effects. After eight hours a statement was taken from her in the presence of her chosen legal representatives.
22.From 12.50 to 1.10 p.m. M.N. informed the applicant in the presence of her two chosen legal representatives that she was suspected of complicity in bribe taking and money laundering in criminal proceedings opened by the authorities into alleged acts of corruption. From 1.15 to 2.45 p.m. she was interviewed as a suspect in their presence. Her statement was recorded.
23.At 6 p.m. M.N. charged (a pus ȋn mişcare acțiunea penală) the applicant with complicity in bribe taking and money laundering. Between 6.05 and 6.10 p.m. he informed her of the charges against her in the presence of her two chosen legal representatives. From 6.15 to 6.20p.m. she was interviewed in their presence about the circumstances of the case as a person charged with an offence. Her statement was recorded.
24.The applicant and her chosen legal representatives signed, without raising any written objections, all the documents produced by the DNA in respect of her case on 6November 2014, including her statements.
C.Conditions of the applicant’s detention and alleged lack of medical care
25.At 7.07 p.m. on 6 November 2014 M.N. decided to place the applicant in police custody for twenty-four hours and ordered that she be taken to the Bucharest Police Detention Centre (Centrul de Reținere şi Arestare Preventivă din cadrul Direcției Generale de Poliție a Municipiului Bucureşti).
26.At 7.12 p.m. M.N. informed the applicant of her impending detention in the presence of one of her chosen legal representatives.
27.According to the applicant’s own statement before the Court, she arrived at the detention centre at around 7.30 p.m. with only a bottle of water and a small box of vitamins and minerals. The detention centre authorities took the vitamins from her immediately.
28.On the same date the applicant signed a statement for the detention centre medical service. According to the statement, she informed them that she had been monitored for endometrial hyperplasia, that she agreed with the information recorded by the medical staff and that the information in respect of her health was complete and accurate.
29.At 7.55 p.m. the medical service produced a report concerning the applicant’s health. The report noted, inter alia, that according to the statement made by her, she had been suffering from endometrial hyperplasia. Furthermore, she did not have her own Utrogestan. In addition, she stated that she would bring her medical documents in case she was detained pending trial and that she was a non-smoker.
30.According to the applicant’s own statement before the Court, she informed the detention centre medical service of her pregnancy and treatment and asked them to give her the medication and vitamins that evening and the following morning as recommended. However, during her detention she was not provided with the treatment needed for her pregnancy and therefore she could have suffered a miscarriage. Furthermore, according to her, the detention centre authorities did not provide her with any food or water until the next morning. The food she received was unsavoury, and she was warned by her cellmates not to eat it. Moreover, she was detained in a cell measuring 5 square metres with three smokers, even though she had informed the authorities that she was a non-smoker and that smoke was harmful to someone in her condition. The cell had four bunk beds and was cold. She was forced to sleep in a bed that had a mattress but no bed linen or duvet. The cell had a sink and a squat toilet. The toilet was separated from the rest of the cell by a curtain and was covered with a plastic device to prevent rats from entering the cell. A shower was fitted above the toilet which was also used for flushing it. No warm water was available and the cold water from the sink was contaminated and could not be used for drinking. Furthermore, she was allowed only thirty minutes of outdoor exercise at the same time as her other three cellmates, in a yard measuring 6or7square metres. It had walls three metres high and was covered by a metal grill. The other three cellmates smoked constantly in the yard, so it was filled with cigarette smoke because fresh air could not enter as a result of the very high walls.
D.Other relevant information
31.At around 7.07 p.m. on 7 November 2014 the Bucharest County Court dismissed the DNA’s request to detain the applicant pending trial for thirty days and ordered her release, on condition that she did not leave the country. In examining her personal situation, the court noted, interalia, that she was a former national television presenter and a film producer.
32.On 25 February 2015 a gynaecologist prescribed the applicant Utrogestan, to be taken twice a day until the thirty-second week of pregnancy.
33.On 17 December 2015 the DNA informed the Government, interalia, that on 6November 2014 similar procedural measures to those taken in respect of the applicant had been taken around the same time against eleven other suspects who were being investigated in the same set of criminal proceedings. Moreover, during the proceedings the applicant had been assisted by her chosen legal representatives and, like all the other suspects, she had been offered water or had been able to purchase food and water. Furthermore, water dispensers and disposable cups had been available in every corridor and office of the building. Everyone inside the building, including those under investigation, had access to its canteen. Lastly, all the defendants and their chosen legal representatives had the option of sitting down during the proceedings.
34.On 28 January 2016 the detention centre coordination department informed the Government that the applicant had arrived at 8.20p.m. on 6November 2014. According to the rules in force at the time, detainees were served dinner from 5.30 to 6 p.m. There were no written rules setting out the procedure which needed to be followed for detainees arriving later than 6 p.m. and the applicant had not asked for a meal. In addition, detention centres did not have a clear procedure in respect of detainees statements on whether they were a smoker or non-smoker. As long as detainees were asked about that at the time of their incarceration and opted for smoker or non-smoker status, they would be detained as far as possible according to their preferences.
35.According to the detention centre coordination department, none of the available documents proved that the applicant had stated that she was a non‑smoker at the time of her incarceration. Consequently, she had been assigned randomly to a cell for smokers. In addition, she had had access to running cold water which could have been used for drinking, and her cell had been heated at all times.
36.The applicant submitted excerpts from several newspaper and online articles concerning her detention and the time she spent at the DNA’s offices on 6 November 2014. According to three of these she was interviewed at the DNA’s offices for eight or more hours.

4.The applicant was born in 1971 and is currently serving a prison sentence in Vaslui Prison.
5.In 2012 the applicant was convicted of human trafficking and sentenced to ten years’ imprisonment.
6.He was detained in several detention facilities. However, in the present application he only complained about the conditions of his detention in Iaşi Prison and about the fact that he had not been assigned a personal care assistant in Rahova and Iaşi Prisons between 2April2013 and 30January 2014.
A.The applicant’s conditions of detention in Iași Prison
7.The applicant was detained in Iaşi Prison on several occasions, for a period of almost ten months: between 2 and 16 August 2013, 3September 2013 and 11 March 2014, 14 March and 6 June 2014, as well as from 27June and 4 July 2014.
1.The applicant’s account
8.The applicant alleged that he had been kept in conditions of poor hygiene in overcrowded cells. He had shared a cell of twenty‑nine square metres with seventeen other detainees. Moreover, he submitted that he had shared his cell with smokers despite the fact that he was a non‑smoker. The food had also been of very poor quality.
2.The Government’s account
9.According to the information provided by the National Prison Administration and forwarded to the Court by the Government, the applicant was held in the following cells:
- cells E 4.3, E 6.2. and E6.7., all measuring 33.33 sq.m, containing twenty‑six beds (that is, 1.2 sq. m per bed), occupied by twenty to twenty‑six detainees;
- cell E 7.5., measuring 17.48 sq. m, containing three beds (that is, 5.8sq.m per bed), occupied by one to three detainees;
- and cell E 8.10, measuring 17.48 sq. m, containing eight beds (that is, 2.1sq.m per bed) and occupied by four to eight detainees.
10.The Government did not provide any information concerning either the exact number of detainees who had occupied the cells or the time spent by the applicant in each of the above-mentioned cells.
11.The detainees were provided with cleaning materials and personal hygiene products and they were responsible for cleaning the cells. Specialist contractors carried out work to eradicate rodents and insects whenever it was considered necessary. The detainees were entitled to two showers per week.
12.The applicant received a special diet for his medical condition (see paragraph13 below).
B.Assistance for the applicant in Iaşi and Rahova Prisons
13.On 29 October 2013 a medical commission issued a certificate attesting that the applicant had been classified as a person with a permanent, severe physical disability on account of his visual impairment. The medical commission granted the applicant the right to a personal care assistant.
1.The applicant’s account
14.The applicant alleged that no special arrangements had been made for him as a person with severe visual impairment in Iaşi and Rahova Prisons between 2April 2013 and 30 January 2014.
15.Moreover, he contended that he had not been assigned a personal care assistant and had been permanently subjected to humiliating and degrading remarks from his cellmates, the same people to whom he had to appeal for assistance. As he had had no personal assistant he had not been able to benefit from daily walks and had been dependent on the other inmates to be moved around the prison.
16.He had only received assistance from inmates in the facility in exchange for cigarettes and money. The inmates had refused to help him unless they were paid. The administration had not taken any steps to rectify the situation.
17.The applicant submitted copies of several requests he had lodged with the prison authorities on 21 May, 21 November and 23December 2013 and on 20 February 2014 respectively, by which he had asked to be assigned a personal assistant. In each of his requests he had indicated the name of the co-detainee he had preferred to be assigned to him. All these requests were dismissed on the ground that the co-detainees indicated by the applicant could not assist him because they had been subject to disciplinary sanctions.
2.The Government’s account
18.The Government submitted that the administration of both prisons had made diligent efforts to comply with the standards imposed by the Court. Moreover, in 2013 the authorities in Iaşi Prison had refurbished cell E4.3 (see paragraph 9 above) to accommodate the needs of detainees with disabilities, including those of the applicant.
19.The Government contended that the medical certificate on his disability had been issued only on 29 October 2013 (see paragraph13 above) because the applicant had failed to submit the documents requested by the special commission for disabled persons. They further argued that even before the medical certificate had been issued, the prison authorities had on 9 August 2013 allowed a request lodged by the applicant on 7August 2013 to be assigned a personal care assistant. They had assigned him an inmate, M.D., who had been sharing the applicant’s cell. He had assisted the applicant until 16August 2013, when the latter had been admitted to the medical unit of Dej Prison. In the medical unit the applicant had been assisted by a co-detainee with whom he had shared the room. The Government did not provide any information about the co-detainee in question.
20.After the applicant had returned to Iaşi Prison he had lodged a request to be assigned a personal care assistant. On 22 April 2014 the prison authorities had assigned him an inmate, whom the applicant had refused.
C.The applicant’s domestic complaints
21.The applicant lodged several complaints on the basis of Lawno.275/2006 on the execution of sentences with the post-sentencing judge.
22.In 2013 the applicant lodged three complaints concerning an infringement by the administration of the Rahova Prison of his right to have a personal care assistant. He stated that he had not been assigned a person to assist him although he was suffering from a severe visual impairment.
23.The complaints were joined and examined together by the post‑sentencing judge on 14 June 2013. The judge noted that the prison doctor’s opinion was that the applicant was not entitled to a personal assistant. It further noted that on 9 May 2013 the prison authorities had appointed a commission of specialists, which had examined the applicant. The commission had found that owing to his visual impairment the applicant encountered difficulties in eating, maintaining his hygiene and in alerting prison staff or other co-detainees in case of need. It had therefore recommended a set of steps to be taken, which included closely monitoring the applicant. Subsequently, a detainee, C.F., sharing the applicant’s cell, had been assigned to support him in his daily activities. The post-sentencing judge dismissed the applicant’s complaints on the grounds that the steps taken by the prison authorities had been sufficient.
24.In his application to the Court, the applicant contended that assigning him C.F. had been useless because the latter had refused to provide him with any help. The applicant produced a handwritten statement by C.F., dated 20 June 2013, in which the latter had stated that he had not helped the applicant because the prison authorities had refused to consider his activity as a personal care assistant as work that should be remunerated.

1. The applicant, M.S.S., is an Uzbek national. He was represented before the Court by Ms I. Sokolova, a lawyer practising in Ivanovo.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background information and extradition proceedings
4. The applicant arrived in Russia in June 2012.
5. On 16 August 2012 he was charged in absentia in Uzbekistan with the unlawful organisation of an extremist religious group. On 24 August 2012 the Yakkasaray District Court in Tashkent ordered his arrest.
6. Between 2012 and 2014 the applicant stayed in Russia lawfully on the basis of his registration as a migrant and a renewable work permit. During that period he did not apply for refugee status or for temporary asylum or for a temporary residence permit.
7. In 2014 the applicant ’ s family (wife and three children) arrived from Uzbekistan to join him.
8. On 30 June 2014 the applicant was arrested in Russia on the basis of an international search warrant. On the same day the Ministry of the Interior of Uzbekistan informed the Russian authorities that it was intended to seek the applicant ’ s extradition and requested his detention pending such extradition.
9. On 2 July 2014 the Oktyabrskiy District Court of Ivanovo remanded the applicant in custody pending extradition. On 7 July 2014 the applicant was released on the orders of the Oktyabrskiy District Prosecutor, since under current Russian legislation his criminal prosecution had become time ‑ barred, thus rendering extradition impossible.
10. It remains unclear whether the Uzbekistani authorities have submitted an official request for the applicant ’ s extradition.
2. Refugee status proceedings
11. On 8 July 2014 the applicant applied for refugee status in Russia. On 14 October 2014 the Ivanovo Regional Department of the Federal Migration Service (the “Ivanovo Regional FMS”) refused to grant his request, stating that the applicant ’ s allegation that he would run the risk of ill-treatment in Uzbekistan had not been “objectively confirmed”.
12. On 15 October 2014 the applicant was informed by the Ivanovo Regional FMS that “a person having exhausted all the instances of appeal ... and refusing voluntary departure from Russia within three days of the date of receipt of the [final] decision will be administratively expelled or deported”.
13. On 14 November 2014 the applicant appealed to the Federal Migration Service of the Russian Federation (the “FMS of Russia”) against the refusal to grant refugee status. On 23 December 2014 the appeal was rejected.
14. On 16 March 2015 the Oktyabrskiy District Court of Ivanovo upheld the refusal to grant refugee status.
15. The applicant lodged an appeal, but asked the court to grant him deferral of payment of the court fee (150 Russian roubles (RUB), or approximately 3 euros (EUR)). The court deferred payment until 6 May 2015 and adjourned examination of the appeal. The applicant contested this decision, asking for an extension of the deferral period. His request was dismissed and the appeal was left unexamined, since the court fees remained unpaid.
16. The judgment of 16 March 2015 became final on 27 May 2015.
3. Temporary asylum proceedings
17. On 15 October 2014 the applicant applied for temporary asylum in Russia, referring to the risk of ill-treatment in Uzbekistan. On 15 January 2015 the Ivanovo Regional FMS refused his request.
18. On 5 February 2015 the applicant unsuccessfully lodged an appeal with the FMS of Russia against the refusal.
19. On 20 April 2015 the Oktyabrskiy District Court of Ivanovo upheld the refusal to grant temporary asylum.
20. The applicant again lodged an appeal, but asked the court to grant him deferral of the payment of the court fee (RUB 150, or approximately EUR 3). The court deferred payment until 29 May 2015 and adjourned examination of the appeal. The applicant contested this decision, asking for an extension of the deferral period. His request was dismissed and the appeal was left unexamined, since the court fees remained unpaid.
21. The judgment of 20 April 2015 became final on 22 June 2015.
4. Request for application of interim measures
22. On 6 July 2015 the applicant requested that the Court apply Rule 39 of the Rules of Court to prevent his removal to Uzbekistan. He claimed that he could be deported to Uzbekistan at any moment since the refusals to grant refugee status and temporary asylum had become final, and an appeal against a deportation decision did not have a suspensive effect.
23. On 7 July 2015 the Court granted the applicant ’ s request and indicated to the Government that the applicant should not be deported or expelled to Uzbekistan for the duration of the proceedings before the Court.
5. Further developments
24. In order to regularise his status in Russia, on 24 August 2015 the applicant applied to the Ivanovo Regional FMS for migration registration, a work permit and a temporary residence permit.
25. In a letter of 25 September 2015 the Ivanovo Regional FMS informed the applicant that he was not entitled to apply for a work permit and a temporary residence permit because his stay in Russia was illegal. It also confirmed that the applicant would not be removed from Russia as long as the interim measures indicated by the Court continued to apply.
26. At the same time, the Ivanovo Regional FMS informed the applicant that he could be put on the migration register for 90 days in order to legalise his stay in Russia and informed him how to go about registration.
27. The applicant has not informed the Court whether he has followed the migration registration procedure.
28. No decision on the applicant ’ s expulsion or deportation has been taken so far by the Russian authorities.
B. Relevant domestic law and practice
29. A summary of the relevant domestic law, as well as information concerning the human rights situation in Uzbekistan, was provided in the case of Akram Karimov v. Russia (no. 62892/12, §§ 69-111, 28 May 2014).

6.The applicant was born in 1965 and lives in Remanzaccio.
7.The applicant married A.T., a Moldovan national, and two children were born of the marriage: a daughter in 1992 and a son in 1998.
8.The applicant alleged that after their marriage her husband had started beating her. However, in 2011 the applicant followed her husband to Italy in order to provide her children with the opportunity of a more serene future.
1.The first assault committed by A.T. against the applicant and her daughter
9.The applicant submitted that her husband, who was an alcoholic, had already been physically abusing her for a long time when, on 2 June 2012, she requested the intervention of the police after she and her daughter had been assaulted by A.T.
10.When the police arrived, A.T. had left the family home. He was found in the street in a state of intoxication, with scratches on the left side of his face. The police drew up a report of the incident. The report stated that the applicant had been beaten and bitten in the face and the left leg and that she had a number of bruises. The report also stated that the applicant’s daughter had herself been hit after intervening to protect her mother and presented a neck injury caused by a fingernail and injuries to both arms. The applicant and her daughter were informed of their rights and expressed their intention to go to the hospital accident and emergency unit.
11.The applicant alleged that she had not, however, been informed of the possibility of lodging a complaint or contacting a shelter for battered women. She also submitted that she went to the accident and emergency unit in order to have her injuries recorded, but that after waiting for three hours she had decided to return home.
12.The Government, referring to the police report, submitted that there was no evidence that the applicant had gone to the accident and emergency unit.
2.The second assault committed by A.T. against the applicant
a)The applicant’s version
13.The applicant submitted that after the assault on 2 June 2012 she had taken refuge in the cellar of her flat and started sleeping there.
14.She recounted the following events as follows. On 19 August 2012, after receiving a threatening telephone call from her husband, and fearing an attack by him, she decided to leave the house. When she returned home, she found that the cellar door had been broken. She tried telephoning a friend to ask if she could stay the night with her, but no one answered her call. She then decided to go back to the cellar. A.T. attacked her there with a knife and forced her to follow him in order to have sexual relations with his friends. Hoping that she would be able to seek help once outside, she resigned herself to following him. She asked a police patrol in the street for help.
15.The police merely checked her and A.T.’s identity papers, and despite the applicant’s assertions that she had been threatened and beaten by her husband, they invited her to go home without offering her help and told A.T. to keep away from her. A.T. was fined for unauthorised possession of a lethal weapon.
16.Shortly after she had returned home, the applicant called the emergency services and was taken to hospital. The doctors noted, among other things, that she suffered from cranial trauma, a head injury, multiple abrasions to her body and a bruise on her chest. It was deemed that her injuries would heal up within a week.
b)The Government’s version
17.The Government indicated that, according to the incident report drawn up by the police, they had arrived at Leopardi Street shortly after midnight. The applicant informed them that she had been hit in the face. A.T. had given the police officers a knife. The applicant told the police that she wanted to go to hospital to have her injuries recorded. She had gone there and A.T. had returned home. The knife had been seized and the applicant fined for unauthorised possession of a lethal weapon.
3.The applicant’s complaint
18.At the hospital the applicant spoke to a social worker and said that she refused to return home to her husband. She was then given shelter by an association for the protection of female victims of violence, IOTUNOIVOI (“the association”).
19.The president of the women’s shelter, accompanied by police officers, went to the cellar where the applicant had been living in order to fetch her clothes and personal effects.
20.From 20 August onwards A.T. began harassing the applicant by telephoning her and sending her insulting messages.
21.On 5 September 2012 the applicant lodged a complaint against her husband for bodily harm, ill-treatment and threats of violence, urging the authorities to take prompt action to protect her and her children and to prevent A.T. from approaching them. She stated that she had taken refuge in a women’s shelter and that A.T. was harassing her by telephone.
22.A.T. was placed under judicial investigation on charges of ill-treating family members, inflicting grievous bodily harm and making threats. The police sent the criminal complaint to the prosecution on 9October 2012.
23.On 15 October 2012 the prosecution, having regard to the applicant’s requests for protection measures, ordered urgent investigative measures, in particular requesting the police to find potential witnesses, including the applicant’s daughter.
24.The applicant was given shelter by the association for three months.
25.In a letter of 27 August 2012 the head of Udine social services informed the association that there were no resources available to take charge of the applicant or to find alternative accommodation for her.
26.The Government gave a different interpretation of that letter, saying that, as the applicant had not first been referred to the Udine social services, which cared for victims of violence in the context of another project, called “Zero tolerance”, the latter could not pay the association’s expenses. In their submission, female victims of violence could contact social services requesting assistance, which the applicant had not done.
27.On 4 December 2012 the applicant left the shelter to look for work.
28.She said that she had first slept in the street before being accommodated by a friend, and had subsequently found a job as an assistant nurse for elderly people and was then able to rent a flat. According to the applicant, A.T. had continued exerting psychological pressure on her to withdraw her complaint.
29.On 18 March 2013 the prosecution, finding that no investigative measure had been carried out, again asked the police to investigate the applicant’s allegations rapidly.
30.On 4 April 2013, seven months after she had lodged her complaint, the applicant was questioned for the first time by the police. She altered her statements, mitigating the seriousness of her original allegations. Regarding the episode of June 2012 she stated that A.T. had unsuccessfully attempted to hit her and her daughter. With regard to the incident that had occurred in August 2012, she said that A.T. had hit her but had not threatened her with a knife. A.T. had, however, pretended to turn the knife on himself.
The applicant also stated that at the time she had not spoken very good Italian and had not been able to express herself properly. She also stated that A.T. had not forced her to have sex with other people and that she had returned to live at the family home. She said that when she had been living at the shelter provided by the association, she had not spoken to her husband on the telephone because she had been told not to. She stated that, barring her husband’s alcoholism, the situation at home was calm. She concluded by saying that her husband was a good father and a good husband and that there had been no further episodes of violence.
31.The applicant submitted that she had altered her original statements because of the psychological pressure exerted on her by her husband.
32.On 30 May 2013 the Udine public prosecutor’s office, after noting, firstly, that the applicant, who had been interviewed in April, had mitigated her allegations against her husband saying that he had not threatened her with a knife and that she had been misunderstood by an employee from the shelter where she had taken refuge and, secondly, that no other violent episode had occurred, asked the investigating judge to close the complaint lodged against A.T. for ill-treatment of family members. Regarding the offence of grievous bodily harm, the prosecuting authorities indicated that they intended to continue the investigations.
33.In a decision of 1 August 2013 the investigating judge discontinued the part of the complaint concerning the allegations of ill-treatment of family members and threats. He considered that the course of the events was unclear and that, with regard to the alleged ill-treatment, the offence had not been made out because, since the applicant had complained only about the incident of August 2012, the criterion of repeated episodes of violence was not satisfied.
34.With regard to the complaint of threats aggravated by the use of a weapon, the investigating judge noted that the applicant’s statements were contradictory and that in the report drawn up by the hospital there was no reference to knife injuries.
35.With regard to the offence of causing bodily harm, the proceedings were continued before the magistrate. A.T. was committed for trial on 28October 2013. The first hearing was held on 13 February 2014 and A.T. was ordered to pay a fine of 2,000euros (EUR) on 1 October 2015.
4.The third assault by A.T., against the applicant and her son and the murder by A.T. of his son
36.It can be seen from the case file that on 18 November 2013 A.T. received notice of his committal for trial before the magistrate’s court on 19May 2014 for inflicting bodily harm on the applicant in August 2012.
37.In the night of 25 November 2013 the applicant sought the intervention of the police in connection with a dispute with her husband.
38.The police made the following findings in their report: on their arrival they saw that the bedroom door had been broken down and that the floor was strewn with bottles of alcohol. The applicant had stated that her husband was under the influence of alcohol and that she had decided to call for help because she thought he needed a doctor. She told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her allegations. The applicant’s son had stated that his father had not been violent towards him. Neither the applicant nor her son had shown any traces of violence.
39.A.T. was taken to hospital in a state of intoxication. In the night he left the hospital and went to an amusement arcade.
40.While he was walking along the street he was arrested by the police for an identity check at 2.25 a.m.
41.The police report shows that A.T. was in a state of intoxication and had difficulty keeping his balance and that the police had let him go after stopping and fining him.
42.At 5 a.m. A.T. entered the family flat armed with a 12 cm kitchen knife with the intention of assaulting the applicant. The applicant’s son attempted to stop him and was stabbed three times. He died of his wounds. The applicant tried to escape but A.T. succeeded in catching up with her in the street, where he stabbed her several times in the chest.
5.Criminal proceedings instituted against A.T. for grievous bodily harm
43.On 1 October 2015 A.T. was convicted by the magistrate’s court of inflicting grievous bodily harm on the applicant, on account of the injuries he had inflicted on her during the incident in August 2012, and sentenced to a fine of EUR 2,000.
6.Criminal proceedings instituted against A.T. for the murder of his son, the attempted murder of the applicant and ill-treatment of the applicant
44.On an unspecified date in November 2013 the investigation into acts of ill-treatment was reopened.
45.A.T. asked to be tried in accordance with the summary procedure (giudizio abbreviato).
46.On 8 January 2015 A.T. was sentenced to life imprisonment by the Udine preliminary hearings judge for the murder of his son and the attempted murder of his wife and for the offences of ill-treatment of his wife and daughter and unauthorised possession of a prohibited weapon. He was also ordered to pay the applicant, who had applied to join the proceedings as a civil party, EUR 400,000 in damages.
47.With regard to the ill-treatment, the preliminary hearings judge, after hearing witnesses and the applicant’s daughter, considered that the applicant and her children had been living in a climate of violence. He found that A.T. had been habitually violent and held that, apart from the daily harassment suffered by the applicant, there had been four violent episodes. He added that A.T., at his trial, had confessed to experiencing feelings of hatred towards his wife. According to the preliminary hearings judge, the events of 25November2013 were the consequence of an attempt by the applicant to get away from A.T.
48.On 22 May 2015 A.T. appealed against the judgment.
It can be seen from the file that in a judgment of 26 February 2016 the judgment was upheld by the Court of Appeal. However, neither of the parties annexed the judgment to their observations.

5.The applicant was born in 2001 and lives in St Petersburg.
A.The applicant’s ill-treatment at a public nursery school and his parents’ complaints to various local authorities
6.In August 2004 the applicant started attending public pre-school educational institution no. 42 (“the nursery school”). His teachers were MsK., Ms P. and an assistant teacher, MsCh.
7.In the spring of 2005 the applicant’s parents noticed a change in his behaviour. In particular, he became nervous and unwilling to go to nursery school. During the summer holidays of that year the applicant’s physiological state significantly ameliorated and his mood returned to normal. However, as soon as he resumed nursery school in September 2005 he again became nervous and frightened of the dark and noises. He resisted going to school and refused to discuss school with his parents or sisters.
8.On 7 November 2005, when picking him up from the nursery school, the applicant’s mother noticed that his eyes were twitching and that he had a bruise on his left temple. The applicant complained that his neck and eyes were aching. The teacher, Ms P., told the applicant’s mother that the children had been given eye drops containing an antibiotic. According to her, one of the children in the class had an eye infection and it was necessary to take preventive measures against its spreading among the children.
9.On 8 November 2005 the applicant was examined by an ophthalmologist, who noted a bruise on his temple. She found no symptoms of any eye infection or disease. She recommended a consultation with a neurologist in order to verify whether the eye tics could have neurological causes.
10.On the same day the applicant started to display mouth tics.
11.On 14 November 2005 the applicant’s mother lodged a complaint with the local department of the Federal Authority for Consumer Protection and the Supervision of Public Well-being. She complained that the teachers at nursery school no. 42 had administered eye treatment to her son without her consent and had used physical force against him. Her son had developed nervous tics as a result.
12.On 15 November 2005 the applicant was examined by a neurologist and was diagnosed with hyperkinesia (a state of excessive restlessness which is manifested in a wide variety of disorders that affect the ability to control motor movement and which is mainly psychological in nature).
13.On 16 November 2005 the applicant’s mother complained to the local department of education about the incident of 7 November 2005 and asked that the applicant be transferred to another nursery school.
14.By a letter of 23 November 2005 the local department of the Federal Authority for Consumer Protection and the Supervision of Public Well‑being informed the applicant’s mother that the director of nursery school no.42 had been disciplined for breaching sanitary standards.
15.By a letter of 29 November 2005 the local department of education replied to the applicant’s mother, stating that the facts described in her complaint had been confirmed in part and that the director of the nursery school, teachers MsK. and Ms P. and medical nurse Ms Pt. had been disciplined. It had been decided to transfer the applicant to another public nursery school.
16.When the applicant learnt that he would not have to return to nursery school no. 42, he was happy and told his parents that he had been mistreated by MsK. and Ms P. In particular, he had been punished for a failure to sleep during the afternoon sleeping hours. Sometimes he had been made to lie on a folding bed in the toilets. The lights in the toilets had been switched off and the teachers had told him that he would be eaten by rats. The applicant had felt very frightened as he had once seen a rat in the toilets. On other occasions he had been forced to stand in the entrance hall, barefoot and wearing only his underpants, for the entire duration of the sleeping hours. He had been very cold. The applicant had also on occasions been hit on the back with a fist. On one occasion the teachers had taped his mouth shut with sellotape. After he had started to suffocate, he had tried to remove the sellotape. The teachers had then taped his hands behind his back. Some other children had also been subjected to similar punishments. They had been threatened that if they complained to their parents about the teachers they would be punished.
17.The applicant also told his parents in detail about what had happened on 7 November 2005. He had been given eye drops twice. In the morning Ms K. had bent his head back with such force that his neck had ached. In the afternoon, she had sat on the applicant’s legs and tried to force his eyes open with her hands. Frightened, the applicant had resisted. Ms K. had then slapped his face.
18.On 23 November 2005 the applicant’s father was questioned by the police in connection with a complaint lodged by Ms K. and Ms Pt. that he had assaulted them. The applicant’s father stated to the police that his conflict with Ms K. and Ms Pt. had arisen because his four-year-old son had been mistreated by the staff of the nursery school. He denied assaulting them. The criminal proceedings against the applicant’s father were discontinued after one of the nursery school staff members stated in writing that MsPt. had attempted to convince her and other staff members to falsely accuse the applicant’s father of assaulting Ms K. and Ms Pt.
19.On 21 December 2005 the local department of education informed the applicant’s mother that the director of nursery school no. 42 had been dismissed.
20.By a letter of 13 March 2006 the local department of education informed the applicant’s father that an internal inquiry had established that teachers Ms K. and Ms P. had made some of the children sleep outside the sleeping quarters. That fact, although denied by Ms K. and Ms P., had been confirmed by assistant teacher Ms Ch. and by the grandmother of one of the children. Ms K. and Ms P. had been disciplined.
21.By a letter of 17 July 2006 the Vice-Governor of St Petersburg informed the applicant’s mother that medical nurse Ms Pt. had been disciplined.
B.Civil proceedings
22.On 21 February 2006 the applicant’s mother sued nursery school no.42 for compensation for the damage sustained by the applicant to his health.
23.On 30 June 2006 the Kirovskiy District Court of St Petersburg approved a friendly settlement agreement between the applicant’s mother and nursery school no. 42. Under that agreement, the nursery school was to pay the applicant’s mother 5,000 Russian roubles (RUB) (approximately 150euros (EUR)) in compensation for medical expenses.
C.Criminal investigation into the allegations of ill-treatment
1.Pre-investigation inquiry
24.On 29 September 2006 the applicant’s mother complained to the Kirovskiy district prosecutor’s office about her son’s ill-treatment by the staff of nursery school no. 42. She described the incident of 7 November 2005, complained that during the sleeping hours her son had been occasionally locked in the toilets with the lights off, and submitted that as a result of such treatment he had developed nervous tics. She also submitted that she had not received an adequate response to her complaints to the local department of education and the local department of the Federal Authority for Consumer Protection and the Supervision of Public Well-being.
25.By letter of 27 October 2006 the Kirovskiy district prosecutor’s office informed the applicant’s mother that an inquiry had been opened into her allegations of ill-treatment. It also noted that the local department of education had failed in its obligation under section 9 of the Minors Act to inform the district prosecutor’s office of the applicant’s ill-treatment (see paragraph134 below).
26.On 2 November 2006 the investigator questioned several of the parents of the children who had attended nursery school no. 42 with the applicant. Some of them stated that their children had never complained about being mistreated by teachers Ms P. or Ms K. Others stated that their children had told them about being locked in the entrance hall or in the toilets, where they had on occasion seen rats. They also confirmed that on 7November 2005 eye drops had been given to the children without the parents’ consent.
27.Assistant teacher Ms Ch. stated to the investigator that on 7November 2005 two children had shown symptoms of eye infection. Teacher Ms K. had consulted medical nurse Ms Pt., who had decided to give eye drops to all children in order to prevent the spread of the infection. The parents’ consent had not been obtained. The drops had been given by the teacher herself rather than by the medical nurse. Ms K. had used physical force against those children who had resisted. Many of them had been frightened and had cried. Immediately after that the applicant’s eyes had started twitching. Ms Ch. also stated that both Ms K. and Ms P. had many times made certain children, including the applicant, sleep on folding beds in the toilets or in the entrance hall. Ms K. and Ms P. had often shouted at the children and had punished them by sending them to the toilets. She had once seen a child tied with string to his chair.
28.The investigator also questioned Ms K., who denied mistreating the applicant or other children. She stated that on 7November 2005 the children had been given eye drops by the medical nurse. The children had submitted to the treatment without any resistance or stress. No physical force had been used against the applicant or other children. The applicant had already had nervous tics before 7November 2005.
29.On an unspecified date at the beginning of November 2006 the applicant was questioned by the investigator. The applicant’s mother and a psychologist were present during the questioning. The applicant described the incident of 7 November 2005. He also stated that he and some other children had often been made to sleep on a folding bed in the entrance hall or in the toilets with the lights turned off or left standing in the entrance hall with few clothes on. They had been frightened and cold.
30.On 8 November 2006 the Kirovskiy district prosecutor’s office refused to open a criminal investigation against the teachers of nursery school no. 42, finding no evidence of a criminal offence. The applicant’s parents were not given a copy of that decision.
31.On 12 January 2007 the Kirovskiy district prosecutor’s office cancelled its decision of 8 November 2006 and resumed the pre‑investigation inquiry.
32.The investigator then questioned Ms P. and medical nurse MsPt., who gave the same testimony as Ms K.
33.During the following year the Kirovskiy district prosecutor’s office issued two more decisions (on 22 January and 6 July 2007 respectively) refusing to open a criminal investigation against the teachers of nursery school no. 42 on the ground that there was no evidence of a criminal offence having been committed.
34.The applicant’s mother challenged those decisions before the Kirovskiy District Court. However, before the District Court could examine her complaints against the decisions, the Kirovskiy district prosecutor’s office annulled them (on 20 June and 24 December 2007 respectively) and resumed the pre-investigation inquiry. No investigative measures were performed during this one-year period.
35.On 27 September 2007 the applicant’s medical documents were examined by a child psychiatrist at the request of the applicant’s mother. The psychiatrist found that before November 2005 the applicant had not suffered from any neurological or psychiatric disorders. He had, however, on occasions suffered allergic reactions. The psychiatrist further noted that in 2005 the applicant had been subjected to a prolonged, psychologically traumatic experience at the nursery school. Against the background of that prolonged, traumatic experience, the incident of 7 November 2005 involving the use of violence had served as a trigger for his present neurological disorder. An allergic reaction to the eye drops could have also contributed to the development of the disorder. The psychiatrist concluded that there had been a causal link between the traumatic experience suffered by the applicant in the nursery school from September 2005 to November 2005 and his persistent neurological disorder.
36.On 24 December 2007 the Kirovskiy district prosecutor’s office noted that the pre-investigation inquiry was incomplete and that it was necessary to question the children who had attended the nursery school with the applicant and their parents, to obtain an expert opinion on the contra‑indications and side-effects of the eye drops given to the children, and to question other teachers at the nursery school.
37.On 17 January 2008 the case was transferred to the Kirovskiy district police department for further pre-investigation inquiry.
38.In February 2008 the investigator questioned the parents of some of the children who had attended the nursery school with the applicant. They stated that they did not have any complaints against teachers Ms P. and MsK. None of them gave the investigator permission to question their children.
39.The investigator also questioned one of the teachers at nursery school no.42. The teacher stated that she could not give any useful information.
40.On 29 February 2008 the Kirovskiy district police department refused to open a criminal investigation against Ms P. and Ms K., having found no evidence of a criminal offence. The applicant’s parents were informed about that decision on 4 May 2008 and received a copy of it on an unspecified later date.
41.On 23 May 2008, after being criticised by the St Petersburg prosecutor’s office for delays in the conduct of the pre-investigation inquiry and for its ineffectiveness, the Kirovskiy district police department cancelled the decision of 29February 2008 and resumed the pre‑investigation inquiry.
42.On 11 June 2008, in reply to a complaint by the applicant’s mother, the St Petersburg prosecutor’s office again criticised the Kirovskiy district prosecutor’s office for delays in the conduct of the pre-investigation inquiry and for its ineffectiveness.
43.On 26 June 2008 the Kirovskiy district police department informed the staff of nursery school no. 42 that criminal proceedings into the applicant’s allegations of ill-treatment would not be opened because the prosecution had become time-barred.
44.On 30 June 2008 the Kirovskiy district police department refused to open a criminal investigation into the allegations of ill-treatment, finding no evidence of a criminal offence. On 4 July 2008 the Kirovskiy district prosecutor’s office quashed that decision and ordered a further inquiry.
45.On 11 July 2008 the Kirovskiy district police department refused to open a criminal investigation against Ms K. It found that, although there was evidence that Ms K.’s actions amounted to cruel treatment of minors, an offence under Article 156 of the Criminal Code, the criminal proceedings had become time-barred.
46.On 29 July 2008 the St Petersburg prosecutor’s office quashed the decision of 11 July 2008, finding that the inquiry had been incomplete. It noted that it was necessary to question the children who had attended the nursery school with the applicant and with their parents; to establish the seriousness of the damage sustained by the applicant to his health; to obtain and analyse the documents regulating the actions of the staff of public nursery schools; and to investigate Ms P.’s actions.
47.On 9 August 2008 the investigator questioned the father of a child who had attended the nursery school with the applicant. He stated that his son had never complained of being ill-treated by the nursery school teachers.
48.On 11 August and then again on 11 September 2008 the Kirovskiy district police department refused to open a criminal investigation against MsK. on the ground that there was no evidence of a criminal offence having been committed. Those decisions were cancelled on unspecified dates.
49.In reply to new complaints lodged by the applicant’s mother, on 21November 2008 the St Petersburg prosecutor’s office again criticised the Kirovskiy district prosecutor’s office for the delays in the conduct of the pre-investigation inquiry and for its ineffectiveness.
50.On 1 December 2008 the investigator questioned the mother of another child who had attended the nursery school with the applicant. She stated that her daughter had never been mistreated by the staff of the nursery school.
2.Investigation
51.On 19 January 2009 the Kirovskiy district police department opened a criminal investigation against Ms K. and Ms P.
52.On 4 March 2009 the applicant was granted the procedural status of victim. The applicant’s mother was recognised as his representative.
(a)Evidence collected during the investigation
53.In the course of the criminal investigation, which lasted at least until December 2014, the police department collected the following evidence.
(i)Statements by the applicant
54.On 4 March 2009 the applicant was questioned by the investigator in the presence of his counsel, his mother and a teacher. The applicant stated that MsK. and Ms P. had often punished him and some other children. In particular, on many occasions they had made him sleep in the toilets and had threatened that he would be eaten by rats. Ms K. had once taped his mouth and hands with sellotape. She had also slapped him on the face when he had refused to open his eyes to receive eye drops. On another occasion Ms K. had splashed paint over his friend’s face because she had not liked his drawings. The applicant also stated that MsK. and Ms P. had forbidden him from telling his parents about those punishments.
55.On 24 March 2009 the applicant was taken by the investigator to nursery school no.42, where he repeated his previous statements. In particular, he showed the investigator the spot in the toilets where his folding bed had been placed and the place in the entrance hall where he and other children had been forced to stand wearing only their underwear and T‑shirts and keeping their arms up and apart during the entire duration of the sleeping hours. He further showed the investigator where and how he had been bound with sellotape and where and how he had been given eye drops. He also showed the investigator a closet in which he had been locked in the dark. Lastly, he told the investigator that if he did not sleep during the sleeping hours Ms K. and Ms P. would hold his head against the bed until it started to ache. The applicant’s lawyer, the applicant’s mother, a psychologist and a teacher were present during the questioning.
56.On 9 June 2009 the applicant was questioned again. He repeated his previous statements. He also added that Ms K. had hit him on the back.
(ii)Statements by the suspects
57.Ms P. was questioned by the investigator on 6 February and 21May 2009, 23August 2011 and 13 March 2014. She initially cited her right to remain silent and refused to testify. She then denied ill-treating the applicant or other children. She stated that the applicant had had nervous tics since September 2005. During the last round of questioning she asked that the criminal proceedings be discontinued as time-barred.
58.Ms K. was questioned on 5 February and 22 June 2009 and 13March 2014. She also initially refused to testify. Shethen denied ill‑treating the applicant or other children. She stated that the applicant had had nervous tics since the summer of 2005 and that assistant teacher Ms Ch. had given false testimony against her in revenge for critical remarks she had made in respect of MsCh.’s unsatisfactory work. During the last round of questioning she again refused to testify and asked that the criminal proceedings be discontinued as time-barred.
(iii)Witness statements
59.On 10 April 2009 medical nurse Ms Pt. was questioned. She stated that she had been the one who had administered eye drops to the children on 7November 2005 because one of them had had an eye infection. When she had learned from the applicant’s mother that the applicant had eye tics, she had talked to Ms K. and Ms P., who had affirmed that the applicant had had nervous tics before 7 November 2005. She had never seen Ms K. and MsP. mistreating the children. However, when questioned on 24October 2011 and 24 July 2012 Ms Pt. stated that she had lied during the previous rounds of questioning about having given the eye drops to the children on 7November 2005. In fact the eye drops had been given by Ms K. without her (that is to say MsPt.’s) permission. She had lied about that fact because she had had felt sorry for Ms K. and had not wanted her to be punished.
60.On 19 June 2009 and 21 October 2010 assistant teacher Ms Ch. was questioned. She stated that on 7 November 2005 Ms K. had given eye drops to the children on the advice of the medical nurse. Ms K. had used physical force against those children who had resisted. Many of them had been frightened and had cried. Immediately after that the applicant’s eyes had started twitching. Ms Ch. also stated that on many occasions she had seen Ms K. and Ms P. make the applicant and some other children sleep on folding beds in the toilets or in the entrance hall. Ms K. and Ms P. had often shouted at the children and had punished them by locking them up in the toilets. She had once seen a child tied with string to his chair. She added that she had never talked to the applicant’s parents except at the nursery school.
61.On 30 June 2009, 24 and 30 August 2011, and 12 and 13 March 2014 the investigator held confrontations between MsCh. and MsP., between Ms Ch. and Ms K., and between MsPt. and MsCh. They all reiterated their previous statements.
62.In April and May 2009, October and November 2011 and July 2012 the investigator questioned six teachers from nursery school no. 42. They stated that they had never seen Ms K. or Ms P. mistreating the children. Some of them also stated that the applicant had already had nervous tics before the incident of 7November 2005. One of them stated that assistant teacher MsCh. had sometimes taken the applicant home in the evenings because she lived in the same block of flats as the applicant. MsCh. had often shouted at the children in the nursery school and the children had been afraid of her.
63.On 21 September 2009 the investigator questioned the former director of nursery school no. 42. She stated that Ms K. and Ms P. had been competent and affectionate teachers who had been appreciated by the children and their parents. She had never received any complaints about them.
64.On 12 December 2011 and 16 July 2012 the investigator questioned the then director of nursery school no. 42, who had taken up that position in December 2005. She gave positive references for Ms P. and Ms K. She stated that she had never seen them mistreating the children or received any complaints from the parents in respect of her.
65.In April, May and September 2009, September and November 2011, and July 2012 the investigator questioned the parents of several children who had attended the nursery school with the applicant. Most of them stated that their children had never complained of having been mistreated by MsK. or MsP. One of them stated that her son had on occasions been punished by the teachers; in particular he had been made to sleep outside the sleeping quarters, in the changing room. Her son had also told her that he had seen a rat in the toilets. She had, moreover, seen some children carrying heavy folding beds from one place to another upon the instruction of the teachers. Lastly, she stated that her son had told her on 7 November 2005 that Ms K. had used force against the applicant (who had resisted and cried) when administering eye drops to him. Another parent stated that Ms K. had locked her son up in the toilets on two occasions and had once made him sleep outside the sleeping quarters, near the toilets. Another parent stated that her daughter had told her about the applicant and another boy being made to sleep separately from the others. She however did not know the details.
66.Between 16 November and 2 December 2011 the investigator questioned four of the children who had attended the nursery school with the applicant. They all stated that Ms K. and Ms P. had been kind to them and had never mistreated them or other children.
67.The applicant’s mother was questioned on 10 March and 9 April 2009 and on 14 October 2010. She described the applicant’s change in behaviour and mood after he had started to attend nursery school. She described the incident of 7 November 2005 and her son’s subsequent development of nervous tics. She also related a conversation she had had with her son during which he had for the first time told her about being mistreated by Ms K. and Ms P. She also stated that her son continued to suffer from nervous tics and to undergo treatment for them. Lastly, she told the investigator that although Ms Ch.’s sister was her neighbour she did not have any friendly relationship with her.
68.On 24 November 2011 and 28 February 2014 the applicant’s father was questioned. He made similar submissions as the applicant’s mother.
69.On 7 December 2011 and 28 February 2014 the investigator held confrontations between the applicant’s mother and one of those teachers at the nursery school who had already been questioned in November 2011. They both reiterated their previous submissions.
70.On 13 December 2011 and 12 March 2014 the investigator held confrontations between Ms Ch. and one of the teachers of the nursery school. MsCh. confirmed her previous submissions, while the teacher stated that Ms P. and MsK. had never mistreated the children, that Ms Ch. had shouted at the children, that Ms. Ch. had sometimes babysat the applicant and that the applicant had had nervous tics before November 2005.
71.On 17 March 2014 the investigator questioned the applicant’s neighbour who lived on the same landing, who stated that the applicant’s tics had started in November 2005. She also stated that the applicant’s parents were on good terms with Ms Ch.’s sister but that she had not noticed any kind of relationship between the applicant’s parents and MsCh. herself.
72.On 12 March 2014 the applicant’s mother produced material from the civil case file and asked that it be included in the criminal case file. In particular, she asked for the inclusion of the written statement by one of the staff members of nursery school no. 42 (see paragraph 18 above) that medical nurse Ms Pt. had attempted to convince her and other staff members to give false testimony against the applicant’s family. On 17March 2014 the investigator refused the requests, finding that the documents from the civil case file were irrelevant to the criminal case.
(iv)Expert opinions
73.On 10 April 2009 a panel of psychiatrists and psychologists examined the applicant and issued an expert opinion. They found that the applicant continued to suffer from nervous tics. Given that such tics could have had both organic and neurological causes, it was impossible to establish a causal link between the events of November 2005 and the applicant’s current neurological disorder. Given the applicant’s age at the material time and the time that had passed since the events in question, the applicant could not accurately recall those events. He was therefore psychologically incapable of testifying within the framework of the criminal proceedings.
74.On 9 October 2009 a panel of medical experts examined the applicant’s medical records and issued an expert opinion. They noted that his nervous tics could have had both organic and neurological causes. It was therefore impossible to establish a causal link between the events of September-November 2005 and the applicant’s current neurologic disorder.
75.On 14 January 2011 a panel of experts in psychiatry and psychology examined the applicant and analysed his medical records. When interviewed by the experts, the applicant stated that he wanted to forget about what had happened to him in the nursery school but he was constantly being reminded of those events because of the investigation. He affirmed that his tics were aggravated each time that he remembered, or had to discuss, the treatment to which he had been subjected in the nursery school. The experts confirmed that the aggravation of the tics was indeed related to the applicant’s memories of the nursery school. The experts found that before November 2005 the applicant had not suffered from any psychiatric disorder. There had been a causal link between his nervous disorder and the prolonged, psychologically traumatic experience to which he had been subjected in the nursery school from September to November 2005. Many years later he still continued to suffer from nervous tics. He had therefore suffered damage of medium severity to his health. The experts further noted that the applicant did not suffer from any memory or intellectual disorder and that his intellectual development corresponded to his age; he was therefore capable of understanding and relating the relevant events accurately. However, his ability to remember the events had decreased with time. If in 2006 he had been still capable of remembering the events in question accurately, with the passage of time his memory of the events had become unrealistic and distorted. His statements – both in 2009 and at that current moment – could not therefore be relied upon in the criminal proceedings. Moreover, given that each discussion of the relevant events revived his memories of the traumatic experience and prevented him from moving on, his further participation in investigative measures was inadvisable.
76.On 6 April and 2 November 2011 the investigator questioned a psychiatric expert chosen by the applicant’s mother. The expert stated that she disagreed in part with the expert opinion of 14January 2011. In her opinion, the applicant had suffered severe damage (rather than damage of medium severity) to his health.
77.On 25 and 26 October and 23 December 2011 and 28 February 2014 the investigator questioned some of the experts who had participated in the expert examinations mentioned above. They confirmed the findings contained in the respective expert opinions.
(v)Other medical evidence
78.On 11 March 2009 the psychologist treating the applicant stated to the investigator that the applicant had been suffering from a neurological disorder since November 2005. His health had improved as a result of the treatment.
79.On 17 July 2009 the applicant’s mother submitted to the investigator a copy of a medical certificate showing that the applicant did not have any anomalies in the brain. She argued that the certificate proved that the applicant’s neurological disorder was psychological rather than organic in nature.
80.On 11 November 2009 the investigator questioned a child psychiatrist who, after examining the applicant’s medical records, stated that there was a causal link between the traumatic experience suffered by the applicant in the nursery school from September until November 2005 and his persistent neurological disorder.
81.On 22 April 2010 a psychiatrist and a psychologist analysed the applicant’s medical records at the applicant’s mother’s request. They found that in the absence of any anomalies in the applicant’s brain, his neurological disorder could not be organic in nature. It was highly probable that they had been caused by psychological trauma. Given that the nervous tics had appeared for the first time in November 2005, there was a causal link between the ill-treatment in the nursery school to which the applicant had been subjected from September until November 2005 and his nervous tics. Finally, the experts noted that the applicant was of normal intellectual development and did not suffer from any memory or intellectual disorders. His statements to the investigator had been detailed and consistent. There were therefore no reasons to consider that the applicant could not remember the relevant events accurately and was psychologically incapable of testifying within the framework of the criminal proceedings.
(b)The course of the investigation
82.The investigation was suspended from 2 until 16September, from 23until 30 September, from 9 until 12 October, from 15October until 5November and from 6 until 11 November 2009; from 15September until 11 October, and from 22 October until 28 November 2010; from 15December 2010 until 11 January 2011, from 15 January until 28 March, from 28 until 29 July, from 16June until 4August, and from 5 until 6September 2011; and from 30 December 2011 until 9July 2012. The decisions to suspend the investigation were taken by the investigator on the basis of medical certificates showing that Ms K. was on maternity leave and could not therefore participate in investigative measures. All those decisions were annulled by the investigators’ superior as unlawful.
83.On 17 July 2009 the Kirovskiy district police department discontinued the criminal proceedings against Ms K. and Ms. P., finding that their actions in the period from September to November 2005 amounted to battery or other violent acts causing physical pain and cruel treatment of minors, offences under Article 116 § 1 and 156 § 1 of the Criminal Code. The prosecution of those offences was time-barred. There was insufficient evidence of premeditated infliction of damage of medium severity to health, an offence under Article 112 of the Criminal Code. Moreover, according to the experts, the applicant could not remember the relevant events accurately and was psychologically incapable of testifying within the framework of the criminal proceedings.
84.On 27 July 2009 the Kirovskiy district prosecutor’s office quashed the decision of 17 July 2009, finding that the investigation was incomplete, and ordered further investigative measures.
85.On 29 August 2009 the applicant’s mother complained to the Kirovskiy district prosecutor’s office that, despite her having lodged numerous requests, she had still not been given copies of the decisions of 17and 27 July 2009.
86.On 11 November 2009 the Kirovskiy district police department discontinued the criminal proceedings against Ms K. and Ms. P. for the same reasons as those set out in the decision of 17 July 2009.
87.On 25 June 2010 the Kirovskiy District Court found that the decision of 11 November 2009 had been unlawful because the findings contained in that decision had been contradictory. It held, in particular, that in order to resolve those contradictions it was necessary to perform a new psychiatric examination of the applicant.
88.On 19 July 2010 the Kirovskiy district prosecutor’s office quashed the decision of 11 November 2009 and ordered further investigative measures.
89.By a letter of 26 August 2010 the St Petersburg prosecutor’s office criticised the Kirovskiy district prosecutor’s office for the delays and the ineffectiveness of the investigation. On the same day the Kirovskiy district prosecutor’s office gave instructions to the Kirovskiy district police department as regards further investigative measures to be performed.
90.On 5 December 2011 Ms K. asked the investigator to discontinue the proceedings. She was suspected of inflicting damage to health of medium severity, an offence under Article 112 of the Criminal Code. The statutory limitation period for that offence was six years. The proceedings had therefore become time-barred. On the same day the prosecutor refused MsK.’s request, finding that the previous expert examinations had yielded contradictory results. It was therefore necessary for a new expert examination to be performed in order to establish the severity of the damage sustained to the health of the applicant. The investigation could not therefore be discontinued.
91.On 15 December 2011 Ms P. also asked the investigator to discontinue investigations as time-barred. On the same day the prosecutor refused the request for the same reasons as those for which Ms K.’s similar request had been refused.
92.On 8 February 2012 the Kirovskiy District Court examined MsK.’s complaint against the decision of 5 December 2011 and dismissed it. It found that it was necessary for an additional expert examination to be performed in order to establish the severity of the damage sustained by the applicant to his health. If experts were to find that the applicant had sustained severe damage to his health, the limitation period would be ten years and the proceedings would not have become time-barred.
93.On 13 July 2012 Ms K. again asked the investigator to discontinue the investigation because the proceedings had become time-barred. On the same day the investigator refused the request for the same reasons as those above.
94.On 7 August 2012 the investigator found that after 16 June 2011 the investigation had been extended in breach of the procedure and time-limits provided by law. The investigative measures carried out between 16 June 2011 and 9 July 2012 had therefore been unlawful and all evidence collected during that period was inadmissible.
95.On 10 August 2012 the Kirovskiy district police department discontinued the criminal proceedings against Ms K. and Ms P., finding that there was insufficient evidence of a criminal offence under Article 112 of the Criminal Code. It noted that only four witnesses had confirmed that ill‑treatment had occurred: the applicant, the applicant’s mother, Ms Ch. and Ms Pt. (in her statements of 24 July 2012). The experts had found that, because of his young age at the material time, the applicant’s description of the events was unreliable and his further participation in investigative measures was inadvisable. There were therefore doubts about the credibility of his statements. The applicant’s mother’s statements were equally unreliable because she had learned about the events from the applicant. MsPt.’s statements of 24 July 2012 contradicted her previous statements and statements by other witnesses. They could not therefore be considered reliable either. The expert opinions establishing a causal link between the alleged ill-treatment and the applicant’s neurological disorder could not serve as evidence of ill-treatment because it was not within the experts’ remit to establish whether or not ill-treatment had occurred. The expert opinions had been made on the assumption that such ill-treatment had indeed taken place. Ms Ch.’s statements therefore constituted the only evidence of such ill-treatment. The investigator considered that those statements were insufficient to prove that ill-treatment had indeed taken place. The investigator further noted that all evidence collected between 16June 2011 and 9 July 2012 had been declared inadmissible. Given that that evidence did not contain any proof of ill-treatment, it was not necessary to collect it again.
96.The applicant’s parents learned about that decision on 24 August 2012 and received a copy of it on 27 August 2012.
97.On 9 October 2012 the applicant’s mother challenged the Kirovskiy district police department’s decision of 10August 2012 to discontinue the criminal proceedings before the Kirovskiy District Court against Ms K. and Ms P. On 23 October 2012 the applicant’s mother also challenged that decision before the StPetersburg prosecutor’s office.
98.On 23 November 2012 the St Petersburg prosecutor’s office found that the decision of 10August 2012 had been lawful.
99.On 2 August 2013 the Kirovskiy District Court rejected the complaint lodged by the applicant’s mother on 9 October 2012. It found that the investigation had been thorough and effective. The breaches of procedure committed during the investigation – such as the failure to promptly notify the applicant’s mother about certain procedural decisions taken by the investigator or the investigator’s failure to comply with the prosecutor’s instructions – were insufficiently serious as to warrant the quashing of the decision of 10August 2012.
100.On 24 December 2013 the St Petersburg City Court quashed the decision of 2 August 2013 on appeal and found that the decision of 10August 2012 to discontinue the investigation had been unlawful. It found that the investigation had been ineffective. In particular, given that all evidence collected between 16 June 2011 and 9 July 2012 had been declared inadmissible, it was necessary to undertake anew the investigative measures carried out during that period and to carry out further investigative measures. The court also noted that although, according to the experts, the statements that the applicant had given after 2006 were unreliable, the statements that he had given before then could be taken into account in the assessment of evidence. The City Court also criticised the District Court for the delays in the examination of the complaint lodged by the applicant’s mother on 9October 2012 and the resulting excessive length of the judicial proceedings.
101.On 5 March 2014 the applicant’s mother applied to the investigator, asking that MsP. and Ms K. be charged with the premeditated infliction of severe damage to health. The investigator refused her request, finding that there was no evidence of the premeditated infliction of severe damage to health.
102.On 18 March 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K., finding that their actions did not amount to a criminal offence under Article 112 of the Criminal Code.
103.On 20 March 2014 the applicant’s mother challenged that decision before the St Petersburg prosecutor’s office, submitting that the investigation had been incomplete. On 18 April 2014 the St Petersburg prosecutor’s office found that the decision of 18 March 2014 to discontinue the criminal proceedings had been lawful.
104.On 23 May 2014 the Kirovskiy District Court held that the decision of 18 March 2014 had been unlawful, finding that the investigator’s assessment of evidence had been selective and that he had disregarded some facts and evidence (such as a bruise on the applicant’s face), some witness statements, and expert opinions. It also found that the investigation had been excessively long.
105.On 9 June 2014 the Kirovskiy district police department annulled the decision of 18 March 2014 and resumed the investigation. After two written requests for a copy of that decision, the applicant eventually received it on 30 June 2014.
106.On 19 July 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K. The investigator found that although they had indeed given eye drops to the applicant, thereby causing damage of medium severity to his health, there was no evidence of intent to cause such damage. The infliction of damage to health had not therefore been intentional or premeditated. The police department further added that although the applicant had indeed had a bruise on his face, it was not possible to establish how he had received that bruise. The applicant’s testimony was unreliable due to his young age and mental development at the time of his giving it, while the allegations of ill‑treatment made by the applicant’s mother and by Ms Ch. had been countered by the statements of all other witnesses – namely the staff of the nursery school and the parents of other children – that Ms P. and Ms K. had never mistreated the applicant or other children. The investigator concluded that the evidence collected was contradictory and that it was not possible to resolve that contradiction. Any further investigative measures would be useless. Given that suspects should benefit from any doubt, it could not be found that Ms P.’s and Ms K.’s actions amounted to a criminal offence under Article 112 of the Criminal Code.
107.On 29 August 2014 the St Petersburg prosecutor’s office annulled the decision of 19 July 2014, finding that the investigation had been ineffective and incomplete. In particular, the criminal proceedings had been unlawfully discontinued even though it had been established that Ms P. and Ms K. had mistreated the applicant and had caused damage to his health.
108.On 12 September 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K. for the same reasons as those given in the decision of 19 July 2014.
109.On 15 October 2014 the St Petersburg prosecutor’s office annulled the decision of 12 September 2014, finding that the investigator had not complied with the prosecutor’s decision of 29 August 2014.
110.On 10 November 2014 the Kirovskiy district police department discontinued the criminal proceedings against Ms P. and Ms K., repeating verbatim the decision of 12 September 2014.
111.On 4 December 2014 the Kirovskiy district police department again refused to open criminal proceedings against Ms P. and Ms K. under Article156 of the Criminal Code (cruel treatment of minors), finding that the prosecution had become time-barred.
(c)The applicant’s complaints about the ineffectiveness of the investigation
112.The applicant’s mother several times asked the investigator to declare the expert opinions of 10 April 2009 and 9October 2009 inadmissible as evidence. She argued in particular that the panel of experts of 10 April 2009 had not included an expert in child psychiatry. The investigator refused the requests made by the applicant’s mother, finding that the expert opinions of 10 April 2009 and 9October 2009 had been obtained in accordance with the procedure prescribed by law and had contained clear findings.
113.The applicant’s mother lodged numerous complaints about the alleged ineffectiveness of the investigation with the Kirovskiy district police department, the Kirovskiy district prosecutor’s office, the St Petersburg prosecutor’s office, the Prosecutor General and the Kirovskiy and Krasnogvardeyskiy District Courts of St Petersburg. She complained that the investigation had been flawed by delays, in particular on account of the numerous unlawful suspensions of the investigation, and that she had often been denied access to the case file. She also complained that, although sufficient evidence of ill-treatment had been gathered, Ms P. and Ms K. had still not been charged with a criminal offence. She further argued that the applicant had sustained severe damage to his health (rather than damage of medium severity) as a result of the ill-treatment he had suffered. She also challenged the investigator’s refusals to declare the expert opinions of 10April 2009 and 9October 2009 inadmissible as evidence.
114.By letters of 16 and 18 November 2011 the St Petersburg prosecutor’s office informed the applicant’s mother that the investigator and the officials of the Kirovskiy district prosecutor’s office responsible for supervising the case had been disciplined for the delays during the investigation and its ineffectiveness.
115.On 2 December 2011 the Kirovskiy district prosecutor’s office noted that the investigation had been conducted with serious delays and shortcomings. In particular, the investigator had not performed all requisite investigative measures, such as an additional medical examination of the applicant.
116.On 12 January 2012 the Kirovskiy District Court found that it had no authority to assess whether the evidence was sufficient for charges to be brought. It was for the investigator to assess the collected evidence and to decide whether charges were to be brought.
117.On 3 February 2012 the Kirovskiy district prosecutor’s office found that the investigator’s refusals (see paragraph 112 above) to declare the expert opinions of 10 April and 9October 2009 inadmissible as evidence had been lawful.
118.On 7 February 2012 the Kirovskiy District Court found that the rights of the applicant’s mother had indeed been breached by the failure to provide her with copies of the numerous decisions to suspend the investigation. However, given that all of those decisions had been annulled, it was not necessary to examine the applicant’s complaint relating to those decisions. Moreover, given that the decisions had been annulled by the investigator’s superiors, the court concluded that those superiors had exercised effective supervision over the course of the investigation. On 18April 2012 the St Petersburg City Court quashed that decision on appeal for procedural defects.
119.On 13 August 2012 the Kirovskiy District Court found that the investigator had still not organised an additional expert examination of the applicant, even though he had been instructed to do so in August 2010 and again in August 2011. It also found that the applicant’s mother had been unlawfully denied access to some documents in the case file.On 16 October 2012 the St Petersburg City Court quashed that decision on appeal for procedural defects.
120.On 24 August 2012 the Krasnogvardeyskiy District Court of StPetersburg found that the complaints lodged by the applicant’s mother about the delays and the ineffectiveness of the investigation were well‑founded. However, given that on 10 August 2012 the investigation had been discontinued for lack of evidence of a criminal offence, they had to be dismissed. On 15 November 2012 the St Petersburg City Court quashed that decision on appeal. It found that some of the complaints lodged by the applicant’s mother had not been examined, that the decision had been based on certain documents that had not been examined during the hearing and that the court, even though it had found some of the complaints to be well‑founded, had nevertheless dismissed them.
121.On 14 February 2013 the Kirovskiy District Court found that the investigator’s decisions issued between 15September 2010 and 6 October 2011 to suspend the investigation had been unlawful. The rights of the applicant’s mother had, moreover, been breached by the investigator’s failure to inform her about the suspensions of the investigation. Her complaint that the investigator had intentionally delayed the investigation with the aim of rendering the proceedings time-barred was, however, unsubstantiated. The investigation had been discontinued for lack of evidence of a criminal offence rather than on the ground that the proceedings had become time-barred.
122.On 24 April 2013 the Kirovskiy District Court found that the applicant’s mother had been unlawfully denied access to certain documents in the case file. It however rejected the remainder of her complaints relating to the alleged ineffectiveness of the investigation. In particular, the court established that the investigator had not complied with the prosecutor’s instructions as to additional investigative measures to be performed. However, the prosecutor had later confirmed the investigator’s decision to discontinue the investigation, thereby agreeing that it was no longer necessary to comply with his previous instructions and to undertake the investigative measures in question. The investigator’s actions had therefore been lawful. On 6 August 2013 the St Petersburg City Court upheld that decision on appeal, finding it lawful, well-reasoned and justified.
123.On 17 March 2014 the Kirovskiy district police department replied to the applicant’s mother that all necessary investigative measures had been performed and that all relevant facts had been established. It was therefore not necessary to carry out any further investigative measures. On the same day the Kirovskiy district prosecutor’s office also replied to the applicant’s mother that the investigation had been thorough and complete and that there was no need for any further investigative measures.
D.The applicant’s medical documents
124.The applicant is regularly examined by a neurologist. After the initial diagnosis of hyperkinesia on 15 November 2005 (see paragraph 12 above), he was examined by a neurologist on 2 February, 24 April and 10October 2006 and 26 January, 25 April, and 18 and 22 May 2007. He complained of nervous tics, sleeping difficulties, nervousness and fears. The neurologist noted that the symptoms had been caused by a prolonged, psychologically traumatic experience at the nursery school in 2005. The applicant was prescribed treatment.
125.From September 2007 until June 2008 the applicant followed a course of treatment for nervous tics.
126.On 22 October 2008 the applicant’s medical documents were examined by a child psychiatrist, who found that the applicant continued to suffer from a neurological disorder of medium severity.
127.From March until June 2009 the applicant underwent a new course of treatment for nervous tics. He underwent a further course of treatment between January and April 2010.
128.Further medical certificates stated that in 2014 the applicant was still suffering from a neurological disorder and was following treatment for it.
152.PACE Recommendation 1934 (2010) on child abuse in institutions ensuring full protection of the victims provides as follows:
“4. With regard to the cases of child abuse which have recently been uncovered and continue to be uncovered, and the existing standards referring to sexual, physical and emotional abuse of children, the Assembly recommends that the Committee of Ministers ask member states to:
4.1. ensure legislative protection, notably by:
4.1.1. adopting legislation to explicitly prohibit all forms of violence against children: physical and mental violence, injury or abuse (including sexual abuse), neglect or negligent treatment, maltreatment or exploitation, including in childcare institutions, public and private educational institutions, correctional facilities and leisure associations, and thus criminalising any intentional abuse of a child made by a person in a recognised position of trust, authority or influence over the child;
4.1.2. providing for ex officio prosecution in cases of child abuse in any context; ...
4.1.4. ensuring that prescription periods for child abuse offences under civil and criminal law are coherent and appropriate in view of the gravity of the offences and, in any case, do not begin before the victim reaches the age of majority; ...
4.1.8. defining as illegal and excluding certain practices with regard to the punishment of minors in institutions which are contrary to their dignity and rights ...”
153.PACE Resolution 1803 (2011) on Education against violence at school provides as follows:
“17.1.1.penal and/or disciplinary standards should clearly prohibit all acts committed at school which can be qualified as “violent”, including physical or degrading punishment of pupils, violence against pupils by school staff, violence by third persons against pupils on school premises and violent behaviour by pupils against other pupils, school staff or school property ...
17.1.3.all acts of violence should be investigated and recorded and, where an act is of a sufficiently serious nature, it should be reported to the competent law‑enforcement or disciplinary authorities; in this context, appropriate complaints mechanisms should be set up for pupils in education settings”.
154.Recommendation CM/Rec (2009)10 of the Council of Europe Committee of Ministers on integrated national strategies for the protection of children from violence reads as follows:
“The state has an explicit obligation to secure children’s right to protection from all forms of violence, however mild. Appropriate legislative, administrative, social and educational measures should be taken to prohibit all violence against children at all times and in all settings and to render protection to all children within the state’s jurisdiction. Legal defences and authorisations for any form of violence, including for the purposes of correction, discipline or punishment, within or outside families, should be repealed. Prohibition should imperatively cover:
... g. all forms of violence in school;
h.all corporal punishment and all other cruel, inhuman or degrading treatment or punishment of children, both physical and psychological ...”.

6.The applicant was born in 1960 and until his conviction lived in the town of Slantsy in the Leningrad Region.
A.The applicant’s medical background and his conviction
7.In 1991 the applicant sustained a penetrating head injury, which involved the crushing of brain tissue. This trauma caused paralysis of the entire right side of his body, light speech impairment and post-traumatic epilepsy. To reduce the frequency of epileptic seizures the applicant was obliged to take Benzonal.
8.The following year the applicant was examined by a social security medical assessment board (бюро медико-социальной экспертизы) and certified as having the highest-degree disability on the grounds that he had lost the ability to work, to walk without assistance or to look after himself. Those findings were confirmed by the board during routine re-examinations in 1994, 1996, 1998 and 2000, when the applicant was granted life-long disability status.
9.In 2005 the applicant committed a homicide. On 16 April 2007 the Slantsy Town Court found him guilty of murder and sentenced him to seven years’ imprisonment in a highly secure correctional colony. On 15 August 2007 the Leningrad Region Court upheld the sentence on appeal.
B.The applicant’s medical treatment and conditions of his detention
10.On 16 April 2007 the applicant was taken to a police ward in the town of Slantsy.
11.Two days later he was transferred to remand prison no. IZ-47/6 in StPetersburg. On admission to that facility the resident prison doctor conducted a general medical check-up of the applicant and noted his disability. The applicant was allowed to take Benzonal supplied by his wife in order to minimise his suffering from epileptic seizures.
12.In the remand prison the applicant was detained in a normal cell block where he allegedly faced great difficulties in his daily routine owing to the lack of special arrangements, in particular when using the squat toilet and shared dormitory shower, which lacked handrails and non-slip flooring.
13.On 26 September 2007, when the sentence became final, he was transferred to correctional colony no. 7 in the Leningrad Region, where he was also placed in a cell designed for healthy inmates and, allegedly, continued to experience the inconveniences arising from his disability.
14.Having no licence to treat inmates with as strong a medication as Benzonal, the colony’s medical authorities offered the applicant two substitute drugs with similar anticonvulsive effect, but the latter refused, alleging their low efficiency and possible side effects.
15.On 3 March 2008, at his own request, the applicant was sent to Gaaza prison hospital in St Petersburg (“the prison hospital”) for an in‑depth medical examination and treatment. In the hospital he was subjected to various medical tests which showed that his health was stable. On 1 April 2008 the applicant was discharged from the hospital. In the discharge summary the supervising doctor mentioned that the patient was able to look after himself and to walk without assistance.
16.On 10 October 2008 the deputy head of the correctional colony ordered the applicant’s transfer to a special unit for disabled prisoners. According to the Government’s description, this unit had “enhanced housing conditions” and “less strict security regime”. It accommodated only disabled inmates, who were detained in a prison wing located close to the medical unit.
17.The applicant submitted that even after his transfer to the special unit he had not been provided with nursing assistance. Being unable to dress himself or perform hygiene procedures without assistance, he had asked his inmates for help in exchanging valuable prison products such as tea, coffee, sweets and cigarettes.
18.On 1 July 2009 the special medical board, at the request of the penal authorities, issued an advisory report confirming the gravity of the applicant’s disability.
19.On 4 August 2009 the applicant was examined by a medical board composed of the prison hospital management and a neurosurgeon. The doctors noted that the applicant’s health had remained stable, that he was able to look after himself, and that nursing assistance was not required for him. However, due to the gravity of the applicant’s brain condition it was decided to check whether his illness fell within the established list of illnesses warranting early release.
20.Three days later a special medical board confirmed that the applicant’s condition justified his early release.
21.It appears that the applicant remained in the prison hospital until 8September 2009.
22.In the meantime the detention authorities applied for his early release on medical grounds.
23.On 28 August 2009 the Smolninskiy District Court of St Petersburg dismissed their application, citing the gravity of the applicant’s offence, the fact that he had developed paralysis and epilepsy prior to his arrest and that in detention his condition had remained stable. The decision was upheld on appeal by the St Petersburg City Court on 17 November 2009.
24.Between 1 February and 18 March 2010, at his own request, the applicant was admitted to the prison hospital for treatment, and on 16March2010 he was re-examined by a medical board, which confirmed his right to early release on medical grounds.
25.On 10 April 2010 the applicant was transferred to correctional colony no. 4 in the Leningrad Region. He was accommodated in a special unit for disabled prisoners. It appears that the conditions of his detention were similar to those in correctional colony no. 7. The applicant continued to receive Benzonal from his wife and refused to take any substitutes.
26.On 10 June 2010 the Tosnenskiy Town Court dismissed the application for early release on medical grounds, referring to the gravity of the applicant’s offence, the fact that his health status had already been taken into account by the court which sentenced him, and, lastly, to the fact that the applicant’s medical condition had not worsened in detention.

1. The applicant, Mr Slobodan Đurović, is a Montenegrin national who was born in 1954 and is currently serving a prison sentence in Zagreb Prison. He was represented before the Court by Mr R. Mlinarić and Mr K. Vilajtovic, lawyers practising in Zagreb.
2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. On 12 February 2015 the Government of Montenegro were informed of the case and invited to exercise their right to intervene if they wished to do so. On 27 July 2015 the Government of Montenegro informed the Court that they did not wish to exercise their right to intervene in the present case.
The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
5. 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 to the surrounding buildings and nearby parked cars.
6. The police immediately started enquiries into the above events and soon learned that a certain R.M., L.M. and A.M. were implicated and that an unknown person was supposedly aiding them in fleeing the country. It was therefore decided to arrest these individuals. The Police Chief ( Glavni Ravnatelj Policije ) issued an oral order that the arrests be carried out by an anti-terrorist team of the Special Police Force ( Specijalna policija, Antiteroristička jedinica Lučko – hereinafter “the ATJ”).
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 individuals, including the applicant, before the Zagreb County Court ( Županijski sud u Zagrebu ) on charges of conspiracy to kill I.P. and of carrying out the plan.
8. On 3 November 2010 the Zagreb County Court ( Županijski sud u Zagrebu ) found the applicant guilty on the charge of incitement to conspiracy to commit aggravated murder and sentenced him to ten years ’ imprisonment. On 15 January 2013 the Supreme Court ( Vrhovni sud Republike Hrvatske ) upheld the applicant ’ s conviction, increasing his sentence to twenty-three years ’ imprisonment.
2. The applicant ’ s alleged ill-treatment by the police
9. On 29 October 2008, at 5.35 p.m., the ATJ arrested the applicant together with R.M. and L.M. at the Spačva petrol station off the motorway near the town of Županja.
10. According to the Government the three individuals concerned resisted arrest and force had to be used against them. Two members of the ATJ sustained injuries. The applicant also sustained injuries while a standard restraint technique was applied against him during the arrest.
11. According to the applicant, even though he was not resisting arrest, he was severely beaten by several police officers all over his head and body.
12. After being arrested the applicant was brought to the premises of the Criminal Police in Zagreb. There he received medical assistance at 5.20 a.m. on 30 October 2008 from an emergency medical team.
13. On 31 October 2008 the applicant was questioned by an investigating judge of the Zagreb County Court in the presence of two defence lawyers. He did not make any complaints about the conduct of the police.
14. On 1 November 2008, upon his admission to detention, the applicant was examined by a prison doctor who found that he had haematomas around both eyes and an abrasion on his face.
15. According to the applicant, in the further course of the proceedings he complained to the Zagreb County Court, the investigating judge, the State Attorney ’ s Office, the police and other authorities of the violence used against him during his arrest. However, he did not submit any documents supporting those allegations.
16. The documents submitted by the parties show that in a letter of 27 July 2011, addressed to the Office of the President of the Republic ( Ured Predsjednika Republike Hrvatske ) the applicant complained, inter alia, of alleged ill-treatment by the police during his arrest.
17. No investigation was ever opened in connection with the applicant ’ s allegations of ill-treatment.
18. On 21 September 2012 the applicant instituted civil proceedings against the State before the Zagreb Municipal Civil Court ( Općinski građanski sud u Zagrebu ), claiming damages for his alleged ill-treatment by the police. It appears that these proceedings are still pending before the first-instance court.
19. In a constitutional complaint of 7 March 2013, lodged against the Supreme Court ’ s judgment of 15 January 2013 given in the criminal proceedings against him, the applicant alleged that the police officers had used force against him during his arrest and had caused him numerous bodily injuries. On 25 February 2015 the Constitutional Court found that these allegations, in so far as they were admissible and susceptible to be addressed within the Constitutional Court ’ s proceedings, did not reveal any violation of the applicant ’ s human rights and fundamental freedoms guaranteed by the Constitution.

5.The applicant was born in 1977 (in some of the documents submitted his year of birth was also stated as 1979). He used to live in Grozny, Chechnya, but is currently serving a life prison sentence at an unspecified location.
6.The facts of the case, as submitted by the parties, may be summarised as follows.
A.The applicant’s arrest and alleged ill-treatment
1.The applicant’s arrest
7.On 14 April 2001 the interim prosecutor of Grozny opened criminal case no. 11133 against the applicant. On 14 September 2001 the applicant was charged, in absentia, with aggravated murder. On 31 December 2001 he left Chechnya under a false identity and in January 2002 he arrived in Semipalatinsk, Kazakhstan.
8.On 13 January 2006 the applicant was arrested in Semipalatinsk. On 17January 2006 the local authorities established his true identity and the Semipalatinsk town prosecutor’s office extended the applicant’s detention with a view to extraditing him. On an unspecified date in January or February 2006 the Russian authorities officially requested the applicant’s extradition to Russia. On 23February 2006 the applicant was taken to Astana airport and handed over to Russian law-enforcement officers.
2.Ill-treatment of the applicant while in detention on remand
(a)The applicant’s ill-treatment in Moscow
9.On 23 February 2006 the applicant was taken by Russian police officers from Astana to Moscow. Upon his arrival at Domodedovo airport in Moscow, he was filmed by a journalist of the RTR (Russian Public Television) company and a report about his extradition was televised on the same date in the nationwide news programme, Vesti. On the footage, the applicant showed no signs of ill-treatment. His relatives learned about his arrest and extradition from the news report.
10.On the same date, 23 February 2006, the applicant was taken to remand prison IZ-77/4 in Moscow. Upon arrival he was examined by a doctor, who found no evidence of ill-treatment.
11.On the same date, the applicant was handed over from prison IZ‑77/4 to Chechen investigators and police officers for transfer to Grozny, Chechnya.
12.According to the applicant, he was placed in a vehicle with two Chechen police officers, Mr Kh. Mag. and Mr L.-A. Mud., who repeatedly punched and kicked him on the way to the airport.
13.At the airport the officers were joined by an investigator from Chechnya, Mr P. The applicant bore signs of ill-treatment: his face was swollen, he was covered in blood and he could not eat or drink.
(b)The applicant’s ill-treatment on the journey from Vladikavkaz to Grozny
14.Upon arrival at the airport in Vladikavkaz, Republic of North Ossetia‑Alania, the applicant was taken in a Gazel minibus to Grozny.
15.According to the applicant, the commander of the Police Special Task Unit (Отдел милиции особого назначения (ОМОН)) (“the OMON”) police group ordered him to lie on the floor of the minibus, and the police officers kicked him and beat him with their rifle butts.
(c)The applicant’s ill-treatment in the ORB-2
16.Late in the evening of 23 February 2006 the applicant arrived at the police station known as Operational Search Bureau no. 2 (hereinafter “the ORB‑2”) in Grozny, where he was detained until 6 March 2006.
17.According to the Government’s submission to the Court, upon his arrival at the ORB-2 in the evening of 23 February 2006 the applicant underwent a medical examination, which established that he had haematomas around his right eye and an abrasion on his back. According to the Government, the applicant explained to the doctor that he had obtained those injuries in Kazakhstan.
18.According to the applicant’s submission to the Court, on the same evening, 23 February 2006, he was taken to a large room on the ground floor of the ORB-2 premises, where he was subjected to beatings by five police officers, namely the head of the ORB‑2’s operational search division; MrIb., the operational search officer; MrAs. Vak., the head of the department specialising in the investigation of aggravated robberies; and two other police officers from the station.
19.The officers questioned the applicant about, among other things, the murder of a prosecutor perpetrated in 2001. They punched and kicked him, demanding that he confess to killing that prosecutor and give statements against certain persons whom he knew personally. The applicant refused. The officers then tortured the applicant with electric shocks and beat him about the head with plastic bottles filled with water. Every time he lost consciousness, the officers poured water on him and continued the interrogation and torture.
20.According to the applicant, throughout the night of 23-24 February 2006 and during the day on 24February 2006 he was tortured and pressured to admit his involvement in a number of serious crimes. The applicant refused to do so.
21.On 25 February 2006 the applicant was told that his aunt, MsKh.Tas., had arrived with a food package for him. The officers detained her, questioned her about the applicant and threatened her. One of the officers then told the applicant that if he wanted nothing to happen to his aunt, he would have to sign confessions. The applicant signed the documents without familiarising himself with their contents.
22.According to the applicant’s submission, between 26 and 28February 2006 he was regularly ill‑treated at night; he was bludgeoned, tortured with electric shocks, and a gas mask was put over his head to induce suffocation. He was forced to memorise statements concerning his forced confession to the commission of the crimes in question along with details of those crimes and of crimes in which he had allegedly participated.
23.According to the applicant, on 6 March 2006 he was transferred to remand prison no.20/1 (“SIZO20/1”) in Grozny. Between March and December 2006 he was sometimes returned to the ORB-2 premises for questioning and was subjected to further beatings, electrocutions and other forms of ill-treatment. The officers threatened to kill him if he complained to anyone of the ill‑treatment. He again had to memorise the details regarding the crimes allegedly perpetrated by him; the police officers instructed him regarding places, methods and other details concerning the crimes he was accused of perpetrating. From the middle of March the police officers primarily used electric shocks to torture him in order to avoid leaving bruises and haematomas on his body. In the applicant’s submission, the police officer who was most active in torturing him and pressurising him to confess was Mr As. Vak. from the ORB-2.
24.On 30 April and 2 May, and again on 5 and 6 September 2006, the applicant was interviewed in SIZO 20/1 by an official from, apparently, the European Committee for the Prevention of Torture. The applicant described to that official the torture to which he had been subjected on the SIZO 20/1 premises.
25.On the night of 24 to 25 May 2006, after the applicant’s complaints of ill-treatment (see paragraphs 31-32 below), he was subjected to severe beatings: a plastic bag was put over his head and he was hit in the head with metal keys and kicked. The officers threatened to kill the applicant if he continued to complain of being ill-treated.
26.On 1 June 2006 the applicant underwent a medical examination in SIZO20/1, which established the following:
“... on his left upper shoulder there are circular purple bruises, both internal and external, measuring 2-3 cm. On his right hip there is a large circular purple haematoma measuring 6 cm and an abrasion measuring 3 cm ...”
27.On 20 October 2007 and again on 29 October 2007 the administrative authorities at remand prison IZ-77/4 in Moscow replied to a request for information by the applicant’s representatives stating that at the time of his arrival at their remand prison on 23 February 2006 the applicant had not borne any traces of ill-treatment.
28.In support of his allegations, the applicant furnished the Court with statements by witnesses who had also been detained in the ORB-2 at the material time. Those witnesses were: Mr Sh. El. (a statement dated 12September 2009); Mr U. Cha. (an undated statement); Mr R. Le. (astatement dated 13 September 2007); and MrM. Ga. (a statement dated 12September 2007). The applicant also submitted two official statements by the administrative authorities of remand prison IZ-77/4 in Moscow, dated 20 and 29 October 2007 respectively.
(d)Investigation into the alleged ill-treatment
(i)The applicant’s complaint to the supervising prosecutors
29.On 1 March 2006 the applicant was examined by a medical expert at the Chechen Republic Bureau of Forensic Expert Evaluations. According to the applicant, out of fear for his life he had to tell the expert that he had sustained the haematomas as a result of several falls on 23 February 2006 while he had been in Kazakhstan. The expert’s conclusions of 9March 2006 were as follows:
“... [the applicant] stated that he had not been subjected to beatings. His facial trauma was a result of several falls that occurred during his arrest by the local police officers in Kazakhstan. He does not complain about the state of his health. Observations: under the right eye and on the right eyelid there is a crimson and green bruise, yellow along the eye, of about 3 cm by 1.5cm. Other injuries or traces of trauma were not identified ...
Conclusions: the bruise on Mr A. Mukayev’s right eye is the result of this part of his head [coming into contact] with a blunt object; possible date of occurrence – 23February 2006, in the circumstances described by him. The injury does not [fall under the category of] harm ...”
30.On 6 March 2006 the applicant was transferred to SIZO 20/1 in Grozny, where he was examined by a doctor who made the following notes in his medical record:
“... complaints of headaches; healing haematoma on the upper-right shoulder; fresh scar on the back of the knee measuring 2 cm; haemorrhage in the right eye; abrasion on the back of the head ... handcuff marks on both wrists ...”
31.On 11 May 2006 the applicant complained to the Chechnya prosecutor’s office of having been ill-treated in Moscow and in the ORB‑2, stating that the police officers had tortured him to make him confess to crimes he had not committed.
32.On 15 May 2006 the applicant complained of the ill-treatment to the Prosecutor General’s office.
33.On 25 May 2006 an investigator from the Chechnya prosecutor’s office refused to institute criminal proceedings against the police officers. The applicant was not provided with a copy of that decision.
34.On 6 September the Chechnya deputy prosecutor overruled the decision of 25 May 2006 and returned the case to the investigators for further inquiries. The four police officers allegedly implicated in the ill‑treatment were questioned and gave statements to the effect that they had not ill-treated the applicant. On 15September 2006, upon completion of the inquiry, the investigator, V.A., refused to open a criminal case against the officers. His report contained the following remarks:
“... according to the record of the initial medical examination carried out by the IVS [temporary detention centre] of the ORB-2, the examinations conducted on 7March, 17March, 29 March, 10April, 24 May, 13 June and 11 July 2006 did not reveal any bodily injuries ...
Thus, no evidence was obtained as a result of the inquiry ... the allegations of A.Mukayev ... were not confirmed”.
The applicant was not provided with a copy of this decision.
35.On 10 October 2006 the decision of 15 September 2006 not to open a criminal case against the officers was overruled by the supervisory prosecutor and the complaint was returned to the investigators for further inquiries. On 20 October 2006 the investigator, Mr I.Kh. of the Chechnya prosecutor’s office, questioned the officers who had brought the applicant from Moscow to Grozny and the investigator in charge of the criminal case against the applicant. Mr I.Kh. refused to investigate the applicant’s allegations of ill-treatment, stating, inter alia:
“... according to the record of the initial medical examination carried out by the IVS of the ORB-2, the examinations conducted on 7 March, 17 March, 29 March, 10April, 24 May, 13 June and 11 July 2006 did not reveal any bodily injuries ...
According to the documents received from SIZO 20/1 dated 14 March 2006 and 5June 2006 concerning bodily injuries allegedly sustained by A. Mukayev, the Leninskiy district prosecutor’s office refused to institute criminal proceedings.
For instance, when questioned about his bodily injuries – such as the haematoma covering one-third of the right shoulder, a bruise under his right eye, scratches on the back of his head and handcuff marks on both wrists, all of which were found when he was transferred to SIZ0 20/1 on 1 June 2006 – A. Mukayev explained that these injuries had been sustained by him on the way to SIZO 20/1 and on the way back to the IVS. He stated that the guards had not used physical force against him...
When questioned about the origins of the injuries, including the haemorrhage of the upper-right arm and the haematoma on his left hip found on [the applicant] when he was brought to SIZO 20/1 on 1 June 2006, A. Mukayev explained that he had been taken for interrogation. By the exit [to the facility] he had been beaten on the buttocks and shoulder, but he did not know who had hit him. The escort guards had behaved normally towards him ...”
The applicant was not provided with a copy of this decision.
36.On 23 November 2007 the investigator’s refusal of 20 October 2006 was overruled by the supervisory prosecutor and the case was forwarded to the Leninskiy District Investigative Committee for further inquiries. On 9December 2007 the investigator of the Leninskiy District Investigative Committee refused to institute criminal proceedings against the police officers on the ground of lack of corpus delicti. The applicant was not provided with a copy of that decision.
37.On 27 December 2007 the applicant’s lawyers appealed to the supervisory prosecutor against the investigators’ decisions in respect of the applicant’s complaint of ill‑treatment and requested that the prosecutor recognise as unlawful the following:
“(a) the delays in the verification of A. Mukayev’s complaints concerning the unlawful actions of the law-enforcement officers against him;
(b) the investigator’s refusal to question important witnesses who could have confirmed the use of violence against A. Mukayev;
(c) the investigator’s refusal to question A. Mukayev.”
38.On 17 January 2008 the investigator’s refusal of 9 December 2007 to initiate a criminal investigation was overruled by the supervisory prosecutor, and the applicant’s complaints of ill-treatment were sent back to the investigators for further inquiries. The applicant was informed of that decision on 24January 2008.
(ii)The applicant’s judicial appeals against the prosecutor’s refusals to investigate allegations of ill-treatment
39.On an unspecified date in June 2007 the applicant’s lawyer complained to the Zavodskoy District Court of Grozny (“the Zavodskoy District Court”), stating, among other things:
“... During the inquiry into the complaints of A. Mukayev, a forensic medical examination was conducted on 9 March 2006 ...
However, this examination was incomplete, as on 6 March 2006 when A.Mukayev had been taken to SIZO 1 (remand prison no. 1) in Grozny, the following injuries had been noted [in the medical record]:
- headaches;
- a healing haematoma on the right shoulder;
- a scar on the back of the knee measuring 2 cm;
- a haemorrhage in the right eye;
- an abrasion on the back of the head;
- handcuff marks on both wrists.
All of the above objectively confirms that physical force was used against A.Mukayev ... In addition, [the policemen] used threats and intimidation to force A.Mukayev to state that he had not been subjected to beatings and that his facial trauma had been caused on 23 February 2006 during the arrest by law-enforcement officers in Kazakhstan.
The use of torture against A. Mukayev is confirmed by his allegedly voluntary confession to having committed serious crimes ...
Before his arrest, A. Mukayev was a healthy man. However, after his arrest he started to have health problems ... In spite of consistent allegations [of torture] in the complaint lodged by A. Mukayev, the investigator refused to open a criminal case ...
On the basis of the above, it is requested that the court:
Order the Chechnya prosecutor’s office to furnish [the applicant with] the materials gathered by the inquiry which resulted in the refusal to institute criminal proceedings on the basis of the complaints of A. Mukayev, as he was neither provided with a copy of this decision nor familiarised with the contents of the file;
Recognise as unlawful the failure of the prosecutor’s office to investigate substantiated allegations of torture; and
Order the Chechnya prosecutor’s office to conduct a thorough, objective and effective investigation into the applicant’s torture, and to prosecute the culprits ...”
40.On 26 September 2007 the applicant’s lawyer lodged an additional complaint with the Zavodskoy District Court.
41.On 3 October 2007 the Zavodskoy District Court upheld the complaint in full and recognised as unlawful the refusal to institute criminal proceedings. The decision, which was not appealed against and became final, stated, among other things, the following:
“On 1 March 2006 a forensic medical expert ... examined A. Mukayev. ... [A]ccording to his report, he found ‘... under the right eye and on the right eyelid ... a crimson and green bruise, yellow along the eye, about 3 cm by 1.5 cm ...’
It follows that, between his extradition to Russia on 23 February 2006 and 1March 2006, A. Mukayev was subjected to physical violence.
On 6 March 2006, when he arrived at SIZO 20/1 in Grozny, Mukayev was examined by a doctor, who made the following notes in Mukayev’s medical record: ‘... complaints of headaches; healing haematoma in the upper right shoulder; fresh scar on the back of the knee measuring 2 cm; haemorrhage in the right eye; abrasion on the back of the head ... handcuff marks on both wrists ...’
Consequently, assuming that the examination conducted on 1 March 2006 was full and thorough, A. Mukayev was subjected to further physical violence between 1and6March 2006. This is confirmed by the documents.
On 10 April 2006 the following note was made in Mukayev’s medical record: ‘[N]umbness of the right side [the next part of the sentence is illegible]. [B]eaten [according to A. Mukayev] in the head during the journey from Moscow ...’
On 10 May 2006 in SIZO 20/1 the following note was made in Mukayev’s medical record: ‘[C]omplaints of numbness in the right side of his face; lacrimation of the right eye; sharp pains in the right side of the face, the ear and the gums.’
On 1 June 2006 in SIZO 20/1, the following note was made in Mukayev’s medical record: ‘[O]n the upper left shoulder there are round purple bruises, both internal and external, measuring 2-3 cm. On the right hip – a large round purple haematoma measuring 6 cm and a straight, 3‑cm‑long abrasion ...’
It follows that Mukayev was subjected to torture between 10 May and 1June 2006. This is confirmed by the documents.
The inmates who were detained in the IVS of the ORB-2 at the same time as A.Mukayev also confirm the use of violence against him. ... [A]ll these [three] persons confirmed that they were prepared to give statements to the prosecutors if necessary.
A.Mukayev’s lawyer, who had a short meeting with him in March 2006 in theORB‑2, also confirms that physical violence was used against A.Mukayev.
The use of torture against A. Mukayev is substantiated by the following evidence:
his complaints;
the forensic expert examination report no. 186 of 1 March 2006;
a copy of A. Mukayev’s medical record;
the witness statement of Mr Sh. El.;
the witness statement of Mr M.Ga.;
the witness statement of Mr R. Le.;
complaint lodged by [the applicant’s] lawyer, Mr B. El.
The absence of any signs of ill-treatment on A. Mukayev’s face on 23February 2006 when he arrived at SIZO 77/4 in Moscow can be confirmed by the following:
the witness statements of A. Mukayev’s relatives, who had seen the television programme of 23 February 2006;
the video footage of the television programmes supplied by the television companies;
a reply from SIZO-77/4, if requested ...
The court, having examined the evidence ..., finds the complaint substantiated and upholds it. When refusing to institute criminal proceedings, the investigators failed to examine and take into account Mukayev’s bodily injuries, the origins of which are an important factor in resolving the issue. Therefore, the ruling of 15 September 2006 not to open a criminal investigation was taken without fully examining the evidence or the complaints of Mukayev and his lawyer.
The court finds that further verification of all the arguments advanced by Mukayev concerning the use of violence against him is required ...”
42.On an unspecified date between December 2007 and February 2008 the applicant lodged an appeal with the Zavodskoy District Court against the decision of 9 December 2007 by the investigator of the Leninskiy District Investigative Committee not to institute criminal proceedings against the police officers (see paragraph 38 above).
43.On 19 March 2008 the Zavodskoy District Court dismissed the applicant’s appeal, stating that the impugned refusal to institute criminal proceedings of 9 December 2007 had just been overruled on the same date (that is to say 19 March 2008) by the head of the Leninskiy District Investigative Committee.
44.On 29 March 2008 the investigator of the Leninskiy District Investigative Committee again ruled against instituting criminal proceedings against the police officers. The applicant again lodged an appeal against that decision with the Leninskiy District Court of Grozny (“the Leninskiy District Court”).
45.On 26 June 2008 the Leninskiy District Court dismissed the applicant’s appeal as unsubstantiated, stating that:
“... the facts of the alleged violations of the criminal procedure regulations [by the impugned police officers] were not confirmed by the numerous inquiries. A.Mukayev was found guilty as charged ...”
46.The applicant lodged an appeal against that decision with the Chechnya Supreme Court. On 6 August 2008 the latter upheld the decision of the Leninskiy District Court, stating that:
“... in [citing] the overruling of the decision in refusing to open a criminal investigation within the framework of a criminal case which has been resolved by a sentence, [the applicant’s representative] is in fact proposing that the court examine and evaluate evidence that has already been examined and evaluated by the Chechnya Supreme Court and the Supreme Court of the Russian Federation. Those courts have already delivered decisions which are now binding; such a situation is not provided for by the current legislation ...”
47.The documents submitted to the Court show that the applicant had raised, consistently and in detail, complaints of ill-treatment during the proceedings before the Chechnya Supreme Court and in an appeal against his sentence that he lodged with the Supreme Court of the Russian Federation (see below).
48. According to the Government, between May 2006 and March 2008 the domestic authorities on six occasions carried out a preliminary inquiry into the applicant’s ill-treatment complaint before each time refusing to open a criminal case. The inquiries carried out showed that the applicant’s allegations “were not confirmed by objective data”.
B.Criminal proceedings against the applicant
1.The applicant’s legal counsel
49.According to the applicant, between 23 and 26 February 2006, while he was being questioned and tortured, he had had no access to a lawyer. The investigator had not explained to him his right to legal counsel, nor that anything he said during questioning might be used as evidence in the criminal proceedings against him.
50.On 26 February 2006 the investigator appointed Mr G. Ber. as the applicant’s lawyer. Rather than requesting a lawyer from the Bar Association, as prescribed by law, the investigator appointed MrG.Ber. directly. The applicant agreed to that lawyer’s services on 2 March 2006 only on the insistence of the investigator in charge of the criminal case against him, and only after he had already been questioned and charged with a number of crimes.
51.On 28 February 2006 the applicant’s relatives retained MrB.El. as his lawyer, but the investigators did not allow him access to the applicant. Meanwhile, G. Ber. acted as the applicant’s lawyer. According to the applicant, G. Ber. had been present during the applicant’s questioning; the lawyer had known that the applicant was being subjected to ill-treatment, but had failed to raise the issue before the authorities. The lawyer had signed the procedural document post facto, as requested by the investigators.
52.The applicant furnished the Court with a letter from the head of the Chechnya Bar Association of 14 December 2007, which read as follows:
“... the investigator [in charge of the criminal case against the applicant] did not request the Nisam Bar Association to assign lawyer G. Ber. as legal counsel for A.Mukayev.
... under the law, a lawyer must obtain the approval of the head of the Bar Association for him to represent a client in criminal proceedings. However, MrG.Ber. failed to do that; ... his retainer agreement to represent A. Mukayev was filled out by Mr G. Ber. unlawfully.
On the basis of the complaints received by the Bar Association against the lawyer G.Ber., including those from A. Mukayev, on 30 November 2007 G. Ber. was disbarred...”
53.The applicant’s lawyer, Mr B.El., was allowed to meet with the applicant for the first time in the middle of March 2006.
54.The applicant unsuccessfully raised a complaint regarding the flaws in the legal aid before the trial court and on appeal. His complaints were dismissed as unsubstantiated.
2.Trial and appellate proceedings
55.During the trial the applicant was represented by his lawyer, MrB.El. The applicant retracted his confession and claimed that he had made self‑incriminating statements under torture. He complained to the trial judge that during his arrest and detention at the ORB-2, he had been repeatedly tortured and threatened, and had finally been forced to confess. He pleaded not guilty in respect of the murders and admitted his guilt only in respect of the unlawful acquisition of a gun and of being in possession of false identity documents.
56.On 22 May 2007 the Chechnya Supreme Court found the applicant guilty of, among other things, the murder of twelve people, and sentenced him to life imprisonment. Its ruling was based on the applicant’s confession, statements made by witnesses and victims to the investigator and the court, and ballistic expert reports concluding that one of the victims had been shot with the gun found on the applicant.
57.In respect of the applicant’s allegations of torture, the trial court stated that there were
“... no grounds for distrusting the statement given by the operational search officer MrAs.Vak. or for casting doubt on the results of the inquiries conducted by the prosecutor’s office [into the applicant’s allegation]”.
58.On 30 October 2007 the sentence was upheld on appeal by the Supreme Court of the Russian Federation. In respect of the applicant’s allegations of ill-treatment, the court stated that
“... the fact that unlawful methods of investigation were used against the applicant was not confirmed”.
60.The public statement of the European Committee for the Prevention of Torture (CPT) concerning the Chechen Republic of the Russian Federation of 13 March 2007, reads in particular as follows:
“b.The ORB-2
...
19.The CPT has for years now been drawing the attention of the Russian authorities to the serious human rights violations being committed by staff of the ORB-2 facility in Grozny and those violations were highlighted in the Committee’s second public statement concerning the Chechen Republic issued on 10 July 2003. The Committee was led to believe, in the course of talks held in January 2005 with Dmitri KOZAK, Plenipotentiary Representative of the President of the Russian Federation in the Southern Federal District, that a “thorough” enquiry was being carried out by the Ministry of the Interior and the Prosecutor’s Office into the treatment of detained persons by staff of the ORB-2. However, it subsequently became clear that no such enquiry had ever been undertaken.
To date, the steps taken in response to the CPT’s concerns about the ORB-2 have consisted only of: i) the transformation of the detention facility at the ORB-2 premises into an IVS under the authority of the Command of the Allied Group of Forces, and ii) the “processing in due time and manner” of complaints lodged with the Prosecutor’s Office. From the information gathered during the two ad hoc visits in 2006, it is clear that those measures have not been sufficient to put a stop to human rights violations by the ORB-2 staff.
20.Formally speaking, the IVS which has been established on the premises of theORB‑2 may be separate from the ORB-2, and the official reporting line of the IVS staff may differ from that of the ORB-2 staff. However, in reality there is not a watertight division between the two entities.
The information gathered during the 2006 visits puts beyond any reasonable doubt that persons held in the IVS are frequently removed from the facility at night and handed over to the ORB-2 staff, and that those persons are then at great risk of ill‑treatment. This conclusion is based in part on individual interviews with numerous persons with experience of custody in the IVS on the premises of the ORB-2, and on medical evidence gathered in relation to certain of those persons and others. It is also based on other information gathered on site at the IVS, which clearly suggests that the management of the ORB-2 continues to exercise an important influence over the day‑to-day running of the detention facility. That this is the case is scarcely surprising given the very close proximity of the IVS and its staff to the ORB-2 facility, and the senior level of the ORB-2 staff concerned as compared to that of the staff working on site in the IVS. One member of the IVS staff acknowledged this and indicated that a request from the Head of the ORB-2 for the removal of a detainee at night would be complied with.
It should be added that the information gathered by the CPT’s delegation also indicates that persons detained by the ORB-staff may be kept on that agency’s own premises (and ill-treated) for some time before they are placed in the IVS for the first time.
21.t the end of the April/May 2006 visit, the CPT’s delegation made an immediate observation under Article 8, paragraph 5, of the Convention, formally requesting the Russian authorities to inform the Committee by 2 June 2006 of the measures taken to put an end to ill-treatment at the ORB-2. In their response, the Russian authorities refer to the findings of the preliminary inquiries carried out by the Prosecutor’s Office of the Leninskiy district of Grozny as regards complaints against the ORB-2 staff.
19 such preliminary inquiries (on complaints from 22 persons) had been carried out in respect of 2005, and 13 (on complaints from 16 persons) in respect of the first quarter of 2006. The decision in all of the inquiries had been refusal to initiate a criminal case. Commenting on the complaints, the Russian authorities highlighted the “striking similarities” of the descriptions, the sometimes “clichéd style of writing” and the failure to provide any “objective facts” in support of the complaints. The overall conclusion reached was that “persons under investigation have opted for the method of writing out complaints as a peculiar means of procedural defence”.
22.In the course of the September 2006 visit, the CPT’s delegation was able to examine in detail the files on all the above-mentioned inquiries. It was found that in fact the prosecution service had not taken appropriate action on the complaints and other information received.
The complaints did display certain similarities as regards the alleged ill-treatment and the circumstances in which it was inflicted. However, such consistency tends to strengthen rather than weaken their credibility, all the more so given that in most of the files the same operative officers were concerned. At the same time, the complaints displayed individual features and specific elements that reinforced their plausibility; they could not be fairly described as “clichéd”. It should also be noted that 8 of the 32inquiries were prompted not by complaints but instead by reports on admittance with physical injuries issued by SIZO No. 1; the authorities’ argument that one was dealing with "a peculiar means of procedural defence" clearly has no relevance to such cases.
More significantly, it was discovered that the major element of most of the inquiries consisted merely of explanations from the operative officers involved, combined in some cases with explanations from the investigator and the IVS’s feldsher. In 11 of the inquiries, the alleged victims had not been questioned at all, and in the other inquiries this crucial element had clearly consisted of a cursory and formalistic examination. The inquiries also displayed other glaring deficiencies, such as the absence of forensic examinations or undue delays in seeking such examinations, a failure to take into account medical documentation from the SIZO, and the failure to question third parties who could shed light on the veracity of the complaint (such as other persons detained at the relevant time).
To sum up, the minimum requirements of an effective inquiry had not been met in the great majority of the 32 inquiries in question. [...]
25.At the end of the September 2006 visit, the CPT’s delegation indicated that the continuing failure to take effective measures to put an end to ill-treatment at the ORB‑2 inevitably raised an issue under Article 10, paragraph 2, of the Convention. The delegation urged the Russian authorities to improve the situation as regards the treatment of detained persons by staff of the ORB-2, both in Grozny and in the inter‑district divisions of the agency. To date, no information has been provided to the CPT on the measures taken by the Russian authorities in response to the delegation’s remarks.”
61.The public statement of the European Committee for the Prevention of Torture (CPT) concerning their visit to the North Caucasus in the Russian Federation of 24 January 2013, reads in particular as follows:
“22.For more than a decade, the CPT has been calling upon the Russian authorities to stop the ill-treatment of detained persons by staff of ORB-2 in Grozny. [...]
Unfortunately, this message was not heeded. During the 2011 visit, the CPT’s delegation received several credible allegations of the severe ill-treatment, both physical and psychological, of remand prisoners who had been transferred from SIZO No. 1 in Grozny to the IVS at ORB-2, in order to undergo investigative activities. The official position, according to which persons held in this IVS are only questioned in the specific room designated for that purpose located within the IVS’s premises, is pure fiction.
The time is long overdue for the Russian authorities to implement the recommendations made by the CPT in the report on its visits to the North Caucasian region in 2006, in relation to ORB-2. Above all, the IVS facility currently situated on the premises of ORB-2 in Grozny must be relocated elsewhere.
23.As already mentioned above, the delegation received – mainly in the Republic of Dagestan and in the Chechen Republic – a number of allegations of unrecorded detentions and detentions in unlawful locations, in particular with respect to persons suspected of offences under Sections 205, 208, 209 and 222 of the Criminal Code.”

1. The applicant, Mr Justice Ojei, is a Nigerian national, who was born in 1994 and lives in Amsterdam. He was represented before the Court by Mr F.L.M. van Haren, a lawyer practising in Amsterdam.
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 lodged an application for asylum at Schiphol (Amsterdam) Airport on 30 March 2010.
4. On 31 March 2010 he was interviewed about his identity, nationality and travel itinerary ( eerste gehoor ). Confronted with the fact, apparent from the Eurodac database, that he had lodged a previous asylum request in Malta, he admitted that he had done so, claiming to be an adult. He stated that he had spent eighteen months detained in a Maltese reception centre where he had been badly treated. He had been refused asylum in Malta. He had travelled by boat from Malta to Italy and overland from Italy to the Netherlands.
5. A Dublin Claim interview ( gehoor Dublinclaim ) was held on 1 April 2010. The applicant stated that he had left Malta because he had been refused asylum. He alleged that he had been detained underground in a prison.
6. On the same day the applicant, through his counsel, submitted a document containing corrections and additions ( correcties en aanvullingen ) to the report of the Dublin Claim interview and “weighty advice” ( zwaarwegend advies ). He stated, inter alia, that if forced to return to Malta he would be locked up for a year in an underground prison known as “Paola”.
7. On 6 July 2010 the Minister of Justice rejected the applicant ’ s asylum request on the ground, in so far as relevant to the case before the Court, that under Article 16 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 Regulation”) the State responsible for examining his application for asylum was Malta and Malta had agreed to take him back. The applicant had failed to make out a convincing case that he was at risk of treatment contrary to Article 3 of the Convention; moreover, he could be expected to make use of the domestic remedies offered by Malta if need be.
8. The applicant appealed to the Regional Court ( rechtbank ) of The Hague on the same day. As relevant to the case before the Court, he alleged that sending him back to Malta would expose him to conditions of detention violating Article 3 of the Convention. He submitted documents in support of this allegation. At the same time he requested a provisional measure in the form of a stay of deportation.
9. On 3 November 2010 the Regional Court of The Hague (sitting in Haarlem) dismissed both the request for a provisional measure and the appeal, finding that the applicant had failed to make out his case that Malta would fail to meet her Conventional obligations towards him.
10. Having in the meantime been informed that his transfer to Malta was scheduled for 10 November 2010, on 4 November 2010 the applicant requested the President of the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ) of the Council of State ( Raad van State ) to order a provisional measure in the form of a stay of deportation. On 6 November 2010 the applicant lodged a further appeal ( hoger beroep ) with the Administrative Jurisdiction Division.
11. On 8 November 2010 the President of the Administrative Jurisdiction Division dismissed the applicant ’ s request for a provisional measure.
12. On 9 November 2010 the applicant was found to be in a psychiatric state of such seriousness that he was not fit to travel. His flight to Malta was cancelled and he was transferred to an institution for psychiatric treatment.
13. On 31 October 2011 the Administrative Jurisdiction Division dismissed the applicant ’ s further appeal on summary reasoning.
14. On 8 November 2010 the Court received from the applicant a request for a stay of expulsion to be indicated to the Netherlands Government. On 9 November 2010 President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Malta for the duration of the proceedings before the Court.
15. The applicant has submitted a medical statement dated 15 September 2016 from which it appears that he continues to receive psychiatric treatment.
B. Relevant domestic and European law and practice
16. The relevant European, Maltese 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 are set out 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); Mohammed Hussein v. the Netherlands and Italy (( dec. ), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013); Suso Musa v. Malta, no. 42337/12, §§ 23-32, 23 July 2013; and Aden Ahmed v. Malta, no. 55352/12, §§ 31-39, 23 July 2013.
C. Factual information submitted by the Maltese Government and the applicant ’ s response
17. By letter of 15 February 2012, the Agent of the Maltese Government submitted replies to questions of the Judge Rapporteur (Rule 44 § 3 (a) of the Rules of Court). As relevant to the case now before the Court, these included the following:
“ 1. When did the applicant arrive in Malta and on what basis did he request protection (asylum, subsidiary protection or other) there? In what manner has this request been dealt with in practice; what was the outcome of the procedure and was the applicant provided with shelter, subsistence and medical care during this time?
The applicant entered Malta in an irregular manner on the 3 rd September 2008. Upon arrival, the applicant was served with a removal order and was put in the detention centre. Whilst in detention, the applicant was housed in a sheltered compound with adequate bedding and was provided on a daily basis with breakfast, lunch and dinner. The applicant was also given clothing and supplies to cater for his personal hygiene. Furthermore, the detention centres are equipped with the services of a medical practitioner and the services of a nurse and these services are available on a daily basis in order to assist and cater for the medical needs of persons in detention.
The applicant requested international protection at the Office of the Refugee Commissioner on the 24 th September 2008. The applicant requested asylum on the basis that he claimed that he was next in kin to become the king in his village but this was not accepted by his uncle who had poisoned his father and brother and had, therefore, instilled fear for personal safety in the applicant. In the applicant ’ s preliminary questionnaire which was conducted on the 24 th September 2008, the applicant declared that he was born on the 20 th March 1985. On the basis of this information, the applicant was presumably 22 years old upon arrival. The applicant did not mention that he suffered from any particular medical condition.
On the 5 th June 2009, the applicant sat for his asylum determination interview and he again confirmed his date of birth. The applicant added that apart from the problem that he had with his uncle in his country of origin, that is, Nigeria, there were no further problems in his country.
On the 20 th June 2009, the Refugee Commissioner rejected the applicant ’ s asylum application.
On the 16 th July 2009, the applicant appealed from the decision by filing an application before the Refugee Appeals Board. The appeal is still pending given that the applicant absconded from Malta in the meantime.
Furthermore, the applicant was released from detention on the 3 rd September 2009 and was moved to an open centre which is run by the Agency for the Welfare of Asylum Seekers. The applicant had free medical care when he was accommodated in the open centre given that his asylum application is still pending in the appeals board. The applicant remained in the open centre until the 26 th February 2010 and left the open centre without leaving any contact details.
2. What, if any, concrete, practical and effective steps are taken by the Maltese authorities to ensure that aliens returned to Malta under the terms of the Dublin II Regulation, considering also that the applicant is a minor with a medical condition, are provided with shelter, subsistence and medical care upon arrival in Malta?
The Government wishes to emphasize that the applicant always declared that he was not a minor upon his arrival: in fact the date of birth given to the local authorities makes it clear that the applicant was 22 years old upon arrival in Malta. Moreover, the applicant never complained that he suffered from any medical condition.
When aliens are returned to Malta, they are not being taken into police custody unless it results that an offence was committed by them in Malta.
Moreover, given that the applicant ’ s appeal is still pending, he is still considered to be an asylum seeker, and the applicant will be housed if he so wishes in the open centres where he will have access to free medical care pending the determination of his appeal. Moreover, if it is established that the applicant is a minor, the Agency for the Welfare of Asylum Seekers provides its services to unaccompanied minor asylum seekers under a ‘ care order ’ issued in terms of the Children and Young Persons (Care Orders) Act.”
18. The applicant replied on 13 March 2012, stating that living conditions in the open centres were very bad and unsuited to persons in his condition.
19. Appended to the applicant ’ s reply were:
(a) a report by the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg, following his visit to Malta from 23 to 25 March 2011 ( CommDH (2011)17, 9 June 2011). On the subject of open centres, this report stated the following:
“21. Material conditions in the open centres visited by the Commissioner were clearly sub-standard, with the Hal-Far tent village offering totally inadequate conditions of accommodation even for short periods of time. The village, which at the time of the visit hosted approximately 600 migrants, mainly from Africa, consists of tents, some of which had been damaged due to bad weather conditions, and containers, as well as offices, a classroom, sanitary facilities, a mosque, and a restaurant. Each tent is shared between approximately 20-25 men who sleep in bunk beds. The tents were clearly overcrowded and offered no privacy. Residents have complained to the Commissioner about bad sanitary conditions, including having to share the same space with persons who are sick, and about the very cold temperatures in the facilities in the winter and hot temperatures during the summer. The presence of rats was also reported by migrants. The tent village has a building with toilets, showers and basins for laundry. However, hot water is reportedly not always available. A female migrant stated that she avoided using the toilets at night as she felt unsafe covering the considerable distance between them and the container where she was accommodated. Reportedly the tent village was served by one social worker and one nurse. For medical services migrants were referred to centres outside of the tent village.
22. At walking distance from the tent village another complex, the Hangar Open Centre in Hal-Far, which includes a few dozen containers and a dilapidated hangar, accommodated approximately 500 migrants, mainly from Africa. At the time of the visit, the Commissioner noted that certain women and families with children were accommodated in containers separately from the male migrants. In the centre there was a recent building that included toilets and showers. The hangar was closed and not in use. However, the Commissioner was informed that following the new arrivals from Libya since his visit, the hangar has been re-opened and that tents have been placed inside of it to accommodate migrants. Material conditions in the hangar are reported to be seriously sub-standard, with lack of adequate bedding, dirty floors, toilets (which are shared by men, women and children), and kitchen, insufficient lighting, and the presence of rats. These conditions are all the more worrying as the Commissioner understands that a number of family units with young children are accommodated there, as mentioned below.
23. Conditions were somewhat better at the open centre in Marsa with approximately 600 male residents mostly from Somalia and Sudan. Unlike the tent village and hangar complex in Hal-Far, which are run directly by the Agency for the Welfare of Asylum Seekers (AWAS) the running of the centre in Marsa is subcontracted by the authorities to a non-governmental organisation (the Foundation for Shelter and Support to Migrants). The Commissioner notes that extensive refurbishment work, which would allow for better conditions and a more functional distribution of space, were underway during his visit. At the time of the visit however, serious overcrowding was still very obvious. Toilets visited by the Commissioner, although they had been cleaned, appeared to be run down, while the whole area of the open centre in Marsa, situated near a port, was covered by a smell which appeared to be caused by stagnating water in a neighbouring canal.”
(b) two reports by Schweizerische Flüchtlingshilfe, a Swiss NGO engaged in providing assistance to asylum-seekers and refugees, the first dated 6 September 2010, the second dated November 2011. Both describe the open centres as squalid and overcrowded and basic facilities, including for vulnerable groups, as insufficient.
(c) two letters from a child and juvenile psychiatrist who was treating the applicant, dated 23 February and 1 March 2012, describing the applicant as psychotic and potentially suicidal and expressing concern that conditions for the applicant ’ s reception in Malta should be appropriate to his mental state.
D. Maltese Government policy
20. On 30 December 2015 the Maltese Minister for Home Affairs and National Security published a paper entitled “Strategy for the reception of asylum seekers and irregular migrants”. The following is taken from this document:
“Malta ’ s ratio of asylum seekers in proportion to population has consistently been among the highest, and very often the highest, among all EU Member States. In fact, Malta received a total of 20.2 asylum applications per 1,000 inhabitants between 2009 and 2013, compared to an EU average of 2.9. It is also to be stated that the Maltese Office of the Refugee Commissioner does not only receive international protection applications from irregular migrants; for during 2014 up to 824 asylum applications were also received from migrants who applied directly at the Office of the Refugee Commissioner. All this goes a long way to show that even though asylum applications may be generally constant, the number is at the same time elevated when compared to the country ’ s geo-physical and social circumstances and realities. Matters are further complicated by the fact that a majority of those who seek international protection in Malta are actually found to be deserving of such protection. This means that these people do not only require immediate reception arrangements, but also long-term solutions.
In view of the abovementioned circumstances, conditions in reception centres have been rendered difficult during certain periods; however over the last few years several initiatives were carried out in order to improve the living conditions of irregular migrants and asylum seekers residing in such centres, including by means of EU funding mechanisms. Similar to previous years, apposite European funding mechanisms and national funds will be utilised for the provision of adequate food supplies, bedding, clothing and medical support among other initiatives. Investment will also continue being made in reception facilities, where the required refurbishment initiatives in open and closed centres will be undertaken. Furthermore, Malta ’ s Open Reception capacity will be enhanced by means of a new Reception Facility, with the utilisation of EU funds, in order to better address current and future needs.
The present document seeks to build upon the existing reception system, introducing improvements at several stages with a view to ensuring compliance with new EU obligations, as well as to improve the system from the perspective of national security on the one hand and humanitarian and human rights considerations on the other.” ( page 3)
and
“Asylum seekers and beneficiaries of international protection released from the Initial Reception Facility or from Detention shall, if no alternative accommodation arrangements are available to them, be offered accommodation at Open Centres managed by the Agency for the Welfare of Asylum Seekers, or an entity or NGO working in partnership with the Agency. Such accommodation shall also be offered, on the same terms and conditions, to asylum seekers who would have reached Malta regularly, wherever Malta is the State responsible for determining their asylum application, and to beneficiaries of international protection granted protection by the Maltese authorities who would have been resettled or relocated into Malta.
...
Persons accommodated at Open Centres shall be provided with accommodation free of charge and, so long as they are not employed, with an allowance intended to cover daily expenses, such as meals and transport.
Migrants considered vulnerable, with the exception of unaccompanied minors, shall also be accommodated at Open Centres as per above. However, such persons shall be offered additional support, be it psychological, medical or otherwise as required.” ( page 19)
E. Relevant international material
21. The United Nations Human Rights Council ’ s Working Group on Arbitrary Detention visited Malta between 23 and 25 June 2015. Its report of this visit was published by the Human Rights Council on 23 June 2016 (UN document A/HRC/33/50/Add.1). The following is taken from this report (page 10, advance unedited version):
“37. The Working Group also visited Hal Far Open Centre for immigrants, outside Valetta, run by the Ministry for Social Affairs. The centre has a capacity for 800 persons. 260 were persons present during the Working Group ’ s visit. In the open centres, migrants enjoy freedom of movement but are requested though they are requested [sic] to undergo daily movement registration and provide details of their whereabouts.
38. The Working Group received information that 889 persons were living in three open centres including Hal Far, which consisted of prefabricated container housing units that had replaced scores of tents. Most of them were asylum-seekers awaiting decisions on their applications. Some migrants whose applications for asylum had already been rejected were also hosted there. Residents were suffering uncomfortable living conditions given inadequate ventilation and high temperatures in the summer months, in addition to the overcrowded condition in each unit. Residents were referred to the centre by immigration authorities.
39. The Working Group was informed that although the open centres were locked and guarded by security officers, residents were allowed to enter and exit the premises freely. Residents were allowed to stay for a maximum period of one year. Their beds would be restored after three weeks of absence so that it could be assigned to another migrant in need. It was brought to the attention of the Working Group that some residents arrived at the centre in April 2014, which means that they had been held there for more than 12 months. The Working Group was informed that during their stay at the open centre, residents were offered accommodation; free food, and were provided with a transportation allowance to enable them to travel to the city centre. In addition, the Working Group was informed that the centre would provide English language courses, computer training and cultural orientation.”
F. Paola prison
22. There is a prison in Paola. Its official name is Corradino Correctional Facility. Conditions of detention in this institution were the object of Story and Others v. Malta, nos. 56854/13, 57005/13 and 57043/13, §§ 104-129, 29 October 2015.

9.The applicants were born on 1January 1983 and 3 June 1980 respectively. Having left their home country, Bangladesh, they travelled through Pakistan, Iran, and Turkey, and entered the territory of the European Union in Greece. From there, they transited through the former Yugoslav Republic of Macedonia to Serbia. Mr Ilias spent some 20 hours on Serbian territory; whereas Mr Ahmed two days. At last, on 15September2015 they arrived in the Röszke transit zone situated on the border between Hungary and Serbia. On the same day, they submitted applications for asylum.
10.From that moment on, the applicants stayed inside the transit zone, which they could not leave in the direction of Hungary. They alleged that the transit zone was, in their view, unsuitable for a stay longer than a day, especially in the face of their severe psychological condition. They were effectively locked in a confined area of some 110 square metres, part of the transit zone, surrounded by fence and guarded by officers; and were not allowed to leave it for Hungary. They claimed that they had no access to legal, social or medical assistance while in the zone. Moreover, there was no access to television or the Internet, landline telephone or any recreational facilities. They submitted that they stayed in a room of some 9 square metres containing beds for five.
11.The Government submitted that the containers measured 15 square metres. There were five beds in each container and an electric heater. The number of asylum-seekers never exceeded thirty in the material period. Hot and cold running water and electricity were supplied. Three pork-free meals were available daily to the applicants in a dining-container. Medical care was available for two hours daily by doctors of the Hungarian Defence Force.
12.According to the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) (see paragraphs 36 below), asylum seekers in the Röszke zone were accommodated in rooms of some 13 square metres in ground surface that were equipped with two to five beds fitted with clean mattresses, pillows and bedding. The accommodation containers had good access to natural light and artificial lighting, as well as to electric heating. Further, there was a narrow designated area in front of the containers to which foreign nationals had unrestricted access during the day. The sanitary facilities were satisfactory. The CPT delegation had a good impression of the health-care facilities and the general health care that was provided to foreign nationals in the establishment.
13.The applicants, both illiterate, were interviewed at once by the Citizenship and Immigration Authority (“the asylum authority”). By mistake, the first applicant was interviewed with the assistance of an interpreter in Dari, which he does not speak. Both applicants’ mother tongue was Urdu. According to the record of the meeting, the asylum authority gave the first applicant an information leaflet on asylum proceedings, which was also in Dari. The interview lasted two hours. An Urdu interpreter was present for the second applicant’s interview, which lasted 22 minutes.
14.According to the notes taken during the interviews Hungary was the first country where both applicants had applied for asylum.
15.By a decision delivered on the very same day of 15 September 2015, the asylum authority rejected the applicants’ asylum applications, finding them inadmissible on the grounds that Serbia was to be considered a “safe third country” according to Government Decree no. 191/2015. (VII.21.) on safe countries of origin and safe third countries (“the Government Decree”, see paragraph 33 below). The asylum authority ordered the applicants’ expulsion from Hungary.
16.The applicants challenged the decision before the Szeged Administrative and Labour Court. On 20 September 2015 the applicants, through representatives of the Office of the United Nations High Commissioner for Refugees (“UNHCR”) who had access to the transit zone, authorised two lawyers acting on behalf of the Hungarian Helsinki Committee to represent them in the judicial review procedure. However, the authorities did not allow the lawyers to enter the transit zone to consult with their clients until the evening of 21 September 2015, that is, after the court hearing.
17.On 21 September 2015 the court held a hearing regarding both applicants with the assistance of an Urdu interpreter. Both applicants stated that they had received a document from the Serbian authorities written in Serbian, which they could not understand, and that they had been ordered to leave Serbian territory. At the hearing, the second applicant submitted that he had applied for asylum in Serbia, but his application had not been examined.
18.The court annulled the asylum authority’s decisions and remitted the case to it for fresh consideration. It relied on section 3(2) of the Government Decree and argued that the asylum authority should have analysed the actual situation in Serbia regarding asylum proceedings more thoroughly. It should also have informed the applicants of its conclusions on that point and afforded them three days to rebut the presumption of Serbia being a “safe third country” with the assistance of legal counsel.
19.On 23 September 2015, at the request of their lawyers, a psychiatrist commissioned by the Hungarian Helsinki Committee visited the applicants in the transit zone and interviewed them with the assistance of an interpreter attending by telephone. Her opinion stated that the first applicant (Mr Ilias) had left Bangladesh in 2010 partly because of a flood and partly because two political parties had been trying to recruit him. When he refused, he was attacked and suffered injuries. The psychiatrist observed that he was well oriented, able to focus and recall memories, but showed signs of anxiety, fear and despair. He was diagnosed with post-traumatic stress disorder (“PTSD”[1]).
20.With regard to the second applicant (Mr Ahmed), the medical report stated that he had fled his country five years before. He had previously worked abroad, during which time his whole family had died in a flood. He had then left Bangladesh and migrated through several countries in order to restart his life. He was found to be well oriented with no memory loss but with signs of depression, anxiety and despair. He was diagnosed with PTSD and as having an episode of depression.
21.Neither of the reports contained any indication of urgent medical or psychological treatment. However, the psychiatrist was of the opinion that the applicants’ mental state was liable to deteriorate due to the confinement.
22.According to the documents in the case file, on 23 September 2015 the asylum authority informed the applicants’ legal representatives by telephone that a hearing would be held two days later. However, the applicants submitted that no such precise information had been given to their representatives.
23.Since their legal representatives were not present at the hearing, the applicants decided not to make any statement. With the assistance of an Urdu interpreter, the asylum authority informed the applicants that they had three days to rebut the presumption of Serbia being a safe third country.
24.On 28 September 2015 the applicants’ legal representatives made submissions to the asylum authority and requested that a new hearing be held, which they would attend.
25.On 30 September 2015 the asylum authority again rejected the applications for asylum. It found that the reports prepared by the psychiatrist had not provided enough grounds to grant the applicants the status of “persons deserving special treatment” since they had not revealed any special need that could not be met in the transit zone. As to the status of Serbia being classed as a “safe third country”, the asylum authority noted that the applicants had not referred to any pressing individual circumstances substantiating the assertion that Serbia was not a safe third country in their case, thus they had not managed to rebut the presumption. As a consequence, the applicants’ expulsion from Hungary was ordered.
26.The applicants sought judicial review by the Szeged Administrative and Labour Court. On 5 October 2015 the court upheld the asylum authority’s decision. It observed in particular that, in the resumed proceedings, the asylum authority had examined, in accordance with the guidance of the court, whether Serbia could be regarded generally as a safe third country for refugees and had found on the basis of the relevant law and the country information obtained that it was so. It had considered the report of the Belgrade Centre for Human Rights published in 2015, the reports of August 2012 and June 2015 issued by the UNHCR concerning Serbia together with other documents submitted by the applicants. It had established on the basis of those documents that Serbia satisfied the requirements of section 2 (i) of the Asylum Act. The court was satisfied that the asylum authority had established the facts properly and observed the procedural rules, and because the reasons for its decision were clearly stated and were reasonable.
27.The court further emphasised that the applicants’ statements given at the hearings were contradictory and incoherent. The first applicant had given various reasons for leaving his country and made confusing statements on whether he had received any documents from the Serbian authorities. The document he had finally produced was not in his name, and therefore it could not be taken into account as evidence. Never in the course of the administrative proceedings had he referred to the conduct of human traffickers before his hearing by the court. The second applicant’s statements were incoherent on the issue of the duration of his stay in Serbia and the submission of a request for asylum. The applicants had not relied on any specific fact that could have led the authority to consider Serbia non-safe in their respect. They had contested the safety of Serbia only in general which was not sufficient to rebut the presumption.
28.Lastly, the court was satisfied that the authority’s procedure had been in compliance with the law.
29.The final decision was served on the applicants on 8 October 2015. It was written in Hungarian but explained to them in Urdu. Escorted to the Serbian border by officers, the applicants subsequently left the transit zone for Serbia without physical coercion being applied.
30.On 22 October 2015 the transcript of the court hearing held on 5October 2015 was sent to the applicants’ lawyer. On 10 December 2015 the lawyer received the Urdu translation of the court’s decision taken at the hearing. On 9 March 2016 the applicants’ petitions for review were dismissed on procedural grounds, since the Kúria held that it had no jurisdiction to review such cases.
34.The Directive 2013/32/EU of the European Parliament and of the Council of 26June 2013 on common procedures for granting and withdrawing international protection (recast) contains the following passages:
 “(38) Many applications for international protection are made at the border or in a transit zone of a Member State prior to a decision on the entry of the applicant. Member States should be able to provide for admissibility and/or substantive examination procedures which would make it possible for such applications to be decided upon at those locations in well-defined circumstances.
(39) In determining whether a situation of uncertainty prevails in the country of origin of an applicant, Member States should ensure that they obtain precise and up-to-date information from relevant sources such as EASO, UNHCR, the Council of Europe and other relevant international organisations. Member States should ensure that any postponement of conclusion of the procedure fully complies with their obligations under Directive 2011/95/EU and Article 41 of the Charter, without prejudice to the efficiency and fairness of the procedures under this Directive.
...
(43) Member States should examine all applications on the substance, i.e. assess whether the applicant in question qualifies for international protection in accordance with Directive 2011/95/EU, except where this Directive provides otherwise, in particular where it can reasonably be assumed that another country would do the examination or provide sufficient protection. In particular, Member States should not be obliged to assess the substance of an application for international protection where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to that country.
(44) Member States should not be obliged to assess the substance of an application for international protection where the applicant, due to a sufficient connection to a third country as defined by national law, can reasonably be expected to seek protection in that third country, and there are grounds for considering that the applicant will be admitted or readmitted to that country. Member States should only proceed on that basis where that particular applicant would be safe in the third country concerned. In order to avoid secondary movements of applicants, common principles should be established for the consideration or designation by Member States of third countries as safe.
(45) Furthermore, with respect to certain European third countries, which observe particularly high human rights and refugee protection standards, Member States should be allowed to not carry out, or not to carry out full examination of, applications for international protection regarding applicants who enter their territory from such European third countries.
(46) Where Member States apply safe country concepts on a case-by-case basis or designate countries as safe by adopting lists to that effect, they should take into account, inter alia, the guidelines and operating manuals and the information on countries of origin and activities, including EASO Country of Origin Information report methodology, referred to in Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office (6), as well as relevant UNHCR guidelines.
(47) In order to facilitate the regular exchange of information about the national application of the concepts of safe country of origin, safe third country and European safe third country as well as a regular review by the Commission of the use of those concepts by Member States, and to prepare for a potential further harmonisation in the future, Member States should notify or periodically inform the Commission about the third countries to which the concepts are applied. The Commission should regularly inform the European Parliament on the result of its reviews.
(48) In order to ensure the correct application of the safe country concepts based on up-to-date information, Member States should conduct regular reviews of the situation in those countries based on a range of sources of information, including in particular information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations. When Member States become aware of a significant change in the human rights situation in a country designated by them as safe, they should ensure that a review of that situation is conducted as soon as possible and, where necessary, review the designation of that country as safe. ...”
Article 31
Examination procedure
“...
8. Member States may provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be accelerated and/or conducted at the border or in transit zones in accordance with Article 43 if:
...
(b) the applicant is from a safe country of origin within the meaning of this Directive ...”
Article 33
Inadmissible applications
“1. In addition to cases in which an application is not examined in accordance with Regulation (EU) No 604/2013, Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive 2011/95/EU where an application is considered inadmissible pursuant to this Article.
2. Member States may consider an application for international protection as inadmissible only if:
(a) another Member State has granted international protection;
(b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 35;
(c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 38;
(d) the application is a subsequent application, where no new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95/EU have arisen or have been presented by the applicant; or
(e) a dependant of the applicant lodges an application, after he or she has in accordance with Article 7(2) consented to have his or her case be part of an application lodged on his or her behalf, and there are no facts relating to the dependant’s situation which justify a separate application.”
Article 35
The concept of first country of asylum
“A country can be considered to be a first country of asylum for a particular applicant if:
(a) he or she has been recognised in that country as a refugee and he or she can still avail himself/herself of that protection; or
(b) he or she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement,
provided that he or she will be readmitted to that country.
In applying the concept of first country of asylum to the particular circumstances of an applicant, Member States may take into account Article 38(1). The applicant shall be allowed to challenge the application of the first country of asylum concept to his or her particular circumstances.”
Article 36
The concept of safe country of origin
“1. A third country designated as a safe country of origin in accordance with this Directive may, after an individual examination of the application, be considered as a safe country of origin for a particular applicant only if:
(a) he or she has the nationality of that country; or
(b) he or she is a stateless person and was formerly habitually resident in that country, and he or she has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her qualification as a beneficiary of international protection in accordance with Directive 2011/95/EU.
2. Member States shall lay down in national legislation further rules and modalities for the application of the safe country of origin concept.”
Article 38
The concept of safe third country
“1. Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking international protection will be treated in accordance with the following principles in the third country concerned:
(a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
(b) there is no risk of serious harm as defined in Directive 2011/95/EU;
(c) the principle of non-refoulement in accordance with the Geneva Convention is respected;
(d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and
(e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.
2. The application of the safe third country concept shall be subject to rules laid down in national law, including:
(a) rules requiring a connection between the applicant and the third country concerned on the basis of which it would be reasonable for that person to go to that country;
(b) rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;
(c) rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances. The applicant shall also be allowed to challenge the existence of a connection between him or her and the third country in accordance with point (a).
3. When implementing a decision solely based on this Article, Member States shall:
(a) inform the applicant accordingly; and
(b) provide him or her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.
4. Where the third country does not permit the applicant to enter its territory, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II...”
Article 39
The concept of European safe third country
“1. Member States may provide that no, or no full, examination of the application for international protection and of the safety of the applicant in his or her particular circumstances as described in Chapter II shall take place in cases where a competent authority has established, on the basis of the facts, that the applicant is seeking to enter or has entered illegally into its territory from a safe third country according to paragraph 2.
2. A third country can only be considered as a safe third country for the purposes of paragraph 1 where:
(a) it has ratified and observes the provisions of the Geneva Convention without any geographical limitations;
(b) it has in place an asylum procedure prescribed by law; and
(c) it has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and observes its provisions, including the standards relating to effective remedies.
3. The applicant shall be allowed to challenge the application of the concept of European safe third country on the grounds that the third country concerned is not safe in his or her particular circumstances.
4. The Member States concerned shall lay down in national law the modalities for implementing the provisions of paragraph 1 and the consequences of decisions pursuant to those provisions in accordance with the principle of non-refoulement, including providing for exceptions from the application of this Article for humanitarian or political reasons or for reasons of public international law.
5. When implementing a decision solely based on this Article, the Member States concerned shall:
(a) inform the applicant accordingly; and
(b) provide him or her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.
6. Where the safe third country does not readmit the applicant, Member States shall ensure that access to a procedure is given in accordance with the basic principles and guarantees described in Chapter II.
7. Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with this Article...”
Article 43
Border procedures
“1. Member States may provide for procedures, in accordance with the basic principles and guarantees of Chapter II, in order to decide at the border or transit zones of the Member State on:
(a) the admissibility of an application, pursuant to Article 33, made at such locations; and/or
(b) the substance of an application in a procedure pursuant to Article 31(8).
2. Member States shall ensure that a decision in the framework of the procedures provided for in paragraph 1 is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant shall be granted entry to the territory of the Member State in order for his or her application to be processed in accordance with the other provisions of this Directive.
3. In the event of arrivals involving a large number of third-country nationals or stateless persons lodging applications for international protection at the border or in a transit zone, which makes it impossible in practice to apply there the provisions of paragraph 1, those procedures may also be applied where and for as long as these third-country nationals or stateless persons are accommodated normally at locations in proximity to the border or transit zone.”
35.The Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) provides as follows:
Article 8
Detention
“1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.
2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively.
3. An applicant may be detained only:
(a) in order to determine or verify his or her identity or nationality;
(b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;
(c) in order to decide, in the context of a procedure, on the applicant’s right to enter the territory;
(d) when he or she is detained subject to a return procedure under 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, in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision;
(e) when protection of national security or public order so requires;
(f) in accordance with Article 28 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.
The grounds for detention shall be laid down in national law.
4. Member States shall ensure that the rules concerning alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place, are laid down in national law.”
36.The Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 21 to 27October 2015 contains the following passages:
“The CPT notes the efforts made to provide information and legal assistance to foreign nationals in immigration and asylum detention. However, a lack of information on their legal situation, on the future steps in their respective proceedings and the length of their detention was perceived by foreign nationals as a major problem in most of the establishments visited ...
As regards the safeguards to protect foreign nationals against refoulement, the CPT expresses doubts, in view of the relevant legislative framework and its practical operation, whether border asylum procedures are in practice accompanied by appropriate safeguards, whether they provide a real opportunity for foreign nationals to present their case and whether they involve an individual assessment of the risk of ill-treatment in the case of removal.
...
“The two transit zones visited by the delegation at Röszke and Tompa were located on Hungarian territory ... Different containers served as offices, waiting rooms, a dining room and sanitary facilities (with toilets, wash basins, showers and hot-water boilers), and approximately ten of them were used for the accommodation of foreign nationals. (In footnote: The sanitary facilities were in a good state and call for no particular comment.)
...
All accommodation containers measured some 13 m² and were equipped with two to five beds fitted with clean mattresses, pillows and bedding. They were clean and had good access to natural light and artificial lighting, as well as to electric heating. Further, in both transit zones visited, there was a narrow designated area in front of the containers which was fenced off from the rest of the compound of the transit zone and to which foreign nationals had unrestricted access during the day.
As far as the delegation could ascertain, foreign nationals had usually only been held in the transit zones for short periods (up to 13 hours) and hardly ever overnight. That said, if foreign nationals were to be held in a transit zone for longer periods, the maximum capacity of the accommodation containers should be reduced and they should be equipped with some basic furniture.
...
On the whole, the delegation gained a generally favourable impression of the health-care facilities and the general health care provided to foreign nationals in all the establishments visited.
...
Further, some detained foreign nationals met by the delegation were unaware of their right of access to a lawyer, let alone one appointed ex officio. A few foreign nationals claimed that they had been told by police officers that such a right did not exist in Hungary. Moreover, the majority of those foreign nationals who did have an ex officio lawyer appointed complained that they did not have an opportunity to consult the lawyer before being questioned by the police or before a court hearing and that the lawyer remained totally passive throughout the police questioning or court hearing. In this context, it is also noteworthy that several foreign nationals stated that they were not sure whether they had a lawyer appointed as somebody unknown to them was simply present during the official proceedings without talking to them and without saying anything in their interest.
...
However, the majority of foreign nationals interviewed by the delegation claimed that they had not been informed of their rights upon their apprehension by the police (let alone in a language they could understand) and that all the documents they had received since their entry into the country were in Hungarian.
...
... many foreign nationals (including unaccompanied juveniles) complained about the quality of interpretation services and in particular that they were made to sign documents in Hungarian, the contents of which were not translated to them and which they consequently did not understand.
...
... the CPT has serious doubts whether border asylum procedures are in practice accompanied by appropriate safeguards, whether they provide a real opportunity for foreign nationals to present their case and involve an individual assessment of the risk of ill-treatment in case of removal and thus provide an effective protection against refoulement, bearing also in mind that, according to UNHCR, Serbia cannot be considered a safe country of asylum due to the shortcomings in its asylum system, notably its inability to cope with the increasing numbers of asylum applications...”
37.In a report entitled “Hungary as a country of asylum. Observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016”, published in May 2016, the UNHCR made the following observations:
“19. Additionally, as noted above in Paragraph 15, the Act on the State Border refers to asylum-seekers being “temporarily accommodated” in the transit zone. The Hungarian authorities claim that such individuals are not “detained” since they are free to leave the transit zone at any time in the direction from which they came. However, as outlined above in Paragraph 16, they are not allowed to enter Hungary. In UNHCR’s view, this severely restricts the freedom of movement and can be qualified as detention. As such, it should be governed inter alia by the safeguards on detention in the EU’s recast Reception Conditions Directive (RCD). ...
71. In any event, UNHCR maintains the position taken in its observations on the Serbian asylum system in August 2012 that asylum-seekers should not be returned to Serbia.141 While the number of asylum-seekers passing through that country has since greatly increased, leaving its asylum system with even less capacity to respond in accordance with international standards than before, many of UNHCR’s findings and conclusions of August 2012 remain valid. For example, between 1 January and 31August 2015, the Misdemeanour Court in Kanjiža penalized 3,150 third country nationals readmitted to Serbia from Hungary for illegal stay or illegal border crossing, and sentenced most of them to a monetary fine. Such individuals are denied the right to (re) apply for asylum in Serbia.”
38.A report entitled “Crossing Boundaries: The new asylum procedure at the border and restrictions to accessing protection in Hungary” by the European Council for Refugees and Exiles (ECRE) prepared on 1October2015 contains the following passages:
“... transfers to Hungary are liable to expose applicants to a real risk of chain deportation to Serbia, which may trigger a practice of indirect refoulement sanctioned by human rights law. On that very basis, a number of Dublin transfers to Hungary have been suspended by German and Austrian courts.
In view of the (retroactive) automatic applicability of the ‘safe third country’ concept in respect of persons entering through Serbia and the risk of refoulement stemming from their return to Hungary, ECRE calls on Member States to refrain from transferring applicants for international protection to Hungary under the Dublin Regulation.”
39.The ECRE’s “Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary” prepared in January 2016 contains the following passages:
 “An overwhelming amount of recent case law has cited the August and September legislative amendments to the Hungarian Asylum Act when preventing transfers to the country. Moreover, the Hungarian legislative revisions have impacted upon policy changes elsewhere, as evidenced by the Danish Refugee Appeals Board decision in October 2015 to suspend all Dublin transfers to Hungary ...
The entry into force in August and September 2015 of legislation creating a legal basis for the construction of a fence on the border between Hungary and Serbia in conjunction with further legislative amendments criminalising irregular entry and damage to the fence has resulted in an extremely hostile environment towards those seeking asylum, violating the right to asylum, the right to effective access to procedures and the non-criminalisation of refugees ...
It is the imposition of an admissibility procedure at the transit zones, and in particular the inadmissibility ground relating to the Safe Third Country concept, which has been at the forefront of most jurisprudence. Government Decree 191/2015 designates countries such as Serbia as safe, leading Hungarian authorities to declare all applications of asylum seekers coming through Serbia as inadmissible. Given the location of the transit zones at the Hungarian-Serbian border over 99% of asylum applications, without an in-merit consideration of the protection claims, have been rejected on this basis by the Office of Immigration and Nationality (OIN). Moreover, the clear EU procedural violations that this process gives rise to have been documented by the Hungarian Helsinki Committee as well as ECRE. From the latest statistics this process is still in full swing with the Commissioner for Human Rights submitting that between mid-September and the end of November 2015, 311 out of the 372 inadmissible decisions taken at both the border and in accelerated procedures were found as such on the safe third country concept ground. With a clear lack of an effective remedy against such a decision available and an immediate accompanying entry ban for 1 or 2 years, various actors as well as the judiciary have argued that Hungary is in breach of its non-refoulement obligations.”
40.A report entitled “Serbia As a Country of Asylum; Observations on the Situation of Asylum-Seekers and Beneficiaries of International Protection in Serbia” prepared in August 2012 by the UNHCR contains the following passages:
“4. UNHCR concludes that there are areas for improvement in Serbia’s asylum system, noting that it presently lacks the resources and performance necessary to provide sufficient protection against refoulement, as it does not provide asylum-seekers an adequate opportunity to have their claims considered in a fair and efficient procedure. Furthermore, given the state of Serbia’s asylum system, Serbia should not be considered a safe third country, and in this respect, UNHCR urges States not to return asylum-seekers to Serbia on this basis.
...
76. However, UNHCR received reports in November 2011 and again in February 2012 that migrants transferred from Hungary to Serbia were being put in buses and taken directly to the former Yugoslav Republic of Macedonia. ... There have been other reports that the Serbian police have rounded up irregular migrants in Serbia and were similarly sent back to the former Yugoslav Republic of Macedonia.
...
79. ... The current system is manifestly not capable of processing the increasing numbers of asylum- seekers in a manner consistent with international and EU norms. These shortcomings, viewed in combination with the fact that there has not been a single recognition of refugee status since April 2008, strongly suggest that the asylum system as a whole is not adequately recognizing those in need of international protection.”
41.A report entitled “Country Report: Serbia”, up-to-date as of 31December 2016, prepared by AIDA, Asylum Information Database, published by ECRE stated that the “adoption of the new Asylum Act, initially foreseen for 2016, has been postponed”.
42.A report entitled “The former Yugoslav Republic of Macedonia As a Country of Asylum” prepared in August 2015 by the UNHCR contains the following passage:
“5. The former Yugoslav Republic of Macedonia has a national asylum law, the Law on Asylum and Temporary Protection. This was substantially amended in 2012, with the amended version having come into force in 2013. UNHCR participated in the drafting process, in an effort to ensure that the legislation is in line with international standards. The law currently incorporates many key provisions of the 1951 Convention. Furthermore, the provisions on subsidiary protection in the law are in conformity with relevant EU standards. The law also provides for certain rights up to the standard of nationals for those who benefit from international protection, as well as free legal aid during all stages of the asylum procedure. Nevertheless, some key provisions are still not in line with international standards. In response to a sharp increase in irregular migration, the Law on Asylum and Temporary Protection was recently further amended to change the previously restrictive regulations for applying for asylum in the former Yugoslav Republic of Macedonia, which exposed asylum-seekers to a risk of arbitrary detention and push-backs at the border. The new amendments, which were adopted on 18 June 2015, introduce a procedure for registration of the intention to submit an asylum application at the border, protect asylum-seekers from the risk of refoulement and allow them to enter and be in the country legally for a short timeframe of 72 hours, before formally registering their asylum application.
...
46. Despite these positive developments, UNHCR considers that significant weaknesses persist in the asylum system in practice. At the time of writing, the former Yugoslav Republic of Macedonia has not been able to ensure that asylum-seekers have access to a fair and efficient asylum procedure. ... Inadequate asylum procedures result in low recognition rates, even for the minority of asylum-seekers who stay in the former Yugoslav Republic of Macedonia to wait for the outcome of their asylum claim.”
43.The European Commission’s Recommendation of 8.12.2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No. 604/2013 contains the following passages:
“(1) The transfer of applicants for international protection to Greece under Regulation (EU) No. 604/2013 (hereafter ‘the Dublin Regulation’) has been suspended by Member States since 2011, following two judgments of the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU)1, which identified systemic deficiencies in the Greek asylum system, resulting in a violation of the fundamental rights of applicants for international protection transferred from other Member States to Greece under Regulation (EC) No.343/2003. ...
(8) In its previous Recommendations, the Commission has noted the improvements that Greece has made to its legislative framework to ensure that the new legal provisions of the recast Asylum Procedures Directive 2013/32/EU and some of the recast Reception Conditions Directive 2013/33/EU have been transposed into the national legislation. A new law (Law 4375/2016) was adopted by the Greek Parliament on 3 April 201614. On 22 June 2016, the Parliament approved an amendment to Law 4375/2016 which, inter alia, modified the composition of the Appeals Committees and the right of asylum seekers to an oral hearing before them. On 31 August 2016, the Greek Parliament also adopted a law regarding school-aged refugee children residing in Greece. ...
(33) The Commission acknowledges the important progress made by Greece, assisted by the Commission, EASO, Member States and international and non-governmental organisations, to improve the functioning of the Greek asylum system since the M.S.S. judgement in 2011. However, Greece is still facing a challenging situation in dealing with a large number of new asylum applicants, notably arising from the implementation of the pre-registration exercise, the continuing irregular arrivals of migrants, albeit at lower levels than before March 2016, and from its responsibilities under the implementation of the EU-Turkey Statement. ...
(34) However, significant progress has been attained by Greece in putting in place the essential institutional and legal structures for a properly functioning asylum system and, there is a good prospect for a fully functioning asylum system being in place in the near future, once all the remaining shortcomings have been remedied, in particular as regards reception conditions and the treatment of vulnerable persons, including unaccompanied minors. It is, therefore, appropriate to recommend that transfers should resume gradually and on the basis of individual assurances, taking account of the capacities for reception and treatment of applications in conformity with relevant EU legislation, and taking account of the currently inadequate treatment of certain categories of persons, in particular vulnerable applicants, including unaccompanied minors. The resumption should, moreover, not be applied retroactively but concern asylum applicants for whom Greece is responsible starting from a specific date in order to avoid that an unsustainable burden is placed on Greece. It should be recommended that this date is set at 15 March 2017.”

5.The applicant was born in 1954 and lives in Sarbice Pierwsze.
A.Background to the case
6.On 1 January 1999 the applicant was a victim of a car accident in which he suffered several bodily injuries. He was treated in Hamburg until 27February 1999.
7.In the year 1999 the applicant was suspected of having committed several thefts of leased movable goods of considerable value, in particular cars, during the period he spent running a company.
8.In June 1999 the applicant moved to New Zealand and the proceedings against him were stayed.
9.On 29 March 2004 the Minister of Justice requested that the applicant be extradited to Poland.
10.Following an extradition hearing in New Zealand, in 2010 the applicant was transported to Poland.
B.The applicant’s arrest and detention
11.On 9March 2010 the applicant was arrested.
12.On 13March 2010 the Kielce District Court (Sąd Rejonowy) decided to detain him on remand for a period of three months, until 9 June 2010. The court referred to the reasonable suspicion that the applicant had committed the offences with which he was charged and in respect of which he would face, if found guilty, deprivation of liberty for a term exceeding eight years. It further noted that there was a reasonable fear that the applicant might obstruct the proceedings or go into hiding until the charges against him became time-barred. The court pointed out that the applicant had not remained at his place of residence, had refused to accept a summons from the prosecutor and, although he was aware that an investigation was being carried out in respect of him, he had moved to New Zealand in 1999 with a view to waiting until the charges that had been brought against him became time-barred; consequently, the proceedings against him had had to be stayed for ten years.
As regards the applicant’s state of health the court found that “the problems cited by the applicant do not require any medical treatment”.
13.On 7 June 2010 the applicant’s detention was extended until 7September 2010. The court again referred to the reasonable suspicion that the applicant had committed the offences with which he was charged and on the severity of the penalty to which he would be liable if found guilty. It further noted that there was a reasonable fear that the applicant might obstruct the proceedings or go into hiding. In this respect the court referred to the fact that the applicant had moved to New Zealand on a previous occasion and had had to be located by means of an international search.
14.The applicant appealed, referring, among other things, to his state of health. He submitted that he was suffering from serious neurological and orthopaedic problems which, if not treated properly, would pose a serious danger to his health.
15.On 29 July 2010 the Cracow Court of Appeal (Sąd Apelacyjny) upheld the challenged decision, confirming the Regional Court’s view that the detention had been justified by the severe penalty and the possibility that the applicant might obstruct the proceedings. As regards the applicant’s state of health the court referred to two medical experts’ opinions dated 15April and 14June 2010 respectively, according to which the applicant could be treated in the detention facilities and was able to participate in the trial.
16.On 25 August 2010 the relevant bill of indictment was submitted to the Kielce Regional Court (Sąd Okręgowy).
17.On 2 September 2010 the Kielce Regional Court extended the applicant’s detention for a further five months, until 4 February 2011. The court justified its decision by citing the high probability that the applicant had committed the offences with which he had been charged. It also found that there was a risk that the applicant might go into hiding or obstruct the proceedings; it did not, however, give any grounds for its findings. Lastly, the court stated that there were “no grounds for releasing the applicant from detention ... in particular, [there were none of the grounds listed] in Article259 of the Code of Criminal Proceedings”.
18.On 19 October 2010 the first hearing took place. Further hearings were scheduled for 2 and 30 December 2010, 25 January, 17 February, 17March, 5 and 28 April, 17 May, 16 June, 14 July, 4 August, 6, 27 and 29September, 6 and 27 October, 10 and 24 November, and 8 December 2011.
19.On 25 January 2011 the Kielce Regional Court again extended the applicant’s detention for further five months. Apart from the grounds previously relied on, the court noted that the applicant had requested that several new witnesses be heard and considered that he might influence their testimony if released. The court considered that the applicant’s declarations that he would appear before the court upon each and every summons did not correspond with his previous behaviour. It noted that on 19 October 2010 the applicant had resisted being taken to the court. According to the Government’s submissions he had refused to be taken to the court without a wheelchair which had been provided by his wife. Lastly, the court determined, relying on the opinion of an expert neurologist and orthopaedist, that the applicant could be treated in detention.
20.The applicant appealed. He referred, among other things, to his state of health, the fact that he had to use a wheelchair, that he was waiting for a spine operation and that he could not undergo physiotherapy under conditions of detention.
21.On 22 February 2011 the Cracow Court of Appeal upheld the challenged decision relying, as previously, on the fact that in the past the applicant had gone into hiding. The court also found that the applicant had again obstructed the proceedings in that he had refused to be transported to the court hearing without a wheelchair. The Court of Appeal did not uphold the Regional Court’s finding that the applicant might tamper with evidence; this, however, did not influence the court’s overall assessment of the circumstances of the case. As regards the applicant’s state of health, the court referred to a medical opinion issued on 28 October 2010 by an expert neurologist and orthopaedist according to which the applicant could participate in the court hearings and could be transported to court without a wheelchair.
22.On 21 June 2011 the Kielce Regional Court extended the applicant’s detention until 21 December 2011. The court noted that the results of the applicant’s recent treatment in the Łódź Prison hospital ward had been satisfactory and that according to the experts in neurology and orthopaedics (see paragraph 21 above) he could be treated in prison facilities. The applicant appealed.
23.On 13July 2011 the Cracow Court of Appeal examined the applicant’s appeal and upheld the challenged decision. As regards the applicant’s state of health, the court, relying on a physician expert opinion of May 2011, considered that there were no obstacles to his further detention and his treatment in the prison facilities. The court noted that if the applicant’s further detention threatened his health he could be released at any time ex officio.
24.Meanwhile, on 28 June 2011, the applicant underwent a medical examination ordered by the Kielce Regional Court. The applicant arrived for the examination in a wheelchair, from which he could not get up. The Government contested this submission. The doctor found that the applicant suffered from chronic pain of the thoracic and lumbar vertebral column on the basis of multilevel disc osteoarthritis and that he had suffered a spinal injury and left hip injury in 1999 and 2005 respectively. The doctor also ordered a further examination of the applicant, which took place on 16August 2011. On 16 October 2011 a fresh opinion was delivered, the relevant part of which reads as follows:
“There are obstacles to [an extension of the] stay of the applicant in the Kielce Detention Centre because he cannot receive neurological treatment there ... the results of the electromyography examination (EMG) show a gradually worsening] dysfunction of the peripheral nerves ... which qualifies the applicant for neurological surgery that can only be executed in a neurological ward. After the operation and rehabilitation treatment, depending on his neurological state, the patient will be able to continue his detention in the Kielce detention centre”.
The doctor further stated that an objective assessment of the neurological state of the applicant was not possible due to his lack of cooperation.
25.On 27 October 2011 the applicant’s lawyer requested that the Kielce Regional Court lift the preventive measure applied to the applicant and to release him from detention. The lawyer referred to the applicant’s state of health. He referred, among other things, to the fact that the Kielce Regional Court had to order breaks in hearings because the applicant had to rest “in a horizontal position”. He also requested that the court order a further examination of the applicant by a specialist in neurology.
26.On 8 November 2011 the Kielce Regional Court refused the applicant’s lawyer’s requests. The court held that it had already ordered a medical opinion on 2 November 2011 and that that opinion would be delivered soon. The court furthermore found that the circumstances justifying the applicant’s detention had not ceased to exist and that they had already been listed in the court’s decision of 21 June 2011. The court did not find it necessary to repeat them.
27.On 14 November 2011 a fresh opinion was delivered by a specialist in neurology. The doctor found that:
“1. The applicant’s further stay in detention and refusal of medical (neurological) treatment may constitute a serious danger to his health or even life.
2. The post-operation rehabilitation should take place in a good rehabilitation ward ...it may also take place in detention, however I do not know in which detention centre such a ward exists.”
28.On 14 November 2011 the applicant’s lawyer lodged an appeal against the court’s decision of 8 November 2011. He requested the court, in the event that the appeal was not granted, to change the preventive measure applied to the applicant and to impose bail on him of a “reasonable amount”.
29.On 22 November 2011 the Kielce Regional Court, sitting as a panel of three judges, upheld the challenged decision. The court held that the Kielce Regional Court, which made a decision in first instance in composition of single judge, had been aware of the applicant’s state of health and that this matter had been taken into account each time his detention had been extended. Apparently, the court had not yet become aware of the medical expert opinion of 14November 2011.
30.On 8 December 2011 the Kielce Regional Court, acting ex officio, released the applicant and imposed another preventive measure on him, namely that of police supervision. The court found that the grounds originally relied on to impose and extend the applicant’s detention, in particular the risk that he might go into hiding, still existed. However, given the applicant’s state of health, his release was necessary. The court referred to a medical opinion which was completed and issued on 14November 2011 (see above). It was determined that the only neurological ward in which the applicant could be treated in detention was at the Gdansk Remand Centre. The applicant, however, refused to agree to be operated on there. He undertook at the same time that if he were to be released, he would undergo such an operation once he was at liberty. He also indicated the address where he could be reached and where he would collect his correspondence.
31.On 8 December 2011 the applicant was released from detention.
32.According to the last information available to the Court, the criminal proceedings against him are still pending.
33.Between 12 and 20 January 2016 he was hospitalised again in a hospital in Katowice.
C.The applicant’s treatment in the prison facilities
34.According to the applicant’s submissions, at the time of his deportation to Poland from New Zealand the whole documentation pertaining to his case – including his medical file and information about medications that he was taking – had been handed over to the Polish authorities.
35.As stated by the Government and not contested by the applicant, the applicant had undergone a preliminary examination on 11 March 2010 and at that time he had not informed the doctor of any illness. He stated that he felt well. He had informed the prison authorities of his previously incurred injuries only after he had been detained at the Kielce Remand Centre. As stated by the Government and not contested by the applicant, the applicant had an easy access to the shower.
36.On 23 March 2010 the applicant was examined by the neurologist for the first time. He was advised to continue his pharmacological treatment (he had his own medications) and to use a hard mattress.
37.On 26 April 2010 the applicant was examined by a physician. He complained of problems with walking and was therefore prescribed crutches. The applicant submitted that he had been prescribed crutches after he had collapsed on the floor in cell no. 114 at the Kielce Remand Centre.
38.On 1 June 2010 the applicant underwent a further neurological examination. The relevant note made by the doctor read:
“He claims that he does not have the proper mattress (prescribed on 23 March 2010). Declares [that he has] pain in his left leg ... during the examination [he did] not follow simple orders but afterwards stood up without any problems (sprawnie) on his own. He walks with the aid of crutches”
39.On 17 June 2010 the applicant collapsed while being questioned at the police station. He was then taken to hospital.
40.On 28 June 2010 the physician considered it necessary to conduct a CAT scan of the applicant’s spine. The examination took place on 30June 2010.
41.On 30 July 2010 the applicant consulted a neurosurgeon who, after seeing the results of the CAT scan, found no grounds for the applicant to undergo a spine operation. He advised pharmacological treatment and physiotherapy.
42.On 25 August 2010 the applicant requested a wheelchair. According to the Government the director of the facility’s health centre found no grounds for granting his request.
43.According to the applicant’s submissions on 31 August 2010 he again collapsed on the floor in the corridor of block X of the Kielce Remand Centre. Only then was he prescribed a wheelchair. However, since the chair which he received in the detention centre was, according to his submission, in such a state that its use constituted a danger for persons using it, the applicant requested his wife to provide him with another wheelchair; this she did, on 8 October 2010, with the approval of the prison authorities. The Government submitted that the approval was granted for “social reasons” although there were no medical grounds for so doing. However, the applicant submitted copies of two medical certificates dated 31August2010, together with a note made by a psychiatrist, which read:
“The patient collapsed in the corridor (lost consciousness?) ... Patient in generally good condition.
- Wheelchair.
- Neurological examination”
The applicant submitted another note made by a neurologist, which read:
“Today [he] lost consciousness. He complains of pain in his left hip joint.”
44.The applicant submitted a copy of the record of the questioning of a certain S.L. for the purpose of civil proceedings for compensation which the applicant had instituted against the State Treasury. S.L., who had been placed in the same cell as the applicant between July and December 2010, testified, in so far as relevant, as follows:
“Our cell was on the [first] floor; one had to climb a long flight of stairs. The applicant used a wheelchair. I and J. (another cell inmate) would carry the applicant up these stairs. When J. was not there one of guards would come and help us out.”
45.On 19 October 2010 the applicant resisted being taken to the court hearing without a wheelchair.
46.On the same day a doctor examined the applicant at the request of the Kielce Regional Court. The relevant parts of the medical certificate issued after the examination read as follows:
“Today he claims that his left leg is weak [and that] he has pain in his lumbar spine. ... While undressing, he easily lifts his legs without manifesting pain. When he stands up he drags his left leg and claims that he cannot stand on that leg because it is weak.
In the detention he occasionally (okresowo) uses a wheelchair; however, during none of the neurological or neurosurgeon consultations was it determined that the applicant needed to use a wheelchair.
In connection with the pain reported by the applicant and the results of his medical examinations, the specialist opinion of an expert neurosurgeon or neurologist is necessary in order to determine whether the applicant may be transported to court without a wheelchair. Aggravation possible.”
47.On 18 February 2011 the applicant complained about the pain in his spine and he was transported to Łódź prison no. 2, where he underwent treatment in the prison hospital. He remained there until 21 April 2011.
48.During his stay in the prison hospital he remained in a cell which had been adapted for detainees using wheelchairs. According to the Government’s submissions not contested by the applicant he had the assistance of professional “carriers” when he wanted to go to the exercise yard (the Government did not explain what exactly should be understood under that notion, in particular whether the “carriers” referred to above were the prison guards or other prison staff). He attended various forms of kinesiotherapy, including exercises to strengthen the muscles of his legs, and various other forms of treatment. He also consulted a dermatologist, orthopaedist, neurologist and ophthalmologist.
49.After his release from the prison hospital the applicant was advised to continue performing the exercises he had been taught. From 21April 2011 until his release on 8December 2011 he was again detained in the Kielce Remand Centre.
50.As emerges from the decision of 10January 2012 about the degree of the applicant’s disability, he was moderately disabled and able to work in special conditions. He did not need constant assistance of another person.

THE CIRCUMSTANCES OF THE CASE
6.The applicant was born in 1986 and lives in Nizhniy Novgorod.
A.The applicant’s alleged ill-treatment at the Sovetskiy district police station in Nizhniy Novgorod
7.At about 10.30 a.m. on 24 May 2004 two police officers from the Sovetskiy district police visited the applicant and invited him to answer some questions. With the permission of his mother, the applicant, a minor at the time, accompanied them to the Sovetskiy district police station in Nizhniy Novgorod.
8.The applicant’s interview took place in room no. 306. He was asked questions concerning the rape of a girl he knew, but stated that he had nothing to do with the crime.
9.According to the applicant, some police officers tied him up and put him on the floor. About forty minutes later they untied him and requested that he confess to the rape. He refused. Four or five police officers punched and kicked him in the head and body, throttled him with a baton, put a plastic bag over his head and blocked off his access to air, sat and jumped on him having covered him with a blanket, grabbed him by the ears and forced him to do the splits.
10.Fearing that the ill-treatment would continue, the applicant signed a self-incriminating statement at the request of the police officers. He was then taken to see S., an investigator at the prosecutor’s office. After being questioned by S. he was released. He remained at the police station for approximately ten hours. No documents concerning his detention were issued.
11.On 25 and 26 May 2004 the applicant underwent various medical examinations, including by a forensic medical expert. Additional opinions by forensic medical experts were given later. According to the applicant’s medical records, he sustained the following injuries: a closed head injury, concussion, abrasions on and behind the ears and on the arms and knees, bruising on the right shoulder and ribcage and bruises on the buttocks. He was unable to attend school until 15 June 2004, having been issued a sick note on 26May 2004 for concussion.
12.The rape victim gave a statement saying that the applicant was not the person who had raped her. No criminal proceedings were brought against him.
B.The authorities’ investigation into the applicant’s allegations of ill-treatment
13.On 26 May 2004 the applicant’s mother lodged a complaint with the Sovetskiy district police, alleging that the police officers had subjected her son to ill-treatment in order to make him confess to a crime which he had never committed, and requesting that they be prosecuted.On 28May 2004 her complaint was transferred to the Sovetskiy district prosecutor’s office.
14.In accordance with Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”), six refusals to institute criminal proceedings against the police officers were issued on the grounds that the constituent elements of a crime were missing. They were each set aside because a comprehensive inquiry had not been carried out. On 20 February 2006 the Nizhniy Novgorod regional prosecutor’s office instituted criminal proceedings under Article 286 § 3 (a) of the Criminal Code (abuse of authority with the use of violence).
15.On 28 February 2006 the applicant was granted victim status.
16.Police officers A. and G. gave statements saying that on 24 May 2004 they had invited the applicant to accompany them to the police station. He had remained in room no.306 until evening and they had been present in the room, as had police officer F., who had taken statements from him. They denied any ill-treatment of the applicant.
17.On 11 May 2006 the applicant failed to identify A. and G. during an identification parade.
18.On 14 July 2006 he identified operative police officer F. from a photograph as one of the men who had ill-treated him. On the same day the investigation was suspended on the grounds that the perpetrator had not been identified.
19.On 27 July 2006 the investigation was resumed and the applicant identified F. during an identification parade. During his examination as a suspect F. confirmed that on 24May 2004 he had taken statements from the applicant in room no. 306, but denied using any violence.
20.On 24 August 2006 a face-to-face confrontation was carried out between the applicant and F. The applicant stated that F. had taken part in his ill‑treatment and had taken the confession from him. He was unable to recall any specific acts of violence by him.
21.On 25 August 2006 the criminal proceedings against F. were discontinued under Article 27 (1) § 1 of the CCrP on the grounds that he had not been involved in the crime.
22.On 10 January 2007 an on-site examination of room no.306 was carried out.
23.On 26 January 2007 a confrontation was held between the applicant and police officers A. and G., who again both denied using any violence towards the applicant. The applicant stated that A. had taken part in his ill‑treatment, but he was unable to recall any specific acts of violence by him. He explained that he had not previously identified A. because he had poor eyesight. On the same day the investigating authority refused to bring criminal proceedings against A. on the grounds that the constituent elements of a crime were missing. The applicant stated that G. had not assaulted him, but had interviewed him and had been present during his ill-treatment.
24.On 26 January 2007 photographs of several other police officers were shown to the applicant. He did not identify the culprits.
25.On the same day the criminal proceedings were suspended on the grounds that the perpetrators had not been identified. The investigation was subsequently resumed and on 19April 2007 was suspended again on the same grounds.
C.Compensation proceedings
26.In 2008 the applicant brought a civil claim against the Russian Ministry of Finance, seeking 500,000 Russian roubles (RUB) in damages in connection with his torture by the police. He stated that the circumstances of the case gave reason to believe that the amount claimed was lower than compensation to which he would be entitled under Article 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms, however he considered it preferable to settle the case at the domestic court.
27.On 17 November 2008 the Sovetskiy District Court of Nizhniy Novgorod (“the District Court”) acknowledged a violation of the applicant’s right not to be subjected to treatment proscribed under Article 3 of the Convention, allowed the applicant’s civil claim in part and awarded him RUB50,000 (about 1,450 euros (EUR)).
28.It referred to Convention case‑law under Article 3 concerning the State’s obligation to carry out an effective investigation, notably the case of Mikheyev v. Russia (no.77617/01, 26 January 2006). It noted that the criminal proceedings had been initiated after six refusals to do so and that it had been acknowledged that the applicant had been the victim of a crime.
29.The District Court gave credence to the applicant’s mother’s version of events, which it found to be consistent with other evidence in the case, in particular statements by her that the applicant had had no injuries when he had left home with the police officers and that his health had appeared to have been damaged when he had returned from the police station. Noting that the respondent authorities and the Sovetskiy district police, acting as a third party in the proceedings, had submitted no evidence capable of proving that the applicant could have received the injuries (see paragraph11 above) in other circumstances, the District Court established that they had been sustained during his detention at the police station.
30.The District Court noted that the applicant had been a minor at the time and that, according to his submissions at the hearing, various acts of violence, to which the police officers of the Sovetskiy district police had, in the exercise of their duties, subjected him (see paragraph 9 above), had caused him mental and physical suffering. According to the applicant, he had suffered severe pain as a result of the police officers’ violent actions, which had included being punched, kicked, throttled with a baton, being unable to breath, being sat on and jumped on, being forced to do the splits and so on. He had been dizzy, nauseous and sick. Over the next few days he had been weak and dizzy and had felt heaviness in the back of his head. When the police officers had tried to throttle him he had feared for his life. There had been no one to ask for help. The fact that he had suffered harm at the hands of the police, who were supposed to be there to protect people, had been especially traumatic. He had been scared, subdued and depressed. His honour and dignity had been damaged. In his eyes, by forcing him to sign the confession the police officers had humiliated him.
31.Having examined the evidence in its entirety, in particular the medical evidence of the applicant’s injuries, the District Court found that the applicant’s mental and physical suffering had been caused by the unlawful actions of the police officers of the Sovetskiy district police department, in particular by the inhuman and degrading treatment and by inflicting bodily harm. Therefore, his rights under Article 37 of the United Nations Convention on the Rights of the Child and Article 3 of the European Convention on Human Rights had been violated.
32.Relying on the Russian Constitution, in particular the provisions concerning the right to compensation for damage sustained as a result of the unlawful actions of State organs (Article 53), the District Court held that the State was responsible for the applicant’s ill-treatment regardless of the fact that the guilt of specific individuals had so far not been established.
33.The parties appealed against the judgment. The applicant contested the amount of compensation, considering it to be disproportionate to the suffering he had endured.
34.On 3 March 2009 the Nizhniy Novgorod Regional Court dismissed the applicant’s appeal and upheld the judgment. However, it emphasised the fact that, being a minor at the time, to be held at the police station for approximately ten hours was a long time, and that the authorities had been unable to provide any legitimate reasons for his detention.

1. The applicant, Mr Florin Urzică, is a Romanian national, who was born in 1969 and is detained in Jilava Prison.
2. He had been granted legal aid and was represented before the Court by Ms D. O. Hatneanu and Mr S. Grecu, lawyers practising in Bucharest.
3. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
A. The circumstances of the case
4. On 29 February 2012 the applicant was arrested on suspicion of theft and brought to Bucharest police station. He alleged that he had been beaten by police officers during his arrest and at the premises of the police station to force a confession to a few thefts.
5. On the same day, the applicant was taken to the prosecutor ’ s office attached to the Bucharest District Court to be questioned. As he complained of strong pain in the cervical area and his upper jaw, an ambulance took him to Bucharest Emergency Hospital.
6. According to the medical certificate produced upon his discharge from hospital on 1 March 2012, the applicant had facial injuries with severe black eyes and an injury on his right leg. He was also diagnosed with a cervical spine injury and it was recommended that he use a cervical collar for fourteen days.
7. The applicant brought criminal proceedings against the police officers involved in his arrest and questioning, complaining of ill-treatment.
8. On 11 March 2014 the prosecutor ’ s office attached to the Bucharest Court of Appeal decided to open a criminal investigation concerning the offences of abusive behaviour and torture.
9. On 21 March 2014 the prosecutor ’ s office decided not to institute criminal proceedings, finding that the violence to which the applicant had been subjected had not been committed by the defendants.
10. The applicant challenged that decision before the chief prosecutor. By a decision of 14 April 2014 the chief prosecutor partly allowed the complaint. It changed the legal basis for the discontinuation of the investigation from Article 16 § 1 (c) into Article 16 § 1 (b) of the Code of Criminal Procedure (“the CCP”). Thus, instead of dismissing the complaint on the grounds that the ill-treatment had been committed by other persons, it found that the police officers had caused the injuries but without intention. It noted that according to the evidence in the file the applicant ’ s injuries mentioned in the medical documents had been caused because he had resisted arrest when caught red-handed.
11. The applicant was notified of the decision on the same day. In a letter accompanying the decision, it was mentioned that his complaint had been allowed and that he could challenge the decision before a more senior prosecutor under Article 399 of the CCP within twenty days. However, the applicant did not lodge an appeal against the chief prosecutor ’ s decision.
B. Relevant domestic law
12. On 1 February 2014 a new CCP entered into force.
13. Article 16 § 1 of the CCP provides that criminal proceedings cannot be instituted and, if instituted, cannot be continued if, inter alia, the act committed is not proscribed by criminal law or was not committed with the mens rea required by law (sub-paragraph (b)) and/or if there is no evidence that the defendant committed the offence (sub-paragraph (c)).
14. The prosecutor ’ s decisions can be challenged by the victim first before the chief prosecutor under Article 399 of the CCP and then, if the former dismisses the complaint, before the judge of the pre-trial chamber (Articles 340-42 of the CCP). Under Article 340 of the CCP an applicant can lodge an appeal against the decision of the chief prosecutor within twenty days of the date on which the decision was communicated to him.
15. The Constitutional Court held in its decision no. 599 of 21 October 2014 published in the Official Gazette no. 866 of 5 December 2014 that Article 341 § 5 of the CCP was unconstitutional. It considered that the procedure by which the pre-trial chamber judge decided on a complaint against decisions of non-prosecution or dismissal of charges “without the participation of the individual bringing the complaint, the prosecutor and the defendant” infringed the right to a fair trial in terms of the adversarial and oral arguments principles.
16. Pursuant to Article 147 § 4 of the Romanian Constitution republished on 31 October 2003, “[d ]ecisions of the Constitutional Court shall be published in the Official Gazette of Romania. As of their publication, decisions shall be generally binding and effective only for the future”. Pursuant to Article 147 § 1 of the Constitution, the provisions of the laws, ordinances and regulations in force found to be unconstitutional cease to have legal force within forty-five days of the publication of the decision of the Constitutional Court if, in the meantime, the Parliament or the Government, as the case may be, cannot bring the said provisions into line with the provisions of the Constitution.

1. The applicants, whose names and dates of birth are listed in the annex to this decision (“the applicants”), are seventy-six Romanian nationals of Roma ethnic origin who live or used to live in Tulcea. They were represented before the Court by the European Roma Rights Centre (“ERRC”), a non-governmental organisation based in Budapest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian 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. Background to the case
4. The applicants are or used to be residents of the town of Tulcea. They are of Roma ethnic origin.
5. Before July 1999 many of the applicants had lived in an informal Roma slum located in central Tulcea. In July 1999 their homes were destroyed by an accidental fire and they were rendered homeless. Afterwards they were forced to live outdoors in unsafe conditions and did not receive any assistance from the authorities.
6. In December 1999 the applicants moved, with the local authorities ’ permission, into an unoccupied building in Tulcea that had belonged to a State-owned factory.
7. For years the applicants and other people continued to live in that building even though the living conditions were poor and overcrowded. Despite not having a lawful right to occupy the building, the applicants ’ presence there was tolerated and they paid charges for water and electricity.
8. According to the applicants, they asked the local authorities on numerous occasions to assist them with regularising their status but their requests remained unsuccessful.
9. The applicants were temporarily evicted from the building for the first time in 2005 following a court order. After the eviction order was overturned, they returned to the building and continued to live there.
10. On an unspecified date the building was sold by its former owner to a private investor, namely the company E.V. Prior to selling the building, the former owner had allegedly attempted to donate the building to the local authorities, but his offer was refused by them.
2. The applicants ’ relocation
11. On 29 July 2004 Tulcea Local Council adopted a decision concerning the allocation of social housing in Tulcea that made higher education a decisive criterion for examining potential applications. The decision concerned social housing located in the city.
12. On 30 September 2004 Tulcea Local Council again adopted a decision concerning the allocation of social housing in Tulcea that made higher education a decisive criterion for examining potential applications. This decision concerned social housing located on a particular street.
13. On 25 January 2006 the company E.V. brought eviction proceedings against some of the occupants of the building, namely the third, ninth, tenth, fifteenth, sixteenth, twenty-first, twenty-third, twenty-fifth, twenty-ninth, forty, forty-first, forty-seventh, sixty-second, sixty-seventh, seventy-first and seventy-second applicants. The remaining the applicants were not parties to the eviction proceedings.
14. By a judgment of 27 March 2006 the Tulcea District Court allowed the company ’ s action for eviction. It held that the company was the lawful owner of the building and had a right to enjoy its use. The occupants had no lawful right to occupy the building and therefore had to vacate it. The judgment was upheld by the Tulcea County Court on 17 August 2006 and by the final judgment of the Constanța Court of Appeal on 19 January 2007.
15. On an unspecified date the applicants who were parties to the eviction proceedings contested the eviction order issued against them on the basis of the judgment of 27 March 2006.
16. By a judgment of 24 October 2006 the Tulcea District Court dismissed the proceedings seeking to contest the eviction order on the grounds that the said order was lawful. There is no evidence in the file that any of the applicants appealed against the judgment.
17. In October 2006 the occupants of the building, including all the applicants, were evicted. Among the applicants there were children, elderly and less able people.
18. The only shelter option offered to the applicants by the local authorities was a former army barracks building that had been disused since the 1970s located four kilometres outside Tulcea and known as “Pichet”. The aforementioned building was in an advanced state of disrepair and had been transferred to the local authorities in May 2006 in order to be converted into social housing. The area around the building was heavily industrialised and there were no other residential buildings in the same location. A large number of the applicants moved into the building, while the remaining applicants had to live on the street for two months. In December 2006 those of the applicants who remained homeless after the eviction accepted the local authorities ’ offer, as a temporary solution, to move into mobile homes that were placed on a former rubbish dump.
3. The applicants ’ living conditions at “Pichet” and at the rubbish dump
19. According to the applicants, when they moved to “Pichet” they found that the building was not connected to electricity, mains water or sewage facilities. The building had no doors or windows, no heating, a broken roof and damp and damaged walls. It was also infested by rats. The toilet facilities were communal and out of order and rubbish collection was rare. The available water supply had a visible heavy sediment and caused recurring stomach problems. Trucks unloaded bauxite and gravel directly behind the building. The trucks made a lot of noise and raised large quantities of dust which caused breathing difficulties. The noise caused by the nearby shipyard also affected the applicants ’ psychological well-being.
20. According to the applicants, they lived in overcrowded conditions because each family was assigned only one room and therefore up to seven people had to share it. Some of them had to abandon their jobs or found it increasingly difficult to find employment and the children were no longer able to attend school or kindergarten because of the travelling distance into Tulcea and the infrequent and unreliable public transport. Some of the children were too small to return home from school on foot unaccompanied by an adult. Others had been harassed or abused by drivers or other individuals when they returned home from school after dark.
21. According to the applicants, the mobile homes that were placed on the former rubbish dump were not meant to serve as long-term habitation, especially during extreme weather conditions. They deteriorated quickly and had to be repaired repeatedly by the authorities. Although they were connected to electricity, they were not connected to running water or sewage facilities. They had no heating system, were poorly ventilated and damp, and were very cold in the winter and very warm in the summer.
22. The rubbish dump had been closed down in 2006 and the land had not been properly decontaminated before the mobile homes were placed on it.
4. Press statements made by public officials
23. In press statements published in the local newspapers Obiectiv and Tulcea Express on 14 May 2005, 26 October 2006 and on an unspecified date during their eviction in 2006, the mayor of Tulcea stated in respect of the applicants ’ situation that: “... morally there could be a duty, but as mayor I have a duty towards law-abiding citizens, a duty towards the citizens who respect the community, a duty towards families with children who are gainfully employed. Some of them are living there without any papers to prove that they are citizens of Tulcea”. Also: “...Some citizens accused me of racism and some of positive discrimination. I did not set out to become the king of the gypsies in this town, because this is not why I have been elected. I have done a lot to meet the problems of this social category, but now it ’ s enough...”. And: “We are doing everything possible to provide them with some comfort at “Pichet”, where sixteen families have been relocated. For the rest other options were found. We have no houses available. Where would they like me to find a living space for them, at kilometre zero? Perhaps close to the market? Those who are not from Tulcea can go back to where they came from”.
24. In a press statement published on 17 October 2006 in the local newspaper Obiectiv the Tulcea Prefect stated that “We are looking at an option with mobile homes, but I would like to say that many of the Roma faced with these problems have created them themselves. Many of them sold their homes and afterwards asked the Mayor ’ s Office for new ones. Of course, the Roma are confronted with many problems, but they are not frequent visitors of the jobs markets. Be that as it may, many non-Roma are in a similar situation to that of the Roma population and have no homes, but they do not knock at the Prefect Office ’ s door; they try to rent, to work and so on. I think that your organisation should also be more involved this way and educate them to work”.
5. Court proceedings
(a) Injunction proceedings
25. On 12 March 2007 the sixth, fifteenth, seventeenth, twenty-first, forty-first, forty-seventh, fifty-fourth, sixty-first, sixty-seventh, seventy-first and seventy-second applicants, all of whom were living in the “Pichet” building, brought proceedings against Tulcea Local Council to obtain an injunction ordering the local authorities to carry out the urgent maintenance work needed on their building.
26. By a final judgment of 1 October 2008 the Constanţa Court of Appeal allowed the action brought by the applicants. It held that Tulcea Local Council had signed lease contracts for the building with the applicants. Therefore, as a lessor, according to the relevant domestic legislation and the provisions of the lease contracts, it had an obligation to provide adequate living conditions, and to repair the building and keep it safe for the entire duration of the contract. However, according to the available testimonies at the time, the housing conditions had been unfit for habitation and the building had been in a poor state when the applicants moved into it. In March 2007 the building had still not been connected to the town ’ s electricity grid and the sewage system was never fully functional. The building materials brought on site by Tulcea Local Council after the applicants moved there did not constitute fulfilment by the lessor of its obligations to repair the building because the quantity of materials was too small to ensure the complete repair of the building.
27. The argument that the building ’ s problems were caused by some of the tenants themselves was not supported by any proof. In addition, the argument that the applicants failed to pay rent for long periods of time was irrelevant for the case, since the lessor could not use that argument to justify a breach of his contractual duty to maintain the building. Consequently, the court ordered Tulcea Local Council to repair the building and maintain it and the communal areas at an acceptable standard for the entire duration of the lease contract.
(b) General tort law proceedings
28. On 24 August 2007 sixty-eight of the applicants living both at “Pichet” and in the mobile homes – all except the third, eleventh, twelfth, twenty-fourth, forty-sixth, forty-seventh, forty ‑ eighth, and forty-ninth applicants – and other people brought a general tort law action on the basis of Articles 998-999 of the Romanian Civil Code against Tulcea Local Council and the Tulcea mayor ’ s office seeking 245,000 Romanian lei (RON) (3,500 for each individual) (approximately 75,400 euros (EUR) (780 for each individual)) by way of compensation in respect of non-pecuniary damage sustained as a result of having their access to education restricted, the inadequacy of the living conditions in the social housing, and the interference with their health and social personality as a result of the inaction of the local authorities.
29. By a judgment of 20 October 2010 the Tulcea District Court dismissed the sixty-eight applicants ’ action. It held that the applicants had not suffered any damage and therefore at least one of the conditions required for a general tort law action had not been met. The local authorities had taken steps to provide the applicants with suitable living conditions, even though they had failed to pay their outstanding taxes. Although the applicants had not paid their rent, the local authorities had not used the contract clause allowing them to terminate the lease contracts after the applicants ’ failure to pay rent for three successive months. The means to help the disadvantaged were provided for by law. The responsibilities of Tulcea Local Council and the Tulcea mayor ’ s office did not include the duty to secure the necessary conditions in social housing belonging to persons of Roma ethnicity or their health.
30. The applicants appealed against the judgment. They did not submit reasons for their appeal but argued that the objectivity of the social investigation reports produced during the proceedings was doubtful because they were carried out by Tulcea Local Council employees. In addition, the social investigation reports had not reflected their living conditions as they had avoided providing details about the available utilities, furniture and living conditions by using the expression “equipped with the bare necessities”.
31. By a judgment of 14 December 2012 Tulcea County Court dismissed the applicants ’ appeal and upheld the judgment of the first ‑ instance court. It noted that the applicants had failed to provide reasons supporting their appeal and had submitted only objections in respect of the social investigation reports. It held that according to the relevant domestic legislation the local authorities had to assign social housing to various categories of people in an order of priority set out by law. Consequently, homeless Roma could be assigned social housing only if the order of priority set out by law had been observed and if they met the monthly income criterion provided for by law. Therefore, the local authorities could not be forced to satisfy the social housing needs of all the applicants as long as such housing had to be assigned on a priority basis to other categories of people expressly provided for by law. The applicants ’ needs could be met afterwards, if and when social housing became available.
32. The court further held that, even though the applicants had failed to pay their dues towards the State budget, some of them had nonetheless been provided with social housing. Consequently, the local authorities had already taken steps to ensure they had suitable living conditions.
33. As far as the applicants ’ living conditions were concerned, the court noted that there was no evidence that the social housing was not connected to electricity or heating facilities, and this could also have been a consequence of the applicants ’ failure to pay their monthly invoices. Moreover, the responsibilities of the local authorities did not include the duty to ensure adequate conditions in social housing belonging to persons of Roma ethnicity.
34. In respect of the applicants ’ health, the court held that it was not proven that the alleged failure of the local authorities to fulfil their duties had caused the applicants ’ state of health to deteriorate.
35. Finally, the court also noted that it had not been proven that the local authorities ’ action – namely providing only some of the applicants with social housing based on availability – had restricted their access to education.
36. The applicants lodged an appeal on points of law against the judgment. They argued that according to the relevant domestic legislation the local authorities were responsible for assigning social housing for renting to disadvantaged persons, a category to which the applicants belonged. The authorities had a statutory responsibility to ensure decent living conditions for Tulcea ’ s citizens but they had failed to fulfil their duty by housing the applicants indefinitely in accommodation which was not connected to basic utilities. The absence of decent accommodation for Tulcea ’ s Roma was one cause of the applicants ’ abandonment of school attendance and of their exclusion from the employment market. In these circumstances, the failure of the local authorities to fulfil their statutory obligations rendered them responsible for the non-pecuniary damage suffered by the applicants, estimated at RON 3,500 (approximately EUR 780) for each individual.
37. By a final judgment of 26 March 2014 the Constanța Court of Appeal allowed the applicants ’ appeal on points of law in part, quashed the second instance court ’ s judgment, annulled the action lodged by the seventeenth applicant on account of her death and awarded each of the remaining applicants RON 2,000 (approximately EUR 450) in respect of non-pecuniary damage. It noted that the parties had submitted the final judgment of 1 October 2008 to it and that the seventeenth applicant had died on 28 February 2013 and that no relatives had accepted her inheritance. Moreover, it stressed that the object of the applicants ’ action was strictly limited to the non-pecuniary damage claim of RON 3,500 for each individual in the light of having their access to education restricted, being provided with social housing offering inadequate living conditions, and the interference with their health and social personality resulting from the inaction of the local authorities. The applicants had not asked the court to examine the conditions in which their eviction in October 2006 had taken place. The aforementioned issue had been the object of another set of proceedings which were terminated by the final judgment of 18 May 2009.
38. The court held that the local authorities ’ failure to fulfil all their statutory duties and ensure adequate living conditions for the applicants in the housing rented to them after their eviction in October 2006 amounted to a breach of their right to private and family life and home guaranteed by Article 8 of the Convention. It noted that, contrary to the applicants ’ submissions, the local authorities ’ decision to assign and rent homes to the applicants at “Pichet” had not been aimed at segregating the Roma families. Because winter was approaching when the applicants were evicted, the local authorities had actually been trying to urgently secure shelter for seventeen of the evicted families and their small children. According to Tulcea Local Council, the lack of social housing was endemic nationwide and particularly in Tulcea, where only ten social cases were solved yearly out of the two thousand five hundred pending requests for social housing.
39. As regards the “Pichet” building, the court held that, according to the available evidence, the building was functional and had offered adequate conditions for housing on the date when it was leased to the applicants. In particular, the building was connected to electricity, was fitted with stoves for heating, and running water was available from a tap located in the courtyard. In addition, on the date the applicants took over the building the local authorities provided the applicants ’ representative, namely the ninth applicant, with some building materials in order to be able to carry out some maintenance work that was needed. However, according to the relevant domestic legislation it was not sufficient for a lessor to provide those who signed a lease contract with a functional building. The lessor had to provide during the entire period of the lease contract a building which was safe to use and which had functioning utililities. In the instant case, during the term of the lease contract the communal water, electric and sewage facilities were damaged.
40. Although the tenants reported the problems to the authorities, they had remained inactive and had failed to carry out repairs and the building had become unfit for habitation and a health hazard for the tenants. Although the Constanța Court of Appeal established on 1 October 2008 that the local authorities had failed to repair and maintain the building for the entire duration of the lease contract, and had ordered them to do so, the authorities had not demonstrated that they had complied with that judgment. Moreover, according to the available evidence, the building had become even more dilapidated and unfit for habitation. The fact that the building ’ s problems were caused by some of the tenants themselves could not exonerate the authorities or explain their inaction. The relevant domestic legislation provided for sanctions against tenants who damage a building, namely the cancellation of their lease contract. However, the local authorities had failed to take any punitive measures against those tenants. At the same time they had also failed to repair the building, thus creating an unsuitable living environment even for those tenants who had maintained their homes and had not damaged the building.
41. In respect of the mobile homes located on the former rubbish dump, the court held that they had represented an effective temporary solution for the applicants ’ problems. However, given that the applicants have had to continue living there, the homes in question and their location amounted to a breach of the applicants ’ right to enjoy their home in a healthy environment as guaranteed by Article 8 of the Convention. The mobile homes assigned to seven families were placed on a former rubbish dump, without any preliminary operation to decontaminate the soil or have the level of soil pollution measured by a specialist agency. The local authorities were responsible for taking measures to locate the mobile homes in an area of the city that would be appropriate for the applicants ’ needs and would safeguard their right to a healthy environment. However, they had failed to fulfil their positive obligations under Article 8 of the Convention and to inform the applicants that the land in question had been used as a rubbish dump prior to 2006 and that their health and quality of life might be adversely affected by pollution. The failure of the local authorities to fulfil their duties and their passivity after 2006 also amounted to a breach of the applicants ’ right to a home as guaranteed by Article 8 of the Convention.
42. Consequently, given the applicants ’ living conditions, namely the overcrowded and unhealthy environment, and its effect on the applicants ’ state of health throughout the long period of time they had to live under those conditions, combined with the general attitude of the authorities, the civil liability of the authorities could be engaged since the nature of the applicants ’ living conditions had a negative impact on human dignity and the applicants ’ right to private life and to a home.
43. In respect of the applicants ’ claims that the local authorities had interfered with and restricted the applicants ’ children ’ s right to education by renting them social housing located on the city ’ s outskirts, the court held that the local authorities were responsible for the applicants ’ children ’ s inability to attend school regularly and liable for the damage thereby caused.
44. It noted that, according to the available evidence, the applicants ’ children ’ s schools were located between three and three and a half kilometres from their homes. The absence of frequent public transport on those routes made travelling to school difficult and encouraged the abandonment of school attendance, particularly during adverse weather conditions. From 2006 to October 2008 there was no public transport connecting the “Pichet” building to the city centre and the form of transport referred to was introduced only after that date. In this context it pointed out that according to the case-law of the European Court of Human Rights (“the Court”), in cases where a general measure has a disproportionately prejudicial effect on a particular group of people, that measure could be deemed to be discriminatory even though it had not targeted that group of people. Consequently, even though the authorities ’ cancellation of public transport in the area did not directly target the Roma and pursued a legitimate aim – namely to make public transport financially efficient – its effect did not strike a fair balance between the public interest and that of the applicants. By relying on the principles set out in the Court ’ s case-law concerning non-discrimination against people of Roma ethnicity and their right to education, the court concluded that the local authorities had indirectly breached the applicants ’ children ’ s right to education by failing to discharge their duty of organising adequate public transport in the city.
45. In respect of the applicants ’ claims that their health was affected, the court noted that they enjoyed free medical assistance without any discrimination or bias. However, it considered that, based on the available testimonial evidence, the authorities ’ passivity in respect of the applicants ’ inadequate living conditions, the lack of hygiene in the rented housing and the polluted environment had affected the applicants ’ health.
46. Finally, in determining the non-pecuniary compensation to which the applicants were entitled (see paragraph 37 above), the court took into account the applicants ’ individual situations, the fact that some of the applicants had failed to fulfill all their contractual obligations, that they had refused to comply with their lawful duty to participate in routine cleaning of the premises, and that some of their actions had contributed to the deterioration of their homes.
(c) Anti-discrimination proceedings
47. On 3 October 2007 the Romanian Helsinki Committee lodged civil claims in anti-discrimination proceedings against Tulcea Local Council, relying on Article 27 § 1 of Government Ordinance No. 137/2000 on combating and punishing all forms of discrimination. The action did not name any of the applicants or any of the victims of the measures taken by the authorities. The Romanian Helsinki Committee asked the court to acknowledge that the relocation of Roma families in a building deemed unfit for human habitation outside the town and in mobile homes on a former rubbish dump breached the domestic legislation on anti ‑ discrimination, as did the criterion set by the local authorities requiring a certain level of education for awarding social housing. In addition, the Romanian Helsinki Committee asked the court to order Tulcea Local Council to pay RON 350,000 (approximately EUR 103,860) to the victims of the discrimination, and to restore the previous situation, or to remedy the situation caused by the discrimination.
48. The Committee argued, amongst other things, that part of the evidence used to prove that the Tulcea local authorities ’ decision-making process had been influenced by their preconceptions about Roma was the racist language used by them in the press to describe the applicants on account of their ethnicity (see paragraphs 23 and 24 above). Moreover, the local authorities had moved the families in question to remote locations, into a polluted area and on a former rubbish dump, had segregated them, had created physical obstacles for them which prevented them from accessing regular public services, had restricted their children ’ s rights to education and had refused to fulfil their contractual and legal obligations. Furthermore, without any reasonable justification, Tulcea Local Council had added the criterion of higher education as a decisive condition for accessing social housing, even though the relevant domestic legislation did not impose this criterion as a requirement and it had been statistically proven that people of Roma ethnicity are less well educated than those of other ethnicities.
49. By a judgment of 20 May 2008 the Tulcea District Court dismissed the action brought by the Romanian Helsinki Committee. It noted that following its request, the National Council for Combating Discrimination had submitted its opinion on the case. The court held that the actions of the local authorities had been motivated not by racial discrimination but by the lack of social housing affecting both the Roma and the non-Roma population. Moreover, the allegedly offensive statements made by representatives of the local authorities were not discriminatory, because the domestic anti-discrimination legislation could not restrict freedom of speech, or the freedom to hold an opinion, or to impart information. According to press articles submitted by the Romanian Helsinki Committee, the representatives of the local authorities had stated the reason for the Roma families ’ move to the impugned locations, namely the lack of any other social housing, not their ethnicity.
50. Furthermore, the criteria set by the local authorities for allocating social housing (see paragraphs 11 and 12 above) could not be considered discriminatory because in the court ’ s opinion it would be unconceivable that any one social group would have a better claim to social housing than another social group simply because the latter ’ s members were not educated, or that the interpretation of the legal provisions would generate positive discrimination. The local authorities were free to set certain criteria for awarding social housing and they could not be held responsible for the fact that Roma are less educated than the rest of the population. The local authorities had a duty to safeguard the rights and well-being of all the members of the community and the relocation of the Roma families to the area they favoured would have created a situation of conflict in that area that the authorities were duty-bound to avoid. The court furthermore considered that the Romanian Helsinki Committee ’ s claims for compensation, or to remedy the problems caused by the discrimination, were unfounded because the authorities had not committed acts of discrimination and the question of whether or not the housing assigned to the families in question was fit for habitation was not an issue of discrimination and could be remedied through a general law action. At the same time, restoring the previous situation would have contravened a final court judgment which was res judicata and ordered their eviction.
51. The Romanian Helsinki Committee appealed against the judgment and asked the appeal court to quash the first-instance court ’ s judgment and to allow its action the way it was formulated. It argued, inter alia, that the first-instance court had misapplied the relevant anti-discrimination legal provisions and had failed to reverse the burden of proof as required by law, even though they had proven by statistical data that the relocated families had been discriminated against. In addition, it claimed that the court had failed to examine evidence held on file such as the discriminatory statements made by the local authorities, had founded its judgment on inexistent evidence, had relied on the principle of free speech as an argument for dismissing the claims – even though free speech does not excuse discriminatory statements – had ignored the fact that of the people who had claimed social housing, it was only those with Roma ethnicity who had been assigned housing in the impugned locations, had relied on the argument that there was no social housing available in Tulcea without seeking evidence to substantiate this, and had not examined the question of whether the victims ’ relocation and living conditions were discriminatory. The court had also failed to understand the argument concerning the higher education criterion, given that the organisation had contested not its actual existence, but rather the importance assigned to it for the purposes of awarding social housing. The local authorities had not shown any objective justification for assigning great importance to that condition.
52. By a judgment of 15 October 2008 the Tulcea County Court dismissed the appeal. It held that the relocation of the Roma families had not been motivated by racial discrimination as the decision for relocation had been taken on the basis of regulations provided for by law. Nor had the domestic authorities treated the Roma families differently from other families in a similar situation. In addition, the local authorities ’ public statements had not been discriminatory and, as they did not play a decisive role in assigning housing to Roma families, were irrelevant. The Roma families had been provided with housing on the basis of clearly established criteria set out in decisions that had not been contested. The available evidence had not demonstrated fulfilment of the cumulative conditions required for an act to amount to discrimination within the meaning of the relevant domestic legislation.
53. The Romanian Helsinki Committee appealed on points of law against the judgment and asked the appeal court to quash the second ‑ instance court ’ s judgment and to allow its action the way it was formulated. It argued that the second-instance court had failed to provide reasons for its decision and to fully examine the claims concerning the relocation to polluted areas, and had omitted altogether to examine the arguments about the higher education criterion. The lower court, meanwhile, had failed to explain the basis for its statement that Roma families had not been treated differently from other families in a similar situation. Moreover, the court had shifted the burden of proof in respect of the discrimination claim to the plaintiff, whereas it was for the authorities to show that there had been no discrimination. The court ’ s argument that the Roma families had been provided with houses on the basis of clearly established criteria set out in decisions was irrelevant as it did not mean that the criteria in question were not discriminatory. In addition, the appellate court ’ s reasoning simply ignored the racist and discriminatory nature of the public officials ’ statements, even though the same public officials were the ones who had ordered the relocation of the Roma families outside the city and on a former rubbish dump.
54. By a final judgment of 18 May 2009 (available on 3 July 2009) the Constanţa Court of Appeal dismissed the appeal on points of law. It held that if the interest in taking part in the proceedings lay in the purpose for which the non-governmental organisation was founded − namely, the protection of the rights of the persons in respect of whom the existence of the alleged discrimination was invoked − in the instant case the available evidence, including the succession of events as narrated by the media, did not confirm the existence of different treatment in a similar situation. The minutes of Tulcea Local Council ’ s meeting of 25 January 2007 and the press articles provided evidence of the efforts of the local authorities to remedy the problems caused by the eviction.
55. The local authorities had repeatedly attempted to delay the eviction pending the preparation of other housing solutions, and had succeeded in doing so. It was uncontested that after the eviction housing solutions had been found for all the families either at “Pichet” or in mobile homes. It had also been proved that the local authorities had constantly tried to remedy the particular housing problems of individual families by granting them social housing and by overruling the opposition of some of the members of the community to certain families ’ being granted priority treatment. In this context the court noted the statements made by the mayor and by another representative of the local authorities in respect of the Amarioarei and Stanga families ’ situation after their eviction. The Romanian Helsinki Committee ’ s arguments that the relocation of most of the families to “Pichet” amounted to segregation was therefore contradicted, since that had been the only housing option identified at the time of the eviction and there was no proof that alternative options had existed.
56. Also, the local authorities had tried to remedy the victims ’ social problems, even though it was not denied that some of them had owned homes which they had sold after moving into the unoccupied building in Tulcea, which had previously belonged to a State-owned factory. In addition, the area where the “Pichet” building was located was connected to the town by public transport even though the bus service was infrequent. Travelling into the city was therefore possible, whereas by contrast it was a well-known fact that there were inhabited areas of the country which were not served by any transport connection at all, not even for children attending school. Furthermore, according to press reports about the investigation carried out by the Tulcea Environmental Agency, the area where the “Pichet” building was located did not constitute a health hazard for humans. What is more, after some of the families moved to “Pichet”, their homes had been connected to electricity.
57. As regards the mobile homes located on the former rubbish dump, the court considered that the lower courts had correctly dismissed the discrimination argument. In this connection it noted that – according to the press reports – the homes in question had initially been set up on a concrete platform at a separate location but were later moved at the request of the Roma families ’ representatives in order to have access to water and sewage facilities. Subsequently, they were connected to the town ’ s electric grid.
58. Moreover, the Romanian Helsinki Committee had failed to prove the alleged stereotypical and offensive statements made by local officials about the Roma community, and the authorities ’ action argued against the existence of a discriminatory stance based on ethnicity. Furthermore, leaving aside the fact that the Romanian Helsinki Committee had assumed without proof that members of the Roma community were less well educated, the education criterion set by the local authorities for allocating social housing had concerned social housing located on a particular street and it had not been proved that it was a rule applied in a ‘ blanket ’ manner when allocating all social housing in the city, or that it was relevant on the date of the eviction, or that it was a real obstacle for the members of the Roma community to enforce their rights as long as it was established that there were no other options available for shelter at the time. Also, the criterion had been imposed by a Tulcea Local Council decision dating back to 2004 (see paragraphs 11 and 12 above) that had not been challenged by the victims before the domestic courts. In addition, the relevant domestic legislation allowed local authorities to determine the criteria for awarding social housing.
6. The correspondence between the local authorities
59. On 27 July 2005 Tulcea Local Council informed the Tulcea prefect ’ s office that they could not agree to the relocation of some of the applicants on a certain street in the town since the local inhabitants objected to their return there because of past conflicts.
60. On 2 November 2006 the Tulcea Public Transport Company under the direction of Tulcea Local Council informed the Tulcea prefect ’ s office, among other things, that they intended to provide transport services in the area of the “Pichet” building from 3 November 2006.
61. On 2 April 2008 the Tulcea Public Transport Company under the direction of Tulcea Local Council informed the Tulcea prefect ’ s office that the buses serving the “Pichet” area had been discontinued since 15 October 2007 because nobody was using them. Two buses continued to serve the nearby industrial zone and their number could be increased on condition that the people living in the “Pichet” area bought monthly transport passes in advance.
62. On 15 April, 9 May, 24 July, and 1, 9 and 24 September 2008 the Tulcea prefect ’ s office informed the mayor of Tulcea that following individual complaints lodged by the applicants and non-governmental organisations and from inspections carried out at the “Pichet” building and in the mobile homes located on the rubbish dump by representatives of the Tulcea County Agency for Roma, the Tulcea Public Health Agency and the Tulcea Agency for Emergency Situations, it was apparent that the applicants ’ homes were poorly maintained and infested by rodents, that the sewage system was either non-existent or not working, the sanitary facilities were not working, there was no access to water, the domestic refuse had not been collected for a long time and was being stored in a pit in front of the building, and maintenance work was urgently required. Consequently, it asked the mayor ’ s office to remedy the situation.
63. On 22 April 2008 the Tulcea schools inspectorate informed the Tulcea prefect ’ s office that they did not have the legal framework or the requisite funding to exempt children living in the “Pichet” area who wanted to attend school from paying for transport passes. They further submitted that pupils generally benefited from the statutory discount of 50% for transport passes.
64. On 24 April 2008 the Tulcea schools inspectorate asked the Tulcea mayor ’ s office and the schools attended by the children living in “Pichet” to get in contact each other and to examine the possibility of the aforementioned children being exempted from paying for public transport.
65. On 5 May 2008 and 22 October 2010 two of the schools that had enrolled some of the children living at “Pichet” sent to the local public transport company under the direction of the mayor ’ s office a list of names of the aforementioned children together with information stating when their classes started and ended.
66. On 3 June and 4 July 2008, respectively, the Tulcea prefect ’ s office and Tulcea Local Council informed each other and an applicant that a source of water had been installed in the vicinity of the mobile homes located on the rubbish dump and that some of the sanitary facilities of the “Pichet” building had been repaired, but they continued to break down as a result of improper use.
67. On 24 September 2008 the Tulcea prefect ’ s office informed the Tulcea Public Transport Company under the direction of Tulcea Local Council that according to information received from the inhabitants in the area, all the buses connecting the “Pichet” building and the nearby industrialised area with the town had been cancelled, with the result that many of the children living there could not travel to school any more and therefore abandonment of school attendance was increasing. It also asked Tulcea Local Council to reinstate the bus routes serving the area in question.
7. Other relevant information
(a) The applicants sharing the same homes
68. Between 15 September and 5 December 2006 the applicants signed lease contracts with Tulcea Local Council for rooms in the “Pichet” building or for mobile homes located on the former rubbish dump. According to the aforementioned contracts the twenty-third applicant was living together with the fiftieth, fifty-first and fifty-second applicants in a mobile home located on the rubbish dump. The fifteenth applicant was living together with the thirteenth, fourteenth, forty-third and forty-fourth applicants at “Pichet”. The twenty-fourth applicant was living together with the eleventh and the sixty ‑ ninth applicants in a mobile home located on the rubbish dump. The sixty-third applicant was living together with the twenty-eighth, twenty ‑ ninth, sixty-fourth and sixty-sixth applicants at “Pichet”. The forty ‑ first applicant was living together with the thirty-seventh, forty-second and seventy-sixth applicants at “Pichet”. The forty-seventh applicant was living together with the forty-sixth, forty-eighth and forty-ninth applicants at “Pichet”. The fifty-fourth applicant was living together with the thirty ‑ eighth, thirty-ninth, fortieth, fifty-third and fifty-fifth applicants at “Pichet”. The sixty-first applicant was living together with the twenty-sixth, fifty-eighth, sixty-second, sixty-fifth and seventy-fifth applicants at “Pichet”. The sixteenth applicant was living together with the twenty ‑ seventh, fifty ‑ sixth and fifty-seventh applicants in a mobile home located on the rubbish dump. The third applicant was living together with the second and twelfth applicants in a mobile home located on the rubbish dump. The thirty-fifth applicant was living together with the thirty-third, thirty-fourth and thirty-sixth applicants in a mobile home located on the rubbish dump. The twenty-fifth applicant was living alone in a mobile home located on the rubbish dump. The seventeenth applicant was living together with the tenth applicant at “Pichet”. The seventy-first applicant was living together with the eighteenth, nineteenth, twentieth, seventieth and seventy-second applicants at “Pichet”. The twenty-first applicant was living together with the twenty ‑ second, thirtieth, thirty-first, thirty-second, seventy-third and seventy-fourth applicants at “Pichet”. The forty-fifth applicant was living together with the fifty-ninth and the sixtieth applicants at “Pichet”. The sixth applicant was living together with the fourth, fifth, seventh and ninth applicants at “Pichet”.
(b) Social investigation reports and other information
69. According to social investigation reports produced by Tulcea Local Council on 28 January 2009, the twenty-second applicant was living at “Pichet” together with the twenty-first applicant and six months earlier the eighth applicant had moved in with the ninth applicant at “Pichet” from a different address in the city. The seventy-fourth applicant had moved to a different town and the forty-second applicant had moved to a different address in the city. Meanwhile, the fifty-fourth applicant had broken up with the fortieth applicant in December 2007 and had not been in touch since then.
70. On 19 May 2010, on their application form, the applicants informed the Court that they had mounted legal challenges against their evictions of 2005 and 2006. They also stated that, whilst important by way of background, those legal challenges did not form the focus of the application.
71. On 16 September 2011 the sixty-fifth applicant signed a lease contract with Tulcea Local Council for a home located at a different address in the city, neither at “Pichet” nor at the former rubbish dump.
72. In December 2012 the Tulcea mayor ’ s office informed the Government that, according to the social investigation reports produced in October 2008 by the Tulcea Social Protection and Assistance Agency, the applicants ’ relatives and neighbours had informed the social investigators that the seventy-first applicant had moved to Spain a month earlier together with her children, the thirty-sixth applicant was living with her mother at a different address in the city, and the forty-sixth, forty-eighth and seventy ‑ fifth applicants were living at a different address in the city.
73. On the same date the Tulcea mayor ’ s office informed the Government that, according to the social investigation reports produced in February 2009 by the Tulcea Social Protection and Assistance Agency, the twenty-seventh and fifty-seventh applicants were living in mobile homes located on the former rubbish dump. Also, according to statements from the applicants ’ relatives and neighbours, the fifty-sixth applicant had moved to another city in January 2009 in order to live with her partner; the thirty-sixth applicant was living with her mother at a different address in the city; the twenty-second applicant was living elsewhere with his mother; the seventy ‑ first applicant had moved to Spain together with her children, namely the eighteenth, nineteenth, twentieth, seventieth and seventy-second applicants; the seventy-fifth, the forty-sixth and forty-eighth applicants were living at a different address in the city; the sixty-seventh and sixty-eighth applicants were living at “Pichet”; and the fifty-second applicant was living in another town.
74. On the same date the Tulcea mayor ’ s office informed the Government that, according to the social investigation reports produced in December 2012 by the Tulcea Social Protection and Assistance Agency, the nineteenth, twentieth, twenty-seventh, fifty-sixth, fifty-seventh, sixty-seventh, sixty-eighth, seventieth, seventy-first and seventy-second applicants were no longer living at “Pichet” or in the mobile homes located on the former rubbish dumps. Also, according to statements from the applicants ’ relatives and neighbours, the twenty-second applicant had moved and was renting an apartment at a different address in the city; the seventy-fifth applicant had been held in detention since 2010; the forty-second applicant had returned to “Pichet” in June 2012, having previously lived at a different address in the city where she had moved sometime after December 2006; the fortieth applicant was in detention; the forty-sixth and forty-eighth applicants were living at a different address in the city; the thirty-sixth applicant was living elsewhere with her mother; and the fourteenth applicant was living at a different address in the city together with her partner ’ s parents.
75. According to the social investigation report produced by Tulcea Local Council on 13 December 2012 the fifty-third applicant was living with her grandmother at a different address in the city, the seventy-fourth applicant was living together with the twenty-first applicant, and the sixty ‑ fifth applicant was living together with his partner at “Pichet”. The eighth applicant was living together with the eighteenth applicant and the fifty-second applicant was living together with the fiftieth applicant at “Pichet”.
76. On 20 December 2012 the Tulcea County Agency for Payments and Social Inspection informed the Government that fifty-four applicants – excluding the sixth, eleventh, thirteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-ninth, thirty-fifth, thirty-seventh, thirty-eighth, forty-fifth, forty-sixth, forty-eighth, fifty-second, sixty-fifth, sixty-seventh, sixty-eighth, sixty-ninth, seventy-fourth and seventy-fifth applicants – had been receiving or continued to receive various forms of benefits and social allowances.
77. On the same date the Tulcea schools inspectorate informed the Government that of the applicants who lived at “Pichet”, twenty-one were and/or had been enrolled as school students before and/or after their eviction in October 2006, namely the fourth, fifth, seventh, thirteenth, fourteenth, nineteenth, twenty-sixth, twenty-eighth, thirtieth, thirty-first, thirty-eighth, thirty-ninth, forty-fourth, forty-sixth, fifty-third, fifty-fifth, fifty-ninth, sixty ‑ sixth, seventieth, seventy-second and seventy-third applicants. According to the aforementioned school inspectorate some of the twenty ‑ one children had been temporarily or permanently withdrawn from school by their parents or next of kin before, immediately after or some years after their eviction in October 2006 because their parents or relatives were not interested in their children obtaining an education.
78. On the same date the Tulcea schools inspectorate informed the Government that the schools closest to “Pichet” and the mobile homes on the rubbish dump were located one kilometre and 200 metres respectively from the two sites.
(c) Information provided by the Tulcea Environmental Protection Agency and the Romanian Ministry of Internal Affairs
79. On 12 December 2012 the Tulcea Environmental Protection Agency informed the Government that none of the applicants had complained to it about the issues raised before the Court. Moreover, the Agency had not carried out an environmental impact evaluation regarding the pollution in the areas mentioned in their application before the Court because the mobile homes were positioned in a location in a residential neighbourhood within the city boundary with access to running water, electricity, household waste collection facilities and a school. The area in question had never been designated as a rubbish dump. The city ’ s rubbish dump for household waste was located 5 kilometres outside the city. The “Pichet” building was also located within the city boundary, within the confines of the industrial port zone on the banks of the River Danube with access to running water, electricity and household waste collection facilities. The Agency had an automated air quality monitoring station positioned in a location 1,500 metres from “Pichet”. The results produced by this station showed that the level of pollution from sulphur dioxide, nitrogen dioxide, carbon monoxide, suspended particles and volatile organic compounds had remained below dangerous levels throughout 2011 and none of the other automated stations for monitoring air quality within the city had reported dangerous levels of pollution that year either. Furthermore, the goods which were handled by the port authorities were not dangerous and an environmental impact evaluation with regard to the pollution in the area of the industrial port was therefore not necessary. Lastly, the Agency was unaware whether the applicants had been informed by the authorities about the environmental conditions in the area at the time of their eviction because the eviction had been carried out by the Tulcea mayor ’ s office. The Agency did not have a strategy for avoiding potential risks to the applicants ’ health because such a strategy would fall within the spheres of competence of the Tulcea mayor ’ s office and the Tulcea Public Health Agency.
80. On 6 February 2013 the Romanian Ministry of Internal Affairs informed the Government that the nineteenth and the sixty-seventh applicants had been registered at other addresses since June 2011.
(d) Statements submitted by the applicants before the Court
81. On 28 March 2013 the fifteenth applicant submitted a statement before the Court, co-signed by his partner and children, to the effect that he and his partner, the forty-third applicant, were still living together with the fourteenth, the forty-fourth and thirteenth applicants at the same address and that their living conditions had not improved. Moreover, the authorities had refused to renew their lease contract because they had fallen behind with the rent and electricity payments. He also submitted that the sixty-seventh and the sixty-eighth applicants had moved to a different address. At the same time the seventy-second applicant had been working in Spain but she had continued to make regular return visits to her home here.
82. On the same date the twenty-fourth, twenty-ninth, forty-first, forty ‑ second, fifty-fourth and sixty-third applicants submitted statements to the Court to the effect that they had been faced with poor living conditions after their re-location. The twenty-ninth, forty-first and fifty-fourth applicants stated that after their lease contracts had expired the authorities had refused to renew them because they had also fallen behind with paying rent and other charges. The twenty-ninth applicant confirmed the fifteenth applicant ’ s statement about the sixty-eighth applicant. The fifty-fourth applicant also confirmed the fifteenth applicant ’ s statements concerning the sixty-seventh and sixty-eighth applicants, as well as those regarding the family of the seventy-second applicant. She added that the nineteenth and the twentieth applicants were in a similar situation to that of the seventy ‑ second applicant ’ s family.
83. On 29 March 2013 the sixty-first and seventy-sixth applicants submitted statements before the Court confirming the poor living conditions they had been faced with after their re-location. On the same date the forty ‑ seventh applicant stated that her grand-daughter and son, the forty ‑ sixth and forty ‑ ninth applicants respectively, were living with her. She reiterated that their living conditions were inadequate and had not improved. On the same date the fiftieth applicant confirmed that his living conditions were still poor and stated that his son, the fifty-second applicant, was still living there with him.
B. Relevant domestic law and international material
84. The relevant provisions of Law no. 114/1996 on housing read as follows:
Article 24
“A lease contract may be terminated prematurely in the following circumstances:
(...)
b) at the owner ’ s request if:
- the tenant has not paid the rent for at least 3 consecutive months;
- the tenant has significantly damaged the residence, the building, the facilities and any other property attached to them ...;
- the tenant ’ s behaviour makes cohabitation impossible or prevents the normal use of the residence;
- the tenant has breached the tenancy agreement;
c) at the request of the owners ’ association if the tenant has not paid his share of the collective charges for 3 months...”
Article 27
“If a leaseholder leaves the residence permanently, or if he or she dies, or if a non-resident leaseholder ... ceases to use the residence for more than 2 years continuously, the lease shall remain valid as the case may be:
a) to the benefit of the spouse, if he or she has lived together with the leaseholder;
b) to the benefit of the descendants and the ascendants, if they have lived together with him or her:
c) to the benefit of other individuals who shared the same domicile with the leaseholder for at least 1 year and were recorded in the lease contract;
(...)
In the absence of individuals who could benefit from the lease according to paragraph 1, the lease contract shall be terminated within 30 days of the date on which the leaseholder vacated the residence or died, or when the 2-year period of continuous non-use has expired.”
Article 28
“The owner shall fulfil the following duties:
a) to hand over the residence to the tenant in a condition suitable for use;
b) to take steps to repair and maintain the building for safe use during the entire duration of the lease;
c) to maintain in good condition the building ’ s structural strength and the external parts of the building (roof, building front, pavement, surrounding area), yards and gardens as well as the building ’ s internal communal area (the stairwell, lift, hallways, corridor, underground, external stairs);
d) to maintain in good condition the building ’ s common facilities (elevator; hydrophore; water, sewage, central and water heating facilities; central heaters; ... waste collection facilities...).
Article 29
“The tenant shall fulfil the following duties:
a) to carry out the maintenance, repair and replacement work of the building ’ s elements and facilities used exclusively by him;
b) to replace or repair damaged elements and facilities of the building used improperly and which are in common use, regardless if they are outside or inside the building...;
c) to clean and disinfect the residence and the parts of the building in common use during the entire duration of the lease;
d) to return the residence to the owner in a condition suitable for use once the lease ended...”
Article 30
“If the owner fails to fulfil his duties to repair and maintain the leased residence, the tenant may carry out the works at the owner ’ s expense, by deducting the expenses from the rent.
The tenant may carry out these works if the problem in question affects normal use of the property and if the owner has not taken steps to carry out such works within 30 days of the tenant ’ s written notification of the problem.”
Article 43
“Social housing shall be allocated by local councils on the basis of conditions which they revise annually under the law in force at the time. The following categories of persons may benefit from social housing according to an order of priority decided by the local councils: newlyweds under 35, formerly institutionalised young people over 18, disabled persons ... and other categories of entitled individuals and families.”
Article 48
“There is no right to social housing for persons or families who:
(...)
a) have sold a residence after 1 January 1990;
(...)
d) have already leased another social housing residence from the State ’ s immovable property fund.”
85. The relevant provisions of the former Romanian Civil Code read as follows:
Article 998
“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”
Article 999
“Everyone shall be liable for damage he has caused not only through his own actions but also through failure to act or negligence.”
Article 1075
“Any injunction to act or not to act is changed to damages if unenforced by the debtor”
Article 1077
“If an injunction to act remains unenforced, the creditor may also ask to be authorised to enforce it at the debtor ’ s expense.”
Article 1420
“The lessor must by nature of the contract and without the need for a special provision:
1. hand over the leased property to the tenant...
2. maintain it a condition that makes it usable for the purpose for which it was leased....”
Article 1421
“(...)
During the lease all the repairs that may be necessary must be made, except for small repairs (...) which are the responsibility of the tenant by virtue of his use thereof.”
86. The relevant provisions of Government Ordinance No. 137/2000 on combating all forms of discrimination read as follows:
Article 27
“1. An individual who considers himself or herself discriminated against may lodge an application before a court for damages and restoration of the previous situation or cancellation of the situation caused by the discrimination, according to general law. The application shall be exempt from stamp duty and shall not be affected by an application before the National Council for Combating Discrimination.
(...)
4. The interested party shall present the facts that may be presumed to amount to direct or indirect dicrimination and the defendant must prove that the principle of equal treatment has not been breached. Any evidence may be adduced before the court ... including audio and video recording or statistical data...”
Article 28
“1. Non-governmental organisations which have as an objective the protection of human rights or which have a legitimate interest in combating dicrimination shall have locus standi if the discrimination happens within their area of activity and affects a community or a group of people.
2. The organisations mentioned in paragraph 1 shall also have locus standi in circumstances where the discrimination affects a natural person, at his or her request.”
87. Excerpts from the relevant international documents concerning the living conditions and education rights of Roma people, including recommendations, resolutions, reports, observations, memoranda and other relevant texts by the Committee of Ministers of the Council of Europe, the Parliamentary Assembly of the Council of Europe, the Council of Europe Commissioner for Human Rights, the European Union Agency for Fundamental Rights and the United Nations Committee on Economic, Social and Cultural Rights, are given in the case of Winterstein and Others v. France (no. 27013/07, §§ 90-102, 17 October 2013).
88. Excerpts from the relevant international treaties concerning the right to education, inluding the Universal Declaration of Human Rights 1948, the Convention Against Discrimination in Education 1960, the International Covenant on Economic, Social and Cultural Rights 1966, the International Convention on the Elimination of All Forms of Racial Discrimination 1966 and the Convention on the Rights of the Child, are given in the case of Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 77-81, ECHR 2012 (extracts)).

THE CIRCUMSTANCES OF THE CASE
5.The applicant was born in 1969 and lives in Orenburg.
6.In June and July 2006 the investigation division of the Leninskiy district police department of Orenburg instituted criminal proceedings into robberies committed by an organised group.
7.On 30 August 2006 the applicant was arrested by the Department for Combating Organised Crime of Orenburg regional police (“the UBOP”) on suspicion of having committed the robberies.
8.On 31 August 2006 he was questioned as an accused in the presence of his lawyer and denied being involved in the crimes.
9.On 1 September 2006 the Leninskiy District Court of Orenburg extended the term of the applicant’s arrest, and on 4 September 2006 ordered that he be detained on remand and placed in pre-trial detention facility IZ-65/1 (“the SIZO”).
10.At an unspecified time on 18 September 2006 the applicant was taken from the SIZO to the UBOP building without his lawyer being present. There are no records of any investigative actions having been carried out that day with his participation.
11.According to the applicant, once he arrived at the UBOP offices five or six police officers, including L. and G., beat him in order to force him to confess to the robberies and subjected him to ill-treatment as follows. They shackled his hands and legs and tied his arms with a belt. They pushed him to the ground and almost suffocated him by putting a plastic bag and a gas mask over his head that cut off his air. They later took him to the basement of the building, which was equipped as a gym. They hung him on the parallel bars and hit him on the kidneys and extremities with a baseball bat. The applicant fainted several times so they burned him with cigarettes to make him come around.
12.At 9 p.m. the applicant was taken back to the SIZO. A routine examination by the medical assistant on duty, in the presence of a duty officer, revealed the following injuries: (i)a haematoma measuring 1 cm by 1cm on the left frontal bone of the skull; (ii) hyperaemia (redness) measuring 1.5 by 3 cm on the right side of the forehead; (iii) a red and blue haematoma measuring 2 cm by 3 cm on the right shin; (iv) hyperaemia measuring 1 cm by 1 cm on both buttocks; and (v)hyperaemia measuring 2.5by 4 cm on the right side of the lumbar region (medical report no.249 of 18September 2006, акт медицинского освидетельствования).
13.According to the additional medical records on the applicant from the SIZO for the period from 19 to 23 September 2006, he complained of headache, nausea, dizziness, vomiting and pain on the left side of his body when breathing. He had twitching eyelids and hand tremors. He was diagnosed with neurocirculatory dystonia of a hypertensive type and received treatment.
14.On 20 September 2006 the applicant went for questioning and his lawyer, Ms S., noticed that he had injuries on his forehead which he had not had before, that he looked unwell and had difficulty moving. The next day she asked for a forensic medical examination.
15.On 23 September 2006, K., an investigator at the investigation division of the Orenburg regional police department in charge of the applicant’s criminal case, ordered a forensic medical expert opinion on the applicant on the basis of medical records after considering the lawyer’s request, the report on the examination of the applicant at the SIZO on 18September 2006, and a report by Officer L. of the UBOP which stated that the applicant had caused the injuries to himself. K. wanted to know whether the applicant had any injuries and, if so, when and how they had been inflicted, whether they could have been inflicted as a result of a fall or as a result of harming himself, as described by Officer L., and whether the injuries were compatible with him being detained and participating in investigative actions in his case.
16.According to L.’s report, the applicant had been brought to the UBOP on 18 September 2006 as part of actions taken under the investigation, and had been taken to L.’s office for an interview. The applicant had jumped up from his chair and “hit his forehead and face on the corner of the chair with some force while shouting that he had to be taken back to the SIZO; he became hysterical, fell on the wooden floor, which had a linoleum covering, and started rolling around on the floor, hitting himself against wooden chairs and tables”.
17.On 25 September 2006 the Promyshlennyy district prosecutor’s office received a communication from the SIZO concerning the applicant’s injuries. According to the applicant’s statements to the prosecutor’s office, the UBOP officers had subjected him to ill‑treatment on 18 September 2006 in order to force him to confess to the crimes. He remembered the name of one of them, L.On 27 September 2006 the applicant lodged a formal complaint with the district prosecutor’s office, requesting the prosecution of the police officers.
18.On 6 October 2006, following a pre-investigation inquiry, S., an investigator at the Promyshlennyy district prosecutor’s office of Orenburg, found that the applicant’s allegations had not been confirmed. Relying on Article 24 § 1 (1) of the Code of Criminal Procedure, he refused to institute criminal proceedings on the grounds that no crime had been committed. The investigator relied on L.’s denial of ill-treating the applicant.
19.On the same day the Promyshlennyy district deputy prosecutor annulled the investigator’s decision as unlawful and ordered an additional inquiry.
20.On 25 October 2006 two forensic medical experts found after examining the applicant’s medical records that he had haematomas on the left frontal bone and right shin, which had been caused either by hard, blunt objects, or as a result of hitting such objects, one to three days before his examination on 18September 2006. They could have been caused by the applicant simply falling down or as a result of self-inflicted injuries, as described in L.’s report. The hyperaemia on the forehead, buttocks and lumbar region was not considered as an injury and its gravity could not be assessed because it was an immediate and reversible reaction to some “irritant effect”, including “mechanical impact”.
21.On 27October 2006 S. again refused to open a criminal case, citing the same grounds. In addition to L.’s evidence, the investigator relied on similar statements by Officer G., who had also been present at the time the applicant had allegedly injured himself, and on the forensic medical experts’ report of 25 October 2006.
22.The applicant appealed against the decision of 27 October 2006, arguing, inter alia, that the inquiry had not been thorough and that the State’s responsibility had been engaged under Article 3 of the Convention because he had received injuries during his detention that had been confirmed by medical evidence. The applicant referred to the Court’s case‑law, stating that the burden of proof in such a situation was on the State and that it had to provide evidence which could cast doubt on the applicant’s allegations. The applicant argued that relying on the police officers’ statements was clearly insufficient.
23.On 19 September 2007 a judge at the Promyshlennyy District Court of Orenburg dismissed the applicant’s complaint. The court held that the inquiry had been thorough and comprehensive, it had not found any facts to confirm the applicant’s ill‑treatment, the medical experts’ conclusions had been consistent with the police officers’ statements and the refusal to institute criminal proceedings had been lawful and well-founded. On 25October 2007 the Orenburg Regional Court dismissed an appeal by the applicant and fully endorsed the District Court’s findings.
24.On 6 March 2008 the Orenburg Regional Court convicted the applicant on several counts of robbery and sentenced him to twelve years and four months’ imprisonment. It stated that the applicant’s allegations of ill-treatment were unfounded, relying on the findings of the pre‑investigation inquiry and the statements by L. and the other police officers and investigators denying any wrongdoing on their part.
25.On 24 November 2008 a deputy head of the investigation department of the Orenburg town prosecutor’s office dismissed an appeal by the applicant against the investigator’s decision of 27 October 2006, considering that the inquiry had been thorough and objective.

5.The applicant was born on 12 May 1988 and at the time of his most recent communication with the Court was detained in Toretsk (previously Dzerzhynsk).
6.Early on the morning of 16 February 2005 Mrs D., a night security guard at a shop in Toretsk, was found dead and partially undressed at her place of work, with injuries on her head and genitals. It was established that a grinder tool had also gone missing. The prosecutor’s office instituted criminal proceedings on the same day and over the following days proceeded to interview a number of witnesses.
A.The events of 20 and 21 February 2005
7.At about 10 a.m. on 20 February 2005 two police officers arrived at the applicant’s home and asked him, at the time sixteen years of age, and his father to go to the police station with them.
8.Once at the police station, the applicant was separated from his father and questioned as to whether he had any information about the grinder which had disappeared from the shop.According to the applicant, then the police had started urging him to plead guilty to the murder and theft. According to him, as he repeatedly denied those allegations, three officers allegedly beat him on various parts of his body and threatened him that he would be raped in prison.
9.At an unspecified time the same day the applicant’s father and grandfather, who lived in the same house as the applicant, made statements to the police about the presence of the grinder in their house. The father stated that the applicant had apparently brought the grinder home around the time of the murder and had originally told him that a stranger had been offering the grinder for sale. On learning that the police were searching for a grinder, the applicant had told him the story he had told the police (see paragraphs 8 above and 13 below). However, in the applicant’s story as retold by the father, the grinder was found in a different street. On hearing this, the father had hidden the grinder. The grandfather’s account of events was similar to the father’s. On the same day the police also obtained a statement of Mr S., the applicant’s friend, about the time they had spent together on the night of the murder and the circumstances under which they had parted.
10.From 12.30 p.m. to 1.20 p.m. the police went to the place where the applicant’s father had hidden the grinder. The father pointed to where the grinder was and the police seized it.
11.At about 3p.m. the applicant signed a document explaining his rights as a suspect, including the right to remain silent and to consult a lawyer before his first questioning. When signing the document, the applicant added that he did not object to L. representing him. The applicant alleged that he had mistakenly understood that L. had been asked to appear on his behalf by his parents. In fact, L. had been asked to represent the applicant by the investigator.
12.Subsequently the Qualifications Commission of the Bar of Ukraine, at the time the highest authority in charge of the advocates’ qualifications and discipline, examined the applicant’s parents’ complaint concerning the procedure used in the appointment of L. The Commission established that there was no evidence that L. had been appointed through a bar association, as required by law, in particular there was no order of the bar association or agreement with the client appointing L. It also established that there was no evidence that the investigator had issued a formal decision appointing L. as the applicant’s lawyer, as he had been required to do by law.
13.At 3.20 p.m. the applicant was questioned in the presence of L. He stated that on the night of the murder he had been walking home after a night out with friends. He had observed a stranger running down the street with a grinder and had started running after him. Once the man had dropped the grinder, the applicant had picked it up and run away. When he had brought the grinder home he had said to his father that someone had been offering to sell a grinder. When he had learned the next day that a night security guard had been killed and that grinders had been stolen, he had revealed the truth to his father, who had then hidden the grinder.
14.At 3:55 p.m. the applicant was examined by a forensic medical expert, who concluded that he had several light injuries that had been inflicted two to seven days before the examination.
15.At 4 p.m. the investigator K. drew up an arrest report, whereby the applicant was arrested on suspicion of D.’s murder. According to the report, the applicant was being arrested on the grounds that “eyewitnesses indicate the person who committed the crime”. According to the Government, the applicant’s parents were informed of the applicant’s arrest at that time. According to the applicant, no such notification was made.
16.At the same time most of the applicant’s clothes were seized for a forensic examination.
17.The applicant’s father was taken to the family home to accompany the police during a search.
18.At about 6.20 p.m. the police completed the search of the applicant’s home, seizing some clothes. According to the applicant it was only then that the police officers who had conducted the search brought replacement clothes from the applicant’s home to the police station.
19.According to the applicant, he was left handcuffed at the police station, wearing just his underwear, for the entire period from the seizure of his clothes until the end of the search and return of the police officers who conducted it, feeling very cold and vulnerable. During that time police officers continued urging the applicant to confess to the murder and beat him with plastic water bottles.
20.On the evening of 20 February 2005 the applicant was placed in a cell in the police’s temporary detention facility with two adult detainees, K., born in 1975, and O., born in 1956, who were at the time registered as suffering from drug addiction. O. had also been suffering from tuberculosis and had had a prior conviction (see paragraphs 62 and 63 below). It is unclear whether the applicant knew of the above background of his co‑detainees at the time he had been held with them.
According to the applicant, the two other detainees were secret police informants. They advised the applicant that as he was a minor and if he chose to cooperate the investigative authorities would prosecute him on less serious charges and he would not receive a real prison sentence.
K. was diagnosed with tuberculosis in November 2005. O. and K. died in January and December 2006 respectively, the former allegedly of an overdose and the latter of a disease.
21.The applicant continued to be detained in the cell with O. and K. until a court detention order arrived on 23 February 2005 and he was transferred to the remand prison (see paragraph 26 below).
22.According to the applicant, on the morning of 21 February 2005 two police officers took him out of his cell without registering it. They threatened to make sure he got a long prison sentence, to charge him with rape, which would lead to him being raped and harassed in prison by other inmates, and to create “problems” for his family, unless he confessed. Unable to withstand such pressure, the applicant agreed to copy by hand a statement prepared for him by the police officers, acknowledging his guilt for murder in “self-defence”.
According to the authorities, on the morning of 21 February 2005 the applicant asked to see the officer in charge of the police detention facility.
23.The applicant then made a handwritten statement of surrender to Officer G., the head of the police detention facility. In his statement, the applicant noted that early on 16February 2005, while in a state of alcoholic intoxication, he had decided to burgle the shop. Having suddenly run into the victim, who had tried to attack him with a grinder, he had defended himself and had hit her with a brick. When she had become unconscious, the applicant, scared of what had happened, had carried her to a couch and had undressed her to make it look as though there had been a rape. Then he had picked up the grinder and taken it home.
24.Later on the same day the applicant repeated the above confessions in a formal questioning session in the presence of his lawyer, L.
25.On the same day the applicant, unaccompanied by L., was taken to an identification parade, where Y., a shop assistant who had been working on a night shift at a kiosk close to the scene of the crime on the night of the murder, picked the applicant out of a four-person line-up as the person she had seen by her kiosk shortly before D. had been killed. In the course of one of the subsequent trials Y. stated that she had not identified the applicant with total certainty but had merely thought that there was a resemblance between him and the person she had seen that night.
B.Subsequent investigation and the first trial
26.On 22 February 2005 the applicant was charged with murder without aggravating circumstances and theft. Accordingly, his procedural status changed from that of “suspect” to “accused”. Questioned on the same day in the presence of L. the applicant repeated his previous confession.
27.On 23 February 2005 the Toretsk Court remanded the applicant in custody pending the completion of the investigation. That decision was not appealed against and became final.
28.On the same day the applicant’s cellmates, K. and O., were released.
29.On 25 February 2005 the applicant was transferred from the police detention facility to the remand prison in Bakhmut (at the time Artemivsk).
30.On 31 March 2005 the applicant was questioned in the presence of B., a lawyer engaged by his parents. He stated that he confirmed his prior statements about the murder. In the course of the subsequent investigation he was again questioned in the presence of the same lawyer and made detailed statements that repeated his confession.
31.On 6 April 2005 a commission of psychologists and psychiatrists produced a report at the request of the investigator concerning the applicant’s mental state at the time of the crime and at the time of his examination by the experts. The experts concluded, in particular, that the applicant, according to his own account, had committed the killing in self-defence, without premeditation and through an unexpected confluence of circumstances. As a result, he had suffered a serious shock and confusion. At the remand prison he had suffered from sleep troubles, fear, and confusion and had displayed inappropriate behaviour. When examined by a prison psychiatrist he had been diagnosed with an acute reaction to stress, put in the prison’s medical wing and treated with sedatives, which had helped.
32.In the course of the trial, conducted in the presence of his lawyer A.Kh. and his mother acting as a lay defender, the applicant confirmed the account of the attack on D. which he had given in the course of the pre-trial investigation.
33.On 21 July 2005 the Toretsk Court convicted the applicant of murder without aggravating circumstances and theft and sentenced him to seven and a half years’ imprisonment.
34.On 5 August 2005 the applicant, represented by his parents and a new lawyer, Y.K., appealed against the judgment. Additional appeals were also lodged by them on later dates. In the appeals the applicant retracted his confessions as false. He and his representatives alleged that the confessions had been extracted from him under physical and psychological pressure from the police, namely that he had been subject to “physical pressure”, “threats and beatings”, “moral and physical influence”, that his statement of surrender “resulted from beatings” (“применены меры силового давления”, “угрозами, избиваниями”, “моральные и физические воздействия”, “выбита явка с повинной” respectively). According to him, he had been told that unless he confessed to murder he would be falsely accused of rape making his life in prison extremely difficult. He stated that two cellmates at the police detention facility also urged him to confess. He also noted that he had kept to his initial confessions until his conviction because his cellmates and the police had told him that the police would make his life difficult in prison if he told anyone of the pressure on him. On the other hand, they had assured him that if he chose to cooperate with the police they would make sure the charges against him were not serious and that he would be released from custody right after his trial. Accordingly, he had said nothing to his lawyers about his ill-treatment.
35.The prosecutor also appealed, in particular arguing that the sentence was excessively lenient.
36.On 4 October 2005 the Donetsk Regional Court of Appeal (“the Regional Court”) quashed the judgment of 21 July 2005 and returned the case for further investigation. The court noted that the judgment had been poorly reasoned. As far as the motives for the applicant’s actions were concerned, it had also been based heavily on the applicant’s confessions, without sufficient corroboration from other evidence. The description of the crime scene, for instance that the lock had been sawn off rather than broken off, had not matched the trial court’s conclusion, based on the applicant’s account, that the applicant had simply been exploring the shop out of curiosity. The victim had also had unexplained injuries on her genitals.
C.Further investigations and retrials
37.On 19 December 2005 and on several subsequent occasions the investigators attempted to question the applicant within the framework of the further investigations. However, he refused to answer any questions and denied any involvement in the crimes he had been charged with.
38.On 11 and 12 January 2006 the investigator reclassified the charges against the applicant from simple murder to aggravated murder for gain, and from theft to robbery. The applicant was also charged with theft of a friend’s cell phone.
39.On 17 February 2006 the Regional Court released the applicant from custody, finding that a further extension of his detention would be in breach of the applicable procedural time-limits.
40.On 21 April 2006 the applicant’s case was submitted for a retrial.
41.On 10 May 2006 the Toretsk Court again remanded the applicant in custody. It held that while the applicant had no prior convictions and had positive character references, he had no employment and had been charged with grave offences. Accordingly, it held that detention was necessary to prevent the applicant from absconding or interfering with the investigation and to ensure his compliance with procedural decisions. No time-limit for his detention was fixed in that decision or in those made on 30 November 2006, 21 May 2007, 24 July and 30 December 2008, and 27 May 2009 (see below).
42.On 30 November 2006 the Toretsk Court returned the case for further investigation and ruled that the applicant should remain in custody. The court based its decision on the gravity of the charges which, according to the court, made the applicant likely to abscond.
43.On 21 March 2007 the applicant’s case was submitted to the Regional Court for a retrial.
44.On 21 May 2007 the Regional Court again sent the case back for further investigation and, without giving reasons, ruled that the applicant should remain in custody.
45.On 25 January 2008 the Regional Court convicted the applicant of robbery and the murder of D.
46.On 24 July 2008 the Supreme Court quashed the conviction, returning the case for further investigation. The Supreme Court also ruled that the applicant should remain in custody. It gave no reasons for the latter part of its decision.
47.On 30 December 2008 the Regional Court returned the case, which in the meantime had been re-submitted to it, for further investigation. It also ruled that the applicant should remain in custody. By way of reasoning it stated that there were no grounds to order his release given that, in view of the gravity of the charges against him, it could not be ruled out that the applicant would attempt to abscond. On 9 April 2009 the Supreme Court quashed that decision.
D.Final re-trial and conviction
48.On 27 May 2009 the Regional Court committed the applicant for trial and ruled that he should remain in custody for the same reasons as given in the order of 10 May 2006 (see paragraph 41 above).
49.In the course of the final retrial the applicant denied any involvement in the attack on D. and said that he had found the grinder, describing essentially the same circumstances as on 20 February 2005 (see paragraph 13 above). To explain the presence of his fingerprint in the shop where the victim had been killed he stated that he had bought cigarettes there on 15February 2005.
50.On 11 November 2009 the Regional Court convicted the applicant of robbery and aggravated murder and sentenced him to thirteen years’ imprisonment. In particular, it made the following findings.
(a)It found established that the applicant had broken into the shop intending to burgle it, had discovered D. sleeping, had repeatedly hit her on the head with a brick and then, after she had become unconscious, had inserted the neck of a vodka bottle into her vagina.
(b)In finding the applicant guilty, the court referred to various pieces of evidence, including forensic examinations, witness statements and the applicant’s confessions “given by him when questioned as a suspect and as an accused” (see paragraph 26 above), and the presence of the applicant’s fingerprint at the crime scene. In particular, the trial court referred to the pre-trial identification of the applicant by witness Y. and to the testimony of V.B., who had seen the applicant near the shop around the time of the murder. The court considered the applicant’s explanation for the presence of his fingerprint in the shop unconvincing since he had first mentioned the supposed visit to the shop on 15 February 2005 in the course of the retrial and had not previously mentioned that visit.
(c)The court rejected the applicant’s argument that his confessions had been inadmissible because they had been obtained under duress. It noted in particular that there was no evidence that the applicant had suffered any physical injuries at the hands of the police. Moreover, the applicant had consistently repeated his confessions in the presence of his lawyers, mother, and psychiatric experts in the course of the first investigation and trial. His parents had voluntarily paid the victim’s burial costs. Still, the applicant’s confessions had only partially reflected the truth. In particular, according to the forensic and other evidence, D. had been raped with a vodka bottle, which was not in line with the applicant’s initial statements that he had accidentally killed her after being surprised by her and had then run away almost immediately.
(d)The absence of the applicant’s lawyer from the identification parade on 21 February 2005 had not breached the applicant’s defence rights since he had not made any statements on that occasion and had simply been physically shown with other men in the line-up to the witness Y. through a one-way glass partition. It had been Y., and not the applicant, who had actively participated in that investigative measure, and therefore it had not had any impact on his chosen defence strategy. Moreover, contrary to the applicant’s submissions, Y.’s statements concerning the applicant’s presence near the crime scene on the night of the murder had been consistent with the statements of other witnesses.
(e)On an application by the defence the court ruled certain expert evidence inadmissible.
(f)While the statement in the arrest report that “eyewitnesses indicate the person who had committed the crime” (see paragraph 15 above) had been technically incorrect in the applicant’s case, the discovery of the grinder in the applicant’s home had in fact constituted an independent legal basis for his arrest. Accordingly, the Regional Court refused to declare the applicant’s arrest unlawful.
51.In an appeal to the Supreme Court the applicant gave the account of alleged ill-treatment by the police set out above. He stressed, however, that he had managed to withstand most of the pressure from the police. What had made him finally agree to plead guilty to a murder he had not committed had been the threat that he would be charged with rape and that that would lead to him being raped in prison. That threat had had a particularly strong impact on him given that he had already been made to spend several hours in a state of undress and vulnerability. He had chosen the false confession as a lesser evil. He had then maintained his confession throughout the trial because he had been assured by the lawyer B., who had good relations with the investigator in charge of the case, that the trial court would reclassify the charges against him from murder to a lesser charge of a “killing committed while exceeding the limits of legitimate defence”. He had hoped that such a reclassification would allow him to get probation instead of an actual prison sentence. It was not true that, as stated by the Regional Court, he had repeated his confession to psychiatrists. In fact the investigator had assured him that the psychiatric assessment was pre‑arranged to allow for reclassification and its results would be worded accordingly. The applicant had not talked to the experts and his mother assured him that she had arranged for the psychiatrists’ report to be worded in such terms that it may justify reclassification of charges against him.
52.On 3 June 2010 the Supreme Court upheld the above judgment and it became final.
E.Investigation into the applicant’s allegations of ill-treatment
53.It would appear that the applicant first raised his allegations of ill‑treatment in his appeals against his first conviction (see paragraph 34 above). In those appeals his allegations were framed in rather general terms and were limited essentially to allegations of “beatings” and “psychological pressure”. He also stated, more specifically, that he had been told that, unless he confessed, charges of rape would be brought against him and this would make his life in prison extremely difficult.
Afterwards the applicant’s parents also lodged complaints about his alleged ill-treatment with the prosecutor’s office. It appears that the applicant’s mother lodged first such complaints on 23 December 2005 and 16 January 2006. The Court has not been provided with copies of those complaints.
54.On 26 January 2006 the Toretsk prosecutor’s office, in response to the applicant’s mother’s complaint of 16 January 2006, refused to institute criminal proceedings in relation to the applicant’s complaints for lack of a corpus delicti in the police officers’ actions, concluding that there was no evidence of any physical or psychological ill‑treatment. The prosecutors referred essentially to the lack of medical evidence of any injuries suffered by the applicant at the time of the alleged ill-treatment and the lack of any complaints from him before his first conviction. The prosecutors also stated that there had been no irregularities in the applicant’s placement and holding in the police detention facility and that O. and K. with whom the applicant had been placed at that facility had had no prior convictions.
55.In the course of examination of the case against the applicant, on 14June 2006, the applicant complained to the trial court about the beatings, handcuffing, stripping and the threats of prison rape he had allegedly been subjected to by the police. On 15 June 2006 the trial court ordered the prosecutor’s office to investigate the allegations.
56.On 29 June 2006 the prosecutor’s office again refused to institute criminal proceedings essentially on the same grounds. No mention was made of the applicant’s placement with adults in the detention facility.
57.On 26 September 2006 the applicant’s mother complained to the regional prosecutor’s office, reiterating her allegations that the applicant had been physically ill-treated by the police, left in a state of undress and handcuffed and threatened that he would be charged with rape and would, therefore, be raped in prison. She referred to her previous complaint of 23December 2005 on the same subject and complained that she had received no satisfactory answer to it.
58.On 16 October 2006 the regional prosecutor’s office overruled the decisions of 26 January and 29 June 2006.
59.On 3 November 2006 the Toretsk prosecutor’s office again refused to institute criminal proceedings, essentially on the same grounds as in its previous decisions. The prosecutors stated, with no further explanation, that there were no irregularities in the course of the applicant’s placement and holding in the police detention facility. On 25 June 2007 the regional prosecutor’s office overruled that decision as premature.
60.On 10 July 2007 the Toretsk prosecutor’s office again refused to institute criminal proceedings essentially on the same grounds. No mention was made of the applicant’s detention with adults. On 8 February 2008 the regional prosecutor’s office upheld that decision.
61.Subsequently, other decisions refusing to institute criminal proceedings were taken, the most recent one on 31 December 2008. The copies of those decisions have not been provided to the Court.
62.On 6 January 2011 the Toretsk prosecutor’s office wrote to the applicant’s father in response to his complaint. It said that the records of local medical institutions showed that at the time the applicant had been placed in the cell with O. the latter had been registered as suffering from tuberculosis but, according to his file, he had not posed a danger of infection to others. He had been admitted to hospital in March 2005 to treat his tuberculosis. O. had had a conviction at some point in the past but his conviction had been considered sufficiently old to have been considered expunged by time the applicant had been detained with him.
63.On 14 March 2011 the Toretsk prosecutor’s office wrote to the applicant’s father, again in response to his complaint, stating that the placing of adult arrestees in the same cell with the applicant, a minor, had been in breach of domestic law (section 8 of the Pre-Trial Detention Act) and had constituted a disciplinary infraction on the part of the police officers who had taken that decision. However, they could not be disciplined because the six-month limitation period for disciplinary measures had expired. The prosecutor’s office also confirmed that the applicant’s cellmates were at the time registered as drug users.

5.The applicants were born in 1973, 1985 and 1981 respectively. They live in Orsk in the Orenburg region, Krasnoturinsk in the Sverdlovsk region and Orenburg, respectively.
A.Mr Olisov’s application
6.In May 2006 D. complained to the Department for Combating Organised Crime (the “UBOP”) of the Orenburg regional police department that the applicant was allegedly planning his murder. Kh. and P. ‒ whom the applicant had allegedly hired to murder D. ‒ agreed to cooperate with the UBOP and, acting on the latter’s instructions, organised a meeting with the applicant, told him that they had killed D., showed him photographs simulating D.’s death ‒ which they had prepared as part of the UBOP covert operation ‒ and asked for payment. After paying them later the same day, the applicant and his father, who had accompanied him, were taken to the UBOP office where they arrived at about 2 a.m. on 17 May 2006.
7.According to the applicant, he was interviewed at the request of the head of the UBOP, K., until 7.30 a.m. by several operative police officers, including M., G. and O., who demanded that he confess to having ordered D.’s murder. They allegedly subjected him to ill-treatment which the applicant described as follows. They handcuffed him, punched him and subjected him to near‑suffocation by use of a plastic bag put over his head. He fainted several times. They forced his legs apart until he fell and then lifted him by his hands, which were shackled behind his back. They tied him up in a painful position with a belt so that his knees were pressed against his neck, and pulled up his shackled hands. They lifted the applicant up whilst thus tied, and dropped him down onto his coccyx. One of them stepped on his head.
8.At 7.30 a.m. the applicant was placed in a cell in which he stayed until 3p.m. He was then again interviewed and signed a document entitled “explanation” (объяснение) drawn up by the UBOP operative officer O., in which he gave statements which he later reiterated at his trial.
9.No record of the applicant’s arrest was drawn up. At 6 p.m. the UBOP officers took the applicant home, carried out a search, and then left.
10.The next day the applicant was taken by his father to the Pirogov hospital in Orenburg. According to the hospital medical records, the applicant had many bruises on his body, in particular on the head, neck, abdomen and the lumbar region.
11.On the same day the applicant complained about his ill-treatment to the Leninskiy district police department no. 1 of Orenburg, which ordered a forensic medical examination.
12.On 18May 2006 an expert examined the applicant, his medical records, and his allegations of ill-treatment by the UBOP officers the previous day (namely being handcuffed and tied, punched and beaten with a bat), and concluded that bruises and abrasions on the applicant’s body and upper and lower extremities had been inflicted by hard blunt objects at the time, as alleged by him (forensic medical expert report of 19 May 2006).
13.On 22 May 2006 the applicant was diagnosed with a fractured vertebra and hospitalised. His X-ray examination confirmed fractures of two vertebrae.
14.On 10 July 2006 the Leninskiy district prosecutor’s office of Orenburg brought criminal proceedings against the applicant in relation to the attempted murder of D. On 12 July 2006 the applicant was arrested.
15.On12 and 13 July 2006 the applicant was examined by a forensic medical expert who concluded that, in addition to the injuries noted in the previous report of 19 May 2006, the applicant had a fracture of the seventh thoracic vertebra which resulted in health impairment of medium gravity and had been caused in May 2006 by the impact of a hard blunt object or as a result of hitting such an object with great mechanical force.
16.According to an additional forensic medical expert opinion of 31July 2006 produced on the basis of medical records, the fracture of the vertebra could not have resulted from being punched, kicked and beaten with a bat, or as a result of handcuffing, having the legs tied together with a belt, or lifting the applicant up by his hands. It could have resulted from an impact by a traumatic force along the axes of the spine.
17.On 31 July 2006 an investigator from the Promyshlenniy district prosecutor’s office of Orenburg ‒ who had carried out a pre-investigation inquiry into the applicant’s allegations of ill‑treatment by the UBOP officers ‒ refused to initiate criminal proceedings, relying on statements by the UBOP police officers, in particular G. and O., that on 17May 2006 the applicant had been arrested on suspicion of having ordered a murder, and had been taken to the UBOP and interviewed, and that no violence had been used against him. The investigator also referred to statements by the applicant’s father and other persons who had been in the UBOP building at the same time as the applicant and had not seen or heard that the applicant had been subjected to ill-treatment. On 26July 2006 the applicant had been diagnosed as suffering from a mental disorder. The investigator concluded that the applicant could not be trusted, that he had probably received his injuries as a result of hitting himself accidentally against some objects, and that the true circumstances in which he had received the injuries could not be established.
18.On 14 May 2008 the Promyshlenniy District Court granted an appeal lodged by the applicant against the investigator’s decision. Subsequently, further refusals to open a criminal case followed on 24 July and 4 August 2008 and were annulled as unlawful by the prosecutor’s office.
19.On 14 October 2008 the Orenburg Regional Court convicted the applicant of the attempted murder of D., sentenced him to five years’ imprisonment and ordered him to pay damages to D. It took into account the fact that the applicant had no criminal record and also had positive references. At the trial the applicant denied his guilt, stating that his sister had been killed in a traffic accident caused by D.’s drunk driving, that D. had unlawfully avoided serving his sentence of imprisonment, that he ‒ the applicant ‒ had wished to compel D. to serve his prison sentence by using the services of Kh. and P. – who had suggested planting drugs on D., inter alia – and had paid them out of fear for his family’s safety. The applicant’s argument that the crime of which he was accused was the result of police entrapment was dismissed by the court.
20.On 23 October 2008 an investigator from the investigative committee of the Orenburg regional prosecutor’s office ordered, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure, that no criminal case be opened into the applicant’s allegations for lack of the elements of a crime under Articles 285 and 286 of the Criminal Code (on abuse of powers) in the acts of the police officers. The decision relied on the same reasoning as that set out in the initial decision of 31 July 2006, adding that the applicant had recovered from his psychiatric disorder and had been convicted.
21.On appeal by the applicant, the investigator’s decision was found lawful by the Orenburg Promyshlenniy District Court in a decision of 15January 2009, which was further upheld by the Orenburg Regional Court on 12 March 2009. The District Court held, in particular, that the fact that the applicant had been detained unlawfully for more than three hours at the UBOP premises was not in itself sufficient to prove that he had been ill‑treated by the police officers or that he had been deliberately subjected to unlawful detention. In reply to the applicant’s criticism of the investigating authority’s failure to carry out a thorough investigation and, in particular, to examine the room at the UBOP premises in which the applicant had been interviewed and allegedly ill‑treated, the District Court opined that there would be no sense in examining the UBOP office given the considerable length of time that had passed since the events in question.
22. On 26 January 2009 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal.
23.On 21 May 2015 the acting head of the supervisory department of the Orenburg regional investigative committee annulled the decision of 23October 2008 for being based on an incomplete inquiry and ordered an additional inquiry and the applicant’s additional forensic medical examination.
B.Mr Danishkin’s application
24.On 25 December 2010 between 8.43 a.m. and 11.50 a.m. the police searched the applicant’s flat in Nizhniy Novgorod, pursuant to a decision of the Kanavinskiy District Court on 14 December 2010 concerning criminal proceedings against third persons, in order to find evidence of those persons’ membership of extremist organisations. The police found explosives and bomb-making material. Once the search had been completed, they took the applicant to the Centre for Combating Extremism at the Nizhniy Novgorod regional police department.
25.Between 4 p.m. and 5.08 p.m. the applicant was questioned as a witness in the criminal proceedings against third persons by investigator A. of the Kanavinskiy district investigative committee, who later stated that at the time of the questioning the applicant had had no injuries on the visible parts of his body.
26.The investigator ordered that the case concerning the applicant’s illegal possession of arms be transferred to an investigator at police department no. 1 of Nizhniy Novgorod.
27.The applicant was then interviewed by the head of the Centre for Combating Extremism, T., his deputy K. and three operative police officers of the Centre A., S. and Sh. According to the applicant, they demanded that he confess to preparing a terrorist act and sign a “statement of surrender and confession” (явка с повинной). They allegedly subjected him to ill‑treatment which the applicant described as follows. They beat him up, punching and kicking him. With his hands handcuffed behind his back they bound him with a two-metre-long orange rope, so that his crossed legs were pressed to his torso. They pulled on the rope and lifted the applicant off the floor, subjecting him to near-suffocation as the knots in the rope were pressing against the front of his neck, making it impossible to breath. They then loosened the rope, so that the applicant fell and hit his buttocks on the floor, causing him severe pain. The applicant lost consciousness. At some point two other police officers Ch. and K. joined the others. K. punched the applicant in the face, making his lip bleed. The applicant’s ill‑treatment lasted until approximately 8 p.m.
28.At about 9 p.m. the applicant was taken to police station no.1 of the Nizhniy Novgorod town police department, formally arrested at 11.30 p.m. and questioned as a suspect.
29.In his report of 25 December 2010 to the head of the Centre for Combating Extremism, T., police officer Sh. stated that physical force had been used in order to apprehend the applicant when he tried to escape. According to subsequent statements made by Sh. and A. to the investigative authority, Sh. had tripped the applicant up in order to prevent his escape and the applicant had fallen over, whereupon Sh. “had used physical force to overcome the applicant’s resistance” and kept the applicant on the ground until the arrival of A. They had then handcuffed the applicant. As a result, the applicant had allegedly received abrasions to the head, face and neck.
30.After the applicant’s questioning as a suspect he was taken to a temporary detention facility (an “IVS”). The IVS officer on duty saw the applicant’s injuries and refused to admit him without a prior medical examination.
31.At 2.45 a.m. on 26 December 2010 the police officers took the applicant to town hospital no.40 in the Avtozavodskoy district of Nizhniy Novgorod, where a doctor recorded contusions and bruises on his face and assessed his condition as not precluding detention.
32.On the applicant’s arrival at the IVS, the officer on duty examined the upper part of his body above the waist and recorded bruises and abrasions. The applicant stated that his injuries were the result of ill‑treatment to which he had been subjected by the police officers at the Centre for Combating Extremism from approximately 4 p.m. to 6 p.m. on 25December 2010. The applicant stated, in particular, in relation to the injuries on the face, that he had an abrasion in the temple area on the right side, a bruise under the right eye, an abrasion on the chin on the right side, and a damaged lip on the left side.
33.On 27 December 2010 the applicant was detained on remand by a court order and at 11.55 p.m. transferred from the IVS to pre-trial detention facility IZ-52/1 (the “SIZO”), where an on-duty officer and medical assistant recorded the following injuries on his body: a bruise on the right of the abdomen, a bruise in the left axillary region and multiple bruises on the face and neck. The applicant reiterated that he had been ill‑treated by the police. The incident was reported to the head of the SIZO.
34.On 25 January 2011 the Kanavinskiy district prosecutor’s office received a communication from the SIZO about the injuries found on the applicant on his admission and forwarded it to the Kanavinskiy district investigation division of the Nizhniy Novgorod regional investigative committee (Следственный отдел по Канавинскому району г.Н.Новгород СУ СК России по Нижегородской области). The applicant lodged a complaint with the investigative authorities about his alleged ill-treatment andon 4February 2011 gave a statement.
35.According to a forensic medical examination report of 24February 2011 prepared on the basis of the applicant’s SIZO medical records (and ordered on 11 February 2011 by an investigator who inquired, inter alia, whether the injuries could have been self-inflicted), the applicant’s injuries could be classified as blunt trauma. Although the description of the injuries in the SIZO report made it impossible to determine reliably the date of their infliction, the expert suggested that the bruises on the right part of the abdomen and multiple bruises on the face and neck could have been inflicted within a period of three days prior to the applicant’s examination at the SIZO on 27 December 2010 and the bruise in the left axillary region could have been inflicted more than three days before that examination. The expert noted that the injuries were located on parts of the body within the reach of the applicant’s own hands.
36.According to an additional forensic medical examination report of 2September 2011, prepared on the basis of the applicant’s medical documents, the applicant’s injuries could have originated either as a result of being punched and kicked, or as a result of the use of force as alleged by police officers Sh. and A.
37.According to a report of 23 March 2011, prepared on the basis of an internal inquiry and approved by the head of the internal security division of the Nizhniy Novgorod regional police department, Sh. stated that in order to overcome the applicant’s resistance he had twisted the applicant’s hand behind his back, and that the applicant had received the abrasions to the head and face as a result of falling over. The other four police officers who had interviewed the applicant had given similar statements. The report suggested that the question of the police officers’ responsibility for the applicant’s ill‑treatment could only be decided by the investigative committee pursuant to a pre-investigation inquiry.
38.The Kanavinskiy district investigative committee issued six refusals to institute criminal proceedings concerning the applicant’s alleged ill‑treatment (on 28 February, 8 April, 19 August, and 5September 2011, 22February and 1July 2012). The first five decisions were revoked by the deputy head of the Kanavinskiy district investigative committee or the Kanavinskiy district deputy prosecutor for being based on an incomplete inquiry (decisions of 10March, 20July and 22August 2011, 30 January and 22June 2012).
39.On 15 June 2011 the Avtozavodskoy District Court of Nizhniy Novgorod convicted the applicant of illegal storage of explosives under Article 222 § 1 of the Criminal Code. On 18 November 2011 the Nizhegorodskiy Regional Court upheld the judgment on appeal.
40.In the decision refusing to open a criminal investigation into the allegations of the applicant’s ill-treatment of 1 July 2012, pursuant to Article24§1 (2) of the Code of Criminal Procedure, for lack of the elements of a crime under Article 286 of the Criminal Code (on abuse of powers) in the actions of police officers Sh., A. and T., it was stated that the applicant had tried to escape during his transfer from the Centre for Combating Extremism to police station no.1 on 25December 2010 and could have received the injuries as a result of the lawful use of force by police officersSh. and A. in their effort to stop him. That conclusion was based on statements by police officers based at the Centre, namely Sh., A., T., K., Ch., G., M. and S., who had conducted the applicant’s interview (опрос) with a view to establishing the circumstances of the case concerning the explosives found in his flat and his possible accomplices, in particular persons who had supplied him with the explosives. They denied the use of any violence against the applicant. The investigator confirmed that, in accordance with Article 6 § 1 of the Operational-Search Activities Act, the police officers had the right to conduct the applicant’s interview.
41.The applicant appealed against the investigator’s decision of 1July 2012 to a court. He complained, in particular, that the investigator had not given him the opportunity to challenge the police officers’ version. The applicant’s appeal was rejected by a decision of 16 May 2013 of the Kanavinskiy District Court, which was satisfied that the decision was reasoned and lawful. That decision was upheld by the Nizhniy Novgorod Regional Court on 5August 2013.
42.On 25 May 2015 an acting prosecutor of the Nizhniy Novgorod region annulled the refusal of 1 July 2012 as unlawful and based on an incomplete inquiry and ordered an additional inquiry, finding that the applicant’s statements contesting the police officers’ version of events and alleging the use of violence by police officer K. had not been investigated.
C.Mr Zontov’s application
43.On 26 August 2011 a woman was attacked and robbed on the street.
44.On 27 August 2011 nine police officers (Sh., R., P., G., S., M., Kh., Z. and A.S.) were ordered to arrest the applicant, who was suspected of having committed the robbery. At about 10 a.m. they apprehended the applicant on a street in Podmayachnyy village in the Orenburg Region. The applicant tried to flee because, according to him, he did not realise that those pursuing him ‒ who were dressed in plain clothes ‒ were police officers. Sh. andR. stopped him. According to the applicant, they tied his hands with a belt. The applicant was taken to the Orenburg town police department.
45.The applicant described the events at the police station as follows. He was led through an entrance for staff only to an office on the first floor and handcuffed. The police officers, in particular O., demanded that he confess to having attacked the woman and stolen her gold chain and mobile phone.O. punched the applicant twice in the chest, then hit the applicant on his feet with a rubber truncheon for about forty minutes, while the other police officers, in particular A., pinned him down on the floor, holding onto his arms and legs. He was then asked to stand up on his feet but was unable to do so, fell over and was hit by the truncheon on the left side of his torso. His feet were stepped on and he was suffocated with a plastic bag. During the suffocation, which lasted three or four hours, he fainted several times.The applicant wrote a “statement of surrender and confession” (явка с повинной), as requested. O. threatened him with further torture if he did not reiterate his confession to an investigator.
46.The “statement of surrender and confession”, in which the applicant confessed to having attacked the woman and stolen her gold chain, was recorded by the police. The applicant also signed a document entitled “explanation”, drawn up by operative police officer D., with a detailed description of the circumstances of the crime.
47.At 8.40 p.m. an investigator drew up a record of the applicant’s arrest as a suspect. The applicant gave self‑incriminating statements when questioned as a suspect in the presence of a State-appointed lawyer, reiterating the confession statement he had given earlier to the police officers.
48.At 12.25 a.m. on 28 August 2011 the applicant was placed in the temporary detention facility (the “IVS”) in Orenburg town police department, where the following injuries on his body were recorded: bruises on the chest, an abrasion on the face on the left cheek bone, many abrasions on the waist, abrasions on both wrists and scars on the left forearm. The applicant stated that those injuries had been inflicted during his arrest.
49.On 29 August 2011 the applicant was taken to a traumatology centre, where he was diagnosed with contusion of the left side of his chest and both wrists.
50.At 2.30 p.m. the applicant appeared before the Promyshlenniy District Court of Orenburg, which ordered his detention on remand. The court decision referred to the investigator’s submissions that the applicant’s involvement in the crime had been established on 26 August 2011 but he had been hiding from the law‑enforcement authorities until his arrest on 27August 2011.
51.On the same day he was placed in pre-trial detention facility IZ‑56/3, where bruises on the left side of his chest, both wrists and both feet were recorded.
52.On 30 August 2011 the applicant’s lawyer A., who had been retained by his family, observed injuries on the applicant when visiting him in the detention facility. The applicant told her about his ill-treatment at the police station and the self‑incriminating statements he had given as a result.
53.On 31 August 2011 when questioned as an accused in the presence of lawyer A., the applicant retracted his self‑incriminating statements, explaining that he had given them on 27August 2011 as a result of his ill‑treatment by the police officers.
54.According to the applicant’s mother and brother, and his acquaintance Zh., the applicant had no injuries before his arrest.
55.On 5 September 2011 the applicant lodged a criminal complaint concerning his alleged ill-treatment by the police.The Orenburg town investigative committee carried out a pre‑investigation inquiry. The operative police officers who had arrested the applicant on 27 August 2011 gave explanations. They stated that as soon as the applicant had seen them he had run away and they had lost sight of him. When running away the applicant had fallen over several times. The police officers had split into several groups in order to find and stop him. Police officers Sh. and R. had caught up with the applicant, knocked him to the ground and handcuffed his hands behind his back. R. suggested that any bruises or abrasions on the applicant’s body could have been received as a result of his falling over when trying to run away from them. The police officers denied any deliberate use of force against the applicant either during his arrest or afterwards at the police station when they interviewed him.
56.On 5October 2011 an investigator refused to initiate criminal proceedings pursuant to Article 24§1 (2) of the Code of Criminal Procedure for lack of the elements of a crime under Articles 285 and 286 of the Criminal Code (on abuse of powers) in the acts of the police officers.Relying on the police officers’ statements, the investigator found that the police officers had acted lawfully in using handcuffs and “blocking” the applicant, a suspect in criminal proceedings, who had tried to escape and resisted his arrest. On 10 October 2011 a deputy head of the Orenburg town investigative committee annulled the investigator’s decision on the grounds that the inquiry had been incomplete, and ordered an additional inquiry. Subsequently fourteen more refusals to open a criminal investigation into the applicant’s allegations of ill‑treatment were issued by investigators and annulled by their superiors within the investigative committee for being based on incomplete inquiries.
57.On 28 December 2012 the Promyshlenniy District Court of Orenburg convicted the applicant of robbery and sentenced him to three years’ imprisonment. The applicant pleaded guilty in relation to the assault against the victim but denied robbery, stating that he had given the self‑incriminating statements at the pre-trial stage of the proceedings as a result of the ill-treatment by the police. The court considered his allegations of ill-treatment unfounded, relying on the results of the inquiry and one of the refusals to open a criminal case of 21 December 2012 which had not at that moment been annulled. The court declared the applicant’s self‑incriminating statements of 27 August 2011 admissible evidence. The applicant’s “statement of surrender and confession” served as a mitigating circumstance. The judgment became final.
58.During one of the additional rounds of the pre-investigation inquiry into the applicant’s allegations of ill-treatment two forensic medical expert reports were prepared, on 11 September and 18October 2013, based on the applicant’s medical documents. The experts concluded that the applicant’s injuries – the bruises on his chest and both feet, numerous abrasions on his waist, the abrasion on the face, and numerous abrasions and bruises on both wrists – could have been inflicted as a result of impacts from a hard blunt object shortly before his injuries had been recorded at the IVS and possibly on 27August 2011.
59.On 7 May 2014 an additional forensic medical expert report was prepared at the investigator’s request. The expert concluded that the applicant’s injuries had originated from the impact of a blunt hard object with a limited contact surface (with a limited narrow elongated contact surface in the case of the injuries to his wrists). The nature, location and mechanism of the origin of the injuries were consistent with the applicant’s version. All his injuries could have been received as a result of ill‑treatment by the police officers as described by him. As regards the police officers’ version, the abrasions on the applicant’s face and waist could have been received as a result of the applicant falling over when running away during his arrest. The abrasions on the wrists could have been received as a result of the use of handcuffs. There was nothing, however, in the police officers’ statements to explain the bruises on the chest and feet.
60.On 2 June 2014 investigator V. of the Orenburg north administrative circuit investigative committee initiated criminal proceedings into the applicant’s allegations under Article 286 § 3 (a) of the Criminal Code (abuse of power with use of violence). He held that it was impossible to resolve the contradictions existing in the case-file material by means of a pre-investigation inquiry, and that it was therefore necessary to open a criminal case and examine the applicant’s allegations by way of a criminal investigation, as there was sufficient data to indicate that a crime under Article 286 of the Criminal Code might have been committed.
61.The next day the acting prosecutor of the Promyshlenniy district of Orenburg annulled the investigator’s decision as unlawful and ill‑founded, disagreeing with the investigator that there was sufficient data to indicate that a crime could have been committed. The prosecutor stressed that it was possible to implement urgent measures aimed at establishing the circumstances of alleged ill‑treatment within the framework of a pre‑investigation inquiry, in particular by ordering forensic medical examinations. He noted that the pre-investigation inquiry had established that the applicant had received the injuries during his arrest as a suspect, and that in the final judgment in the applicant’s criminal case the applicant’s allegations of ill-treatment had been found unsubstantiated and that it was therefore impossible to question that finding.
62.The applicant appealed against the prosecutor’s decision. On 9February 2015 the Promyshlenniy District Court found the prosecutor’s decision lawful. It held that under Article 125 of the Code of Criminal Procedure the court did not have competence to assess whether the evidence or the presence of data indicating the elements of a crime constituted grounds for instituting criminal proceedings.That decision was upheld on 16April 2015 by the Orenburg Regional Court.
63.Following the prosecutor’s decision, on 30 July 2014 investigator V. refused to open a criminal case. His decision was annulled on 18 August 2014 by a deputy head of the second procedural supervision department of the investigative committee of the Russian Federation for being based on an incomplete inquiry. Subsequently two more decisions refusing to open a criminal case ‒ of 2 October 2014 and 26 March 2015 ‒ were also annulled for the same reason, on 16 March and 21May 2015, respectively, by an acting head of the procedural supervision department of the Orenburg regional investigative committee.
64.In the investigator’s decision of 26 March 2015, as in the previous decisions, it was found that the police officers had acted lawfully in using handcuffs and physical force, in particular for the purposes of “blocking” the applicant, who had actively resisted arrest. The applicant had received the injuries when trying to escape and resisting arrest. The injuries on his wrists had been caused by the lawful use of handcuffs.
65.On 22 May 2015 the acting district prosecutor pointed to flagrant violations of the criminal procedural law, in particular the reasonable time requirement for examination of reports about crimes. He noted that, due to the lack of supervision and the acquiescence of the investigative committee management, the investigative committee had failed to conduct a thorough and objective inquiry for more than four years ‒ thereby violating the applicant’s rights ‒ and that this constituted a serious disciplinary offence.
66.According to a report by a psychologist who examined the applicant in September 2015 the applicant complained that, as a consequence of the police ill‑treatment, he suffered from frequent headaches, blood pressure abnormalities and sleep disturbances. He displayed signs that the ill‑treatment experienced by him and the lack of justice still affected him. He was diagnosed with post-traumatic stress disorder and was recommended treatment and rehabilitation measures.

THE CIRCUMSTANCES OF THE CASE
5.The applicant was born in 1988 and lives in the village of Trudobelikovskiy, Krasnodar region.
6.At around midnight on 15 August 2007 the applicant, who was 19years old at the time, and B. were taken in a police patrol car to the police station of the Syktyvdinskiy district of the Komi Republic for an examination of allegations of assault made against them by two individuals, in particular of the sexual assault of a woman. The police intervened immediately after the alleged assaults.
7.According to the applicant, at the police station investigator N. demanded that he confess to the crime, and threatened him with ill‑treatment and rape in a cell at the pre-trial detention facility. The applicant refused to sign self-incriminating statements and was allegedly subjected to ill-treatment which he described as follows. He was taken to a cell where two policemen held his hands while a third policeman kicked him in the stomach leaving a boot print on his T‑shirt; the two policemen then threw the applicant to the floor, face down.Thereafter, the policemen took the applicant to N.’s office, where he signed a “statement of surrender and confession” (явка с повинной).He was then taken to the toilet by a policeman who started insulting him. When the applicant responded, the policeman allegedly sprayed gas in his eyes and hit him several times with a rubber truncheon. The policeman then pushed the applicant into the cell so that the applicant hit his head against the wall and fell to the ground.
8.According to the police record drawn up by operative police officer K., the applicant signed the “statement of surrender and confession” at 2.35a.m. on 16 August 2007.
9.Investigator N. instituted criminal proceedings against him and B. and ordered a forensic medical examination of the applicant to establish, in view of the nature of the crime, whether the applicant had any pathology which would prevent him from performing sexual acts.
10.The applicant was taken to a forensic medical expert who found that the applicant had the following physical injuries (examination report of 16August2007): (i)two abrasions on the left side of the forehead, measuring 2.5cmby0.7cm and 0.7 cmby0.5 cm; (ii) an abrasion on the bridge of the nose, measuring 4.5 cmby1.5 cm; and (iii)a bruise around one eye, measuring 3 cmby4 cm. The applicant explained to the expert that his injuries had been caused by the three police officers who had physically assaulted him at the police station in the night of 15 August 2007, in particular by hitting his face against the wall. The expert concluded that the bruise and abrasions on the applicant’s face could have been sustained in the circumstances and at the time alleged by the applicant.
11.After the medical examination the applicant was taken back to the police station, where investigator N. told him that he must come back at 3p.m. that day for questioning as a suspect and released him. His arrest was not recorded.
12.On the same day the applicant complained to the Ministry of the Interior of the Republic of Komi that he had been ill-treated at the police station.He also asked the traumatology unit of the hospital in Syktyvkar to record his injuries. According to the hospital medical records, the applicant had the following injuries: (i)an acentric fracture of the nose; (ii)a bruise on the forehead; and (iii)abrasions on the forehead.
13.On 17 August 2007 the applicant was arrested, questioned as a suspect and detained on remand by a court.
14.On 20 August 2007 the applicant’s mother complained to the Syktyvdinskiy district prosecutor’s office that the applicant had been ill‑treated at the police station. In her complaint she stated, inter alia, that at around noon on 16 August 2007 the applicant had returned home from the police station with bruises and abrasions on his body, and a print from a large boot on his T-shirt in the area of his stomach. The applicant had told her that he had been ill-treated at the police station.
15.On 29 August 2007 the prosecutor issued a refusal to open a criminal case against the law‑enforcement officers, finding, in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, that none of the elements of the crimes provided for in Articles 286 and 302 of the Criminal Code (on abuse of powers and forced confessions respectively) had been present in respect of the actions of investigator N. or police officers S.I., K.L., S.A., Sh., and K.N. The decision relied on the following statements.
16.Investigator N. stated that he had interviewed the applicant after he had signed his “statement of surrender and confession”. The applicant had not complained of any physical violence against him. After the applicant’s forensic medical examination N. had talked to the applicant again and then released him. N. had not seen any injuries on the applicant, or a footprint on his T-shirt, during his interview or prior to his release from the police station. N. had heard about the applicant hitting his head against the wall later on from K.L. Investigator N. denied that the applicant had been put under any physical or psychological pressure.
17.The police officers denied subjecting the applicant to any ill‑treatment. S.I. stated that he had learned from K.L. that the applicant had struck his head against the wall. K.L. stated that he had learned from duty officer S.A. about the applicant striking his head against the bars of a cell. S.A. and Sh. stated that they had seen the applicant bang his head repeatedly against the bars and then against the wall in a room of the duty officer. While banging his head against the wall the applicant was allegedly shouting that he would complain to the prosecutor’s office that police officers had beaten him up.
18.The applicant’s mother challenged the refusal to open a criminal case against the police officers and investigator N. On 18 January 2008 the Syktyvdinskiy District Court dismissed her complaint.
19.On 4 March 2008 the Supreme Court of the Komi Republic granted an appeal lodged by the applicant’s mother and quashed the District Court’s decision, noting that no assessment had been made of the contradiction between the medical expert’s conclusions and the police officers’ allegations of the applicant’s self-harm. Nor had the court assessed the applicant’s medical record concerning the nose fracture, the allegation of the applicant having been kicked and having a footprint from a boot on his T‑shirt, the presence of a video surveillance camera at the police station which should have recorded the incident, or statements by B. that he had heard the applicant screaming at the police station. The District Court had not taken into account circumstances which could have significantly influenced its conclusions and had not given reasons why, in so far as the conflicting evidence was concerned, it had given preference to some evidence whilst rejecting other. A fresh examination of the applicant’s mother’s appeal was ordered by a different composition of judges of the same court.
20.On 21March 2008 the Syktyvdinskiy District Court ruled that the refusal to open a criminal case of 29August2007 had been unjustified for reasons largely similar to those cited by the Supreme Court. The court ordered the investigation authorities to rectify those deficiencies.
21.On 23 April 2008 the deputy prosecutor of the Komi Republic overruled the refusal of 29 August 2007 to open a criminal case.
22.On 24 April 2008 the investigative committee of the prosecutor’s office of the Komi Republic issued a new refusal to open a criminal case against the police officers and investigator N., finding, in accordance with Article 24 § 1 (2) of the CCrP, that none of the elements of the crimes provided for in Articles 130, 286 and 302 of the Criminal Code (on insulting behaviour, abuse of powers and forced confessions respectively) were present in their actions. It was noted that, according to information received from the Syktyvdinskiy district police department, the video surveillance recordings of the room of the duty officer and the cells for administrative offenders for the period from 15 to 16 August 2007 had not been preserved. Such records were normally kept for three days and then automatically deleted. It was concluded that the applicant had caused injuries to himself at the police station with the purpose of avoiding criminal liability for the crime which he had committed.
23.On 24 April 2008 the applicant was found guilty by the Syktyvdinskiy District Court.
24.The applicant’s mother challenged the second refusal to open a criminal case against the police officers and investigator N.
25.On 16 June 2008 the Syktyvdinskiy District Court dismissed her appeal. It examined the explanations given by the police officers and investigator N., and held that the allegations regarding the applicant’s ill‑treatment had not been substantiated. The court also noted that the allegation regarding the applicant’s forced confession had been examined during the applicant’s criminal trial and had been dismissed as unfounded in the judgment of 24April 2008. The court further noted that the trial court had examined and endorsed the refusal of 24 April 2008 to open a criminal case against the police officers. Finally, the court concluded that the applicant’s allegations of ill-treatment had been designed to discredit the law‑enforcement authorities.On 18 July 2008 the Supreme Court of Komi upheld that decision on appeal.
26.The judgment of 24 April 2008 in the applicant’s criminal case was subsequently quashed and remitted to the first-instance court for fresh examination. On 13 November 2008 the Syktyvdinskiy District Court convicted the applicant of sexual assault, specifially holding the victim to enable B. to sexually assault her, and sentenced him to four years and three months’ imprisonment.The applicant denied his guilt at trial, asserting that he had signed the “statement of surrender and confession” under physical pressure from the police officers and psychological pressure from investigator N. The trial court rejected the applicant’s arguments, relying on the refusal of 24 April 2008 to open a criminal case against the police officers and investigator N. The applicant’s “statement of surrender and confession” formed part of the evidence on which his conviction was based, and served as a mitigating circumstance. The applicant appealed against the judgment.
27.On 16January 2009 the Supreme Court of the Komi Republic upheld the judgment on appeal, stating that it was irrelevant to the criminal case against the applicant whether or not the refusal to open a criminal case into his allegations of ill-treatment had been unfounded.

5.The applicant was born in 1979 and is currently serving a prison sentence in Frolovo, Volgograd region.
6.On 17 April 2009 Mr K. was found with very serious bodily injuries in the entrance to a block of flats. He died in hospital several days later.
7.Between 7.15 a.m. and 8.55 a.m. on 18 April 2009 the scene of the incident was examined by investigator P. from the investigating unit of the Krasnoarmeyskiy district police department of Volgograd with the participation of attesting witnesses, police officers, and the applicant, who lived in the same block of flats. According to the record of the examination of the scene of the incident, the applicant stated that he had physically assaulted K. and described the circumstances of the crime committed by him against K. At around 9.30 a.m. the applicant was brought to the police station of the Krasnoarmeyskiy district of Volgograd (УВД по Красноармейскому району г. Волгограда), where operative police officers interviewed him about the circumstances of the crime.
8.According to the applicant, they demanded that he give statements concerning the circumstances of the crime committed by him and subjected him to ill-treatment which the applicant described as follows. Having handcuffed him, they punched and kicked him, hitting him with a rubber truncheon and giving him electric shocks using a device called a “TP-50”. The applicant gave the statements as demanded.
9.At 6 p.m. investigator Ye. of the investigating unit of the Krasnoarmeyskiy district police department of Volgograd initiated criminal proceedings against the applicant and his brother. At 8 p.m. the investigator drew up a record of the applicant’s arrest as a suspect and questioned him from 8.30 p.m. until 10p.m. in the presence of D., a State-appointed lawyer invited by investigator Ye. The applicant repeated the statements incriminating himself and his brother and also stated that the previous evening he had been drunk and had fallen down a flight of stairs, and that he therefore had a headache and pain in the area of his ribs and kidneys.
10.At 2.15 a.m. on 19 April 2009 the applicant was placed in a temporary detention facility (an “IVS”) at the Volgograd town police department. According to a document signed by a senior police transportation officer, the IVS duty officer and the applicant, the applicant had: (i)a haematoma on the left side of the body; (ii)a swelling on the left hip; and (iii) a swelling and redness on the right ear.
11.On 20April2009 the Krasnoarmeyskiy District Court ordered his detention on remand. The applicant was taken to hospital no. 15. He complained of pain in his chest and in his left knee joint, and of generally feeling unwell. At the hospital he was diagnosed with contusion to the thoracic cage and left wrist, and his condition was assessed as not incompatible with being detained in a pre-trial detention facility.
12.On 21April 2009 the applicant was placed in pre-trial detention facility SIZO-4, where he was examined by the SIZO doctor who recorded multiple abrasions and haematomas on his trunk, and contusion to the thoracic cage and left wrist. The applicant was interviewed by the SIZO officer. He stated that he had received the injuries as a result of ill-treatment by police officers on 18 April 2009 whilst held at the Krasnoarmeyskiy district police department of Volgograd.
13.The SIZO operative unit carried out an inquiry into the incident and concluded in a report of 22 April 2009 ‒ approved by the acting head of the SIZO ‒ that the applicant’s injuries had been inflicted by police officers from the Krasnoarmeyskiy district police department at about 11 a.m. on 18April 2009 during the applicant’s interview.
14.On 28 April 2009 the applicant was examined as an accused in the presence of lawyer D. The applicant stated that when examined as a suspect on 18 April 2009 he had given statements – concerning the origin of his injuries and also his brother’s involvement in the crime – as demanded by the police officers who had ill-treated him, as he had still been in physical pain and was under the influence of threats from them, as well as threats from investigator Ye. that he would find himself at the hands of those police officers again should he not give “correct” statements. The applicant described the circumstances of his alleged ill-treatment and retracted the statements he had given earlier incriminating his brother. The criminal proceedings against his brother were eventually discontinued for lack of evidence. The applicant reiterated his self-incriminating statements.
15.On 29 April 2009 the Krasnoarmeyskiy district investigation division of the investigative committee at the Volgograd regional prosecutor’s office (“the Krasnoarmeyskiy district investigative committee”) received a communication from the SIZO concerning the applicant’s injuries.
16.On 5 May 2009 a forensic medical examination of the applicant was carried out at the request of the investigator in charge of the criminal case against the applicant. The applicant stated to the medical expert that on 18April 2009 he had been physically assaulted at the police station of the Krasnoarmejskiy district of Volgograd by police officers who had delivered many blows to his lumbar region, chest, shoulders, hips and ears, and had used a device called a “TP-50” to ill-treat him. He complained of pain in his chest. During the applicant’s forensic medical examination, the expert detected only one linear abrasion, measuring 23 mmby2 mm, located within a bruise of indeterminate form on the left side of the applicant’s chest. The expert concluded that this injury had come about as a result of at least one (possibly tangential) impact by a hard, blunt object of limited surface area seven to nine days before the applicant’s examination, and had not caused him any “damage to his health ”.
17.On 6 May 2009 investigator N. in charge of the inquiry into the applicant’s allegations of ill-treatment ordered an examination of the applicant’s medical records by the forensic medical expert . The investigator inquired whether the injuries could have been received as a result of the applicant falling down from his own height and hitting himself against “protruberant objects in the vicinity”. A forensic medical expert concluded in a report of 8 May 2009 that the applicant’s multiple abrasions and haematomas could have come about as a result of blows from hard, blunt objects or collisions with such objects and surfaces – including the applicant falling from his own height and colliding with curved objects. The expert further concluded that it was hard to establish the time at which the applicant’s injuries had been inflicted.
18.Between 9 May 2009 and 16 June 2010 investigators from the Krasnoarmeyskiy district investigative committee issued eight refusals to initiate criminal proceedings into the applicant’s allegations of ill-treatment, finding, in accordance with Article 24 § 1 (2) of the Code of Criminal Procedure, that none of the elements of the offences provided for in Articles 285 and 286 of the Criminal Code (on abuse of powers) were present in respect of the police officers’ actions. Those refusals were overruled by the head or deputy head of the Krasnoarmeyskiy district investigative committee as being unlawful, and the investigators were ordered to carry out additional inquiries.
19.On 10 September 2009 the Krasnoarmeyskiy District Court of Volgograd convicted the applicant of manslaughter and sentenced him to nine years and six months’ imprisonment.The applicant was ordered to pay 500,000 Russian roubles to the victim’s mother by way of compensation for non‑pecuniary damage. The applicant was found to have invited the victim to his flat, to have inflicted many injuries on him, then moving the victim to the landing of the stairwell near the applicant’s flat and leaving him there. The applicant pleaded guilty and his confession served as a mitigating factor. The court based its judgment on the applicant’s consistent confession statements, the results of the search carried out in his flat in which the victim’s passport and clothing had been found, and other evidence. The trial court found that the applicant’s injuries had been unrelated to the actions of the victim of the crime and had been sustained after the crime had been committed.
20.According to the most recent decision of an investigator of the Krasnoarmeyskiy district investigative committee of 11September 2010, the police officers in question denied subjecting the applicant to ill‑treatment.Investigator P. stated that during the examination of the scene of the incident on 18 April 2009 the applicant had confessed that he had committed the crime. According to police officers B., D. and M. ‒ as well as E., the head of the criminal investigating unit of the Krasnoarmeyskiy district police department ‒ the applicant had been brought to the police station on suspicion of having inflicted very serious bodily injuries on K. At some point the applicant had been taken from a cell to E.’s office. The police officers had inteviewed the applicant and established the circumstances of the crime against K. According to B., the applicant had complained of pain in his chest, explaining that he had fallen down a flight of stairs. The applicant’s mother stated that on 16 April 2009 she had seen the applicant without any sign of physical injury.
21.In his decision of 11 September 2010 the investigator noted that, while being questioned as a suspect on 18 April 2009, the applicant had explained that he had fallen down a flight of stairs the day before as a result of being in an inebriated state.The investigator further noted that the applicant’s forensic medical examination results indicated that the applicant’s multiple abrasions and haematomas could have come about as a result of blows from hard, blunt objects or collisions with such objects or surfaces – including the applicant falling from his own height.The investigator concluded that none of the constituent elements of the alleged crimes had been present in the conduct of the police officers and refused to institute criminal proceedings under Article 24 § 1 (2) of the Code of Criminal Procedure.
22.On 2 March 2010 the Volgograd Regional Court upheld the judgment in the applicant’s criminal case on appeal.

10.The applicant was born in 1975 and is detained in Sofia Prison.
A.Criminal proceedings against the applicant
1.The applicant’s arrest and detention in police custody
11. On 2 July 1999 two armed individuals burst into a bureau de change in Burgas. Shots were fired and two staff members were killed. The criminals fled with a sum of money. On the same day the Burgas investigation department instigated criminal proceedings against a person or persons unknown for armed robbery and homicide.
12.The bodies responsible for the criminal investigation implemented a number of investigative measures: inspection of the premises, autopsies on the victims and questioning of witnesses. The investigators quickly made a connection with the applicant and a certain A.S.
13.By decision of 9 July 1999 a police officer ordered the applicant’s detention for twenty-four hours, in accordance with the relevant provisions of the Ministry of the Interior Act. The order mentioned the detainee’s right to assistance from a lawyer as from the time of his arrest. It also stated that a copy of the order should be presented to the arrestee. The copy of the relevant order in the case file is not signed by the applicant, who was on the run and being sought by the police at that time.
14.On 3 October 1999 the applicant was arrested in Sofia. None of the case papers indicate whether he received a copy of the 9 July 1999 order after his arrest. He remained in detention in Sofia that day and the next.
15. On 4 October 1999 an investigator from Burgas, on the basis of Article 202 of the Code of Criminal Procedure, ordered the applicant’s detention for twenty-four hours from 8 p.m.
16.On 5 October 1999 the applicant was transferred to Burgas. His detention was extended by a prosecutor that same day.
17.The document containing the two decisions of 4 and 5 October 1999 does not mention the applicant’s right to the assistance of a lawyer and does not bear his signature.
18.The applicant affirmed that he had submitted four requests, on 3, 4, 5and 6 October 1999, for contact with a lawyer, Mr V. Mihailov, and that the authorities had not acceded to those requests.
19.He stated that he had been questioned by the officers in charge of the investigation over the period from 3 to 6 October. While being questioned he had explained that he had taken part in the hold-up at the bureau de change but denied having committed the two murders.
20.The criminal case file contains no written trace of any such questioning. On the other hand, it includes a handwritten statement by A.S., the applicant’s presumed accomplice, dated 3 October 1999, in which A.S. explained that the applicant had instigated the hold-up, that he himself had agreed to cooperate with the applicant and that the latter had used a gun during the incident.
21.On 6 October 1999 the investigator in charge of the investigation appointed an official lawyer for the applicant. At noon, assisted by his officially appointed lawyer, the applicant was formally charged with the double murder and the hold-up in the bureau de change in Burgas. When questioned immediately after being charged, he made the following statements:
“I have read the charge sheet in thepresence of my officially appointed lawyer, D.Todorov.
I have been informed of my rights and obligations as a charged person and of my right to refuse to give evidence.
I shall make no submissions concerning the charges until my parents, who have been informed, have had time to engage a lawyer.”
2.Continuation of the criminal proceedings against the applicant
22.On 7 October 1999 A.S. was questioned by the investigator in the presence of a lawyer. A.S. related the circumstances surrounding the preparation, execution and aftermath of the hold-up, and explained how he had helped the applicant at all those stages. He affirmed that it had been the applicant who had killed both victims.
23.On 8 October 1999 the applicant engaged a lawyer practising in Burgas, Mr Kanev. During his questioning in the presence of that lawyer on 12October 1999 he remained silent and stated that he would give evidence at a later date.
24.On 21 October 1999 the applicant confessed in the presence of his lawyer, Mr Kanev. He admitted that he had prepared and committed the hold-up at the bureau de change and claimed that the two victims had been killed by A.S.
25.On 22 December 1999 the applicant engaged a second lawyer, this time practising in Sofia, Ms Zheleva.
26.Subsequently, the officers responsible for the investigation gathered several different types of evidence, that is to say witness statements and medical, scientific, physical and documentary evidence.
27.On 4 January 2000 the applicant and A.S., assisted by Counsel, took cognisance of the case papers. They retracted their confessions, and their lawyers requested that their clients be questioned once again.
28.On 16 February 2000 the Burgas regional prosecutor returned the file to the investigator for further inquiries. He asked him, in particular, to conduct several investigative measures and to formally charge both suspects afresh.
29.On 7 March 2000 the applicant was charged with an additional offence, namely the unlawful purchase of the firearm which had been used during the robbery of 2 July 1999. On the same day the two suspects were questioned in the presence of their lawyers. In his statement the applicant related a version of events to the effect that the robbery and murders in question had been committed by a certain V., an Iranian national, aided and abetted by an unknown second person.
30.On 17 May 2000 the regional prosecutor’s office drew up the indictment and committed the applicant and his presumed accomplice for trial before the Burgas Regional Court.
31.The Regional Court considered the criminal case between 25 July 2000 and 14 June 2001. During the proceedings the applicant, who was assisted by a lawyer, submitted that he and his presumed accomplice had indeed been in Burgas on 1 July 1999 and that they had indeed intended to commit a robbery in the bureau de change, but that they had changed their minds and returned to Sofia the same day.
32.On 14 June 2001 the Burgas Regional Court delivered its judgment. The applicant was found guilty of armed robbery in the Burgas bureau de change, committed jointly with A.S. and resulting in the murder of two persons. He was also found guilty of the unlawful purchase of a pistol and ammunition for it. The Regional Court imposed the heaviest sentence available under the Bulgarian Criminal Code, namely a whole-life sentence. In accordance with section 127b (1) of the Execution of Punishments Act, the Regional Court ordered the applicant’s placement under the “special” prison regime.
33.Drawing on the evidence gathered during the preliminary investigation and at the trial, the Regional Court established the facts as follows: the applicant’s former partner, D.K., had started work as a cashier in the bureau de change in question in 1997 when she was still living with him. While working there she had met the first victim, a certain N.B., who was a close relative of the owner and an employee in the same establishment. In June 1999 D.K. had left the applicant and moved in with N.B. in Burgas. The applicant had then decided to kill N.B. and to steal the cash kept in the bureau de change. He had acquired a “Makarov” pistol, a silencer and ammunition. The applicant had persuaded a friend, A.S., to take part in the robbery. On the afternoon of 1 July 1999 the applicant and A.S. had arrived in Burgas by coach. They had then gone to the building in which the bureau de change was located, and had gone up to the top floor to spend the night there. The next morning, just before 9 a.m., they had gone down to the floor on which the bureau de change was located and noted that N.B. was in the premises alone. A.S., who had been carrying the pistol, had burst into the premises and fired one point-blank shot at the victim’s left temple. The victim had died instantly. The two accomplices had then placed the money found in the bureau de change in a bag which they had brought with them. Meanwhile the armed security guard of the bureau de change, a certain P.I., had rushed into the premises where the first victim had been killed. A.S. had fired two shots at him, hitting him in the face. The security guard had been killed instantly. A.S. and the applicant had left the building. They had then concealed the murder weapon under a rubbish bin, thrown away the clothes they had been wearing and hidden the stolen money. Some time later the two men had ordered a certain E.E. to fetch the money for them, which he had done.
34.The applicant appealed against that judgment. He complained that insufficient reasons had been given for the conviction, that his guilt had not been established, that the first-instance court had reached an erroneous decision, that there had been several breaches of procedural and substantive rules under domestic law and that the Regional Court had shown bias.
35.The applicant’s lawyer requested the withdrawal of all the judges of the Burgas Court of Appeal. He argued that the media coverage of the criminal case had created a climate of intolerance and hostility towards his client. The defence called for an additional witness to be summoned, the re‑examination of one of the witnesses already heard by the trial court, and several additional expert opinions. On 4 December 2001 the reporting judge responsible for the criminal case rejected the requests for further evidence‑gathering as irrelevant. He dismissed the challenge to the judges of the Court of Appeal for lack of any evidence of bias.
36.The Court of Appeal considered the criminal case between February and July 2002. It examined a new witness and received additional conclusions from psychiatric experts on the mental state of the two accused.
37.On 6 August 2002 the Court of Appeal upheld the judgment of the first-instance court, giving its full backing to the latter’s factual and legal findings. The evidence gathered during the preliminary investigation, presented before the first-instance court and produced for the first time before the Court of Appeal had demonstrated that the two accused had planned and carried out the robbery in the bureau de change and that the two victims had been killed by A.S. Yet the applicant had been the instigator of those crimes and had provided the weapon used by his accomplice. The Court of Appeal drew on the statements of the many witnesses questioned during the assessment of the case, on the results of the ballistic, technical and accountants’ reports and the medical and psychiatric opinions, and also on the physical and documentary evidence gathered.
38.The Court of Appeal observed that the accused’s initial statements during the preliminary investigation had differed considerably from their submissions to the first-instance court. The initial statements had corroborated the finding concerning their participation in committing the criminal offences in issue, whereas the subsequent ones set out a version of events to the effect that an Iranian national had committed those offences. The Court of Appeal gave credence to the accused’s initial statements, which had been made to an investigator in their lawyers’ presence after they had been formally charged. The two individuals thus charged had been advised that their statements could be used in court with a view to establishing the facts, and their prior medical examination had revealed no sign of physical violence, which contradicted the defence lawyer’s allegation that the applicant’s initial confession had been extracted from him.
39.The Court of Appeal turned its attention to the applicant’s version of events to the effect that the two murders and the robbery had been committed by a certain V., an Iranian national, and that the applicant himself had been at his place of work in Sofia at the material time. Checks carried out in the Ministry of the Interior database had shown that no Iranian national of that name was present in Bulgaria. It was true that the applicant had been at his place of work in Sofia on 2 July 1999. However, he had been working as a night watchman and the robbery and murders had been committed early in the morning, which had given him enough time to cover the distance between Burgas and Sofia and to arrive at work the same evening. The Court of Appeal deemed unconvincing the statement by the only witness who had corroborated the applicant’s version of events.
40.The Court of Appeal noted that the judgment of the first-instance court displayed none of the procedural defects mentioned by the defence. The factual and legal findings of the Regional Court had not been exclusively based on the accused’s confessions but on the whole body of consistent evidence gathered during the criminal proceedings. The applicant had participated actively in the proceedings and his lawyers had submitted several requests linked to the progress of the trial and the gathering of evidence. The Regional Court had responded to all those requests and had provided full reasons for its procedural decisions. There had, moreover, been no sign of bias on the part of the judges who had examined the case, and the proceedings had been conducted in such a way as to safeguard the parties’ interests.
41.The Court of Appeal excluded a statement by one witness from the evidence for non-compliance with the procedural rules, but did not consider that statement decisive in terms of the factual and legal conclusions in the case. It held that even though the Regional Court had been dilatory in issuing the grounds for its judgment, the defence had nonetheless been able to submit additional observations on appeal after having secured a copy of those grounds.
42.The applicant lodged an appeal on points of law, reiterating his submissions to the Court of Appeal. In that appeal, which ran to forty pages, his lawyer raised seventy-four objections concerning the gathering and the interpretation of various pieces of evidence, as well as the factual and legal findings of the lower-level courts. In paragraph 33 of his submissions the lawyer contested the admissibility of a record of a reconstruction of the events of 7 October 1999, arguing that on that day his client had not been assisted by a lawyer of his choosing. At the time his client had been assisted by an officially appointed lawyer who had not been nominated by the local bar association, as required by the applicable legislation. The applicant’s lawyer added that his client had undeniably been deprived of a defence lawyer on 4 October 1999, when he had been taken into custody; he regarded this as an infringement of the provisions of section 70(4) of the Ministry of the Interior Act and of the Constitution. That was the only sentence relating to the circumstances of the applicant’s detention in police custody.
43.By a judgment of 17 December 2003 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. It found that none of the circumstances mentioned by the defence demonstrated the existence of bias on the part of the judges who had considered the criminal case. The applicant had had an opportunity to defend himself effectively during the criminal proceedings: he had given evidence and challenged the evidence against him. Some of his requests for further evidence-gathering had been accepted by the lower-level courts, and proper reasons had been given for their rejection of other requests by the defence for evidence to be taken.
44.Furthermore, in endorsing the Court of Appeal’s other arguments, the Supreme Court of Cassation considered that the facts had been well established, that the substantive and procedural rules had been appropriately applied and that the accused’s rights had been fully respected.
B.The applicant’s conditions of detention
45.The applicant was held in Burgas Investigation Detention Facility from 5 October 1999 to 27 January 2000, and again from the beginning of March to 14 April 2000. He was incarcerated in Burgas Prison from 27January 2000 to the beginning of March 2000, and again from 14 April 2000 to 25 February 2004. On the latter date he was transferred to Sofia Prison, where he is still being held.
1.Burgas Investigation Detention Facility
46.The applicant submitted that he had been held in a cell without windows, a toilet or running water. The premises had had poor ventilation and lighting. He had not been allowed to exercise in the open air. Access to sanitary facilities had been restricted and the time allowed for washing had been insufficient. The applicant emphasised that the conditions of hygiene in the detention facility had been deplorable. He had subsequently been moved to another cell with two other detainees. The three detainees had had to take turns sleeping because the cell only had one bench.
47.According to a rapport by the Director General of Prisons submitted by the Government, at the time the only furniture in the cells in Burgas Investigation Detention Facility had been a bench. The cells had had no windows and the only daylight had entered through holes in metal plates affixed to the doors. The facility in question had only had one shared washroom and lacked any open-air facilities for detainees. The report also mentioned that between 2002 and 2009 the facility had been completely renovated and redeveloped to bring the conditions of detention into line with the detainees’ human dignity.
2.Burgas Prison
48.The applicant alleged that his cell in Burgas Prison had had a surface area of 6 sq. m. It had contained a bed and a metal rack. There had been neither running water nor a toilet in his cell. He had used a plastic bucket for his bodily functions. Like all the prisoners he was allowed out of his cell for thirty minutes three times a day, in order to empty the bucket and fill his water bottle. The applicant submitted, in support of those allegations, a statement by his co-accused A.S., who had been detained with him under the same conditions in Burgas Prison. The applicant added that he had been forced to wear a convict’s uniform even though he should have been allowed to wear his own clothes, under the prison rules.
49.The applicant explained that at the beginning of his term in Burgas Prison he had been deprived of open-air exercise. According to A.S.’s statement (see paragraph 48 above), prisoners were allowed one-hour’s open-air exercise every other day. The applicant was not involved in any organised activities in Burgas Prison. He had submitted several requests to the prison authorities to allow him to join in the various vocational training and occupational programmes and had applied for a transfer to Sofia Prison in order to be closer to his family, but no action had ever been taken on his requests.
50.According to a report by the governor of Burgas Prison submitted by the Government, the applicant had problems adapting to the prison regulations; his attitude to the wardens and the prison authorities had been refractory and disrespectful. However, the applicant had enjoyed all the rights afforded to persons deprived of their liberty. He had board and lodging in accordance with normal prison standards. He had open-air exercise every day and free access to the prison library. He had consulted a psychologist on several occasions and had had a number of meetings with the prison’s activity coordinator.
3.Sofia Prison
51.Following his transfer to Sofia Prison the applicant was subject to the “special” prison regime, involving virtually total isolation from the rest of the prison population.
52.The applicant submitted that over the period from February 2004 to summer 2006 he had been confined to a cell measuring 4 m by 2 m, which he had shared with another prisoner. The two beds had taken up most of the floor area, leaving the two prisoners with a free area of only 2 sq. m. There had been no running water in the cell and the prisoners had used a bucket as a toilet.
53.The applicant stated that he had spent most of the day sitting on his bed for lack of free space in the cell. He had eaten his meals in the cell and had been allowed to walk in the prison yard for one hour every day. His access to the prison library had been limited to the few minutes it took to choose and borrow a book, after which he had been immediately taken back to his cell. He had been allowed to attend the prison chapel twice a year, at Easter and Christmas, although not during worship so that he would not meet other prisoners.
54.Up until 2005 the high-security wing of the prison had been overcrowded and ill prisoners had not been held separately from other prisoners, which had fostered the transmission of infectious diseases. The physical conditions had improved somewhat after the renovation work in the high-security wing in 2005 and 2006. In December 2008 the applicant’s prison regime had relaxed. However, like all prisoners in his category, he had still been kept separate from the rest of the prison population and his cell had been kept locked during the day. In 2004 and 2005 he had occasionally worked in his cell folding envelopes. Since 2010 he had been allowed into an activities room, where he could talk to other life prisoners and read books.
55.According to a report by the governor of Sofia Prison dated 11October 2011, the high-security wing of Sofia Prison had been completely renovated in 2005 and 2006. On the date of the report in question the applicant had been held in an individual cell measuring 7.7sq.m., with a bed, a table, a rack, a shower and a private toilet. His cell had been heated and had running water and proper lighting.
56.Apart from the restrictions imposed by his prison regime, the applicant had access to all the activities provided to other prisoners: he could work, visit the library and the prison chapel, receive visits from his relatives, and write and receive letters. He was also eligible for relaxation of his prison regime under section 198 of the Prisons Act, subject to a favourable opinion from the relevant special panel, and could ultimately be accommodated with the rest of the prison population.
57.Furthermore, in 2010 the applicant applied to have a number of the provisions of the implementing regulations of the Prisons Act declared void as regards the conditions for the execution of his life sentence. His application was dismissed with final effect by a judgment of 14 September 2011 delivered by the Supreme Administrative Court, which found that the impugned provisions of the implementing regulations were not contrary to the Prisons Act and that the adoption of the regulations had not involved any irregularities justifying their being declared void.
76.The Burgas Investigation Detention Facility was visited in 1999 by a CPT delegation. The relevant part of the report published after that visit was quoted in paragraph 54 of the Chamber judgment.
77.Burgas Prison was visited by a CPT delegation in April 2002. The relevant part of the report published by the delegation was quoted in paragraph 55 of the Chamber judgment.
78.Sofia Prison was visited by a CPT delegation in September 2006, December 2008, March and April 2014 and February 2015. The four visit reports were published. The relevant parts of the reports on the first three visits were quoted in paragraphs 57-59 of the Chamber judgment.
79.The relevant part of the last report on a visit to this prison, in 2015, reads as follows:
 “3.Conditions of detention
a.material conditions
...
39.At the time of the visit, the closed section of Sofia Prison was holding 816 prisoners for an official capacity of 650. The closed section of Varna Prison was accommodating 422 prisoners for an official capacity of 350. And as for Burgas Prison, at the time of the visit, there were 579 prisoners in the closed section for an official capacity of 371.
In the three prisons, the overwhelming majority of the cells were extremely overcrowded ... The situation at Sofia and Varna prisons remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person.
40.The situation was aggravated even more by the fact that material conditions in all the three prisons visited in 2015 still demonstrated an ever-worsening advanced state of dilapidation and insalubrity, despite some last-minute cosmetic efforts observed. Most of the common sanitary facilities at Sofia, Burgas and Varna prisons were totally dilapidated and unhygienic. Moreover, they were accessible to prisoners only during the day; at night the majority of the inmates had to resort to buckets (one for each cell).
The cells were mostly equipped with two-tier and three-tier bunk beds and access to natural light and ventilation was poor. Walls were covered with mould, floors were damaged, and ceilings leaking; cells were infested with cockroaches, bedbugs and other vermin. It should be noted in this regard that no cleaning materials were made available to the prisoners.
Heating was functioning only a couple of hours a day (the delegation measured some 14o C in cells and 10o C in in-cell toilets at Sofia Prison ...
It can thus be stated that most parts of these establishments were unfit for human accommodation and represented a serious health risk both for inmates and staff. Despite the repeated criticism, no progress was observed as regards the implementation of the CPT’s recommendations made after its visits in 2010, 2012 and 2014. To sum up, in the CPT’s opinion, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment.
…
b.Regime
...
43.Possibilities for purposeful activities in Sofia, Varna and Burgas prisons were very limited. The cells were unlocked during the day (with the exception of the high security and admission units) and most prisoners just roamed the corridors or stayed in their cells watching TV or playing board games with other inmates. All inmates had access to a library and a multi-faith area.
The only activity for most prisoners was daily outdoor exercise, usually lasting one hour at Varna Prison, one-and-a-half hours at Sofia Prison and two hours at Burgas Prison.
44.As regards work, at Sofia Prison, 258 prisoners had jobs (but 120 of the work places were unpaid), most of them on general prison maintenance services. ... Educational activities were offered to 78 prisoners at Sofia and 49 prisoners at Varna Prison. Other activities included language courses and IT classes (with 225 inmates attending at Sofia Prison) ...”
80.On 26 March 2015 the CPT issued a public statement on Bulgaria under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The statement reads as follows (footnotes omitted):
“1.The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has carried out ten visits to Bulgaria since 1995. In the course of those visits, delegations of the Committee have visited all but one prison, several investigation detention facilities (IDFs) and numerous police establishments in the country.
2.Major shortcomings have been identified during the above-mentioned visits, especially as concerns the police and penitentiary establishments. Repeated recommendations have been made over the last 20 years concerning these two areas.
In its reports, the CPT has many times drawn the Bulgarian authorities’ attention to the fact that the principle of co-operation between State Parties and the CPT, as set out in Article 3 of the Convention establishing the Committee, is not limited to steps taken to facilitate the tasks of a visiting delegation. It also requires that decisive action be taken to improve the situation in the light of the CPT’s recommendations.
The vast majority of these recommendations have remained unimplemented, or only partially implemented. In the course of the Committee’s visits to Bulgaria in 2010, 2012, 2014, and 2015, the CPT’s delegations witnessed a lack of decisive action by the authorities leading to a steady deterioration in the situation of persons deprived of their liberty.
3.In the report on its 2012 visit, the Committee expressed its extreme concern about the lack of progress observed in the Bulgarian prison system and stressed that this could oblige the CPT to consider having recourse to Article 10, paragraph 2, of the European Convention on the Prevention of Torture or Inhuman and Degrading Treatment or Punishment.
This procedure was set in motion after the March/April 2014 visit; indeed, the Committee’s findings during that visit demonstrated a persistent failure by the Bulgarian authorities to address certain fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty. The visit report highlighted a number of long-standing concerns, some of them dating back to the very first periodic visit to Bulgaria in 1995, as regards the phenomenon of ill-treatment (both in the police and the prison context), inter-prisoner violence, prison overcrowding, poor material conditions of detention in IDFs and prisons, inadequate prison health-care services and low custodial staffing levels, as well as concerns related to discipline, segregation and contact with the outside world.
4.The responses of the Bulgarian authorities to the report on the CPT’s 2014 visit and to the letter by which the Committee has informed the authorities of the opening of the procedure set out in Article 10, paragraph 2, of the Convention have, to say the least, not alleviated the CPT’s concerns. In particular, the responses were succinct, contained very little new information and failed to address the majority of the Committee’s recommendations, usually merely quoting the existing legislation and/or explaining the lack of action by referring to budgetary constraints. Further, most of the information contained in the CPT’s report as concerns ill-treatment and inter-prisoner violence was simply dismissed.
The 2015 visit was therefore an opportunity for the Committee to assess the progress in the implementation of its long-standing recommendations and to review, in particular, the treatment and detention conditions of persons held at Sofia, Burgas and Varna Prisons, as well as at Sofia IDF (located on G.M. Dimitrov Boulevard).
Regrettably, the findings made during the aforementioned visit demonstrate that little or no progress has been achieved in the implementation of key recommendations repeatedly made by the CPT.
For these reasons, the Committee has been left with no other choice but to make a public statement, pursuant to Article 10, paragraph 2, of the Convention; it took this decision at its 86th plenary meeting in March 2015.
Police ill-treatment
5.In the course of the 2015 visit, the Committee’s delegation received a significant number of allegations of deliberate physical ill-treatment of persons detained by the police; the number of such allegations had not decreased since the 2014 visit but was even on the rise in Sofia and Burgas. The alleged ill-treatment generally consisted of slaps, kicks, and in some cases truncheon blows. The delegation concluded that men and women (including juveniles) in the custody of the police continued to run a significant risk of being ill-treated, both at the time of apprehension and during subsequent questioning.
6.Very little progress, if any, has been made as regards the legal safeguards against police ill-treatment, and the CPT’s key recommendations in this sphere are still to be implemented. In particular, access to a lawyer remained an exception during the initial 24 hours of police custody and the ex officio lawyers did not perform their function as a safeguard against ill-treatment. Further, persons in police custody were still rarely put in a position to notify promptly a person of their choice of their detention, and were not systematically informed of their rights from the outset of their custody.
...
Detention in the Ministry of Justice’s establishments
8.The situation as regards physical ill-treatment of prisoners by staff remains alarming in the three prisons visited in 2015. Many allegations of deliberate physical ill-treatment (usually consisting of slaps, punches, kicks and truncheon blows) were again heard at Sofia and Burgas Prisons and, at Varna Prison, the Committee’s delegation was flooded with such allegations. In a number of cases, the delegation found medical evidence consistent with the allegations received.
...
12.Overcrowding remains a very problematic issue in the Bulgarian prison system. For example, at Burgas Prison, the vast majority of inmates had less than 2 m² of living space in multi-occupancy cells, with the notable exception of the remand section. The situation at Sofia Prison remained similar to that observed in the past, with most inmates having just a little more than 2 m² of living space per person.
13.The material conditions at Sofia, Burgas, and Varna Prisons remained characterised by an ever-worsening state of dilapidation. In particular, most of the sanitary facilities in these three prisons were totally decrepit and unhygienic, and the heating systems functioned for only a few hours per day. The majority of prisoners still did not benefit from ready access to a toilet during the night and had to resort to buckets or bottles to comply with the needs of nature. The kitchens at Burgas and Varna Prisons (and the dining hall at Varna Prison) remained filthy and unhygienic and infested with vermin, with leaking and over-flowing sewage pipes, and walls and ceilings covered in mould. Most parts of the establishments visited were unfit for human accommodation and represented a serious health risk for both inmates and staff. To sum up, in the Committee’s view, the material conditions alone in the three prisons visited could be seen as amounting to inhuman and degrading treatment.
14.The vast majority of inmates (including almost all the remand prisoners) in the three prisons visited in the course of the 2015 visit still had no access to organised out-of-cell activities and were left in a state of idleness for up to 23 hours per day.
...
Concluding remarks
17.In its previous reports, the Committee has taken due note of the repeated assurances given by the Bulgarian authorities that action would be taken to improve the situation of persons placed in the custody of the police, or held in establishments under the responsibility of the Ministry of Justice. However, the findings of the 2015 visit demonstrate again that little or nothing has been done as regards all the above‑mentioned long-standing problems. This state of affairs highlights a persistent failure by the Bulgarian authorities to address most of the fundamental shortcomings in the treatment and conditions of detention of persons deprived of their liberty, despite the specific recommendations repeatedly made by the Committee. The CPT is of the view that action in this respect is long overdue and that the approach to the whole issue of deprivation of liberty in Bulgaria should radically change.
18.The Committee fully acknowledges the challenges that the Bulgarian authorities are facing. In the CPT’s view, there is a real need to develop a comprehensive prison policy, instead of concentrating exclusively on material conditions (which, as should be stressed, have only improved to an extremely limited extent). Having in place a sound legislative framework is no doubt important. However, if laws are not backed by decisive, concrete and effective measures to implement them, they will remain a dead letter and the treatment and conditions of persons deprived of their liberty in Bulgaria will deteriorate even further. As regards the treatment of persons detained by law enforcement agencies, resolute action is required to ensure the practical and meaningful operation of fundamental safeguards against ill-treatment (including the notification of custody, access to a lawyer, access to a doctor, and information on rights).
The Committee’s aim in making this public statement is to motivate and assist the Bulgarian authorities, and in particular the Ministries of the Interior and Justice, to take decisive action in line with the fundamental values to which Bulgaria, as a member state of the Council of Europe and the European Union, has subscribed. In this context, the CPT’s long-standing recommendations should be seen as a tool that helps the Bulgarian authorities to identify shortcomings and make the necessary changes. In furtherance of its mandate, the Committee is fully committed to continuing its dialogue with the Bulgarian authorities to this end.”

5.The applicant was born in 1957 and lives in Petroşani.
6.She married N.C. in 1979 and they had four children, born in 1980, 1988, 1992 and 1999. According to the applicant, N.C. was violent towards her and their children on numerous occasions throughout their marriage. In 2007, assaults against the applicant intensified during their divorce proceedings. The divorce was finalised on 6 December 2008.
A.Events of 24 June, 3 and 8 September 2007
7.On 24 June and 3 September 2007 the applicant was physically assaulted and threatened by her husband.
8.According to a forensic medical certificate issued on 28 June 2007, the applicant had numerous bruises on her face, arms, back and thorax, which required five to six days of medical care. A second forensic medical certificate, issued on 6 September 2007, stated that the applicant had an excoriation (scratches) on her ear lobe and several bruises on her arm and thighs. It was possible the injuries had been caused on 3 September. They required two to three days of medical care.
9.On 8 September 2007 the applicant was again physically assaulted by her husband. After the arrival of the police, she was taken to hospital by ambulance. She was diagnosed with an open facial trauma and a contusion of the nasal pyramid. According to a forensic medical certificate issued on 13 September 2007, the injuries might have been caused by impact with or on a hard object and required nine to ten days of medical care.
10.In their duty reports for the above dates, the police officers called by the applicant noted that she had been injured in a domestic dispute and that they had informed her that she could lodge formal complaints against N.C. In the report drafted on 24 June 2007, the police officer on duty also mentioned that when he had arrived at the scene of the incident he had found that N.C. had locked the applicant out of their joint residence.
B.Criminal proceedings concerning the events of 24 June, 3 and 8September2007
11.On 3 August and 2 October 2007 the applicant lodged complaints with the prosecutor’s office attached to the Petroşani District Court, alleging that she had been physically assaulted by her husband in their home, in the presence of their children, on 24 June, and 3 and 8 September 2007. She attached copies of the medical certificates drawn up after the incidents.
12.On 28 August 2007 the applicant also sent a letter to the Hunedoara County police chief, in which she alleged that she had been the victim of repeated acts of violence by her husband, who often assaulted her in the presence of their children. She mentioned that on several occasions he had locked her out of their home and asked for help from the police in solving these problems.
13.On 11 September 2007 the applicant gave a detailed statement describing the three assaults to the policeman in charge with the investigation. She stated that on 24 June 2007 her husband had come home around noon and had started punching her in the face and head and threatened to kill her. She had managed to flee, but when she had returned an hour later her husband had refused to let her back into the apartment. She also mentioned that he had told the children not to speak about it.
14.In statements dated 12 September 2007, the applicant’s mother and brother told the police that throughout 2007 the applicant had very often come to their house, complaining that N.C. had beaten her, threatened to kill her or that he had locked her out of their apartment.
15.On 15 November 2007 the applicant’s and N.C.’s adult daughters, C.B.A. and C.C.A., told the police that the applicant used to drink and that she became aggressive when she got drunk. They also stated that their father had not hit their mother. C.C.A. mentioned that although she earned her own living, her father had always given her money. Her mother, on the other, had constantly been short of money and had debts to banks.
16.On 19 November 2007 N.C. was questioned by the police. He stated that he had argued with the applicant over their divorce, but had not laid a hand on her. He added that the applicant had not been cleaning the house properly and had a drinking problem. He also stated that “I did not hit her so hard as to cause her injury” and that “she may have fallen in the bathroom”. He alleged that the medical certificates submitted by the applicant had been forged.
17.On 13 and 19 December 2007 the applicant wrote to the head prosecutor of the prosecutor’s office attached to the Petroşani District Court, complaining that N.C., who had moved out of their apartment and had taken two of the children with him, had threatened to kill her when they had accidentally met on the street a week before. She stated that she feared for her life and asked for the proceedings to be speeded up and for protection from N.C.
18.On the same date, the prosecutor’s office attached to the Petroşani District Court decided not to press criminal charges against N.C. and imposed an administrative fine of 200 Romanian lei (RON) (approximately 50 euros (EUR)) on him. The prosecutor held that the applicant had provoked the disputes after drinking alcohol and referred to N.C.’s statements and those of the applicant’s two adult daughters. As regards the alleged threats, it was considered that the applicant had failed to prove her accusations.
19.The prosecutor concluded that, although N.C. had committed the crime of bodily harm, his actions had not created any danger to society, because he had been provoked by the victim, had no previous criminal record and was a retired person (pensionar).
20.The applicant’s complaint against that decision was rejected as ill‑founded on 25 March 2008 by the superior prosecutor.
21.On 21 April 2008 the applicant lodged a complaint against the prosecutors’ decisions of 19 December 2007 and 25 March 2008 with the Petroşani District Court, asking that N.C. be charged with bodily harm, be convicted and ordered to pay non-pecuniary damages for the suffering she had endured. She alleged that the administrative fine, which N.C. had refused to pay, had not had a deterrent effect on him as he had continued to assault her after the prosecutor’s decision of 19 December 2007. She also asked the court to impose criminal sanctions on him and requested permission to submit a recording of a conversation with N.C. in order to prove that she had been assaulted and threatened by him in September 2007. In the last paragraph of her submission, the applicant stated that she feared for her life and asked the court to “punish [N.C.] as provided for by law ... to forbid him from entering the apartment ... and to forbid him from coming near [her] ...”.
22.At the second hearing before the Petrosani District Court, the applicant applied to be given a court-appointed lawyer because she did not have the financial means to hire one. The court dismissed the application, holding that the subject matter of the case did not require representation by a lawyer.
23.By an interlocutory judgment of 23 June 2008, the Petrosani District Court decided to partially quash the prosecutor’s decision of 19 December 2007 in respect of the crime of bodily harm and the penalty imposed for it and to examine that part of the case on the merits. The prosecutor’s findings in respect of the threats were upheld. The recording was not admitted as evidence because the court considered that it had no relevance to the case.
24.The applicant and N.C. gave statements before the court. N.C. explained that on 8 September 2007 the applicant had been drunk and had threatened him with a knife. In order to defend himself, he had pushed her but he denied having ever hit the applicant.
25.On 10 February 2009 the court heard a statement from the applicant’s daughter, C.B.A., who testified as follows:
“My father used to hit my mother [the applicant] and us, the children, many times. He used to do it when he had not come home at night and my mother asked him where he had been. Then he would get angry and hit her. The main reason he got angry was lack of money ... Even after July 2007, when I moved out of my parents’ apartment, my mother continued to be hit by my father; I saw some of these incidents personally. Before 2007, my mother used to drink alcohol, but it was within normal limits, and in 2007 she stopped drinking.
I retract the statement I gave during the criminal proceedings because I gave it after threats from my father.”
26.On 17 February 2009 the Petroşani District Court decided to acquit N.C. of the crime of bodily harm. The court considered that C.B.A.’s statement could not be taken into consideration, without mentioning any reasons for that decision. The court concluded as follows:
“The injured party [the applicant] has not proved her allegations that on 24.06.2007, 3.09.2007 and 8.09.2007 ... she was physically assaulted by the defendant. The court considers, also in view of the evidence collected during the criminal investigation, that such assaults by the defendant took place principally because of the injured party’s alcohol consumption and because she was not taking adequate care of her four children. The defendant’s acts are not so dangerous to society as to be considered crimes and he shall therefore be acquitted of the three counts of bodily harm and shall pay an administrative fine of RON 500.”
27.The court further dismissed the applicant’s claims for damages as ill-founded, without giving reasons. No mention was made in the judgment of the applicant’s request for protective measures made in her complaint of 21 April 2008 (see paragraph 21 above).
28.The applicant lodged an appeal on points of law (recurs) against that judgment. She alleged, among other arguments, that N.C. was a violent person who continued to assault her, even after being punished with an administrative fine by the prosecutor on 19 December 2007.
29.On 12 May 2009 the Hunedoara County Court dismissed as ill‑founded the applicant’s appeal on points of law and upheld the decision of 17 February 2009. The court held that the acts of violence committed by N.C. had been provoked by the applicant and had therefore not reached the level of severity required for them to fall within the scope of the crime of bodily harm. For the same reason, an award for damages was not justified.
C.Events during 2008
30.Between 19 February and 21 April 2008 the applicant made five complaints to the Petroşani police concerning new incidents of assault or threats by N.C. to which she attached medical reports.
31.In the meantime, on 27 March 2008, the applicant asked the Hunedoara County police to apply the measures provided by law in order to stop the constant assaults she was being subjected to by N.C. She stressed that she felt that her life was in danger. A similar request was sent by the applicant to the police on 11 April 2008.
32.On 29 September 2008 the prosecutor’s office attached to the Petroşani District Court decided not to press charges against N.C. for the five incidents described by the applicant. He was however punished with an administrative fine of RON 100 (approximately EUR 25).
33.The applicant’s letter of 27 March 2008, requesting the police to take the necessary measures in order to stop the constant assaults against her, was not taken into consideration. The prosecutor found that it could not be considered a formal complaint because, unlike the other complaints, it did not refer to a specific assault.
34.The applicant did not lodge any further complaints against the above-mentioned decision.
45.In its 2016/2017 annual report on Romania, Amnesty International stated:
“According to General Police Inspectorate data, 8,926 cases of domestic violence were registered in the first six months of 2016 – 79% of the victims were women and 92.3% of the aggressors were men. National NGOs reported that the actual number of cases was much higher. In July, NGOs requested that the government expedite the adoption of measures to combat violence against women and domestic violence.”
46.In a communication submitted in the context of the supervision of the execution of the Court’s judgment in the case of E.M. v. Romania (no.43994/05, 30 October 2012), the Network for Preventing and Combating Violence Against Women (VAW), an informal grouping of twenty-four organisations active in the field of promoting women’s rights in Romania, stated that 91% of requests for a protection order between 2012 and 2015 had been made by women. In 2014 alone there had been 155 victims of homicide in situations of domestic violence, an increase of 32.5% on the period between 2004 and 2012.

6.The applicant was born in 1956 in the Tambov Region. Before his arrest he lived in St Petersburg.
A.The applicant’s arrest and detention
7.The applicant was arrested on 23 August 2007. He remained in detention throughout the investigation and trial.
8.On 9 November 2009 the Kuybyshevskiy District Court of StPetersburg found him guilty of aggravated fraud and money laundering committed within an organised criminal group and sentenced him to fourteen years’ imprisonment. That judgment was upheld on appeal by the St Petersburg City Court on 30 March 2010.
9.On 6 March 2012, in another set of criminal proceedings, the Kuybyshevskiy District Court, found the applicant guilty of two counts of aggravated extortion committed within an organised criminal group and imposed a cumulative prison sentence of fifteen years. The judgment became final on 12 July 2012 when endorsed by the City Court.
B.The applicant’s state of health and medical treatment
10.In 1994 the applicant lost his right arm. He suffered heart attacks in 2000 and 2007 and a kidney affected by cancer was removed in 2003. At the time of his arrest the applicant’s diagnoses listed: ischemic disease, exertional angina of the second functional group, atherosclerotic and post infarction cardiosclerosis, third-stage hypertension with a high risk of vascular complications; cardiac failure of the second functional group; chronic post-traumatic pericarditis with effusion; remote cancer metastases requiring permanent supervision; kidney stones; concretion of the right kidney; chronic pyelonephritis; chronic kidney failure of the first degree; adenocarcinoma of the prostate gland; chronic prostatitis; chronic cystitis, and constantly recurrent multidrug-resistant infection of the urinary tract. To keep his medical condition under control, the applicant followed a daily complex drug regimen comprising up to ten medicaments and underwent an in-depth medical examination every two months in a hospital where he received necessary treatment in respect of his oncological illnesses.
11.On 24 August 2007 upon his admission to remand prison no.IZ‑77/1 in Moscow the applicant informed the prison medical authorities of his condition, submitting the full list of his diagnoses.
12.In September 2007 he started complaining about a number of symptoms such as a heart pain, fatigue, difficulty in breathing, and frequent urination. He received basic treatment which alleviated a part of his health problems, but the urinary condition worsened. In November 2007 he complained of a pain in the low abdomen and inability to urinate. On 20November 2007 a surgeon recommended urinary catheterisation, that is to say the insertion of a tube into the patient’s bladder via the urethra. That procedure was performed approximately 250 times during the first year of detention. In the meantime the urinary condition became more acute.
13.On 4 December 2008 the applicant was examined by a urologist for the first time whilst in detention. The doctor recommended treatment with antibiotics, regular urological supervision and to avoid catheterisation in so far as possible.
14.Throughout 2009 the applicant’s urinary condition persisted. He urinated up to thirty-seven times per day and his nocturnal sleep was interrupted every hour or two. He had to continue resorting to urinary cauterisation. On several occasions he had a consultation with a urologist.
15.On 12 October 2009, at the request of the applicant’s lawyer, three medical experts prepared a report assessing the capability of the custodial authorities to properly treat the applicant. Having examined the medical file on the applicant compiled in the civilian hospital, submissions by the custodial authorities and the applicant’s own comments, the experts concluded that he required systematic treatment with amendments to the chemotherapy regimen and periodic admissions to a specialised cardiology hospital for instrumental examinations and necessary amendments to drug regimen. Given the absence of proper medical supervision, the experts also warned of a possible deterioration of the applicant’s urinary and oncological problems and a risk of those illnesses advancing to a stage requiring surgery, or to a stage with no prospects of the applicant being cured or even his life being saved. The experts observed that the medical unit of the detention facility where the applicant was kept was not equipped for treating patients in such a medical condition.
16.On 28 December 2009, 19 March, 15 June, 26 July, 25 August and 30November 2010 the applicant was examined in the Moscow Scientific Institute of Urology (hereinafter “the Urology Institute”), having been diagnosed with neurogenic bladder dysfunction. The treatment provided slightly improved his condition.
17.On 21 December 2010 the doctors from the Urology Institute performed a surgery on the applicant. A suprapubic catheter was inserted into his bladder through a cut in the abdomen. The applicant was discharged from the hospital to a remand prison under the supervision of the resident doctor.
18.Three days later the applicant complained of continuous bleeding from the abdominal incision. The next day, having lost more than one litre of blood, he was sent back to the Institute, where his condition was brought under control.
19.In April 2011, in the remand prison, the applicant developed an acute inflammation of the urethra, which was successfully treated in the Institute.
20.From 2012 to 2014 the applicant’s urinary condition remained stable. He continued using the suprapubic catheter to remove the urine.
C.Court proceedings
21.In the meantime, in December 2009 the applicant brought a court claim against the detention authorities, seeking that the lack of appropriate medical treatment be declared unlawful.
22.On 28 June 2010 the Preobrazhenskiy District Court of Moscow dismissed his claim. The court found as follows:
“From the [applicant’s] medical file submitted by the [remand prison] it is apparent that ... [the authorities] provided him with medical aid, subjected him to medical testing, and prescribed treatment. In particular, on 4December 2008, 25 September and 15November 2009 he was seen by a urologist... On 28 December 2009 he was examined in the [Urology Institute]. It is not apparent from the medical file that the authorities refused to provide [the applicant] with the medical assistance or that he was deprived of the requisite medication”.
23.On 24 March 2011 the Moscow City Court upheld that decision on appeal.

6.The applicant was born in 1968 and is currently detained in Vratsa Prison.
A.Background
7.In 2012 the applicant was detained in Varna Prison, serving a combined sentence of eighteen years’ imprisonment for aggravated murder, lewd acts, aggravated theft and car theft.
8.He suffers from many chronic medical conditions and a personality disorder which manifested itself in, inter alia, several attempts at self-harm and some suicide threats.
9.In 2007 the applicant was treated on the psychiatric ward of Lovech Prison Hospital.
10.Following his placement in an isolation cell in April 2008, he again threatened to harm himself and for eight days was kept almost constantly immobile by having his hands and feet handcuffed to a bed (see DimchoDimov v. Bulgaria, no. 57123/08, 16 December 2014, where the Court found violations of the substantive and procedural limbs of Article 3 of the Convention in that regard).
11.In early 2012 the applicant was part of a prisoner group that included MrK.I. The latter was serving a combined sentence of six and a half years for aggravated racketeering and numerous instances of threats of murder and aggravated hooliganism. According to a later psychological report, MrK.I. had previously been admitted many times to the psychiatric ward of Lovech Prison Hospital and he suffered from a mixed personality disorder with elements of dissocial behaviour, paranoia and emotional instability.
B.Facts at issue in the case
1.The incident on 15 February 2012
12.On the morning of 15 February 2012 the applicant went to the wing for prisoners who were being transferred to fetch a mattress he had allegedly lent to another inmate. When he entered the cell, Mr K.I., with whom he had had a conflict since January that year, began arguing with him, telling him that he had no right to come in and remove items. A guard intervened and took the applicant out of the wing, leaving him in the prison barbershop. According to statements made by the applicant later, Mr K.I. followed him, grabbed him by the collar through the bars separating the barbershop from the corridor, and hit him on the head and nose. In a report drawn up several days later, the social worker in charge of the applicant’s group said that there was no evidence of such an incident as no other inmate had confirmed the applicant’s allegations, and the applicant had not requested a medical examination.
13.Alerted by the guard, the social worker came and talked with the applicant, repeating that he could not go back into that wing. According to her report about the incident, her words upset him and he began arguing with her in a loud voice. That in turn irritated Mr K.I., who began to shout at the applicant. The social worker took Mr K.I. and two other inmates to a cell, where she reminded them of their duties and warned them that any violence would be in breach of prison rules and entail disciplinary measures. They agreed that they had overreacted and undertook to make efforts to put relations in the group right. After that, the social worker had a talk with the applicant, who was in a highly emotional state. She told him of Mr K.I.’s undertaking to calm the conflict. The applicant began shouting and insulting MrK.I., who heard him and shouted back. To calm things down, the social worker had the applicant isolated in a cell.
14.The next day, the social worker received complaints from five other inmates from the group. They protested against the applicant’s return to the group, saying that he had systematically bullied and assaulted them. The applicant also filed a complaint, saying that he could no longer remain in the same group as Mr K.I.
15.As a result, on 21 February 2012 the social worker recommended that the prison governor move the applicant to another group. She was of the view that his remaining in his old group would worsen relations within it because he would take on inmates who had not taken his side in the conflict with Mr K.I., which would also be bad for his emotional well-being and security. In the meantime, the applicant was provisionally held in a cell on another floor.
2.The incident on 21 February 2012
16.Six days after the first incident, on 21 February 2012, a guard took the applicant back to his old corridor so that he could fetch his belongings from his locker. According to the guard’s report, filed the same day, the applicant swore at and threatened Mr K.I. when passing him by. The latter, upset, punched the applicant on the jaw. The social worker carried out an enquiry over the following days at the request of the prison governor and obtained statements from eight other inmates, confirming the events. She proposed that Mr K.I. be given a disciplinary warning and that the applicant be kept in his new group to avoid further altercations between the two. As a result of the blow he had received the applicant suffered a fractured jaw, but this was not detected immediately (see paragraphs 18, 25 and 28 below). Three weeks after the incident, on 13 March 2012, the prison governor issued Mr K.I. with a disciplinary warning.
3.Medical care provided to the applicant after the incidents
17.The applicant expressed no wish to be given a medical examination after the incident which allegedly took place on 15 February 2012.
18.After the incident on 21 February 2012 he was brought to Varna Prison’s medical centre, where he was seen by the feldsher as the prison’s only doctor was on long-term sick leave at the time (see paragraph40 below). The applicant told the feldsher that he had been punched next to his right ear and had pain in the ear and the lower jaw. The feldsher noted some redness in his ear, but reported nothing more serious. She also noted that the applicant had no signs of other traumatic injuries to his body. She wrote a note to the prison administration, detailing her findings. According to a statement which he made in the course of the ensuing criminal proceedings against Mr K.I. (see paragraph 35 below), the applicant asked the feldsher to send him for an X-ray, but she refused.
19.On 22 February 2012 the applicant went to the medical centre again and was given vitamins, an anti-inflammatory drug, a muscle relaxant and antibiotics.
20.He visited the centre once more on 24 February 2012 and was given a painkiller.
21.According to a statement by the applicant in the criminal proceedings against Mr K.I. (see paragraph 35 below), he repeatedly asked to be sent to an external medical specialist for an examination.
22.His next visit to the centre was on 7 March 2012, when he complained of a loss of hearing in his right ear. The feldsher decided to refer him to an external specialist. The consultation took place seven weeks later, on 26 April 2012 (see paragraph 25 below). The Government said the delay was because the applicant’s symptoms had not suggested that he had a medical condition that required urgent attention and because it took time to organise a medical examination outside the prison.
23.The applicant went to the prison’s medical centre again on 13March 2012 and threatened to go on a hunger strike. According to a statement which he made in the course of the criminal proceedings against MrK.I. (see paragraph 35 below), he made that threat to pressure the prison authorities to send him for a medical examination by an outside specialist.
24.His next visit to the centre was on 23 April 2012, when he obtained a painkiller but apparently did not complain further about his health.
25.On 26 April 2012 the applicant was seen by an external otolaryngologist, who noted that he was experiencing pain in his right temporomandibular joint and ears and had poor hearing. He also noted that the applicant had some redness on his eardrums. He prescribed painkillers and antibiotics, and suggested that the applicant be seen by a maxillofacial surgeon. The prison paid for the consultation.
26.On 27 April and 7 and 10 May 2012 the applicant again visited the prison’s medical centre and obtained antibiotics and analgesics. On 12 May 2012 he was taken out of prison for a consultation with a psychiatrist.
27.On 14 May 2012 the prison’s feldsher told the applicant that she would ask the prison administration to pay for a consultation with a maxillofacial surgeon. The Government explained that that had been necessary because such consultations were not covered by Bulgaria’s health insurance scheme and the prison had to make a special payment for such a consultation.
28.On 19 May 2012 the applicant was examined by a maxillofacial surgeon and given a panoramic X-ray. The surgeon noted that the applicant had a fracture of the right condyloid process that had not healed properly and post-traumatic arthritis of the right temporomandibular joint. He recommended that the applicant have physiotherapy for that joint. The consultation and the X-ray were paid for by the prison administration.
29.On 21 May 2012 the prison feldsher offered to send the applicant to Sofia Prison Hospital for physiotherapy. He refused.
30.On 15 June 2012 the applicant agreed to be sent to Sofia Prison Hospital, and was admitted on 18 July 2012. He was examined and given an X-ray of the skull. It was noted that he had a fracture of the jaw that had already healed and could no longer be operated on, and a deviated nasal septum. He was treated with antipsychotic, anticonvulsant and mood‑stabilising drugs, and had physiotherapy for his temporomandibular joints. He was in the hospital until 1 August 2012, when he returned to Varna Prison.
31.Between June and October 2012 the applicant visited the prison medical centre on several occasions. He was generally given pain medication and further on request external medical consultations were discussed.
32.The second consultation with an otolaryngologist took place on 27December 2012. She noted that the applicant complained of poor hearing and pain in the right ear. She found that he had normal eardrums but poor teeth, which caused luxation of the temporomandibular joint, and also had a dysfunction of that joint. She prescribed painkillers.
33.In a medical report drawn up on 11 February 2013, the Varna Prison doctor noted that the applicant had no money to pay for surgery on his jawbone and that the national health insurance scheme did not cover it. In November 2013 the applicant had surgery for the deviated nasal septum in a hospital in Varna.
4.Investigation into and criminal proceedings relating to the assault on 21 February 2012
34.On an unknown date in 2012 the applicant complained to the Varna district prosecutor’s office about the incidents on 15 and 21 February 2012. In June 2012 the prosecutor’s office refused to open criminal proceedings. It found that no prison staff had committed any offences during the incidents. On appeal by the applicant, the Varna regional prosecutor’s office upheld that decision in August 2012. The applicant appealed further and, on 10October 2012, the Varna appellate prosecutor’s office quashed the refusal to open criminal proceedings against Mr K.I., but upheld the refusal to open proceedings against prison staff. It noted that the internal inquiry had established that the incident involving the two inmates had been promptly dealt with and that there had been no culpable omissions by prison staff. It referred the case back with instructions to the lower prosecutor’s offices to check whether Mr K.I.’s actions had amounted to causing moderate bodily harm.
35.Following a criminal investigation and delays in the resulting trial due to Mr K.I.’s mental health, in February 2015 the Varna District Court found Mr K.I. guilty of causing moderate bodily harm to the applicant by breaking his jaw. It sentenced him to six years’ imprisonment and ordered him to pay the applicant 2,000 Bulgarian levs (BGN) in respect of non‑pecuniary damage. The court noted that the fracture had impaired the applicant’s chewing and speech functions for at least four months and had caused him considerable pain and suffering (see прис. № 68 от 12.02.2015г. по н. о. х. д. № 3419/2013 г., РС-Варна).
36.In March 2016, following an appeal by Mr K.I., the Varna Regional Court fully upheld the lower court’s judgment (see реш. № 61 от 07.03.2016г. по в. н. о. х. д. № 301/2015 г., ОС-Варна).
5.Claim against the prison authorities for damages
37.In September 2014 the applicant brought a claim for damages against the Chief Directorate for the Execution of Punishments at the Ministry of Justice. He alleged that over the previous two months the authorities at Varna Prison had failed to provide him with adequate medical care for pain in the right ear, his fractured jaw and numbness in his left arm.
38.The Varna Administrative Court heard the case on 1 December 2014 and 2 February 2015, when the applicant unexpectedly withdrew his claim and the court discontinued the proceedings.
39.A delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) visited Bulgaria between 18 and 29 October 2010. The visit included a visit to Varna Prison. In its ensuing report (CPT/Inf (2012) 9), the CPT noted the following (footnotes omitted):
“88.At both Plovdiv and Varna Prisons, inter-prisoner violence was rife. It transpired from the examination of documentation on disciplinary punishments that there was at least one violent altercation between prisoners every week, leading to placements in a disciplinary cell and occasionally to a medical intervention or hospitalisation. ...
At Varna Prison in particular, the low staffing level, coupled with severe overcrowding, could easily compromise the safety of staff and prisoners alike. ...
89.... The Committee considers that an effective strategy to tackle inter-prisoner intimidation/violence should seek to ensure that prison staff are placed in a position to exercise their authority in an appropriate manner. In particular, staff should be encouraged more closely to supervise the activities of prisoners and enter in direct contact with them with a view to developing dynamic security. This implies making available sufficient numbers of staff and providing them with appropriate initial and advanced training. When incidents of inter-prisoner intimidation/violence do occur, staff must be both resolved and properly trained to intervene. ...
In addition to implementing an individualised risk and needs assessment, the prison system may also need to develop the capacity to ensure that potentially incompatible categories of prisoners are not accommodated together. ...
121.Despite the goodwill and commitment of health-care staff at the prisons visited, the provision of health care to prisoners remained problematic, due to the serious shortage of staff and resources. The delegation heard a number of complaints from prisoners at both Plovdiv and Varna Prisons concerning delayed or difficult access to a doctor, inadequate quality of care (in particular dental care), problematic access to outside specialists and delays in transfer to outside hospitals. ...
At Varna Prison, the health-care staff team comprised a psychiatrist and a feldsher. The impossibility to replace the head doctor who was on prolonged sick leave placed an overwhelming burden on the psychiatrist and the feldsher. As a stop-gap solution, the doctor from the nearly hostel ‘Razdelna’ periodically visited the prison (i.e. four to five times a month). ...”
40.A delegation of the CPT visited Bulgaria again between 4 and 10May 2012. The visit again included a visit to Varna Prison. In its ensuing report (CPT/Inf (2012) 32), the CPT noted the following (footnotes omitted):
“19.The delegation received many allegations of inter-prisoner violence at both Burgas and Varna Prisons (including verbal and physical intimidation), and even witnessed itself such episodes. This was hardly surprising considering the combination of severe overcrowding and extremely low staffing levels at both establishments.
Despite long-standing recommendations on this issue, the findings from the 2012 visit suggest that very little progress has been made to tackle inter-prisoner violence. The Committee must stress again that the duty of care which is owed by the prison authorities to prisoners in their charge includes the responsibility to protect them from other prisoners who might wish to cause them harm. In particular, prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene. Such a capacity to intervene will of course depend, inter alia, on an adequate staff/prisoner ratio and on providing all staff members with appropriate initial and advanced training. In addition, the prison system as a whole may need to develop the capacity to ensure that potentially incompatible categories of prisoners are not accommodated together. ...
40.The provision of health-care was very problematic at both prisons due to an extreme shortage of staff and resources. The delegation was submerged by complaints about difficulties in having access to prison medical staff, inadequate quality of care (including dental care), problematic access to outside specialists/hospitals (in particular for insurance reasons) and delays in transfer to outside hospitals.
At Varna Prison, the health-care staff consisted of a general practitioner – who had just returned to his duties after a lengthy period of sick leave – and a feldsher, both working full-time. The doctor from the nearby prison hostel ‘Razdelna’ had been ensuring medical cover when the feldsher was absent. The psychiatrist’s post had been vacant since January 2011. A part-time dentist was present for two hours, five days a week. No qualified nurse was present at the establishment. To sum up, since January 2011, the establishment’s needs in terms of health-care had been covered essentially by a single feldsher. The delegation was impressed by her professionalism and commitment, which was also recognised by inmates; nevertheless, the fact that no arrangement was found to compensate the absence of the GP for at least 18 months is unacceptable. ...
41.The above-mentioned staffing situation rendered virtually impossible the provision of health care worthy of the name in the establishments visited. Further, there was an over-reliance on feldshers, causing them to practise beyond the limits of their competence. ...
43.No specific screening for injuries was performed upon arrival or after a violent episode in prison, and very limited medical information could be found at Varna Prison ... in this respect. Further, it appeared that reporting of injuries depended on the prisoner concerned making a specific request, usually to the social worker, on a special form (a copy of the form was not kept in the medical file). There appeared to be no systematic reporting of traumatic injuries to the Main Directorate for the Execution of Sanctions.
In the light of the above, the CPT reiterates its recommendation that steps be taken to ensure that prison health-care services perform a thorough screening of newly-arrived prisoners for injuries. In this context, the report completed by the doctor should contain, in addition to a detailed description of injuries observed, any allegations made by the prisoner concerned and the doctor’s conclusions as to the consistency between those allegations and the objective medical findings. ...
The same approach should be followed whenever a prisoner is medically examined following a violent episode in prison.”

5.The applicant was born in 1972 and currently lives in Ukraine. Prior to the events at issue, notably during an unspecified period before 1998, the applicant used to serve in the police. He provided no further details in that regard.
I.The applicant’s arrest and administrative detention
6.On 11 June 2004 the police were informed that the applicant and one of his suspected accomplices, who at the time were on a wanted list for having committed multiple robberies, were on a train travelling to Moldova. The police were also informed that they could be in possession of a gun. At about 11 p.m. on that day a group of four police officers boarded the train and arrested the applicant and his accomplice, using, as noted in the relevant official documents, “hand-to-hand combat techniques” and handcuffs to subdue them. According to the Government, during the arrest the applicant tried to escape. Subsequently, the applicant was taken to Kotovsk police station.
7.On 12 June 2004 the police drew up a report on the applicant’s arrest in which it was noted that he had been arrested for “having resisted lawful demands of the police”, which was an administrative offence, on 12 June 2004 in Kotovsk. The police report on the offence, joined to the above arrest report of 12 June 2004, specified that the applicant “had behaved aggressively, had refused to present his identity documents, had tried to run away [and] had grabbed the police officers’ clothes”. According to the parties, the information concerning the time and place of the arrest contained in the reports was false.
8.Later that day the Kotovsk Town Court found the applicant guilty of the abovementioned administrative offence and ordered his administrative detention for twelve days. The applicant remained in police custody.
9.On 17 August 2004 the regional police department examined the circumstances of the applicant’s arrest and issued a report, finding that the police officers concerned had lawfully used “hand-to-hand combat techniques” and handcuffs against the applicant. No further details were given in that connection. In the report, it was also noted that the applicant had had bruises on his body after the arrest.
II.Alleged ill-treatment of the applicant
10.According to the applicant, while in police custody during the night of 11 to 12 June 2004, he was ill-treated by several police officers with the aim of extracting his confession to the crimes of which he was suspected (see paragraph 6 above). In particular, police officers allegedly beat him up, administered electric shocks to him, suffocated him using a gas mask, inserted needles under his nails, hung him over a metal bar, and attempted to sexually abuse him. Unable to withstand the ill-treatment, the applicant made self-incriminating statements and also statements incriminating several other persons, who later became his co-defendants in the proceedings. The applicant stated that had he not done so, the police officers would have killed him as they had killed a certain M., whom the police had suspected of being the applicant’s accomplice, during his questioning in the same police station on 18 March 2004. As was later found by the trial court, M. had died in the course of a robbery he had committed together with the applicant (see paragraph 54 below).
11.Allegedly, the police officers also forced the applicant to sign a written statement that he had no complaints about them and that he had received his injuries elsewhere.
12.On 12 June 2004 the applicant complained to a prosecutor’s office that he had been tortured by the police. On the same day, on the prosecutor’s office’s instructions, the applicant was examined by a medical expert who noted multiple bruises on the applicant’s body and face, which the expert classified as minor. During his medical examination the applicant stated that he had been beaten up by the police officers at the police station during the night of 11 to 12 June 2004. The expert noted that the applicant could have been punched and kicked in the head and body during that time.
13.According to the applicant, the police officers continued torturing him for the next three days. The applicant stated that two people had witnessed him being ill-treated by the police. He did not give their details.
14.On 29 June 2004 the applicant handed the investigators a written statement informing them of his wish to withdraw his complaints of ill‑treatment. Notably, he stated that he had no grievances against the police and that he had been injured due to his own fault in a different location. He did not provide any details of how he had been injured.
15.On 30 June 2004 an investigator from the Kotovsk police station, having questioned the applicant in the presence of his lawyer (see paragraph38 below), decided not to launch a criminal investigation in respect of the applicant’s injuries, noting, mainly, that the applicant had withdrawn his complaints.
16.Subsequently, the applicant lodged new complaints of alleged ill‑treatment by the police on 11-12 June 2004 with a prosecutor’s office.
17.In particular, in August 2004 the applicant complained to the prosecutor overseeing the investigation that he had been beaten up by the police. On 30 August 2004 the prosecutor met with the applicant and allegedly tried to force him to confess to having committed other crimes. As the applicant refused, the prosecutor allegedly beat him up. As a result, the applicant decided to stop making complaints to that prosecutor.
18.The applicant’s complaints of ill-treatment by the police on 11‑12June 2004 made to other prosecutors were re-examined on several occasions. In particular, the prosecutors’ decisions refusing to prosecute the police officers issued on 6 July and 31 August 2004, 25 January, 28 July and 25 November 2005 were annulled by senior prosecutors for failure to investigate the matter in full.
19.By a decision of 11February 2006, the prosecutor’s office again rejected the complaints as unsubstantiated, finding that it had not been demonstrated that the police officers had committed a crime and that there was no evidence that the police had forced the applicant to give self‑incriminating statements after his arrest. Statements of a number of police officers were relied upon in that regard. It was also noted that at some point in time the applicant and his lawyer had made statements that the applicant had not been ill-treated by the police after his arrest, and that he had refused to give details as to how he had received the injuries noted in the medical examination of 12 June 2004 (see paragraphs 14 and 15 above). The prosecutor’s office further found no issue in the way the police had arrested the applicant, relying on the report of 17August 2004 (seeparagraph 9 above).
20.The applicant did not challenge that decision in a separate appeal to a higher prosecutor or the courts, though he raised the complaints of ill‑treatment by the police raised during his trial (see paragraph 49 below).
21.According to the applicant, during further stages of the criminal proceedings against him, he was subjected to beatings by the police on several occasions.
22.The applicant also stated that during his trial he had been subjected to various forms of ill-treatment by the guards, who had been escorting him to court hearings. In particular, the guards had twisted his hands and tried to break his vertebral column; they had not provided him with food during the lunch breaks; and they had threatened the applicant with physical punishment. They had also placed him temporarily in cells together with inmates whom the applicant claims he had arrested when he had worked for the police (see paragraph 5 above). The guards had informed the inmates that they would go unpunished had they killed or raped the applicant. Allegedly, the prosecutors to whom the applicant had brought his complaints of ill-treatment did not examine those complaints on the merits.
23.After his trial, in particular between February 2009 and November 2012, the applicant was detained in “ordinary” prisons, where he was allegedly subjected to abuse and threats by inmates on account of his previous service in the police. Eventually he was transferred to a specialised prison in Mena in which inmates with law-enforcement backgrounds were detained.
24.On 15 February 2016 the applicant was released from prison.
III.Allegedly inadequate medical assistance to the applicant while in detention
25.The applicant stated that during his detention he had suffered from different health issues, including a gastric ulcer, kidney disease and an eye issue, for which he had not been provided adequate medical assistance. Consequently, his health condition had deteriorated. The applicant had lodged multiple complaints concerning his allegedly inadequate medical assistance with a prosecutor’s office.
26.In 2006 the prosecutor’s office instructed the head of the Prisons Service in Odessa to ensure that the applicant received adequate medical assistance while he was detained in Odesa Pre-Trial Detention Centre (“the SIZO”). Allegedly, the SIZO administration did not comply with that instruction and he was not given the assistance he needed. Thus, he continued to lodge complaints with the prosecutor’s office. The prosecutor’s office eventually rejected the complaints as unsubstantiated, having studied the applicant’s medical file and noted that he had been medically examined and provided with adequate medical assistance during his detention in the SIZO. The applicant’s further complaints of inadequate medical assistance while in prison were also rejected as unsubstantiated.
27.The Government submitted detailed information regarding the medical assistance which the applicant had received in detention. It demonstrates that throughout the period of his detention in the SIZO and in different prisons he had been examined by various doctors, including those from civilian medical institutions, and had been provided with treatment for the different medical issues he had had at the time.
IV.The applicant’s detention prior to his conviction on 30 March 2007
28.After his arrest on 11June 2004, the applicant was detained on the basis of the decision of the Town Court of 12 June 2004 sentencing him to twelve days’ administrative detention (see paragraph 8 above).
29.On 24 June 2004 the applicant was informed that he was being arrested in connection with his criminal prosecution. The next day the Town Court ordered his further detention for two months on the grounds that the applicant was accused of serious crimes and that he might evade investigation or commit a new crime. No further details were given in that regard.
30.The applicant did not appeal against the decision of the Town Court of 25 June 2004. Nor did he appeal against the decision of the same court of 10August 2004 extending the maximum period of his detention to 21October 2004.
31.Between 21 October and 24 December 2004 the applicant was detained solely on the basis of his case having been referred to the trial court.
32.Subsequently, the applicant was detained partly on the basis of the decision of the Town Court of 24 December 2004 and the decisions of the Odesa Regional Court of Appeal (“the Appeal Court”) of 3 June 2005 and 10 January 2006 returning the case for additional investigation, and partly on the basis of the decisions of the Appeal Court of 4 March, 29 July and 2November 2005 and 10 March 2006 repeatedly extending the maximum period of his pre-trial detention. Those decisions were based mainly on the grounds that further investigative measures had to be performed, that the applicant was accused of serious crimes, and that he might evade investigation and trial and obstruct the establishment of the truth in the case. Those decisions contained no further details in that connection. No appeal against those decisions could be lodged. The applicant alleged that they were taken in violation of procedural norms, in particular without him or his lawyer taking part in the hearings on the matter.
33.Some of the periods of the applicant’s detention between 4 March 2005 and 18 April 2006 – notably, from 10 May to 3 June and from 4to 16December 2005 – were not covered by any decision at all, the applicant having been detained on the grounds that the case was pending commencement of the trial.
34.According to the applicant, his detention between 10 and 15 May 2005 was also not covered by any decision at all.
V.The applicant’s criminal prosecution
35.On 13 June 2004 the applicant was questioned as a witness concerning several cases of robbery. The applicant made self-incriminating statements, giving details of the crimes which he and several other persons had committed.
36.On 15 June 2004 the applicant was questioned on suspicion of murder, as one of his accomplices had given statements implicating him in that crime, which he had allegedly committed in the course of a robbery. The accomplice had been with the applicant when the murder had been committed, but had not seen how it had happened. In the course of the applicant’s questioning on that date he confessed to having committed the murder and gave details in that regard. On the same date the applicant was officially charged with that crime. The applicant stated that he had been questioned without a lawyer being present. The Government did not address this submission. No documents regarding the applicant’s questioning of 15June 2004 were provided. Reference to that questioning was made in the judgment of 30 March 2007 (see paragraph 53 below). Notably, when assessing evidence concerning the murder charges, the Appeal Court held that:
“... [T]he questioning of Sadkov V.A. was conducted with the participation of a lawyer [while Mr Sadkov had the procedural status of] a suspect on 15June 2004 ([pages] 64-65, [volume] 12 [of the case file]) and an accused ([pages] 69-70, [volume] 12 [of the case file]) ... during which Sadkov explained that he had stabbed [the victim] repeatedly with a knife ... [and that] subsequently, he threw that knife into a lake. [His] statements contained information about the way the victim had been stabbed ... which was later confirmed by a forensic expert ... and which was not present in the statements of [his accomplice] ... [O]n 15 June 2004, immediately after that information was received, the police officers searched the lake which [Mr Sadkov and his accomplice] had indicated and found a knife, which, according to the experts’ report, could have been used to inflict the injuries of the victim ...”
37.Subsequently, the applicant took part in a number of investigative procedures, notably crime reconstructions and witness confrontations. According to the applicant and the information contained in the judgment of 30 March 2007 (see paragraph 53 below), he was not represented by a lawyer during those procedures.
38.According to the parties’ submissions, on 24 June 2004 a lawyer was appointed by the investigator to represent the applicant in the proceedings. No copy of the relevant decision was provided. The applicant was questioned in the lawyer’s presence where he confirmed his previous statements to the police.
39.During questioning at later stages of the investigation and at the trial, the applicant, with his lawyer present, repeatedly changed his version of the events pertaining to the charges against him. For instance, while initially he testified that it had been only him who had committed the murder, during subsequent questioning he stated that one of his co-defendants had also taken part in the murder. Ultimately, the applicant denied his responsibility for the murder and the majority of the counts of robbery. In particular, he stated that the crimes had been committed by his co‑defendants, who had informed him of the relevant details, and that his confession during the initial questioning in June 2004 had been extracted as a result of ill‑treatment by the police.
40.On 22 October 2004 the investigation was completed and the applicant was given the case file to study.
41.On 24 December 2004 the Town Court returned the case for additional investigation for failure to complete the required investigative steps in full. It also instructed the investigator to look into one of the applicant’s co-defendants’ complaints of ill-treatment by the police.
42.Subsequently, the case was returned to the prosecutor’s office for additional investigation two more times, on 3 June and 16 December 2005, mainly for failure to complete the required investigative steps in full.
43.In the meantime, on 28 April 2005 the applicant asked the investigators to terminate the criminal proceedings against him and to release him from detention, stating that the charges against him were based on his self-incriminating statements obtained as a result of ill-treatment in June 2004.
44.On 29 April 2005 the request was refused as unsubstantiated.
45.On 30 November 2005 the investigators rejected a similar request made by the applicant’s lawyer on 29 November 2005, in which he also alleged that the applicant’s complaints of ill-treatment by the police had not been duly examined.
46.During the pre-trial investigation the applicant was given access to the entire case file and studied it together with his lawyer on several occasions, notably in April and September 2005 and February 2006. He was also given access to the case file during the trial.
47.According to the reports of the police, while the applicant was studying the case file on 29 September 2005 he tried to destroy several documents, in particular those concerning his statements made on 29 June 2004 (see paragraph 14 above). The applicant did not make any comments in that regard.
48.In April 2006 the case was referred to the Appeal Court for trial.
49.During the trial the applicant denied being guilty of the crimes he was charged with. The applicant’s principle argument was that the charges were based on his and his co-defendants’ testimony obtained as a result of ill-treatment by the police, and on false evidence.
50.On 30 March 2007 the Appeal Court found the applicant and five others guilty of a number of crimes, including murder, illegal possession of firearms and on multiple counts of robbery, sentenced the applicant to fifteen years’ imprisonment and ordered the confiscation of all his property.
51.The court based its judgment regarding most of the charges mainly on the testimony of the applicant’s co-defendants obtained in the course of the investigation and during the trial. The court also relied on the testimony of a number of witnesses and victims of the crimes and on the conclusions of several forensic, ballistic and other expert examinations.
52.The court noted that the applicant’s and his co-defendants’ arrest and administrative detention at the initial stage of the investigation (in the applicant’s case between 11 and 24 June 2004) had been contrary to Articles106 and 115 of the Code of Criminal Procedure (setting-out rules on pre‑trial detention), as they had actually been arrested on suspicion of having committed crimes. The court also noted that during that period they had been questioned as witnesses concerning the relevant events and had taken part in other investigative procedures, notably crime reconstructions and witness confrontations. According to the court, that situation had entailed a violation of their right to mount a defence. The court decided not to accept as evidence all the verbatim records of the investigative actions in which the applicant and his co-defendants had taken part as witnesses during the relevant periods (see paragraph 35 above).
53.As regards the charge of murder, the court relied principally on the statements of one of the applicant’s accomplices and the applicant’s self‑incriminating statements made at the pre-trial stage, in particular during his interview on 15 June 2004 and during subsequent questioning, having noted that the applicant had been assisted by a lawyer when he had made those statements (see paragraphs 36 and 38 above). The court found that the statements were reliable and noted that during the trial the applicant had made conflicting submissions concerning the relevant events, which could not be accepted.
54.Relying on the prosecutor’s office’s decision of 11 February 2006 (see paragraph 19 above), the court found that the applicant’s complaints of ill-treatment by the police had been unsubstantiated. The court also found that, contrary to the applicant’s submissions, one of his accomplices, M., had died of blood loss after he had been injured by the applicant’s other accomplice in the course of one of the robberies they had committed.
55.The applicant and the prosecution challenged the judgment of 30March 2007 on appeal. While the prosecution disagreed with the first-instance court’s legal qualification of some of the crimes, the applicant argued that he had not been guilty, that he had made self-incriminating statements as a result of ill-treatment by the police and that his co‑defendants had made untruthful statements concerning his involvement in the crimes.
56.On 4 December 2007 the Supreme Court heard the case and delivered its decision in the applicant’s presence. It upheld the judgment of 30March 2007 in so far as it concerned the majority of the convictions, including murder. The Supreme Court found that the applicant’s guilt had been duly established. In its decision, it referred to the statements of the applicant’s co-defendants, witnesses and victims, and also to different forensic evidence.
57.By the same decision, the Supreme Court ordered a retrial of several of the convictions of robbery, holding that the first-instance court had erred in the legal qualification of the crimes. In particular, it ordered the examination of whether those crimes could be considered as having been committed by an “organised group”.
58.The applicant stated that a copy of the decision of the Supreme Court of 4December 2007 had been given to him, after a substantial delay, on 19June 2008.
59.During the retrial the applicant argued that he was not guilty and that he had been ill-treated by the police on 11-12 June 2004.
60.On 11 August 2008 the Appeal Court convicted the applicant and his co-defendants on the remaining counts of robbery. It did not change the applicant’s sentence. The conviction was based mainly on the testimony of the applicant’s co-defendants obtained in the course of the investigation and trial. To a certain extent, the court also relied on the testimony of several witnesses and victims and the results of various expert examinations.
61.Relying on the prosecutor’s office’s decision of 11 February 2006, the court found that the applicant’s complaints of ill-treatment by the police were unsubstantiated.
62.The applicant appealed in cassation.
63.On 16 December 2008 the Supreme Court upheld the judgment of 11August 2008, noting, inter alia, that there had been no evidence that the applicant’s co-defendants had perjured themselves. It also noted that the applicant had acknowledged his guilt and had given details of the relevant events on several occasions during the investigation. The Supreme Court did not specify the period of the investigation to which it referred.
64.The Supreme Court generally noted that the applicant’s complaints of a violation of his right to mount a defence did not have any basis in the case file. It further found no violation of the Code of Criminal Procedure of 1960 (“the CCrP”) in that the applicant had taken part in the investigative actions during his administrative detention. The applicant’s complaints of ill-treatment were considered to be unsubstantiated.
65.On 13 February 2009 the Appeal Court sent the applicant a copy of the decision of the Supreme Court of 16 December 2008, noting that after that date the applicant would not be entitled to study the case file.
VI.The application to the Court
66.In June and July 2005 the applicant made submissions to the Court, complaining principally of ill-treatment by the police and of the unlawfulness of his arrest and detention.
67.By a letter of 22 August 2005, the Court invited the applicant to provide copies of documents pertinent to his complaints.
68.In his letter of 29 September 2005, the applicant stated that his requests for copies of the necessary documents had been refused by the domestic authorities. In particular, in September 2005 the prosecutor’s office informed the applicant that the CCrP did not provide for the issuing of copies of documents from criminal case files and that once the investigation had been completed the applicant and his lawyer would be given a possibility to study the case file and to make copies of documents by hand.
69.By a letter of 5 December 2005, the Court invited the Government to provide factual information concerning the applicant’s complaints regarding his inability to obtain copies of the documents needed for his application.
70.In January 2006 the applicant and the Government submitted copies of a number of documents relating to the applicant’s complaints of ill‑treatment and unlawful detention.
71.In their reply to the Court’s letter of 5 December 2005, the Government also stated that pursuant to the CCrP the applicant had the right to study the case file and to make copies of documents after the completion of the investigation against him.
72.Subsequently, the applicant allegedly also had difficulties obtaining copies of other documents from the case file. He stated that his requests to the prosecutor’s office and the courts for such copies had been to no avail. According to the documents provided by the parties, it was noted that the applicant had been given access to his case file during the criminal proceedings against him and that the courts had not been required to issue him copies of documents other than judgments in his criminal case.
73.The applicant alleged that the administration of a prison in which he had been detained in August 2009 had destroyed a letter which he had asked them to send to the Court on 3 August 2009.
74.The prosecutor’s office examined the alleged destruction of the letter and found that it had been duly dispatched.
75.The Court did not receive a letter from the applicant dated 3 August 2009.

6.The applicant was born in 1957. He is detained in the Paifve social-protection institution (“the Paifve EDS”).
A.The applicant’s initial detention
7.In 1997 the applicant was convicted of theft and of sexual assault, by the Liège Court of Appeal and the Eupen Criminal Court respectively. The prison sentences were due to end on 20 February 2004.
8.While imprisoned, the applicant committed offences in respect of which fresh proceedings were brought. On 16 June 2003 the Committals Division (chambre du conseil) of the Liège Court of First Instance decided, pursuant to section 7 of the Law of 9April1930 on Social Protection in respect of Mental Defectives, Habitual Offenders and Persons Convicted of certain Sexual Offences (the “Social Protection Act”), and on the basis, inter alia, of a neuropsychiatric report by DrL., dated 15December 2001, and a report by psychologist H., dated 20 August 2002, to order the applicant’s preventive detention.
9.On 1 August 2003 the Indictment Division of the Liège Court of Appeal upheld that decision. The applicant did not appeal on points of law.
10.On 15 January 2004, based among other elements on a psychiatric report by Dr V. dated 23 September 2003, the Minister of Justice also decided that the applicant was to be detained in a psychiatric institution, pursuant to section 21 of the Social Protection Act, as a continuation of the sentences imposed in 1997.
11.On 21 January 2004 the applicant entered the Paifve EDS, located in the French-speaking region, further to a decision of 16October 2003 by the Social Protection Board for the Lantin Prison psychiatric wing (the “CDS”).
B.The first application to the CDS for release on a trial basis and the request for day release
12.On an unspecified date the applicant made an initial application for release on a trial basis.
13.On 27 January 2006 the CDS postponed its examination of the request for release on a trial basis until March 2006, and recommended finding an institution that could admit the applicant and provide him with therapy in German, the only language he could understand and speak.
14.The application was examined by the CDS on 9 June 2006. At the hearing, the head of the Paifve EDS acknowledged that the institution was unable to provide the therapeutic care recommended by the experts who had already been consulted, given that no German-speaking doctor, therapist, psychologist, social worker or warden was employed in the institution.
15.In consequence, the CDS held:
“It is undisputed that the detainee speaks only German, and that the medical, welfare and prison staff in the institution in which he is detained are unable to provide him with any therapeutic or welfare assistance; he has been abandoned to his fate without any treatment since his arrival in Paifve (on 21 January 2004), even if some individuals have, on a voluntary basis, made considerable efforts to explain to him his situation, which he experiences as an injustice;
In the present case, the two-fold legal aim of the preventive detention, namely protection of society and of the patient’s health, can only be achieved if the deprivation of liberty is accompanied by the treatment necessitated by the detainee’s mental health; since this double condition is not fulfilled, [Mr] Rooman’s detention is unlawful; ...”
16.The CDS postponed its examination of the application for release on a trial basis until a hearing in September 2006, pending the appointment of German-speaking employees to the Paifve EDS.
17.In accordance with an order by the chairperson of the CDS of 24September 2006, the applicant was transferred to Verviers Prison so that its German-language psychosocial team could assess his mental health and ascertain whether he posed a danger to the public. On 30 October 2006 the CDS confirmed this order and postponed the case to a later date.
18.On 26 January 2007 the CDS dismissed the application for release on parole. It had been indicated in a report of 24 January 2007, drawn up by the German-language psychosocial team in Verviers Prison, that the applicant had a psychotic personality and paranoid character traits (high self-opinion, feeling of omnipotence, lack of self-criticism and threatening remarks) and that he was refusing any treatment. Furthermore, the CDS noted that there was no institution in Belgium which could meet the security and language requirements in the applicant’s specific case; the only German-language hospital which could be considered was an open hospital, and it had thus to be ruled out in view of the applicant’s mental health.
19.On 14 April 2008 the applicant applied for day release. On 5 June 2008 the CDS noted that it had proved impossible to provide any treatment and that the search for a German-language institution had proved unsuccessful. Accordingly, it ordered the Eupen remand prison to prepare a plan for release on a trial basis, and ordered a new expert report in order to assess the level of danger posed by the applicant. It adjourned examination of the request sine die.
C.The contested proceedings, concerning the second application to the CDS for release on a trial basis
20.Having received a new application from the applicant for release on a trial basis, the CDS held, in a decision of 5 May 2009:
“There has been no progress in Mr Rooman’s situation; progress cannot occur until he is in a setting where he can be understood in his own language, like any citizen of this country. A single member of the prison staff, a nurse [A.W.], is temporarily providing him with social contact, whereas a psychiatrist and/or a psychologist should be available to him.
The prison authorities have not put forward any kind of solution to this problem, of which its various services are fully aware. Worse, as those authorities are unable to provide him with the necessary treatment, they seem to have resigned themselves to a role that extends no further than an unfair repressive detention.
The medical reports and [Dr Ro.’s] expert report indicate that Rooman, who continues to present a danger to society, cannot be released without support and preparation in an institutional setting, something that cannot currently be provided in Belgium, but is available abroad.”
21.In consequence, the CDS invited the Eupen remand prison to prepare, together with applicant, a plan for release on a trial basis, and encouraged the authorities to take, rapidly, the measures necessary to improve the applicant’s situation. It adjourned the case to a later date. 22.On 13 October 2009 the CDS found:
“In the years since this file was opened (October 2003), the persons involved in this case have been thwarted by the fact that the detainee speaks and understands only one language, and that the authorities have no German-speaking staff available for him, with the exception of one nurse [A.W.] (who is apparently due to retire in the near future);
In September 2005 Doctor [Ri.], expert, wrote that relaxation of the detainee’s regime ‘is possible only in parallel with successful treatment, assessed by predefined steps. The treatment must begin in a secure establishment, then in a closed institution...’ Given that treatment in Germany is impossible, it was to begin in Paifve with German-speaking psychiatrists and therapists;
Since that time the detainee’s situation has not changed: he converses with and leaves the building only in the company of the sole German-speaking member of staff, and a treatment programme has not even been put in place. No satisfactory follow-up has been given to the requests by the [Social Protection] Board for an end to be put to this unlawful situation for Mr Rooman, who is deprived of his freedom in order, on the one hand, to protect society from possible dangerous conduct by him, and on the other, to provide him with the treatment necessary for his reinsertion;...
In the light of the authorities’ failure, the question now before the Board is whether there exists, outside the social-protection facility, a unit or persons who could provide home-based therapy for Mr Rooman; ...”
23.On those grounds, and pointing out that German was one of the national languages and that the applicant was thus entitled to speak, be understood and receive treatment in that language, the CDS asked the Eupen remand prison to search in and around Verviers and Eupen for either a mental health unit, or a doctor or clinic, which could provide home-based therapy for the applicant in his mother tongue. It reserved its decision on the application for release on parole.
24.On 12 January 2010 the applicant submitted pleadings in support of his application for release. He criticised the failure to provide him with therapeutic care and the effect on his health of any prospect of seeing his situation improve. As his main submission, he requested his immediate release on the grounds of the illegality of his detention. Alternatively, he asked that the CDS impose an obligation on the relevant authorities to take all necessary measures so that he would receive the treatment required by his mental-health condition in his mother tongue.
25.By an interlocutory decision of 13 January 2010, the CDS noted that the applicant’s situation had not changed and that the reply from the Eupen judicial assistance unit left no hope of ensuring that the applicant would receive appropriate treatment, in a secure establishment or elsewhere. The CDS considered that it was necessary to attempt one last plea to the Minister of Justice, whose intervention had previously led to some changes, even if they were insufficient to resolve the problem. The CDS accordingly ordered that an “official denunciation” of the applicant’s situation be sent to the Minister of Justice.
26.On 29 April 2010 the CDS noted that the Minister of Justice had not replied to its submission and that the applicant’s situation had worsened, in that he could no longer count on help from the German-speaking nurse A.W., who had left the Paifve EDS. The CDS continued:
“It follows from the report [from the psychosocial department] of 30 March 2010 that, except for occasional meetings with a social worker “who speaks German”, the detainee has no social contact in his language and that he has had no opportunity for several months to converse and to gain a fresh perspective in the outside world; the doctor and psychologist who signed this report do not seem particularly convinced by the completion of the ‘ongoing measures (taken) by the department to enable a German-language psychologist to intervene occasionally to provide care for the German-speaking patients in the EDS’;
Mr Rooman’s situation is frozen: an ill individual, he is detained in a prison medical institution where no one is able to provide the treatment to which he is entitled; the Minister and his departments are turning a deaf ear, with no concern for the despair to which this manifestly unjust attitude may give rise;
In spite of the unlawfulness of Mr Rooman’s detention, his health condition means that release cannot be envisaged unless it is accompanied by therapy and practical support;
The [Social Protection] Board has no powers, firstly, to restore the detainee’s basic rights, namely, the rights to liberty, to health care and to respect for his humanity, and secondly, to compel the Minister to put an end to this situation, which his administration has been fully aware of for more than six years.”
27.The CDS decided, while “remaining open to any proposals”, to leave the applicant’s situation unchanged; in other words, it rejected his application for release.
28.The applicant appealed against that decision to the Higher Social Protection Board (“the CSDS”).
29.In parallel, the applicant made an urgent application to the President of the Liège Court of First Instance, in order to have his detention declared unlawful and obtain his immediate release, or, alternatively, to obtain a decision ordering the Belgian State to provide him with the medical care required by his situation.
30.By an order of 12 May 2010, the president of the court held that he did not have jurisdiction, on the grounds that the CDS was the lawful body with power to release the applicant or decide on his continued detention.
31.On 27 May 2010 the CSDS upheld the CDS’s decision of 29April 2010 to maintain the applicant in detention. Unlike the CDS, the CSDS held that the applicant’s detention was perfectly legal, given that he had been lawfully detained and that he did not fulfil the conditions for definitive or conditional release. Under section 18 of the Social Protection Act, release could only be ordered if the detainee’s mental condition had improved sufficiently and if the conditions for his social reinsertion had been satisfied. However, this was not the situation here. The CSDS also considered that the mere fact that the applicant spoke only German did not mean that the authorities had not taken all the necessary steps to provide him with the treatment required by his condition.
32.The applicant appealed on points of law, alleging a violation of Articles 3 and 5 of the Convention.
33.On 8 September 2010 the Court of Cassation dismissed the appeal on points of law. In response to the argument alleging a violation of Article5 § 1 of the Convention, it held that legal reasons had been given for the CSDS’s decision and that it had been justified in law. It found:
“As preventive detention is primarily a security measure, the therapeutic action necessitated by such detention is not legally required in order for the detention to be lawful, even if its aim, secondary to that of protecting society, is to provide the detained person with the necessary treatment.
The social protection boards derive from section 14 (2) of the Act the power, rather than the obligation, to order, in a decision giving specific reasons, placement in an institution that is appropriate in terms of the security measures and the treatment to be given. It follows that execution of the preventive detention measure does not become unlawful solely because it is implemented in one of the institutions created by the government for that purpose, rather than in another institution specifically designated for the possible treatment it might provide.”
34.The argument alleging a violation of Article 3 of the Convention was declared inadmissible, since its examination would require a factual verification of the conditions in which the preventive detention was being conducted and such an examination fell outside the scope of the Court of Cassation’s jurisdiction. For the remainder, the Court of Cassation considered that the CSDS had replied to the applicant’s complaint in finding that the fact that he spoke only German did not mean that the relevant authorities had not taken all the necessary steps to provide him with the care he required.
D.The third application to the CDS for release
35.On 13 November 2013 the applicant again applied for release.
36.A report by the psychosocial department of the Paifve EDS, dated 13January 2014, reiterated that the applicant had a poor command of the French language, and spoke only a few words of French, which did not enable him to conduct a conversation; in consequence, he had very little contact with the other patients and members of staff. The report also referred to a single meeting between the applicant and a German-speaking psychologist in June 2010. The report noted an improvement in the applicant’s behaviour; he was apparently less aggressive and intolerant than before. Further, the applicant had never expressed a wish to meet members of the psychosocial team on a regular basis. The report concluded that he should remain in detention in the Paifve EDS, citing among other reasons his “untreated mental health problems”.
37.On 24 January 2014 the CDS noted, firstly, the content of the reports by DrRi., of 5 September 2005, and Dr Ro., of 21 January 2009, which stressed the need for psychopharmacological and psychotherapeutic treatment in a secure establishment, then in a closed institution, before an open facility could be envisaged. The CDS noted that, in the interim, the various attempts to find a solution to the language problem had not succeeded in bringing about a significant improvement in the applicant’s health: the rare outings accompanied by a German-speaking member of the prison staff had been abandoned when this employee, who was not replaced, became unavailable; attempts to find a German-language institution, doctor or therapist had met with failure; no follow-up seemed to have been given to the announcement that a minimum number of German-speaking staff were to be recruited, and the applicant had, of his own accord, declined the assistance of the German-speaking social worker with whom he had occasionally met. The CDS rejected the application for release on parole, finding that the conditions for release (an improvement in the applicant’s mental state and guarantees for his social rehabilitation) were not met. With regard to the alleged absence of treatment in German, the CDS specified:
“The detainee claims that he is not receiving the appropriate treatment for his mental health condition in German, his mother tongue, without however describing or even mentioning the treatment that he has allegedly been denied and that he would agree to accept or in which he would take part. The mere fact that he only speaks German does not mean that the Paifve social-protection facility has not taken all the necessary steps to provide him with the care his condition requires.
While, as the applicant points out in his submissions, it is for the relevant authorities to take all the necessary measures for his health, it is not, however, within the [Social Protection] Board’s powers to release a detainee who claims to be the victim of shortcomings on the part of the authorities...
Nor does the Board have jurisdiction to issue orders to the authorities or to third parties, [or] to penalise their actions or shortcomings ...”
38.On 3 April 2014 the CSDS upheld the decision by the CDS, finding, among other points:
“Contrary to what he alleges in his pleadings, the detainee receives all the treatment required by his condition, from competent and qualified staff in the Paifve EDS, and his specific medical needs are fully taken into account. In spite of the treatment given, the detainee’s mental condition has not yet improved sufficiently, on account of his paranoid and psychopathic character traits, his lack of self-criticism and his constant demand. The detainee is thus clearly wrong in attributing the lack of improvement in his mental condition to the language issue alone.
The continued preventive detention in a EDS that is adapted to his medical condition of an individual who would represent a danger to the public in the event of release, where his mental condition has not sufficiently improved and the conditions for his social rehabilitation are not met, is not unlawful and does not amount to a violation of the provisions of the [Convention].”
39.On 25 June 2014 the Court of Cassation quashed the decision by the CSDS on the grounds that it had not addressed the applicant’s argument that he was not receiving care appropriate to his situation, in view of the fact that he spoke and understood only German and that no German-speaking staff members were available in the facility where he was being held. The case was sent back to the CSDS with a differently constituted membership.
40.On 22 July 2014 the CSDS issued an interlocutory finding, requesting the CDS to appoint a group of German-speaking experts to update the psychiatric report of 21January 2009. It instructed the head of the Paifve EDS institution to take all the necessary measures to ensure that the requisite care was made available, by at least providing the services of a German-speaking psychiatrist and psychologist. It ordered that the case be reopened and scheduled a hearing for 17 October 2014.
41.The Court has not been informed of the progress of those proceedings.
E.The proceedings before the Brussels urgent-applications judge
42.In the meantime, on 28 March 2014 the applicant brought proceedings against the Belgian State before the President of the French-language Brussels Court of First Instance, as the judge responsible for hearing urgent applications in application of Article 584 of the Judicial Code. He asked for his release or, as a subsidiary measure, the imposition of the measures required by his state of health.
43.By an interlocutory order of 4 July 2014, the president of the court asked the head of the Paifve EDS and Dr B. from the psychosocial unit in that EDS to submit statements concerning the treatment available in the Paifve EDS and the treatment that had in fact been provided to the applicant.
44.Statements submitted by the head of the Paifve EDS and by Dr B. on 28August 2014 indicated that the applicant now had access to consultations with a German-speaking psychologist and that the authorities had made contact with a German-speaking psychiatrist who had agreed to meet the applicant.
45.In an order of 10 October 2014, the president of the court noted that, until September 2014, the applicant had never had access to a psychiatrist who could communicate with him in German. He had had access to a German-speaking psychologist, outside the EDS, between May and November 2010. He noted that the consultations with the psychologist had come to an end not, as alleged by the State in its pleadings, because the applicant no longer wished to attend them, but because of late payment by the Belgian State of the psychologist’s fees and expenses. The consultations with the psychologist had, however, resumed in July 2014. The president then noted that, until April 2010, the applicant had benefitted from the presence of and care provided by a German-speaking nurse, that that nurse had in the meantime left the Paifve EDS, but that since August 2014 he had been authorised to accompany the applicant on outings. Lastly, the order noted that the applicant had had contacts with a German-speaking social worker, but that he had declined the latter’s services in February 2014.
46.With regard to the main request, the president held that he did not have jurisdiction to order the applicant’s release, as only the social protection bodies had power to do so. With regard to the subsidiary request, the president noted that the applicant had not had access to the mental health treatment required by his condition, and that there was prima facie a violation of his right of access to health care. His situation amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. In consequence, the president ordered the Belgian State to appoint a German-speaking psychiatrist and medical auxiliary for the applicant, subject to a penalty in the event of non-compliance, and to put in place the care routinely provided to French-speaking detainees suffering from a mental illness similar to that of the applicant.
47.On the basis of the information produced, no appeal has been lodged against this order. According to the applicant’s representative, the Belgian State appointed a German-speaking psychiatrist and psychologist, who visited the applicant several times. However, these visits stopped at the end of 2015.
F.Claim for damages
48.In the meantime, on 2 May 2014 the applicant had filed a negligence claim against the Belgian State, on the basis of Article 1382 of the Civil Code.
49.By a judgment of 9 September 2016, the French-language Brussels Court of First Instance held the fact of having failed to provide the applicant with psychological treatment in his mother tongue between 2010 and 2014 to be negligent. It held, in particular:
“It is undeniable that the psychiatric and psychological treatment which [the applicant] must enjoy must be provided to him in German, the only language in which he is fluent and, moreover, one of the three national languages in Belgium.
However, between 2010 and 2014 [the applicant] received no medico-psychiatric treatment in his own language.
Whatever the quality – which is, indeed, undisputed – of the care provided to detainees in the Paifve [EDS], it is totally inappropriate for [the applicant’s] mental-health condition merely on account of the fact that it is not available in German.
In spite of the official and repeated denunciations of this situation by the Social Protection Board to the Belgian State since 2010, the latter has taken no steps to correct it. In addition, it has produced no evidence of the least action taken by it to that end.
This failure to act amounts to negligence within the meaning of Article 1382 of the Civil Code.
...
Moreover, and as [the applicant] also submits, Articles 3 and 5 [of the Convention] require the Belgian State to take the necessary measures to provide him with access to the basic care necessitated by his mental health.
...
In the present case, the applicant’s vulnerability on account of the very nature of his psychological disorder and the absence of any genuine possibility of contact in his language have necessarily exacerbated his feelings of distress and anxiety.
It is immaterial that, in any event, the [applicant’s] state of mental health does not allow for his release. The mere fact of having been detained for an indefinite period without appropriate care amounts in the present case to a violation of Articles 3 and 5 [of the Convention].
Contrary to the submissions of the Belgian State, the fact that [the applicant] is not always receptive to psychological, medical and social therapy does not allow for minimisation of the Belgian State’s negligent attitude towards a person who suffers from a mental disorder, whose discernment is, by assumption, uncertain.
By the same token, at the risk of setting aside the lived experience of the person suffering from a mental disorder, [the applicant’s] stable conduct within the institution does not suffice to establish that he received appropriate care for his condition.”
50.Finding that this absence of treatment had caused mental suffering to the applicant, the court ordered the State to pay him 75,000 euros (“EUR”), an amount assessed ex aequo et bono, in compensation for the period for the January 2010 to October 2014.
51.According to information provided on 19 June 2017 by his representative, the applicant was due to lodge an appeal against this judgment. He challenges the period accepted by the court and argues that the lack of treatment pre-dated 2010; he also complains about a lack of treatment in 2016 and the decision to award compensation ex aequo et bono rather than on a daily basis.

5.The applicant, Mr Piotr Budnik, is a Polish national who was born in 1980 and lives in Leszno.
The circumstances of the case
6.The facts of the case were not in dispute and may be summarised as follows.
1.The period of the applicant’s detention
7.The applicant was detained in Łowicz Prison from 27 January 2007 to 19April 2009 (2 years, 2 months and 22 days).
2.The conditions of the applicant’s detention
8.The applicant submitted that throughout his detention in Łowicz Prison he had been held in overcrowded cells in which the space per person had been below the Polish statutory minimum standard of 3 sq. m.
9.The domestic courts established, without giving any further details, that the applicant had been detained in overcrowded cells during various unspecified periods from 27 January 2007 to 19 April 2009. The overcrowding led to many quarrels between the prisoners as the tables did not have enough space for everybody.
10.The applicant was placed in a solitary confinement cell for fourteen days as part of a disciplinary measure, where the toilet was not separated from the living space.
11.In reply, The Government submitted that the applicant had been held in solitary confinement owing to a need to monitor his behaviour. The number of stools and beds in all cells matched the number of inmates. All the cells were equipped with ventilation and heating systems. The applicant was entitled to one hot shower per week and one hour of outdoor exercise per day.
3.Civil proceedings against the State Treasury
12.On 12 May 2009 the applicant, represented by a legal aid lawyer, brought a civil action over an infringement of his personal rights on account of the inadequate living conditions in Łowicz Prison from 27January 2007 to 19April 2009. The applicant argued that he had been detained in overcrowded cells with space that was below the statutory minimum. He claimed 100,000 Polish zlotys (PLN) (approximately 25,000 euros (EUR)) in compensation.
13.On 20 July 2012 the Łódź Regional Court (Sąd Okregowy) granted the applicant PLN 3,000 (EUR 750) in compensation and dismissed the remainder of his claim. The domestic court found that the applicant had been detained in overcrowded cells from 27 January 2007 to 19 April 2009. Moreover, he had been detained in a solitary confinement cell as a disciplinary punishment for fourteen days.
14.On 1 March 2013 the Łódź Court of Appeal (Sąd Apelacyjny) amended the above judgment, increased the compensation to PLN7,000 (approximately EUR1,750) and dismissed the remainder of the action.

1. The applicant, Mr Omar Mahamud Ahmed, is a Somali national, who was born in 1996 and at the time of the introduction of the application was detained in Safi Barracks detention centre.
2. He was represented before the Court Dr M. Camilleri and Dr K. Camilleri, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. The applicant entered Malta in an irregular manner by boat on 11 May 2013. Upon arrival, he was registered by the immigration police and given an identification number (13D-020). During the registration process the immigration authorities asked the applicant to provide his personal details including name, nationality and age. He informed them that he was born in 1996 and was therefore seventeen years old.
5. He was then presented with a Return Decision and a Removal Order and was detained at Safi Barracks.
6. Two weeks following the applicant ’ s arrival he was called in for an information session provided by the staff of the Office of the Refugee Commissioner. He was assisted in submitting the preliminary questionnaire thereby registering his wish to apply for asylum. He stated on the form that he had been born in 1996 and that therefore he was seventeen years old.
2. The applicant ’ s age-assessment procedure
7. On 14 May 2013, three people from the Agency for the Welfare of Asylum Seekers (hereinafter “ AWAS”) interviewed the applicant, in the presence of an interpreter. After the interview they informed him that as they could not confirm his age through the interview they would send him for an FAV test – that is to say an X-ray of the bones of the wrist. He was taken for the FAV test almost six weeks later, on 24 June 2013.
8. According to the documentation supplied by the Government from the FAV test it was concluded that the applicant ’ s approximate calculated bone age was fifteen at the time of the test. The results were approved on 11 July 2013 by a State hospital. This information was not given to the applicant at this stage. In the absence of a reply, and being unable to contact the AWAS, the applicant tried to draw their attention by different means, through the detention centre staff and NGOs, and even by refusing food.
9. On 16 September 2013, he was informed verbally by AWAS staff that he had been found to be a minor and that he would be released shortly.
10. Until the date of the lodging of the application (1 November 2013), that is to say more than five and a half months after his arrival in Malta, the applicant had not received a written decision informing him of the outcome of the age-assessment procedure and he was still in detention.
3. Latest developments
11. Given that there is a two-year margin of error in the FAV test, the date of birth of the applicant was established as 1 January 1996. The applicant was released from detention on 4 November 2013 after a care order had been issued.
12. The applicant ’ s last day of registration at the open centre for unaccompanied minors was 15 November 2013. Since the attempts by the Office of the Refugee Commissioner to contact the applicant failed, and on his part he no longer kept contact with that office, on 1 February 2014 the applicant ’ s asylum application was implicitly “withdrawn as discontinued”.
13. According to the Government the applicant absconded and was found in Sweden by the Swedish authorities. On 17 March 2014 the latter requested that the Maltese authorities take back the applicant and supply them with information concerning his claim that he was an unaccompanied minor. Although the Maltese authorities supplied the information, they do not have records as to whether the applicant was actually returned to Malta by the Swedish authorities.
14. By a letter of 24 July 2017 the applicant ’ s legal representatives informed the Court that the applicant had left Malta without informing them and that they had tried to contact him several times to no avail.

5.The applicant was born in 2001 and lives in Bucharest. His parents, C.I. and D.D., separated in April 2004 and divorced in September2004, mainly because of D.D.’s abusive behaviour towards his wife and their son. The applicant remained with his mother. On 27 February 2004 C.I. called the hotline of the Bucharest Child Protection Authority (Direcţia Generală de Asistenţă Socială şi Protecţia Copilului) to report the domestic abuse she and the applicant had been suffering at the hands of D.D. Since then, the case has been monitored by the Authority. On 7 October 2008 the Child Protection Authority certified that since 2004 it had included the applicant in a psychological counselling programme.
The Child protection Authority issued the following statement concerning the monitoring of the applicant’s case (on 29 August 2005 for the purpose of court proceedings):
“Mrs [C.I.] kept contact with our institution, the case being monitored by the Legal Counselling Service (legal counselling concerning eviction from home ...) as well as by the Service concerning emergency relocation and the Centre for Psychological Counselling for Parents.”
6.On 5 March, 16 April, 7 May and 30 June 2004 C.I. lodged complaints with the Bucharest Police about the alleged violence inflicted by her husband on the applicant. No action was taken on these complaints. On 1 July 2004 C.I. lodged a new complaint with the police concerning the alleged abuse. The police heard evidence from witnesses on behalf of the applicant and obtained information about the applicant’s situation from the centre where he and his mother had been relocated. Based on the evidence gathered, the police sent the file to the prosecutor’s office attached to the Bucharest District Court (“the prosecutor”).
7.On 1 November 2005 the prosecutor instituted a criminal investigation against D.D. It heard evidence from C.I., D.D. and sixwitnesses and examined the expert reports concerning the applicant’s and D.D.’s psychological evaluations. It concluded that the applicant had suffered trauma during his early childhood because of his father who had done everything he could to torment him and to make him suffer.
8.On 27 December 2007 the prosecutor indicted D.D. for abusive behaviour towards his son.
9.The Bucharest District Court heard evidence from a psychologist who had observed the applicant during therapy, from C.I. and other witnesses, as well as from D.D., the last mentioned denying having hurt his son. C.I. did not request damages on behalf of the applicant. In a decision of 9June2008 the court acquitted D.D. on the grounds that his occasionally inappropriate behaviour towards the applicant had not been severe enough to constitute a crime. This decision was upheld by the County Court on 19February2009, but on 19 June 2009 the Bucharest Court of Appeal quashed this latter decision and remitted the case to the County Court, as it considered that the lower courts should have heard evidence from the applicant and relied on the psychological reports.
10.On 14 December 2009 the County Court held a private hearing and interviewed the applicant. He told the judges how D.D. used to hit him, lock him in a small room without lights, throw water on him while he was sleeping and call him names. He stated that D.D. had often fought with his mother and that sometimes he had thrown the applicant’s maternal grandmother and aunt – who were bringing food to the child – out of their apartment. The applicant told the court that he did not want to live with D.D. or even meet him on the street. He was persuaded that D.D. would want to hurt him. He stated that he wished that D.D. would be punished for what he had done to him.
11.In a decision rendered on 22 December 2009 the County Court convicted D.D. of ill-treatment inflicted on a minor and sentenced him to a suspended penalty of four years’ imprisonment. It considered that the evidence in the prosecution file, in particular the psychological reports and the testimony given by a psychologist, confirmed that the child had suffered trauma as a consequence of his father’s abusive behaviour.
The court also noted that C.I. had not requested damages on behalf of the applicant (see paragraph 9 above). Based on Article 17 of the Code of Criminal Procedure (“the CCP”, see paragraph 24 below), the court, on its own initiative, awarded the applicant 20,000Romanian lei (RON) in respect of non-pecuniary damage.
12.Upon an appeal on points of law lodged by D.D., on 7April2010 the Bucharest Court of Appeal remitted the case to the County Court and ordered that court to obtain an expert examination of the applicant by the Forensic Medicine Institute.
13.On 26 April 2012 the County Court rendered a new decision. Based on the evidence before it, notably the expert evaluations, psychologist’s testimony, witness statements, as well as the parents’ and the applicant’s statements, the County Court considered it established that D.D. had physically and verbally abused his child from 2002 to 2004. It stated:
“The County Court notes that the acts perpetrated by [D.D.] cannot be considered as isolated and random acts of physical punishment which parents can administer to their minor children, but became more severe and caused childhood attachment troubles.”
14.D.D. was convicted of ill-treatment inflicted on a minor. He was given a suspended sentence of one year’s imprisonment; in addition, his right to be elected and his parental rights were suspended during the sentence and for two additional years.
15.When sentencing D.D., the court took into account the undue length of the criminal proceedings and that there had been significant periods of inactivity by the authorities involved, in particular by the investigators and the Forensic Medicine Institute.
16.No award of damages was made. The court did not give any explanation in its judgment as to why it decided not to award compensation to the applicant.
17.All parties appealed on points of law. Relying on Article 17 of the CCP (see paragraph 24 below), the applicant and the prosecutor complained notably about the fact that the County Court had not awarded damages.
18.The Bucharest Court of Appeal examined the parties’ submissions in the light of the evidence before it. It reaffirmed that D.D. had physically and verbally abused his child; his sentence was recalculated based on the same criteria, including the reduction as a remedy for the length of the trial. The court accordingly increased the sentence to three years’ imprisonment and suspended it. The additional penalty of restricting D.D.’s right to be elected and his parental rights was maintained.
19.The court further considered that in so far as both the prosecutor and the applicant had limited their initial appeals to solely the criminal aspects of the District Court’s decision of 9 June 2008, the County Court had been right in not awarding damages on its own initiative. The relevant part of the decision reads as follows:
“In so far as the prosecutor’s office and the injured party argued that the [County Court] should have examined the award of damages on its own initiative because the injured party was a minor, it is to be observed from the content of the decision under review that both the prosecutor’s office and the injured party had expressly limited their appeals to the criminal aspects of the case.
In this situation, the [County Court] was right in limiting its examination strictly to the issues brought before it.”
20.The Court of Appeal rendered its final decision on 1November2012 and rectified the text of the operative part on 22 November 2012.
A.Council of Europe
25.The Council of Europe through various conventions and implementing mechanisms as well as large-scale campaigns is fighting against domestic violence affecting children. In particular, children’s rights are specifically addressed in several articles of the European Social Charter, notably: Article 7 (the right of children and young persons to protection) and Article 17 (the right of children and young persons to social, legal and economic protection). The European Committee of Social Rights, which monitors the European Social Charter took note of the wide consensus at both the European and international level that corporal punishment of children should be expressly and comprehensively prohibited in law (Decision on the merits: Association for the Protection of All Children (APPROACH) Ltd. v. France, Complaint No.92/2013, 12September2014).
Romania ratified the Social Charter on 7 May 1999.
26.In his 2008 Issue Paper on “Children and corporal punishment: ‘The right not to be hit also a children’s right’”, the Council of Europe’s Human Rights Commissioner made a thorough analysis of the situation of domestic abuse against children and the progress made towards ending corporal punishment:
“Progress towards ending corporal punishment of children at global level
There is a global context for making quick progress: the key message of the United Nations Secretary General’s Study on Violence against Children, reported to the General Assembly in October 2006, is that no violence against children is justifiable; all violence against children is preventable. The Study urges all States to move quickly to prohibit all forms of violence against children – including all corporal punishment – setting a target of 2009.
‘The Study should mark a turning point – an end to adult justification of violence against children, whether accepted as ‘tradition’ or disguised as ‘discipline’. There can be no compromise in challenging violence against children. Children’s uniqueness – their potential and vulnerability, their dependence on adults – makes it imperative that they have more, not less, protection from violence.’
At present, globally, some 23 states have prohibited all corporal punishment, including in the family.
Progress towards ending corporal punishment of children in Europe
Though some progress has been made in efforts against corporal punishment, it is clear that this form of abuse has an alarming frequency and prevalence all over the world. Statistics show that it is a world-wide phenomenon which affects children irrespective of their country or social origin. The prevalence of corporal punishment has been substantiated by interview surveys conducted in a number of countries with parents, other carers and increasingly with children to determine more about why and how often corporal punishment occurs.
In its Recommendation 1666 (2004) calling for a Europe-wide ban on corporal punishment of children, the Parliamentary Assembly of the Council of Europe considered that
‘any corporal punishment of children is in breach of their fundamental right to human dignity and physical integrity. The fact that such corporal punishment is still lawful in certain member states violates their equally fundamental right to the same legal protection as adults. The social and legal acceptance of corporal punishment of children must be ended.’
Therefore the Recommendation called for a coordinated and concerted campaign for the total abolition of corporal punishment of children. Noticing the success of the Council of Europe in abolishing the death penalty, it called for Europe to become, as soon as possible, ‘a corporal punishment-free zone for children.’
The Committee of Ministers of the Council of Europe has for more than 20years encouraged Member States to prohibit corporal punishment. It started in 1985 with a Recommendation of which the preamble notes that ‘the defence of the family involves the protection of all its members against any form of violence, which all too often occurs among them’. The explanatory memorandum describes corporal punishment as “an evil which must at least be discouraged as a first step towards outright prohibition. It is the very assumption that corporal punishment of children is legitimate that opens the way to all kinds of excesses and makes the traces and symptoms of such punishment acceptable to third parties”. This condemnation was echoed in further recommendations in 1990 and 1993. The Committee of Ministers has insisted on the need to begin, in all Member States, a coordinated and concerted campaign for the abolition of all violence against children.
Therefore, in order to pursue that objective, it announced a comprehensive three‑year programme of action on “Children and Violence” with the following objectives:
- assist member states in implementing international standards at national and local levels, in particular the United Nations Convention on the Rights of the Child, the European Social Charter and the European Convention on the Exercise of Children’s Rights;
- by 2008, to propose a coherent and comprehensive set of instruments and methodological guidelines covering all aspects of the question;
- improve the visibility and the impact of Council of Europe’s work in the field.
...
Conclusions
The imperative for removing adults’ assumed rights to hit children is that of human rights principles. It should therefore not be necessary to prove that alternative and positive means of socializing children are more effective. However, research into the harmful physical and psychological effects of corporal punishment in childhood and later life and into the links with other forms of violence do indeed add further compelling arguments for banning the practice and thereby breaking the cycle of violence.”
27.Furthermore, the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) requires States Parties to prevent violence against women, protect victims and prosecute the perpetrators. It introduces a number of criminal offences for physical, sexual and psychological violence for which more severe sentences are required when the offence is committed against or in the presence of a child.
On 27 June 2014 Romania signed that convention with reservations and on 1 September 2016 the Istanbul Convention entered into force with respect to the Respondent State.
28.The Recommendation CM/Rec(2009)10 of the Committee of Ministers of the Council of Europe to Member States on integrated national strategies for the protection of children from violence, adopted by the Committee of Ministers of the Council of Europe on 18November2009, emphasises that “children’s fragility and vulnerability and their dependence on adults for the growth and development call for greater investment in the prevention of violence and protection of children on the part of families, society and the State”.
29.On 17 November 2010 at the 1098th meeting of the Ministers’ Deputies, the Committee of Ministers adopted Guidelines on child-friendly justice (CM/Del/Dec(2010)1098/10.2). It reiterated that the best interest of children must be a primary consideration in all matters involving or affecting them and that justice must be adapted to and focused on the needs and rights of the child, including his or her right to respect for his or her physical integrity and dignity. The guidelines recognise the children’s right to legal counselling and to expeditious proceedings.
B.United Nations
30.The United Nations Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution44/25 of 20 November 1989, also recognises the children’s right to be protected from domestic abuse and urges States to put in place adequate procedures and mechanisms to deal with the matter (Article 19):
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.”
31.The relevant part of General Comment no. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia) adopted by the Committee on the Rights of the Child at its forty-second session held from 15 May to 2 June 2006, reads as follows:
“40.The principle of equal protection of children and adults from assault, including within the family, does not mean that all cases of corporal punishment of children by their parents that come to light should lead to prosecution of parents. The de minimis principle – that the law does not concern itself with trivial matters – ensures that minor assaults between adults only come to court in very exceptional circumstances; the same will be true of minor assaults on children. States need to develop effective reporting and referral mechanisms. While all reports of violence against children should be appropriately investigated and their protection from significant harm assured, the aim should be to stop parents from using violent or other cruel or degrading punishments through supportive and educational, not punitive, interventions.
41.Children’s dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with very great care. Prosecuting parents is in most cases unlikely to be in their children’s best interests. It is the Committee’s view that prosecution and other formal interventions (for example, to remove the child or remove the perpetrator) should only proceed when they are regarded both as necessary to protect the child from significant harm and as being in the best interests of the affected child. The affected child’s views should be given due weight, according to his or her age and maturity.
42.Advice and training for all those involved in child protection systems, including the police, prosecuting authorities and the courts, should underline this approach to enforcement of the law. Guidance should also emphasize that article 9 of the Convention requires that any separation of the child from his or her parents must be deemed necessary in the best interests of the child and be subject to judicial review, in accordance with applicable law and procedures, with all interested parties, including the child, represented. Where separation is deemed to be justified, alternatives to placement of the child outside the family should be considered, including removal of the perpetrator, suspended sentencing, and so on.”
32.On 18 April 2011 the UN Committee on the Rights of the Child issued a general comment on the right of the child to freedom from all forms of violence giving an overview of the instances of violence in children’s lives and a comprehensive legal analysis of Article 19 of the UN Convention on the Rights of the Child (General Comment No. 13 (2011)). It affirmed that no form of violence against children, however light, could be tolerated, including in the familial sphere, and reiterated the States’ obligation to prevent violence and protect child victims. The Committee further reiterated that corporal punishment, as defined in its general comment No. 8, however light, was also banned. The relevant parts read as follows:
“17.No exceptions. The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. “All forms of physical or mental violence” does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child’s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable.
...
24.Corporal punishment. In general comment No. 8 (para. 11), the Committee defined “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding, or forced ingestion. In the view of the Committee, corporal punishment is invariably degrading. Other specific forms of corporal punishment are listed in the report of the independent expert for the United Nations study on violence against children (A/61/299, paras. 56, 60 and 62).
...
41.State parties that have not yet done so must:
...
(d)Review and amend domestic legislation in line with article 19 and its implementation within the holistic framework of the Convention, establishing a comprehensive policy on child rights and ensuring absolute prohibition of all forms of violence against children in all settings and effective and appropriate sanctions against perpetrators;
...
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. In particular, the Committee maintains that the best interests of the child are best served through:
(a)Prevention of all forms of violence and the promotion of positive child-rearing, emphasizing the need for a focus on primary prevention in national coordinating frameworks;
(b)Adequate investment in human, financial and technical resources dedicated to the implementation of a child rights-based and integrated child protection and support system.”
33.The Special Representative of the Secretary General of the UN on violence against children actively participates in programmes and activities aimed at tackling the issue of domestic violence against children, to name the most recent: support to the Panama Declaration on Ending Violence against Children adopted by over five hundred faith leaders from 70countries at the 5th Forum of the Global Network of Religions for Children in May 2017; participation in 2015 in the study and report “Counting Pennies”, reviewing Official Development Assistance (ODA) allocations to end violence against children; global survey to help map and assess progress in the implementation of the 2006 UN Study recommendations on ending violence against children, and set future priorities.
34.In December 2013 UNICEF launched the initiative #ENDviolence which builds on growing public consensus that violence against children can no longer be tolerated and that it can only be stopped by the collective efforts of ordinary citizens, policymakers, governments and international stakeholders. In this context, in September 2014 UNICEF launched the report “Hidden in Plain Sight”, consisting of statistical data on violence against children and which aims to show the extent of physical, sexual and emotional abuse to which children are exposed all over the world. According to UNICEF, the statistical data gathered over two decades provided evidence that countries need to develop effective policies, legislation and programmes to address violence. Relevant in this campaign is also UNICEF’s report “Ending violence against children: six strategies for action”, also launched in September 2014, in which UNICEF proposed the main tools to enable society as a whole, from families to governments, to prevent and reduce violence against children. The strategies developed include supporting parents and equipping children with life skills; changing attitudes; strengthening judicial, criminal and social systems and services; and generating evidence and awareness about violence and its human and socio-economic costs, in order to change attitudes and norms.
C.European Union
35.The European Union’s Victims’ Directive (2012/29/EU) reiterates that children’s best interests must be a matter of primary consideration and urges States to implement a child-sensitive approach, taking due account of the child’s age, maturity, views, needs and concerns. It regulates the right to compensation in the following terms:
Article 4
Right to receive information from the first contact with a competent authority
“1.Member States shall ensure that victims are offered the following information, without unnecessary delay, from their first contact with a competent authority in order to enable them to access the rights set out in this Directive:
...
(e) how and under what conditions they can access compensation;
...”
Article 16
Right to decision on compensation from the offender in the course of criminal proceedings
“1.Member States shall ensure that, in the course of criminal proceedings, victims are entitled to obtain a decision on compensation by the offender, within a reasonable time, except where national law provides for such a decision to be made in other legal proceedings.
2.Member States shall promote measures to encourage offenders to provide adequate compensation to victims.”

5.The applicant was born in 1968 and is currently detained in Jēkabpils Prison. He is a person with special needs. The applicant is deaf and mute since birth and his knowledge of sign language is poor.
6.At least as of 2 March 2001, when his disability was certified as permanent, the applicant has been recognised as being category 3 disabled (the least severe level of disability). On an unspecified date his disability was re-categorised as category 2 (medium level of disability).
A.The applicant’s conviction and detention
7.On 7May 2008 the applicant was convicted of aggravated murder and sentenced to fifteen years and six months’ imprisonment. That judgment became final on 24February 2009. He started serving his sentence in the most restrictive “lower” regime in Liepāja Prison.
1.Detention in Brasa Prison
8.On 23December 2011 the applicant was transferred to Brasa Prison. He was placed in the medium regime as he had served one quarter of his sentence. He was held in cell no. 301 (from 1 January 2012 to 26February 2013) and cell no. 303 (from 26 February to 30 October 2013).
9.On 30 October 2013 the applicant was placed in the most restrictive “lower” regime. He was held in cell no. 203 (from 30 October 2013 until 16February 2015).
10.On 24 February 2016 the applicant was placed in the least restrictive “higher” regime. It appears that as of that date he was held in three different multi-occupancy cells. The number of his cellmates varied from two to fourteen. Each inmate had no less than 4 sq. m of living space in those cells.
2.Conditions of detention
11.According to the applicant, he was held in dormitory‑type cells nos.301, 303 and 203 together with other inmates, all of whom were in good health except for the applicant. The applicant’s submissions as to the overall surface area in those cells as well as the size of the sanitary facilities were consistent with the Government’s submissions (see paragraph13 below). His account of the number of inmates was slightly different – he alleged that he had been held together with ten to twenty inmates in cells nos. 301 and 303. However, as concerns cell no. 203 he agreed with the Government – six inmates had been held in that cell.
12.The applicant submitted that the heating had not been sufficient in those cells. He had been neither able to communicate with other inmates, nor with the prison management due to his disability. He had been in social isolation and had not received any special assistance.
13.According to the Government, the applicant was held in three different cells, the conditions of which are detailed in the table below. The calculation of personal space (overall surface area with the in-cell sanitary facility deducted, divided by number of inmates held therein) is based on an approximate measurement of the sanitary facility according to the floor plans of Brasa Prison.
Cell no.
Period of detention
Total number of inmates
Overall surface area in sq. m
Sanitary facility sq. m
Personal space in sq. m
301
01.01.2012- 26.02.2013
12
36
3.15
2.74
303
26.02.2013-30.10.2013
8
29
2.73
3.28
203
30.10.2013-16.02.2015
6
20
1.48
3.09
14.As regards out-of-cell activities, the Government indicated that while being held in the medium regime – in cells nos.301 and 303 – the applicant had been able to freely leave those cells in daytime and to use the common area. The Government further submitted that cell no.301 had been equipped with one window. That window had been fitted with bars and had been placed in a wall (adjacent to a corridor) facing another window (in the corridor). This cell had had three fluorescent lamps, including one night lamp located above the door. Heating had been provided by one heating pipe of 5 cm in diameter and the heaters located in the adjacent corridor and in the hallway. A new automatic boiler had been installed in Brasa Prison, which had ensured a temperature of 18˚C. Heating arrangements in cell no.303 had been the same as in cell no. 301.
15.While being held in the most restrictive “lower” regime – in cell no.203 – the applicant had been able to leave this cell only for a daily walk (one hour), to take a shower or for appointments with a doctor, a prison chaplain or a social worker when necessary.
16.Overall, inmates in Brasa Prison had had access to a psychologist, but the applicant had never availed himself of this possibility. He had, however, met with a prison chaplain and a social worker on several occasions. The Government provided records of three conversations between the applicant and a social worker in 2016, including a meeting on 11April 2016 where the latter had called a non-governmental organisation (Latvijas Nedzirdīgo Savienība) concerning the applicant’s hearing aid. Lastly, the applicant had visited a psychiatrist at least on six occasions in the time period from 1April 2015 to 7 September 2016.
3.State of the applicant’s health
17.On 27 December 2011 the state of the applicant’s health was examined for the first time in Brasa Prison. It was noted that the applicant was deaf and mute and that he suffered from spondylosis.
18.The applicant submitted an extract of his medical record in Brasa Prison. According to that document (dated 26 July 2016), he had been deaf since birth. On 13 August 2009 a psychiatrist had detected a psychiatric health condition (psihiskas veselības problēmas), namely, “reaction to situations with anxiety” (situācijas reakcija ar trauksmi). On 21January 2010 the same psychiatrist had detected another sleep-related condition. On 10December 2015 another psychiatrist diagnosed the applicant as having “organic personality disorder” (organiski personības traucējumi).
19.The Government submitted another extract of the applicant’s medical record in Brasa Prison. According to that document (dated 7April 2015), upon admission to Brasa Prison the applicant had been diagnosed as being deaf and mute and having spondylosis. During the above-mentioned period the applicant had consulted prison medical staff on thirty‑nine occasions. He had been examined, treated and provided with medication when necessary. No serious health conditions, which would have required an in‑depth examination, had been diagnosed. There had been no indications that outpatient examination or treatment had been necessary. The applicant had most often complained of colds, headache, poor sleep, gastritis and back pain related to spondylosis. Those complaints had not concerned his disability. In 2013 and 2014 the prison medical staff had organised an outpatient medical examination (in relation to tuberculosis) and a consultation by an ophthalmologist to obtain glasses. On 1April 2015, upon the request of the Prisons Administration (Ieslodzījuma vietu pārvalde), the applicant’s state of health had been examined. It had been satisfactory, he had not had any complaints and he had gained weight while in prison. In sum, his health had not deteriorated.
B.Review of the applicant’s complaints
1.Complaints examined by prison authorities
20.Over the course of two years (2012-14) the applicant lodged some twenty‑five handwritten complaints with various institutions (the management of Brasa Prison, the Prisons Administration, the Ministry of Justice and the Ministry of the Interior).
21.He informed the authorities that he had been deaf and mute since birth and complained as follows:
1)he had communication problems and conflicts with other inmates (he referred to “conflicts”, having been “influenced”, “offended” and “laughed about” by other inmates);
2)he wished to be transferred to a single or dual-occupancy cell;
3)he wished to be transferred to another prison;
4)he wished to have his prison regime changed;
5)his conditions of detention were inadequate and
6)his medical care was inadequate.
22.His complaints were examined by the Prisons Administration, save for three of them that were examined by the management of Brasa Prison.
23.The following conclusions were made:
(1)There had been no real threat to the applicant’s life or health in Brasa Prison. He had not been subjected to psychological harassment. His complaints to the management of Brasa Prison had not concerned any threats from other inmates.
(2)The applicant did not have a subjective right to choose his cell or cellmates. It fell within the competence of the management of Brasa Prison. There was a limited number of cells with a capacity of four inmates and those inmates could not be moved for security reasons.
(3)The decision concerning the applicant’s transfer to another prison had to be taken by the Prisons Administration. Taking into account that the applicant’s state of health had permitted his placement in any prison, there had been no grounds to transfer him to another prison; he had had to continue serving his sentence in Brasa Prison.
(4)The possibility of his transfer to the most lenient prison regime could not be examined before 10 June 2015, when he would have served the relevant proportion of his prison sentence. As to the possibility of his transfer back to the more restrictive prison regime such actions could only be taken in cases of serious or systematic breaches of the prison regime.
(5)The conditions in cell no. 301 had been adequate. It had measured 36sq.m. Natural and artificial lighting as well as heating had been sufficient. The temperature in cell had been 18˚C.
The conditions in cell no.303 had been similar to cell no. 301 – lighting and heating had been adequate.
The conditions in cell no. 203 had been adequate. According to the Prisons Administration and the relevant floor plans that cell had measured 19.86sq.m (including 1.87 sq. m for sanitation facilities). Besides the applicant, it had accommodated five other inmates. A reference was made to the Court’s case-law and the applicable domestic standard of 2.5 sq.m per male inmate. The temperature in the cell had been 18˚C.
(6)The applicant’s medical care had been carried out in accordance with domestic law. He had received the necessary medication in response to his complaints. He had never complained to prison doctors of “neurological diseases”, “noises” or “fears”, but he had had at least one consultation with a psychiatrist. In any event, he had been able to complain of the quality of medical care in prison to the Health Inspectorate.
2.Complaints to the administrative courts
24.On 1October 2012 a judge of a first-instance court refused to allow the applicant’s application to be transferred to another prison and to have his prison regime changed to a more restrictive one, a request made by the applicant in order to allow him to be held in a cell with a smaller number of inmates. Those issues fell within the realm of criminal law and could not be examined by the administrative courts.
25.On 25October 2012 another judge refused to allow the applicant’s application to be transferred to another prison and to be relieved from the obligation to continue serving his sentence. As concerns his transfer, reference was made to the decision by the Prisons Administration whereby a conclusion had been drawn that the Administrative Procedure Law had not applied. As concerns judicial review of that decision, such a complaint had already been examined (see paragraph 24 above). As concerns the release application, it fell within the realm of criminal law; this issue could thus not be examined by the administrative courts.
26.The applicant attempted to appeal against the above-mentioned refusals, but his appeal did not appear sufficiently clear. Accordingly, on 21November 2012 another judge decided not to proceed with his appeal (atstāt bez virzības), asking the applicant to render it more precise.
27.On 10 December 2013 another judge examined further complaints by the applicant. His application to be transferred to a more lenient prison regime and another prison were refused because such complaints had already been examined (see paragraphs 24-25 above). His complaint about insufficient heating in Brasa Prison did not appear sufficiently clear; the judge decided not to proceed with it, asking the applicant to render it more precise. As the applicant did not provide further information, the latter complaint was considered as not submitted (uzskatīt par neiesniegtu).
28.On 2 April 2014 the applicant complained to the administrative courts that the Prisons Administration had extended the time-limit for its last reply. On 29 May 2014 a judge terminated the administrative proceedings in this connection since the Prisons Administration had issued its decision in the meantime.
C.Events subsequent to the communication
29.On 31 August 2016 a panel in Brasa Prison examined the possibility of the applicant’s transfer to a more lenient prison regime. The applicant and a sign-language interpreter were present. It was established that the applicant had been working in prison until 18 December 2015; he had stopped working owing to his state of health. He had a category 2 disability. He had completed secondary education but had not pursued his education further owing to being deaf and mute and needing a specialised learning programme. He had been working with an officer and a social worker for rehabilitation purposes. He had regularly visited a chaplain in prison; however, he had not met with a psychologist. He had participated in addiction recovery meetings. He had dedicated his free time to himself. He had received three positive citations (pamudinājums) from the prison management.
30.A conclusion was drawn that the applicant had participated in nearly all the rehabilitation activities provided in the prison taking into account his capabilities. Therefore it was possible to transfer him to a more lenient prison regime in a partly closed prison.
31.On 7 September 2016 the applicant was transferred to a partly closed prison in Jēkabpils, where he was held in a cell with two other inmates. One of them had a similar hearing impairment.
A.Relevant international documents
32.The relevant parts of the United Nations Convention on the Rights of Persons with Disabilities, ratified by Latvia on 1 March 2010, have been outlined in Grimailovs v. Latvia (no. 6087/03, § 78, 25 June 2013).
33.The relevant parts of the Interim Report of 28 July 2008 (A/63/175) by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment have been outlined in the above-cited Grimailovs case (ibid., § 79).
B.Relevant domestic law
34.The Administrative Procedure Law (Administratīvā procesa likums), which came into force on 1 February 2004 provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts. The relevant provisions of that Law have been summarised in the case of Melnītis v. Latvia (no. 30779/05, §§24‑26, 28February 2012).
C.Domestic reports
35.In his annual report dedicated to human-rights issues in Latvia for the year 2013, the Ombudsman (Tiesībsargs) noted that inmates, including those in Brasa Prison, most commonly complained of conditions of detention (overcrowding, lack of ventilation, insufficient access to natural light, insufficient separation of sanitation facilities, unsanitary conditions in showers and toilets). He noted that he had issued recommendations to the competent domestic authorities in previous years in this connection. Nevertheless, inmates had continued to submit complaints concerning detention conditions; these conditions had not substantially improved. He recounted that in 2013 he had completed an on-site visit of Brasa Prison, which had been started in 2012. While he did not describe the results of that visit in full, he noted that his most important recommendation to the competent domestic authorities had concerned insufficient access to natural light, insufficient separation of sanitation facilities and ventilation in cells, as well as the number of inmates per cell.

5.The applicant was born in 1993 and is detained in Jēkabpils. On 9February 2011 he reached the age of majority.
A.The applicant’s trial and the alleged ill-treatment
6.The applicant (who was a minor at the time of the criminal trial) and his co-accused, V.P., P.V. and F.Č., were charged with the aggravated murder of a fifteen-year-old girl, and the intentional destruction of property. The case was heard in May 2010 by the Riga Regional Court (Rīgas apgabaltiesa). The applicant pleaded “partially guilty” (vainu atzīst daļēji). He was held in detention on remand in Riga Central Prison (Rīgas centrālcietums) and was transported to the Riga Regional Court for the hearings.
7.The applicant submits that on the trial days, that is to say on 20, 21, 24 and 25May 2010, in the holding area in the basement of the Riga Regional Court, he was insulted and physically assaulted by the detainee escort officers to make him confess to the crimes. He was made to perform different exercises, such as a “wall-sit” exercise, push-ups and a “duck walk” (walking slowly in a squatting position). While the applicant was performing the exercises he received blows to the back with a rubber truncheon. The applicant submits further that the escort officers assaulted him before and after the hearings and during the breaks. They beat him on different parts of the body. During the beatings they expressed their opinion regarding the criminal proceedings and manifested a negative and belittling attitude towards him. They also threatened to kill or mutilate the applicant if he did not plead guilty. Having been psychologically broken and without having consulted his lawyer, during the hearing of 25May 2010 the applicant admitted his guilt and refused to testify.
8.On 26May 2010 the applicant’s mother visited him in Riga Central Prison. On the following day the applicant’s mother, acting as his representative, lodged a complaint with the prosecution service. She stated that the escort officers had kicked her son on his body, arms, legs and head, and that he had shown her many bruises. She requested the prosecution service to institute criminal proceedings in respect of these events. On 31May 2010 the prosecution service forwarded the complaint to the Riga regional division of the State Police. On 2June 2010 the applicant’s mother lodged a similar complaint with the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs – hereinafter “the Internal Security Office”) (see paragraph17 below).
9.On 26May 2010 employees of the Ombudsman’s Office visited the applicant in Riga Central Prison. On the following day the Ombudsman wrote a letter to the Internal Security Office stating that the applicant had alleged that the escort officers had assaulted him. He had borne traces of the alleged violence – a haematoma on his side and abrasions on his arm and legs. The Ombudsman requested the Internal Security Office to examine the actions of the escort officers. He informed the Riga Regional Court about this letter.
10.On 27May 2010 the applicant’s lawyer visited him in Riga Central Prison. Following the meeting, the applicant’s lawyer lodged a complaint with the prosecution service. He stated that between 20 and 25May 2010 the applicant had been beaten by the detainee escort officers in order to make him confess to the crime. The applicant had shown him his injuries. As a result of this coercion at the hearing on 25May 2010 the applicant had admitted his guilt, contrary to his defence position. The applicant’s lawyer requested the prosecution service to institute criminal proceedings in respect of these events. On 2June 2010 the prosecution service sent the complaint to the Riga regional division of the State Police.
11.At a hearing on 28May 2010 the applicant stated that on all four trial days he had been assaulted, as a result of which he had admitted his guilt. He maintained his earlier plea of “partially guilty”. Moreover, the applicant’s co-accused also stated that they had been assaulted. The applicant’s lawyer stated that the applicant had a black eye and that he had been hit on his head. He argued that the applicant was unable to testify. The judge adjourned the hearing in order to request information from Riga Central Prison on the applicant’s and his co-accused’s state of health.
12.On 28May 2010 Riga Central Prison faxed to the Riga Regional Court a copy of a medical certificate issued after the applicant had been medically examined on 26May 2010. The handwritten medical certificate, dated 26May 2010, provided to the Court by the Government stated that the applicant had the following injuries: wounds on his lower legs and on the right hand “in the typical area”; a haematoma on the left forearm; and a haematoma on the right side. The applicant had stated that he had been beaten with a truncheon while being escorted on 20,21 and 24May. The Government also provided a typewritten report, dated 14June 2010, from Riga Central Prison. According to the report, the applicant’s state of health on 26 May 2010 had been satisfactory; he had had several injuries covered by scabs on his lower legs; injuries covered by scabs on the “typical area” of the right hand caused by the use of handcuffs; a haematoma four centimetres in diameter on his left forearm; and a haematoma six centimetres in diameter in the “phase of absorption” on the right side in the area of the kidney.
13.At a hearing on 29 May 2010 the applicant stated that he was unable to testify because he had a headache. His lawyer argued that the applicant’s medical examination had been superficial. The prosecution was of the view that the applicant was seeking to delay the proceedings. The judge decided to proceed with the trial. The same day the Riga Regional Court found the applicant and his co-accused guilty and sentenced him to ten years’ imprisonment. The applicant and his mother lodged appeals indicating inter alia that the applicant had been assaulted by the escort officers. The case was forwarded to the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta).
14.At a hearing on 30 January 2013 the prosecution informed the appellate court that the criminal investigation in relation to the applicant’s “bodily injuries” had been terminated, that that decision had taken effect and that no appeal had been lodged against that decision. The relevant material was included in the case file. At a hearing on 9 December 2013 the applicant admitted his guilt in full and asked the court to review his conviction only in so far as it concerned his sentence.
15.On 11December 2013 the Criminal Chamber of the Supreme Court upheld the applicant’s conviction, but reduced his sentence to nine and a half years’ imprisonment. In setting the sentence the court took into account that the proceedings before it had included a period of inactivity of more than one year and thus had lasted for unreasonably long time.
16.On 29 October 2014 the Supreme Court with a final decision dismissed the applicant’s appeal on points of law.
B.Initial inquiry
17.As submitted by the Government, on 7June 2010 the Internal Security Office instituted an internal inquiry. It requested the applicant’s medical records from Riga Central Prison. On 18June 2010 the Internal Security Office, referring to the complaint lodged by the applicant’s mother (see paragraph 8 above), sent a copy of the file to the Riga regional division of the State Police for it to decide on the lawfulness of the actions of its employees. The Internal Security Office stated that the file did not indicate that the escort officers had committed a criminal offence.
18.On 28June 2010 the applicant lodged a complaint with the Internal Security Office regarding his alleged ill-treatment, stating that he would be able to identify the alleged perpetrators. The Internal Security Office sent the complaint to the Riga regional division of the State Police.
19.On 3 August 2010 the Riga regional division of the State Police, terminated the internal inquiry. It noted that according to the medical documentation concerning the applicant provided by Riga Central Prison the applicant’s state of health on 26 May 2010 had been satisfactory. He had had several wounds on his lower legs covered by scabs; wounds on the right hand covered by scabs, caused by the use of handcuffs; a haematoma four centimetres in diameter on his left forearm; and a haematoma six centimetres in diameter “in the phase of absorption” on the right side. The Riga regional division of the State Police noted the injuries found on V.P. At the same time, there had been no visible injuries found on P.V. or F.Č. According to explanations (paskaidrojumi) obtained from sixteen officers, neither the applicant nor his co-accused had been assaulted. The Riga regional division of the State Police concluded that the information gathered did not indicate that the officers had committed a disciplinary offence. It returned the file to the Internal Security Office.
20.On 11 August 2010 the Internal Security Office refused to institute criminal proceedings in view of the fact that the constituent elements of the offence of “exceeding official authority” under section317(2) of the Criminal Law (Krimināllikums) were lacking in the officers’ actions. The applicant’s mother appealed against this decision.
21.On 26August 2010 the prosecution service found that the Internal Security Office had based the impugned decision on an inquiry conducted by another institution of the State Police and medical documentation provided by Riga Central Prison. It was necessary to question the applicant and his co-accused regarding the circumstances of their transportation and to find out whether any of the employees of Riga Central Prison had seen injuries on them prior to and after their transportation and whether any of the employees had received any complaints from them in this regard. It was also necessary to find out whether between 20 and 25May 2010 or earlier the applicant or his co-accused had been involved in any kind of conflict in the prison as a result of which they could have sustained the injuries. The prosecution service referred the case back to the Internal Security Office.
22.In reply to a request from the Internal Security Office, on 22October 2010 Riga Central Prison provided information that prison employees who had between 20 and 25May 2010 searched (pārmeklēt) the applicant and his co-accused each time prior to and after their being transported had not seen any injuries on them. The applicant and his co-accused had not made any complaints. There were no records showing that between 1 and 26May 2010 they had been involved in any conflicts in the prison. On 5November 2010 the Internal Security Office obtained explanations from the applicant and his co-accused, who maintained that the escort officers had assaulted them. As regards the daily physical security checks that they had undergone in the prison, they stated that prison employees had not asked them to undress. Therefore their injuries had remained undetected.
23.On 10November 2010 the Internal Security Office again refused to institute criminal proceedings, stating that the information gathered during the additional inquiry did not indicate that the officers had committed any offence under section317(2) of the Criminal Law. The applicant’s mother appealed against this decision.
24.On 17December 2010 the prosecution service quashed the decision as it had been based on an incomplete inquiry. It instructed the Internal Security Office to question the persons with whom the applicant and his co‑accused had shared cells between 20 and 25May 2010 and to obtain information regarding breaks during the trial days on which the applicant and his co-accused had allegedly been assaulted. It was also necessary to question further the escort officers.
25.On 29November 2011 the Internal Security Office obtained information from Riga Central Prison regarding the applicant’s and his co‑accused’s cellmates. In December 2011 and January 2012 it took explanations from them. According to the applicant’s cellmate, A.D., the applicant had told him that the escort officers had assaulted him and his co‑accused. He had shown him marks left by the beatings. It was difficult for A.D. to recall details as a long time had passed. Between 19and 30January 2012 the Internal Security Office questioned the escort officers, who stated that they had not assaulted the applicant or his co-accused.
26.On 31January 2012, for the third time, the Internal Security Office refused to institute criminal proceedings, stating that the information gathered during the additional inquiry did not indicate that the officers had committed any offence under section317(2) of the Criminal Law. The applicant’s mother appealed against this decision.
27.On 22February 2012 the prosecution service quashed the decision. It considered that the Internal Security Office had not clarified the contradictions between the statements of the applicant and his co-accused on the one hand, and the statements of the escort officers on the other hand, and the circumstances in which the applicant and V.P. had obtained the injuries established on 26May 2010. In view of the information gathered during the internal inquiry it was possible that above-mentioned offence under section317(2) of the Criminal Law had been committed. Accordingly, the prosecution service instituted criminal proceedings and returned the file to the Internal Security Office for further investigation. On 23 February 2012 the prosecution service informed the applicant’s mother that the criminal proceedings had been instituted.
C.Criminal investigation
1.Investigative steps and closure of the investigation
28.Between 29February and 21March2012 the Internal Security Office questioned as witnesses fifteen escort officers, who gave largely the same statements. They had not beaten the applicant or his co-accused. They explained that officers wore belts which they never removed because handcuffs, truncheon, gun, pepper spray and gun belt were attached to them. They could not give more detailed statements as a long time had passed since the events. One escort officer, M.S., who was questioned as a witness on 11April2012, stated that he had seen bruises on the applicant and his co-accused during their personal search in the court building. M.S. had thought that they had been beaten in the prison. The escort officers had not assaulted them.
29.On 20 March 2012 an inspector of the Internal Security Office questioned one of the applicant’s co-accused, V.P., as a witness.
30.V.P. stated that on the first trial day the escort officers had made him perform push-ups and a “duck walk”, during which two escort officers had hit him on his back, abdomen, legs and chest with their legs, fists, a belt and truncheons. The escort officers had also beaten the applicant, who had been next to him. The officers had placed V.P. in a holding cell, and after some time they had escorted him to the court room.
31.P.V. and F.Č., the applicant’s co-accused, stated that on the second trial day the escort officers had made them perform push-ups and a “duck walk”. While they had been performing the exercises the escort officers had beaten them. P.V. had been hit during a break by two escort officers with a black belt on his back ten to twelve times. F.Č. had been hit by one escort officer on his back and legs approximately ten times. He had also been hit on his buttocks with a belt twenty to thirty times.
32.P.V. had heard the applicant screaming. On the way back to the prison the applicant had told P.V. that he had been beaten; later, in the prison, he had shown him two bruises on his chest. After the occurrence of the alleged beating had been raised during the trial P.V. had been examined by a prison doctor. He had had no injuries.
33.V.P., P.V. and F.Č. stated that they would not be able to identify the officers who had beaten them. They could not recall the events in detail. They did not wish to be declared victims in the proceedings.
34.On 3 April 2012 the applicant was questioned as a witness. He stated that on the trial days in the basement of the court building the escort officers had made him perform different exercises, such as a wall-sit exercise, push‑ups and a “duck walk”. While he had been performing the exercises, the escort officers had beaten him. He further stated that the escort officers had beaten him on different parts of the body. They had also hit him with a belt. On 7June 2012 the inspector presented photographs of the escort officers to the applicant for the purposes of identification. He could not identify the officers who had allegedly assaulted him.
35.As submitted by the Government, on 2May 2012 the Riga Regional Court confirmed that the court building premises were equipped with a video surveillance system. However, they stated that video recordings were stored for two to three months and then erased.
36.On 3 May 2012 the Internal Security Office requested an expert medical report.
In respect of V.P., P.V. and F.Č. the report concluded that their medical documentation contained no records of injuries sustained over the time period in question. In respect of the applicant the report stated that the description of the injuries contained in the medical documentation, in the record of the applicant’s questioning by the police, and in the hearings transcripts was incomplete. Therefore, it was not possible to determine the exact time at which the injuries had been sustained, how extensive they had been, and the degree of trauma or force that had been employed to inflict them. However, it could not be excluded that the injuries had appeared between 20 and 25May 2010 in the circumstances indicated in the record of the applicant’s questioning. While it was indicated in the record of the applicant’s questioning and in the hearings transcripts that injuries had also been inflicted to the applicant’s face, abdomen, buttocks, lower part of the back, back, and left side of the thorax, such injuries had not been identified in the medical examination of 26 May 2010.
37.On 18May 2012 the Internal Security Office questioned P.V.’s former cellmate, V.A., who stated that he had seen red patches on P.V.’s back. P.V. had told him that the escort officers had beaten him in the basement of the court building; they had also beaten the applicant. According to V.A. this had happened prior to 5May2010. V.A. had heard that the applicant had also been beaten in the prison.
38.On 20July 2012 the Internal Security Office terminated the criminal proceedings on the grounds that the elements of the offence had not been made out. There was no irrefutable evidence that the escort officers had inflicted the injuries as alleged. According to the expert report, the injuries had not been recorded in the medical documentation precisely. The persons involved in the criminal proceedings had given contradictory accounts of the circumstances in which the injuries had been inflicted.
2.Appeal against closure of the investigation
39.On 6 August 2012 the applicant’s mother lodged an appeal with the prosecution service against the decision to terminate the criminal proceedings, the applicant having on 21October 2011 granted her power of attorney (universālpilnvara) to take any action concerning his property. This included the right to represent the applicant before the police, the courts and other institutions in relation to all rights vested in him as a victim. Prior to the authorisation she had represented the applicant on the grounds of his being a minor. In the wording of the appeal the applicant’s mother indicated that she was acting on behalf of the applicant.
40.She complained of deficiencies in the criminal investigation which had precluded obtaining important information. Namely, the presentation of photographs to the applicant for the purpose of identifying the alleged perpetrators had been organised in a manner intended to impede justice ‑ while he had been shown the small black-and-white frontal photographs he had been surrounded by seven escort officers in an effort to intimidate him. She asked that the investigating authorities organise an identity parade for the applicant and his co-accused and question the applicant’s co-accused regarding the events in question.
41.On 6September 2012 a prosecutor dismissed her appeal, noting that during the presentation of photographs the applicant had been assisted by his lawyer. They had not made any remarks or requests as regards this procedure. The investigating authorities had established that no force had been used against the applicant and his co-accused and that no threats had been made. From the moment at which the trial had started the Ombudsman had paid particular attention to the applicant and his co-accused. All of the escort officers had been questioned as witnesses. They had had no interest in the outcome of the trial. Therefore, there had been no reason to doubt their account of the events. The applicant’s co-accused had also been questioned and their evidence assessed. There was no need to take any further investigative steps as the constituent elements of the offence under section317(2) of the Criminal Law were lacking in the officers’ actions. The prosecutor indicated that her decision was amenable to appeal before a higher prosecutor.
42.On 22 September 2012 the applicant’s mother appealed against the aforementioned decision before a higher prosecutor. She indicated that she was acting on behalf of the applicant. In addition to the issues raised previously she complained that a long time had passed before criminal proceedings had been instituted. She considered that it had been a deliberate delay to hide any traces of assault. Furthermore, during the internal inquiry the Internal Security Office had “interviewed” the applicant and the co‑accused, who had been minors at the relevant time, in the absence of a lawyer or a representative. After those “interviews” the co-accused had all refused to testify.
43.On 24 October 2012 a higher prosecutor dismissed the applicant’s mother’s appeal. He upheld the findings of the lower prosecutor – the decision to terminate the criminal proceedings had been lawful as the constituent elements of the offence had been missing. At the same time, he noted that the applicant had not been declared a victim in the criminal proceedings and hence could not be represented by another person. Furthermore, at the time when the criminal proceedings had been instituted he had reached the age of majority. The higher prosecutor indicated that the applicant’s mother did not have the right to complain about the decision to terminate the criminal proceedings and that it had been wrong for the lower prosecutor to examine her complaint on the merits. That being said, the higher prosecutor also examined her complaint on the merits for the reason of legal certainty as the lower prosecutor had done so. He concluded by indicating that the applicant’s mother could not lodge further complaints about the decision to terminate the criminal proceedings.
44.On 9 November 2012 the applicant lodged an appeal with the prosecution service against the aforementioned decision. He stated that his mother had been authorised to lodge complaints in his name under the power of attorney that he had granted her on 21October 2011. He further noted that the assessment of the flaws in the proceedings had been superficial and had not properly addressed the points raised by his mother. He emphasised that no explanation had been given for the injuries that he had sustained while in custody or for the delay in the institution of the investigation and the superficial manner in which it had been conducted. He argued that it might have been that the State, acting through its agents, had been willing to cover-up his assault.
45.On 12 December 2012 a chief prosecutor responded that the applicant’s procedural status was that of a witness and that, unlike victims, witnesses had no right to authorise other persons to exercise their procedural rights on their behalf. Furthermore, the applicant himself did not have a right to challenge the response that had been given to his mother, as he was not the addressee of this letter sent to her. Lastly, because he had not been the one who had lodged the initial appeals, the applicant had missed the time-limit for lodging an appeal against the decision of 20July 2012 terminating the criminal proceedings. Accordingly, the applicant’s appeal was not examined. The applicant was informed of the fact that in accordance with domestic law this decision was not amenable to appeal.
D.Report of the Ombudsman
46.On 28 July 2011 the applicant complained to the Ombudsman, who then instituted an inquiry and requested information from Riga Central Prison, the State Centre for Forensic Medical Examination (Valsts tiesu medicīnas ekspertīzes centrs) and the Internal Security Office.
47.On 16May 2012 the Ombudsman delivered a report in which he observed that, as the criminal investigation was still ongoing, it would be premature to assess the proceedings as a whole. However, with regard to the internal inquiry, the Ombudsman expressed concerns regarding the institutional independence of the Internal Security Office when analysing offences allegedly committed by the police officers.
48.Furthermore, the internal inquiry had lasted one year and seven months – beyond a reasonable time-limit. The inquiry had not been carried out with the requisite diligence, as exemplified by the repeated quashing of decisions not to institute criminal proceedings. The Ombudsman expressed concerns that flaws in the internal inquiry might render it impossible to establish whether the applicant’s injuries had been inflicted by the police officers. Thus, the internal inquiry undertaken by the State Police could not be regarded as constituting an effective remedy within the meaning of Article13 of the Convention. Nonetheless, the Ombudsman considered that it would be premature to pronounce on a violation of Article3 of the Convention.

THE CIRCUMSTANCES OF THE CASE
5.The applicant was born in 1969 and lives in Benevento.
A.The events of 2 April 2013
6.On 2 April 2013, between 1 and 1.15 p.m., the applicant was stopped by two officers of the Benevento municipal police while she was driving her car.
7.According to the applicant, the police officers checked her driver’s licence and her vehicle documents. An argument broke out between the applicant and the officers. In the applicant’s view, her nervous and hostile attitude led the police officers to suspect that she was intoxicated, which she denied. As the officers did not have the necessary equipment to perform a breathalyser test, they requested the assistance of the road police (Polizia Stradale). The applicant returned to her car. Once she had got back into the vehicle, one of the police officers pulled the car door open and dragged her out by the arm.
8.As recorded in the municipal police officers’ report of 3April 2013, the applicant had been stopped because she had been driving in an erratic manner, braking suddenly and changing lanes abruptly. The applicant did not seem to be able to exit the vehicle by herself and had had to be assisted by one of the officers. The officers reported that they had smelt alcohol on her breath and that she had been unsteady on her feet. The applicant had insulted and threatened them.
9.At 1.30 p.m. traffic police officers arrived on the scene with the breathalyser equipment.
10.According to the applicant, she was not able to take the test because she was in a state of anxiety that had been exacerbated by one of the officers shouting at her that she was drunk. That had caused her to tremble and had meant she could not keep the breathalyser tube in her mouth. The applicant requested that carabinieri be called to the scene, but the request was denied.
11.According to the traffic police report (annotazione di servizio della Polizia Stradale), the applicant agreed to be breathalysed, but did not blow into the device in the manner she had been told to do by the officers and refused to cooperate. At one point she had thrown the device’s mouthpiece into the face of one of the officers. The applicant was described as being in a “clearly altered” state, smelling strongly of alcohol and staggering.
12.The applicant was taken to the municipal police station (Comando di Polizia Municipale), where she arrived at approximately 1.50 p.m.
13.According to the applicant, once at the station the lieutenant on duty started drafting an offence report (verbale di contestazione) for driving under the influence of alcohol. The two officers who had stopped her in the street and escorted her to the station and another officer were also present. She repeatedly requested that she be allowed to use a telephone to let her family and her lawyer know of her whereabouts but her requests were denied. When she tried to pick up a telephone, one of the officers hit her in order to make her sit down. The same officer twisted her arms behind her back and handcuffed her, hurting her wrists. He then squeezed her buttocks and asked her if the handcuffs were tight enough. The applicant started screaming loudly and the officer removed the handcuffs in a violent manner. In doing so, he fractured the applicant’s right thumb and caused other injuries to her wrists. He then warned her not to cause further trouble and threatened her. The applicant left the station between 2.15 and 2.30 p.m. and proceeded further on foot as her car had been seized.
14.As recorded in the joint report issued on 3April 2013 by the two municipal police officers who had stopped her in the street and the lieutenant on duty at the municipal police station, upon her arrival at the station the applicant had started threatening and insulting them. When the lieutenant started drafting the offence report, she grabbed a telephone from a desk and ran into the corridor. When the lieutenant tried to stop her, the applicant pushed him violently, causing him to fall. She then threw the telephone out of the window. The applicant, who was in an extremely agitated state, pushed and kicked the other two officers, and they eventually handcuffed her. When the applicant calmed down, the handcuffs were removed. The applicant ran out of the station, leaving her bag and personal belongings behind. Her vehicle and driver’s licence had been seized under road traffic legislation. The same account of the events is recorded in the offence notification (informativa di reato) filed by the directing commander of the Benevento municipal police with the Benevento public prosecutor on 3April 2013.
15.According to the applicant, once she had left the station she got a lift to the emergency department of a local hospital, where she was examined.
16.At approximately 8 p.m. the applicant went to the State Police and attempted, unsuccessfully, to lodge a criminal complaint against the municipal police officers. According to the report of the officer on duty, the applicant complained that she had been assaulted by Benevento municipal police officers and that her finger had been fractured. When the officer informed her that the she could not file a criminal complaint because the station was closed, the applicant started speaking incoherently in a loud voice. Given her nervous and agitated state, the officer called the local questura (police headquarters) for backup. The applicant requested that an ambulance be called. The ambulance arrived at 8.30p.m. and the applicant was examined by the ambulance medics. She was taken home by ambulance at approximately 9 p.m.
B.Criminal complaint against the police officers and the ensuing investigation
17.On 4 April 2013 the applicant lodged a criminal complaint against the two police officers who had stopped her in the street on 2April 2013 and the other two officers who had been present at the municipal police station, but whose names she did not know, alleging assault and battery, infliction of bodily harm, abuse of office, and threats.
18.An investigation into the applicant’s allegations was initiated. Seven people identified by the applicant as witnesses (persone informate sui fatti) were interviewed. Two were people who stated they had seen one of the officers dragging the applicant out of her vehicle. One was the owner of a bar where the applicant had gone in order to call her former spouse once she had left the hospital on 2April 2013. Another was the applicant’s former spouse, who stated that her alcohol intake was limited to consumption during meals. He further stated that because of a traumatic event in her life the applicant became agitated, trembled and had trouble expressing herself when subjected to stress. The other three were colleagues, who stated that the applicant had not appeared to be intoxicated when she had left her office on 2 April 2013. The police officers who had allegedly been involved in the ill-treatment were not interviewed, and neither was the applicant.
19.On 17 January 2014 the public prosecutor requested that the proceedings be discontinued. The basis of the request was that “the allegations in the criminal complaint are not confirmed by the statements made by the witnesses identified by the victim”.
20.On 27 February 2014 the applicant lodged an objection against the prosecutor’s request to discontinue the proceedings. She complained about the lack of reasoning in the prosecutor’s request and alleged that the investigation had not been thorough. In that connection, she complained about the “total absence” of investigative measures with respect to the events that had occurred at the municipal police station and requested that the investigating judge order such measures without delay. Moreover, the applicant complained that she had not been questioned and requested that she be interviewed immediately. She also requested that officials interview the person who had taken her to the hospital when she had left the police station and other individuals. She also challenged the credibility of the official police reports, as they were in stark contrast with her account of the impugned events.
21.At a hearing on 22 September 2014 the applicant’s lawyer repeated the complaints and requests contained in the objection against the prosecutor’s request to discontinue the proceedings and reiterated, in particular, the request to conduct an investigation into the events that had occurred at the municipal police station.
22.By an order of 3 October 2014, served on the applicant on 27October 2014, the Benevento District Court preliminary investigations judge (giudice per le indagini preliminari) decided to discontinue the proceedings. The order stated that the evidence gathered during the preliminary investigation had not been sufficient to warrant indicting the officers. It stated that the victim’s allegations had not been corroborated by evidence and that further investigative measures, as requested by the victim, would have “no influence whatsoever”.
C.Criminal proceedings against the applicant
23.On 25 October 2013 the applicant was charged with a number of offences in connection with the events of 2 April 2013, including resisting a police officer, insulting a public official, and driving under the influence of alcohol. The applicant was also charged with causing bodily harm to a police officer.
24.On an unspecified date, the public prosecutor and the applicant reached a plea agreement with respect to the offence of bodily harm and requested that the judge proceed with the imposition of a sentence (applicazione della pena su richiesta delle parti).
25.On 21 November 2014 the Benevento preliminary hearings judge took note of the plea agreement and gave the applicant a suspended sentence of twenty-eight days’ imprisonment. On the same day, the preliminary hearings judge suspended the proceedings against the applicant in connection with the charges of resisting a police officer, insulting a public official and driving under the influence of alcohol. The applicant was placed on probation with a requirement that she perform community service.
D.Medical documentation
1.Medical reports in connection with the events of 2 April 2013
26.On 2 April 2013, the applicant went to the emergency department of a local hospital. At 6.42 p.m. she was examined by a radiologist, who established that her right thumb was fractured.
27.On 3 April 2013 the applicant returned to the emergency department. According to the medical report, the applicant arrived at the hospital in an agitated state, complaining about pain in several parts of her body. She was examined by a doctor who noted the presence of a splint on her right hand to treat a fracture. The doctor further noted the presence of bruising resulting from traumatic injury (trauma contusivo con ecchimosi) to the right thigh, right shoulder and left wrist.
28.On 4 April 2013 the applicant went to a different hospital. She was examined by an orthopaedist, who confirmed the fracture of the thumb and the presence of bruises on her left thigh and on her back. The doctor recommended surgery to treat the fracture.
2.Expert psychological report submitted by the applicant in the course of the criminal proceedings against her (extracts)
29.Owing to a traumatic event in her life, the applicant suffers from chronic post-traumatic stress disorder, which has evolved into a major depressive disorder. She also suffers from a disorder which is characterised by mood swings which are exacerbated in times of particular stress, by the consumption of alcohol or sleep deprivation. The disorder in question includes peaks of manic behaviour when the applicant loses contact with reality and experiences a sense of impending threat to her own safety and that of those around her. The applicant was prescribed drugs for insomnia in February 2013. Combining the drugs with even moderate amounts of alcohol can have the same consequences as excessive alcohol consumption.

6.The first applicant was born in 1978 and lives in Turin. The second applicant was born in 1975 and was detained in Turin up to the time of his death on 10 January 2017.
A.The events of December 2004
7.In 2004 the applicants were detained in the Asti Correctional Facility.
8.On 10 December 2004 the second applicant intervened in a fight that had broken out between the first applicant and a prison officer.
9.The manner in which the impugned events occurred, as submitted by the applicants and as it emerges from their witness statements during the domestic proceedings, may be summarised as follows.
1.The first applicant’s account
10.On 10 December 2004, following an altercation with the prison officer, the first applicant was summoned to a meeting with the correctional unit commander (comandante di reparto della polizia penitenziaria). Before he reached the commander’s office, he was stopped by a group of prison officers, who took turns beating him. Following the meeting, he was stripped of his clothes and led to a cell in the solitary confinement wing.
11.The only item of furniture in the cell was a bed with no mattress, bed linen or covers. As to sanitary facilities, the cell had a squat toilet without running water and was not equipped with a sink. The cell window had no window panes and the only source of heating was a small, malfunctioning radiator, which provided little protection against the December weather. For a number of days, although it is unclear for how many exactly, he was left naked.
12.During the first week of his detention in solitary confinement no food was provided and he was given only scant amounts of water. He was subsequently given rationed quantities of food.
13.He was beaten on a daily basis, several times per day. He was repeatedly punched, kicked and hit in the head by prison officers, who assaulted him in groups of varying sizes.
14.He was also subjected to sleep deprivation, as the beatings often took place at night and the prison officers verbally abused him in order to keep him awake.
15.During the detention in solitary confinement the applicant did not receive visits from his lawyer or his family.
2.The second applicant’s account
16.On 10 December 2004, following the same altercation with the prison officer, the second applicant was stripped of his clothes and led to a cell in the solitary confinement wing of the correctional facility. The bed in the cell had no mattress, sheets or covers, and the cell had no sink. Initially there were no panes in the windows, which were covered with some plastic sheeting after an unspecified number of days. For a number of days, although it is unclear for how many exactly, he was left naked. He was subsequently given some light clothing.
17.The applicant’s food was rationed, and at certain times he was given only bread and water. On some days he received no food at all.
18.The applicant was beaten by prison officers, often more than once per day. He was subjected to various forms of physical violence, including being repeatedly punched, kicked and slapped, at one point with his head being pinned to the ground by one of the prison officers’ boots. The beatings occurred both during the day and at night.The applicant was beaten by four or five officers at a time. One prison officer ripped out a chunk of his hair.
19.On 16December 2004 he was admitted to the hospital.
20.During the period he spent in solitary confinement he was only allowed outside the cell twice, once to shower and once for some outdoor time.
B.Criminal proceedings against the prison officers
21.A criminal investigation into the impugned treatment was launched in 2005. It was initiated when it emerged, in the context of covert surveillance in an operation to investigate drug smuggling in the Asti correctional facility, that a number of the prison officers had discussed the ill-treatment inflicted on the applicants.
22.On 7 July 2011 five prison officers, C.B., D.B., M.S., A.D., and G.S., were committed for trial. They were charged with ill-treatment of the applicants under Article 572 of the Italian Criminal Code (“the Criminal Code”), in conjunction with Article61§9 of the Criminal Code, a provision which considers the commission of an offence by a civil servant abusing his or her position to be an aggravating circumstance.
23.On the same date the applicants joined the proceedings as civil parties.
1.Proceedings before the Asti District Court
24.The Asti District Court’s judgment was delivered on 30January 2012. Its findings may be summarised as follows.
25.As to the establishment of the facts concerning the ill-treatment, the court found that the evidence gathered during the investigation and produced at the trial showed that the events had occurred in the manner described by the victims in their submissions during the trial. The Court relied on statements to the effect that the applicants had been subjected to physical and verbal abuse, coupled with the deprivation of food, water, sleep, and clothing, and had been detained in cells without adequate access to sanitation, heating, and bedding.
26.The court further found it to be established beyond reasonable doubt that the applicants had been subjected not merely to isolated acts of harassment and abuse, but to repeated ill-treatment which had been put into practice in a systematic manner.
27.More specifically, the court found it established beyond reasonable doubt that the first and second applicants had been subjected to repeated physical violence from 10 to 29 December 2004 and from 10 to 16December 2004 respectively. The court found that the beatings occurred regularly at all times of the day, and particularly at night.
28.The court noted that the second applicant had been admitted to the emergency room of the Asti Civil Hospital on 16 December 2004 with traumatic injuries. With regard to the first applicant, the court acknowledged his hospitalisation following the events without citing a date or specific medical documentation to this effect.
29.Moreover, the court found it to be established beyond reasonable doubt that in 2004 and 2005 in the Asti Correctional Facility there had existed what it defined as a “generalised practice of ill-treatment” that had been systematically inflicted on prisoners considered to be problematic. Measures which the court defines as exceeding the bounds of permitted disciplinary or security measures were routinely taken to punish and intimidate problematic detainees and to deter other disorderly behaviour. As part of this practice, a detainee would generally be taken to a cell in the solitary confinement unit where he would be subjected to repeated harassment and abuse by prison officers. The abuse would primarily take the form of physical violence, as detainees would be beaten by groups of prison officers, often during the night. In addition, detainees would be routinely subjected to sleep, food and water deprivation, and would also be denied access to sanitary facilities.
30.The court further found ample evidence that the prison officers operated in a climate of impunity. This was due, in the court’s view, to the acquiescence of high-level prison administrators and the complicity that existed among prison officers.
31.It emerges that the court ordered an inspection of the correctional facility, including the solitary confinement wing, during the course of the trial. The court found that several cells in the solitary confinement wing of the Asti Correctional Facility were unfit for holding detainees. Some did not have bed linen, mattresses, sanitary facilities or heating. Although the windows in some cells had no panes and others had windows covered by metal plates with small perforations, the cells were nonetheless used during the winter months. Some cells were equipped with a bed and a squat toilet but no other furniture or sanitary facilities.
32.Following the establishment of the facts, the court went on to assess responsibility for the established conduct. In this regard, G.S. was acquitted as to his involvement in the ill-treatment, and A.D. and D.B. were acquitted of the charge of ill-treatment under Article 572 of the Criminal Code. The court nonetheless held that the conduct of A.D. and D.B. amounted to infliction of bodily harm contrary to Article 582 of the Criminal Code. However, it ordered that the proceedings against them be discontinued due to the expiry of the applicable time-limit as laid down in the statute of limitations.
33.With respect to C.B. and M.S., the court held that there existed sufficient evidence to conclude that they had been responsible for most, if not all, of the acts of physical, psychological, and “material” abuse at issue. The court then considered that the acts at issue could be classified as torture pursuant to the definition provided by the UnitedNations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It went on to observe that Italy had failed to incorporate the offence of torture into national legislation, in breach of its international obligations. It was therefore obliged to conclude that, under Italian law, there existed no legal provision that would allow it to classify the impugned conduct as acts of torture.
34.Having taken note of the above-mentioned considerations, the court proceeded to assess which existing offence was more suitable in respect of the legal classification of C.B. and M.S.’s conduct. When conducting its assessment, the court relied on the conclusion that the primary purpose of the impugned treatment was to punish the applicants, to “maintain order” in the correctional facility, and to convey a clear message to the other detainees.
35.The court considered that the conduct of the two prison officers thus fell most appropriately within the scope of Article 608 of the Criminal Code, which deals with abuse of authority against arrested or detained persons. However, the statutory limitation period for the offence in question had elapsed, as the court had found no procedural action which would have the effect of interrupting it.
The court stated that C.B. and M.S. were also responsible for the infliction of bodily harm, but that, as the statute of limitations was applicable to that offence as well, such a finding did not alter the substance of the decision. The court therefore ordered that the proceedings against C.B. and M.S be discontinued because the applicable time-limit as laid down in the statute of limitations had expired.
2.Proceedings before the Court of Cassation
36.On 22 February 2012 the public prosecutor lodged an appeal with the Court of Cassation, arguing that the Asti District Court had erred in the legal classification of the offence with respect to C.B. and M.S. The prosecutor contended that the most appropriate offence for the purposes of classification of the conduct in question would have been aggravated ill‑treatment under Article 572 of the Italian Criminal Code ‒ as initially identified in the bill of indictment ‒ in conjunction with Article 608 of the Criminal Code.
37.By a judgment issued on 21 May 2012, and filed with the court Registry on 27 July 2012, the Court of Cassation declared the public prosecutor’s application inadmissible. The court expressed its agreement with the prosecutor’s contention as a matter of principle but, as the statute of limitations had been likewise applicable to the offence of aggravated ill‑treatment, a decision in favour of the prosecution would have been devoid of any practical effect.
3.Subsequent proceedings
38.On 26 July 2012 C.B. lodged an objection to execution (incidente d’esecuzione) with the Asti District Court, arguing that its decision of 30January 2012 (see paragraph 24 above) could not be considered as final and binding insofar as he was concerned, as the decision had not been properly served on him.
39.In a decision issued on 31 October the Asti District Court dismissed C.B.’s objection on the grounds that C.B. must have had cognisance of the decision at the moment the public prosecutor lodged an appeal with the Court of Cassation (see paragraph 36 above) or, at the latest, when his representative filed a defence brief at a hearing before the Court of Cassation in May 2012.
40.On 26 July 2012 C.B. appealed against the decision before the Court of Cassation.
41.In a judgment delivered on 11 July 2013, and filed with the Registry on 1 August 2013, the Court of Cassation granted the appeal. It found that the failure to serve the decision on C.B. could not be remedied by C.B.’s potential knowledge of the decision at a later stage, as argued by the District Court. The Asti District Court judgment of 30 January 2012 could not, accordingly, be considered final and binding insofar as C.B. was concerned.
42.Based on the latter decision, on 10 October 2013 C.B. lodged an appeal against the Asti District Court judgment of 30 January 2012 with the Turin Court of Appeal, seeking an acquittal.
43.No further information has been provided by the parties as to the outcome of the proceedings.
C.Disciplinary proceedings against the prison officers
44.In their observations of 31 March 2016, the Government indicated that four prison officers had undergone disciplinary proceedings in connection with the impugned events and by different decisions issued on 29 January 2013 the following disciplinary sanctions had been imposed:
–C.B. was dismissed from his functions (destituito dal servizio). Hewas, however, reinstated on 26 November 2013, following the Court of Cassation judgment of 11 July 2013 which suspended the binding nature of the Asti District Court’s judgment (see paragraph 41 above);
–M.S. was dismissed from his functions;
–A.D. was suspended from duty for a period of 4 months;
–D.B. was suspended from duty for a period of 6 months.
45.According to a document issued by the Staff Director of the Prison Administration Department of the Ministry of Justice on 12 October 2015, and furnished by the Government, the four prison officers were not suspended from duty (sospensione precauzionale dal servizio) during the course of the investigation or the trial.
D.Medical documentation
46.At the Court’s request, the Government submitted extracts from the prison medical record of the second applicant between 26November 2004 and 5 March 2005 and typed copies of his hospitalisation record of 16December 2004.
47.The prison medical record indicates that on 13 December 2004 the second applicant was examined visually (whilst still “behind bars”). He complained of pain in the thoracic area and right ear. The reporting physician noted the presence of ecchymoses and haematomas around the patient’s ribcage. He recommended a more thorough medical examination and/or transfer to the infirmary.
48.The record further indicates that another visual examination (also “behind bars”) took place on 15 December2004. The information in this entry is the same as in the previous entry. Transfer to the infirmary for a medical examination was recommended.
49.On 15 December 2004 the record shows that the applicant underwent a medical examination in the afternoon. The physician reported ecchymoses on the patient’s ribcage and in the retroauricular region. Palpation of the patient revealed diffuse pain. The reporting physician recommended that X‑rays be performed for a suspected fracture. Painkillers were administered.
50.The entry of 16 December 2004 reports the applicant’s transfer to the emergency room of the Asti Civil Hospital as a consequence of traumatic injury.
51.According to the medical record of the Asti Civil Hospital, an X-ray revealed a fractured rib and the medical examination disclosed diffuse bruising in the thoracic and abdominal area and pain on palpation. The record states that the applicant told the doctor his injuries occurred as a consequence of an accidental fall.
52.The prison medical record entry on the applicant’s discharge from the hospital on 16 December 2004 shows that he was prescribed painkillers.
53.As to the first applicant, no copy of the prison medical register had been submitted by the Government, notwithstanding the Court’s request for such information.

6.The applicant was born in 1990 and lives in Gyöngyöspata. He is of Roma origin.
A.The incident
7.On 12 August 2010 at about 1.50 a.m. the applicant was taken to Gyöngyös Police Department after he and his accomplices had been apprehended while driving a car containing goods apparently stolen from a nearby summer house.
8.The applicant submitted that shortly afterwards, for about twenty minutes, he had been ill-treated by two police officers; at about 4.30a.m. the two officers had returned and had continued hitting and kicking him for another thirty minutes or so. Some two hours later the two officers had escorted the applicant to another room for questioning, but had then continued beating him, together with several other officers. In the applicant’s account of the events, altogether six officers and two security guards took part in the ill-treatment, with the apparent intention of extracting his confession to further offences. He stated that he had been hit in the face, forced to his knees and kicked repeatedly; a paper bag had been pulled over his head and the soles of his feet had been hit many times with a piece of wood. The officers had insisted that he admit to at least three counts of theft in order for them to stop hitting him, and they had repeatedly insulted him, making references to his Roma origin. One of them had said that they would not mind if he died – there would just be one Gypsy less.
9.The applicant eventually signed the record of the questioning, which stated that the questioning had taken place between 5.51 a.m. and 6.33a.m.
10.Later that morning, at about 6 a.m., the applicant was allegedly escorted to the toilet, where he said the officers had again started hitting and kicking him. One of them had removed a towel-holder from the wall and hit the applicant’s hand with it. Again, references were allegedly made to the applicant being a Roma.
11.The applicant was released at about 2 p.m.
12.Later that day, at the request of the applicant’s mother, the general practitioner of the neighbouring village, Dr C.S., came to the applicant’s house and examined him. Since she had apparently been told only about chest complaints, she did not examine the applicant’s legs or feet. She did not identify any marks indicating external injury on the applicant but found that his ribs were sore and suggested that he go to hospital if he wished to obtain a medical certificate recording his injuries. Dr C.S. herself did not produce a medical report on the premises.
13.On the same evening the applicant went to the emergency room of Bugát Pál Hospital in Gyöngyös. At 7.34 p.m. he was issued with a medical certificate, for which he paid the fee due, stating that he had bruises on the forehead, the nose and the left shoulder and an abrasion on the right hip; both his hands and arms were swollen and hyperaemic; and the rear surface of both thighs, as well as the soles of his feet, were swollen, red and sore. According to the certificate, the applicant had numerous contusions that had been inflicted by other persons.
14.Still on the same evening, at 8.38 p.m., X-rays were taken of the applicant at Albert Schweitzer Hospital in Hatvan, a town at a distance of 32kilometres, where the applicant was driven by his family members. He was diagnosed with a “chest contusion”, a “skull contusion” and “bodily injury inflicted by human force”.
15.The applicant stated that he had been unhurt at the time that he had been taken to the police department. He added that between his release and the medical inspection, he had been continuously accompanied by his relatives, who testified in the ensuing proceedings that he had not suffered any injuries outside the police department.
B.Criminal investigation against the alleged perpetrators
16.On 27 September 2010 the applicant lodged a criminal complaint alleging that he had been brutalised by police officers. The applicant alleged that during the ill-treatment the officers had made repeated references to his Roma origin. The case was being investigated by the Miskolc Public Prosecutor’s Office.
17.On 8 November 2010 the applicant was heard as a witness and shown, for the purposes of his identifying his alleged assailants, the photos of police officers serving at the Gyöngyös Police Department. The applicant acknowledged from the outset that he would be able to identify with certainty only three of the several perpetrators. Nevertheless, he finally identified eight persons as the perpetrators – six police officers (T.B., M.Z., Gy.K., K.V., F.I. and H.A.) and two security guards employed by the police department (P.G. and Z.A.). Subsequently, the applicant became uncertain about the involvement of K.V. and H.A.
18.The prosecutor’s office appointed a forensic expert. This expert had at his disposal the medical reports issued by Bugát Pál and Albert Schweitzer Hospitals. In his opinion given in retrospect, he made the following statement as to the time when the applicant’s injuries had been sustained:
“The exact time of the infliction of the injuries cannot be established. Given that the doctor examining the applicant did not document any lesions characteristically pointing to an inveterate injury, it can only be said that the injuries had been sustained within a 24-48-hour-time-frame preceding the medical care. Since, according to the police report on the application of coercive measures, the local police constable handed the applicant over to the officer on duty without any complaints or injuries, the injuries were likely to have occurred after this point in time.”
“A sérülések pontos keletkezési ideje nem határozható meg. Tekintettel arra, hogy a vizsgáló orvos idősülőben lévő sérülésre jellegzetes elváltozásokat nem dokumentált, az valószínűsíthető, hogy a sérülések az orvosi ellátást megelőző 24-48 órás időtartamon belül alakultak ki. Mivel a kényszerítő eszköz alkalmazására írt rendőri jelentés adatai szerint a körzeti megbízott panasz és sérülésmentesen adta át nevezettet az ügyeletes tisztnek, a sérülések valószínűsíthetően ezen időpontot követően keletkeztek.”
19.On 28 December 2010 the Miskolc Investigating Prosecutor’s Office discontinued the investigation, holding in essence that the applicant’s version of events was not plausible. The prosecutor emphasised the fact that since the applicant had been apprehended just after he had committed the crime in question (and still in possession of the proceeds of that crime), coercive interrogation by police officers with the intention of extracting his confession to the offence in question seemed pointless and thus hardly plausible. Relying on the internal records of the police department recording the shifts of the officers, the prosecutor was satisfied that three of the alleged perpetrators, Gy.K., F.I. and H.A., had alibis for the time of the incident, in that early in the morning of that day, they had been assigned to patrol service. Therefore, they could not possibly have been present at the applicant’s questioning. Furthermore, the two security guards (P.G. and Z.A.) were not allowed to leave their station and thus could not have been present at the incident. The prosecutor also observed that a general practitioner had examined the applicant between his release from the police department and the first hospital inspection, but had recorded no injuries. The prosecutor also found it material that the applicant had been uncertain of the identities of the alleged perpetrators when shown photos of the Gyöngyös police officers; that he had contradicted himself on several occasions; and that he had complained about the alleged incident only on 27September 2010, not before.
20.On 16 January 2012 the Borsod-Abaúj-Zemplén County Public Prosecutor’s Office dismissed the applicant’s complaint against the discontinuation order. The prosecutor was satisfied that the investigation had been adequate and comprehensive, and that the obtaining of further evidence – in particular, by questioning the applicant’s brother and friend, who were present at his release – was superfluous. The applicant’s allegations about racist motives behind the ill-treatment were not addressed.
This decision was served on the applicant on 23 January 2012.
C.Substitute private prosecution
21.On 21 March 2012 the applicant brought a substitute private prosecution against the eight presumed perpetrators – that is to say, six police officers and two security guards – on charges of coercive interrogation. The motion included assertions about racial insults being uttered during the incident.
22.The Eger High Court held a hearing on 26 September 2012. At that hearing the applicant stated that he did not recognise the defendants P.G. and Z.A. and that he was not certain if K.V. had beaten him, so he dropped the charges against them. Accordingly, the court terminated the proceedings against these three defendants.
23.The remaining defendants either denied the charges or refused to make any statements. The High Court heard Dr C.S., who confirmed that she had not seen any marks of external injury on the applicant’s body when examining him on the day of the incident. A court-appointed medical expert stated that if the applicant had had the injuries in question when examined by Dr C.S. then the latter must have noticed them. The court also obtained testimony from the applicant’s mother and brother and a friend (the two latter had not been heard during the investigation), who had been waiting for him in front of the Gyöngyös Police Department on his release. They all stated that the applicant had already had those injuries at the moment of his release.
24.The High Court was satisfied that Gy.K., F.I. and H.A. had alibis for the time of the incident. As to the charges against the two other officers, T.B. and M.Z., the court highlighted that even though the applicant said that he had been ill-treated in order to force him to admit to at least three counts of theft – which he finally did – there was actually no reference in the record of the questioning to any further counts of theft. The court also emphasised that, contrary to the statements of the applicant, the two officers could not have been continuously present in the Gyöngyös Police Department because between 3 a.m. and 5 a.m. they had been carrying out some onsite inspections in another town, Gyöngyöspata.
25.On 28 November 2012 the Eger High Court acquitted the officers for want of sufficient evidence. According to the reasoning of the judgment, the court relied on documentary evidence relating to the applicant’s apprehension and questioning, documents relating to the service particulars of the officers involved, the testimony of the applicant, medical documentation, and the testimony of the officers.
26.The applicant did not appeal.
D.Prosecution against the applicant
27.As a consequence of the applicant lodging, but subsequently withdrawing, a criminal complaint against K.V., criminal proceedings on charges of false accusation were conducted against the applicant. On 7November 2013 the Eger District Court found him guilty as charged and placed him on three-year probation. The judgment was upheld in essence by the Eger High Court on 10 June 2014; however, the applicant’s sentence was altered to 180 days of community work.
29.A resource guide entitled Prosecuting Hate Crimes – A Practical Guide, published by the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR) in 2014, contains the following relevant passages:
Chapter3: Building a case
“3.1.1 Using bias indicators to identify a potential hate crime case
Sometimes, when a prosecutor first reviews a case file, the bias motivation is immediately evident, for example, when the facts of the offence involve the use of words or symbols that show bias, or when the defendant admits that the crime was bias-motivated.
In cases where the bias motivation is not obvious, bias indicators are an excellent tool to help identify whether a crime constitutes a hate crime. Bias indicators help guide investigators and prosecutors through the factors that normally point towards a bias motive. The presence of one or more of these indicators suggests the existence of a bias crime, and should result in further investigation into motive. Bias indicators provide objective criteria by which probable motives can be discerned, but do not necessarily prove that an offender’s actions were motivated by bias. Many of them can be used to build circumstantial evidence of the motive behind the offence, as discussed further in this guide.
A decision to flag a case as a hate crime can be taken at different stages by either the police or the prosecution. Bias indicators are, therefore, relevant both at the crime scene and when reviewing evidence of a crime. Some countries have developed their own list of bias indicators that police and prosecutors apply to all cases to help determine motive....
3.1.2 Brutality of the attack
In the case of a violent attack that has no obvious other motive, and where there is a racial or other group difference between the victim and the perpetrator, the brutality of the crime is a strong indicator that the crime might have been motivated by bias. Anyone can be a victim of a hate crime, regardless of whether or not they are a member of a minority group. However, certain groups suffer disproportionately from hate crimes based on their religion, race, ethnicity, disability or sexual orientation. In some, albeit rare, cases, bias crimes demonstrate extreme, brutal violence that stems from the way in which perpetrators seek to dehumanize victims against whom they hold biased and intolerant views. Hence, if the victim belongs or appears to belong to such a minority, and there is no other obvious motive (for example, economic), a further investigation into the motive for the crime is warranted.
...
3.3 Working with hate crime victims and witnesses
Hate crimes have some distinguishing features that prosecutors and investigators need to keep in mind when assessing evidence from victims and witnesses. Many victims of hate crimes are reluctant to come forward and tell the full story of their victimization for a variety of reasons. They are often members of marginalized communities and, as such, experience discrimination as a regular part of their daily lives. Authorities need to be aware that for some victims, approaching law enforcement can be a challenge in itself. The special needs of hate crime victims in criminal proceedings are acknowledged in regional legal instruments, such as the EUVictims Directive.
...
3.4 Preparing the evidence
Once the prosecution is satisfied that a case could be bias-motivated, the next step is to ensure that there is sufficient evidence of the bias motive and, if not, to gather more. While the need to prove a bias motive distinguishes hate crimes from other offences, this distinction should not be exaggerated. Prosecutors regularly have to prove a defendant’s mental state, such as intent, recklessness or negligence. As with these other mental elements, motive can be inferred from the words, actions and circumstances surrounding the incident. As pointed out earlier in this chapter, the prosecution may want to revisit the bias indicators when establishing the evidence in a hate crime case.
Because hate crimes are message crimes, perpetrators often leave clear indications of their motives, which can be identified by looking in the right places. Hate crime prosecutions often rely on the defendant’s statements or admissions. In the absence of admissions, the prosecution can rely on inferences drawn from circumstantial evidence within the totality of the evidence.
...
3.4.2 Common types and sources of direct evidence
Because hate crimes are message crimes, offenders often want others to know their motives. Therefore, they sometimes make offensive statements to the victim or leave hateful words and symbols as graffiti on property. The offender may also boast about the crime to friends, family or in public settings. They often make admissions to police and investigators about their bias.
The key is finding out when, where and to whom the suspect admitted her or his motives. Identifying where the suspect was immediately before and after the incident or the places that the suspect regularly frequents is a good starting point to finding witnesses who might have heard the suspect’s admissions. Evidence of words said immediately before or after the crime will always be easier to use than those expressed long before or after the event. Even if words used further in time from the incident are not used in the case, they can still be useful for intelligence purposes or to direct the investigation. For example, they may provide sufficient grounds to seek judicial authorization for more intrusive investigative steps, such as searching the suspect’s home, place of employment and personal belongings, including cell phones and computers.”
30.The Hungarian public prosecutors’ protocol on bias-motivated crimes, which is based on the recommendations of the 2010 working paper of OSCE/ODIHR, contains the following relevant passages:
“Substantiating hate crimes is more difficult. It is necessary to demonstrate with concrete evidence that the crime was committed [on the basis of] biased motivation. This requires more work from the criminal justice system actors. ... Public prosecutors must ensure that supplementary evidence that could lead to more severe punishment is presented before the court.
...
Indicators to identify biased motivation
...
The suspect and the victim are dissimilar in terms of belonging to different national, ethnic, religious or sexual groups.”

6.The applicants are nationals of Uzbekistan. Their initials, dates of birth, the dates on which their applications were introduced, application numbers, as well as the particulars of the domestic proceedings and other relevant information are set out in the Appendix.
7.On various dates they were charged in Uzbekistan with religious and politically motivated crimes, their pre-trial detention was ordered in absentia, and international search warrants were issued by the authorities.
8.Subsequently the Russian authorities took final decisions to remove (that is to say extradite or expel) the applicants to Uzbekistan, despite consistent claims that in the event of removal the applicants would face a real risk of treatment contrary to Article 3 of the Convention.
10.The relevant reports by the UN agencies and international NGOs on the situation in Uzbekistan up until 2015 were cited in the case of Kholmurodov v. Russia (no. 58923/14, §§ 46-50, 1 March 2016).

7.The applicant was born in 1980. He arrived in Russia in 2003. He travelled to Tajikistan on a number of occasions to visit his parents for short periods of time.
8.On 3 May 2011 the applicant was charged in absentia in Tajikistan with participating in an extremist religious movement, the Islamic Movement of Uzbekistan, and an international search and arrest warrant was issued in his name. On 6 May 2011 the Tajik authorities ordered his pre-trial detention.
9.On 3 November 2013 the applicant was arrested in Moscow and detained. On 4November 2013 the Meshchanskiy District Court of Moscow (“the District Court”) ordered his detention pending extradition.
A.Extradition proceedings
10.On 4 December 2013 the Tajik prosecution authorities requested the applicant’s extradition on the basis of the above charges. The request included assurances regarding his proper treatment, which were formulated in standard terms.
11.On 12 December 2013 the District Court extended the applicant’s detention until 3 May 2014.
12.An appeal by the applicant of 16 December 2013 was dismissed by the Moscow City Court (“the City Court”) on 3 February 2014.
13.On 29 April 2014 the District Court again extended the applicant’s detention until 3 August 2014.
14.An appeal by the applicant of 5 May 2014 was dismissed by the City Court on 23 July 2014.
15.On 9 October 2014 the applicant’s extradition was refused by the Deputy Prosecutor General of the Russian Federation, owing to the absence of culpable actions under Russian criminal law.
16.On 13 October 2014 the applicant was released from detention.
B.Expulsion proceedings
17.On 13 October 2014, immediately after his release, the applicant was rearrested for violating migration regulations.
18.On 14 October 2014 the District Court found the applicant guilty of violating migration regulations, fined him and ordered his administrative removal. Allegations by the applicant regarding a real risk of ill-treatment were dismissed, and he was detained pending expulsion. The District Court assessing the risks stated that “[t]he claims of the representative ... are of a speculative nature and not confirmed by the case materials”
19.The above judgment was upheld on appeal by the City Court on 24October 2014. Claims by the applicant under Article 3 of the Convention were dismissed with reference to the District Court’s assessment of the case, which took into consideration “...the nature of the administrative offence, the character of the accused [who was criminally convicted in Russia]... the length of his stay in Russia and other circumstances of the case”.
20.According to the latest submissions of his representative in 2015, the applicant was still in detention.
C.Other relevant proceedings
21.On 18 December 2013 the applicant lodged a request for refugee status, referring to persecution in Tajikistan and a real risk of ill-treatment.
22.On 15 September 2014 his request was refused by a final administrative decision of the migration authorities. The applicant challenged that decision in the courts, referring, inter alia, to the risk of ill‑treatment.
23.On 12 November 2015 his appeals were dismissed by a final decision of the City Court.

A.Background to the case
5.The applicant was born in 1969 and lives in Hamburg. He is the brother of the late Y.C., also a Gambian national, who was born in 1987 and applied for asylum in Austria in 2004.
6.On 4 April 2005, the Vienna Regional Criminal Court (Straflandesgericht) convicted Y.C. of drug trafficking and sentenced him to seven months’ imprisonment. Y.C. began serving his sentence at Vienna‑Josefstadt Prison (Strafvollzugsanstalt). On 2 May 2005 he was transferred to Linz Prison.
7. On 18 April 2005 the Vienna Federal Police Authority (Bundespolizeidirektion) dismissed Y.C.’s asylum application and ordered his expulsion to the Gambia. An appeal lodged by Y.C. was dismissed by the Vienna Federal Asylum Office (Bundesasylamt) on 6 June 2005. He did not appeal against this decision and it became legally binding on 5July 2005.
8.On 8 September 2005 the Linz Federal Police Authority issued an order for Y.C. to be placed in detention with a view to his expulsion.
9.On 12 September 2005 Y.C. was conditionally released from prison and directly transferred to the Linz police detention centre (Polizeianhaltezentrum – hereinafter “the detention centre”).
10.Upon his admission to the detention centre, Y.C. was examined by a police doctor (Polizeiarzt), who noted that Y.C. was in a good general state and was fit for detention. His weight was recorded at 76.5 kg and his height at 170 cm. Communication between the authorities and Y.C. took place in English.
11.On 26 September 2005 the police doctor, while conducting a routine examination which all detainees have to undergo at two-week intervals, again noted that Y.C.’s state of health was good and recorded his weight at 70 kg.
12.On 27September 2005 Y.C. went on hunger strike. On 28September 2005 he informed the authorities thereof. Representatives of Human Rights Association Austria (Verein Menschenrechte Österreich), a non-governmental organisation (NGO) who had already been counselling him since the day of his admission to the detention centre, came to talk to him. On the same day Y.C. was subject to an initial hunger-strike examination (Hungerstreik-Eingangsuntersuchung). Y.C. was handed an information pamphlet on hunger strikes (in English) and was also orally informed by the public medical officer of the possible consequences of a hunger strike. A medical hunger-strike protocol (Hungerstreikprotokoll) was filled out, in which his state of health was described as follows:
“Musculature in a good, well-trained state, pronounced muscles of the upper arm, six-pack like someone who practices athletic sports, appears vital, overall.”
13.On the hunger-strike protocol it was noted that at the outset of his hunger strike, Y.C. had weighed 67kg. On the basis of this, Y.C.’s “critical weight” was calculated at 54kg (see paragraph 64 below). Under the heading “reasons given for hunger strike”, it was noted that Y.C. “absolutely wanted to be transferred back to cell no. 36”. He had been placed in a different cell because he and his cellmates had allegedly tried to escape from cell no. 36.
14.Daily health checks of Y.C. were subsequently carried out, during which his weight was checked, his blood pressure was taken and his oxygen saturation level was measured. Until 1 October 2005, no anomalies were detected.
15.On 2 October 2005 the public medical officer noted that Y.C.’s tongue was slightly dry, and on 3 October 2005 that his lips were “barky” (borkig). Further, there were occasional comments on the hunger-strike form to the effect that Y.C. resisted examination and was “malingering” (simuliert) – for example, he had “pretended to fall”, “refused to be examined”, “needed to be carried by other detainees”, and “tilted over from [his] chair in an ostentatious manner”.
16.After examining Y.C. during the morning of 4 October 2005, DrF.G., the police doctor in charge, noted the following:
“Pretends to be weak, has to be physically supported by two detainees – therefore weight check not possible. Dry tongue, barky lips. I request a medical assessment by a specialist. Possibly blood test, ionogram.”
17.On 4 October 2005 at 9.30 a.m., Y.C. was taken to Linz General Hospital (Allgemeines Krankenhaus) for examination and an assessment of whether he was fit enough for further detention. Because Y.C. resisted the examination and kicked out at a nurse, his hands and feet had to be shackled by the police officers who had accompanied him to the hospital. According to a report drawn up by the treating doctor on 4 October 2005, it was “not possible to assess the intake of liquids”, “communication [was] difficult” because Y.C. did not speak German, he had “dry lips” and had his eyes “constantly closed”, but “walking [was] possible if [he was] supported”. The hospital further noted that if his general condition worsened, he would have to be force-fed and taken to a psychiatric ward, because he “lashed out from time to time”. Taking his blood for a blood test had been difficult and risky; nevertheless, with the support of the two police officers, who secured Y.C. in a chair in the examination room, the doctor nonetheless managed to take a small amount of blood. After consulting the senior doctor, the treating doctor formally confirmed Y.C.’s fitness for detention and noted the police doctor’s telephone number in order to contact him after obtaining the results of the blood test.
18. Y.C. was subsequently taken back to the detention centre and at around 11 a.m. was placed alone in a security cell (Sicherheitszelle) because of his behaviour at the hospital. His shackles were removed. The security cell did not contain a water outlet, but Y.C. could request a water bottle at any time. A police officer checked on Y.C. every fifteen to thirty minutes. At 12.30 p.m., Y.C., who was lying on the bed, reacted to the police officer’s presence by lifting his head. When the officer next checked, at 12.50 p.m., he was not breathing anymore and had no pulse. At 1.20 p.m. he was declared dead by an emergency doctor who had been immediately called to the scene. The presumed time of death was 12.40 p.m. His weight was recorded at 59kg. At 1.42 p.m. the blood test results from the hospital examination (see paragraph 17 above) were produced. They indicated that Y.C. had been dehydrated and that he should have been hydrated intravenously and placed in intensive care.
19.In a report of 5 October 2005 the doctor from the hospital noted that Y.C. had been uncooperative during his examination. It had been virtually impossible to take a blood sample as the patient had resisted strongly. At that time nothing had indicated that Y.C.’s physical condition could become life-threatening. In a statement given on 14October 2005 the doctor described Y.C. as not having been weak at all, rather, he had been physically strong and had steadily resisted treatment with all his might (nach Leibeskräften), using the whole of his body and kicking out with his legs. After examination of his tongue, pulse, respiration, heartbeat and skin, he had observed Y.C.’s dry lips, but had seen none of the other usual signs of dehydration or other abnormalities. He further stated that even as an experienced emergency unit doctor, a rapid and fatal development of Y.C.’s situation had not at all been foreseeable by him.
B.Criminal investigation
20.On 4 October 2005, the day of Y.C.’s death, the Linz public prosecutor’s office (Staatsanwaltschaft – hereinafter “the public prosecutor”) instituted a criminal investigation against “unknown offenders” and requested the Linz Regional Court (Landesgericht) to conduct a judicial investigation. The investigating judge ordered that an autopsy be conducted by a sworn and judicially certified expert (beeideter und gerichtlich zertifizierter Sachverständiger); the autopsy was conducted on 5October 2005. On the same day, the investigating judge, in response to a request made by the public prosecutor, delivered a decision ordering the seizure of the blood samples taken from Y.C., together with the pertinent examination report.
21.On 5 October 2005 the Linz Federal Police Authority submitted a detailed report on the circumstances of Y.C.’s death.
22.On 6 October 2005 the public prosecutor requested the Office for Internal Affairs at the Ministry of the Interior (Büro für interne Angelegenheiten des Bundesministeriums für Inneres – hereinafter the “OIA”) for it to carry out an investigation. The request included that interviews be conducted with: the two police officers who had accompanied Y.C. to the hospital on the day of his death; the police doctor who had examined Y.C. on that day; the doctor at Linz General Hospital who had examined Y.C.; the police officers who had been checking on Y.C. when he was placed in the security cell; and Y.C.’s cellmate.
23.On 12 October 2005 the public prosecutor added to the case file a note regarding a telephone conversation between him and Dr H., the expert who had conducted the autopsy, regarding the preliminary findings of that autopsy.
24.The OIA subsequently conducted an investigation at the detention centre’s medical service, procured documents from the detention centre, and produced written records of the requested interviews (see paragraph22 above). The OIA’s report was submitted to the public prosecutor on 18October 2005.
25.On 24 October 2005 the investigating judge complied with a request lodged by the public prosecutor for the inclusion in the case file of the results of the investigation up until that date, as well as for Y.C.’s medical history to be obtained from the detention centre, and for these documents to be transmitted to the expert Dr H. It was further decided that the scale used to weigh Y.C. at the detention centre be seized and sent for technical examination.
26.On 5 November 2005 the OIA submitted a report containing the results of the supplementary investigation.
27.On 1 December 2005, after being supplied with all pertinent documents by the OIA, the Austrian Human Rights Advisory Board (Menschenrechtsbeirat – hereinafter “the Advisory Board” – an independent monitoring body established in 1999 at the Ministry of the Interior) issued a report on Y.C.’s death. In that report, the Advisory Board considered several points to be problematic: that Y.C., after his visit to Linz General Hospital on 4 October 2005, had been further monitored only by police officers, rather than by medical professionals; that no interpreter had been present during the said hospital visit; that a blood sample had been taken from Y.C. against his will; and that the calculation of Y.C.’s critical weight had been questionable. The issues of Y.C.’s possible dehydration and carrying sickle cell disease had not been addressed in the report, as it had been drawn up before the delivery of the final autopsy report by Dr H. (see paragraph 30 below).
28.On 12 December 2005 the applicant, who was represented by counsel, joined the criminal proceedings as a private party.
29.By an order of 14 December 2005 the investigating judge urged the expert to submit his report.
30.On 4 January 2006 Dr H., the forensic expert who had conducted the autopsy, submitted his final autopsy report (dated 5 October 2005), as well as his expert report on Y.C.’s death, to the Linz Regional Court. He stated in the autopsy report that Y.C.’s body had not shown signs of “significantly acute malnutrition”, nor had there been signs of “classic dehydration”.
31.In the more detailed expert report, Dr H. stated that Y.C.’s body had not shown signs of any injuries; therefore, death caused by the use of force could be excluded. Y.C. had been slim, but had not appeared malnourished. His body had weighed 59.3 kg; his height had been 171 cm. No typical external signs of dehydration had been visible, except for the lips appearing to be slightly dry. The results of the internal investigation had recorded a thickening of the blood, which indicated a possible alternation to the blood while Y.C. had still been alive caused by a lack of hydration. Dr H. noted that a hunger strike alone could not lead to a thickening of the blood, as long as enough fluids were consumed. As concerns the hunger strike, Dr H. stated that it was likely that Y.C. had not eaten solid food for several days, but that it was unlikely that he had engaged in a long-term total hunger strike as the large intestine had still been filled with an abundance of stool along its entire length.
32.Dr H. further stated that neither Y.C.’s external appearance nor the medical reports produced until 4 October 2005 had indicated a life‑threatening situation, although there had been a significant reduction in his weight. Rather, it was more likely that a shift in the electrolyte system had commenced over a period of several days, as indicated by the results of the blood test conducted by Linz General Hospital on 4 October 2005. A post-mortem examination of Y.C.’s blood (conducted in the course of the autopsy) had shown that he had been a carrier of sickle cell trait (Sichelzellanlage). Dr H. explained that sickle cell disease (Sichelzellenkrankheit) was an inherited red blood cell disorder; while red blood cells (containing normal haemoglobin) were disc-shaped, sickle haemoglobin could form stiff rods within the cell, changing it into a sickle shape. Dr H. added that the disease was rare among the white population, occurring mostly among black people. Unlike in the case of people suffering from sickle cell disease, in Y.C.’s blood the trait had been present in the heterozygous form, which is why the disease had remained undetected during his lifetime. In cases like Y.C.’s, symptoms of sickle cell disease only manifested themselves if there were further damaging external factors, such as dehydration or a lack of oxygen.
33.Dr H. concluded that the cause of Y.C.’s death had been dehydration, combined with the fact that he had been a carrier of sickle cell trait, which had caused a shift in the electrolyte system and had ultimately caused his heart to stop beating. Neither the authorities nor Y.C. himself had been aware that he had been a carrier of sickle cell trait. Dr H. stated that Y.C.’s death could only have been prevented if he had been tested earlier for sickle cell trait, or if he had been aware that he was a carrier thereof. However, the hunger-strike protocol had not indicated any necessity for a blood test in that respect. The test results from the hospital on the day of Y.C.’s death would have given reason for further tests. However, the results had only been produced after Y.C.’s death.
34.On 12 October 2005 the public prosecutor made a note in the criminal file (Aktenvermerk) about a conversation with Dr H. The doctor had expressed the opinion that with hindsight Y.C.’s extraordinarily aggressive behaviour at the hospital on the day of his death had resembled a delirious state caused by advanced dehydration and the consequent disintegration of his blood cells.
35.On 13 January 2006 the public prosecutor decided to discontinue the criminal investigation into the death of Y.C., as no sufficient evidence could be found to warrant criminal proceedings. The applicant was informed that he had the right to ask the Council Chamber (Ratskammer) of the Linz Regional Court to conduct a preliminary investigation. However, he was also informed that he would have to bear the full costs of the criminal proceedings should the Council Chamber grant his request but the proceedings did not result in a criminal conviction. This decision was served on the applicant’s counsel on 19 January 2006. The applicant did not request that a preliminary investigation be instituted.
36.On 2 March 2006 the applicant submitted the decision of 13February 2006 issued by the Upper Austria Independent Administrative Panel (Unabhänigiger Verwaltungssenat Oberösterreich – hereinafter “the IAP”) (see paragraph 46 below) to the public prosecutor and requested him to investigate further. On 13 March 2006 the public prosecutor replied that the documents submitted had already been made available to him, but that they could not change his assessment of the procedural results obtained so far, since every aspect of the legal question to be answered had already been clarified by Dr H.’s autopsy report and his comprehensive expert report.
C.Administrative proceedings
37.On 15 November 2005 the applicant requested the IAP to review the lawfulness of Y.C.’s detention (Schubhaftbeschwerde) and at the same time lodged a complaint about the conditions of his detention (Maßnahmenbeschwerde). He submitted in particular that Y.C. should not have continued to be kept in detention because he had no longer been fit to be detained on account of his hunger strike. As regards the conditions of Y.C.’s detention, he submitted that the medical treatment of Y.C. had not been in conformity with section 10(1) of the Detention Ordinance (Anhalteordnung – see paragraph 59 below). He furthermore claimed that his brother had been placed in a security cell, without access to water, on the day of his death, in contravention of section5(5) of the Detention Ordinance.
38.On 13 February 2006 the competent member of the IAP held a hearing during which he examined as witnesses the applicant, a cellmate of Y.C., one of the police doctors who had examined Y.C. during his hunger strike, and the police officers who had been in charge of examining detainees on the day of Y.C.’s death.
39.Y.C.’s former cellmate, H.C., stated that they had gone on hunger strike together to protest the duration of their detention, and that they had not been treated correctly by the police officers; however, he did not specify how that treatment had not been correct. He said that he did not remember the exact day on which they had begun their hunger strike, but that they had not eaten or drunk anything at all for twelve days. H.C. stated that he had had the impression that Y.C. had been “terribly weak” during the three days before his death.
40.According to the witness statements by employees of the NGO Human Rights Association Austria who had visited Y.C. on several occasions, Y.C. had not raised any allegations of ill-treatment during their visits. In fact, with the exception of his former cellmate, all other witnesses who had been in contact with Y.C. until his death had also stated during the IAP hearing that he had not appeared to be ill or weak, but that on the contrary, even on the day of his death he had seemed athletic and strong; which had been corroborated by photographs taken of his dead body and its description by Dr H. in the autopsy report (see paragraph 30 above).
41.One of the police doctors, Dr F.G., gave evidence regarding, inter alia, the reason why the calculation of the critical weight of a detainee on hunger strike was based on his or her weight at the outset of the hunger strike, and not the weight recorded upon admission to the detention centre. He stated that detainees usually lost weight slightly during their detention, but that it was also possible for them to gain weight. He acknowledged that he had not even checked Y.C.’s initial weight, as the 65.5 kg recorded on the day after Y.C. had announced his hunger strike had in principle amounted to a normal weight, given his height. Dr F.G. furthermore stated that on 3October 2005 Y.C. had walked into the examination room without support. One day later, Y.C. had showed signs of dehydration and had come to the examination room supported by two police officers. Dr F.G. stated that he had accordingly ordered him to be examined at the hospital.
42. H., the police officer who had accompanied Y.C. to and from the hospital on the day of his death, stated that the reason for Y.C.’s placement in solitary confinement had been that – following Y.C.’s behaviour at the hospital – he and the other officer in charge had feared that Y.C. might harm himself or others. H. confirmed that there had been no water outlet in the security cell, but that Y.C. could have requested a water bottle at any time by ringing a bell.
43.B., the police officer who had been in charge of checking on Y.C. while he was being held in the security cell, stated that he had received an order to do so every fifteen to thirty minutes. During the checks, he had had to make sure that the detainee reacted when spoken to. When B. had checked on Y.C. at 12.30 p.m., the latter had moved his head. At the next check at 12.50 p.m., he had showed no reaction and had subsequently been pronounced dead by the emergency doctor, who had immediately been called to the scene.
44.During the IAP hearing on 13 February 2006 the applicant presented an undated and unsigned three-page statement by DrW.G., whom he had engaged himself and who was a general practitioner in Linz with a focus on nutritional medicine. Dr W.G, who had not examined Y.C.’s body, had based his report on the autopsy report and expert report issued by Dr H., the report of the OIA (see paragraph 24 above) and the report by Linz General Hospital, and had come to the following opinion. On 12 September 2005, the day on which Y.C. had been taken into detention with a view to his expulsion, he had weighed 76.5 kg. On 28September 2005, the day on which Y.C. had announced that he was on hunger strike, he had had a body weight of only 67 kg. The police doctor had made a mistake in taking the latter as the normal weight of Y.C. for the purposes of calculating his critical body weight. The doctor had not taken into account the fact that Y.C. had already lost 9.5 kg between 12 and 28September 2005, meaning that Y.C. must have already started his hunger strike before he had officially announced it. From 28 September until the day of his death on 4October 2005, Y.C. had lost a further 8 kg in body weight. However, the doctor had used Y.C.’s weight on 28 September (namely 67 kg) as a starting point, and had established his critical weight as 54 kg, which in Dr W.G.’s view was incorrect. The police doctor should have based his calculations on how much Y.C. had weighed when he had arrived at the detention centre. If he had, the correct critical weight would have been determined at 67 kg, minus 10%. Instead, Y.C. at the time of his death had already lost approximately 18% of his weight in fluids. For an adult person a loss of even 10% in fluids constituted a life-threatening situation. Dr W.G. assumed that Y.C. had died of dehydration resulting from the erroneous calculation of his body weight. He did not deal with the question of how far the sickle cell trait present in Y.C.’s blood had played a role in his death, nor did he provide any scientific source for his calculations. Dr W.G.’s opinion was later not supported by any of the official experts.
45.The applicant asked the IAP that the second police doctor in charge at the detention centre on the day of Y.C.’s death be questioned, and that another expert report be obtained in order to refute the expert report issued by Dr H. (see paragraphs 30-33 above). The IAP refused these requests.
46.The IAP, at the end of the hearing of 13 February 2006, ruled that Y.C.’s detention pending his expulsion had been unlawful and that the conditions of detention during his hunger strike had violated Y.C.’s right under Article 3 of the Convention to protection against ill-treatment. Concerning the cause of Y.C.’s death, the IAP reiterated the findings of the autopsy report and the expert report attached thereto (see paragraphs 30-33 above). The IAP argued that the State authorities had not fulfilled their role of guarantor of the applicant’s rights under Articles 3 and 5 of the Convention. It found that given the frequency of sickle cell disease among people from sub-Saharan Africa, the State was under an obligation to offer a test for sickle cell disease to all detainees from that specific geographic area, and in particular to those on hunger strike.
47.The Ministry of the Interior appealed against that decision.
48.On 30 August 2007, the Administrative Court quashed the IAP’s decision. It held that the applicant had no locus standi regarding the request for a review of the lawfulness of the detention of his brother because rights under Article 5 of the Convention were not transferable to other persons. Therefore, the IAP had not had authority to issue a decision in that respect. Concerning the complaint under Article 3 of the Convention, it held that the mere fact that a person was detained did not place any duty on the State to take measures (the need for which had not necessarily been foreseeable) because of the genetic disposition of that person without a manifest outbreak of disease in that person. Moreover, it found that the IAP had not respected certain procedural requirements, which is why the Administrative Court referred the case back to the IAP.
49.On 1 April 2008 the applicant lodged an application with the European Court of Human Rights concerning the above-mentioned judgment of the Administrative Court; it was registered as Ceesay v. Austria (no. 17208/08). Thereupon, the IAP decided to suspend the fresh proceedings until such time as the Court rendered its decision in respect of this complaint.
50.On 21 May 2010 the Court declared application no. 17208/08 inadmissible, pursuant to Article 35 §§ 1 and 4 of the Convention, as the proceedings were still pending before the IAP and the complaints lodged by the applicant with the Court were therefore premature.
51.The IAP resumed the proceedings and on 11 June 2010 again issued a decision finding a violation of Article 3 of the Convention in respect of the conditions of Y.C.’s detention. It essentially reiterated the reasoning contained in its previous decision, explaining that the proceedings were not aimed at identifying an individual who could be held culpable for Y.C.’s death but at identifying errors inherent in the detention system – specifically, the lack of a standardised test for sickle cell disease for certain high-risk groups and the lack of clear instructions for the staff of the detention centre concerning detainees on hunger strike.
52.The Ministry of the Interior again lodged a complaint, arguing that there had been sufficient rules and instructions in place concerning the treatment of detainees. In the present case, there had not been any indications that Y.C. had suffered from sickle cell disease. Not even hospitals conducted standardised tests for this blood anomaly where there was no concrete suspicion in that respect. It added that the death of Y.C. had nonetheless prompted the Ministry of the Interior to issue a directive to detention centre authorities instructing them to (i) inform detainees who were on hunger strike and who belonged to a high-risk group of the possible consequences of sickle cell disease, and (ii) conduct the necessary tests.
53.On 20 October 2011 the Administrative Court again quashed the IAP’s decision. It reminded the IAP that it was bound by the legal interpretation that the Administrative Court had expressed in its previous judgment concerning the obligations of the State under Article 3 of the Convention towards detainees (see paragraph 48 above). Moreover, it suggested that the IAP order an expert report in order to determine whether the reduced mental and physical condition of Y.C. should have given rise to an investigation into the possibility that he had been suffering from sickle cell disease and whether appropriate medical treatment from that moment onwards could have prevented the death of Y.C.
54.During the course of the new round of proceedings, the IAP ordered an expert report, as suggested by the Administrative Court. In a report dated 19 May 2012, as well as during the hearing of 21 June 2012, the expert in question, Dr L., confirmed that according to his findings, Y.C. had been a sickle cell trait carrier. He added that this was the case in respect of 30% of the population of countries in sub-Saharan Africa, such as the Gambia (where Y.C. had been from), and that this trait served as a protection from Malaria. The fact that a person was a carrier of sickle cell trait did not mean that he or she was ill or had a lower life expectancy. Nonetheless he or she would face a higher risk of death in the event of engaging in strenuous activities (anstrengungsassoziierte Todesfälle), and the trait could also cause rapid dehydration in the event of reduced liquid intake. Dr L. explained that sickle cell disease could only be detected through an analysis of blood samples, but that the need for such an analysis had at no point been clearly indicated in Y.C.’s case, even in the light of his reduced mental and physical condition.
55.The applicant submitted the same unsigned statement that he had already submitted during the hearing of 13 February 2006 (see paragraph 44 above). He did not submit any further requests. When the expert Dr L. was questioned by the IAP regarding the calculation of Y.C.’s critical weight, he stated that he was inclined to believe that Y.C.’s weight had been correctly calculated, but that that calculation had been wrongly recorded. In his opinion, it was unlikely that Y.C. could have lost 9 kg over the course of a sixteen-day hunger strike.
56.On 13 July 2012 the IAP dismissed the applicant’s complaint about the conditions of Y.C.’s detention, basing its decision on the finding contained in the expert report of Dr L. (see paragraph 54 above) that the need for an analysis of Y.C.’s blood in respect of sickle cell trait had not been indicated. It reiterated that according to the Administrative Court’s legal interpretation, by which it was bound, the State had no duty to take measures the need for which had not been foreseeable in respect of a person because of a certain genetic disposition without a manifest outbreak of the disease in that person. Therefore, the authorities’ conduct had not constituted a violation of Article3.
57.The applicant lodged a complaint with the Constitutional Court, which was dismissed on 22 November 2013.
58.On 25April 2014 the applicant lodged a complaint with the Administrative Court, which, referring to its decisions of 30 August 2007 and 20 October 2011, dismissed it. This decision was served on the applicant on 16 May 2014.
69.The World Medical Association Declaration on Hunger Strikers (adopted by the 43rd World Assembly, Malta, November 1991, editorially revised at the 44th World Medical Assembly in Marbella, Spain, September 1992 and ultimately revised at the 57th WMA General Assembly in Pilansberg, South Africa, October 2006), addresses the conflicting situations faced by doctors in treating hunger strikers and provides guidelines for dealing with them. The relevant provisions of September 1992 “Malta Declaration”, the version in force at the relevant time, can be found in Nevmerzhitsky v. Ukraine, no. 54825/00, §69, ECHR 2005‑II (extracts).

5.The first applicant is a French national who was born in 1970 and lives in Mouroux. He is the brother of the victim, M.B. born in 1968.
The second, third, fourth, fifth and sixth applicants, who were born in 1977, 1973, 1972, 1939 and 1951 respectively, are the victim’s sister, widow, brother, father and mother. They live in Mouroux, Massy, Valentigney and Thulay respectively.
6.On 12 November 2009, at about 4.30 p.m., M.B., who was 1 m80 tall and weighed about 100kilos, went into a pharmacy in Valentigney. He was known to the staff there, where he habitually went to collect the medicine prescribed for his psychiatric disorders.
7.M.B. asked to exchange some medicine dispensed without a prescription, saying he was not satisfied with it. A pharmacist’s assistant, MsR., and the owner of the shop, MrF., explained to him that the effects of the medicine had diminished because he had become addicted to it. M.B. started to become angry, throwing the medicine boxes on the floor, raised his voice and started speaking incoherently:
“I’m fed up with your night visits, with your assistant and with you!”
8.M.B. told Mr F. that he intended to file a complaint against him. Mr F asked MsR. to call the police. M.B. sat down on one of the chairs for customers at the pharmacy.
9.At 4.53 p.m. four police officers arrived on the scene after receiving a call from the incident room instructing them to intervene in an incident involving an individual with psychiatric disorders.
10.Deputy police sergeant L. and police constable M. asked M.B. several times to accompany them out of the pharmacy. When he vehemently refused, sergeant L. and constable D. seized him by the arm in order to remove him from the pharmacy. Constable M. seized M.B. by his right leg. M.B. struggled and called for help.
11.At the doorstep up to the pharmacy M.B. found himself on the ground. Constable M. attempted to handcuff him behind his back while he continued to struggle and appeal to the police for help. Constable M. punched M.B. twice in the solar plexus but still did not succeed in handcuffing him.
12.M.B. was then turned onto his right side and constable D. was able to handcuff him in the front with two pairs of interlinking handcuffs.
13.Deputy police sergeant P. went to get the police vehicle to move it closer to the pharmacy. Two police officers seized M.B. by the arm in order to put him in the van. Despite putting up resistance, M.B. was forced inside the police van.
14.M.B. continued struggling and shouting in the police van and pushed one police officer against the luggage holder above and another against a shelf before falling face downwards. Deputy police sergeant L. positioned himself above his shoulders in order to fasten another pair of handcuffs attaching M.B. to the fixed part of the back seat in the van. ConstablesD. and M. positioned themselves on top of him, on his legs and on his buttocks.
15.At 4.58 p.m., that is, exactly five minutes after they had arrived, the three police officers present in the vehicle contacted their headquarters requesting assistance from the fire brigade and the mobile emergency medical service (SAMU).
16.According to the incident room’s telephone log, at 5.07 p.m. the fire brigade asked the police to transfer M.B. to their vehicle. Deputy police sergeantL. refused to do so on grounds of M.B.’s extremely agitated state.
17.The firemen then drew up a record of M.B.’s condition. He had calmed down, but his heart rate could not be measured with the pulse oximeter because the sensors were not working. One of the firemen constantly monitored his breathing, which stopped at one point. A fireman noted the absence of blood circulation.
18.The team of firemen brought M.B. inside the pharmacy. One of them alerted the ambulance service by radio. The firemen inserted a semi-automatic defibrillator and started carrying out cardiac massage.
19.An emergency doctor from the mobile emergency and intensive care service (SMUR), called out by the firemen, administered specialist cardiopulmonary resuscitation. He recorded M.B.’s death at 6.02 p.m.
20.An investigation into the cause of M.B.’s death was commenced immediately.
21.Of the three pharmacists who gave a statement that day, on 12November 2009, two were present when the police officers had asked M.B. to leave the premises. They confirmed that when M.B. had refused to comply, the police officers had approached him and seized him. They said that M.B. had begun shouting and struggling at that point and had continued shouting and struggling when he had got into the police van, handcuffed. None of the three witnesses had seen what had happened in the police van.
22.One of them stressed the fact that M.B. had been a customer at the pharmacy for a year and a half and had always been very pleasant during his monthly visits to collect his neuroleptics prescription.
23.On the same day Mr S., a volunteer firefighter, was also questioned. He stated that on his arrival M.B. had still been in a highly agitated state, lying face down in the van, with the police officers restraining him: one either sitting or kneeling on the victim’s buttocks, and the other holding his legs; his hands were outstretched and fastened by several handcuffs to the back seat of the van; the victim’s head was on the driver’s side, and his right cheek face down on the floor. He explained that he had requested medical reinforcements and that then, when they observed that his heart had stopped beating, the firemen had decided to take him back into the pharmacy to continue carrying out cardiac massage.
24.On 13 November 2009 one of the pharmacists was questioned a second time. He stated that M.B. had been a regular customer at the pharmacy. He said that the police officers had not hit M.B.
25.Constable M. was questioned the same day. He stated that deputy sergeant L. had introduced himself to M.B. and had asked him to come outside “to explain the problem, as in this type of intervention the aim is to separate the parties”. He explained that M.B. had refused to leave the pharmacy several times despite repeated requests by the police, who had finally dragged hm towards the door. He said that he had then seized M.B.’s right leg and that, just in front of the entrance to the pharmacy, M.B., who had lost his balance, had fallen down. He added that the police officers had then attempted to handcuff him and that when he had resisted attempts to put him in the police van constable D. had pulled his legs, which had unbalanced him and caused both of them and deputy police sergeant L. to fall over in the police van. He said that L. had managed “I don’t know how to pin him back down on the ground”. He also said that in order to finish handcuffing him deputy sergeantL. had squatted down on M.B.’s shoulders while constable D. remained at leg level; as M.B. had continued struggling, he himself had stood on his buttocks. He stated that they had remained “like that for a while, but I cannot tell you how long, it felt like a long time, with me on his buttocks, my colleague on his shoulders and the third officer on his feet, assisted by P., who had crossed his legs to stop him moving. It was then that the fire brigade arrived”.
26.Deputy sergeantL. was also questioned on 13 November 2009. He stated that he had received instructions from his headquarters to go to a pharmacy and had been informed that M.B. “suffered from psychiatric disorders”. He confirmed that M.B. had put up a violent struggle before letting himself slide to the ground in front of the entrance to the pharmacy. He explained that constable M. had administered two punches to the abdomen, using a technique known as “diversionary blows”. As regards the rest, he confirmed the above-mentioned conditions in which M.B. had been handcuffed in the police van.
27.An autopsy was carried out on 13 November 2009. The forensic doctor described and explained the traumatic injuries observed: the injury to the left eyebrow and the associated swelling did not suggest injuries following a blow but were related to an impact by that part of his face on a ridged surface. The other facial injuries suggested close contact on a rough surface. The injuries to the wrists were characteristic of handcuffing. Those to the lower part of the chest and in the abdominal cavity could have been incurred as a result of two violent blows to that area. The forensic doctor specifed that the injuries had caused neither internal bleeding nor fractures. He mainly noted marks on the lungs and 70% stenosis on a heart artery. Dr H.’s report, drawn up on 16November2009, contained the following conclusions:
“Death in all likelihood occurred as a result of heart failure.
An atheromatous attack observed on an artery of the heart exposed him to a severe risk of cardiac rhythm disorders and sudden death.
The state of stress and agitation presented by the victim on his arrest may have contributed to heart failure.
Restriction of chest expansion may have occurred when the victim was restrained, but it cannot be affirmed that mechanical asphyxiation was the cause of death. ...
Recent traumatic injuries consistent with action by third parties were observed. In any event, the various injuries did not directly contribute to the death; nor is there any injury consistent with blows to the face.”
28.On 14 and 23 November 2009 MsS., a shopkeeper, was questioned and stated that she had heard shouts from her shop opposite the pharmacy. She said that she had seen four police officers with a man lying face down with his arms behind his back being punched and kicked. Through a side window of the police van she stated that she had seen a female and a male police officer trampling on the spot while hanging on to the roof of the van, one administering three punches in a downwards movement and lifting his knee up very high before bringing it down in one sharp movement.
29.On 23 November 2009 the shopkeeper’s minor son was questioned and stated that he had seen two police officers trampling on M.B. in the road and that a female police officer had hit him several times with a truncheon in the stomach, back and face.
30.On 3 December 2009 a judicial investigation for manslaughter was opened in respect of a person or persons unknown and assigned to two investigating judges.
31.On an unknown date the applicants applied to join the proceedings as civil parties.
32.On 7 January 2010 Ms C., a neighbour next to the pharmacy, stated that she had seen M.B. struggling, face downwards, outside the pharmacy. She said that the police officers had “thrown him into the van” and that she had left after the doors were closed. She stated that the police officers had not hit M.B.
33.On 21 January 2010 chief brigadier M.D., an instructor in defence and arrest techniques and in the psychological and behavioural aspects of police intervention, was heard as a witness. He stated that in the event of a dispute between people, “the opposing parties shouldin so far as possible be separated”: the police officers, in attempting to induce the M.B. to leave the pharmacy, had sought to avoid a fight in the shop. He said that the blows administered by constable M. and described as “two punches to the suspect’s abdominal area with the aim of distracting and and securely handcuffing him [were] among the priority areas for attempting to weaken the resistance of the person concerned. They [the police officers] had not been over zealous and had completed the handcuffing in the front. The officers had also acted in an emergency situation. The technique used by constable M. appear[ed] the most appropriate in the context of the intervention”. He added that all the techniques taught were designed to weaken resistance to arrest. He specified that, with regard to the immobilisation of M.B. in the van, standing on a person’s buttocks was not among the techniques taught and that positioning oneself across M.B.’s shoulders, as sergeant L. had done, was one of the procedures taught. That technique enabled the officer to prevent the suspect from moving while avoiding postural asphyxiation. He concluded that the intervening officers, having regard to the context of the intervention, had acted with pragmatism and discernment.
34.Reports were produced by several experts appointed by one of the investigating judges. On 23 June 2010 DrL., professor of forensic medicine, and DrR., lecturer in forensic medicine, provided a forensic medical report after examining M.B.’s body on 18December 2009. They stated that their examinations had revealed “a series of cutaneous lesions that could not have contributed to the death”. They did not indicate evidence of any “factor suggesting death by chest compression”. There was thus no evidence of “petechial subconjunctival injuries or of facial petechial injuries”. They stated as follows:
“our examination of the sealed evidence has not revealed any elements indicating the cause of death of [M.B.]. The sealed evidence shows that he was receiving psychiatric treatment for psychosis with several episodes of hallucination requiring the regular ingestion of antipsychotic medicines. ... At the levels measured, the ingestion of psychoactive drugs revealed by the toxicological investigations does not appear capable of explaining the victim’s death by a process of direct toxicity. ... In conclusion, the death of [M.B.] ... is in all likelihood the result of myocardial failure. The death is due to natural causes.”
35.On 10 December 2010 Dr T. and Dr F. produced their anatomopathological expert report after examining a copy of the autopsy report of 16November 2009, a copy of the interviews with the members of the police patrol team who had arrested M.B., a copy of the record of examination of two witnesses, various sealed samples collected both by Dr H. and by Professor L. and Dr R.:
“[M.B] died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress.... In conclusion, the intense and prolonged emotional stress, and the prolonged and severe agitation, which started in the pharmacy and contined during the arrest explain the series of physiopathological phenomena which caused the death: (1) intense stimulation of the sympathetic nervous system (adrenergic neuro-hormonal system), (2) coronary-ischemic spasm, (3) fatal cardiac rhythm disorders.”
36.On 14 and 16 December 2010 and 19 January 2011 the four police officers appeared for the first time as assisted witnesses.
37.On 8 April 2011 a reconstruction was organised, by the two investigating judges in charge of the case, in the presence of the civil parties’ lawyers and the assisted witnesses. During the visit to the scene the forensic doctor stated that he had not noted any traumatic injury consistent with the violence described by the witness Ms S, the only injuries suggesting direct action by a third party being those corresponding to the punches administered to the stomach.
38.On 5 July 2011 Dr C., university professor, neurologist and psychiatrist, and head of a forensic medical department, examined M.B.’s medical file at his psychiatrist’s surgery, his medical file at the casualty department of Montbéliard Hospital, and the medical file kept by M.B.’s general practioner. He stated that M.B., who had been receiving psychiatric care for many years, had been admitted to a hospital psychiatric unit several times and presented a psychotic disorder characterised by delusional notions of a betwitching, persecutory and interpretative type During his most recent hospital consultation he had been diagnosed with paranoid psychosis, which is related to schizophrenia. Dr C. concluded his report as follows:
“[M.B.] presented a serious psychiatric disorder, namely, delusional psychosis, which explains the initial altercation with the pharmacist and his subsequent state of extreme agitation when the police officers attempted to induce him to leave the pharmacy. It is also possible that the intervention by the police was interpreted in a delusional manner.
When the SMUR [mobile emergency and intensive care service] intervened the criterion of seriousness was ... the fact that [M.B.] had been suffering from heart failure for approximately twenty minutes.
The superficial injuries observed, during the autopsy, to the right-hand side of the face and the front of the knees [appear to him] compatible with immobilisation on the floor of the van and the petechial injuries to the upper abdomen and the left abdominal region are compatible with punches administered as described in the autopsy report.”
39.On 25 November 2011 the Ombudsman, an institution independent of the State, having the task, inter alia, of ensuring compliance by the police with their code of professional ethics, to whom a member of parliament had submitted the case, produced a report. He found that whilst the police officers had been very quick to seek the assistance of the fire brigade and the emergency medical service, it was regrettable that the situation had been inaccurately described by the incident room to the firemen prior to their intervention (the latter had been informed of M.B.’s “withdrawal symptoms”). He considered that there had been no imminent danger to people or property in the pharmacy and thus no urgent need to remove M.B. as soon as possible. He stated that the immobilisation and compression procedures carried out in the van had been dangerous and disproportionate. He described as “amouting to a serious infringement of human dignity and to inhuman and degrading treatment within the meaning of Article 3” the techniques used by constables D. and M. to pin M.B. to the floor of the police van. The Ombudsman also noted conflicting statements by the police officers regarding whethere there had been physical violence other than the two diversionary blows and pointed out that no witnesses had been present throughout the entire incident. The Ombudsman concluded that the precipitation with which the police had acted had led them to make an erroneous assessment of M.B.’s situation and to react in a stereotypical manner rather than adjust their conduct during the intervention, despite the fact that they knew that M.B. was receiving treatment for psychiatric disorders and that they had been able to observe abnormal behaviour on his part. He recommended reinforcing the initial and continuous training of police officers with regard to dealing with persons suffering from a mental disorder. Lastly, he recommended that disciplinary proceedings be brought against the four police officers who had arrested M.B. for “disproportionate use of force or failing to cease using such force”.
40.On 18 January 2012 Dr T. and Dr F. supplemented their expert report of 10December 2010. They confirmed the conclusion of their earlier report and ruled out mechanical asphyxia: “M.B. died suddenly of cardiac rhythm disorders, with no occurrence of mechanical asphyxia.” They reiterated the part played by extreme stress in the death, stating that “the adrenergic stimulation was related to the extreme and prolonged emotional and physical stress. The stress lasted approximately one hour and thirty minutes, starting in the pharmacy and continuing throughout the arrest”.
41.On 26 March 2012 the four police officers who had arrested M.B. were charged with manslaughter as a result of the manifestly wilful violation of a legal or statutory duty of caution and security.
42.On 5 November 2012 the the public prosecutor at the Montbéliard tribunal de grande instance filed submissions recommending that the charges be dropped.
43.On 21 December 2012 the investigating judges ruled that there was no case to answer. They found that whilst it was true that M.B. had been in a relatively calm state, the pharmacist had nonetheless considered his behaviour sufficiently disturbing to inform the police of the presence in his establishment of a person in an agitated state and suffering from psychiatric disorders. They observed that the police officers had not immediately used force and that, on being informed of M.B.’s pyschiatric pathology, they had called the emergency medical service. The judges found that the evidence given by MsS. had been invalidated by the observations made during the reconstruction, the statements made by the pharmacists and the conclusions of the forensic doctor. The investigating judges observed as follows:
“... pinning [M.B.] to the ground was not identified by the medical experts as the direct cause of the death. Whilst the intervention by the police inevitably generated stress, the victim had already been stressed well before their intervention. As the police did not know about [M.B.’s] heart disease, of which he himself was unaware, they could not foresee that the combination of these two factors [stress and heart disease] could create a risk for the victim.”
44.The judges considered that the force used by the police officers had been necessary and proportionate “even if being pinned down in the van, byL. and P. and M.’s position – standing on [M.B.’s] legs – may appear objectionable in absolute terms”.
45.The applicants appealed against that ruling. On 16October 2013 the Investigation Division of the Besançon Court of Appeal upheld the decision finding no case to answer on the following grounds:
“[M.B.’s death was due] according to the forensic doctor who carried out the initial autopsy ... to heart failure in circumstances of stress and effort acting on a predisposed heart condition; the second forensic report supported the finding of cutaneous injuries that could not have been a contributory cause of death and ruled out death due to chest compression; the experts indicated that the death of [M.B.] was, in all likelihood, the result of myocardial failure and natural causes; the anatomopathological report ... [led] the experts to conclude that [M.B.] had died suddenly of cardiac rhythm disorders owing to a coronary spasm triggered by a context of intense and prolonged emotional and physical stress, and formally ruled out mechanical asphyxia; lastly, the forensic and psychiatric expert ... concluded that [M.B.] presented a serious psychiatric disorder ... which explained the initial altercation with the pharmacist and the ensuing state of extreme agitation when the police officers attempted to induce him to leave the pharmacy, as their intervention could have been interpreted in a delusional manner”.
46.With regard to the conditions of arrest, the Investigation Division found that the agitated state and the “recalcitrant, not to say violent, behaviour of [M.B.] had obliged the police officers to use force and intervention techniques, which they had been taught, to restrain him”, including the two punches administered by constable M. “who explained that he had used a technique taught to police officers to assist in handcuffing suspects by creating a surprise effect, that explanation being confirmed by his colleagues and instructor”. The Investigation Division found that M.B. had been pinned to the floor of the van in conditions that had been “admittedly unusual, or even objectionable”, but that these had preserved the respiratory capacity and ventilation of a person who “was continuing to oppose strong resistance to the police officers”. It concluded that “no inadvertence, lack of care, inattention, negligence or breach of a statutory or legal duty of protection or care, or gross negligence [could] be attributed [to the police officers] in the death of [M.B.]”.
47.The applicants appealed on points of law. On 18 November 2014 the Court of Cassation dismissed their appeal on the following grounds:
“... the Court of Cassation is satisfied on the basis of the grounds of the judgment being appealed that in upholding the decision finding no case to answer the Investigation Division, after analysing all the facts referred to it and addressing the main grounds in the statement of appeal, gave sufficient and coherent reasons for their finding that the investigation had been thorough and that there was insufficient evidence on which to convict the persons charged with of manslaughter or any other offence...”
...

THE CIRCUMSTANCES OF THE CASE
5.The applicant was born in 1971 and is serving a prison sentence in Valuyki, the Belgorod region.
A.The applicant’s alleged ill-treatment in police custody
6.On 14 June 2006 Ms I., a university student, disappeared.
7.On 15 June 2006 her mother reported her missing to the Severnyy police department of the Kominternovskiy district of Voronezh, which initiated a search for her.According to the applicant, on the morning of 17June 2006 the police searched his flat without drawing up a record. They then searched his car.According to police records, the applicant’s car was searched between 10.10 and 11.20 a.m. that day in connection with I.’s disappearance by an investigator of the Severnyy police department.
8.After the search the applicant was taken to the Severnyy police department, where he was interviewed about I.’s whereabouts. He stated that he knew I. and had last seen her on 14 June 2006 but was unaware of her whereabouts. A record of his “explanation” (объяснение) was drawn up by operative officer M.
9.According to the applicant, police officers beat him up in order to extract information from him about I.’s whereabouts.
10.According to the Government, after being interviewed the applicant was released and later taken again to the police station. A record drawn up by operative officer M. states that at 9 p.m. on 17 June 2006 the applicant was taken in for committing petty hooliganism in the vicinity of the police station by swearing at passers-by. It is stated in the record that he had no injuries. According to a decision delivered by the acting head of the Severnyy police department in administrative proceedings conducted the same day, the applicant was found guilty of petty hooliganism and fined. At 11.50 p.m. that evening his administrative detention was ordered by the police.
11.The applicant was detained at the Severnyy police department until 10.40 a.m. on 19 June 2006. He was then taken to the Sovetskiy police department, where further operative measures in connection with I.’s disappearance were carried out.
12.According to the applicant, he was subjected to beatings and given electric shocks by police officers of the Sovetskiy police department in order to make him give information about I.’s whereabouts. He allegedly had a cap put on his head so that he could not see anything and was taken by car out of town, where he was beaten up and given electric shocks with wires attached to his little fingers. His mouth was taped so that he would not scream. When he was ready to give a statement in order to stop the torture, he was taken to a river bank and shown a dead body. He was thrown on the ground and kicked. When taken back to the Sovetskiy police department, he made a confession statement to an investigator in the presence of the same police officers who had ill‑treated him.
13.According to the applicant’s “explanation” (объяснение) given to investigator S. of the Sovetskiy district prosecutor’s office of Voronezh on 19 June 2006, he confessed to the murder of I. by strangulation. He also stated that he had been beaten up and had received all his injuries at the Severnyy police department, but had not been subjected to any ill‑treatment at the Sovetskiy police department, and had no complaints against its officers. The applicant was then taken to the place where he had allegedly hidden I.’s body. According to a record drawn up by investigator S., an examination of the place was carried out between 11 p.m. and midnight, and a woman’s body was recovered.
14.At 12.50 a.m. on 20 June 2006 investigator S. arrested the applicant as a suspect and questioned him between 1 and 1.50 a.m., and then between 11 and 11.15 a.m., in the presence of P., a State-appointed lawyer invited by investigator S. The applicant reiterated his earlier self‑incriminating statements, as well as the statements concerning his ill‑treatment at the Severnyy police department. He also stated that he had burnt I.’s body after he had strangled her. Between 11.30 a.m. and 1.32p.m. his statements were verified at the scene of the crime by investigator S. in the presence of lawyer P. and operative officers of the Sovetskiy police department. The applicant also showed where he had hidden the victim’s mobile telephone.
15.On 20 June 2006 investigator S. ordered a forensic medical examination of the applicant. That day an operative officer of the Sovetskiy police department took him to the Voronezh Regional Forensic Medical Bureau. An expert recorded multiple bruises and abrasions on his face, head, trunk and upper and lower extremities. The applicant stated that the injuries had been inflicted after his arrest on 17June 2006 by police officers who had punched him in the head and different parts of his body and beaten him with a rubber baton on the back and legs. The expert concluded that the injuries could have been inflicted by a blunt object between one and three days before the examination.
16.On 21 June 2006 the applicant was questioned as an accused by investigator S. in the presence of lawyer P. He confirmed his earlier self‑incriminating statements and statements concerning his alleged ill‑treatment at the Severnyy police department.
17.On the same day the Sovetskiy District Court of Voronezh (“the District Court”) ordered the applicant’s detention at a hearing in the presence of lawyer P. He was placed in detention facility SIZO-36/1. In the criminal proceedings that followed the applicant was represented by a lawyer hired for him by his family.
18.On 28 June 2006 investigator S. communicated the applicant’s allegations concerning the unlawful actions of the police officers from the Severnyy police department to the Kominternovskiy district prosecutor’s office of Voronezh. An investigator of that prosecutor’s office carried out a pre-investigation inquiry and refused to institute criminal proceedings into the applicant’s complaint. His two decisions of 1July and 2 August 2006 were annulled by his superiors on the grounds that they had been based on an incomplete inquiry.
19.In the most recent refusal of 29 September 2006 to institute criminal proceedings for lack of evidence that the officers of the Severnyy police department had committed a crime, the investigator established the facts as follows, relying on the police officers’ statements.On 17June 2006 certain operative officers of the criminal search unit of the Severnyy police department carried out operational-search activities in connection with I.’s disappearance. In order to check the applicant’s involvement in I.’s disappearance they took him to the Severnyy police department with his consent and interviewed him. After receiving his “explanation” M. released him. That evening M. took him to the police station again for swearing on the street near the police station. From 9.50p.m. on 17 June until 10.40 a.m. on 19June 2006 the applicant was detained in a cell for administrative offenders. He was then taken to the Sovetskiy police department. No physical force was used against him, and no complaints were made by him.
20.The investigator noted that on the two occasions the applicant had been taken to the Severnyy police department – first, for giving statements in relation to I.’s disappearance, and second, for having committed the administrative offence – he had had no injuries. In the same decision the investigator suggested that the applicant’s injuries could have been inflicted by a third party outside the Severnyy police department, between 17 and 19June 2006, between one and three days before his medical examination by the forensic expert on 20 June 2006.
21.On an unspecified date the applicant also complained about the unlawful actions of officers of the Sovetskiy police department, explaining that he had blamed the officers of the Severnyy police department for all his injuries for fear of reprisals from the officers of the Sovetskiy department, in whose hands he had been at the time. An investigator of the Sovetskiy district prosecutor’s office of Voronezh carried out a pre‑investigation inquiry and refused to institute criminal proceedings into the applicant’s complaint. His decision of 10 August 2006 was annulled by his superior as unlawful and unfounded.
22.In the most recent refusal of 21 September 2006 to institute criminal proceedings for lack of evidence that a crime had been committed, the investigator found, relying on statements by the operative officers of the Sovetskiy police department, that the applicant had been taken to the station with his consent and had confessed to the murder of I. He had also shown where he had hidden her body voluntarily, without any coercion.
23.An appeal by the applicant of 17 May 2007 against the investigators’ decisions was not examined by the District Court because by that time he had been convicted by a final judgment, as was stated by the court in a letter of 4 June 2007.
B.The applicant’s trial
24.At his trial the applicant pleaded innocent and submitted that he had given the self-incriminating statements at the preliminary investigation stage as a result of physical coercion by officers of the Severnyy and Sovetskiy police departments.His counsel requested that the records of the investigative measures carried out on 19, 20 and 21June 2006 be declared inadmissible, arguing, inter alia, that they had been obtained in the presence of lawyer P., who had been invited by investigator S. in breach of the relevant procedure and without the applicant’s consent.
25.The District Court dismissed the request, noting that all investigative measures since the applicant’s arrest as a suspect on 20 June 2006 had been carried out in the presence of lawyer P. Moreover, there was no evidence that the applicant had rejected her services. Following his confession, recorded in his “explanation” to the investigator of 19June 2006, the applicant had shown where he had hidden I.’s body, which had not required the presence of a lawyer. The court based its findings on the self‑incriminating statements given by the applicant in the preliminary investigation, noting that his allegations of ill‑treatment in police custody had been examined and dismissed by the Sovetskiy and Kominternovskiy district prosecutor’s offices in decisions of 21 and 29 September 2006 respectively.
26.On 25 October 2006 the District Court convicted the applicant of aggravated murder and sentenced him to twelve years’ imprisonment.
27.On 30 November 2006 the Council of the Voronezh Regional Bar Association examined a disciplinary case against lawyer P. which originated in a complaint by the applicant. It found that P. had defended the applicant at investigator S.’s direct invitation, surpassing the Council of the Voronezh Regional Bar Association in breach of the relevant procedure. P. was subjected to disciplinary liability in the form of a warning. On 5 December 2006 the Council informed the applicant of its decision, explaining that there was nothing to suggest that P. had failed to properly defend the applicant. However, it had established a breach of the procedure for providing legal assistance at the invitation of the investigating authorities.
28.On 6 February 2007 the Voronezh Regional Court upheld the judgment on an appeal by the applicant, fully endorsing the trial court’s findings.
29.Applications by the applicant for supervisory review of his case were dismissed by the Regional Court.

6.The applicant was born in 1965. When he lodged his application he was in prison serving a sentence for economic offences.
A.The applicant’s imprisonment and applications for an interruption of the sentence on medical grounds
7.In 2002 the National Anti-Corruption Prosecution Service commenced proceedings against the applicant on charges of involvement in a vast criminal network operating in the economic field, involving several dozen individuals and some one hundred business companies. With the complicity of bank employees, fraudulent appropriations were granted to those companies, which money was then misused for the benefit of the accused.
8.By final judgment of 28 February 2013 the High Court of Cassation and Justice convicted the applicant on conspiracy charges, sentencing him to three years, four months’ imprisonment.
9.Meanwhile, in November 2012, the applicant had been diagnosed with prostate cancer. At that time the illness had already reached an advanced stage and the applicant displayed bone metastases, brain haematoma and intraocular haemorrhages. On 27November 2012 the applicant had been admitted to the Bucharest Institute of Oncology, from which he had been discharged on 11 January 2013. From 14 to 18 January 2013 he had once again been admitted to hospital. He had undergone prostate surgery and begun chemotherapy. He had subsequently had several short stays in hospital. In January 2013 the diagnosis reached by the oncologist had emphasised the seriousness of the applicant’s condition. The prognosis was that he had a short time to live given that the disease had spread to the bone, for which condition the existing treatment was insufficient. On 26February 2013 the applicant was examined by a medical board, which issued him with a certificate of severe disability.
10.On 28 February 2013 the applicant was taken into Bacău Hospital oncology department. His state had worsened and he was suffering from bone pain. The applicant continued his chemotherapy and remained in hospital until 4 March 2013, when he was handed over to police officers who had come to escort him to Bacău Prison where he was to begin serving his sentence.
11.On the same day the applicant, through the intermediary of his lawyer, applied to the Bacău County Court for an interruption of his prison sentence on health grounds. He pointed out that since he could not receive his treatment in prison, his life would be in danger.
12.On 27 March 2013 he was transferred to the Rahova Prison Hospital. On 5 April 2013 he returned to Bacău Prison. On 15 April 2013 he was readmitted to the Rahova Prison Hospital, and then transferred back to Bacău prison on 28 May 2013.
13.The court commissioned a report on the applicant’s condition from a board of the National Institute of Forensic Medicine. At the board’s request, the applicant underwent several medical examinations, which showed that his condition required radiotherapy sessions and further chemotherapy. Furthermore, it transpired from the medical documents made available to the committee that the applicant had had chemotherapy sessions at Bacău Hospital on 12 April 2013 and at the Bucharest Institute of Oncology on 10 and 17 May 2013.
14.In its report of 19 June 2013 the board concluded that the applicant’s survival depended on the medical care with which he was being provided and a complex form of treatment which he could only receive in specialised clinics operating under the Ministry of Health. Consequently, it considered that the court had to order either an interruption of the applicant’s sentence or his hospitalisation under supervision in one of the aforementioned establishments.
15.On 25 June 2013 the court allowed the applicant’s request and ordered a three-month interruption of his sentence. Having regard to the seriousness of the applicant’s illness, it ruled that hospitalisation under supervision would considerably reduce his chances of survival and recovery owing to the stress and mental suffering caused by the continued execution of his sentence. Moreover, the court emphasised that the applicant posed no threat to public order, that the sentence, one third of which had already been served, was reasonably short and that the applicant’s conduct had been good throughout the criminal proceedings. The prosecution appealed.
16.The applicant was released on the same day. On 4 and 19 July 2013 he underwent chemotherapy at Bacău Hospital and continued the treatment on 1 and 16 August 2013 at the Bucharest Institute of Oncology.
17.On 29 August 2013 the Bacău Court of Appeal considered the prosecution appeal. By final judgment delivered the same day, it allowed the appeal and dismissed the applicant’s request. Relying on Articles 455 and 453 of the Code of Criminal Procedure (hereafter “theCPP” - see paragraph 34 below), the Court of Appeal ruled that the interruption of the applicant’s sentence was unjustified provided that his treatment could continue, under guard, in a civil hospital. In a dissenting opinion, one of the judges on the trial bench considered that the sentence should be interrupted on humanitarian grounds; consequently, having regard to the applicant’s condition, he considered that his continued detention was in breach of the proportionality principle and reduced his chances of survival.
18.On 31 August 2013 the applicant was imprisoned in Bacău to serve his sentence. On 24 September 2013 he was transferred to Vaslui Prison. On 27 September 2013 he was admitted to the Rahova Prison hospital. On 3 October 2013 he returned to Vaslui Prison.
19.On 4October 2013 the applicant was admitted to Târgu Ocna Prison hospital, diagnosed with “prostatic neoplasia with bone and brain metastases”. On the same day, noting the deterioration in the applicant’s general condition, a multidisciplinary team from the Târgu Ocna Prison hospital placed a prisoner on constant standby to assist the applicant in his everyday activities. That prisoner reportedly assisted the applicant up until the day of his last transfer to Bacău Hospital (see paragraph 28 below).
20.On 9 October 2013 the applicant was once again transferred to Bacău Prison, from whence he was taken, on the same day, to the Bacău Hospital oncology department. He was unable to move, was suffering from severe bone pain and had almost completely lost his sight and hearing. Furthermore, he was also showing signs of severe depression. His condition was so severe that he could no longer undergo chemotherapy, which was replaced by palliative care.
21.The applicant remained in the Bacău Hospital oncology department until 24 October 2013, when he was transferred to Iaşi Prison. On 28October 2013 he was taken into the Iaşi Regional Institute of Oncology for five palliative radiotherapy sessions geared to alleviating his bone pain. He remained in the institute until 1 November 2013. He lost his sight completely and his depression continued.
22.On 5 November 2013 he was transferred to Vaslui Prison. On 6November 2013 he was admitted to the Târgu Ocna Prison hospital where he stayed until 12 November 2013, when he was transferred to Bacău Prison.
23.On 22 November 2013 the judge delegated to Bacău Prison granted the applicant the most favourable possible detention regime, allowing him to move around inside prison and to take part in outdoor activities unsupervised.
24.Still on 22 November 2013, the applicant was admitted to the Bacău Hospital oncology department. The senior medical officer said that the applicant’s condition could deteriorate suddenly and that he therefore needed round-the-clock medical care. From 25 to 27November 2013 the applicant received palliative care in the same hospital before being transferred to Bacău Prison and then to the Târgu Ocna Prison hospital.
25.In reply to a request from the applicant to be released on licence, the Prison Director told him that his request would be examined in 2015.
26.The applicant wrote to the President of the Romanian Republic and the Director of Târgu Ocna Prison to request their assistance regarding his release. He explained that he was dying and that he wanted to have his family present. He pointed out that he was now bedridden, blind and deaf, and that there was no one in prison to assist him in his everyday activities. He added that the doctors had been reluctant to treat him because had was keep under guard and in handcuffs.
27.The National Administration of Prison Authorities replied that only a court could order his release.
28.On 4 December 2013 the applicant was transferred to Bacău Prison and then to Bacău Hospital, where he remained until 7 December 2013. On that date he was transferred to the Târgu Ocna Prison Hospital. On 19December 2013 he returned to Bacău Prison and the same day was admitted to the Bacău Hospital oncology department. He died there on 24December 2013.
B.The medical reports supplied by thehospitals
29.It transpires from the medical files included in the case file that between 24January 2013 and 24 December 2013, the date of his death, the applicant was admitted to Bacău hospital eighteen times, including several hospital stays lasting several days. During those stays he had some fifteen chemotherapy sessions, usually at fortnightly intervals: prior to 24 October 2013 in the framework of the cancer treatment, and after that date, in the framework of palliative treatment. He also received various types of treatment for the illnesses caused by the metastatic progression of his prostate cancer.
30.In a report drawn up at the Government agent’s request, the senior medical officer at the Bacău Hospital oncology department highlighted certain dysfunctions in the administration of the treatment. Drawing on the medical files relating to the applicant’s stays in that hospital, he pointed out that on 14 March 2013 the applicant had begun the chemotherapy without having received the radiotherapy recommended by the doctors in his department. He added that the chemotherapy session scheduled for between 28 and 30 March 2013 had not taken place because the applicant had been absent, having been transferred to the Bucharest Institute of Oncology for examinations. Lastly, he noted that on 18September 2013 the applicant had arrived late at the hospital to continue his chemotherapy. Furthermore, when the applicant had been hospitalised, he had been guarded by two police officers and had remained handcuffed to the bed, even after he had become blind and deaf and was suffering extreme bone pain.
31.In a report of 21 September 2015, the Iaşi Regional Institute of Oncology pointed out that between 28October and 1 November 2013, the applicant had had five radiotherapy sessions, had kept the medical appointments made and had been neither handcuffed nor immobilised during those sessions.
32.In a report of 22 September 2015, the Bucharest Institute of Oncology pointed out that the applicant had been hospitalised several times in the institute between 27 November 2012 and 24 May 2013, primarily for chemotherapy. The institute’s senior medical officer stated in the report that the applicant had duly respected all his medical appointments and that during his stays at the institute he had not been constrained but had been guarded by prison officers.
C.The applicant’s conditions of detention
33.According to the information provided by the prison authorities, the applicant had been held in Bacău Prison in a cell measuring 33 m2, which he had shared with six other prisoners. At Rahova Prison hospital he had shared a 38-m2 cell with four other prisoners. At Vaslui Prison, where he was held from 24 to 27 September, from 3 to 4 October and from 5 to 6November 2013, he had occupied a 14.75-m2 cell with six other prisoners. At Târgu Ocna Prison hospital he had been held in a 48-m2 cell with eight other prisoners. At Iaşi Prison he had remained from 24 October to 5 November 2013 in a 15.92-m2 cell with three other prisoners.

7.The applicant was born in 1973, lives in Austria since 2001 and is currently in detention pending extradition at Vienna-Josefstadt Prison.
8.The application concerns proceedings for extradition from Austria to Kosovo, which have the following background:
9.S.Lu. is the former husband of the applicant’s sister, T.L. In the course of an argument on 9 October 2001, S.Lu. stabbed the applicant in the chest. On 27 May 2002 S.Lu. was convicted in Austria of attempted intentional homicide (versuchter Totschlag) committed in a comprehensible state of emotion (in einer allgemein begreiflichen heftigen Gemütsbewegung) under Articles 15 and 76 of the Criminal Code (Strafgesetzbuch) and sentenced to five years’ imprisonment. The applicant testified as a witness during that trial.
10.After S.Lu. was released from prison in 2005, the applicant’s sister reported him to the police for having repeatedly raped her during their marriage, and for threatening to kill her and her family. Out of fear of her husband, she changed her and her children’s names. An order to determine S.Lu.’s whereabouts (Ausschreibung zur Aufenthaltsbestimmung) was issued by the Vienna public prosecutor’s office in 2008 and is in effect until 2February 2018.
11.On the basis of an international arrest warrant issued by the Mitrovica District Court (Kosovo) on 26 November 2010 and 6 May 2011, the applicant was apprehended and taken into detention pending extradition by a decision of the Vienna Regional Criminal Court (Straflandesgericht Wien – hereinafter “the Criminal Court”) of 15 January 2016. On 20January 2016 the Ministry of Justice of Kosovo requested the applicant’s extradition. According to the arrest warrant, the applicant was suspected of aggravated murder under Article 147 § 7 in conjunction with Article 24 of the Kosovo Criminal Code. He had allegedly ordered L.Q. in July 2010 to murder S.Lu. (his former brother-in-law) for a payment of 30,000 euros (EUR). On 3 August 2010 L.Q. fired gunshots at a car in the vicinity of the intended victim S.Lu., but instead killed N.Lu., S.Lu.’s cousin.
12.During the extradition proceedings, the applicant alleged that he had nothing to do with the murder in Kosovo. He claimed that the accusations had been invented by S.Lu. as revenge for the applicant’s having testified against him during the criminal proceedings in Austria. Furthermore, the “Lu. clan” (the family of S.Lu.) was very influential in Kosovo and had connections to the highest Government officials and the justice authorities there, which is why the applicant could not expect a fair trial in that jurisdiction. In addition, the conditions of detention in Kosovo prisons were deplorable and would amount to torture, inhuman and degrading treatment. Because of the threat emanating from S.Lu. and his family, the applicant would have to fear for his life there. They could easily get to him in prison by using their connections.
13.On 24 February 2016, after having held an oral hearing, the Criminal Court declared the applicant’s extradition to Kosovo permissible. It held that during the extradition proceedings, the court was not called on to examine whether the applicant was guilty or innocent, but merely to assess whether there was enough evidence to raise suspicions against him, which according to the documents submitted by the Kosovo authorities was the case. None of the evidence offered by the applicant had been capable of dispelling these suspicions immediately and without doubt, as would have been required by section 33(2) of the Extradition and Legal Aid Act (Auslieferungs- und Rechtshilfegesetz – hereinafter “the Extradition Act”). The fact that S.Lu. had been convicted of attempted intentional homicide in 2002 and the allegation that he wanted to take revenge on the applicant did not dispell the suspicion either. Furthermore, the court remarked that S.Lu.’s cousin had actually been killed, which called into question the applicant’s theory of that being a contrived story. It could equally be argued that the applicant had wanted to take revenge on S.Lu. for stabbing him. Concerning the applicant’s fear for his life in Kosovo, the court stated that the mere possibility of inhuman or degrading treatment did not suffice. The applicant had failed to adduce specific evidence of an actual, individual threat of treatment contrary to Article 3 of the Convention. Furthermore, in case of extradition to a member state of the Convention, the responsibility of the extraditing state was limited, as the person concerned could seek protection against a violation of the Convention in the receiving state.
14.On 24 March 2016 the applicant appealed. He submitted that if extradited to Kosovo, he risked treatment contrary to Article 3, because Lu. Clan wished to take revenge on him. In fact, Sm. Lu., a very influential member of that clan, was detained at Mitrovica prison and following extradition to Kosovo, he would be detained at that prison as well. Security in prison in Kosovo was a problem, as prisoners became frequently victims of aggression, and he would therefore also risk to become the victim of an assault.
15.On 31 May 2016 the Vienna Court of Appeal (Oberlandesgericht Wien ‑ hereinafter “the Court of Appeal”) dismissed the applicant’s appeal. It confirmed the Criminal Court’s finding that the applicant had failed to substantiate a real and individual risk of being subjected to torture, inhuman or degrading treatment, or that the Kosovo authorities would not be able to protect him from third, private parties. Furthermore, members of the allegedly influential Lu. clan were themselves imprisoned in Kosovo. In particular, on 21 January 2008 S.Lu. was convicted in Kosovo for issuing a dangerous threat against the applicant, which demonstrated that the Kosovo authorities were indeed capable of taking adequate measures to protect the applicant. Moreover, the Lu. clan could not be that influential if it was not capable of keeping its own members out of prison. Concerning the conditions of detention, the court held that the report on Kosovo by the Committee for the Prevention of Torture (hereinafter “the CPT”) of 2011 (see paragraph 30 below) did not state that ill-treatment was the rule in Kosovo prisons, but that there were merely sporadic incidents of violence. The mere possibility of ill-treatment by prison officers did not suffice to stop the applicant’s extradition. In relation to the material conditions of detention in Mitrovica Detention Centre, where the applicant alleged he would most likely be held if extradited, the Court of Appeal again quoted the above-mentioned CPT report of 2011, where it was found that inmates were able to move freely within that facility during the day and could exercise outside on a daily basis for three and a half hours, and that fitness and computer rooms have recently been installed.
16.On 13 June 2016 the Austrian Federal Minister of Justice (Justizminister) approved the applicant’s extradition to Kosovo.
17.On 20 June 2016 the applicant requested that the Court indicate to the Austrian Government to stay his extradition to Kosovo under Rule 39 of the Rules of Court. He complained under Articles 2 and 3 of the Convention that he would run the risk of torture, inhuman or degrading treatment or even death, as the Lu. clan wanted to take revenge on him and the Kosovo authorities were not willing or able to afford him protection.
18.On 22 June 2016 the Court granted the applicant’s request.
19.On 17 June 2016 the applicant lodged applications for the reopening (Wiederaufnahme) of the extradition proceedings and a stay of the extradition with the Criminal Court. He produced a certified declaration by L.Q., who had retracted his previous confession to the police that the applicant had ordered the murder of S.Lu. He asserted that he had been tortured by the Kosovo police during his questioning and had been pressured into blaming the applicant for ordering the murder. L.Q. alleged that he had fallen unconscious several times because of the “mental and physical torture”. L.Q. averred that he did not even know the applicant in person. The applicant further submitted into evidence several sworn statements from family members and friends, who attested that his life was in danger in Kosovo because of threats from S.Lu. and his clan.
20.On 23 June 2016 the Criminal Court dismissed the applicant’s applications. It held that in accordance with section 33(2) of the Extradition Act, the applicant had failed to adduce evidence which would have been capable of immediately dispelling the suspicion against him raised in the extradition request. L.Q.’s declaration did not constitute objective evidence and did not indicate any violations in Kosovo of the applicant’s rights under the Convention either. The applicant appealed.
21.On 18 July 2016 the applicant lodged an application for a renewal (Erneuerung) of the extradition proceedings with the Supreme Court under Article 363a of the Code of Criminal Procedure (Strafprozessordnung – hereinafter “the CCP”), requesting suspensive effect at the same time.
22.On 6 September 2016 the Supreme Court rejected the applicant’s application. It found that the new evidence the applicant had produced in the proceedings before it were a matter for the pending reopening proceedings, not for requesting a renewal of the extradition proceedings. In relation to the alleged violations of Articles 2 and 3 of the Convention in the event of his extradition, the Supreme Court found that mere allegations referencing general reports on the human rights situation were not capable of substantiating a real and immediate risk to the applicant under these provisions. Furthermore, the Supreme Court held that the applicant did not have a right under the law to request suspensive effect, which is why that request had to be rejected.
23.On 24 January 2017 the Court of Appeal dismissed the applicant’s appeal against the Criminal Court’s decision of 23 June 2016 (see paragraph20 above). The court found that the applicant had failed to produce objective evidence which would have indicated a real and immediate risk of treatment contrary to Article 3 of the Convention if extradited to Kosovo and therefore would have warranted a reopening of the extradition proceedings. While the sworn statement by L.Q. in principle raised doubts in relation to the suspicions against the applicant, it had not constituted the only evidence against him. More pertinent had been the fact that, during the criminal proceedings against L.Q. in Kosovo, a microcassette had been put into evidence by S.Lu. which had allegedly contained a conversation confirming his statements that the applicant had been to blame for the murder. In addition, L.Q.’s initial incriminating statements against the applicant had been made in the presence of his lawyer. Moreover, L.Q. had not specified what exactly the police had allegedly done to him, which had made it impossible to evaluate whether the alleged treatment had actually amounted to torture, inhuman or degrading treatment. The Court of Appeal reiterated that it was in any event for the Kosovo courts to evaluate the evidence against the applicant. In sum, it confirmed that the statement by L.Q. was not capable of immediately dispelling the suspicion against the applicant on which the extradition request was based. Lastly, the Court of Appeal found that despite not being a State Party to the Convention or the Council of Europe, Article 22 of the Constitution of Kosovo granted the Convention direct effect under and superiority to national law, therefore domestic law equally offered protection from violations of the Convention. The Court of Appeal’s decision to dismiss the applicant’s appeal was served on his counsel on 30January 2017.

5.The five applicants are Iraqi nationals. They now live in Switzerland, where they were granted asylum in July 2017 (see paragraph 31 below). The first and second applicants, Mr S.F. and Mrs W.O., born respectively in 1975 and 1978, are spouses. The other three applicants, Mr Y.F., Mr S.F. and Mr A.F., born respectively in 1999, 2004 and 2014, are their sons.
A.The applicants’ interception and arrest
6.On 14 August 2015 the applicants, who had fled from Iraq, covertly crossed the Turkish-Bulgarian border. They were travelling with four other families. From there, they took taxis which drove them to the outskirts of Sofia, where they slept under the open sky for two nights. On 17 August 2015, they hired other taxis to drive them to the Bulgarian-Serbian border, somewhere around the town of Bregovo. Shortly before the border, the applicants switched cars, getting into a Toyota sports utility vehicle, which was supposed to take them through a wooded area to the border itself. They intended to cross that border covertly as well, and from there continue towards Western Europe.
7.At that time, the second applicant was three months pregnant.
8.According to media reports, over the last few years the above‑mentioned route has been a popular one for migrants trying to cross Bulgaria covertly on their way to Western Europe. According to a report submitted by the Government, in August 2015 the Bulgarian border police intercepted 350 adult migrants and 132 minor migrants near Bregovo and took them into custody.
9.In the late afternoon of 17 August 2015 the applicants were driven in the Toyota towards the Bulgarian-Serbian border near the village of Rabrovo, which is about fifteen kilometres south of Bregovo, twenty-five kilometres west of the town of Vidin, and about two kilometres from the border. It was also transporting the four other families; together with the applicants, it carried a total of eighteen passengers, eight of whom were minors.
10.At about 5 p.m., when the Toyota was just a few metres away from the border, two officers of the Bulgarian border police intercepted it. The driver fled. One of the officers gave chase, while the other ordered all the passengers to step out of the vehicle. The first officer could not catch up with the driver and came back. According to the applicants, he was apparently annoyed about his inability to detain the driver and hit one of the passengers. The applicants submitted that they had been afraid that he might hit them as well.
11.Half an hour later, two more officers came to the scene; subsequently, a bus, with a driver and a photographer, also arrived. According to the applicants, the officers insulted the arrestees, called them “mice” (the applicants did not specify in what language), and made insulting gestures. They ordered the applicants and the other passengers to get into the bus and drove them to the Bregovo Border Police Department’s detention facility in Vidin. According to the applicants, the drive took about an hour. According to the Government, the drive could not have taken less than three hours. The preparation of the documents relating to the applicants’ arrest then took another hour, and the written declarations that they had been acquainted with their rights were stamped as having been signed at 9 p.m. The applicants could not have therefore been placed in their cell earlier than 10 p.m.
B.The applicants’ detention in Vidin
12.Upon their arrival at the border police’s detention facility in Vidin, the applicants were searched. According to them, all their effects – including travelling bags, mobile telephones, money, food, and even the fifth applicant’s nappies, baby bottle and milk – were taken away from them, except for a mobile telephone belonging to the third or the fourth applicant, which they managed to conceal. According to a search report submitted by the Government, when searching the second applicant the authorities seized from her four mobile telephones, SIM cards, a USB flash drive, two digital video disks and cash. The Government also pointed out that in a video submitted by the applicants (see paragraph 15 below), travel bags and personal effects were visible inside their cell.
13.After the search, the arrestees were split into two groups. The applicants and another family were put in one cell, and the others in an adjoining one. In the application form, the applicants stated that both cells were on the detention facility’s second floor.
14.According to the applicants, the cell was hot and its window could not be opened.
15.The applicants also submitted a video, which according to them had been shot with the mobile telephone that they had managed to conceal during the search (see paragraph 12 above). It shows that the cell was at ground level, about 4 by 4 metres, with a large double window (secured on the inside by a mesh grille), an open door, and a padlocked metal grille on the door. In the video the cell looks run-down, with dilapidated walls, paint coming off the ceiling in flakes, and a dirty floor partly covered with dirty (and in places damp) cardboard sheets. The furniture consists of two old and dilapidated bunk beds and a single bed, with four or five bare soiled mattresses. Two of the mattresses are on the floor, one is on the single bed, and one is on the bottom bunk of one of the bunk beds. A single crumpled‑up bed sheet lies on one of the mattresses on the floor. Personal effects, such as a small shoulder bag, training shoes and some litter, are strewn about. Other random objects – food remains, empty plastic bottles, rubbish and a torn blanket – are piled up in a corner. The third and fourth applicants can be seen sitting on one of the bunk beds, whereas the fifth applicant (the toddler) can at first be seen sitting on the floor beside the door and then being picked up and carried around by the first applicant. Apart from the five applicants, three other people can be seen in the cell: a middle‑aged woman lying on the single bed, a boy (perhaps two or three years old), and the man shooting the video.
16.The video was submitted by the applicants on a digital video disk containing two video files. One is in .mpg format and bears a time stamp according to which it was last modified at 5.36 p.m. on 17 September ‎2015; and the other is in .mp4 format and bears a time stamp according to which it was last modified at 3.27 p.m. on 15 December 2015. The footage in both files is identical, except that: (a) the faces of the applicants in the first one have been pixelated (whereas in the second they have not); (b) the running time of the first video is one minute and twenty-one seconds (whereas that of the second is one minute and thirty-two seconds, as it continues for another ten seconds); and (c) in the first file the footage is horizontal whereas in the second it is rotated to the right at a ninety-degree angle. The footage in the first file has a definition of 1,280 by 720 pixels and is at twenty-four frames per second, whereas that in the second file has a definition of 1,920 by 1,080 pixels and is at twenty-nine frames per second.
17.The applicants explained that the above-mentioned dates and times corresponded with when they had copied the video files in Switzerland, and that they had in fact recorded the original video on 18 August 2015, at about noon. Since they had taken the SIM cards out of the mobile telephone several times in the course of their journey and then re-inserted them, the telephone had not indicated the correct time and date, making it impossible to pinpoint the exact date and time when the video had been recorded.
18.In a letter to the Government Agent, an official from the Migration Directorate of the Ministry of Internal Affairs in Sofia, having compared the video footage with the photographs in the applicants’ migration files, stated that he could confirm that the applicants were indeed the people featured in the video.
19.According to the Government, the border police’s detention facility in Vidin was equipped in accordance with the relevant regulations. They did not provide further details in that respect.
20.According to the applicants, after being put in the cell, they were not given anything to eat or drink, or allowed to go to the toilet. Since there was no toilet or a bucket in the cell, they had to urinate onto the floor. The Government did not comment on that point.
21.About four hours later, at about 10 p.m., officers came and took the first applicant to another building in order to take his picture and to digitally fingerprint him. After that, the officers took out the second applicant for fingerprinting. After the fingerprinting procedure, the officers left the applicants in the cell for the night.
22.Between 10.30 a.m. and 11 a.m. and between 11 a.m. and 11.30 a.m. the next day, 18 August 2015, a border police investigator interviewed respectively the first and the second applicants. The interviews were conducted in English and translated into Bulgarian with the help of an interpreter.
23.According to the applicants, after the interview the second applicant asked the guards to give her back her bag, so that she could prepare a baby bottle for her toddler (the fifth applicant), and the guards did so. The Government did not comment on that point.
24.After that, the guards took the applicants one by one out of the cell to go to the toilet.
25.According to the applicants, later that day, a ten-month-old child in the adjoining cell touched an electrical wire and suffered an electric shock. That caused panic among the detainees, and the guards allowed all of them out of their cells. An ambulance was called. When hearing that the applicants had not had anything to eat or drink since their arrest, the nurse who came with the ambulance argued with the guards and took the second applicant and her youngest child, the fifth applicant, to a hospital in Vidin, where the second applicant was examined by a gynaecologist between 8.05p.m. and 8.35 p.m., and the fifth applicant was examined by a paediatrician between 8.20 p.m. and 8.40 p.m. Two or three hours later they were taken back to the detention facility.
26.According to the applicants, at that point the guards told them that they would give them food if they paid for it; the guards then took money from their bags and gave them two loaves of bread, a yoghurt, four bottles of Coca-Cola, one kilogram of tomatoes, one kilogram of cucumbers, one kilogram of bananas, and a small piece of paté. According to the Government, the applicants were provided with food and water, in accordance with the relevant regulations. In support of their assertion, the Government submitted a table setting out the prescribed daily rations for adult and minor detained migrants and a report, drawn up by the head of the Bregovo Border Police Department on 1 September 2015, which listed the names of all migrants – including the applicants – which had been detained in the Department’s detention facility in Vidin during the month of August2015 and provided with food there.
27.Then, at about 10 p.m. or 11 p.m., the applicants were put back in the cell. According to them, they were allowed to go to the toilet before that, but had not been able to do so during the night. The Government did not comment on that point.
28.The next day, 19 August 2015, the applicants were served with orders for the first and second applicants’ removal from Bulgaria and for their detention pending removal, all issued the previous day. It does not appear that separate orders were issued with respect to the third, fourth and fifth applicants, who were mentioned as accompanied minors in the orders for the first and second applicants’ detention (see paragraph 33 below).
C.Ensuing developments
29.According to the applicants, at about midday on 19 August 2015 they were given back their belongings and driven to an immigration detention facility in Sofia. According to the Government, that happened much earlier that day, at about 6 a.m. or 7 a.m., since the relevant records showed that the applicants had been placed in the detention facility in Sofia at 2.45 p.m., and the normal travel time between the two facilities was about six or seven hours.
30.On 24 August 2015 the applicants sought international protection in Bulgaria. Their applications were registered by the State Agency for Refugees on 31 August 2015, and they were released from the immigration detention facility in Sofia and settled in an open facility for the accommodation of asylum-seekers. On 23 September 2015 those proceedings were, however, discontinued because the applicants had vanished from the facility.
31.In the meantime, the applicants made their way to Switzerland, where they likewise sought international protection on 8 September 2015. On 8 January 2016 the Swiss authorities decided not to examine their applications but rather to transfer them back to Bulgaria under Regulation(EU) No 604/2013 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 (“the Dublin III Regulation”), which also applies to Switzerland (see A.S. v. Switzerland, no. 39350/13, §§12-13, 30 June 2015). Following legal challenges by the applicants, on 7July 2016 the Swiss authorities varied their own decision and proceeded with the examination of the applications. Just over a year later, on 27 July 2017, the applicants were granted asylum in Switzerland.
39.According to data published by Eurostat, in 2014 672,215 third‑country nationals were found to be illegally present on the territory of Member States of the European Union. The numbers for 2015 and 2016 were respectively 2,154,675 people and 983,860 people.
40.The respective numbers for Greece and Hungary, States which sit, respectively, on the south-eastern border of the European Union and on the south-eastern border of the main Schengen Area, were as follows. For Greece, they were 73,670 people in 2014, 911,470 people in 2015, and 204,820 people in 2016. For Hungary, they were 56,170 people in 2014, 424,055 people in 2015, and 41,560 people in 2016.
41.For Bulgaria, the respective numbers were 12,870 people in 2014, 20,810 people in 2015, and 14,125 people in 2016.

A.Mr Ksenz’s application
6.The applicant was born in 1986 and lives in Pskov.
7.At about 2 a.m. on 17 August 2005 the applicant was travelling in a car with B. – who was driving – M. and T. Their car was stopped by the police. Police Officers F. and K. asked for their ID cards. The applicant, who did not have his ID card on him, was taken to Zavelichenskiy police station in Pskov.
8.The applicant described events at the police station as follows. F. and K. had demanded that he stand facing a wall, hands raised, and had searched him. They had allegedly insulted him verbally and physically. In particular, they had punched him repeatedly in the face and the lumbar region and had tried to knock him down.
9.They then took him to the Pskov regional addiction-treatment clinic. When coming out of the police station they were approached by B., M., T. and I., the applicant’s brother. According to statements by B. and I., the applicant was depressed, his sweater was dirty and the bridge of his nose was red. I. also saw injuries on the applicant’s torso when he asked the applicant to lift his sweater.
10.At 2.56 a.m. a doctor at the addiction-treatment clinic carried out a breath test and tested his coordination. She stated in a record of “medical examination for establishment of alcohol consumption and state of inebriation” that the applicant’s examination had been initiated by Officer K. in connection with an administrative offence, and that the applicant had consumed alcohol but had revealed no signs of inebriation. She noted in the part of the record concerning the tested person’s “appearance” that the applicant had no injuries, and in the part concerning “vegetative-vascular reactions” that his face was “hyperemic”.
11.According to the applicant, the doctor did not ask him to undress and did not examine his body. Nor was he asked to sign the record of his examination or given its copy.
12.After the test the applicant was taken back to the police station. At the request of a police officer he signed a statement that at about 1a.m. on 17August 2005, when passing by a bus stop in B.’s car, he had called out through an open window to girls at the bus stop inviting them for a drive in the car. After that a police car had followed them and B. had stopped the car. The police officers had ordered him to proceed with them to the police station “for the reason that he had used foul language”.
13.At about 5 a.m. he was released.
14.At 10 a.m. the applicant was examined at his request by a forensic-medical expert at the Pskov Regional Forensic-Medical Bureau. The applicant explained that he had been punched and kicked by two police officers at about 2 a.m. that day. According to the medical report, the applicant had the following injuries: (i)an abrasion measuring 1.2 by 0.2cm on the bridge of the nose, (ii)a bruise measuring 2 cm by 2cm in the area of the right cheekbone, (iii)a bruise measuring 2.5 by 1 cm on a finger of the left hand, and (iv)a bruise measuring 2.5 by 2 cm on the left side of the lumbar region. The expert concluded that the injuries, which were not considered harmful to the applicant’s health, could have been caused on that day by hard blunt objects, for example by fists or feet.
15.On the same day Officer K. lodged a criminal complaint that at 2.10a.m. on 17 August 2005 the applicant had sworn at him through an open car window when passing by. In the course of enquiries into the police officer’s allegations the applicant denied swearing or any other misbehaviour on his part. The Pskov police found no elements of criminal offences such as hooliganism (Article 213§1 of the Criminal Code) or insult of a public official (Article 319 of the Criminal Code) in the applicant’s actions and refused to institute criminal proceedings against him (decision of 24 August 2005).
16.On 22 August 2005 the applicant complained to the Pskov town prosecutor’s office about the unlawful actions of the police officers, indicating their service identification numbers.
17.Investigators of the Pskov town prosecutor’s office carried out a pre‑investigation inquiry and refused to institute criminal proceedings into the applicant’s complaint. Their two decisions of 7 October and 2 December 2005 were annulled by their superiors, who considered that the decisions had been based on an incomplete inquiry.
18.In the most recent refusal of 23 December 2005 to institute criminal proceedings for lack of the elements of a crime in the actions of the police officers, the investigator established the facts as follows, relying on the police officers’ statements. At 2a.m. on 17 August 2005 the applicant had addressed F. and K. with foul language from the window of his car, which had stopped near their police car. After that, the car with the applicant had started driving away. F. and K. had pursued the car and stopped it. They had taken the applicant to the police station. K. had explained to the applicant that he had been arrested for having committed a criminal offence under Article 319 of the Criminal Code (insult of a public official). On their way to the police station the applicant had behaved provocatively and threatened the police officers that they would have problems at work and would be dismissed. During the applicant’s escorting to the police station the police officers had not used physical force or any means of restraint. F. and K. had taken the applicant from the police station to an addiction-treatment clinic for a medical examination because he had been drunk. Before leaving for the clinic they had been approached by the applicant’s brother, who had enquired about the reasons for the applicant’s detention and a further procedure. The applicant’s brother had suggested that the applicant should have simulated concussion and complained that he had been beaten up by the police officers.
19.The investigator further noted that the drug-clinic doctor had not recorded any injuries on the applicant; and that in his statement signed at the police station the applicant had not denied using foul language and had not complained of any use of force or means of restraint against him. The investigator dismissed statements by I., M. and T. in support of the applicant’s allegations as unreliable and held that the applicant’s allegations had not been confirmed.
20.On 31 January 2006 the Pskov Town Court dismissed the applicant’s appeal against the investigator’s decision of 23 December 2005. It noted that F. and K. had “categorically” denied that they had beaten up the applicant. It held that there was no evidence of the applicant’s ill‑treatment at the police station and that his injuries could have been received in “other circumstances”. On 22 March 2006 the Pskov Regional Court upheld the Town Court’s decision on the applicant’s appeal. It stressed that there had been no eyewitnesses to the applicant’s alleged ill-treatment, and that the applicant had not complained of any ill-treatment to the drug-clinic doctor. Referring to the “categorical” denial of any ill-treatment by F. and K., the Regional Court held that the applicant had failed to prove his ill-treatment and that he could have received his injuries in “other circumstances” on 17August 2005, in a time span between his examination at the addiction‑treatment clinic and his examination by the forensic-medical expert.
B.Mr Lebedev’s application
21.The applicant was born in 1987 and lives in Novyy Toryal in the Mariy-El Republic.
22.At about 1 a.m. on 31 March 2007 a car without a licence plate, in which the applicant and other young men were going home after a party, was stopped by the traffic police officer. Soon another police car arrived with four or five police officers who, according to the applicant, pushed him and the other young men to the ground, and punched and kicked them. The applicant identified the police officers as M., O., S., V. and Zh.
23.The applicant and the other three men were taken to the police station in Novyy Toryal, where they arrived at 1.45 a.m.
24.According to the applicant, the events at the police station were as follows. Police Officers M., O. and S. interviewed him, asking who had been driving the car and whether the car had been stolen. The applicant denied that he had been driving the car and stated that the driver had run away and that he did not know him. The police officers repeatedly punched and kicked him in the head and on other parts of his body.
25.At 3.20 a.m. the applicant and the others were released. The applicant’s mother met them at the police station and called the ambulance. All four men were taken to the emergency unit of Novyy Toryal Central District Hospital, where they were recorded as having injuries.
26.The applicant was examined at 3.26 a.m. and admitted to the hospital surgical unit in a condition of “medium seriousness” at 4.20 a.m. His right ear was swollen and bleeding. He had a swelling on the back of the head measuring 7 by 4 cm, numerous bruises on the face and temples, and numerous abrasions on the back, neck, shoulders, the right side of the torso and one of his fingers. He had no alcohol on his breath. He was diagnosed with closed craniocerebral injury, brain contusion, traumatic perforation of the right eardrum and numerous contusions to the head and the lumbar region. He was exempted from attending school until 22April 2007 due to his temporary disability on account of the closed craniocerebral injury and concussion. The hospital communicated information about the applicant’s hospitalisation with injuries allegedly received as a result of his ill‑treatment by police officers to the Novyy Toryal police.
27.On 31 March 2007 the Novyy Toryal police officers reported to their superior that they had pursued a car which had had no licence plates and had not stopped at their initial order. When the car had eventually stopped, several young men, seemingly drunk, had sworn at them, refused to get into the police car and tried to run away. The police officers had used force to overcome their resistance, managing to restrain them on the ground and search them, and had then taken them to the police station.
28.On the same day the applicant’s mother complained to the Novyy Toryal district prosecutor’s office about the unlawful actions of the police officers. An investigator of the Novyy Toryal district prosecutor’s office carried out a pre-investigation inquiry into her complaint.
29.On 4 April 2007 the applicant was examined by a forensic-medical expert from the Novyy Toryal division of the Mariy-El Republic Forensic‑Medical Bureau. The applicant had bruises around both eyes and an abrasion measuring 4 by 2 cm on the back of the head. Having examined the applicant’s hospital records, the expert concluded in a report of 13 April 2007 that the applicant’s injuries, notably brain contusion, traumatic perforation of the right eardrum, bruises on the face, abrasions on the head, torso and limbs and swelling in the lumbar region, could have been sustained on 31 March 2007 by impacts from hard, blunt objects. The injuries had resulted in short-term health issues for the applicant including a temporary incapacity for work lasting up to three weeks, that is to say minor harm to his health.
30.On 8 May 2007 the Novyy Toryal police brought administrative proceedings against the applicant, issuing administrative-offence records and a decision which stated that at 1a.m. on 31March 2007 the applicant had driven a car without a licence plate and without a driving licence and had not stopped the car on a police officer’s repeated order. A fine was imposed on the applicant.
31.On 9 May 2007 a deputy prosecutor of the Novyy Toryal district prosecutor’s office decided that material concerning the applicant’s unlawful driving on 31 March 2007 should be examined separately from the material concerning the applicant’s alleged ill-treatment.
32.On 20 May 2007 the Novyy Toryal police decided that no criminal proceedings should be brought against the applicant, whose actions disclosed no elements of a crime under Article 166§1 of the Criminal Code (carjacking). It found that it had been the applicant who had been driving the car with no licence plates before being stopped by the police on 31March 2007. The applicant had bought it from a third person. However, he had not paid the full price and the previous owner had not given him the documents necessary for re‑registering the car in his name and obtaining licence plates.
33.Investigators of the Novyy Toryal district prosecutor’s office thrice refused to institute criminal proceedings in respect of the applicant’s alleged ill-treatment for lack of the elements of a crime in the police officers’ actions. The refusals were annulled by their superiors, who considered that the inquiry was incomplete.
34.In the most recent decision of 22 June 2007 the investigator, relying on the police officers’ statements, established the facts as follows. During the night of 30-31 March 2007 the applicant, who had been driving a car without a licence plate, had disobeyed a traffic policeman’s order to stop and had tried to escape, thereby violating the traffic rules and committing administrative offences. However, administrative proceedings had not been brought against him in accordance with the law as a result of negligence on the part of the police officers responsible for drawing up administrative-offence records. The police had acted lawfully in apprehending the applicant and taking him to the police station. Officers O., M., S., V., S.K. and N.K. had lawfully used physical force in the course of the applicant’s apprehension, as a result of which he had sustained the injuries described in the forensic-medical expert’s report.
35.That decision was declared lawful and well-founded by the Novyy Toryal district deputy prosecutor (report of 24 June 2007) and by the Novyy Toryal District Court (decision of 14 August 2007, upheld by the Mariy‑El Supreme Court on 26 September 2007).
36.On 25 February 2013 the Mariy-El Republic deputy prosecutor annulled the decision of 22 June 2007 as unlawful and unfounded and ordered a fresh pre-investigation inquiry.
C.Mr Korolev’s application
37.The applicant was born in 1988 and lives in Diveyevo in Nizhniy Novgorod Region.
38.At about 11 p.m. on 24 March 2007 the applicant was attending a discotheque at the Diveyevo Cultural Centre when he was approached by Police Officer K., who led him to the police car and took him to the Diveyevo district police station. According to the applicant, Police Officer K. twisted his arms behind his back when leading him to the car.
39.According to the applicant the events at the police station were as follows. He was requested to stand facing the wall. K., who wore army-type boots, kicked him at least ten times on the legs. Then he was placed in an administrative-detention cell, where he stayed until his release at about noon on 26 March 2007.
40.In reports to their superiors dated 24 March 2007 Officer K. and two police trainees stated that at 11.30 p.m. on 24March 2007 at the Diveyevo Cultural Centre the applicant, who had been drunk, had used foul language in their presence, ignoring their orders to stop.
41.N., a police officer on duty at the Diveyevo police station, drew up an administrative-detention record, in which he stated that the applicant, who had committed petty hooliganism, had been subjected to administrative detention for the purpose of the averting the offence. No injuries on the applicant were mentioned in the part of the record concerning the routine procedure of inspection of detainees for injuries. The time of the record was drawn up was indicated as 11.30 p.m. on 24March 2007.
42.Officer T. drew up an administrative-offence record, in which he stated that at 11.30 p.m. on 24 March 2007 at the Diveyevo Cultural Centre the applicant, who was drunk, had used foul language and ignored police officers’ orders to stop. He had thereby committed an administrative offence of petty hooliganism. The time of the drawing-up the record was indicated as 11.40 p.m. on 24 March 2007. The acting head of the Diveyevo district police issued the applicant a fine of 1,000 Russian roubles (RUB). The applicant did not appeal against that decision.
43.After his release from the police station, at 3.20 p.m. on 26 March 2007 the applicant was examined by a doctor at Diveyevo Hospital, who recorded bruises on the interior of the left calf (in the upper and middle parts), an abrasion on the front of the left shin, a bruise on the left ankle, a bruise on the right knee, a bruise on the left elbow, and an abrasion on the left hand. The applicant was diagnosed with contusions of the left shin, left ankle, right knee and left elbow, and abrasions of the left shin and left hand.
44.The hospital passed on information about the applicant’s injuries, allegedly inflicted by the police, to the Diveyevo district prosecutor’s office.On the same day the applicant lodged a criminal complaint seeking K.’s prosecution. An investigator of the prosecutor’s office carried out a pre‑investigation inquiry.
45.On 27March 2007 the applicant was examined by a forensic‑medical expert from the Nizhniy Novgorod Regional Forensic‑Medical Bureau. The applicant had two bruises on the interior of the left calf (in the upper and middle parts) measuring 7 by 3 cm and 10 by 5 cm, a 1.5 by 0.5 cm bruise on the front of the left shin, a 2 by 1 cm bruise on the left ankle, and a 3 by 1.5 cm bruise on the left elbow. He also had an abrasion on the front of the left shin measuring 1.5 by 0.8 cm, an abrasion on the right ankle measuring 1 by 0.4 cm and an abrasion on the left hand measuring 3 by 2 cm. The areas of the back of the left shoulder in the middle part, the left knee, the left shin and the left ankle were painful at palpation. The expert concluded that the injuries, which had not resulted in harm to the applicant’s health, had been caused by hard blunt objects two or three days before the examination, as a result of at least five traumatic impacts (report of 27 March 2007). In reply to the investigator’s additional question as to whether the applicant could have received the injuries when getting into the police car, the expert stated that such a possibility could not be excluded.
46.The Diveyevo district police carried out an internal inquiry into the applicant’s allegations of ill-treatment, in the course of which K., other police officers and witnesses gave statements about the events in question. On 28 April 2007 the head of the Diveyevo district police approved a report on the inquiry in which the facts were established as follows. After 10 p.m. on 24March 2007 K. and two police trainees had approached the applicant and rebuked him for using foul language; he had ignored their commands and continued swearing; K. had ordered that he go with them to the police station but he had refused; K. took him by the sleeve and led him to the police car; they took the applicant to the police station. It was established that no physical force had been used against the applicant. A number of other internal inquiries into the same events were carried out later, with the most recent one (report of 4 March 2013 approved by an acting head of the Nizhniy Novgorod regional police force) finding no disciplinary misconduct in K.’s actions. There was no mention in the report of the applicant receiving injuries when getting into the police car. Nor did K. mention it in his statements given in the course of the internal inquiry on 30 November 2007. K. stated that no physical force or means of restraint had been used against the applicant for lack of resistance on his part.
47.Investigators refused to institute criminal proceedings against Police Officer K. Their refusal was annulled five times by their superiors, who considered that their inquiry was incomplete.
48.The most recent refusal to institute criminal proceedings for lack of the elements of a crime in K.’s actions was taken on 2September 2008 by an investigator from the Sarov investigative committee of the Nizhniy Novgorod regional prosecutor’s office. Relying on statements by K. and other police officers, who had denied any violence against the applicant, the investigator held that the applicant could have received the injuries when getting into the police car before being taken to the police station on 24March 2007. The investigator’s decision was declared lawful and well‑founded in the Sarov Town Court’s decision of 16January 2009, upheld by the Nizhniy Novgorod Regional Court on 13March 2009.
49.In May 2013 the applicant was examined by a psychiatrist. He complained of a sleep disorder on account of his ill-treatment in police custody on 24March 2007. He was diagnosed with sleep disorder related to the legs injuries sustained on that day and recommended a consultation and treatment by a neurologist and a trauma specialist.
D.Mr Ivanov’s application
50.The applicant was born in 1969 and lived in Cheboksary.
51.At about 12.30 a.m. on 29 June 2006 the applicant’s car was stopped by Officers V.and Z. of the traffic police. According to the applicant, they knocked him to the ground and kicked him repeatedly. The police officers then drew up records, stating that he was drunk. He disagreed, requesting that he be taken for a medical examination which would confirm that he was not. The police officers took him to the Kaliniskiy district police station instead.
52.According to records drawn up by V. between 12.30 a.m. and 1.50a.m.: (i)the applicant was suspended from driving because he had signs of alcohol intoxication (alcohol on his breath, red eyes and slurred speech); (ii)hehad been ordered to undergo a medical examination to determine whether he had been in a state of alcohol intoxication, but he had refused to do so; (iii)his car had been impounded; and (iv)the applicant had been found to have committed an administrative offence by refusing to undergo a medical examination at the request of the police.
53.At the police station V. and Z. reported to their superior that the applicant had disobeyed their order to stop his car; that they had pursued him until he had eventually stopped; that he had resisted arrest; and that in order to apprehend him they had twisted his arm behind his back, as a result of which he had fallen.
54.At about 5 a.m. the applicant was released from the Kaliniskiy district police station.
55.On the same day both the applicant and Officer Z. lodged criminal complaints with the Kalininskiy district prosecutor’s office, Cheboksary. The applicant complained that he had been beaten up by V. and Z. The latter complained that in the course of the applicant’s apprehension he had hurt his hand when they both had fallen.
56.On 30 June 2006 an investigator ordered the applicant’s forensic‑medical examination, which was carried out on 3July 2006. A forensic-medical expert from the Chuvashia Republic Forensic-Medical Bureau recorded ten abrasions measuring from 0.2 by 0.1 cm to 10 by 5cm on the upper and middle parts of the lower right arm, on the right wrist and on both knees. The applicant also had four bruises on the middle part of the right upper arm and on the upper and middle parts of the left upper arm, measuring 1.6 by 1.2 cm, 1.7 by 1.3 cm, 0.9 by 0.3 cm and 0.2 by 0.2 cm. The expert concluded that all injuries, which had not resulted in harm to the applicant’s health, could have been caused by hard blunt objects.
57.On 3August 2006 the Justice of the Peace of Court Circuit no. 7 of the Kalininskiy District of Cheboksary held a hearing in the administrative proceedings against the applicant. The applicant contested the police officers’ versions of events on 29 June 2006 and stated that he had not been drunk and had demanded to undergo a medical examination that would have confirmed that fact; however, the police officers had not let him be examined. His statements were supported by a witness. The court found the applicant guilty of disobedience of a police officer’s lawful order to undergo a medical examination to detect alcohol intoxication, and sentenced him to the seizure of his driving licence for a year and a half. On 31 August 2006 the Kalininskiy District Court, following a prior appeal by the applicant, upheld the judgment.
58.Investigators refused to institute criminal proceedings into the applicant’s alleged ill‑treatment by the police officers. Their refusals were annulled by their superiors more than twenty times on the grounds that they had been based on an incomplete inquiry. On several occasions the Kalininskiy District Court of Cheboksary rejected the applicant’s appeals on the grounds that the investigators’ decisions had already been annulled. On two occasions the District Court granted the applicant’s appeals and found the decisions unlawful and unfounded.
59.The most recent refusal to institute criminal proceedings for lack of the elements of a crime in the police officers’ actions was issued on 28September 2009 by an investigator from the Cheboksary inter-district investigative committee. Relying on the reports by Officers V. and Z. and similar statements given by them later, the investigator held that the applicant’s injuries had been the result of the lawful use of force by the police officers during his arrest. The investigator’s decision was declared lawful and well‑founded in the Kalininskiy District Court’s decision of 12November 2009, and was upheld by the Chuvashia Supreme Court on 17December 2009.
60.In the same decision of 28September 2009 the investigator dismissed the criminal complaint lodged by Z., finding no fault on the part of the applicant as Z. had fallen and hurt his hand when arresting him.
61.The applicant brought civil proceedings, seeking to have the investigating authority’s failure to carry out an effective investigation declared unlawful and claiming compensation. On 26May 2008 the Leninskiy District Court dismissed his application, finding that he had failed to prove that the investigating authority had acted unlawfully, that he had been harmed as a result of its actions or inaction, that there had been a causal connection between specific unlawful behaviour and any harm, and that there had been evidence of an alleged tortfeasor’s liability. It held that domestic law did not provide for compensation of non‑pecuniary damage in a case of a delayed decision in reply to a criminal complaint or in a case of the annulment of such a decision. On 30 June 2008, following an appeal by the applicant, the Chuvashia Supreme Court upheld the judgment.
E.Mr Kolistratov’s application
62.The applicant was born in 1989 and lives in Novocheboksarsk.
63.At about 6 a.m. on 8 February 2008 the applicant and other young men, who were sitting in his parked car, were approached by traffic-police officers and taken to Novocheboksarsk police station following a complaint from a certain P. that they had broken a window in her car and tried to steal a child seat. The applicant was handcuffed.
64.The applicant described events at the police station as follows. One of the police officers had grabbed him by the neck with one hand and by his head with the other and hit his face against a wall. The applicant’s two front teeth had fallen out and he had felt unwell. Later, he had asked to have the handcuffs removed as they had been causing him pain. Instead, a police officer lifted his hands shackled behind him, inflicting more pain.
65.According to the records drawn up by Officer B. between 6.50a.m. and 9.20 a.m. on 8 February 2008: (i)the applicant was suspended from driving because he had signs of alcohol intoxication (alcohol on his breath, red eyes and trembling fingers); (ii)hewas ordered to undergo a medical examination for detecting alcohol intoxication, but refused to do so; (iii) his car was impounded; and (iv) the applicant was found to have committed an administrative offence by refusing to undergo a medical examination at the request of the police. The applicant was subsequently found guilty of disobeying a police officer’s lawful order to undergo a medical examination for detecting alcohol intoxication, and sentenced to the seizure of his driving licence for a year and a half (judgment of the Justice of the Peace of Court Circuit no. 5 of Novocheboksarsk of 14 March 2008, and was upheld by the Novocheboksarsk Town Court on 19 May 2008).
66.In a report to his superior, Officer M. stated that the applicant had behaved aggressively at the police station and that he himself had hit his head against a wall and had broken his tooth.
67.No criminal proceedings were brought against the applicant in relation to P.’s complaint in respect of the attempted theft of a child seat (Novocheboksarsk town police decision of 18 February 2008).
68.After his release at about 6 p.m. on 8 February 2008 the applicant was examined by a doctor at the traumatology unit of the Novocheboksarsk town hospital. The applicant had abrasions on the right side of his face, his lip, the left side of his neck and the wrists, and the crowns of two upper teeth on the right side were broken. On the same day he was examined by a dentist who recorded that the upper front tooth on the right was missing, the crown of the next tooth to the right was broken, and that the two lower front teeth were loose as a result of a traumatic subluxation.
69.On 12 February 2008 the applicant lodged a criminal complaint that he had been ill-treated at the police station. The Novocheboksarsk investigative committee at the Chuvashiya Republic prosecutor’s office carried out a pre-investigation inquiry.
70.An investigator obtained an opinion of a forensic-medical expert from the Novocheboksarsk division of the Chuvashia Republic Forensic-Medical Bureau, who considered that the applicant’s injuries could have been received within twenty-four hours of the applicant’s medical examination on 8 February 2008, as a result of an impact from a hard blunt object, for example as a result of hitting a wall as regards the injuries to the front teeth, lip and face. The injuries had resulted in short-term health problems lasting up to three weeks, that is to say minor harm to the applicant’s health.
71.Investigators of the Novocheboksarsk investigative committee refused to institute criminal proceedings into the applicant’s alleged ill‑treatment by the police. Their refusal was annulled fourteen times by their superiors, who considered that it had been based on an incomplete inquiry, and a fresh pre‑investigation inquiry was ordered.
72.The most recent refusal to institute criminal proceedings for lack of the elements of a crime in the police officers’ actions was taken by an investigator on 5November 2009. He cited the police officers’ statements that the applicant had tried to run away, they had therefore handcuffed him in order to take him to the police station, where the applicant himself had struck his face against a wall. Relying on the police officers’ statements, the investigator concluded that the applicant had inflicted the injuries on himself by striking his face against a wall at the police station, and that the abrasions on his neck and wrists had been a result of the lawful use of force by the police officers in the course of his arrest. The investigator’s decision was declared lawful and well-founded by the Novocheboksarsk Town Court’s decision of 23 April 2010, and was upheld by the Chuvashia Supreme Court on 25May 2010.
F.Mr Sergeyev’s application
73.The applicant was born in 1971 and lives in Moscow.
74.At about 5.20 a.m. on 28 May 2008 the applicant was arrested by Police Officers P. and V. in a twenty-four-hour shop and taken to the Mitino district police station of the Moscow North-Western administrative circuit. According to the applicant, in the police car he was slapped in the face several times, and at the police station the police officers repeatedly punched him in the head and other parts of the body and kicked him in the chest.
75.In their reports concerning the incident the police officers did not mention that the applicant had had any injuries.
76.In a record of the applicant’s administrative detention at 5.30 a.m. on 28 May 2008, drawn up at 5.32 a.m. that day, an officer on duty at the police station noted the applicant’s complaint that the police officers had inflicted injuries on him. The record further stated that the applicant’s examination had revealed no injuries on him.
77.At 6 a.m. the applicant was examined by a doctor at an addiction‑treatment hospital and was found to be in a state of alcohol intoxication. The doctor noted that the applicant was handcuffed and had abrasions on his face.
78.According to an administrative-offence record drawn up on 28 May 2008 by the officer on duty, at 5.20 a.m. on 28 May 2008 the applicant had breached public order by using foul language in a public place and ignoring police officers’ requests to stop.On the same day the Justice of the Peace of the Mitino District Court Circuit no. 175 found that the applicant had committed petty hooliganism and imposed a RUB 500 fine on him. The applicant, who pleaded guilty, did not appeal against the judgment. He was released after the hearing.
79.On the same day he was examined by a doctor at polyclinic no. 229 who recorded bruising to the area of both eyes and the nose, bleeding of the sclera of both eyes, a fractured nose and a possible concussion.On 3 June 2008 the applicant was examined at town hospital no. 71 and diagnosed with acute right‑side perforated post-traumatic otitis and bruising of the soft tissue of the head, in particular in the area of the left eye and the cheek bones.On 9 June 2008 he was examined at polyclinic no. 2 and diagnosed with hearing difficulties on both sides and acute right‑side perforated post‑traumatic otitis.
80.Following the applicant’s criminal complaint of 2 July 2008, the Tushinskiy district investigative committee at the Moscow prosecutor’s office carried out a pre‑investigation inquiry.
81.The applicant’s medical records were examined by a forensic‑medical expert from the Moscow City Forensic-Medical Bureau. The expert concluded that the bruising and fracture of the nose (which had resulted in short-term health problems lasting up to three weeks, that is to say minor harm to the applicant’s health), the bruising in the area of both eyes and the cheek bones and the bleeding to the sclera of both eyes could have been sustained on 28 May 2008 as a result of impacts from hard blunt objects. As no injuries had been recorded in the area of the external right ear, the expert doubted that the perforated otitis had been a result of trauma or its connection to the alleged police ill-treatment (the expert’s report of 9October 2009).
82.Investigators refused to institute criminal proceedings for lack of the elements of a crime in the police officers’ actions. Their three refusals issued between July 2008 and October 2009 were annulled because they were based on an incomplete inquiry.
83.In the most recent refusal to open a criminal case of 28January 2010 an investigator held that the applicant, who had been drunk, could have fallen and injured himself. It relied, inter alia, on Officer P.’s report dated 7July 2008 that the applicant had been brought to the police station with “visible injuries”. That decision was declared lawful and well-founded in the Tushinskiy District Court’s decision of 19March 2010, and later upheld by the Moscow City Court on 17 May 2010.

5.The applicant was born in 1975 and lives in Zemun.
A.Background to the case
6.On 12March2003 the Serbian Prime Minister, Mr Zoran Đinđić, was assassinated by members of a criminal group known as the Zemun Clan (Zemunski klan).
7.The Prime Minister’s assassination prompted the Serbian Government to declare a state of emergency and introduce measures in accordance with the State of Emergency Act 1991 (Zakon o merama za slučaj vanrednog stanja, Official Gazette of the Republic of Serbia, no.19/1991).
8.During that time a large-scale police operation known as Operation Sabre (Sablja) took place. Approximately 10,000 people were arrested during the operation and placed in pre-trial detention.
9.The state of emergency lasted until 23April2003.
B.The applicant’s treatment during his arrest, questioning and subsequent detention
10.The applicant was a member of a criminal group linked to the Zemun Clan. During Operation Sabre all members of the Zemun Clan and groups linked to it were arrested and questioned about the Prime Minister’s assassination. Those arrested were also questioned about other crimes such as murders, abductions and drug trafficking.
11.The applicant’s arrest took place at around 4p.m. on 1April2003, when five members of the Special Anti-Terrorist Unit broke into the apartment in which he was hiding with five friends.
12.The applicant claims that on the arrival of the Special Anti-Terrorist Unit he was subjected to physical and verbal abuse. Its members immediately started to kick and beat him indiscriminately all over his body and face. They put a pillowcase over his head, verbally abused him and made threats aimed at his family. The maltreatment continued for an hour. On the recording of his arrest, which was broadcast on national television at the beginning of April 2003, he was shown with visible bruises on his face.
13.At around 6p.m. the applicant and his friends were taken to the police station and left in the corridor. According to the applicant, police officers passing by sporadically hit and kicked him and his friends. He could not identify them as his face was still covered with a pillowcase.
14.At some point two police officers came and took the applicant for questioning. He was taken to an office in which seven to nine people were present. Two or three of them were women.
15.According to the applicant, the maltreatment continued there. He was beaten with baseball bats and police truncheons. He was beaten on the soles of his feet and the palms of his hands. A truncheon was inserted several times into his anus. At one point, a nylon bag was put over the pillowcase which made him lose consciousness. During all that time the applicant remembered hearing his friends screaming.
16.At around 3.30a.m. on 2April2003 two police officers took him to a solitary confinement cell. He was unable to walk so the officers carried him. In the cell his handcuffs were taken off and a detention order was put before him for signature.
17.As alleged by the applicant, approximately half an hour later two police officers entered the cell. They handcuffed him, put a bag over his head and took him for questioning. During that time he was again beaten, kicked and maltreated. Throughout this time, he was not allowed to drink any water.
18.In the applicant’s version of events, after approximately two hours of maltreatment he was returned to the solitary confinement cell. He was kept there for eleven days. During the first five days no food was given to him. Afterwards, he was given one sandwich per day. Throughout that period police officers routinely questioned and ill-treated him in the same way as before.
19.At approximately 10p.m. on 12April2003 the applicant was transferred to Belgrade District Prison (Okružni zatvor), where he remained for a year and two months pending the outcome of the criminal proceedings instituted against him.
20.On 15April2003 a prison doctor examined him and issued a medical certificate, which contained an extensive list of his injuries. These included large haematomas on the soles of his feet, palms of his hands, face, shoulders and buttocks, as well as conjunctival hyperaemia (redness) on the external parts of his eyes. The certificate also contained a statement that the applicant had been “beaten in the police station”.
21.During the first sixty days of his detention in Belgrade District Prison he was placed in a solitary confinement cell and only had contact with the doctors who examined him. After two months he had fully recovered from the ill-treatment he had suffered.
22.On 13October2003 the applicant was charged with illegal production and trafficking of drugs (neovlašćena proizvodnja i stavljanje u promet opojnih droga), abduction (otmica) and unlawful deprivation of liberty (protivpravno lišenje slobode). On 22June2004 he was sentenced to four years and ten months’ imprisonment. He was released from pre-trial detention on 25June2004 pending the outcome of appeal proceedings.
C.The investigation concerning the alleged ill-treatment
23.On 18 May2004 the applicant’s mother lodged a complaint with the Inspector General’s Service of the Ministry of the Interior (Generalni inspektorat Ministarstva unutrašnjih poslova), alleging that her son had been tortured by members of the Special Anti-Terrorist Unit and police officers working for the Narcotics Department of the Criminal Police Directorate (Odeljenje za suzbijanje narkomanije Uprave kriminalističke policije, also known as the Fourth Department) in Belgrade.
24.On 11May2005, 26May2005, 8June2005 and 12January2006 the applicant’s mother submitted additional information complaining that her son had been ill-treated, and that moveable property had been confiscated from his home.
25.On 24February2006 the applicant was invited to the Inspector General’s Service to give a statement about his mother’s allegations. He confirmed that he had been ill-treated.
26.On 16March2006 the Inspector General’s Service interviewed D.S., the Deputy District Public Prosecutor (zamenik Okružnog javnog tužioca) in Belgrade, who stated that in April 2003 he had been at the police station during the applicant’s questioning. D.S. gave the names of several of the police officers involved and stated that he had not seen any injuries on the applicant. On the contrary, the applicant had seemed pleased because he had been informed that he would be charged with lesser offences than expected. D.S. also claimed that the applicant had had no complaints about his treatment.
27.On 13June2006 statements were taken from two police officers, R.P. and A.K. Both claimed that they had not participated in the immediate arrest, but had entered the apartment after the members of the Special Anti-Terrorist Unit had already arrested the applicant and his friends. In the apartment they had seen several people dressed in only their underwear, being handcuffed and lying face down. They denied having seen any bruises or injuries on those arrested.
28.On 10July2006 the Inspector General’s Service interviewed the applicant’s wife, who made no complaints about the applicant’s treatment during his arrest or while in detention. She only complained about the confiscation of certain movables from their home.
29.On 28September2006 the chief of the Fourth Department of the Criminal Police Directorate in Belgrade (Načelnik četvrtog odeljenja UKP SUP), Z.K., gave a statement to the Sector for the Internal Control of the Police. He said that he had had no knowledge of the applicant or his friends having been subjected to any ill-treatment.
30.On 21March2007 the applicant’s mother’s complaint of ill-treatment of her son was rejected by the Inspector General’s Service for lack of evidence of a crime.
31.On 1July2007 the applicant lodged a criminal complaint with the First Municipal Public Prosecutor’s Office (Prvo opštinsko javno tužilaštvo – “the prosecutor’s office”) against a number of the unknown perpetrators as well as against three police officers identified only by surname.
32.On 20July2007 the prosecutor’s office opened an official inquiry with requests for the police to provide evidence and the names of those involved in the applicant’s arrest and questioning, and an investigative judge to question the applicant. He was interviewed on 9October2007.
33.On 30November2007 the Sector for the Internal Control of the Police identified three police officers, V.M., S.P., and Z.K., in connection with the applicant’s arrest and questioning. The officers stated that no violence had ever been used against the applicant. On 27December2007 the prosecutor’s office dropped the charges against them for lack of evidence.
34.At the same time the case against the unidentified police officers remained open because, according to the prosecutor’s office, “it transpired from the evidence gathered that Krsmanović Đorđe had sustained injuries while in detention” (iz prikupljenih dokaza utvrđeno je da je Krsmanović Đorđe zadobio povrede u periodu dok mu je bio određen pritvor). It would appear that the case is still open.
35.After learning of that decision, on 23January2008 the applicant took over the criminal proceedings as a subsidiary prosecutor (oštećeni kao tužilac) by requesting to have an investigation opened against V.M., S.P., and Z.K.
36.On 21April and 18November2008 the investigating judge to whom the case was assigned interviewed three doctors who worked at the prison hospital. On 15January2009 he also interviewed the police officers accused of ill-treatment. On 24March2009 he refused to open an investigation because there was not enough evidence to prove that the accused had committed the crime they were suspected of. On 23September2009 the pre-trial chamber of the First Belgrade Municipal Court upheld the decision of the investigating judge. The applicant appealed. On 13April2010 the Belgrade Appellate Court upheld that decision.
37.On 10July2010 the applicant lodged an appeal on points of law with the prosecutor’s office, which was rejected on 11October2010.
38.On 11July2010 the applicant also lodged a constitutional appeal. He complained principally about the lack of an effective investigation into the events under Articles 21, 25, 27, 29, 32, 33 and 36 of the Constitution and Articles 3, 6, 13 and 14 of the Convention. On 23July2013 his constitutional appeal was rejected by the Constitutional Court, whose decision was served on the applicant on 11September2013. The court primarily considered the applicant’s complaints under Article 6 of the Convention and found them to be manifestly ill-founded. As to the applicant’s complaint under Article3 of the Convention, the Constitutional Court found it to be outside its temporal jurisdiction in view of the date of entry into force of the Constitution itself. In respect of the other complaints, the Constitutional Court held, inter alia, that:
“it is not enough to allege a violation of one’s rights in a constitutional appeal or list the constitutional rights that are considered to be violated and reasons for their violations based on the appellant’s subjective estimation or evaluation, but to put each mentioned reason into a direct relationship with the allegedly violated constitutional right, and a violation or denial of a certain constitutional right has to be caused by an act or action that occurred before the entry into force of the Constitution. This also implies that specific and detailed reasons of the alleged violation of the constitutional right have to be specified in the constitutional appeal, because only a causal link presented in such manner may compel the Court to find a violation or denial of a certain right.”
A.European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
49.In its report to the Government on its visit to Serbia and Montenegro from 16 to 28September2004 (CPT/Inf (2006) 18; 18May2006) the CPT stated, among other things:
“30.The CPT delegation heard numerous allegations of deliberate physical ill-treatment of persons deprived of their liberty by the police throughout Serbia. ...
Many detainees interviewed by the delegation alleged that they had been slapped, punched, kicked or beaten with batons during police custody. A certain number of persons interviewed by the delegation alleged that they had been beaten with baseball bats, while forced to wear bullet-proof vests in order to prevent their injuries becoming visible. Some others alleged that they had been handcuffed to a radiator for several hours in painfully contorted positions. A number of allegations received included recent accounts of: beating on the palms of the hands; beating on the soles of the feet (a practice known as ‘falakaʼ); placing a plastic bag over the detainee’s head to cause temporary asphyxiation; the infliction of electric shocks on different parts of the body, including the genitals; sleep deprivation for prolonged periods; being forced to eat salt without being offered water to drink for the whole day. The ill-treatment alleged was in several cases of such a severity that it could well be considered to amount to torture. ...
32.In almost all of the police stations visited in Belgrade, the delegation found baseball bats and other non-standard and unlabelled objects (such as metal bars or wooden sticks) in offices used for interrogation purposes. This lends further credibility to the allegations received that persons deprived of their liberty by the police had been beaten with such objects. ...
34.The information at the CPT’s disposal suggests that persons suspected of a criminal offence run a significant risk of being ill-treated by the police in Serbia at the time of their apprehension and during the first hours of police custody, and that on occasion such persons may be subject to severe ill-treatment (or even torture). The number and severity of allegations of police ill-treatment received and documented by the delegation calls for urgent action by the national authorities; senior officials did not contest that the ill-treatment of persons deprived of their liberty by the police represents a serious problem in Serbia. Constant vigilance will be required if the absolute prohibition of torture and inhuman or degrading treatment is to be upheld.”
B.United Nations Human Rights Committee
50.The International Covenant on Civil and Political Rights, adopted under the auspices of the United Nations on 16December1966, entered into force in respect of Serbia on 12March2001. The relevant part of the “concluding observations” on Serbia of the UN Human Rights Committee, the body of independent experts set up to monitor the implementation of the treaty, reads as follows (document CCPR/CO/81/SEMO of 12August2004, §15):
“While taking note of the establishment in Serbia of [Inspector General’s Service] in June 2003, the Committee is concerned that no independent oversight mechanism exists for investigating complaints of criminal conduct against members of the police, which could contribute to impunity for police officers involved in human rights violations. The State party should establish independent civilian review bodies at the Republic level with authority to receive and investigate all complaints of excessive use of force and other abuse of power by the police.”

The applicant, Mr Konstantin Nikolayevich Dmitriyev, is a Russian national who was born in 1971 and lives in St Petersburg. He was represented before the Court by Ms O. Preobrazhenskaya, a lawyer admitted to practise in Moscow.
The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The events of 12 February 2005
According to the applicant, on 12 February 2005 two masked men broke into his flat and attacked him and his wife. The applicant fought back and threw the attackers out of the flat. The applicant ’ s wife called the local police station, reporting the attack and seeking help. Her complaint was registered and two police officers were sent to the applicant ’ s flat.
On 13 February 2005 the applicant was admitted to hospital, where he was diagnosed with a closed marginal fracture of the left kneecap, hemarthrosis of the left knee joint, a compound fracture of a finger on the right hand, and injuries to the left forearm. He remained in the hospital for in-patient treatment until 18 February 2005.
2. Refusals to open criminal proceedings issued in 2005 and 2006 and their revocation
On 14 February 2005 a police officer, V., issued a decision refusing to open criminal proceedings into the events of 12 February 2005 for lack of the elements of a crime. According to the reasoning for the decision, after the applicant ’ s wife had called the police station on 12 February 2005, a police officer had arrived at the applicant ’ s flat. However, the applicant ’ s wife had written a statement asking for no enquiries to be made into the incident given its “personal nature” and refusing to give any further explanation. V. submitted that both the applicant and his wife had asked that a criminal case not be opened. The police officer ’ s attempt to collect additional information about the incident by questioning the applicant ’ s neighbours had yielded no result, as no one had seen or heard anything.
On 25 May 2005 the prosecutor of the Tsentralnyy District in St Petersburg (“the district prosecutor”) quashed the decision of 14 February 2005, having found that the police inquiry had been incomplete. The prosecutor ordered that the applicant and his wife be interviewed, that medical documents be collected in order for the severity of the health damage sustained by the applicant to be determined, and that witnesses to the incident be identified and questioned.
On 19 September 2005 V., the police officer, again issued a decision refusing to open a criminal case on the same grounds as before and noted that the attempts ( i ) to contact the applicant and his wife in order to question them and (ii) to identify witnesses had been futile.
On 3 October 2005 the deputy prosecutor of the Tsentralnyy District in St Petersburg (“the deputy district prosecutor”) quashed that decision and ordered that the investigative measures listed in the decision of 25 May 2005 be carried out and that the police officers who had arrived on the scene be interviewed.
On 21 February 2006 V. again issued a decision refusing to open criminal proceedings on the same grounds as before.
In March 2006 the applicant ’ s mother lodged a complaint with the General Prosecutor ’ s Office, arguing that the St Petersburg prosecutor ’ s office had taken no measures to ensure a proper inquiry into the attack on her son.
In April 2006 the St Petersburg prosecutor ’ s office informed her that on 27 March 2006 the deputy district prosecutor had quashed the decision of 21 February 2006 and remitted the matter for additional inquiry, which had to be completed by 16 May 2006.
On 31 July 2006 police officer V. again issued a decision refusing to open criminal proceedings on the same grounds as before.
On 17 August 2006 the deputy district prosecutor quashed that decision and remitted the matter for additional inquiry.
On 27 September 2006 the police once again issued a decision refusing to open a criminal case.
On 10 October 2006 the applicant ’ s mother again lodged a complaint with the General Prosecutor ’ s Office about the St Petersburg prosecutor ’ s office.
On 30 October 2006 the St Petersburg prosecutor ’ s office informed the applicant ’ s mother that the decision of 27 September 2006 had been quashed and that the prosecutor had asked that disciplinary measures be taken against the officers concerned for procrastination and procedural violations committed during the inquiry.
On 12 November 2006 R., a police officer, issued a decision refusing to open a criminal case. According to that decision, the applicant did not reside at the address that the authorities had for him and the police had not had an opportunity to question the applicant and his wife. One of the police officers who had been at the scene on 12 February 2005 had been dismissed from his post and questioning him was not possible. Another police officer had stayed in the patrol car when he and his colleagues had arrived at the applicant ’ s home and so could not testify about what had happened there. R. referred to the refusal of the applicant ’ s wife to pursue the case.
3. The applicant ’ s first complaint to a court
On 2 May 2007 the applicant lodged a complaint with the Smolninskiy District Court of St Petersburg, submitting that after two years of inquiry no criminal proceedings had been initiated into the attack on him, that the decision of 3 October 2005 had not been complied with and that since 30 October 2006 he had not received any information about the progress of the inquiry. Having regard to the above the applicant submitted that the district prosecutor had failed to duly supervise the inquiry into the attack on him. The Smolninskiy District Court returned the complaint to the applicant for his failure to indicate the address of the place at which he had been attacked.
On 12 July 2007 the applicant resubmitted his complaint to the Smolninskiy District Court of St Petersburg.
On 26 July 2007 the Smolninskiy District Court left the applicant ’ s complaint unexamined, having found that the inquiry into the events had been conducted by the police department, which was under an obligation to inform him of its results. The applicant had never complained to the district prosecutor about the length of the inquiry and had never asked to be informed of the results of the inquiry. It followed that the applicant had brought the complaint against the wrong defendant.
On 15 October 2007 the St Petersburg City Court upheld that decision.
4. The applicant ’ s complaint to the Investigative Committee
On 1 February 2008 the applicant applied to the head of the Investigative Committee with the Prosecutor ’ s Office of Russia with a request for the opening of criminal proceedings into the attack on him and his wife. He also submitted that he had not been provided with copies of decisions taken during the inquiry into the attack on him. His complaint was forwarded to the district prosecutor.
On 2 August 2008 the applicant lodged a complaint with the St Petersburg prosecutor ’ s office, submitting that he had not been informed of any decision taken in respect of his complaint of 1 February 2008. The applicant also asked to be provided with copies of all decisions to refuse to institute criminal proceedings and of all the decisions quashing them.
On 20 August 2008 the St Petersburg prosecutor ’ s office informed the applicant that a reply to his complaint of 1 February 2008 had been sent to his address on 29 April 2008.
5. Decisions issued in 2008 and 2009
On 1 September 2008 the deputy district prosecutor quashed the decision of 12 November 2006 refusing to institute criminal proceedings and remitted the matter for additional inquiry.
On 7 October 2008 K. again issued a decision refusing to open criminal proceedings.
On 30 January 2009 the deputy district prosecutor quashed the decision of 7 October 2008 and remitted the matter for additional inquiry.
6. The applicant ’ s further complaints to courts
On 8 December 2008 the applicant lodged a complaint with the Oktyabrskiy District Court of St Petersburg, stating that the St Petersburg prosecutor ’ s office had not informed him of the results of the inquiry into his complaint of 2 August 2008 and had therefore failed to monitor the actions of the district prosecutor. The applicant ’ s complaint was forwarded to the Smolninskiy District Court.
On 25 May 2009 the Smolninskiy District Court dismissed the applicant ’ s complaint, finding that the district prosecutor did not have the authority to open a criminal case and that the district prosecutor had acted diligently.
Following an appeal by the applicant, on 4 August 2009 the St Petersburg City Court upheld that decision.
7. Information provided by the Government
According to the Government, on 6 July 2011 the register of incoming information on crimes, together with material concerning inquiries carried out in 2005, were destroyed, in accordance with the applicable rules on the storage of documents.
On 2 September 2011, following the communication of the application to the Government, a new inquiry into the applicant ’ s complaint about his ill ‑ treatment by unidentified individuals in February 2005 was opened.
On 8 September 2011 a police officer, G., acknowledged that the acts of the unidentified individuals who had attacked the applicant on 12 February 2005 disclosed elements of an offence punishable under Article 112 § 1 of the Criminal Code. However, he issued a decision refusing to open criminal proceedings on the grounds that the offence had become statute-barred.
On an unspecified date the decision of 8 September 2011 was quashed and the matter was sent for additional inquiry, which is still pending.

4.The applicant was born in 1997.
5.Following the death of her grandmother in 2010 the applicant, who was a minor at the time, began to show signs of distress. Her parents sought the opinion of a psychiatrist, who emphasised that their daughter was suffering from emotional instability, alternating between periods of anger and periods of agitation.
6.On 19 April 2013 the applicant went to a party where there were drugs and alcohol. The police arrived, seized the drugs and alcohol and checked the identity of the minors who were present.
A.The proceedings before the Youth Court and the minor’s placement
7.On 23 April 2013 the prefect of Rome informed the public prosecutor at the Rome Youth Court (“the Youth Court”) of the police operation carried out on 19 April 2013 and of the presence of V.C., a minor, at the scene. A criminal investigation was opened and the public prosecutor at the Youth Court was informed.
8.On 31 May 2013 the public prosecutor heard evidence from V.C.’s parents. They stated that their daughter had been having difficulties and that they were worried about her, saying that she was taking drugs and stealing money at home. They also told the prosecutor that, according to the psychiatrist who was treating the applicant, she suffered from a bipolar disorder and an attention deficit disorder caused by drug use and also showed signs of a borderline and anti-social personality.
9.Subsequently, in June 2013, V.C.’s parents informed the prosecutor that they had discovered through their daughter’s Facebook page that she had been approached by a photographer to pose for pornographic photographs. The Government maintained that the parents had told the prosecutor on that occasion that their daughter did not want to be placed in a specialist institution.
10.On 5 June 2013 the public prosecutor heard evidence from the applicant, who stated that she had started to take drugs when she was twelve but had since stopped. The applicant stated that she did not wish to be placed in a specialist institution or in a foster family.
11.On 25 June 2013 the applicant’s mother informed the public prosecutor by telephone that the situation had not improved and that the applicant had been approached to pose for pornographic photographs.
12.On 2 July 2013 the public prosecutor informed the Youth Court that it was clear from the statements made by the parents and the applicant, who had admitted stopping school and using drugs, and from the psychiatrist’s diagnosis, that V.C. was in danger as she was no longer attending school and there was a risk that she might be caught up in a child prostitution ring, given that she had been approached to pose for photographs. The public prosecutor therefore requested the Youth Court to institute urgent proceedings under Article 25 of Royal Decree no. 1404 of 1934 and to have the minor placed in a specialist institution and in the care of the social services.
13.On 24 July 2013 the Youth Court appointed a judge (giudice onorario) to hear evidence from the applicant, her parents and the social services, in order to learn more about her environment and take the appropriate measures to protect her.
14.On 14 October 2013, that is, almost three months later, the Youth Court gave the social services notice to appear before it. However, they did not appear.
15.The Youth Court gave notice to the applicant’s parents to appear before it on 21 October 2013. The parents gave evidence without the social services being present and stated that their daughter did not want to give evidence.
16.On 24 October 2013 the public prosecutor requested the judge to place the child in the care of the social services and in a specialist institution.
17.On 9 December 2013 the Youth Court, after hearing evidence from the parents and adding to the file the conversations which the applicant, who had refused to give evidence, had had on Facebook, and taking into account the fact that the social services had not attended the hearing, decided that it was necessary to place the child in the care of the social services. The court ordered her placement in a specialist institution for an initial twelve-month period so that she could follow a specific programme designed to help her to amend her behaviour, which the court described as erratic, and thus to resume a normal life.
18.On 11 December 2013 the social services received a copy of the Youth Court’s decision.
19.On 17 December 2013 a first meeting was held between the social services and the applicant’s parents. During the meeting the parents told the social services that there was a risk that their daughter might be caught up in a prostitution ring. They informed the social services that a criminal investigation was in progress.
20.On 18 December 2013 the social services contacted the psychiatrist who was treating the applicant and later met the applicant.
21.On 19 December 2013 the public prosecutor at the District Court informed the public prosecutor at the Youth Court that a criminal investigation was in progress concerning two individuals for exploitation of the applicant for prostitution. The applicant had given evidence on 4 and 9December 2013 (see paragraph 48 below).
The public prosecutor stressed that the arrest of the two suspects was imminent, and requested the prosecutor at the Youth Court to inform him of the measures taken to implement the Youth Court’s decision of 9 December 2013 (see paragraph 17 above), given that the applicant was due to give evidence at the ad hoc hearing (incidente probatorio) (see paragraph 51 below).
22.On 20 December 2013 the applicant reiterated that she did not wish to be placed in a specialist institution.
23.However, in January 2014 she consented to such placement.
24.On 30 January 2014 the social services contacted the regional drug addiction agency for advice on how to help the applicant withdraw from drugs.
25.During the night of 30 January 2014 V.C. was the victim of a rape (violenza sessuale) committed by two individuals (see paragraph 54 below). On 31 January the applicant went to hospital with a police officer and her mother in order to be examined.
26.On 6 February 2014 the social services told the Youth Court that they had had several meetings with V.C.’s parents and with the psychologist and psychiatrist whom she was seeing. They also informed the court that the girl had agreed to be placed in a specialist facility with a view to drug rehabilitation treatment.
27.On 7 February 2014 the social services were informed of the assault on the applicant.
28.On 19 February 2014 the President of the Youth Court made an urgent request to the social services to inform her of the measures taken to assist the applicant. She stressed that, in view of the applicant’s age, it was still possible for her to change her behaviour and that a programme should be put in place to protect her from the risks she was facing.
29.On 25 February 2014, having received no information on the applicant’s situation, the Youth Court requested the competent social services departments to draw up a report on the measures taken to assist her.
30.On 13 March 2014 the youth mental health department informed the Youth Court that the applicant had been diagnosed as being anti-social and drug-dependent and that she had agreed to being placed in a treatment centre (comunità terapeutica). The department had therefore requested the V.L. centre to admit her.
31.On 17 March 2014 the department dealing with drug dependency issues informed the Youth Court that the applicant had not consented to her placement and that, in any event, a psychiatric expert opinion was required prior to placement.
32.On 27 March 2014 the social services requested that the applicant be placed in a care facility as a temporary measure. On 31 March 2014 the care facility that been chosen stated that it did not have any places available.
33.In a report of 3 April 2014 the department dealing with drug dependency issues informed the court that it had chosen a treatment centre where the applicant could undergo rehabilitation.
34.On 3 April 2014 V.C.’s parents requested the Youth Court to enforce the decision of 9 December 2013 ordering their daughter’s placement in a specialist institution in order to help her. They also requested that a curator be appointed and that the court take urgent steps to protect their daughter.
35.On 4 April 2014 the Youth Court ordered the child’s immediate placement in the Karisma treatment centre. The measure took effect on 14April 2014.
36.On 2 July 2014 the staff of the Karisma centre observed that the applicant’s behaviour was challenging owing to her drug and alcohol dependency.
37.On 19 December 2014 the Karisma treatment centre informed the social services that the applicant’s problems persisted and that it did not have the necessary infrastructure to deal with them in view of the applicant’s drug addiction. They requested her transfer to a facility specialising in the treatment of minors with drug dependency problems.
38.The social services did not respond to this request.
39.On 7 September 2015 V.C. left the Karisma centre and returned to live with her parents.
40.On 22 October 2015 the social services sent a report to the Youth Court stressing that two meetings had been held with the applicant’s parents and that a psychiatric expert assessment had been carried out. According to the expert, the applicant had problems with numeracy and was advised to follow a course of pharmacological treatment.
41.On 19 May 2016 the Youth Court held a hearing that was not attended by the social services. The applicant gave evidence. She stated that she had gone back to school and was continuing to be monitored by the social services. She said that she had made new friends and had had a positive experience in the treatment centre.
42.On 1 June 2016 the public prosecutor’s office approved the continuation of the programme that had been put in place. The applicant stated that no such programme had actually been in place.
43.On 22 December 2016 the Youth Court gave notice to two representatives of the social services to appear before it in order to provide an update on the applicant’s situation. According to the social services, the applicant’s situation had improved and their involvement was thus no longer necessary.
44.On 10 January 2017 the public prosecutor issued an opinion in favour of discontinuing the proceedings instituted on the basis of Article 25 of Royal Decree no. 1404 of 1934.
45.In a decision of 17 January 2017 the Youth Court discontinued the proceedings.
B.The criminal proceedings concerning the prostitution ring
46.An investigation into the prostitution ring was opened in April 2013 and was concluded in December of that year.
47.On 25 September 2013 the public prosecutor at the Youth Court reported on the applicant’s situation to his counterpart at the Rome District Court.
48.The applicant gave evidence in the criminal investigation on 4 and 9December 2013. She said that she had worked as a prostitute for two individuals.
49.On 16 January and 6 February 2014 two suspects were arrested.
50.On 21 January 2014 the prosecuting authorities again heard evidence from the applicant.
51.On 26 March 2014, at the ad hoc hearing (incidente probatorio), the applicant reiterated that she had worked as a prostitute for the two suspects between August and December 2013.
52.On 17 November 2014 the Rome District Court sentenced the two defendants to prison terms of five years and four years respectively for living on the earnings of prostitution. It also ordered them to pay damages to the applicant, who had applied to join the proceedings as a civil party. The court found that the two defendants had put pressure on the applicant to engage in prostitution, had benefited from the applicant’s prostitution and had shared the proceeds. In its decision the court stated that the applicant had been the victim of sexual exploitation from August to December 2013 and that the defendants had been aware of her age.
On 4 February 2016 the Court of Appeal upheld the conviction.
53.The applicant stated that she had not received the amount awarded by the courts in respect of damages.
C.The criminal proceedings concerning the rape of the applicant
54.An investigation into the gang rape (violenza sessuale di gruppo) of the applicant on the night of 30 January 2014 was opened concerning two suspects. The case was set down for preliminary hearing on 6 November 2015 before the Rome District Court. It appears from the file that a further hearing was held on 16 February 2016 and that the proceedings are still pending.

4.The applicant was born in 1982 and lives in the Altay region.
5.At the material time the applicant was serving a sentence for robbery in correctional colony no. LIU-8 in the Altay region.
6.On 22 June, 12 July and 20 December 2004 he attempted suicide by opening his veins.
7.On 12 July 2004 a prison psychiatrist diagnosed the applicant as suffering from a slight mental retardation, psychopathy and claustrophobia with elements of self-aggression. An entry was made in his medical records that solitary confinement was contraindicated for mental health reasons. The correctional colony authorities were informed accordingly. The applicant was prescribed treatment. Since that time he had been examined by the prison psychiatrist at regular intervals. The prison psychiatrist’s diagnosis and recommendations were confirmed by the psychiatric unit of prison hospital no. 12 where the applicant was treated from 2 to 26 April 2005.
8.On 3 May 2005 the governor of the correctional colony ordered the applicant’s placement in a punishment cell for thirteen days as a punishment for the disorderly state of his bed and bedside table.
9.On 5 May 2005 the applicant was examined by the prison doctor on duty who found that his state of health permitted his placement in a punishment cell, provided that he was not held in solitary confinement.
10.The applicant was then placed in punishment cell no. 32 designed to accommodate two inmates. He was left alone in the cell, but the door was kept open.
11.On the same day the applicant went on a hunger strike in protest against his placement in solitary confinement.
12.At 8 p.m. on 8 May 2005 the applicant was visited by the prison doctor on duty who examined him and found that his health was satisfactory. He reiterated the recommendation that given the applicant’s mental condition solitary confinement was contraindicated.
13.After the doctor left, the door of the applicant’s cell was shut. About an hour later the applicant had a panic attack and attempted to open his veins with his teeth. The doctor was called back. He noted numerous lacerated wounds on the applicant’s forearms and made bandages.
14.By letters of 15 June, 8 August and 1 November 2005 the applicant asked the prosecutor’s office of the Altay Region to initiate criminal proceedings against the warders on duty.
15.On 15 December 2005 a deputy prosecutor of Barnaul refused to open criminal proceedings. He referred to statements by a warder, Mr Sh., that the applicant had himself asked him to shut the door. Moreover, the applicant’s health had not been seriously damaged as a result of the incident.
16.It follows from the letter of 16 December 2005 from the prosecutor of Barnaul that the prosecutor’s office had found that the applicant had been lawfully placed in a punishment cell. At the same time, the warders had disrespected the doctor’s recommendation by leaving the applicant alone in a closed cell. The governor of correctional colony no. LIU-8 had been warned against “permitting similar incidents to occur in future”.
17.Following to further complaints by the applicant, in which he stated in particular that he had never asked the warders to close the door, the prosecutor of Barnaul conducted an additional inquiry. He questioned the applicant and Mr Sh. He also questioned warders Mr K. and Mr S. who testified that the door to the applicant’s cell had been temporarily closed to prevent his communication with other inmates who were at that time receiving clean bedding in the storage room opposite to the applicant’s cell.
18.On 27 January 2006 the prosecutor of Baranaul refused to open criminal proceedings against the warders. He found that the warders had acted in compliance with the internal regulations and had had no intention of provoking the applicant to self-injury.
19.The applicant challenged the prosecutor’s decisions of 15 December 2005 and 27 January 2006 before the Tsentralniy District Court of Barnaul.
20.On 27 September 2006 the Tsentralniy District Court upheld the prosecutor’s decisions, finding that the inquiry had been thorough and the refusals to open criminal proceedings had been lawful and justified.
21.The applicant appealed. He submitted, in particular, that the warders had known that he suffered from claustrophobia and had closed the door to take vengeance on him for going on a hunger strike.
22.On 2 November 2006 the Altay Regional Court upheld the decision of 27 September 2006 on appeal.

4.The applicant was born in 1987 and is detained in Tiszalök.
5.On 19 July 2012 at approximately 9 a.m. the applicant, who had been placed in pre-trial detention in Budapest Prison, was transported to the premises of the Budapest Main Police Department for questioning. He was accompanied by two guards and was handed over for questioning at around 9.20 a.m., when he showed no sign of injuries.
6.The questioning started at approximately 9.55 a.m. and lasted until approximately 11.30 a.m. It was conducted by police officers A and B The applicant chose not to give a statement.
7.On being released after the interrogation, the applicant was handed over to the guards of Budapest Prison who, in the presence of the police officer, asked him whether he had been ill-treated. The applicant declared that he had not been.
8.After being transported back to Budapest Prison, the applicant underwent a medical examination before his readmission during which he claimed that he had been ill-treated by police officer A. Certain injuries were noted on the applicant. A report was drawn up on the incident and photos were taken of the injuries.
9.Right after the medical examination the applicant was again transported to the Budapest Main Police Department for questioning, from where he was taken to the military hospital by the police officer conducting his interrogation and allegedly assaulting him. At the hospital he was examined in the presence of the police officer. The medical report noted bleeding on the lower lip, jaw sensitive to pressure, and bruises on the ribs, all likely to heal within eight days.
10.According to the applicant’s submission, following his return to Budapest Prison, he was again subjected to a medical examination.
11.The police report filed by A on 19 July 2012 stated that the applicant had not been ill-treated during questioning. None of the police officers had seen the applicant harming himself but A. had observed him biting his nails and lips. Also, according to the report, the applicant had been left alone for a few minutes at the police station without constant surveillance.
12.On 20 July 2012 the applicant complained of a headache and dizziness and was again examined by medical staff at Budapest Prison. He asserted that he had been ill-treated during his interrogation. The medical report recorded the following injuries: swelling on the right cheek, head sensitive to pressure, bruising on the lower lip, and abrasions on the lower right ribs and on the left shoulder blade.
13.Budapest Prison initiated criminal proceedings on charges of forced interrogation. Furthermore, the applicant’s statements given during the medical examination (see paragraph 8 above) were qualified as a criminal complaint by the investigation authorities.
14.In the ensuing criminal investigation conducted by the Central Investigation Office the applicant gave a testimony on 14November 2012, stating that during his questioning he had refused to make a statement and as a consequence had been punched by one of the police officers several times on his head, neck and back. He had fallen against a chair and when he had tried to get up, he had been slapped four or five times in the face. He had been shown the results of a DNA test, and when he refused to comment on it, had again been beaten by the police officer. The same police officer had also punched him in the mouth when he had failed to recognise a person shown to him in a photograph. He had been pushed against the door and when he again fell over, the police officer had kicked him on his left side.
15.On 24 July 2013 one of the prisoner escort officers, C was questioned, and recalled that the applicant had complained of ill-treatment upon his return to the prison facility, which had surprised him since he had previously asked the applicant whether he had any complaints and had seen no injuries on the applicant’s body. He also stated that he had noted the injuries on the applicant’s face following the medical examination at Budapest Prison. He had asked the applicant why he had not complained of his ill-treatment earlier, to which the applicant had replied that he had been afraid of the police officers. According to C, as a general practice, detainees had been transferred in a special prisoner transport vehicle where they had not been constantly monitored and would have had the opportunity to inflict injuries on themselves.
16.On 25 July 2013 D, the other prisoner escort officer who accompanied the applicant to his interrogation, was also heard as a witness. He did not remember either the applicant or the circumstances of his transfer. He had a vague recollection that since there had been some complaints from the applicant’s side once they had arrived back at the prison facility, they had had to transfer him back to the police department. He maintained that if they had seen any injury on the applicant’s face following interrogation, they would surely have inquired of him whether he had been ill-treated by the police officers. Therefore, in his estimation the applicant could not have shown any visible signs of injury when he was handed back from the interrogation.
17.On 6 October 2013 E, the prison security officer who had taken photos of the applicant’s injuries during his readmission was questioned as a witness. He could not give any details of the incident. He could not remember whether he had escorted the applicant to the medical examination, but suggested that the applicant’s injuries must have occurred before he had been examined by the medical staff, which was why he had been called on to take photos.
18.On 18 November 2013 F, the nurse on duty at Budapest Prison was questioned, but she did not remember the incident. She could only confirm that if she had seen the applicant’s injuries prior to his transfer, she would surely have inquired about their origin.Examining the photos of the applicant, she asserted that the bruises on the applicant’s face would have occurred immediately after an impact and that the applicant could have caused them himself.
19.On 5 December 2013 G, the guard on duty at Budapest Prison, was questioned as a witness; he could not remember either the applicant or anything else concerning his complaint. He nonetheless maintained that if he had seen injuries on the applicant as presented to him on a photo, he would surely have inquired about their origin.
20.On 2 January 2014 the Central Investigation Office also heard evidence from H and I, two prison escort officers from Budapest Prison who had been on duty on the day of the incident, and who were responsible for transferring detainees to the healthcare facilities. They did not remember the applicant and could not recall the circumstances of his medical examination or admission to the prison, since, as one of them explained, they were responsible for escorting thirty to forty prisoners a day. H stated that as a general practice detainees were under constant supervision while waiting for medical examinations, whereas I asserted that there were instances where detainees were left alone when placed in so‑called “healthcare waiting rooms”. Neither of the witnesses knew with certainty whether this had been the case for the applicant.
21.On the same day, three members of the medical staff of Budapest Prison were also heard as witnesses. Two of them could not recall anything about the incident and did not remember the applicant, mostly because they were responsible for a large number of cases. Another member of the healthcare staff stated that she had a recollection of an incident, but was not sure whether it involved the applicant or another person. As a general rule, the witnesses explained that they would not admit a detainee into the prison if he showed signs of injuries. Examining the photos of the applicant, two of the medical staff stated that because of the bad quality of the photos, they weren’t even sure if they showed actual injuries or simply the shape of the applicant’s face, while the third asserted that the injury must have been fresh when the photo was taken.
22.The prison doctor was also questioned the same day. She could not identify the applicant, did not remember whether she had met him, had no recollection of the incident and could only recount what she had previously stated in the medical report. However, she stated that if the applicant had been left alone, he could have inflicted the injuries on himself.
23.The Central Investigation Office commissioned a forensic expert opinion. According to the expert assessment, the applicant’s account of the origins of his injuries was implausible, since if he had been ill-treated in the way described by him, his injuries would have been of a more serious nature. Furthermore, the location of the injuries had not corresponded to the applicant’s description of the incident either. The report stated that it was impossible to establish when the applicant’s injuries had occurred. Referring to the witness testimonies and the location of the injuries, it suggested that the applicant could have inflicted them on himself.
24.The investigation was discontinued on 8 May 2014 on the grounds that the applicant’s allegations could not be substantiated beyond doubt in the absence of any witness testimony and taking into account the conclusions of the forensic expert opinion. According to the reasoning, the available evidence neither refuted nor proved the applicant’s allegations. The applicant complained, seeking the continuation of the investigations. The first-instance decision was upheld by the Chief Prosecutor’s Office on 15 July 2014. The decision called the applicant’s attention to the possibility of lodging of initiating substitute private prosecution proceedings.

1. The applicant, Mr Bayzhan Kholmuradovich Ismogulov, is a Russian national who was born in 1971 and lives in St Petersburg. He was represented before the Court by Ms A.V. Boychenyuk, a lawyer practising in Paris.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Events of 2 September 2002
4. The applicant and his family occupied one room of a flat within a hostel ( общежитие ).
5. On 2 September 2002 the applicant had an argument with I., the manager of the hostel, who demanded that the applicant vacate the room. When the applicant refused to let him in, I. called the police.
6. When police officers P. and Ch. arrived, the applicant opened the door. According to the applicant, as soon as he did so I. punched him several times holding a set of keys, and the applicant tried to shut the door. At that moment P. sprayed the applicant with tear gas and threatened him with a gun.
7. An ambulance paramedic recorded the injuries found on the applicant ’ s body: grazes on the surface of his stomach and burning of the mucous membrane of the eyes. This document, however, was not made available to the Court by the parties.
2. Criminal proceedings against the applicant in connection with the incident of 2 September 2002
8. On 21 October 2002 criminal proceedings were instituted against the applicant under Articles 213 § 1 (hooliganism) and 119 § 1 (threat of murder or infliction of grave bodily harm) of the Criminal Code.
9. In the course of a preliminary investigation it was established that at about 9.30 p.m. on 2 September 2002 in the communal corridor of the hostel, the manager of the hostel, I., and police officer P. asked the applicant to provide an explanation for his unlawful stay in room no. 702. In response the applicant started using obscene language and administered two blows to I ’ s face, causing him bruising to the left cheekbone and abrasions on his fingers. It was also established that the applicant had been occupying the room without any legal grounds and had prevented access to another room situated in the same flat to its lawful residents, M. and Sh.
10. On 7 February 2003 charges were brought against the applicant under Articles 213 § 3 (hooliganism) and 330 § 1 (taking the law into one ’ s own hands) of the Criminal Code.
11. On 14 December 2007 the Kalininskiy District Court of St Petersburg (“the District Court”) convicted the applicant under Articles 116 § 1 (physical assault) and 330 § 1 of the Criminal Code and sentenced him to a fine. The sentence was not enforced owing to the expiry of the procedural time-limit for prosecution.
12. On 7 April 2008 the St Petersburg City Court quashed the above judgment on appeal, terminated the proceedings in so far as they concerned the charges under Article 330 § 1 of the Criminal Code, and referred the rest of the case to the District Court for a fresh examination by a different bench.
13. On 6 November 2008 the District Court returned the case to the prosecutor, who in turn sent it back to the investigations department.
14. On 19 September 2009 the investigating authority reclassified the applicant ’ s acts under Article 213 § 1 of the Criminal Code.
15. On an unspecified date the proceedings were terminated because the legislature had decriminalised the acts committed by the applicant.
3. Investigation into the applicant ’ s allegations of ill-treatment
16. Meanwhile, on 23 May 2003 the applicant applied to the prosecutor ’ s office seeking the institution of criminal proceedings against I., P. and Ch.
17. On three occasions ‒ 1 July 2003, 11 May 2005 and 30 May 2006 – the Deputy Prosecutor of the Kalininskiy District of St Petersburg refused to institute criminal proceedings against I., P. and Ch. for lack of constituent elements of a crime (illegal entry to a dwelling, abuse of power and service forgery) in their actions.
18. Following complaints lodged by the applicant on 25 August 2004, 12 September 2005 and 15 January 2007 respectively, the District Court found the above-mentioned decisions unsubstantiated and ordered the prosecutor ’ s office to carry out an additional inquiry, questioning all the persons involved in the incident.
19. In the absence of any progress in the conduct of the inquiry by December 2007, the applicant challenged the inactivity of the prosecutor ’ s office before the District Court.
20. On 15 May 2008 the District Court found unlawful the inactivity of the prosecutor ’ s office in conducting a proper inquiry in the applicant ’ s case and ordered the Kalininskiy District Prosecutor to resolve the situation.
21. The material concerning the applicant ’ s complaint was subsequently lost.
22. Following communication of the present application to the Russian Government in June 2014, on 11 August 2014 an investigator of the Kalininskiy District Investigations Department of the Federal Investigating Committee for St Petersburg refused to institute criminal proceedings against I., P. and Ch.
23. On 30 January 2015 the above-mentioned decision was set aside by the prosecutor of the Kalininskiy District of St Petersburg, who ordered an additional inquiry.
24. The case file contains no further information as to the outcome of the proceedings.

A.The applicant’s alleged ill-treatment
5.The applicant was born in 1966 and lived in Nizhniy Novgorod. He is currently serving a prison sentence in the Nizhniy Novgorod region.
6.On 24 April 2004 a robbery took place at the offices of a company in Nizhniy Novgorod. On the same day the Nizhegorodskiy district police department of Nizhniy Novgorod opened a criminal case into the robbery. The Operational-Search Division of the Chief Directorate of the Ministry of the Interior of the Russian Federation in the Privolzhskiy Federal Circuit (Оперативно-розыскное бюро ГУ МВД РФ по Приволжскому федеральному округу – “the ORB police unit”, “the police” or “police officers”) carried out operational-search activities in the case, including phone tapping. The results were declassified and transferred to S., an investigator from the investigation division of the Nizhniy Novgorod regional police department (Следственная часть Главного следственного управления при ГУВД Нижегородской области) in charge of the robbery case, on 2June 2004. According to the police report, the robbery was committed by the applicant and five other individuals. On 4June 2004 S. requested a court order to search the applicant’s flat, on the grounds that he was suspected of committing the robbery.
7.On 7 June 2004 Judge D. of the Nizhegorodskoy District Court of Nizhniy Novgorod granted the investigator’s request and ordered that the applicant’s flat be searched, referring to the applicant as a suspect.
1.The applicant’s alleged ill-treatment on 8 and 22 June 2004
8.From 6.18 to 7.56 a.m. on 8 June 2004 police officers searched the applicant’s flat in his presence. They then took him to the offices of the ORB police unit in Nizhniy Novgorod (“the police station”).
9.The applicant’s account of the subsequent events is as follows. His request for access to a lawyer was ignored. The police demanded that he confess to the robbery. He refused. Three of the officers who had arrested him were joined by other police officers, including K., Pr. and S. They subjected him to various forms of violence, such as punching and kicking him, blocking his airway by covering his mouth and nose with a rag, and tying him up in a painful position. They made him sit on the floor cross‑legged, with his hands cuffed behind his back and a bag put over his head so that he could not see anything. His feet were tied with a rope, which was connected to his neck and the handcuffs. The police officers pulled the rope to contort the applicant into a painful position, then sat on his back and jumped on him. When the applicant lost consciousness they poured water on him. He heard the officers tell each other not to leave any marks on his body. The investigator entered the room several times and demanded that the applicant write a confession.
10.According to the applicant, his ill-treatment lasted for several hours until he wrote a confession statement as requested.
11.According to the police records, the applicant confessed to committing the robbery with three other individuals at 9.30 a.m. on 8 June 2004. His confession was recorded in the form of a voluntary “statement of surrender and confession” (явка с повинной) by operational officer P. in room no. 329. The record stated that at 9.30 a.m. on 8June 2004 the applicant had turned himself in to the police and reported that he had committed the crime.
12.According to a record of the applicant’s arrest as a suspect in the robbery case, drawn up by S., the applicant was arrested at 9.40 a.m. on 8June 2004, and the record was drawn up at the same time. Between 5.05 and 5.30 p.m. he was questioned as a suspect in the presence of a lawyer appointed by S. The applicant refused to give statements, relying on his constitutional right not to incriminate himself. He was then placed in the temporary detention centre of the Nizhniy Novgorod regional police department.
13.On 9 June 2004 the applicant was brought before Judge D. of the Nizhegorodskoy District Court, who granted the investigator’s request for the applicant to be remanded in custody. According to the applicant, at the hearing in the presence of a lawyer appointed by his family, he complained to the judge that he had been ill-treated by police officers and had signed a confession statement as a result, but the judge did not take any action.
14.According to the applicant, after the court hearing he was not placed in a remand centre as was normal practice. He was instead detained in the temporary detention centre of the Privolzhskiy Federal Circuit police department for five days, before being placed in a remand centre, SIZO‑1.According to the Government, the applicant was held in SIZO-1 from 9June 2004.
15.On 15 June 2004 the applicant was charged with robbery and questioned as an accused by S. in the presence of his lawyer. The applicant pleaded his innocence and again refused to give statements.
16.On 22 June 2004 the applicant was taken from SIZO-1 to the police station. According to him, police officers, in particular Ch., K., P. and Pr., again subjected him to ill-treatment to force him to give confession statements.
17.On 24 June 2004 the applicant, through his lawyer, lodged complaints with the head of the remand centre, the Nizhniy Novgorod regional prosecutor, the Prosecutor General’s Office and the Presidential Human Rights Committee. He described suffering acts of violence at the hands of the police officers on 8 and 22 June 2004 (see paragraphs 9 and 16 above). He requested that action be taken and that he be placed under protection, adding that he could identify the police officers concerned. He stated that as a result of the violence he had confessed to a crime which he had never committed in a “statement of surrender and confession” which had been dictated to him by the police officers and S.
2.The applicant’s alleged ill-treatment on 28 June 2004
18.The applicant’s account of events on 28 June 2004 is as follows. On 28 June 2004 the applicant was taken from SIZO-1 to the police station, where he was again subjected to ill-treatment and asked to give confession statements. Police officers, in particular Ch., K., P. and Pr., punched and kicked him and tied him up in painful positions. Both his legs were tied with a rope and pulled apart. As on the previous occasion on 22June 2004, no investigative activities were carried out with the applicant.
19.On 29 June 2004 the applicant asked a doctor at the remand centre to record the injuries allegedly inflicted on him the previous day, notably contusions to his chest which made it difficult for him to breathe and abrasions. At 11.20a.m. the doctor, Ch., recorded circular abrasions on the lower third of both shins with a brown “wet” surface 1.5 to 2 centimetres wide. The doctor concluded that the injuries had been inflicted the previous day. The injuries were reported to the head of SIZO-1.
20.On the same day the applicant, who had received no response to his previous complaint, lodged another complaint with the head of the remand centre stating that he had been beaten up at the police station on 28 June 2004, as a result of which he had sustained contusions to his ribcage and abrasions. He asked for an investigation into the incident and to be given a full medical examination. He stated that despite the severe pain in his chest the medical staff of the remand centre had refused to give him a proper medical examination. He asked the head of the remand centre to stop taking him to the police and to instead conduct any investigative activities at the remand centre in his lawyer’s presence.
21.On 30 June 2004 the applicant sent a second complaint to the Nizhniy Novgorod regional prosecutor, complaining that on 28 June 2004, in a room at the police station with the sign “nos. 326-331” on the door, police officers had beaten him up for several hours to force him to confess to crimes which he had not committed. Upon his return to the remand centre he had asked the medical staff to record his injuries. The applicant asked for the police officers to be prosecuted and stated that he could identify them.
3.The applicant’s alleged ill-treatment during his detention in correctional colony IK-14 in July-November 2004
22.On 13 July 2004 a police officer, M., reported to the head of division no.3 of the ORB police unit, which provided “operational support” in the applicant’s criminal case, that three of the five people detained in the case had confessed to the robbery and had been cooperating with the investigation by uncovering further evidence of criminal activity by the group. According to operational information, the applicant had attempted to intimidate the co‑accused held in the same remand centre who had started cooperating with the investigating authority, thereby making them fear for their lives and health and hampering the investigation. The report recommended that the applicant be transferred to correctional colony IK‑14.
23.On 14 July 2004 S. ordered that the applicant be transferred to a unit functioning as a remand centre at IK-14 for the same reasons as those stated in the police report (see paragraph 22 above).
24.It appears that the applicant was transferred there on 21 July 2004.
25.The applicant’s account of the subsequent events is as follows. He was placed in a punishment cell for eighteen days. During this time he was beaten unconscious, to make him confess to a series of armed robberies, by several convicted prisoners acting on the police’s instructions and with the connivance of the administration of IK-14. They punched and kicked him, hit him with a rubber truncheon and hung him upside down. Subsequently, for some time he was detained together with convicted prisoners. He was repeatedly visited by the police, in particular officers Ch. and P., who demanded that he confess to a series of robberies and beat him up when he refused. They also asked some of the convicts, in particular S.P. and A.V., to beat him up. After the beatings he could hardly move on his own. One convict, Z., threatened him with sexual violence if he did not sign confession statements. The staff of the medical unit at IK-14 allegedly refused him medical treatment.
26.According to the applicant’s medical records from IK-14, from 21 to 29September 2004 he received inpatient treatment for a neurological disorder.
27.On an unspecified date during his detention in IK-14 the applicant confessed to six crimes and his confessions were recorded as “statements of surrender and confession”.
28.On 3November 2004 at IK-14 the applicant reiterated his confession statements in the presence of S. and his lawyer. The statements were documented in a record of his questioning as an accused. According to the applicant, the confessions were the result of torture by the police and convicts, which he could not stand any longer.
29.On 1 December 2004 S. ordered the applicant’s transfer back to the remand centre on the grounds that the risk of him intimidating his co‑accused no longer existed since all necessary investigative measures had been carried out. On 2 December 2004 the applicant was transferred to SIZO-1.
30.According to the Government, during his detention in IK-14 the applicant was held in a unit functioning as a remand centre. He was allowed short-term visits from his wife on 13 August and 24 September 2004. According to a letter of 29 July 2010 signed by the Sukhobezvodnenskiy prosecutor, the applicant was detained in a unit at IK‑14 functioning as a remand centre from 6 August to 2December 2004.
31.The applicant submitted several envelopes with postage stamps in which he had sent letters to his family in November 2004. His handwritten address was indicated as unit no. 14 at IK-14.
32.The applicant submitted to the Court the following witness statements recorded by a representative of the non-governmental organisation Committee Against Torture in Nizhniy Novgorod in February 2006:
(i)According to a statement by I.K., he was serving a sentence of imprisonment in unit no. 14 at IK-14, where he was informally given the task of monitoring discipline. In September 2004 the applicant, who was not a convicted prisoner like the others, was transferred to the unit. I.K. learned from B., who was high in the unofficial hierarchy of convicted prisoners in the unit, that the applicant had been transferred there so that he could be coerced into giving confession statements at the request of law‑enforcement officers by whatever means. The applicant had bruises under his eyes and haematomas on his head. He could hardly move on his own and was depressed. He was visited several times by officers from the ORB police unit. After the visits he had to seek others’ help to get to his cell and looked very oppressed. On one occasion, after a visit, the applicant wrote a statement in which he described being tortured and beaten up during his interviews. I.K. handed the statement over to B. Later that day two convicts, A.V. and S.P., went to see the applicant and took him to a storage room. Through the thin plywood walls I.K. could clearly hear A.V. and S.P. yelling at the applicant and threatening him with physical and sexual violence if he kept complaining and refusing to write the statements which the police had asked him to give. On several other occasions I.K. heard one convict, Z., threaten the applicant with sexual violence if he refused to give statements. After the applicant had been coerced into giving several confession statements in a row he was no longer threatened and beaten up and soon left the colony. I.K. stated that he was ready to confirm his statements before the investigating authority and the courts, adding that he feared pressure from the police and the prosecutor’s office.
(ii)According to a statement by G., he was serving a sentence of imprisonment in IK-14. In September 2004 the applicant, who was not a convicted prisoner like the others, was transferred to his unit. He had bruises under his eyes and complained of pain on both sides of his body and in his spine. On repeated occasions he was called for interviews by officers from the ORB police unit. The interviews began in the morning and lasted until evening. After the interviews the applicant was unable to move on his own and had fresh injuries, notably abrasions and bruises on his face. He explained that he had been beaten up by police officers. On one occasion three convicts, V., B. and Z., took him to a storage room. G. heard them yelling at the applicant and threatening him, demanding that he confess to some crimes and write confession statements as requested by the police officers. After that incident the applicant had several fresh bruises on his face.
(iii)According to statements by the applicant’s wife, at the court hearing on 9June 2004 the applicant looked very depressed. He had bruises on his head and abrasions on his wrists. When she visited him in IK-14 his face was bruised, he was dragging his leg behind him and had difficulty sitting down. He said that he was being detained with convicted prisoners in unit no. 14 and visited regularly by police officers demanding that he give confession statements in relation to serious crimes. During subsequent visits, on at least three occasions, the applicant looked like he had been beaten up, with abrasions and bruises on his face and head and bruises on his wrists. He had difficulty speaking, made long pauses and could hardly move. On one occasion, he said that he had signed several confession statements in a row as a result of torture. At one of the court hearings for the extension of his detention he complained of severe back pain.
(iv)According to the applicant’s son, D.M., at the same hearing on 9June 2004 the applicant looked very depressed and shocked. His face was swollen, his lips were smashed and he was walking with difficulty. He did not recognise his family. When visiting his father in IK-14 D.M. learned of the violence he had suffered at the hands of the police officers and convicts.
4.The applicant’s medical records
33.The Government submitted extracts from the applicant’s medical records relating to the period of his detention, in particular:
(i)A form entitled “examination by a doctor on duty” with the following pre-printed sections: “height”, “weight”, “complaints”, “pharynx and cutaneous coverings”, “heart and lungs”, “arterial pressure”, “tuberculosis”, “venereal diseases”, “mental diseases”, “viral hepatitis”. The word “headache” is written in the “complaints” section, while “clean” appears in the “pharynx and cutaneous coverings” section. The form does not give details as to which parts of the applicant’s body were examined and where the examination took place. It is signed and dated 9 June 2004.
(ii)A form entitled “bodily injuries upon arrival” states that there were “no bodily injuries” on 9 April 2007 at IK-20. The form is signed and dated 9June 2004 and contains a similar signature to the form described above.
B.Pre-investigation inquiries into the applicant’s alleged ill‑treatment
34.The investigating authorities carried out pre-investigation inquiries into the applicant’s allegations of violence by the police and convicts acting on their instructions with the connivance of the administration of IK‑14. No criminal proceedings were opened into his allegations. Details of the decisions taken by the investigating authorities are as follows.
1.The applicant’s alleged ill-treatment on 8 and 22 June 2004
35.On 16 July 2004 an investigator from the Nizhegorodskoy district prosecutor’s office of Nizhniy Novgorod refused to initiate criminal proceedings into the applicant’s alleged ill-treatment on 8 and 22 June 2004, pursuant to Article 24 § 1 (1) of the Code of Criminal Procedure for lack of evidence that a crime had been committed. Relying on statements by S. and the police officers, who all denied the applicant’s allegations, the investigator held that the applicant’s allegations were not supported by evidence.
36.On 23 August 2004 the Nizhegorodskoy district prosecutor found that decision lawful, well-reasoned and based on a comprehensive and impartial inquiry.
37.On 6 March 2006 the Nizhegorodskoy deputy district prosecutor revoked the decision of 16 July 2004 as unlawful and ill-founded for failure to identify all the police officers concerned.
2.The applicant’s alleged ill-treatment on 28 June 2004
38.On 2 August 2004 an investigator from the Nizhegorodskoy district prosecutor’s office refused to initiate criminal proceedings into the applicant’s alleged ill-treatment on 28 June 2004, pursuant to Article24§1(2) of the Code of Criminal Procedure for lack of the constituent elements of a crime under Article 286 of the Criminal Code (abuse of powers) in the actions of Ya., one of the police officers who had taken the applicant on 28June 2004 from SIZO-1 to the police station and back. The investigator relied on statements by Ya. and S. denying any ill‑treatment of the applicant. The investigator held that there was no evidence that the abrasions on the applicant’s shins, as described in the medical record of 29 June 2004, had been caused at the police station.
39.On 6 March 2006 the Nizhegorodskoy district deputy prosecutor revoked that decision as unfounded for failure to identify all the police officers concerned.
40.On 13 March 2006 an investigator from the district prosecutor’s office issued a new decision refusing to open criminal proceedings against officer Ya., identical to the previous decision. On 31 March 2006 the Nizhegorodskoy district deputy prosecutor annulled that decision as unfounded.
41.In the course of a new pre-investigation inquiry the applicant gave “explanations”, describing in detail his alleged ill-treatment by police officers Ch., K., P. and Pr., and stating that he could identify several others. Pr. stated that after the applicant’s arrest and before the arrival of the investigator in charge of the criminal case the police officers had interviewed the applicant.
42.Relying on the police officers’ statements denying any ill-treatment of the applicant, two more decisions refusing to open a criminal case against the police officers were issued on 10 April 2006 (annulled the same day) and 19April 2006.
3.The applicant’s alleged ill-treatment during his detention in IK-14 from July to November 2004
43.On 8 April 2005 a deputy prosecutor from the Sukhobezvodnenskaya prosecutor’s office, which supervised law observance in penal facilities, refused to institute criminal proceedings into the applicant’s allegations of ill-treatment in IK-14, pursuant to Article24§1 (1) of Code of Criminal Procedure for lack of evidence that a crime had been committed.
44.The decision stated that, according to the applicant, while in IK-14 he had been held in a punishment cell in a unit functioning as a remand centre and in unit no. 14 together with convicted prisoners, who had subjected him to psychological and physical violence to force him to give “statements of surrender and confession”. His allegations had included regular beatings by convicts A.A., B., M.K., S.P. and A.V., a member of the administration of IK-14, Captain V., and police officers, in particular P. and his subordinates.
45.Relying on statements by police officers M., P. and Ya., the investigator S., convicts A.A., M.K., and A.V., and T., the head of the unit functioning as a remand centre, who all denied the applicant’s allegations of ill‑treatment, the deputy prosecutor held that the applicant’s allegations were not supported by evidence.
46.On the same day the head of the Nizhniy Novgorod regional prosecutor’s office division responsible for supervising investigations and inquiries reviewed the decision of the Sukhobezvodnenskaya prosecutor’s office of 8 April 2005 and found it lawful and well-reasoned, stating that during his detention in IK-14 the applicant had confessed to six crimes, and “his statements had been documented in records of surrender and confession (явки с повинной) which had been forwarded to the [Operational-Search Division of the Chief Directorate of the Ministry of the Interior of the Russian Federation] in the Privolzhskiy Federal Circuit (ОРБ ГУ МВД России по Приволжскому федеральному округу)”.
47.The applicant lodged appeals against the decision of 8 April 2005, which were dismissed by various levels of prosecutor’s office, as stated in a letter from an assistant Prosecutor General of the Russian Federation of 20February 2006, and letters from the Nizhniy Novgorod regional prosecutor’s office dated 9 March and 10 April 2006.
C.The applicant’s trial
48.The applicant was tried by jury before the Nizhniy Novgorod Regional Court. At a preliminary hearing on 19 October 2005 he requested that the records of his questioning as an accused and some other records of investigative activities conducted in his case be excluded as evidence because the self‑incriminating statements recorded therein had been obtained from him under duress by police officers and convicts of IK-14.
49.At the applicant’s request the trial court heard two witnesses. The applicant’s son S.I. stated that at his custody hearing, the applicant had been in a “delirious state”, had had a swollen face, had been limping a lot and had been helped by others to move around. When S.I. had visited his father in IK-14 at the end of August 2004 he had had a bruise near one of the eyes, a cut lip, bluish hands and bruises and abrasions on his wrists. The applicant had written to his family in September or October 2004, asking them to lodge an official complaint regarding the beatings. However, he had then changed his mind and asked them not to do so.
50.I.K. stated that he had served a sentence of imprisonment in IK-14. The day after his arrival the applicant had been admitted to the medical unit with complaints of pain in his back and leg. He had had bruises on his face which, according to him, had been inflicted on him by other convicts. The applicant had been taken out of the unit for visits regularly, about three times a month. I.K. had learnt from the applicant that the visitors had been the police. After the visits the applicant had been unable to walk up the stairs and had complained of pain in his head and back.
51.The trial court found that the witness statements did not support the applicant’s allegations. It noted that the disputed records had been signed by a lawyer and contained information about the applicant’s procedural rights. In the court’s opinion, the applicant’s medical history, notably post‑traumatic encephalopathy, osteochondrosis of the cervical spine and a form of dystonia, which he had been diagnosed with in 1991, explained his complaints of headaches and pain in his back and legs. The court also relied on statements by S., who denied the applicant’s allegations, and on the Sukhobezvodnenskiy prosecutor’s decision refusing to institute criminal proceedings into the applicant’s alleged ill-treatment. It held that the applicant’s allegations that his confession statements had been given under duress were not based on fact and rejected his requests to have the impugned evidence declared inadmissible.
52.On 8 June 2006 the applicant and his co-accused were convicted of theft and a series of armed robberies committed in 1998, 1999, 2002 and on 24April 2004 by a criminal group led by two of the applicant’s co‑accused. The applicant was sentenced to nineteen years’ imprisonment. In sentencing the applicant the court applied Article 61 § 1 (i) of the Criminal Code, which provided that a “statement of surrender and confession”, active cooperation in investigating a crime and exposure of other participants in a crime were extenuating circumstances which warranted a less severe punishment.
53.The applicant appealed. He stated that after his arrest he had been beaten up by police officers and had given a “statement of surrender and confession” under duress, which he had revoked at trial. His injuries had been confirmed by medical evidence. On 21 July 2004 he had been unlawfully transferred to correctional facility IK-14 under the pretext that he had intimidated his co-accused, which he had never done. He had been held in a punishment cell and then in a unit together with convicted prisoners who had subjected him to beatings as a result of which he had given self‑incriminating statements. This had been confirmed by witness I.K.
54.On 22 February 2007 the Supreme Court of the Russian Federation reduced the applicant’s sentence to sixteen years’ imprisonment, correcting calculation errors by the trial court, and upheld the remainder of the judgment. Relying on the Sukhobezvodnenskiy prosecutor’s decision refusing to institute criminal proceedings, it upheld the trial court’s findings in relation to the applicant’s allegations of police violence and his request for the evidence allegedly obtained under duress to be excluded.
55.On 25 November 2013 the Varnavinskiy District Court of the Nizhniy Novgorod region reduced the applicant’s sentence to fifteen and a half years’ imprisonment following amendments to the Criminal Code.

5.The applicant was born in 1987 and lives in Perm.
6.On 9 April 2007 at about 11 p.m. the applicant was stopped by the police and taken to the Dzerzhinskiy District Department of the Interior of the town of Perm (Дзержинский РОВД г. Перми – “the police station”) for an identity check.
7.After the applicant’s identity was established the applicant was informed that he was wanted on suspicion of having committed a crime.
8.On 10 April 2007 at 1 a.m. the applicant was placed in the cell for administrative detainees at the police station. At 9 a.m. he was handed over to a police officer, P. According to the applicant, P. subjected him to ill‑treatment by administering several blows to his chest, abdomen and face.
9.Subsequently the applicant was interrogated by an investigator, B., in the presence of N. (the head of the police station), P., and Zh. (another police officer), as a witness in criminal case no.1470 instituted on 8March 2007 under Article161 § 2 of the Criminal Code (robbery). After his questioning the applicant was released.
10.Immediately after his release on 10 April 2007 the applicant complained at the police station of having been beaten by P.
11.On the same day the applicant went to a traumatology centre, where he was diagnosed with bruising on the left side of his forehead.
12.On 11 April 2007 the applicant complained of the beatings to the prosecutor’s office. He was made to undergo an expert examination, which revealed the following injuries: bruises on the left side of his forehead, at the outer corner of his left eye and on the left side of his neck, and an abrasion behind his left ear. The expert concluded that the above-mentioned injuries could have been caused by his being hit by a hard blunt object(s) or by that object being drawn across the applicant’s skin, possibly at the time and under the circumstances indicated by the applicant.
13.On 9 June 2007 the investigator of the Dzerzhinskiy district prosecutor’s office of the town of Perm decided not to institute criminal proceedings against P., in the absence of any indication that a criminal act had been committed. Having questioned the applicant and others involved in the incident and having examined the medical evidence, the investigator found that there were no objective data confirming that the injuries had been inflicted by the police officer. The investigator noted, in particular, the discrepancies between the applicant’s description of the alleged beatings and the injuries that he had actually sustained.
14.On 27 June 2007 the applicant challenged the above-mentioned decision before the court.
15.On 2 July 2007 the Dzerzhinskiy District Court of Perm (“the District Court”) declined to examine the applicant’s challenge.
16.Following an appeal by the applicant, on 24 July 2007 the Perm Regional Court (“the Regional Court”) quashed the decision of 2July 2007.
17.On 24 August 2007 the District Court held that the decision of 9June 2007 not to institute criminal proceedings against P. had been unlawful and unjustified. The court held that the applicant’s allegations of ill-treatment had been substantiated by medical evidence.
18.On 20 September 2007 the Regional Court quashed the judgment of 24August 2007 (since it had been delivered in the absence of P.), and remitted the matter for fresh examination by a different bench.
19.On 9October 2007 the District Court held that the decision of 9June 2007 not to institute criminal proceedings against P. had been unlawful and unjustified. The court pointed out that the decision in question had been based on the submissions of the police officers, without due assessment of the fact that the applicant, who had had no bodily injuries prior to his arrest by the police (as confirmed by I., A. and Pan.), had been diagnosed as having such injuries immediately after his release from the police station.
20.On 13November 2007 the Regional Court quashed the judgment of 9October 2007 on appeal and remitted the matter for fresh examination by a different bench.
21.On 29November 2007 the District Court again held that the decision of 9June 2007 not to institute criminal proceedings against P. had been unlawful and unjustified. The court’s reasoning was similar to that in respect of the judgment of 9October 2007.
22.Following an appeal by the district prosecutor on 20December 2007 the Regional Court quashed the judgment of 29November 2007 on appeal and referred the matter again for fresh examination by a different bench.
23.On 30January 2008 the District Court dismissed the applicant’s claim. The court found that the investigator had rightly come to the conclusion that there had been no objective information confirming the applicant’s allegation of ill-treatment by the police officer, P., and that the above-mentioned conclusion had been reached on the basis of comprehensive evidence.
24.Following an appeal by the applicant, on 19February 2008 the Regional Court upheld the above-mentioned judgment on appeal.

1. The applicants are Mr H (the “first applicant”), born in 1992; his wife, Ms I (the “second applicant”), born in 1994; and their two children, Ms J (the “third applicant”), born in 2008, and Mr K (the “fourth applicant”), born in 2016. They are all nationals of the Central African Republic. The President granted their request for their identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court).
2. The applicants, who had been granted legal aid, were represented before the Court by Ms R. Massara, a lawyer practising in Zürich. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice.
3. The applicants alleged, in particular, that they would face a real risk of treatment contrary to Article 3 of the Convention if they were transferred to Italy under the Dublin III Regulation.
4. On 24 November 2016 the duty judge decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicants should not be removed to Italy for the duration of the proceedings before the Court, and granted priority to the application under Rule 41 of the Rules of Court.
5. On 10 March 2017 the complaint concerning Article 3 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
A. The circumstances of the case
1. Background to the case
6. In 2013 the first, second and third applicants left the Central African Republic due to ongoing civil unrest and violence against Muslims. After a two-year stay in Chad the applicants travelled to Libya, from where they embarked for Italy at the end of May 2016. The applicants were rescued by the Italian Coast Guard and subsequently taken to Italy. Upon their arrival the applicants were fingerprinted. They did not apply for asylum in Italy. They subsequently travelled to Switzerland, where they applied for asylum on 26 June 2016.
7. At the beginning of July 2016 the fourth applicant was born and the second applicant was diagnosed with HIV. Subsequently, the second applicant received antiviral medication and her viral load was closely monitored, which led to adjustments in her medical treatment. The new ‑ born was provided with HIV prophylaxis for four weeks.
2. The proceedings at issue
8. After orally hearing the applicants, on 22 July 2016 the State Secretariat for Migration requested the applicants ’ transfer to Italy under the Dublin III Regulation. On 4 October 2016 the Italian authorities confirmed the transfer, stating that the applicants would be accommodated in a family unit in a SPRAR (System of Protection for Asylum-Seekers and Refugees) reception centre in accordance with the circular letter of 8 June 2015 of the Italian Ministry of the Interior. These assurances set out the names and dates of birth of the applicants.
9. On 12 October 2016 the State Secretariat for Migration decided not to examine the applicants ’ asylum request in substance and ordered their transfer to Italy.
10. On 26 October 2016 the Federal Administrative Court rejected the applicants ’ appeal. It considered that the Italian authorities had provided assurances that the applicants would be placed in one of the family units in a SPRAR reception centre and that it was not necessary to obtain additional assurances. The second applicant ’ s health was sufficiently stable for travel and Italy was obliged by European law to provide the applicants with the necessary medical care. The fourth applicant no longer required antiviral medication, but only periodic examinations. There were no indications that the applicants would not receive the necessary medical treatment in Italy. Lastly, the Swiss authorities were obliged to inform their Italian counterparts about the health of the applicants and their medical needs before they were transferred.
3. Subsequent developments
11. By email of 30 March 2017 the Italian authorities stated that the applicants ’ health and medical needs would be taken into account when identifying their accommodation and that they would have equal access to all necessary medical treatment compared to Italian citizens.
12. The applicants have submitted medical certificates concerning the state of health of the second and fourth applicants to the Court at regular intervals. By June 2017 the treating physician stated that the second applicant ’ s HIV infection had stabilised and was not at an advanced stage. It was important that she continue to take the prescribed medication (antiretroviral therapy) on a daily basis. Nonetheless, a life ‑ threatening medical emergency could occur any time, for example as a result of an opportunistic infection. In October 2017 the second applicant was diagnosed with post-traumatic stress disorder and depression. By letter of 23 March 2018 the applicants ’ counsel informed the Court that the second applicant had been undergoing psychiatric treatment at a specialised clinic since February 2018. The fourth applicant has so far tested as HIV-negative; however, a fully reliable result will only be possible when he is two years old.
B. Relevant country information on Italy
13. On 9 February 2017 the Swiss Refugee Council and the Danish Refugee Council co-published the report “Is Mutual Trust Enough? The situation of persons with special reception needs upon return to Italy”. The report concerns the reception conditions and access to the asylum procedure for families with minor children or other persons with special needs who were transferred from either Switzerland or Denmark to Italy under the Dublin III Regulation between April 2016 and January 2017. It details six cases of vulnerable persons – pregnant women and families or individuals with minor children – who were not provided with accommodation at a SPRAR reception centre designed for families with minor children upon arrival. The information about their particular needs had been communicated to the reception facility in question. Furthermore, they encountered obstacles in accessing the asylum procedure.

5.The applicants were or are still detained in Korydallos Prison Hospital (“the Prison Hospital”). They all suffer from HIV infection, apart from the third applicant who suffers from chronic obstructive pulmonary disease.
A.Data concerning the applicants’ detention
6.The first applicant, Dimitrios Zabelos, was detained in the Prison Hospital from 6 March 2014 until 17 June 2015, when he made use of the remedy provided for by Article 110A of the Criminal Code.
7.The second applicant, Adriatik Berberaj, was detained in the Prison Hospital from 6 April 2010 until 21 January 2011 and from 7 February 2012 until 1 July 2015, the date on which he was released following use of the remedy provided for by section 12 of Law no. 4322/2015, having served one third of his sentence.
8.The third applicant, Dimitrios Berberidis, was detained in the Prison Hospital on 6 December 2012 and was released on 11 June 2015 following use of the remedy provided for by section 12 of Law no. 4322/2015, having served one third of his sentence.
9.The fourth applicant, Pola Honein, was detained in the Prison Hospital from 18 December 2012 until 1 July 2015. He was released after having made use of the remedy provided for by Article 110A of the Criminal Code.
10.The fifth applicant, Theodoros Iliopoulos, was detained in the Prison Hospital from 8 January 2013 until 2 June 2015, the date on which he was released following use of the remedy provided for by section 12 of Law no.4322/2015, having served two fifths of his sentence.
11.The sixth applicant, Marouf Kamoli, was detained in the Prison Hospital from 30 December 2013 until 19 May 2015, the date on which he was released following use of the remedy provided by section 11 of Law no.4274/14, having served two fifths of his sentence.
12.The seventh applicant, Davit Khutsishvili, was detained in the Prison Hospital from 1 July 2014 until 27 October 2016. He was released after having made use of the remedy provided for by section 12 of Law no.4322/2015.
13.The eighth applicant, Roustam Konstantinidis, was detained in the Prison Hospital from 23 August 2013 until 14 December 2015. He was released following an application on the basis of section 3 of Law no.4322/2015.
14.The ninth applicant, Ioannis Machos, was detained in the Prison Hospital from 1 November 2012. He was still in detention when the parties submitted their observations.
15.The tenth applicant, Andreas Martzaklis, was detained in the Prison Hospital from 28 May 2013 until 3 August 2015, when he was released after he lodged an application on the basis of section 12 of Law no.4322/2015. He was again detained in the Prison Hospital from 22January 2016, and was still in detention there when the parties submitted their observations.
16.The eleventh applicant, Saeed Hamo Moradyan, was detained in the Prison Hospital from 8 February 2013 until 27 January 2016, the date on which he was released on the basis of section 12 of Law no. 4322/2015, having served one third of his sentence.
17.The twelfth applicant, Antonios Oikonomakos, was detained in the Prison Hospital from 27 November 2013 until 30 September 2015, when he was released, having served one tenth of his sentence, on the basis of section12 of Law no. 4322/2015. He was again detained from 6November 2015 until 23 December 2015 when he was released, having served two fifths of his sentence, on the basis of the same provision.
18.According to the documents before the Court, the thirteenth applicant, Nikolaos Papadopoulos, was detained in the Prison Hospital for significant periods of time from 4 April 2014 until 16 July 2015.
19.The fourteenth applicant, Spiridon-Xenofon Pirpiniadis, was detained in the Prison Hospital from 20 December 2013 until 13 August 2015, when he was released on the basis of section 12 of Lawno.4322/2015, having served two fifths of his sentence.
20.The fifteenth applicant, Sabri Sabrioglou, was detained in the Prison Hospital from 22 January 2013 until 24 December 2014 and from 11February until 20 October 2015.
21.The sixteenth applicant, Dimitrios Samlidis, was detained in the Prison Hospital from 8 July 2014 until 26 February 2015, when he was released, after having made use of the remedy provided for by Article 110A of the Criminal Code.
22.The seventeenth applicant, Emmanouil Toufektsis, was detained in the Prison Hospital from 30 October 2013 and was still in detention there when the parties submitted their observations.
23.The eighteenth applicant, Chrisovalantis Tsiriklos, was detained in the Prison Hospital from 4 July 2013 until 8 July 2015, when he was released after having made use of the remedy provided for by Article 110A of the Criminal Code. He was again detained on 21 August 2015 and was still in detention there when the parties submitted their observations.
B.The applicants’ description of the conditions of their detention
24.The applicants submitted that the Prison Hospital had been overcrowded which, in addition to causing poor sanitary conditions, had resulted in the deterioration of their already fragile health. They maintained that all of them had been detained in hospital wards which had measured 44sq. m and which had been occupied by twelve detainees on average for the period between 2013 and 2015. In addition, the second and third applicants had been detained in cells measuring 17 sq. m and which had held four inmates. They further argued that they had not been able to move freely within the wards owing to the space occupied by furniture. In particular, bunk beds were not used in the Prison Hospital and extra furniture, such as medical equipment, was required; therefore half the area of each ward had been occupied by furniture, which had resulted in them having a personal space in which they could move freely of below 2 sq. m.
25.The above-mentioned conditions had led them to receiving inadequate health care. There had been a high risk of infection with contagious diseases as there had not been effective separation of detainees according to the disease from which they had suffered. In addition, only four toilets had been available for the detainees in a total of five wards on the first floor.
26.Meals had been insufficient and of poor quality and the absence of recreational activities had affected their psychological health. Central heating had been inadequate and collection of rubbish, especially in the kitchens, had not been sufficient, creating hygiene problems and resulting in bad smells and the presence of pests. The applicants also complained of the lack of medical staff and properly equipped laboratories for their medical examinations. In particular, during the period 2013-14 only one general practitioner had been available to the hospital.
27.The applicants acknowledged that the conditions of their detention had improved in mid-2016 and that the medical-staff numbers had increased, resulting in conditions which met the requirements of Article 3 of the Convention but only for the period after June 2016.
28.On 18 December 2014 the applicants lodged a complaint with the Prison Board under Article 6 of the Penal Code (Law No. 2776/1999), to which they have not received any reply to date.
C.The Government’s description of the conditions of the applicants’detention
29.According to the Government, the Prison Hospital’s official capacity was sixty patients and at the time of the applicants’ detention the hospital had held between 180 and 220 patients. Specifically as regards the applicants, some of them had been detained in wards 7 and 8 on the first floor of the hospital and some others in wards 1, 2 and 3 on the second floor. The wards measured 44.40 sq. m each, and each of them hosted eight to thirteen detainees. Therefore, the personal space available to them ranged from 3.4 sq. m to 5.5 sq. m. It was also noted that toilets had been in the corridors, not inside the wards, which had remained unlocked so as to ensure unobstructed access to the bathrooms.
30.The Prison Hospital was an establishment providing primary medical care by operating as a clinic. Detainees who required more intense or specialised care were referred to public hospitals, a procedure which was used for the third, fourth, ninth, fifteenth and seventeenth applicants. The patients were separated by disease. They were examined regularly by doctors and they were submitted often to general and specialised laboratory examinations.
31.Wards were sufficiently ventilated and heated and had adequate natural light via six large windows. Hot water was ensured by solar water heaters and by boilers which operated for four hours per day. Wards were regularly cleaned by cleaning crews consisting of detainees and disinfected by specialist companies. The hospital’s social service provided personal hygiene products to detainees who could not afford them. All wards and corridors had rubbish bins which were emptied regularly.
32.As regards detainees’ meals, they were designed under medical supervision to ensure that patients received all necessary nutrients. The Government submitted the menu of two random weeks to demonstrate that they had been comprised of a variety of food.
33.According to the Government, detainees were not obliged to spend all day in the wards; on the contrary, they could move along the corridors and spend time in the yard. Various recreational activities were organised and detainees had had the opportunity to enrol in educational programmes since October 2015. Detainees were also granted days of leave that they could spend outside the prison hospital; the third, fifth and eleventh applicants had benefitted from such leave.
34.Lastly, according to the Government, during 2015 and 2016 conditions of detention in the Prison Hospital were drastically improved. That was mainly due to measures taken to reduce overcrowding in prisons under Law no. 4322/2015, which provided for early release schemes. In November 2014 a women’s ward had been opened at the hospital and work had been carried out to improve the facilities. In addition, new and updated medical equipment was procured and medical-staff numbers had been reinforced by the recruitment of three new doctors of various specialties. The Government specified that all the above-mentioned improvements had made the Prison Hospital a detention facility significantly different to the image given in the Greek Ombudsman’s (Συνήγορος του Πολίτη) report, which had been prepared on the basis of a visit in February 2012, that is to say on a date that had no relevance to the present case.
A.Ombudsman
38.On 24 October and 9 November 2011, twenty-eight people infected with HIV and detained at the Prison Hospital submitted a complaint to the Ombudsman about the conditions of their detention. On 8 February 2012, a delegation from the Ombudsman’s office visited the premises. In a report issued on 26 October 2012 following this visit, the Ombudsman emphasised that the wards were overcrowded, that the detainees did not have at their disposal any recreational activities and that the resources and infrastructure were inadequate. In particular, as regards detainees infected with HIV, the Ombudsman mentioned that the prescription of medication was not regular and that despite the fact that they were hospitalised in order to have easier access to medical care, their continuously growing numbers had led to worse conditions of detention (see Martzaklis and Others v. Greece, no.20378/13, § 40, 9 July 2015).
39.In a press release issued on 6 March 2014, the Greek Ombudsman reiterated his findings concerning the Prison Hospital and urged the authorities to take measures.
B.Parliamentary Assembly of the Council of Europe
40.On 26 June 2013 the Parliamentary Assembly adopted Resolution 1946 (2013) entitled “Equal access to health care” in which it pointed out that inequalities in access to care particularly affect vulnerable groups, including persons in detention. While preparing her report, Liliane Maury Pasquier (Switzerland, SOC), PACE rapporteur on equal access to health care, visited Greece and noted the negative impact of austerity measures on access to health care. On 4 March 2014, Ms Maury Pasquier, alarmed by the living conditions at the Prison Hospital in Athens, called on the Greek authorities to improve the situation as soon as possible. In particular she noted the following:
“I am very concerned at the insalubrious conditions of inmates at [the Prison Hospital] in Athens, reported in the media. The hospital, which was designed to cater for 60 persons, is said to currently be housing 200 prisoners, most of whom are allegedly HIV-positive or suffering from contagious diseases such as tuberculosis and hepatitis. In such conditions, it is impossible to ensure that prisoners receive appropriate treatment, not to mention the fact that overcrowding obviously contributes to the spreading of contagious diseases, thereby endangering the lives of all prisoners in the hospital.
The right to health is a fundamental human right and the State must guarantee everyone equal access to appropriate health care. This applies in particular to prisoners who are entirely under the authority and responsibility of the State. I therefore call on the Greek government to improve the living conditions of prisoners at [the Prison Hospital] as soon as possible. The possible release of some prisoners from the hospital, as announced by the Minister of Justice, would only make sense if the Greek government were to guarantee that, on release, they would receive the treatment they require.”
C.Report of the European Committee for the Prevention of Torture (“the CPT”)
41.Following its visit to Greece in April 2015, the CPT published its report dated 1 March 2016 (CPT/Inf (2016) 4). It stated, inter alia, the following:
“89.The conditions in [the Prison Hospital] have been the subject of several media reports, and images depicting the appalling state of affairs in the establishment have been posted online. However, at the time of the CPT’s visit, urgent action had still not been taken to remedy the situation which was so drastic that the place could be compared to a dumping ground for sick prisoners who are subsequently neglected and not provided with the care required. Such an appalling state of affairs cannot be permitted to continue.
The hospital has an official capacity of 80 beds and on the day of the visit was accommodating 141 prisoners, not including the 47 HIV positive prisoners in Korydallos Women Prison who were under the responsibility of the hospital. This is certainly an improvement from the period prior to November 2014, when some 220patients were held in the hospital, but the hospital remains severely overcrowded. For example, in the smaller rooms, five patients were held in 17m² while the larger rooms of 43m² were accommodating 10 or 11 patients with beds crammed together; in a hospital setting, Greek law fixes a standard of 6m² of living space per person. In addition to the cramped conditions, the rooms were filthy and cluttered and hygiene was extremely poor.
Moreover, the current drastic understaffing makes it impossible to provide all patients with the proper care they require. The four resident doctors (a general practitioner, a surgeon and two microbiologists) worked Mondays to Fridays from 7h00 to 14h30, and a separate duty resident doctor rota of eight doctors covered the hours of 14h30 to 7h00 and weekends. Approval has apparently been obtained to recruit five additional physicians, which is sorely required. Further, after an absence of two years, a dentist now visits the hospital twice a week.
In addition, a number of specialists visit the hospital (psychiatrists, dermatologists, ophthalmologist, cardiologist and an ear, nose and throat surgeon). However, there is a lack of formal process in exchanging information on patients between the specialists and the treating doctors, and much depends on the individual relationships between doctors.
As regards the nursing complement, 11 of the 14 posts were filled at the time of the visit. Typically, this resulted in four nurses on duty during weekday mornings and two in the afternoons, and at weekends one in the mornings and two in the afternoons. At night, there is only ever one nurse on duty who, in addition to the hospital, has to provide cover for Korydallos Men’s and Women’s Prisons as well as for the psychiatric hospital (i.e. more than 2,500 prisoners). As a result of the lack of nurses, a number of prisoners were employed as auxiliaries, not only to undertake janitorial duties, but also to provide care to patients such as assistance with feeding and personal hygiene. The delegation received detailed accounts inter alia of how fellow patients had provided care for a cancer patient in the period prior to his death in the hospital in February 2015, and how he was not provided with pain relieving medication until just before his death. It also came across patients who had been neglected and not provided the follow-up care required, such as a prisoner with a post-surgery lax anal sphincter causing him faecal incontinence; once his case was brought to the attention of the doctor, steps were taken to address his problem. Otherwise, nursing staff only had time to distribute medication (including at Korydallos Women’s Prison) and undertake complex dressings.
91.At the end of the visit, the CPT’s delegation requested that the Greek authorities, as a matter of urgency, undertake a full review of the prison hospital and put in place a plan to resurrect it as a place of care, where prisoners are treated for their illnesses and provided the necessary care in decent conditions. If this review has not yet been conducted, given the very serious right to life issues under Article 2 ECHR as well as the serious ill-treatment concerns under Article 3 ECHR, the CPT recommends that immediate steps are taken to carry out this review. Further, the Committee wishes to be informed of the outcome of the review and the follow-up steps planned to remedy the current situation.”

1. The applicant, Mr Fjotolf Hansen, formerly Anders Behring Breivik, is a Norwegian national who was born in 1979 and is in preventive detention. He was represented before the Court by Mr Ø. Storrvik, a lawyer practising in Oslo.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The acts of terrorism and the applicant ’ s conviction
3. On 24 August 2012 the City Court ( tingrett ) convicted the applicant of acts of terrorism committed on 22 July 2011. He had set off a car bomb in the Government quarter in Oslo and attacked participants at a political youth camp on Utøya Island outside Oslo with semi-automatic weapons. He had killed 77 people and wounded 42. He was sentenced to preventive detention for 21 years, with a minimum of 10 years to be served, pursuant to Articles 39c and 39e of the 1902 Penal Code (see paragraph 140 below). In its judgment the City Court stated, inter alia :
“Although none of the experts believe the defendant to be a borderline case, there seems to be agreement that he is ‘ a special case ’, as the experts Aspaas and Tørrissen write to conclude their supplementary report. The experts Husby and Sørheim touch upon similar ideas when they, in connection with the danger assessment, describe the defendant ’ s ‘ uncommon symptom profile ’ with a combination of affective flattening, persistent homicidal thoughts, solid delusions of a right to select victims and kill, combined with the lack of any identifiable cognitive impairment and with no disturbing sensory delusions like hallucinosis.
The court itself is struck by the defendant ’ s wordy presentation of his fanatical far ‑ right extremist attitudes mixed with pretentious historical parallels and infantile symbolism. His conceptions are accompanied by an unfettered and cynical justification of the acts of violence as being ‘ cruel, but necessary ’. A recurring question during the trial has furthermore been the importance of the reported acts for the diagnostication. However, as was pointed out during several of the testimonies given by the expert witnesses, glorification of violence or extreme acts of violence do not form part of the ICD-10 diagnostic criteria for psychosis.”
4. As reasons for the sentencing, the City Court stated, inter alia, the following:
“Furthermore, at the time of the delivery of the judgment there is an imminent risk that the defendant will commit new murders and serious acts of violence. The court makes reference to the fact that the defendant believes that the murders at the Government District and on Utøya were legitimate acts, and that extreme violence is a necessary means to achieve his political goals. The defendant has in court also related his alternative plans, like blowing up the Royal Palace and newspaper editorial offices, and killing journalists at the SKUP conference. The murders at the Government District, the murders on Utøya and the defendant ’ s plans demonstrate the extreme violence he has the will and capacity to carry out. The defendant has furthermore stated that there will be more terror attacks; this is also written in his compendium. The thought of extreme violence and murder is evidently stimulating to the defendant. This was clearly seen in court when he described how he had planned to kill Gro Harlem Brundtland by decapitation. The defendant seemed excited during the description and gave the impression that he enjoyed giving it. In its assessment of the danger, the court has also attached importance to the defendant having demonstrated a capacity for planning the acts of terrorism without being discovered.
The court also makes reference to the fact that the court-appointed expert witnesses Aspaas and Tørrissen ... conclude that there is a ‘ high risk of serious acts of violence in the future ’, and in connection with this they make reference to the defendant stating that violence and terror are necessary to have his extreme political views prevail. The court-appointed expert witnesses Husby and Sørheim also concluded in their report that the risk of future violence was very high ... When deciding what importance to attach to the assessment made by the latter experts it must, however, be taken into consideration that their danger assessment is based on the precondition of psychotic delusions.
The basic requirement of protection of society is linked to the risk of a repeat offence, but when assessing the need for such protection the perspective must be turned towards the future, ...
There is no doubt that a sentence of imprisonment based on ordinary principles of sentencing in the case at hand would have been set at the maximum sentence under the law: 21 years of imprisonment.
The defendant has, after several years of planning, carried out a bomb attack aimed at the central government administration and thus also at the country ’ s democratic institutions. He has killed 77 persons, most of whom were youths who were mercilessly shot face to face. The defendant subjected a large number of persons to acute mortal danger. Many of those affected have sustained considerable physical and/or psychological injuries. The bereaved and next of kin are left with unfathomable grief. The material damage is enormous. The cruelty of the defendant ’ s acts is unparalleled in Norwegian history.
It follows from the Supreme Court ’ s practice that it takes a lot to assume that such a long sentence for a specific term is not considered sufficient to protect society against the danger a convicted person represents at the time of the delivery of the judgment ... Notwithstanding this, the court is in no doubt that also the basic requirement for preventive detention is fulfilled in this special case.
If the defendant is to serve a 21-year prison sentence without release on probation, he will be 53 years old at the time of his release. Even though 21 years is a very long sentence, the court finds it improbable that the element of time per se will reduce the risk of a repeat offence. At the time of release the democracy that the defendant wants to abolish, will still exist. Norway will still have inhabitants of different ethnic backgrounds, different cultures and different religions. The defendant stated in court that he wants to continue his political struggle behind the prison walls. After having served his sentence, the defendant will most probably have the will and capacity to carry out many and very brutal murders. The experts Aspaas and Tørrissen, who believe the defendant suffers from personality disorders, write ... that ‘ [t]he kind of personality pathology that has been found is not very accessible to therapy. Factors that worsen the prognosis of violence will be close contact with environments that acknowledge and support the observee ’ s political ideology and views on political violence ’. The way the court sees it, a similar prognosis must be assumed even if the defendant ’ s personality were not to fulfil the fundamental diagnostic criteria for personality disorder, being rather the manifestation of deviant personality traits. This means that the defendant also after having served a 21-year prison sentence will be a very dangerous man. Against this background, the court is of the view that the requirements for imposing a sentence of preventive detention are fulfilled, and thus believes that a sentence of preventive detention should be imposed.”
2. The applicant ’ s detention
5. The applicant was transferred to Ila Detention and Security Prison (“Ila”) on 27 July 2011. There a maximum security department (a department with “ særlig høyt sikkerhetsnivå ” – a “particularly high level of security”) was established, and on 8 August 2011 the correctional services authorities, for the first time, made a decision that the applicant be confined to that department. Similar decisions have since been made every six months and the applicant has lodged unsuccessful administrative appeals against these decisions. Between July and September 2012 the applicant stayed at Telemark Prison, before returning to Ila. On 9 September 2013 he was again transferred to Telemark Prison and has since served there, also in a maximum security department.
6. In general, domestic legislation provides that inmates in maximum security departments are not to interact with inmates in other departments, whereas it is left to the local correctional services authorities to decide whether multiple inmates confined to maximum security departments should be allowed to interact with each other. In Telemark Prison, the applicant has had three cells, including one for physical exercise and one for studies, with ventilation and windows. His cells have been normally furnished with, inter alia, a toilet, shower, refrigerator, television, video game console, books and pictures (see, further, paragraphs 44 and 133 below), and delimited by a security gate to the other areas of the department. The material conditions had been relatively similar at Ila.
3. Proceedings before the City Court
7. On 1 July 2015 the applicant instigated civil proceedings against the Norwegian Government, claiming that the conditions of his detention violated Articles 3 and 8 of the Convention. He complained, notably, that there had been a breach of those provisions due to the extent of the security measures that had been put in place, including his being confined to maximum security departments and not being allowed to socialise with other inmates, his being subjected to body searches, use of handcuffs and control of his visits, correspondence and telephone calls.
8. In its judgment of 20 April 2016 the City Court ( tingrett ) found that the applicant ’ s rights under Article 3 of the Convention had been violated, but not those under Article 8. As to Article 3, the City Court assessed first of all that the authorities should have made further attempts to socialise the applicant with other inmates, and in any event that the formal reasons given in the decisions confining the applicant to a maximum security department had not been sufficiently detailed on this matter.
4. Proceedings before the High Court
(a) Introduction
9. The Government appealed against the City Court ’ s judgment as concerned the finding of a breach of Article 3 of the Convention. The applicant appealed as concerned the finding that Article 8 had not been breached.
10. The High Court ( lagmannsrett ) heard the case from 10 to 18 January 2017. Prior to the hearing, the High Court had taken evidence at Ila and Telemark Prison. The hearing took place at Telemark Prison. The applicant was present and represented by counsel. Ten witnesses were heard.
11. In its judgment of 1 March 2017 the High Court found that none of the applicant ’ s rights under the Convention had been violated.
(b) The High Court ’ s assessment under Article 3 of the Convention
12. As to Article 3 of the Convention, the High Court took as its general starting point case-law of the European Court of Human Rights such as Muršić v. Croatia [GC], no. 7334/13, ECHR 2016; Piechowicz v. Poland, no. 20071/07, 17 April 2012; Babar Ahmad and Others v. the United Kingdom, nos. 24027/07 and 4 others, 10 April 2012; Van der Ven v. the Netherlands, no. 50901/99, ECHR 2003 ‑ II; and Ramirez Sanchez v. France [GC], no. 59450/00, ECHR 2006 ‑ IX.
13. Turning to the concrete assessment of the conditions of the applicant ’ s detention, the High Court noted that there was extensive documentation both as concerned decisions on use of force, reports on the implementation of the sentence, and as to the applicant ’ s health. It stated that the parties largely agreed on the specific events that had taken place and which measures had been implemented; they disagreed instead on the assessments, in particular as concerned the risk relating to the applicant and the consequences of the security measures for the applicant and his health.
i. The risk relating to the applicant
14. Starting with the risk assessment, the High Court noted that the type and seriousness of the crimes that had led to his sentencing was the central point of departure. It pointed out, inter alia, that most of the victims on Utøya had been youths at a political summer camp, whom the applicant had mercilessly shot face to face. In the sentencing, the City Court had relied on the assessments of court-appointed psychiatric experts, who had assessed that there was a high risk of serious violent acts in future; the applicant had shown the capacity to plan acts of terrorism over a number of years without being discovered. The City Court had considered that even after serving 21 years, the applicant would be very dangerous. The applicant believed that his criminal acts had been justified and that extreme violence was a necessary tool in order to achieve political goals.
15. The High Court further noted that the acts of terrorism had been carried out in accordance with an extensive text (“compendium”) that the applicant had worked on for several years and published on the Internet on the day of the acts. This text also included a detailed manual for terrorism and plans for taking hostages and escaping from prison.
16. The correctional services authorities had considered the risk related to the applicant on numerous occasions. This included six psychiatric assessments made between 18 August 2011 and 5 December 2016 and different assessments of the probability of different types of violent acts and their consequences. Questions concerning the risk had also been dealt with in weekly meetings about the applicant among the prison personnel, and the considerations during those meetings had been registered in monthly reports. There were also a number of other decisions that contained risk assessments.
17. In one of the assessments, an extensive report dated 16 January 2013, a psychiatrist had considered that the applicant was suffering from dissocial and dramatising personality disorders and, inter alia, completely lacked remorse for what he had done and was entirely without empathy for those who had become victims of his acts.
The report had concluded that, as concerned the risk relating to release on parole, if the applicant did not change his political beliefs considerably and go through a longer period of genuine remorse, depression and wishes that his acts could be undone, he would be likely to carry out violent acts again.
As to the risk of violence in prison, it had been concluded, inter alia, that the applicant would be capable of taking hostages, harm prison officers or carry out other violent acts – also against himself – if he found this opportune. According to the report, the challenge was that, because of the applicant ’ s peculiar view of the world and his logic built upon that view, it would be difficult for the institution to understand when his motives might change. The applicant was considered as extremely self-centred and preoccupied with the spectacular. If he were to feel that he did not receive sufficient media attention, that the world was not interested in his analyses and that his affairs were forgotten, he would be capable of staging another spectacular event.
With respect to impulsive violence, it was stated in the report that the applicant could be capable of committing less serious, impulsive acts of violence if he were to perceive anything in prison as a serious narcissistic offence, his way of thinking (“ hans hensiktsmessighetstenkning ”) could be challenged, and he would be capable of committing less serious, impulsive acts of violence in spite of his usually appearing very controlled.
On the topic of violence against the applicant, it was stated in the report that if he were to interact with other inmates without meticulous supervision, one or several of the others could possibly try to “take him out”.
18. In a new risk assessment of 5 December 2016 the psychiatrist had concluded that the risk of violence, for the most part, remained unaltered. The risk of violent acts in prison had somewhat decreased, but the psychiatrist pointed to certain factors that could increase the risk of planned violence in prison. She had stated that in her view, observation had to continue until well after the end, in January 2018, of the proceedings before the High Court, since it could be several years before the applicant would again receive any considerable media attention. She further considered that, even though the applicant functioned inconspicuously on a day-to-day-basis, one should never disregard the possibility of his having plans that also included violence.
As concerned the risk of impulsive violence at that time, it was stated that one could not forget that the applicant was of the view that he could obtain weapons for use in a common department ( fellesskapsavdeling ) and that he had undoubtedly thought through how objects of daily life could be used as weapons. The psychiatrist opined that the applicant should be observed at a time when he received little response to his ideological initiatives and with respect to how this would cause stress to him.
19. The psychiatrist had testified before the High Court and then stated that her assessments from 2013 were essentially appropriate also at the time of the hearing, both as concerned the diagnoses and with respect to the risk of new violence.
She was further of the view that the applicant ’ s goal remained the same. He wanted to lead a fascist and “ethno-nationalist” revolt in Europe. He had by then turned towards neo-nazism, which she perceived as a pragmatic move to adjust to the surroundings. In her view, the risk of violence was primarily long-term – the applicant was relatively stable mentally and had shown that he could handle the day-to-day frustrations well; therefore the risk of violence in prison in the short-term was considered to have diminished.
20. The applicant had, in his statement during the appeal hearing, submitted that since the autumn of 2012 he had opposed advancing his political goals by the use of violence. He had stated that his acts on 22 July 2011 had been intended as revenge for what nationalists had suffered since 1945. This revenge, he maintained, had been completed in 2011 and the applicant would abandon his political project if “ethno-nationalists” were allowed to participate in Norwegian democracy.
21. The High Court noted that, after the applicant had reported Ila to the police for torture in 2013, he had followed up with a letter in which he had stated that, if he wanted to, he could attack prison officers with weapons for hitting or stabbing created from objects in his cell. In a letter to the correctional services authorities of 23 December 2014, he had informed them that he was considering establishing an “Aryan Brotherhood” community in Norwegian prisons, as a parallel to the Aryan Brotherhoods known in the United States.
22. Before the High Court, the applicant had further stated that he was a “party secretary in the Nordic State”; in a letter to, inter alia, politicians in September 2016 he had stated that he was also a “spokesperson for Norwegian national socialists, fascists and other ethno-nationalists”. A prison journal of 9 November 2016 read that, when the conversation had turned to 22 July 2011, the applicant had been clear that he did not feel remorse and did not in any way have problems defending what he had done on Utøya and in Oslo. This had, among other things, been revenge against the Labour Party for what it had subjected persons sharing his opinions ( meningsfeller ) to since 1945. He had maintained that he was Norway ’ s sole political prisoner and that he had tens of thousands of supporters in Norway and elsewhere. The prison staff had perceived that both his body language and his way of speaking emphasised that this was his firm belief.
23. In the High Court ’ s view, it was reasonable to understand the recent nuances in the applicant ’ s political views primarily as reflections of considerations of appropriateness ( hensiktsmessighetsvurderinger ). This included his approaching national-socialistic theories and environments of the more “traditional type”; his political project and fundamental frames of reference had not changed particularly since 2011.
24. The High Court considered that the particular features of the applicant ’ s personality had to be given major weight when assessing the risk of violence in the future. His generally calm and polite behaviour during approximately five and a half years ’ imprisonment therefore did not give reason to consider the risk of planned violence in the long term as reduced. The risk assessments made by the correctional services authorities had been thorough and appropriate. No errors had been pointed out in their factual bases or in the psychiatric assessments. In the High Court ’ s view, there were no grounds to deviate from the conclusions that had been drawn in the assessments.
25. In summary, the High Court pointed out that throughout the whole period, there had been a high risk of new, serious violence from the applicant. In addition, on the basis of the text that the applicant had written prior to his acts of terror and former statements he had made, there had particularly in 2011 and 2012 been reasons for taking into account the possibility of him having a network that could be apt to use violence in order to help him escape from prison.
26. In the High Court ’ s view it was unlikely that the applicant no longer supported the use of violence as a political means. There was still a high risk of violent acts in the long-term – not least if the applicant were to perceive reduced attention to himself and his political project. Although the risk in the short-term was perceived as having diminished, the security for prison staff, not least, indicated that extensive security measures should be in place.
27. Furthermore, the risk concerned completely limitless violence if the applicant were to find this opportune. It was very difficult to reveal any increase in the risk – the acts of terrorism for which the applicant had been convicted had been secretly planned for a very a long time; the violence had not been provoked by any close prior events, emotional strain or visible changes to his mental health.
28. Turning to the risk of violence against the applicant in prison, the High Court was of the view that that sort of risk still clearly existed. It mentioned, inter alia, that on one occasion in 2015, an inmate had managed to make his way to the door leading into the department where the applicant was held. The inmate had hammered on the door while shouting death threats. After this, physical measures had been adopted in order to avoid similar situations in future. Another inmate, who had been friends with a person present on Utøya on 22 July 2011, had expressed the wish to take revenge on the applicant. Although time had passed, the High Court concluded that there was still a relatively high risk of violence and serious threats against the applicant from other inmates. It added that it was not a simple task to clarify which persons might be capable of violence against the applicant, should they be given the opportunity.
29. On the question of whether there was a risk that the applicant could inspire others to carry out violent acts, the High Court concluded that the applicant could inspire persons in right-wing extremist environments and stated that his wish to establish networks with persons who shared his opinions had to be viewed against that background. The High Court also noted that the applicant could be a source of inspiration even for persons outside any such networks. There had already been examples of serious violent acts and, inter alia, bomb threats, that had to be assumed to have been inspired by the applicant ’ s acts.
ii. The implemented security measures
30. Turning to the measures adopted to counter the above risks related to the applicant, and the consequences these measures had for him, the High Court initially noted that the conditions of the applicant ’ s detention were, as a starting point, clearly more burdensome than an ordinary prison sentence would imply, both due to the possibility of his detention being prolonged and due to the strict security regime in the maximum security department.
(α) The confinement to a maximum security department
31. The High Court went on to note that in general, serving at a maximum security department would normally imply exclusion from interaction with other inmates – in domestic procedural law often coined as “isolation”. Full isolation was considered as a very far-reaching measure to be used with great caution and also other limitations on contact with other inmates over time could be harmful.
In more detail, the High Court set out that lack of personal contact represented a serious psychological strain and could also lead to somatic issues, such as problems with concentration and sleep, apathy and head and muscle pain. Research had shown that anxiety, depression and psychosis could develop. Isolation in prisons could, over time, lead to mental illnesses and increased risk of suicide. Reference was made to witnesses who had appeared in court, case-law of the European Court of Human Rights, and recommendations from the Committee for the Prevention of Torture (CPT). The burdens of isolation were heavier if the inmate was concurrently subjected to limitations in social contact with persons outside prison through control of letters, visits and telephone calls, and if further restrictions on access to information and sense impressions were imposed, for example restrictions on access to newspapers and television or lack of a view outside through a window. Other limitations on the freedom to act and move would imply extra burdens, for example use of handcuffs or limitations to the possibilities for going outside. Repeated body searches would often be perceived as degrading and increase the total mental strain resulting from the security measures.
32. The High Court observed that maximum security departments had been used only infrequently in Norway. Some ten inmates had served under this system since it was introduced in 2002. Apart from the applicant ’ s case, inmates had been held at maximum security departments for periods lasting from one month and up to one year and nine months. When the applicant had arrived at Ila in July 2011, maximum security departments had not been used since 2008 and never at Ila, wherefore it had been necessary to alter the building and draw up a local directive ( instruks ).
33. The reasons for the applicant ’ s confinement to maximum security departments had essentially been the same throughout the whole period. In a decision of 21 June 2016 from the Directorate of the Norwegian Correctional Service ( Kriminalomsorgsdirektoratet ) it had been stated that the applicant represented a particular risk of escaping, of taking hostages and a danger of new, particularly serious crime. In the proportionality analysis it had been stated that it was not appropriate, for security reasons, that the applicant interact with other inmates, and that there were no other inmates serving at maximum security departments at the time. According to the relevant domestic rules, the restrictions on interaction following from serving at maximum security departments should be compensated by increased contact with staff and satisfactory work, teaching and other activity offers. The Directorate had come to the same conclusion in its decision of 19 December 2016.
34. The applicant himself had, from the outset, argued that he had suffered harm due to isolation and both Ila and Telemark Prison had focussed on the risk of such harm; this matter had been discussed in notes, journals and reports. The applicant had had extensive contact with health personnel at Ila, in conversations which had often had characteristics of social contact. Since October 2011 such contact had taken place in a visiting room with a glass wall. In Telemark Prison the applicant had been offered the opportunity to speak with a psychiatrist as well as other health personnel twice weekly.
35. In a report from Ila dated 10 December 2012, reference had been made to changes in the applicant ’ s behaviour that might be due to isolation. He had been perceived as more questioning and quarrelsome towards measures and routines after returning from Telemark Prison, where he had stayed for two months (see paragraph 5 above). After the transfer to Telemark in 2013 (ibid.), it had, in a report of 11 November 2013, been remarked that on some occasions he had appeared confused and forgetful with respect to which activities he had, for example, carried out the day before. Forgetfulness had also been noted in further reports of 5 September and 14 July 2015. In the latter, the question of harm due to isolation had been passed on to the health department.
36. The prison doctor at Ila at the time had stated before the High Court that some symptoms had been registered during the applicant ’ s stay there, but that he had not suffered harm due to isolation. The applicant had seemed downcast for a period in 2012, but this had been perceived as a reaction to the conditions of his detention, for example that he had not immediately obtained approval to have a personal computer or that letters to persons who shared his opinions had been stopped. The doctor did not perceive the applicant as mentally vulnerable.
37. The applicant had also reacted with despair and frustration when, in October 2015, he had been informed that he would have to share the maximum security department with other inmates and that, in connection with this, the area available to him would be reduced. Journals from the autumn of that year noted that the applicant, on some occasions, had stated that he had “isolation headache”. The prison doctor had concluded that he was suffering from tension headaches. With time, the applicant had chosen to break off contact with the psychiatrist and later also with the prison doctor. The High Court understood that the applicant had feared that contact with a psychiatrist could be perceived as weakness and used against him towards persons who shared his opinions.
38. The prison doctor in Telemark Prison from September 2013 to January 2016 had never found signs of serious isolation harm. The matter had been considered both by a psychiatrist and the health team in the prison. The doctor had noted that the applicant had, for certain periods, suffered from headaches, but headaches were common for many people.
39. The applicant had maintained during the appeal hearing that he had become “more right-wing radical” and referred, as an example, to his performing a “Nazi salute” at the opening of the hearing. He was of the view that this political radicalisation was a result of isolation, including the fact that his opinions were never corrected.
40. The psychiatrist had concluded that there were no signs of particular vulnerability to isolation. She had perceived the applicant ’ s mental condition to be relatively stable throughout his whole stay in prison and referred to his not having developed typical symptoms such as apathy, change of circadian rhythm, reduced cognitive functioning or delusions.
41. In the High Court ’ s view, the applicant ’ s health and manners had not changed much in spite of the very long stay under very strict security measures. He had kept a normal circadian rhythm and had worked a great deal on studies, on the conditions of his detention and his political project. He had not reported any noteworthy physical problems and there had not been any need for treatment for mental problems. He had not reported any specific serious mental problems. None of the psychiatrists or doctors who had examined him had concluded that he had suffered any harm due to isolation. Neither his situation prior to the criminal acts nor his behaviour in prison indicated, in the High Court ’ s opinion, that he had any particular mental vulnerability. The High Court noted that, prior to his imprisonment, he had also periodically lived with moderate interaction with others.
42. Based on the above, the High Court concluded that there were no clear signs of harm due to isolation. In this assessment it also took into account the possibility that the applicant had under-reported mental problems in order to appear as a strong leader.
43. The absence of signs of harm due to isolation was, however, not sufficient for there not to be a breach of Article 3 of the Convention. The High Court, accordingly, went on to examine other aspects relating to the applicant ’ s having been confined to maximum security departments.
44. In that respect, the High Court stated that the physical and material conditions of the applicant ’ s detention were, in its view, very good compared to those of other inmates in Norwegian prisons. The applicant had three cells, all with ventilation and each with a window – some with privacy film. He had a television, fridge, shower and toilet. There was no camera in his living cell. In his study cell there was a desk and a personal computer. He had access to an exercise bicycle if he so wished and the cells were otherwise furnished normally. He had pictures, books, films, games and letters on shelves and in boxes. He could play music and had a gaming console. His cell area was delimited by a security gate to the other areas of the department. The material conditions had been relatively similar at Ila.
45. The applicant studied political social sciences and received outlines and sometimes recordings of lectures; he had taken several exams, with good results. He could spend one hour outside in the prison yard every day. In Telemark Prison, since December 2015, he had also had the option to use a larger outdoor area every second week, in 2016 increased to approximately once a week; at Ila he had not had access to a similar area. He had access to newspapers every morning and in his time off he watched television and films and played video games. He also spent a lot of time on writing letters, on his political activities, or working with administrative appeals related to the conditions of his detention. In addition he worked out a couple of times a week and walked daily in the small prison yard.
46. Through the testimony and records of conversations with the applicant made in medical papers and reports from prison officers, the High Court had gained a clear impression that the applicant ’ s studies in political social sciences were of considerable importance to him. There were reasons to assume that he perceived that the studies strengthened his political project. He therefore experienced his day-to-day life as clearly more meaningful than if he had had more ordinary work tasks.
47. The High Court noted, moreover, that the applicant was authorised to have monitored visits. He had, however, only remained in contact to a very limited degree with persons he had known before his acts of terrorism. He had had some visits from his mother when serving at Ila – all but one of which had taken place with a glass wall. The applicant had not wanted contact with his father as long as he did not endorse his political project. The prison staff had refused visits from three persons whom the applicant had not known from before; apparently these had not been cleared due to suspicion that the purpose of the visits had been to establish contact with right-wing extremist environments.
48. In Telemark Prison the applicant had regular contact with a volunteer visitor ( besøksvenn ). From April 2016 they had met for one and a half hours once a week, previously it had been every second week. The contents of their conversations were not recorded, but the High Court understood that they often discussed items of current interest in which they were both engaged. The visitor stated before the High Court that he had also brought up the applicant ’ s acts of terrorism with him.
49. The applicant also had a weekly conversation with a priest, which had been the case throughout his detention. This gave the applicant a possibility for confidential contact, as the priest was under a duty of confidentiality.
50. Furthermore, the applicant had, throughout his detention, been offered regular contact with health personnel. During the initial time in custody, he had been checked upon daily. After a while, this had been reduced to five, and ultimately to three times weekly. The reasons for the frequent supervision in the initial period had been, inter alia, fears of suicide attempts. The contact entailed speaking with psychiatrists, doctors or nurses. In addition to questions about the applicant ’ s health, other day ‑ to ‑ day matters and societal issues were often discussed, and the conversation had often lasted for around 30 minutes. With time, the applicant had also used these conversations to ask for help in achieving relief in the conditions of his detention, which in his view amounted to torture.
51. Upon transfer to Telemark Prison, the arrangement for regular conversations with the health service had continued. In early 2014, the applicant had discontinued further conversations with the psychiatrist and psychologist because he thought this contact could weaken his political credibility. After some time he had had conversations with a nurse approximately twice weekly. In addition there had been possibilities for consultation when particularly needed. He had partly used the conversations to advance his wishes concerning relaxation of the conditions of his detention. In the summer of 2016 he had stopped regular conversations with the health services. Since then, the staff had continually considered whether there were signs of changes to his health.
52. The applicant still had no interaction with other inmates. He had not at any time seen any other inmate; when he moved through common areas, other inmates there would be locked in their cells due to fears of unrest and comments of disapproval towards the applicant if he were seen.
53. The applicant had on many occasions complained of the lack of opportunities for social contact. From October 2012 he had consistently appealed against the decisions that he be confined to a maximum security department. According to the domestic legislation, inmates in maximum security departments should not interact with inmates in other departments. Whether multiple inmates under maximum security should be allowed to interact with each other had to be decided by the correctional services authorities (see also paragraph 6 above) and would depend largely on risk assessments.
54. The correctional services authorities had referred to the fact that interaction with other inmates could give the applicant the opportunity to establish an extreme right-wing network in the prison, or give him the opportunity to obtain assistance in communication with such networks outside the prison. It was evident from the risk assessment report of 5 December 2016 that the applicant would like to serve his sentence in a mixed-inmate department. He had in this context presumed that this would be a department with only imprisoned fascists, so that they could form a group. He had also stated that, if he were placed in a mixed-inmate department, he would build himself up to become very strong and acquire weapons. The High Court noted that the applicant had made considerable efforts to make contact with likeminded people.
55. Other inmates had been placed in the maximum security department at Telemark Prison only for two short periods during the applicant ’ s sentence. On these two occasions, the conditions had not been suitable for interaction with him: for example, one of the inmates had stated that it would be unfortunate for his criminal case if he were to interact with the applicant. The High Court also pointed out that, while the prison could place an inmate in a certain department without consent, inmates could not be forced to participate in social activities with others.
56. The High Court went on to state that the opportunity to interact with other inmates was of great significance, not least for those serving long sentences. Interaction provided social impulses in day-to-day life and could reduce the risk of developing mental ailments. Inmates had few others they could confide in without confidential information concerning personal matters being reported to prison management. This applied particularly to those serving sentences in maximum security departments. Interaction with other inmates furthermore provided the opportunity to choose for oneself who to talk to.
57. The high risk of violence from the applicant, should he become frustrated in the future, combined with the risk of violence against him from other inmates, made it difficult to establish a secure arrangement for interaction. The problems were amplified by his expressed desire to enlist inmates to support his political project, and to establish contact with extreme right-wing individuals outside prison. On the basis of the risk of violence, contact with other inmates would be difficult to carry out without the presence of personnel.
58. The High Court was of the view that the correctional services authorities should, at an earlier date, have conducted more extensive assessments of the opportunity to carry out interaction with one or more inmates who were not confined to the maximum security department. No concrete plans for interaction had been presented to the court, for example whether the applicant and another inmate could be on either side of the security gate or carry out a joint sports activity.
59. The applicant had very extensive contact with prison personnel and the objective of this was partly to ensure that he had social interaction. Multiple personnel were always present when the applicant was having contact. The officers did not have a duty of confidentiality towards prison management as to what inmates confided in them. Material information would be logged. Contact with personnel normally took place through the security gate in connection with routine inspections. In the circumstances, the contact with prison personnel nevertheless helped cover the applicant ’ s social needs. The scope and content of conversation with personnel was therefore significant in the assessment of whether the lack of interaction with other inmates entailed a breach of Article 3 of the Convention.
60. During the first phase at Ila until the judgment in the criminal case had been rendered, there had been frequent inspections. In the initial period, there had been two inspections each hour. The correctional officers had then normally only had brief conversations with the applicant, except for the department manager, who had sometimes had multiple conversations with him each day. The manager had then also discussed current affairs such as news items with the applicant; their total conversation time could vary between 15 and 50 minutes each day. During this period, the applicant had also been subject to a number of police interrogations and had had extensive contact with his defence counsel. There had also been conversations with forensic psychiatrists, and the applicant had for a period been under observation in a psychiatric hospital.
61. In the second phase, correctional officers had also been allowed to discuss, for example, current affairs with the applicant. The total daily conversation time with personnel had then increased by an estimated 30 to 40 minutes. This relatively extensive contact with the applicant had been intended to compensate for the fact that he was prohibited from interacting with other inmates.
62. In the third phase, which had started when the applicant was transferred to Telemark Prison in September 2013, the routines had been generally equivalent to those at Ila. The correctional officers could, however, initially not discuss political issues or issues concerning his case with the applicant. The manager of the applicant ’ s department at the time had also had conversations with the applicant lasting 15-20 minutes on a number of occasions.
63. As of the winter of 2014, the applicant had more extensive contact with personnel. Common subjects of conversation were, for example, films, television series and everyday topics. A social consultant had also assisted him in preparing a rehabilitation plan, and not least in planning and facilitating his studies. As of the summer of 2014, there had been no restrictions as regarded topics that could be discussed and the new department manager had generally had daily conversations with the applicant for 15-20 minutes. The applicant had been interested in hearing the personnel ’ s opinions on, for example, topics in the news.
64. Over the last two years before the High Court ’ s judgment, inspections had lasted up to one hour. Sometimes personnel would play backgammon or other games with the applicant at the security gate. The scope of contact with personnel had been increased as a consequence of some compensatory measures being discontinued during two periods in the autumn of 2015, when another inmate had been in the department.
65. An arrangement had started in April 2014 involving one hour of interaction with personnel each week as a purely social measure. In January 2016, this organised interaction had been expanded to twice each week. Once a week they would, for example, cook in the common area outside the security gate and once a week they would have other social activities.
66. An observation programme ( observasjonsprogram ) had been implemented since 1 January 2016 as part of the preventive detention sentence. The applicant had, in this connection, been confronted with his acts of terrorism. Training in independent living skills had also started in 2015, which meant that the applicant was responsible for washing his cell area and his clothes.
67. Since the summer of 2016, the extent of social activities with the applicant, such as in connection with inspections, had been logged. Since then, the applicant had had, on average, daily social contact with personnel for more than two hours. This came in addition to exercise in the fresh air, organised interaction with personnel twice each week and conversations with the social consultant, priest, volunteer prison visitor and, if needed, medical personnel.
68. As a preliminary summary concerning social contact, the High Court noted that being denied interaction with other inmates constituted a clear strain and it was entirely extraordinary for an inmate not to have contact with other inmates over a period of about five and a half years. On the other hand, the correctional services authorities had implemented very extensive compensatory measures. This concerned both the time spent by personnel in connection with inspections, the organised joint activities with personnel twice each week, as well as the fact that the applicant had, to a considerable degree, had conversations with the social consultant, priest, volunteer prison visitor and, if desired, medical personnel. The High Court also noted that the scope of compensatory measures had increased in recent years, prior to its judgment.
(β) Body searches
69. Turning to the body searches, the High Court noted that these posed a number of questions pursuant to Article 3 of the Convention. They had to be examined in isolation, but also as a part of the overall strain on the applicant. Body searches where inmates were examined without clothes were a particularly invasive control measure that inmates might experience as highly degrading. Reference was made to Van der Ven, cited above, §§ 58 et seq.
70. A very considerable number of body searches had been conducted at Ila during the first phase of the applicant ’ s detention. The correctional services authorities had registered a total of 117 searches in 2011, 199 in 2012 and 76 in 2013. When searches conducted by the police were added, the applicant had estimated the total number of body searches during this period at 880.
71. The scope had to be viewed in the light of the available risk assessments during this period; the acts of terrorism had indicated a substantial risk of new violence from the applicant. This had been further amplified by the applicant having stated that he belonged to a larger network.
72. The High Court assumed that the searches conducted by the police had taken place in connection with being subject to police interrogations and during the criminal case, that is, when the applicant had left or entered the prison. It was of the view that these searches had been justified and not disproportionate, to ensure that the applicant had not gained access, for example, to objects which might be used as stabbing weapons.
73. The body searches conducted by the correctional services authorities had primarily taken place in connection with stays outside the maximum security department. As a result of the possibility that someone could, for example, have tossed objects into the exercise yard, without this being noticed by camera surveillance or personnel nearby, the High Court was of the opinion that there were no grounds for criticising the authorities for conducting body searches following use of the yard. The same applied to searches following use of the shower room or other parts of the building outside the security gate. Structural changes had not been made to prevent the applicant from finding objects that could be used as stabbing weapons on these premises. The applicant had been interested in, and described opportunities to find, objects in the prison that could be used as weapons.
74. Body searches had also been conducted on a number of occasions as an unannounced control measure. This was in compliance with the routine set for confinement to a maximum security department.
75. The applicant had hardly ever been in the proximity of people other than personnel. Visits had taken place in a visiting room with a glass wall. The cells had been converted so that it would not be possible to find building components or loose objects that could be used as weapons. The likelihood of finding objects that could be used as, for example, a stabbing weapon had then been reduced considerably. Nothing had ever been found during the body searches, and the applicant had so far acted in accordance with what was required from prison inmates. Depending on the circumstances, searches could also alternatively take place over his clothes. The objective could furthermore be partially achieved using a metal detector, which at the time of the High Court ’ s judgment happened frequently at Telemark Prison.
76. In the view of the High Court, there should not have been that many unannounced body searches at Ila during periods when the applicant had only been in the maximum security department. The other extensive control measures had indicated that it would be highly unlikely that, in such a situation, he would have concealed, for example, potential weapons on his body.
77. The number of searches had clearly been lower in recent years. The correctional services authorities had registered 75 in 2014, 35 in 2015 and 5 in 2016. During the appeal proceedings it had been stated that body searches had not been conducted since the end of 2015 or early 2016. This had been linked to structural adaptations at Telemark Prison, the use of a fixed metal detector, the risk of violence having been considered somewhat lower and to there having been a general relaxation in the use of security measures as long as the applicant remained exclusively in secure prison areas.
(γ) Handcuffs
78. The prison had continually made decisions concerning the use of handcuffs for up to six months at a time. Handcuffs had been used during the stay at Ila a total of 768 times in 2011 and 1007 in 2012. The total number of times had been 441 in 2013, distributed between Ila and Telemark Prison. The police had also used handcuffs during transfer out of the prison. As a point of departure, the applicant had been handcuffed every time he exited a cell door. The use of handcuffs had eventually been reduced, not least after 15 April 2013, when a door had been fitted between the living area cell and the study cell at Ila.
79. At Ila, handcuffs had been applied before the cell door was opened, by having the applicant put his arms through the hatch. The handcuffs had then been held in place while the applicant moved forward with the opening door. This had involved him having to take small steps over the threshold, a method used for security reasons, because of the possibility of his having gained access to utility articles with the potential to be shaped into stabbing weapons.
80. Following the transfer to Telemark Prison, handcuffs had been used a total of 150 times in 2014, 80 times in 2015, and 33 in 2016. The use had been considerably reduced at Telemark Prison once a security gate had been installed, so that the applicant could move freely between all three cells at his disposal. From September 2015, handcuffs had not been used as long as the applicant had been in the maximum security department – only when he had been out, for example, in the large exercise yard.
81. On the basis of the continuous risk assessments, the High Court found that there was no basis for criticising the correctional services authorities for the scope of or method for using handcuffs during movement. There was no indication that the purpose has been to punish or humiliate the applicant; the use of handcuffs had been gradually reduced, in part following structural changes and in part on the basis of new assessments of the security risk.
(δ) Inspections during the night
82. During the first period at Ila, there had been two inspections each hour. This also took place at night. In practice, this had taken place by opening the cell hatch and checking whether the applicant gave any sign of life, and that there was otherwise nothing unusual. A flashlight had also been used if necessary. This had also entailed extra strain, although it had been stated that the applicant had normally slept through the night. The scope of night inspections had been reduced following the City Court ’ s judgment, and at the time of the High Court ’ s judgment only comprised inspections of areas outside the cell door. The High Court had no remarks concerning the scope of, or procedure used for, night inspections on the basis of the available risk assessments.
(ε) The control of the applicant ’ s visits and telephone use
83. The High Court noted that control of the applicant ’ s correspondence was relevant both to Articles 3 and 8 of the Convention. For practical reasons, it described the letter inspection in more detail when examining Article 8, though it was taken into account also when examining Article 3.
84. Turning to the control of the applicant ’ s visits and his telephone use, the High Court noted as a point of departure that domestic legislation provided that one or more telephone calls lasting a total of up to 20 minutes were allowed each week. During the stay at Ila, the applicant had been granted extra telephone time with his mother.
85. In addition to the telephone contact with his mother while she was still alive the applicant had, for several periods, been in regular telephone contact with a few female friends with whom he had become acquainted during his imprisonment. He had chosen to terminate some of this telephone contact himself. The correctional services authorities had refused telephone contact with three people.
86. The High Court noted that the extent of visits and telephone calls had been relatively limited throughout the imprisonment. An important reason had been that the applicant ’ s social network had been limited, and had been so also before the terror acts he committed on 22 July 2011. He had himself chosen to terminate contact with his father and, on two occasions, with female telephone friends with whom he had become acquainted during his imprisonment.
87. The conversations with the volunteer prison visitor, the priest and most visits from the applicant ’ s mother had been conducted in a visiting room with a glass wall. The same had generally applied for contact with medical personnel and, until June 2016, his attorneys. The High Court stated that a glass wall reduced personal presence during interaction. The volunteer prison visitor had stated that he eventually forgot that they were separated by a glass wall.
88. The High Court was of the view that the applicant ’ s visitors had had to be subject to visitor control for security reasons. The experience of personal presence could also have been reduced by the fact that correctional officers were sitting close by during the conversations.
89. Since June 2016 visits from the applicant ’ s lawyers had been conducted by having them sit on either side of the security gate in the wing. This had to be presumed to provide the experience of more personal contact.
90. In the High Court ’ s opinion, attempts should have been made to conduct more visits at the security gate, rather than using the glass wall. The use of a visiting room with a glass wall was, in the situation in question, nevertheless not a weighty element in the assessment pursuant to Article 3 of the Convention. The key aspect was the scope of social contact and the impulses this could provide for the applicant.
iii. Other aspects
91. The High Court pointed out that the purpose of the extensive security measures had been to prevent violence from the applicant, protect the applicant from violence against him, and to prevent him from influencing others to carry out violent acts. The authorities had obviously had no intention to break down the applicant either physically or mentally, nor had the purpose been to prevent the applicant from communicating his political message, save for encouragement to use violence.
92. The High Court noted that the conditions of the detention had gradually been relaxed. The extent of social contact had increased, not least throughout 2016. At the same time the use of far-reaching security measures, such as body searches, had clearly been reduced.
93. Relaxation of the security measures had been considered, inter alia, in connection with the preparation of decisions concerning continued detention in a maximum security department. These decisions were taken for six months. In addition, continuous assessments had been made in the coordination group for the applicant ’ s detainment. This group had met on a weekly basis and included leaders and experts in the prison. Trying out interaction with other inmates had been discussed, but had not yet been carried out.
94. In the High Court ’ s view, there was reason to attempt, within a relatively short time, interaction with one or a few other inmates in strictly controlled situations. It had been mentioned that interaction by the security gate or as a sports activity could be tried. The High Court assumed that consideration would be given to trying interaction with inmates not serving in a maximum security department.
95. Several types of decisions could be appealed against administratively, and their validity could also be challenged before the courts. The applicant had prospects to achieve further relaxation and have his detention conditions examined again in future. The decisions to confine the applicant to maximum security departments were valid for six months only, as were decisions concerning handcuffs. They had been reasoned and could be appealed against. The same was true for other decisions, such as refusal of post, visits or telephone use and use of the glass wall. The applicant had, to very considerable degrees, appealed against the decisions. Close to 200 decisions concerning conditions of his detention had been made.
96. The applicant had not brought the decisions before the courts, but he had complained to the Parliamentary Ombudsman ( Sivilombudsmannen ) and the Ombudsman ’ s preventive unit had thereto conducted inspections at Telemark Prison, including of the maximum security department. The applicant had also filed a police report concerning the detention conditions and had submitted complaints concerning medical personnel to the Norwegian Board of Health Supervision ( Helsetilsynet ).
97. In a letter of 12 April 2014, the Parliamentary Ombudsman had pointed out that the correctional services authorities should have provided more thorough grounds for the decision for continued imprisonment in the maximum security department. The High Court agreed that the requirements for the assessments and grounds in such decisions had to be stringent, still they had to be viewed in the light of previous assessments. There had been dedicated coordination groups both at Ila and Telemark Prison that had been responsible for following up the applicant ’ s prison conditions.
98. The special conditions that the applicant was serving under, as well as the large number of appeals from him, entailed that the advisers and decision-makers had been very familiar with previous assessments. In the High Court ’ s view, there was much to indicate that the considerations underlying the decisions had been sufficiently extensive. In any event, deficiencies in the grounds alone would not constitute a basis for ascertaining a violation of the Convention.
99. In the letter of 12 April 2014, the Parliamentary Ombudsman had also expressed the view that the correctional services authorities should follow up and provide feedback on aspects addressed as regarded imprisonment in a maximum security department regardless of whether there was a right to appeal under administrative law. The High Court agreed that objections to the use of security measures that did not require a formal decision under domestic legislation should also have been processed and specifically responded to. Not least, this applied because the overall security measures had been so strict over such a long period.
100. The applicant had also asserted that it had to be emphasised under Article 3 of the Convention that he had not been granted legal aid. The High Court noted at this point that there did not seem to have been any need for legal aid in connection with the applicant ’ s very high number of appeals, which had not been covered. The present case related to issues of great significance to his welfare, but his not having been granted legal aid was in any event not a weighty element in the assessment pursuant to Article 3.
iv. Comparison with the Court ’ s case law, summary and conclusion
101. The High Court carried out a detailed comparison of the applicant ’ s case and cases that had been examined by the European Court of Human Rights, in particular Öcalan v. Turkey (no. 2), nos. 24069/03 and 3 others, 18 March 2014; Piechowicz, cited above; and Ramirez Sanchez, cited above.
102. In summarising the applicant ’ s case, the High Court opened by stating that being excluded from interaction with other inmates over a longer time entailed considerable mental strain that could inflict mental harm, and that both the European Court of Human Right ’ s case-law as well as Norwegian legislation were based on the presumption that such exclusion had to be limited in time. It went on to highlight, inter alia, the following:
– The mental state of the specific applicant was still stable after a lengthy stay under strict security measures, and there were no clear signs of any harm due to isolation.
– The applicant was still strongly marked by his right-wing extremist political universe – weight could not be attached to his statements to the effect that he was no longer a proponent of violence.
– It was likely that the risk of violence would increase, should the applicant perceive that he was not receiving much attention for himself or his political project; the risk could also increase if he experienced being treated as an ordinary inmate. There was, accordingly, a high long-term risk of new violent acts, in particular minutely planned, spectacular violence to attract attention. One could not expect to register changes in the applicant ’ s behaviour prior to such acts. There was also a need for extensive assessments and practical measures to protect the applicant from other inmates.
– A number of measures had been implemented to compensate for the lack of interaction with other inmates; the applicant received social stimulus to a relatively large extent.
– The applicant had considerable freedom as to his day-to-day life. He often found his days meaningful by way of his studies, his political project and working on his detention conditions. Prior to the terrorism acts, he had also spent considerable time on his political project and computer games.
– The limitations on the applicant ’ s freedom of movement had, to some degree, been compensated by his having three cells at his disposal; no other inmates had their own study room or a cell for working out.
– The lack of contact with other inmates, the extent of body searches and the use of handcuffs were clear strains that had characterised the applicant ’ s detention; in other areas he had clearly enjoyed better conditions than inmates in Norwegian prisons would experience. Overall, the compensatory measures appeared very well-suited for the applicant ’ s needs. The High Court still deemed that the opportunity for some limited interaction with some other inmates should be examined in detail and, if appropriate, tested within a relatively short time.
103. Based on the high risk of violence from and against the applicant, the extensive compensatory measures that had been implemented, the applicant ’ s health, the extensive procedural guarantees and the circumstances overall, the conditions of the applicant ’ s detention were not found to have been disproportionately burdensome. They had been necessary to ensure the security of society and of the applicant and it was not likely that safety could have been adequately secured through alternative, less burdensome means. The number of non-notified body searches should, in the High Court ’ s view, have been lower, but the threshold under Article 3 had not been crossed.
104. After an overall assessment of the conditions of the applicant ’ s detention, the High Court concluded that there had been no breach of Article 3 of the Convention either at the day of its judgment or when viewing the whole period from July 2011 to January 2017 as a whole. There was neither inhuman nor degrading treatment in the sense given to those terms in that provision.
v. Whether Article 3 of the Convention had been breached in some periods
105. The High Court went on to examine whether the conditions at Ila prior to the transfer to Telemark Prison in September 2013, viewed in isolation, had entailed a breach of Article 3 of the Convention.
106. In that respect, the High Court had regard to how the risk of planned or impulsive violence had been assessed as higher during the first phase at Ila, which was connected to his arrest for particularly extensive and limitless violence and the descriptions in the text he had written. It had also been considered that the applicant might have emotional reactions if he understood what he had done, which indicated a need for measures to prevent suicide.
107. The measures had been exclusively implemented for security reasons; the purpose had not been to affect the applicant ’ s mental state. Ila had not been adapted for maximum security prisoners and it had been necessary to make structural changes to the building. In the meantime, security had had to be ensured by way of measures targeting the applicant.
108. The number of body searches and the use of handcuffs had to be viewed in the light of how the applicant had often been outside his cell in connection with meetings with counsel, psychiatrists and health personnel, as well as police questioning and court hearings. He had at this time also had to move around more in connection with showers and going outside into the prison yard. Later on he had moved in connection with his mother ’ s visits, contact with health personnel and the priest, as well as going to the prison yard. It was relevant that the security measures had been relaxed with time.
109. The High Court compared the instant case to that of van den Ven, cited above. It noted in that respect, inter alia, that there had been a particular risk in the instant case, and the applicant had concretely considered and described the possibility of attacking staff using weapons created with objects available in prison; moreover the focus on a possible suicide risk had been legitimate. Furthermore, in contrast to the situation in van den Ven, the applicant had not been harmed by the conditions and the body searches had not been carried out in a similarly degrading way to those in that case.
110. Based on an overall assessment, the thresholds for neither inhuman nor degrading treatment contrary to Article 3 of the Convention had been exceeded during the period from July 2011 to September 2013.
(c) The High Court ’ s assessment under Article 8 of the Convention
111. As to Article 8 of the Convention, the High Court took as its general starting point case-law such as A.K. v. Latvia, no. 33011/08, 24 June 2014; Bensaid v. the United Kingdom, no. 44599/98, ECHR 2001 ‑ I; Erdem v. Germany, no. 38321/97, ECHR 2001 ‑ VII (extracts); and Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61.
112. As the case appeared before the High Court, it had only been asked to examine the issue of control of the applicant ’ s correspondence and that of the lack of treatment for his alleged mental vulnerability.
i. Control of the applicant ’ s correspondence
113. The High Court noted that for inmates confined to maximum security departments, the opportunity to conduct correspondence was an important element in the right to privacy and this particularly applied when the inmate had few or no visits from family and traditional social networks from before the imprisonment.
114. There had been a complete ban on correspondence for the applicant during his remand in custody from July to November 2011. Thereafter a liberal practice had been followed until the summer of 2012, when the correctional services authorities had learnt that the applicant was sending letters to right-wing extremists in other countries, which led to more stringent control and practice.
115. The applicant had not been subjected to a ban on correspondence since November 2011. He had conducted extensive correspondence by letter with private individuals, press agencies as well as public institutions. Permission had been granted to send and receive letters to and from authorities, media and organisations, as well as letters to individuals without associations with extreme right-wing groups. More than 4,000 letters had been sent and received by the applicant over five and a half years and between 20 and 25 percent of them had been stopped by the letter inspection.
116. The stopped letters had primarily been from the applicant, while most incoming correspondence had been delivered to him. There had been no inspection of letters to or from attorneys.
117. The correctional services authorities had stopped what they had considered to be mass dispatches of letters to ideologically like-minded individuals; individual letters to or from known right-wing extremist convicts; and individual letters to sympathisers that had to be presumed to contribute to the establishment of extreme right-wing networks. This had to be viewed in the light of the fact that the applicant had maintained his goal of building networks through correspondence. Certain letters had also not been sent because they could not be inspected, for example due to very dense writing or crossed-out text.
118. The High Court observed that the restrictions had been in accordance with the law and served a legitimate aim. As to the proportionality, it stated that the letter inspection had also to be assessed against the background of the applicant ’ s conviction for politically ‑ motivated terror acts and that there was a high risk of planned and completely limitless acts of violence. In the text written by the applicant prior to the terror acts (see paragraph 15 above), he had called for violence to change society. Letters from the applicant had been published on right ‑ wing extremist websites. The applicant had a form of “hero” status in certain right-wing extremist groups and his acts had already been a source of inspiration for serious violence in Germany and also criminal acts (threats) in Norway. Society thus had a strong interest in stopping letters that contained direct or indirect incitements to violence or which could, for example, serve to build right-wing extremist networks. Concurrently, the letter inspection had not affected contact with the applicant ’ s family, close friends or other social relations established before his imprisonment.
119. Furthermore, the High Court pointed out that the letters had been assessed individually and that the applicant had been awarded legal safeguards in the right to appeal, of which he had largely availed himself – on some occasions successfully.
120. Following an overall assessment, the High Court concluded that Article 8 of the Convention had not been violated in connection with the mandatory letter inspection.
ii. Treatment of mental vulnerability
121. Turning to the applicant ’ s allegations concerning the lack of “care” for “mental vulnerability”, the High Court noted that it was not a question of “care” as in ordinary medical care, but rather that the applicant claimed that the limitations to his possibilities for social contact entailed a breach of Article 8 of the Convention.
122. The High Court made reference to case-law of the European Court of Human Rights, such as Vasileva v. Bulgaria, no. 23796/10, § 63, 17 March 2016, with further references. It assumed that the considerations in Bensaid, cited above, § 47 – which concerned expulsion – to the effect that Article 8 of the Convention could protect against measures by the authorities that have negative consequences for mental health – could apply also to prison inmates. In the instant case, however, the applicant ’ s mental condition was stable; he still had a dissocial and dramatising personality disorder and little had changed. There were no grounds for considering him to have any particular mental vulnerability. The applicant had good access to health services. He had himself chosen not to avail himself of these services for a time, but the health personnel still continually considered whether he needed supervision. There would thus, in any event, not be issues concerning proportionality under Article 8 of the Convention because of alleged mental vulnerability.
5. Proceedings before the Supreme Court
123. The applicant appealed against the High Court ’ s judgment.
124. On 8 June 2017 the Supreme Court ’ s Appeals Leave Committee ( Høyesteretts ankeutvalg ) (“the Committee”) unanimously refused leave to appeal.
125. As concerned the applicant ’ s appeal against the High Court ’ s assessment of evidence, the Committee noted that the evidence presented before the City Court and the High Court had been extensive and included inspections on site. The appeal to the Supreme Court had not substantiated any claims of significant new evidence, nor any changes or developments that could affect the assessment. The Committee found that, in the interest of clarifying the case, there was no need for the Supreme Court to review the evidence again; such review by the Supreme Court would, in any case, be based on the presentation of secondary evidence. Furthermore, no other compelling reasons existed to serve as grounds on which to grant leave to appeal to the Supreme Court against the assessment of evidence. Leave was therefore refused for this part of the appeal, including the claim that the applicant was mentally vulnerable. The Committee referred to the High Court ’ s judgment, which concluded that the applicant suffered from no such vulnerability.
126. As concerned the applicant ’ s appeal against the High Court ’ s application of the law, the Committee noted that the applicant had claimed that the High Court had misconstrued and misapplied Article 3 of the Convention in concluding that the conditions of his confinement did not constitute inhuman or degrading treatment. In particular, he had emphasised the stress of continuous solitary confinement, in the light of the security measures otherwise imposed.
127. The Committee observed that the isolation of the applicant from other inmates had lasted close to six years. This was an extraordinarily long time ( ekstraordinært lenge ). The isolation had not been found to have harmed his physical or psychological health. However, the risk of severe and irreversible psychological trauma associated with such prolonged isolation from regular, meaningful human interaction was generally quite high. Weighty reasons were therefore required to justify such solitary confinement with reference to Article 3 of the Convention.
128. Committing the applicant to solitary confinement was considered necessary on the grounds that he was dangerous. In its judgment of 24 August 2012, where the applicant was sentenced to preventive detention, the City Court had concluded that there was a high risk of him committing serious violent offences in the future, even after serving a regular prison sentence of 21 years. As had been detailed in the High Court ’ s judgment, a number of risk assessments had been carried out throughout his detention, and they had all come to similar conclusions. Based on the extensive evidence presented, the High Court had concluded that the correctional services authorities were justified in concluding that the applicant represented, and continued to represent, a considerable security risk for his environment and society in general, even during his detention. He was isolated from other prisoners in order to prevent violence within the prison, reduce the risk of escape, prevent networking for the purpose of instigating new attacks and prevent the applicant from inspiring others to commit the kind of extreme violence he himself had committed.
129. Keeping the applicant from interacting with other inmates was also motivated by the assumption that the acts of terrorism for which he had been convicted – and the message he continued to attempt to communicate in various contexts – entailed a considerable risk of serious attacks on his person.
130. In the early phases of the applicant ’ s detention, especially, the security measures implemented had been stringent, including frequent night-time inspections and the use of handcuffs and body searches. Over time these measures had been eased, in line with, inter alia, recommendations in a visit report, dated November 2015, by the Parliamentary Ombudsman. Handcuffs had not been used inside the department since September 2015, and no body searches had been carried out since the end of 2015 or early 2016. Night-time inspections had, over time, been limited to inspecting the areas outside the cell door.
131. Generally speaking, there was no doubt that the conditions of the applicant ’ s confinement caused the applicant great hardship, and they were also potentially harmful. However, overall, they caused no distress or hardship exceeding the unavoidable level of suffering inherent in the long period of detention he was serving and in the fact that on several levels he had represented, and continued to represent, an unusually high risk of very serious incidents. The High Court had concluded that alternative, less invasive measures had so far not been able to achieve a satisfactory level of security.
132. It had been established that all measures implemented in connection with the applicant ’ s conditions of confinement had been authorised by or implemented pursuant to law, and they had been based on what the European Court of Human Rights had referred to as “genuine grounds both ab initio as well as when its duration is extended” (see Babar Ahmad and Others v. the United Kingdom, nos. 24027/07 and 4 others, § 212, 10 April 2012). The issue of whether solitary confinement was necessary had been reviewed regularly. Health personnel had continually and closely monitored the applicant ’ s health. Decisions to commit him to a maximum security department, which in reality had entailed solitary confinement, had been reasoned. These decisions had also been reviewed through administrative appeals procedures. As part of the case pending before the Committee, the applicant had also been given the opportunity for judicial review of his case in several courts. The procedural safeguards emphasised by the European Court of Human Rights had therefore been satisfactorily implemented.
133. The physical environment of the applicant ’ s detention was, under the circumstances, very good. He had access to three continuous cells, with daylight and access to a television, a shower, a toilet, a refrigerator, a computer, exercise equipment, a stereo system and a video game console. He had the option of going outside in the yard for one hour each day and access to a newspaper every morning. During his detention, he had been able to receive instruction, study and take exams at university level with good results. Increasingly, steps had been taken to facilitate more extensive and social interaction between the applicant and various categories of prison personnel. He had a regular prison visitor, whom he was free to talk with every week. These moderating elements made it easier for the applicant to cope with the stringent detention regime and the lack of ordinary human interaction. They contributed to giving his days a certain structure and meaning, and they facilitated physical and mental stimulation. They also largely served as a psychological substitute for the lack of social interaction with other prisoners.
134. In its judgment, the High Court had criticised the correctional services authorities on the grounds that the possibility of at least some degree of interaction with other inmates should have been given greater consideration and that the decisions should have included a more detailed justification. Furthermore, the use of random body searches at Ila was, in the High Court ’ s assessment, unnecessarily high. Also, greater consideration should have been given to the possibility of using bars instead of glass walls for visiting purposes.
135. These criticisms were relevant for an assessment of whether the conditions of confinement have been, and continue to be, inhuman or degrading. However, the material elements of the applicant ’ s detention regime – including the degree of isolation – were based on verifiable professional assessments, and they were implemented for the purpose of safeguarding critical security concerns as well as the applicant ’ s health and dignity. The Committee recognised that the correctional services authorities, in the applicant ’ s case, faced a considerable challenge in maintaining an optimal balance in this respect.
136. Upon an overall and comprehensive assessment, the High Court had concluded that the threshold for infringement of rights established by Article 3 had not been exceeded. The Committee saw no basis on which to draw a different conclusion. At this point, the applicant ’ s appeal had no prospects of succeeding before the Supreme Court.
137. As concerned the remaining parts of the appeal, the Committee took into account the applicant ’ s claim that the use of handcuffs and body searches constituted independent violations of Article 3 of the Convention. In this context, the Committee found it sufficient to refer to the High Court ’ s judgment, with which the Committee concurred.
138. Furthermore, the applicant claimed that monitoring his correspondence and visits violated his right to respect for his private life and his correspondence pursuant to Article 8 of the Convention. The High Court had given a comprehensive assessment on this issue as well, and had concluded that the measures had statutory authority, pursued legitimate aims and were proportionate – and thus also justifiable under Article 8. The Committee saw no basis on which to draw a different conclusion.
139. These other parts of the applicant ’ s appeal also had, in the Committee ’ s view, no prospects of succeeding in a hearing before the Supreme Court.
B. Relevant domestic law
140. The applicant ’ s preventive detention had been ordered pursuant to Article 39c of the Penal Code of 22 May 1902 no. 10 ( straffeloven ), in force at the time of the applicant ’ s criminal acts and his conviction, the relevant parts of which read:
“When a sentence for a specific term is deemed to be insufficient to protect society, a sentence of preventive detention in an institution under the correctional services may be imposed instead of a sentence of imprisonment when the following conditions in no. 1 or no. 2 are fulfilled:
1. The offender is found guilty of having committed or attempted to commit a serious violent felony, sexual felony, unlawful imprisonment, arson or other serious felony impairing the life, health or liberty of other persons, or exposing these legal rights to risk. In addition there must be deemed to be an imminent risk that the offender will again commit such a felony. In assessing such risk importance shall be attached to the felony commited or attempted especially as compared with the offender ’ s conduct and social and personal functioning capacity. Particular importance shall be attached to whether the offender has previously commited or attempted to commit a felony as specified in the first sentence.
... ”
The two first paragraphs of Article 39e of the 1902 Penal Code read:
“When passing a sentence of preventive detention the court shall fix a term that should usually not exceed 15 years and may not exceed 21 years. On application by the prosecuting authority the court may, however, extend the fixed term by up to five years at a time. Proceedings for such extention may be instituted in the District Court not later than three months before the period of preventive detention expires.
A minimum period of preventive detention not exceeding 10 years should also be termined”.
The 1902 Penal Code was replaced by a new penal code of 20 May 2005 no. 28, which entered into force on 1 October 2015. Article 39e of the 1902 Penal Code was continued in substance in Article 43 of the 2005 Penal Code.

5.The applicants were born in 1975 and 1976 and live in Cahul and Cetireni respectively.
6.The facts of the case, as submitted by the parties, may be summarised as follows.
A.Conditions of the applicants’ detention
7.The applicants were convicted by Moldovan courts and, at the time of the events, were serving their sentences in prison no. 8 situated in the town of Tighina (Bender), in the Transdniestrian region of the Republic of Moldova. The town is situated in the security zone under the control of peacekeepers from Moldova, Russia and the self-proclaimed “Moldavian Republic of Transdniestria” (“MRT”)[1]. Prison no. 8 is under the exclusive control of the Moldovan authorities. By October 2003 some 236 people were detained there; some of them, such as the applicants, were ill with tuberculosis.
8.On 23 September 2002 the Bender local administration, which is subordinated to the “MRT” authorities, disconnected prison no. 8 from the electricity, water and heating supplies. As a result, the detainees were deprived of conditions of basic hygiene, and the food they received did not meet the minimum standards of quality.
9.The prison authorities informed the Moldovan Ministry of Justice, the President’s Office, the Organization for Security and Co-operation in Europe (OSCE), the Red Cross and the Council of Europe, as well as local human rights organisations, with a view to obtaining assistance in resolving the problem arising from the disconnection from the town’s utilities network.
10.On 12 August 2003 the Bender prosecutor’s office (which forms part of the official Moldovan authorities) informed the Helsinki Committee for Human Rights in Moldova (“the CHDOM”), for which the applicant’s representative worked, that, as a result of pressure from the OSCE, the Bender authorities had reconnected the prison to the electricity and water supply systems on 23February 2003. On 10 July 2003 the last of the people who were ill with tuberculosis were transferred to a newly-built hospital wing in Pruncul prison hospital, situated in Moldova. According to the head of prison no. 8, some 236 healthy detainees, including the applicants, remained in the prison after that date. However, also on 10July 2003, the local authorities disconnected prison no. 8 from the electricity and water supply systems again, without any warning. The “MRT” authorities insisted that the prison needed to be closed down.
11.On 15 September 2004 Mr Pocasovschi (the first applicant) was transferred to another prison. He was released on parole on 14 April 2005. Mr Mihăilă (the second applicant) was transferred to another prison on 1March 2004 and was released on parole on 28 March 2005.
B.Criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities systems
12.On 21 July 2003 the applicants’ representatives asked the Moldovan Prosecutor General’s Office to initiate criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities systems. On 12August 2003 the Bender prosecutor’s office replied in general terms, describing the difficult situation with regard to prison no. 8 and the unsuccessful negotiations with the local authorities.
13.On 29 August 2003 the CHDOM asked the Bender District Court (which is part of the Moldovan court system) to order the prosecutor’s office to remedy the human rights violations taking place in prison no. 8.
14.On 7 October 2003 the head of prison no. 8 informed the court that, owing to insufficient access to water and electricity, detainees in his institution could not receive appropriate medical assistance or food of a sufficient standard, or maintain proper hygiene.
15.On 31 October 2003 the Bender District Court ordered the prosecutor’s office to initiate criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities supply. That decision was upheld by the Bender Court of Appeal on 18 December 2003.
16.According to the Moldovan Government, on 18 November 2003 the Bender prosecutor’s office contacted the “MRT” authorities with a view to prosecuting those responsible for disconnecting prison no. 8 from the utilities. It also informed the Joint Control Commission (see Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, § 90, ECHR 2004‑VII) of the need to include the subject on its agenda. On 20December 2003 the “MRT” prosecutor’s office refused to open a criminal investigation on the ground that no crime had been committed.
17.On 19 January 2004 the relatives of two of the detainees made another complaint to the CHDOM regarding the inhuman conditions of detention in prison no. 8. That letter was forwarded to the Moldovan Ministry of Justice, the President of the Republic of Moldova and the Prosecutor General’s Office, along with a request to take all necessary steps to immediately improve the conditions of detention.
18.On 1 March 2004 the CHDOM asked the Bender prosecutor’s office what action had been taken pursuant to the above-mentioned court decisions. On 12 March 2004 the Bender prosecutor’s office replied that all the material was at the Prosecutor General’s Office, which was dealing with the case.
19.On 15 March 2004 the Ministry of Justice informed the CHDOM that the State was making all necessary efforts to ensure acceptable conditions of detention at prison no. 8, and that, at that time, the conditions of detention at that prison did not differ from those at other prisons in the Republic of Moldova.
20.On 20 April 2004 the Prosecutor General’s Office informed the CHDOM that it had lodged an extraordinary appeal with the Supreme Court of Justice against the decisions of 31 October 2003 and 18 December 2003. On 3August 2004 the Supreme Court of Justice upheld those decisions.
21.On 1 June 2009 the CHDOM asked the Prosecutor General’s Office what actions had been undertaken after the judgment of the Supreme Court of Justice of 3 August 2004. On 14 July 2009 the Bender Prosecutor’s Office replied that the actions of the “MRT” authorities could not be investigated by the Moldovan authorities as long as the “MRT” authorities de facto controlled the territory of the “MRT”.
C.Civil action lodged by the applicants
22.On 15 March 2004, on behalf of 141 detainees in prison no.8, including the applicants, the CHDOM lodged a civil action against the Ministry of Justice, asking for the finding of a violation of the rights guaranteed under Article 3 of the Convention. The detainees had authorised the organisation to act on their behalf. The CHDOM also asked for an improvement in the conditions of detention and for the payment of compensation in the amount of 15,000 Moldovan lei (MDL – approximately 1,000euros (EUR) at the time) for each detainee.
23.On 16 and 22 April 2004 the President of the Bender District Court asked the Supreme Court of Justice to decide whether the case should be examined by another court. On 19 May 2004 the Supreme Court of Justice rejected the request and left the case with the Bender District Court.
24.On 18 June 2004 the Bender District Court decided to transfer the case to the Buiucani District Court in Chişinău, in accordance with territorial competence principles. The claimants (the detainees) and their representatives were not consulted. On 22June 2004 the CHDOM challenged that decision. On 14July 2004 the Bender Court of Appeal set aside the decision of 18June 2004 and ordered the urgent examination of the case by the Bender District Court.
25.On 28 December 2004 the Bender District Court declined to examine the claim because it did not satisfy legal requirements. On 1February 2005 the Bender Court of Appeal set aside that decision.
26.After February 2005 many of the 141 detainees who were plaintiffs in the above-mentioned civil action were transferred to other prisons in various parts of the country, which made it more difficult for the CHDOM to obtain confirmation of each individual’s power of attorney, as requested by the Bender District Court. In such circumstances, the CHDOM selected nine cases (including those of the applicants in the present case) with which to continue the proceedings. Since the individuals concerned were also detained in separate prisons, the CHDOM made an application for their cases to be examined separately, an application which the Bender District Court refused on 11November 2005.
27.On 26 April 2006 the Bender District Court rejected the CHDOM’s application to summon as defendants the individuals from the relevant local “MRT” authorities in Bender responsible for violating the detainees’ rights. On an unknown date in June 2006 the Bender Court of Appeal set aside that decision and ordered the summoning as defendants of A.P., A.M. and V.M., the heads of the relevant local “MRT” authorities in Bender. According to the applicants, none of these individuals was summoned by the Bender District Court.
28.On 15 December 2006 the judge who had been examining the case withdrew from it. On 18 May 2007 the judge who had taken over the case also withdrew from it. Subsequently, all other judges of the Bender District Court withdrew, allegedly for fear of persecution by the “MRT” authorities. As a result, the Bender Court of Appeal was asked to decide which other court could examine the case. On 13 November 2007 the Bender Court of Appeal decided that the case should be examined by the Anenii-Noi District Court.
29.On 26 December 2007 the Anenii-Noi District Court declined to examine the claim because it did not fulfil certain legal requirements. It found in particular that there was a lack of valid powers of attorney in favour of the CHDOM.
30.On 6 March 2008 the CHDOM lodged a reformulated court action in accordance with the legal requirements. It also asked for the Russian Government to be summoned as a defendant in the case, as it had de facto control over the territory of the “MRT”. It claimed EUR 10,000 and EUR7,000 respectively for the breach of the applicants’ rights. On the same date the Anenii-Noi District Court declined to examine the claim because the powers of attorney issued by the detainees in favour of the CHDOM had expired.
31.On 20 May 2008 the Bender Court of Appeal set aside the decision of 6 March 2008, noting that, in the applicants’ cases, the powers of attorney had been renewed.
32.On 18 June 2008 the Anenii-Noi District Court adjourned the hearing because of the absence of a representative of the Ministry of Justice. The same thing occurred on 29 October 2008. The court also informed the CHDOM that, in a letter dated 2 July 2007, the Ministry of Justice had informed the court that a representative of the Russian Federation could only be summoned via the Ministry of Justice.
33.On 30 December 2008 the Anenii-Noi District Court adopted a judgment in which it allowed the applicants’ claims in part. It awarded each of them damages in the amount of EUR 200, to be paid by the Moldovan Ministry of Finance, and EUR 500, to be paid by the Russian Ministry of Finance.
34.On 30 June 2009 the Bender Court of Appeal quashed that judgment in part. It found that, following the prison’s disconnection from the utilities, the prison administration had no longer been able to offer food or medical treatment for tuberculosis which was of an adequate quality; there had been no access to showers, a very poor situation concerning personal hygiene, and only two hours of electricity per day, ensured by a low-power generator. None of the complaints made to the State authorities had resulted in an improvement in the conditions of detention until much later, as established in 2008. The court acknowledged a breach of the applicants’ right not to be held in inhuman conditions of detention, and increased the award in favour of each of them to MDL 20,000 (EUR 1,266 at the time). It also found that the Russian Federation could not be a defendant in Moldovan courts unless it expressly agreed to that, which was not the case here.
35.On 27 April 2010 the Supreme Court of Justice accepted the applicants’ appeal on points of law in part, and amended the judgment of the lower court. It analysed in detail the length of the civil proceedings (between 22March 2004 and the date of adopting its own judgment on 27April 2010), the complexity of the case, how the parties and the courts had contributed to the length of the proceedings, as well as the significant interest at stake for the applicants. The court found that, despite the applicants’ representatives’ actions contributing to the overall length of the proceedings (twenty-six out of the sixty-seven months), a breach of the right to a trial within a reasonable time had taken place, requiring additional compensation which it set at MDL6,000 (approximately EUR 358 at the time). It did not amend the remainder of the lower court’s judgment.
D.General action undertaken by the Moldovan authorities
36.The Moldovan Government submitted a long list of actions concerning their efforts to assert their sovereignty over the “MRT” territory and ensure that human rights were observed in the region. They also submitted copies of documents concerning prison no. 8 in Tighina/Bender specifically, raising in particular the issue of the prison being disconnected from utilities within the framework of the “5+2” negotiations process (between the OSCE, Russia, Ukraine, the European Union and the USA, in addition to Moldova and the “MRT”) and with various international organisations.
37.Relevant reports of various inter-governmental and non-governmental organisations concerning the situation in the “MRT” have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no.11138/10, §§ 61-68, ECHR 2016).

A.The so-called “High-Value Detainee Programme”
1.The establishment of the HVD Programme
(a)The US President’s memoranda
(i)Memorandum of 17 September 2001
(ii)Memorandum of 7 February 2002
(b)Abu Zubaydah’s capture and transfer to a CIA covert detention facility in March 2002
(c)Setting up the CIA programme “to detain and interrogate terrorists at sites abroad”
2.Enhanced Interrogation Techniques
(a)Description of legally sanctioned standard and enhanced interrogation techniques
(b)Expanding the use of the EITs beyond Abu Zubaydah’s interrogations
3.Standard procedures and treatment of “high value detainees” in CIA custody (combined use of interrogation techniques)
4.Conditions of detention at CIA “Black Sites”
5.The scale of the HVD Programme
6.Closure of the HVD Programme
B.The United States Supreme Court’s judgment in Rasul v. Bush
C.Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations
1.Jeppesen Dataplan Inc.
2.Richmor Aviation
3.Other companies
D.Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate
1.Course of the review
2.Findings and conclusions
A.Restrictions on information about the applicant’s secret detention and his communication with the outside world
B.The applicant’s capture, transfer to CIA custody, secret detention and transfers from 27 March 2002 to 22 September 2003, as established by the Court in Husayn (Abu Zubaydah)v.Poland and supplemented by the 2014 US Senate Committee Report
C.The applicant’s transfers and detention between his rendition from Poland on 22 September 2003 and his alleged rendition to Lithuania on 17 February or 18 February 2005 as established by the Court in Husayn (Abu Zubaydah) v. Poland, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court
D.The applicant’s alleged secret detention at a CIA “Black Site” in Lithuania from 17 February or 18 February 2005 to 25 March 2006 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court
1.The applicant’s alleged rendition to Lithuania on 17 February or 18February 2005 and his rendition from Lithuania on the plane N733MA on 25 March 2006
(a)The applicant’s submissions
(i)Rendition to Lithuania (17 or 18 February 2005)
(ii)Rendition from Lithuania (25 March 2006)
(b)Evidence before the Court
(i)The 2015 Reprieve Briefing
(α)As regards the colour-coded names of the CIA detention facilities and periods of their operation
(β)As regards the CIA prisoners’ transfers into Lithuania
–February 2005 transfers
–October 2005 transfer
–March 2006 transfer
(ii)Expert evidence
(iii)“Detention Site Violet” in the 2014 US Senate Committee Report
2.Detention and treatment to which the applicant was subjected
E.The applicant’s further transfers during CIA custody (until 5September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court
F.The applicant’s detention at the US Guantánamo Bay facility since 5 September 2006 to present
G.Psychological and physical effects of the HVD Programme on the applicant
H.Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts
I.Parliamentary inquiry in Lithuania
1.The Seimas investigation and findings
2.Extracts from transcripts of the Seimas’ debates on the CNSD Findings
J.Criminal investigation in Lithuania
1.Investigation conducted in 2010-2011
2.Reopening of the investigation on 22 January 2015 and further proceedings
A.United Nations Organisation
1.Statement of the UN High Commissioner for Human Rights on detention of Taliban and Al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16January 2002
2.Statement of the International Rehabilitation Council for Torture
3.UN Working Group on Arbitrary Detention, Opinion No. 29/2006, MrIbn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc.A/HRC/4/40/Add.1 at 103 (2006)
B.Parliamentary Assembly of the Council of Europe Resolution no.1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003
C.International non-governmental organisations
1.Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002
2.Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002
3.Human Rights Watch, “United States: Reports of Torture of Al‑Qaeda Suspects”, 26 December 2002
4.International Helsinki Federation for Human Rights, “Anti‑terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003
5.Amnesty International Report 2003 – United States of America, 28May 2003
6.Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003
7. Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘war on terror’ detentions continue”, 18 August 2003
8.Amnesty International, “Incommunicado detention/Fear of ill‑treatment”, 20 August 2003
9.International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004
10.Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005
11.Human Rights Watch – List of “Ghost Prisoners” Possibly in CIA Custody of 30 November 2005
A.International media
1.Reports published in 2002
2.Reports published in 2005
3.ABC News reports of 2009
4.Other Reports (2009- 2011)
B.Lithuanian media
A.Council of Europe
1.Procedure under Article 52 of the Convention
2.Parliamentary Assembly’s inquiry - the Marty Inquiry
(a)The 2006 Marty Report
(b)The 2007 Marty Report
(c)The 2011 Marty Report
B.European Parliament
1.The Fava Inquiry
2.The 2007 European Parliament Resolution
3.The Flautre Report and the 2012 European Parliament Resolution
4.The 2013 European Parliament Resolution
5.The 2015 European Parliament Resolution
6.The October 2015 hearing before the LIBE
7.The 2016 European Parliament Resolution
C.The 2007 ICRC Report
D.The 2010 UN Joint Study
Witness A
Witness A1
Witness A2
Witness A3
Witness A4
Witness B
Witness B1
Witness B2
Witness B3
Witness B4 (also referred to as “person B” by the Government)
Witness C
Witness C1
Witness C2 (also referred to as “person C” by the Government)
Witness D
Witness D1
Witness E
Witness E1
Witness F
Witness F1
Witness G
Witness G1
Witness G2
Witness H
Witness H1
Witness K
Witness L
Witness M
Witness N
1.Questioning on 9 March 2010
2.Questioning on 16 March 2010
Witness O
1.Questioning on 9 March 2010
2.Questioning on 10 March 2010
Witness P
Witness Q
Witness R
Witness S
Witness T
1.Questioning on 2 March 2010
2.Questioning on 16 March 2010
Witness U
Witness U1
Witness V
Witness X
Witness Y
Witness Z
A.The 2011 CPT Report
B.The Lithuanian Government’s Response to the 2011 CPT Report
C.Mr Fava’s testimony regarding the “informal transatlantic meeting” given in Al Nashiri v. Poland and Husayn (Abu Zubaydah)v.Poland
D.Documents concerning the on-site inspection of Project No. 1 and Project No. 2 carried out by the investigating prosecutor
1.Record of on-site inspection of Project No. 1 of 17 March 2010.
2.Record of the on-site inspection of Project No. 2 of 4 June 2010
E.Resolution and Operational Action Plan of 25 July 2002
F.Report on the incident of 6 October 2005 in Vilnius airport
G.Letter from former President of Lithuania Mr Adamkus to the CNSD of 26 November 2009
H.Letter from the Ministry of the Interior of 9 December 2009
I.Letter from Palanga airport of 15 March 2010
J.The Customs Department letter of 12 April 2010
K.The SBGS letter of 27 April 2010
A.Presentation by Senator Marty and Mr J.G.S. “Distillation of available evidence, including flight data, in respect of Lithuania and the case of Abu Zubaydah”
B.Senator Marty
C.Mr J.G.S.
D.Mr Black

A.Terrorist attacks of which the applicant has been suspected
1.USS Cole bombing in 2000
2.MV Limburg bombing in 2002
B.The so-called “High-Value Detainee Programme”
1.The establishment of the HVD Programme
(a)The US President’s memoranda
(i)Memorandum of 17 September 2001
(ii)Memorandum of 7 February 2002
(b)Abu Zubaydah’s capture and transfer to a CIA covert detention facility in March 2002
(c)Setting up the CIA programme “to detain and interrogate terrorists at sites abroad”
2.Enhanced Interrogation Techniques
(a)Description of legally sanctioned standard and enhanced interrogation techniques
(b)Expanding the use of the EITs beyond Abu Zubaydah’s interrogations
3.Standard procedures and treatment of “high-value detainees” in CIA custody (combined use of interrogation techniques)
4.Conditions of detention at CIA “black sites”
5.The scale of the HVD Programme
6.Closure of the HVD Programme
C.The United States Supreme Court’s judgment in Rasul v. Bush
D.Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations
1.Jeppesen Dataplan Inc.
2.Richmor Aviation
3.Other companies
E.Military Commissions
1.Military Order of 13 November 2001
2.Military Commission Order no. 1
3.The 2006 Military Commissions Act and the 2009 Military Commissions Act
4.Publicly expressed concerns regarding the procedure before the military commission
F.Review of the CIA’s activities involved in the HVD Programme in 2001-2009 by the US Senate
1.Course of the review
2.Findings and conclusions
A.The applicant’s capture, transfer to the CIA’s custody, his secret detention and transfers from mid-October 2002 to 6 June 2003, as established by the Court in AlNashiri v. Poland and supplemented by the 2014 US Senate Committee Report
B.The applicant’s transfers and detention between his rendition from Poland on 6 June 2003 and his alleged rendition to Romania on 12 April 2004 as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court
1.Transfer from Poland to Morocco and detention in Morocco (from 6June to 23 September 2003)
2.Transfer from Morocco to Guantánamo and detention in Guantánamo (from 23 September 2003 to 12 April 2004)
C.The applicant’s alleged secret detention at a CIA “black site” in Romania from 12 April 2004 to 6 October or 5 November 2005 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court
1.The applicant’s initial submissions
2.The applicant’s alleged rendition to Romania on the plane N85VM on 12 April 2004
3.Detention and treatment to which the applicant was subjected
4.The applicant’s alleged rendition from Romania on 6 October or 5November 2005
D.The applicant’s further transfers during CIA custody (until 5September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court
E.The applicant’s detention in Guantánamo Bay and his trial before the military commission from 6 September 2006 to present
1.Hearing before the Combatant Status Review Tribunal
2.Trial before the military commission
F.Psychological effects of the HVD Programme on the applicant
G.Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts
H.“Detention Site Black” in the 2014 US Senate Committee Report
I.Parliamentary inquiry in Romania
J.Criminal investigation in Romania
1.Submission by the Government of confidential documents from the investigation file
2.The course of the investigation according to documentary evidence produced by the Government
A.United Nations
1.Statement of the UN High Commissioner for Human Rights on detention of Taliban and al-Qaeda prisoners at the US Base in Guantánamo Bay, Cuba, 16January 2002
2.Statement of the International Rehabilitation Council for Torture
3.UN Working Group on Arbitrary Detention, Opinion No. 29/2006, MrIbn al-Shaykh al-Libi and 25 other persons v. United States of America, UN Doc.A/HRC/4/40/Add.1 at 103 (2006)
B.Parliamentary Assembly of the Council of Europe Resolution no.1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003
C.International non-governmental organisations
1.Amnesty International, Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay, April 2002
2.Human Rights Watch, “United States, Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees”, Vol. 14, No. 4 (G), August 2002
3.Human Rights Watch, “United States: Reports of Torture of Al‑Qaeda Suspects”, 26 December 2002
4.International Helsinki Federation for Human Rights, “Anti‑terrorism Measures, Security and Human Rights: Developments in Europe, Central Asia and North America in the Aftermath of September 11”, Report, April 2003
5.Amnesty International Report 2003 – United States of America, 28May 2003
6.Amnesty International, “Unlawful detention of six men from Bosnia-Herzegovina in Guantánamo Bay”, 29 May 2003
7.Amnesty International, “United States of America, The threat of a bad example: Undermining international standards as ‘war on terror’ detentions continue”, 18 August 2003
8.Amnesty International, “Incommunicado detention/Fear of ill‑treatment”, 20 August 2003
9.International Committee of the Red Cross, United States: ICRC President urges progress on detention-related issues, news release 04/03, 16 January 2004
10.Human Rights Watch - Statement on US Secret Detention Facilities of 6 November 2005
11.Human Rights Watch – List of “Ghost Prisoners” Possibly in CIA Custody of 30 November 2005
A.International media
B.Romanian media
C.Der Spiegel’s publications in 2014 and 2015
A.Council of Europe
1.Procedure under Article 52 of the Convention
2.Parliamentary Assembly’s inquiry - the Marty Inquiry
(a)The 2006 Marty Report
(b)The 2007 Marty Report
(c)The 2011 Marty Report
B.European Parliament
1.The Fava Inquiry
2.The 2007 European Parliament Resolution
3.The 2011 European Parliament Resolution
4.The Flautre Report and the 2012 European Parliament Resolution
5.The 2013 European Parliament Resolution
6.The 2015 European Parliament Resolution
7.LIBE delegation’s visit to Romania (24-25 September 2015)
8.Follow-up to the visit
9.The 2016 European Parliament Resolution
C.The 2007 ICRC Report
D.United Nations
1.The 2010 UN Joint Study
2.The 2015 UN Committee against Torture’s Observations
A.Transcript of witness X’s statement made on 18September 2013
B.Transcript of testimony given by witness Y on 4 May 2015
C.Transcript of witness Z’s statement made on 17 September 2013
D.Transcript of testimony given by witness Z on 18 June 2015
E.Transcripts of statements from other witnesses
1.Witness A
2.Witness B
3.Witness C
4.Witness D
5.Witness E
6.Witness F
7.Witness G
8.Witness H
9.Witness I
10.Witness J
11.Witness K
12.Witness L
13.Witness M
14.Witness N
15.Witness O
16.Witness P
17.Witness Q
18.Witness R
A.RCAA letter of 29 July 2009
B.List of twenty-one “suspicious flights” produced by the Government
C.Documents concerning the N313P rendition mission on 16-28 January 2004 produced by Senator Marty and Mr J.G.S. in the course of the PowerPoint presentation
D.The 2010 Findings of the Lithuanian Seimas Committee on National Security and Defence (extracts)
E.Mr Hammarberg’s affidavit of 17 April 2013
Affidavit of Thomas Hammarberg
F.Dossier (Memorandum) of 30 March 2012 provided by MrHammarberg to the Romanian Prosecutor General (extracts)
G.Mr Hammarberg’s replies to questions put to him in writing by the Court and the parties
1.The Court’s questions
2.The Romanian Government’s questions
3.The applicant’s questions
H.Senator Marty’s affidavit of 24 April 2013
I.The 2015 LIBE Briefing
A.Mr Fava
B.Presentation by Senator Marty and Mr J.G.S. “Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri”
C.Senator Marty
D.Mr J.G.S.
E.Mr Black

6.The applicant was born in 1984 and lives in Canada.
A.The applicant’s arrest, detention and alleged ill-treatment
1.The applicant’s version of events
7.The applicant’s version of events relating to his encounter with the police, as set out in his application form, is the following.
8.On 27 February 2011, while in front of an automated teller machine (“ATM”), the applicant was attacked from behind by a police officer and was illegally arrested without a warrant. He was then taken to the police station where he was detained for six hours. Throughout his detention his hands were handcuffed behind his back.
9.During this period he was tortured by members of the police with the aim of forcing him to confess to the offence of theft through the use of a forged credit card. The applicant was repeatedly beaten with a wooden stick all over his body and his head until he lost consciousness, beaten with a metallic chair while lying on the floor, punched on the body and face and kicked and punched on the head, nose and mouth, causing one of his teeth to break. He also received blows to the region that the police officers had been informed he had been operated on (the applicant does not give any clarifications in this respect). The above acts were accompanied by death threats. The officers refused to give him his asthma medicine. They also refused to take him to hospital until his lawyer at the time, C.H., intervened.
10.At around 3.30 p.m. the same day, following C.H.’s request, the applicant was taken to hospital because of his injuries. He overheard the police officers telling the doctor that he had fallen to the ground. One of the police officers then took the doctor aside and started talking to him in private. The applicant was not given painkillers by the doctor until the Honorary Consul of Canada in Cyprus (“the Canadian Consul”) visited him. The Canadian Consul asked the attending doctor the reasons for which the applicant had ended up in hospital and was in such a bad condition. The doctor informed her that there was nothing wrong with the applicant and that he had simply examined his pancreas. No other explanation was given.
2.The Government’s version of events derived from the investigation files
11.On 27 February 2011 the police were informed by a card payment and processing company of illegal withdrawals with a fake credit card from an ATM of a bank in Limassol. Special Constable G.S. from the police traffic department, who was on motorcycle patrol in the area, arrived at the scene and spotted the applicant in front of the ATM. G.S. was in uniform and wearing a helmet. According to G.S.’s account of the events, he approached the applicant from behind and touched his left shoulder. He then said “police” and asked him, both in Greek and in English, to identify himself. The applicant did not reply but hit him on the head and stomach and then ran away. G.S. chased the applicant, who at some point fell on the pavement and hit his head. A struggle ensued. G.S. did not hit the applicant but merely tried to handcuff him by holding him with his hands and by pushing him. Special Constable P.K. arrived at the scene and assisted G.S. in arresting the applicant. The applicant was arrested for the flagrant criminal offences of assaulting a police officer and resisting lawful arrest (sections 244 (a) and (b) of the Criminal Code, Cap. 154). Two officers of the Crime Prevention Squad (Ουλαμός Πρόληψης Εγκλημάτων – “the CPS”), Special Constable C.S. and Senior Constable S.M., arrived at the scene. According to them, when they arrived they found the applicant and G.S. on the ground. The fake credit card had been retained by the ATM and was subsequently retrieved.
12.After the applicant was handcuffed, he was handed over to C.S. and S.M., who drove the applicant to the police station.
13.Upon arrival at the police station around 9.30 a.m. the above officers handed over the applicant to Constable P.P., who carried out a body search and confiscated objects found on him, including the amount of 10,000 euros (EUR) in EUR 50 notes. The applicant was then transferred to the Economic Crime Investigations Office (Γραφείο Διερεύνησης Οικονομικού Εγκλήματος – “the ECID”) where P.P. passed everything he had found on the applicant on to Constable E.L. The applicant was handed over to Constable F.O., who also carried out a body search. At 10 a.m. F.O. handed over the applicant to Inspector I.S., the head of the ECID. At 11.30 a.m. F.O. returned and kept the applicant under his supervision. At 11.45 a.m. the applicant was allowed to call his lawyer, C.H. At 12 noon F.O. handed over the applicant to Constable M.P., who had been appointed as investigator in the case.
14.Between 1 p.m. and 1.30 p.m. the applicant was interviewed by M.P. with the assistance of an interpreter, S.K. During the interview, only one other officer entered the interview room, Constable A.P.
15.At the end of the interview, around 1.35 p.m., the applicant was taken to the detention facilities in the station where Constable C.T. carried out a body search. He recorded injuries in the applicant’s prisoner record. These were: abrasions on the left part of the applicant’s forehead (αριστερή μετωπιαία χώρα) and left shoulder blade (ωμοπλάτη). The applicant was taken to a cell at approximately 1.45 p.m.
16.The applicant was visited by his lawyer, C.H., from 3.05 p.m. until 3.30 p.m. Before leaving the station, C.H. complained to the head of the detention facility, Sergeant P.H., that the applicant had been ill-treated during his arrest, transfer to the station and questioning.
17.At approximately 3.50 p.m. the applicant was taken to Limassol General Hospital by Constable C.K. and Special Constable D.Y.
18.In the meantime, at 3.30 p.m., the District Court of Limassol issued an arrest warrant on the grounds that there was a reasonable suspicion based on evidence that the applicant had been involved in a number of offences, including, inter alia, various forgery and theft-related offences, assault occasioning actual bodily harm and resisting lawful arrest. At approximately 4.45 p.m. while the applicant was at the hospital he was presented with the arrest warrant and was detained on that basis. The applicant was guarded by officers at the hospital.
19.The applicant was discharged from hospital at 11.20 p.m. and was taken back to the detention facilities at the police station.
20.The next day the applicant was taken to the District Court of Limassol, which ordered his detention on remand for eight days. The court ordered that during his detention the applicant be provided with medical care and treatment and, if need be, that he be taken to hospital.
21.On 8 March 2011 the court extended the applicant’s detention on remand by a further eight days.
22.On 16 March 2011 the court ordered his detention pending trial (seeparagraph 64 below).
B.Medical examinations and reports
1.The applicant
(a)Examinations at Limassol General Hospital on the day of his arrest
23.On the day of his arrest, at approximately 4 p.m., the applicant was examined by a pathologist, Dr A.K., at the Emergency Department of Limassol General Hospital. The applicant complained of loss of consciousness after being beaten, dizziness, nausea, a severe headache, neck pain, and a pain in his knee. The pathologist carried out a physical examination. He found that the applicant had a cephalohaematoma (κεφαλαιμάτωμα) in the right temporal region; abrasions in the parietal area; abrasions and mild oedema on his nose; bruising of his lower lip; a broken upper incisor (σπασμένο/διατομή πρόσθιου άνω τομέα οδόντος); a bruise on the left hemithorax with sensitivity and a few abrasions; oedema and abrasions on both wrists (πηχεοκαρπικές αμφώ); a few abrasions on the knees, with no evidence of inflammation; pain during the examination of the movement of the right knee; sensitivity of the upper thoracic vertebra and the upper lumbar spine. The CT scans of the brain, the facial bones and the cervical spine showed no injuries or fractures. There was only loss of neck curve (ευθειασμός αυχένα). Furthermore, the X-ray of the thorax and the right knee did not reveal any fractures or fluid in the thorax or the pneumothorax. A splint was placed on the applicant’s right knee and he was prescribed analgesics. The doctor’s final diagnosis was cranio-cerebral injury (κρανιοεγκεφαλική κάκωση), neck strain (θλάση αυχένα), bruising on the thorax (κάκωση θώρακα), bruising on his knee (κάκωση γονάτου), and a broken tooth (διατομή οδόντος).
24.The applicant was also examined by a general surgeon, Dr C.T. The applicant complained of neck and chest pain, a headache and pain in the thoracic spine. The doctor observed that the physical examination (ηαντικειμενική εξέταση) was within physiological limits (εντός φυσιολογικών ορίων). The surgeon ascertained that the applicant had marks from blows, mainly on his chest and face.
(b)Subsequent medical examinations
(i)Limassol General Hospital
25.On 1 March 2011 the applicant was taken to the Emergency Department of Limassol General Hospital owing to vomiting and dizziness. He was examined by Dr Y.I., who observed that the applicant’s external injuries were still there. The results of the physical and clinical examinations were normal. In his report the doctor stated that the applicant had been discharged from hospital at 7 p.m. “feeling very well”. He referred the applicant for an orthopaedic examination the next day.
26.On 2 March 2011 the applicant was taken back to the hospital for examination by an orthopaedic surgeon, Dr. P.T. The applicant complained that he had been hit; he also complained of pain in the lumbar spine and an injury to the right knee. Dr P.T. did not ascertain any bone damage or neurological symptomatology (νευρολογική σημειολογία). He suggested rest and prescribed analgesics.
(ii)Medical examination by a private practitioner
27.On 7 March 2011, following a request by the Canadian Consul, a private practitioner, Dr. S.J – a traumatologist orthopaedic surgeon – visited the applicant at the police station and carried out a medical examination. In his report dated 10 May 2011 he stated, in the original English, as follows:
“I visited the patient on the 7th of March 2011 in the central police station of Limassol. He was complaining of multiple injuries causing him severe pain which did not allow him to come to rest especially at night.
During my clinical examination carried out on that day, the patient had restriction in motion due to pain especially during maximal flexion and extension of the lower back. He had pain sensation during the palpation of the soft tissue without any external injuries observed. Further he had a bruise measuring 10 x 5 cm at the left side of the chest at the auxiliary line height which gave him pain during palpation, compression and maximal inspiration.
Mr Kabbara further had restriction of motion and muscular tension at the cervical spine region without any pathologic neurologic observation. The patient had a loss of half the left upper incisor tooth with no mobility dysfunction of the jaw.
Due to the above injury, Mr Kabbara described severe pain especially in the evening which did not allow him to sleep. I prescribed him anti-inflammatory pain killers on a regular basis. If there was no response to the medication I advised him to contact me again.”
2.Special Constable G.S.
28.On 27 February 2011 Special Constable G.S. also went to Limassol General Hospital, where he was examined by a general practitioner, Dr V.D. He complained that, while he had been trying to arrest someone, he had received a punch on the head. As, however, he had been wearing a helmet there had been no bruising. He also complained that he had been kicked in the stomach, had fallen backwards to the ground and hit the right side of his hip. X-rays, scans and tests were carried out and he was diagnosed with a strain (θλάση) of his lumbar spine. The doctor also found that his kidney was not in its normal position. She instructed that G.S. be examined by an orthopaedic specialist and a nephrologist. G.S. was prescribed nine days’ sick leave.
C.Administrative investigation
29.On 1 March 2011 the applicant reported the alleged ill-treatment to the High Commission of Canada.
30.On the same day the Canadian Consul visited the applicant while at the hospital with her assistant. The applicant told her that he had been ill‑treated. Her assistant took a written statement from the applicant which reads, in the original English, as follows:
“TO CANADIAN AUTHORITIES
On Sunday Feb 27 at approx. 9.20 am, I was attacked from a policeman from behind and trying to protect myself, my elbow hit him at Athinon street. Then a number of the policemen (3-4) started kicking me on the head and immobilized me and hand‑cuffed me. I passed out (first time), woke up in a police car and all the way to the Police Station I asked to contact my lawyer and the Canadian Consulate but they refused and they hit me more. At the police station, Mr [G] hit me. They took me upstairs to the Financial Crime Department. I asked again to contact my Consulate or my lawyer and they refused. I was then taken to another room where Mr [M] was. Four policemen walked in and hit me. They took a chair and broke it over my right leg. They also hit me on the head with the chair several times. I fell down and then I was asked where I live. I said I don’t want to say anything without my lawyer. They hit me again and broke my tooth. I was tortured and my human rights were violated. I was also threatened to be killed by high-leveled people. I am now afraid of my life. This continued for about 4 hours until finally I got in touch with my lawyer and sent to the hospital.”
31.On 2 March 2011, in the light of the applicant’s lawyer’s complaint (see16 paragraph above), the Limassol police appointed an investigating officer, Police Chief Inspector M.M., who was in charge of the Ayios Ioannis police station in Limassol, to conduct an administrative investigation into the applicant’s complaint.
32.On 3 March 2011 the Canadian High Commissioner in Cyprus sent a note verbale reporting the ill-treatment of the applicant to the Ministry of Foreign Affairs and requesting that the applicant’s complaint be investigated.
33.An investigation was conducted by M.M. and a report was prepared. M.M. secured copies of written statements contained in the criminal file gathered for the purposes of the criminal proceedings against the applicant (see paragraph 64 below) as well as statements from all the officers who had come into contact with the applicant, directly and indirectly, during his arrest and detention. The statements were not question and answer statements.
34.The applicant refused to provide a written statement claiming that he could not trust the police and informed M.M. that his lawyer and the Canadian Consul had been informed of the details of his ill-treatment.
35.Special Constable G.S., in his statement of 27 February 2011, stated that on that day at around 9.13 a.m. while he had been on motorcycle patrol he had received a message concerning an illegal cash withdrawal from an ATM. He had immediately gone to the bank concerned. On arrival he had spotted an unknown person who had appeared to be withdrawing money from the ATM and putting it in the left pocket of his tracksuit top. G.S. had got off the motorcycle. He had approached the applicant from behind and touched his left shoulder, had said “police” and had then asked the applicant both in Greek and in English to give him his identity card so he would be able to ascertain his identity. The applicant had not replied but instead had turned towards him and attacked him by pushing him backwards with both hands. G.S. had tried to immobilise him. The applicant had then punched his police helmet with his right hand and kicked him in the stomach, causing G.S. to lose his balance. G.S. had fallen backwards on the pavement. The applicant had fled and G.S. had chased him. The applicant, while running, had lost his balance and had fallen to the ground, hitting his face. G.S. had tried to immobilise him and a struggle had ensued between the two. Attempting to resist arrest, the applicant had pushed G.S. and hit him with his hands. Special Constable P.K had arrived at the scene. With his help, and using proportionate force in the circumstances, G.S. had arrested and handcuffed the applicant. He had drawn the applicant’s attention to the law but the applicant had not replied. Two members of the CPS had arrived and he had handed over the applicant to them. G.S. had then gone to the Emergency Department of Limassol General Hospital, where he had been examined by DrV.D.
36.The most relevant written statements of other officers read as follows:
(i)Constable P.P., who had been the first to receive the applicant at the police station, in his statement of 27 February 2011 stated that he had carried out a body search and described what he had found on the applicant, which included EUR 10,000. He did not mention any injuries in his statement.
(ii)Constable E.L., who had seen the applicant when Officer P.P. had entered her office to give her the applicant’s possessions, in her statement of 27 February 2011 stated that the applicant had had wounds on his face, his clothes had been messy and his tracksuit trousers had been torn.
(iii)Special Constable P.K. who had been on traffic patrol on the day of the events, in his statement of 27 February 2011 stated that when he had arrived at the scene G.S. had been on the ground with an unknown man. G.S. had asked him to pass him the handcuffs so he could handcuff the applicant as he had been resisting arrest. Then he had gone to the ATM and found five withdrawal receipts of EUR2,000 each, which he had subsequently given to Constable P.P. when they had arrived at the station. He did not mention any injuries in his statement.
(iv)Constable C.T., who had received the applicant at 1.35 pm. at the detention centre at the station to put him in his cell, in his statement of 3March 2011 stated that he had carried out a body search and had noted that the applicant had had an abrasion on the left frontal area (αριστερή μετωπιαία χώρα) and behind the left shoulder. He had locked the applicant in the cell at 1.45 p.m.
(v)Sergeant P.H. in his statement of 3 March 2011 stated that he had seen the applicant at 1.35 p.m. when M.P. had brought him to the station’s detention facilities and he had then given instructions to Constable C.T. to carry out a body search. The applicant’s lawyer, C.H, had visited the applicant and at 3.05 p.m. had informed P.H. that the applicant had complained to him that he had been beaten by police officers during his arrest and questioning and had wanted the complaint to be reported. He had also requested that the applicant be sent to the hospital. P.H. had immediately given instructions to this effect and within little time the applicant had been taken to the hospital and the complaint of ill-treatment had been reported. He did not mention any injuries in his statement.
(vi)Inspector I.S. in his statement of 11 March 2011 stated that he had noticed that when the applicant had arrived at the station he had had injuries on the face which according to Officer G.S. had been caused when he had tried to arrest the applicant. He had also noticed that the applicant’s clothes had been messy and his tracksuit trousers had been torn. The applicant had not complained to him that he had been hit nor had he been hit by anyone.
(vii)Senior Constable S.M. in his statement of 12 March 2011 stated that when he had arrived at the scene G.S. had already arrested the applicant and handcuffed him. S.M. then took the applicant along with Special Constable C.S. in the police car to the police station where at 9.30 a.m. he handed him over to Constable P.P. The applicant had minor abrasions and bruises and his clothes were messy.
(viii)Special Constable C.S., who had accompanied the applicant to the police station with Senior Constable S.M., in his statement of 12 March 2011 stated that when he had arrived at the scene G.S. had already arrested the applicant and handcuffed him. He did not mention any injuries in his statement.
(ix)Constable A.P., who had seen the applicant during his interview with M.P., in his statement of 14 March 2011 stated that the applicant had had abrasions on his face and that he had been informed by M.P. that this had been caused during his arrest.
(x)Constable F.O. in his statement of 15 March 2011 stated that he had carried out a body search and had not found anything suspect (επιλήψιμο) on the applicant. He also stated that the applicant had had wounds on his face and had told him that he had been hit by an officer. Furthermore, his clothes had been messy and his tracksuit bottoms torn.
(xi)Constable M.P., who had interviewed the applicant at the station, in his statement of 17 March 2011 stated that the applicant had had abrasions on the face and when he had asked the applicant how the latter had got them, the applicant had told him that he had been hit during his arrest. During the interview, constable A.P. had entered in the room and M.P. had informed him of the applicant’s statement and his injuries. At 1.35 p.m. M.P. had taken the applicant to the detention facilities.
37.According to the findings of the investigator in his report of 26 April 2011, the applicant had been uncooperative from the beginning of his detention and refused to provide a written statement and answer any questions during his interview. He had also refused to cooperate with the investigator himself and to give a statement concerning his ill-treatment allegations. He had told the investigator that he did not trust the police. In view of the above, it could not be excluded that the complaint had been made to further the applicant’s own interests. According to Inspector I.S., who had supervised the applicant’s questioning in relation to the criminal case against him, no member of the police had ill-treated or used any kind of violence against the applicant during his detention and questioning. The only contact the applicant had had with a member of the police had been during his struggle with the police officers when attempting to flee arrest. In his report, the investigator noted that Special Constable G.S. had been injured while trying to arrest the applicant and that he had been put on sick leave by the doctor who had examined him at the hospital.
38.The report concluded that none of the applicant’s allegations regarding ill-treatment had been proven and that the case should be closed.
39.The Limassol divisional police headquarters and the Chief of Police agreed with the conclusions.
40.On 26 May 2011 the Ministry of Foreign affairs informed the High Commissioner of Canada of the findings of the investigation.
D.First investigation by the Independent Authority for the Investigation of Allegations and Complaints against the Police (“the IAIACAP”)
41.By a letter dated 14 July 2011 the applicant’s lawyer complained to the Attorney General, requesting that an independent investigation be conducted into his client’s complaint and that the officers responsible be brought to justice. The next day the Attorney General referred the applicant’s complaint to the president of the IAIACAP ordering an investigation.
1.Investigation
42.On 20 July 2011 the IAIACAP appointed a lawyer, Mr A.S., as investigator.
43.On 10 October 2011 the investigator prepared a report with a summary of the statements obtained and his findings.
44.In the course of the investigation, the investigator singled out four police officers as suspects. These were G.S., P.K., S.M. and C.S. Statements in the form of questions and answers were obtained from these officers. He also took statements from the applicant and twenty-four other persons, including the officers who had been in touch with or seen the applicant on the day of the alleged ill-treatment, the interpreter, the doctor who had examined G.S., Dr V.D. (see paragraph 28 above) and three of the doctors who had examined the applicant, namely, Dr A.K. and Dr C.T. from Limassol General Hospital and Dr S.J., the private practitioner (seeparagraphs 23, 24 and 27 above).
45.The applicant gave a statement to the investigator on 23August2011, adopting the content of a handwritten statement he had prepared in June 2011 for his lawyer. In his written statement the applicant alleged that on 27 February 2011 at 9.15 a.m. he had been trying to familiarise himself with the ATM in case he would ever need to use his own cards and check the balance of his account. He had, inter alia, a credit card in his name on him and EUR 10,000, which had been given to him by his lawyer at the time, C.H. This was the cash bail that had been returned from the court in another case against him. At 9.20 a.m. he had been suddenly attacked from behind by someone who had been wearing a helmet and who he had not recognised. This person had not identified himself. The applicant had thought that it had been a robbery. This person had choked him from behind. The applicant had been scared and had defended himself. He had then been attacked by a second person in civilian attire. They had started hitting the applicant on the head and the back with a small wooden stick. The applicant had fallen to the ground and lost consciousness. The officers had woken him up by throwing water on his face. He had woken up in a brown jeep, handcuffed. He had then realised that he had been intercepted by the police. The officers had slapped and punched him on the face and body all the way to the police station. They had been asking him about money and credit cards but had not asked him to identify himself. Nor had they shown him any documents in respect of his arrest and informed him of his rights. They had taken everything he had had on him including his asthma inhalers. They had refused to allow him to talk to his lawyer or with an official from the Canadian embassy. He had been taken to the station at approximately 10 a.m. He had been received by the head of the police, “MrY.”, an officer acting as an interviewer, “Mr M.”, and two other officers “Mr P.” and “Mr A.”. In the interview room there had been officers of the CPS and another officer, “V.”. Officer M. had asked him questions. The applicant had refused to reply, saying that he would do so only in the presence of his lawyer. At that point the officer who had attacked him at the ATM had started beating and “torturing” him while he had been unable to defend himself, as he had still been in handcuffs. He had kept asking them to stop and let him contact his lawyer. They had continued to punch and beat him using the same small wooden stick used before (he clarified that this had been a small baseball bat). He had asked for his asthma inhalers and tried to tell them that he had had back surgery. He had been very scared and had started breathing heavily. They had hit him on the back and on his right knee with a metallic chair with blue handles. They had beaten him with that chair and kicked him savagely on the head while asking him questions. The applicant stated that he had lost consciousness for a while and he had woken up after water had been thrown on his face.
46.At approximately 1 p.m. the applicant had called his lawyer; before that they had warned him not to tell him anything. The applicant had spoken to his lawyer and had informed him of the ill-treatment. He had then been taken back to the interview room where the officers had continued to beat him. He had fallen to the floor again with his hands behind his back. One of the officers had stood on his handcuffs while another one had kicked him. Because of the kicks to the head the applicant had become very dizzy, bleeding from his face, nose and mouth. His front tooth had broken from the punches. He had also had a small asthma attack. Although Officer M. had not physically abused him he had not intervened to stop the ill-treatment. Two female officers of the ECID had also witnessed his ill-treatment. The applicant said that he had asked the head of the police to take him to hospital but he had refused. At around 3 p.m. they had taken him to the detention facility in the station. His lawyer had come to visit him and when he had seen the state of him he had made a complaint of ill-treatment to the officers and asked that the applicant be taken immediately to hospital. During his transfer to the hospital the applicant had been punched by one of the two police officers who had been escorting him. The officer had also threatened that his boss Mr Y. would put him in prison if he did not withdraw his complaint. When he had arrived at the hospital at 3.30 pm. one of the officers had lied to the doctor and had told him that he had fallen on his face. The other police officer had then taken the doctor aside and talked to him alone. The doctor had refused to give him painkillers. He had only given those when the Canadian Consul had come to visit him.
47.The applicant alleged that he could identify the individuals responsible for his ill-treatment.
48.In their statements provided to the criminal investigator, the police officers denied ill-treatment and maintained their original version of events. Some of the officers could not remember whether the applicant had had injuries or what type of injuries he had had and therefore were not able to answer the investigator’s questions in this connection. The most relevant statements were as follows:
(i)Sergeant P.H., who had made no mention of the applicant’s appearance in his previous statement, in his statement of 26 August 2011 stated that when the applicant had been brought to the detention facilities he had noticed that he had been upset (αναστατωμένος) and red in the face. He had not noticed whether his clothes had been torn.
(ii)Constable A.P in his statement of 29 August 2011 stated that he could not remember what type of wounds the applicant had had on his face or whether his clothes had been torn.
(iii)Constable P.P., who had not made any mention of the applicant’s appearance in his previous statement, in his statement of 31 August 2011 stated that:
“... there were areas which indicated that [the applicant] had fought with someone, without however bearing any external injuries. He had dishevelled hair, his clothes were creased, but not torn, and he was red owing to tiredness, but not owing to blows.”
(iv)Constable C.T. in his statement of 31 August 2011 stated that the applicant had had an abrasion on part of left frontal area and on the left shoulder blade. He could not remember if any of the applicant’s clothing had been torn.
(v)Constable M.N., who had guarded the applicant from 7.40 p.m. to 10.30 p.m. at the hospital, in his statement of 31 August 2011 stated that he had noticed that the applicant had had various injuries (χτυπήματα) but he could not remember whether they had been on the face or the body.
(vi)Constable I.K., who had guarded the applicant from 7.40 p.m. to 10.30 p.m. at the hospital, in his statement of 1 September 2011 stated that the applicant had been in a wheelchair at one point because he had claimed he had not been able to walk and that he had, with the assistance of the other officer guarding him, helped him onto a bed. He had noted that the applicant had had some small scratches on his face and one of the hands.
(vii)Constable F.O. in his statement of 5 September 2011 stated that owing to the passage of time he could not remember what type of wounds the applicant had had nor where the tracksuit had been torn.
(viii)The interpreter S.K. in her statement of 12 September 2011 stated that she had arrived before 1 p.m. and had translated from 1 p.m.-1.30 p.m. and that the applicant had had a bruise on his face near his eye and his trousers had been torn. In her presence no officer had hit or threatened him.
(ix)Inspector I.S. in his statement of 13 September 2011 stated that:
“[I]t was like when someone’s face is rubbed against the ground. I think that he had something similar on his hands.”
(x)Special Constable P.K. in his statement of 15 September 2017, when asked about whether he had noticed injuries stated that the time of the events, stated that he had been concentrating on helping handcuff the applicant and had not noticed.
(xi)Constable M.P. in his statement of 18 September 2011 stated that he could not remember the applicant’s teeth or what type of scratches the applicant had had on his face.
(xii)Senior Constable S.M. in his statement of 20 September 2011 stated that:
“[The applicant’s] face was red as if he had been running and [he] was short of breath. With regard to the minor-abrasions and bruises, these were definitely not black marks but mild redness.”
(xiii)Special Constable C.S., who had previously made no mention of the applicant’s appearance, in his statement of 20 September 2011 stated that:
“[The applicant] was to begin with, unkempt, messy as to his clothes, his hair was also tousled (ανακατωμένα) and his face was red. He did not have bruising (μαύρισμα) however, nor did I see scratches.”
2.Investigator’s findings
49.In his report dated 10 October 2011 the investigator found, taking into account the evidence at hand, that the applicant’s testimony had been unconvincing in many respects and contradicted solid evidence:
-his assertions as to what he had been doing at the ATM and why he had had EUR10,000 in his possession were very difficult to believe.
-based on the police officers’ testimony, the investigator noted that on the day of the arrest, the officers who had arrested the applicant had been in uniform and had not had batons as they had been simple traffic officers.
-the applicant had been taken to the police station in a white saloon police car; the Limassol CPS did not have brown jeeps.
-the applicant had stated that they had taken everything from him in the car yet according to the evidence given by Constable P.P. everything had been taken from the applicant at the station.
-the applicant had described a savage beating but had stated that during an interval he had spoken to his lawyer, C.H.. The investigator considered it odd that the officers, knowing that the applicant had spoken to his lawyer, would have continued to beat him after the call as he had alleged. C.H. had refused to give a statement.
-all of the police officers denied having ill-treated the applicant, and the interpreter, an independent witness, had stated that during her presence the applicant had not been ill-treated.
-the applicant had alleged that the ill-treatment had continued until 3p.m., but in his prisoner record it had been recorded that he had been taken to a cell in the detention facilities of the station at approximately 1.45 p.m.
-the applicant had claimed that the doctor at the hospital had refused to give him painkillers but this had been refuted by Dr A.K. and was in contradiction with the hospital records of Dr C.T.
50.The investigator considered it unlikely that officers of the CPS would have interrogated a suspect for offences under the authority of the another unit, the ECID, and that they would have ill-treated the applicant in the car given the close distance between the scene of arrest and the police station, which was only about 1 to 1.5 km. Furthermore, the description of certain people given by the applicant did not correspond to the officers working for the CPS. On this basis the investigator concluded there had not been police officers from the CPS in the interview room.
51.The investigator also noted that the allegation that the applicant had been beaten and threatened by one of the two officers escorting him to the hospital was surreal as those officers had not been aware of the applicant’s ill-treatment complaint.
52.The investigator pointed out that Special Constable G.S. had not denied the use of force against the applicant: following the applicant’s violent reaction he had pushed the applicant with his hand somewhere between his chest and neck and had also used some wrestling holds (λαβές πάλης) in order to turn him round and handcuff him. Furthermore, when the applicant had tried to flee he had fallen to the ground, hitting his face. This version of events could justify the injuries on the applicant’s face and his right knee but the investigator stated the he could not accept it easily. He stated that he was puzzled by the fact that Constable P.P., who had seen the applicant just before he had been led to the offices of the ECID, had noticed no exterior wounds other than the fact that the applicant was red. This was in line with G.S.’s statement that he had not hit the applicant.
53.Bearing in mind the above, the investigator concluded that G.S. had not used excessive force to arrest the applicant and that neither criminal nor disciplinary proceedings against him were merited.
54.The investigator pointed out that this did not mean that he accepted the facts as described by all the officers as, on the basis of their version of the events, one would expect that the applicant would have had fewer injuries. At the same time, he did not accept the applicant’s version of the facts as on the basis of his version, it would have been expected that he would have had more injuries.
55.The report concluded that there was no concrete evidence justifying criminal or disciplinary charges against any of the officers. The investigator noted that although he had been troubled by the case, the applicant had not helped him in his task, as his account had been full of inconsistencies and improbabilities (απιθανότητες).
3.Report of the president of the IAIACAP
56.The investigator transmitted his report and findings to the president of the IAIACAP. The latter prepared a report dated 16 November 2011 adopting the investigator’s findings. He noted, however, that he did not accept the evidence that had been given stating that the applicant did not bear exterior injuries or abrasions, as this was contrary to the findings of the doctors; nor did he accept that the applicant was merely red due to tiredness but not due to blows. Nonetheless, he observed that on the basis of these injuries it could not be concluded that the force used had been disproportionate under the circumstances. He therefore could not suggest that criminal or disciplinary action be taken against the four officers in question. He also considered that even if an identity parade had been held, he doubted that it would have made a difference to the outcome of the investigation, in view of the applicant’s conduct. The struggle between officer G.S and the applicant had been expected (αναμενόμενη) in order for the applicant to avoid arrest at the moment he had been appropriating a large sum of money.
57.The president of the IAIACAP concluded that despite the fact that the quality of the evidence at hand had not been satisfactory, the commission of neither disciplinary nor criminal offences had been established.
58.Both reports and the file of the case were submitted to the Attorney General for a decision.
4.Decision taken by the Attorney General
59.On 13 February 2012 the Attorney General concluded that although a certain degree of force had been used against the applicant, this had been necessary under the circumstances in order to prevent him from fleeing arrest. He concluded on this basis that the prosecution of any member of the police was not warranted and instructed that the file be closed.
60.In his decision he stated that it appeared from the evidence that Special Constable G.S. had asked the applicant, who at the time had been at the ATM machine, for his particulars. The applicant had reacted and had hit the police officer in an attempt to flee. The applicant had explained his behaviour by stating that he had thought it had been a robbery. Special Constable G.S. had, however, been in uniform as had been the officer who had subsequently come to help.
61.The Attorney General further observed that the applicant’s explanations concerning his attempt to flee and the money found in his possession as well as his allegations as to the injuries sustained and his alleged ill-treatment going to and at the police station did not correspond to the reality. Furthermore, his allegation that the doctor who had examined him at the hospital had refused to give him painkillers had been refuted by the doctor. Most of the applicant’s statement appeared to be imprecise and untrue. Special Constable G.S. had not denied the use of force: following the applicant’s violent reaction he had used proportionate force in the circumstances in order to prevent him from fleeing until help arrived. As a result not only had the applicant been injured but the officer himself, who had also had to go to hospital, had been. In addition, the applicant had claimed that he had been tortured by members of the police during his transfer to the police station and before the arrival of his lawyer, C.H. The latter, however, had refused to give a statement. The applicant’s allegations had been disputed by all the members of the police involved.
62.By a letter dated 16 February 2012 the Attorney General informed the applicant of his decision.
63.By a letter dated 7 March 2012 to the Attorney General, the applicant’s lawyer expressed his disappointment concerning the conclusions of the investigation and pointed out that no explanation had been given, at least in respect of the ill-treatment the applicant had been subjected to at the police station while handcuffed and as a result of which he had ended up in hospital. He noted in this connection that the Canadian Consul had ascertained the applicant’s condition whilst the independent medical report by the private practitioner corroborated the applicant’s allegations. Lastly, he informed the Attorney General of his intention to lodge an application with the Court on behalf of the applicant.
E.Criminal proceedings
1.First-instance proceedings
64.In the meantime, the applicant was charged with 439 counts of different offences and criminal proceedings were instituted against him before the District Court of Limassol (case no. 4474/11). The charges were subsequently reduced to three, namely theft, assault occasioning actual bodily harm (to Special Constable G.S.) and resisting lawful arrest (sections20, 255 (1)-(3), 262, 243 and 244 (a) of the Criminal Code, Cap.154).
65.On 14 September 2012 the court held that the prosecution had proved its case beyond reasonable doubt and found the applicant guilty on all counts. On 19 September 2012 it imposed sentences of imprisonment of one year, one month and two months respectively for each offence to run concurrently. The time the applicant had already been in detention counted towards the sentence.
66.The court found that the applicant’s testimony had been completely unreliable and unconvincing and that he had made a poor impression as a witness both in terms of the quality of his testimony and his credibility. He had made serious contradictions; his allegations were unsubstantiated, lacked logic and were contrary to hard evidence. It therefore dismissed his evidence as being false. The court also noted that the defence had made claims concerning certain of the prosecution witnesses which, however, it had not put to the witnesses themselves during cross-examination in order to give them the opportunity to at least comment. Similarly, although allegations had been made by the defence against some of the prosecution witnesses, it did not itself provide any evidence in this connection.
67.With regard to the allegations of ill-treatment raised by the applicant, the court pointed out, inter alia, that the applicant had failed to submit a medical report with reference to his alleged injuries and had only produced a receipt for the medical examination by Dr S.J. He had also failed to call Dr S.J. as a witness. His allegations therefore remained completely unsubstantiated. Furthermore, the court pointed out that the CCTV footage contradicted his allegation that he had been attacked at the ATM and that he had not seen that G.S. had been a police officer. The footage showed the applicant in front of the ATM with his body and head turned towards officer G.S., who was also looking at him. G.S. had been in police motorcycle uniform and the word “police” in capitals was on his uniform across his chest.
2.Appeal proceedings
68.On 27 September 2012 the applicant lodged an appeal with the Supreme Court (appeal no. 197/2012) against his conviction. This was dismissed on 19 February 2013.
69.With regard to the applicant’s grounds of appeal concerning his alleged ill-treatment, the Supreme Court upheld the findings of the first‑instance court pointing to the complete lack of medical evidence on the part of the defence. It also noted that the Canadian Consul who had visited the applicant in hospital had not been called by the defence as a witness.
F.The applicant’s departure from Cyprus
70.Following the dismissal of his appeal, the applicant was deported from Cyprus and was put on the authorities’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring).
G.Second investigation by the IAIACAP
1.Investigation
71.On 9 April 2013 the Attorney General appointed two new investigators to reinvestigate the applicant’s complaints. The Attorney General’s office, upon re-examination of the file, spotted gaps in the investigation and particular omissions and inconsistencies in the reports. Furthermore, his office had been informed by the investigator A.S. that after the conclusion of the investigation, he had had an informal conversation with Inspector I.S, the head of the ECID of the Limassol CPS, who had confided in him that the applicant had been ill-treated while at the police station.
72.The investigators singled out nine officers as suspects: Inspector I.S., Senior Constable S.M., Special Constables G.S., C.S. and P.K, and Constables M.P., A.P., F.O. and E.L. In the course of the investigation, the investigators took statements from forty-nine persons in addition to the nine abovementioned officers. This included all the individuals that had been interviewed by A.S. in the previous investigation, all the doctors that had examined by the applicant, a number of other officers and various individuals who either had personal knowledge of the facts or were suspected of having such knowledge, such as the Canadian Consul and her assistant. They were not able to get into contact with the applicant despite getting in touch with his lawyer. According to the investigators, the applicant’s previous lawyer, C.H., had asked for documents and witness statements in order to give a statement but the investigators considered that this would jeopardise the investigation and the ascertainment of the truth. The investigators did not assent and as a result he did not give a statement. The investigators also obtained documentary and other evidence related to the applicant’s case. These included, inter alia, photographs from the area near the ATM, CCTV footage from the bank relating to the day of the alleged ill-treatment, copies from police diaries kept at the police station and the record of the criminal proceedings before the District Court of Limassol and the Supreme Court.
73.In her statement of 22 April 2013 to the investigators the Canadian Consul submitted that when she had arrived at the hospital on 1 March 2011 the applicant had been in a wheelchair and on a drip and had been in the process of being moved to a bed. She had seen a big bruise on his left shoulder and other bruises on his body. He had had a broken tooth, his right leg had been bandaged and he had not been able to walk. He had had a head injury (χτύπημα) and bruises on the face. The applicant had informed her that he had been ill-treated by police officers during his transfer to and for four hours at the police station in order to force him confess to a crime he had not committed. She had asked to speak to a doctor. The doctor had informed her that there had been nothing wrong with the applicant and that he had been responsible only  for examining the applicant’s pancreas. She would have to talk to the doctors who had examined him earlier for further information. She had also asked her assistant to take a statement from him.
74.The Consul’s assistant, in her statement of 3 June 2013 to the investigators, stated that when they had arrived at the hospital the applicant had been in a wheelchair and on a drip. He had then been moved to a bed. He had had injuries on the face and looked injured, but she could not remember the exact injuries and she had not taken notes at the time. One of his front teeth had been half broken and he had had a bandage on his right knee. He had also been on a drip. The applicant had said he had been ill‑treated by the police. The doctor had told the Consul that the applicant had had no severe internal injuries, but had not been able to give her more information as he had only been responsible for examining the applicant’s pancreas. She had taken a statement from the applicant on the Consul’s instructions.
75.A number of the officers interviewed refused to provide answers to the investigators, reconfirmed their previous statements or stated that they could not recall the events. Inspector I.S. denied the occurrence of a discussion between him and the investigator A.S.
76.At the end of their investigation the investigators prepared a lengthy report on the investigation procedure and their findings
2.Investigators’ findings
(a)With regard to the investigations that had already been conducted
77.In their report the investigators pinpointed a number of deficiencies in the investigation of the case from the very beginning on the part of the police and the first investigation by the IAIACAP. In particular, they noted the following.
78.First of all, Inspector I.S., who had at the time been in charge of the ECID, ought to have given instructions that the applicant’s injuries be photographed when he had arrived at the station. This had not been done. Nor had the applicant’s clothes been taken as evidence. If these steps had been carried out, it would have been possible to determine what had really happened.
79.With regard to the administrative investigation, the investigators first of all stressed that such investigations by the police themselves, following complaints that could on the face of it constitute criminal offences, were problematic and that such complaints should be from the very beginning transferred to the IAIACAP. In addition, they observed that there had been a number of omissions in the context of this investigation: the investigator M.M. had failed to ask the officers about the applicant’s injuries and how they had happened; nor had he asked constable P.P., who had been the first officer to receive the applicant at the police station at 9.30 a.m., if the applicant had had any injuries on him at the time; he had merely filed (αρχειοθέτησε) P.P.’s statement; he had also not taken any investigative steps with regard to the applicant’s injuries – he had filed the medical report of the pathologist Dr A.K., which referred to the applicant’s injuries and had not sought to obtain a medical report by Dr S.J., who had visited the applicant in hospital. Lastly, he had not asked for a medical report from DrV.D., who had examined special constable G.S.
80.In so far as the first investigation by the IAIACAP was concerned the investigators noted that investigator A.S. should have tried to elucidate significant inconsistencies in the applicant’s allegations and statements when he had had the opportunity to do so and when the events had still been fresh. Furthermore, in view of the content of the applicant’s statements, the investigators considered that an identity parade had been called for and, in fact, both the investigator A.S. and the IAIACAP had been under a legal obligation to conduct an identity parade whatever the result. The failure to do so had led to the possible loss of important evidence
81.According to the investigators, the CCTV footage ought to have also been closely examined by investigator A.S. as it showed that the facts as described by Special Constable G.S. as to the way he had approached the applicant at the ATM had been true, thus contradicting the applicant’s version of events up to that point. In the footage G.S. can be seen approaching the applicant from behind; the applicant then turned his head and saw him. G.S can be seen touching the applicant’s left shoulder with his hand. The applicant almost immediately pushed him. The CCTV did not record the rest.
82.Lastly, the investigators expressed their concern about the fact that the investigator A.S had kept the I.S.’s admission to himself and had not informed the IAIACAP or the Attorney General immediately. He had therefore withheld important evidence.
(b)With regard to applicant’s ill-treatment allegations
83.The investigators first noted the difficulties they had encountered in their investigation of the case which were mainly attributed to the passage of time as well as the fact that they had been unable to interview the applicant in order to receive further clarifications.
84.After assessing the evidence before them, they concluded that the force used during the applicant’s arrest had not been excessive and had been reasonable and necessary and that it had caused certain injuries especially to the applicant’s face and knee.
85.With regard to the evidence before them, they noted inter alia, the differences between certain of the officers’ statements concerning the state of the applicant and the existence or degree of his injuries. They also pointed out that the doctors who had later examined the applicant at the hospital had found greater injuries than those described by the officers. The doctors had not, however, recorded wounds on the left shoulder blade as had been recorded in the prisoner record by Constable C.T. (see paragraph 15 above and compare to paragraphs 23-25 and 27 above). Furthermore, the Canadian Consul in her statement had described injuries which had not corresponded to those in the medical report of Dr Y.I., who had seen the applicant on the same day as her.
86.The investigators considered that the presumption of ill-treatment under section 6 of Law no. 235/1990 (see paragraph 98 below) was applicable in the case: it was presumed that the person responsible for ill‑treatment was the person in charge of the police station and the questioning for the investigation of the case in relation to which an arrest and/or detention was made unless an explanation was given for the cause of the injuries. Thus, according to the investigators there was sufficient evidence allowing the criminal prosecution of Inspector I.S. The same applied in respect of Constable M.P., who had been accused by the applicant of having been present during his ill-treatment but of not having done anything to stop it and of having ignored his request to be taken to hospital.
87.The investigators did not suggest the criminal prosecution of other members of the police owing to insufficient evidence. They also noted in this connection that some of the officers in question, namely Constables A.P., E.L. and P.P. and Special Constables G.S. and P.K., had given evidence before the District Court and had not been accused of ill-treating the applicant by the defence in the context of these proceedings despite the applicant’s allegations in this connection. Although they considered that disciplinary offences had been committed by various members of the police they had been appointed to carry out a criminal investigation into the case and thus could not deal with these.
88.Lastly, they referred to the findings of the domestic courts in the criminal proceedings against the applicant noting that the applicant had not substantiated his ill-treatment allegations in the proceedings and pointed to the serious inconsistencies in his evidence and the failings by the applicant’s defence counsel. They considered that this fact had to be taken into account when deciding on whether the applicant should be summoned as a witness for the prosecution if it were decided to prosecute any of the officers.
3.Further steps ordered by the Attorney General
89.On 9 July 2013 the investigators’ report was delivered to the Attorney-General.
90.On 29 November 2013 the file was returned to the investigators with the request that they consult a forensic expert in order to establish how the applicant’s injuries had been inflicted. The investigators were also instructed that questions be prepared and forwarded to the prosecuting authorities in Canada to obtain answers from the applicant.
91.On 10 January 2014 the forensic experts who had been contacted by the investigators concluded that they were unable to establish on the basis of the documents and photos how the applicant’s injuries had been inflicted – whether they had been inflicted by ill-treatment or from another cause such as falling to the ground. They would have been in a better position if they had been called to examine the applicant on the day he had presented with the injuries.
92.In the meantime, on 3 January 2014, the investigators prepared a request for legal assistance by the Canadian authorities, asking that a statement be provided by the applicant. Their questions to the applicant were included in writing. An email exchange followed between the applicant’s lawyer and the Attorney General’s office. It transpires from this that the applicant’s lawyer refused to provide the authorities with the applicant’s address and telephone number, which were necessary for the purposes of the request for legal assistance. He insisted instead that the Cypriot authorities pay for the applicant’s expenses to travel to Cyprus to provide a statement or that the Cypriot authorities go to Canada to see him. As such, the request for legal assistance was not submitted and the applicant was subsequently not called to Cyprus.
4.Decision taken by the Attorney General
93.On 11 June 2014 the Attorney General concluded that the possibility that the applicant’s injuries had been caused by the reasonable force during the applicant’s arrest and/or by the applicant’s fall could not be excluded. Similarly, it could not be excluded that they had been caused by ill‑treatment at the police station. He disagreed with the investigators’ suggestion that the presumption of ill-treatment under section 6 of Lawno.235/1990 (see paragraphs 86 above and 98 below) was applicable as in the circumstances of the case it had not been established that the injuries the applicant had had after his transfer to the police station, had not been present before and/or had not been caused during his arrest. From an examination of all the evidence in the case the Attorney General ascertained that the applicant’s credibility had been irreversibly damaged. He referred, in particular, to the fact that the applicant’s allegations of ill-treatment had been dismissed by the Limassol District Court in the criminal case against him. His grounds of appeal had also been rejected by the Supreme Court, including the ground challenging the first-instance court’s findings on this point. In addition, the Attorney General pointed out that the applicant’s version of events had been refuted by other independent and credible evidence.
94.In so far as the investigator in the first investigation had informed the second investigator of the admission of Inspector I.S., this did not have any bearing on the Attorney General’s opinion that the applicant was an unreliable witness. This, in combination with the fact that it had not been clarified which of the officers had allegedly ill-treated him, led to the conclusion that it was extremely difficult to establish the commission of any offences by any of the officers.
95.Based on the above, the Attorney General concluded that the criminal prosecution of any individual was not justified.

6.The applicants were born in 1982 and 1983 respectively and are currently serving sentences in penal facilities in the Republic of Komi and the Murmansk Region respectively.
A.The applicants’ arrest and alleged ill-treatment
7.On 25 and 19 September 2002 respectively the applicants were arrested in Grozny in the Chechen Republic and taken to the Operational‑Search Division of the North Caucasus Operations Department of the Chief Directorate of the Russian Ministry of the Interior in the Southern Federal Circuit (ОРБ-2 СКОУ ГУ МВД РФ по ЮФО  hereinafter “ORB-2”). After their arrest they were taken to the temporary detention facility at ORB-2 (hereinafter “the IVS”). Official records of the applicants’ arrest were drawn up on 30and 24September 2002 respectively. Throughout this time the applicants remained without legal assistance. Their families were unaware of their whereabouts.
8.According to the applicants, for several days during their unrecorded detention they were repeatedly ill‑treated by officers of ORB-2 and forced into confessing to being members of an illegal armed group in Grozny, and to the murders of several people, including police officers and military servicemen.
9.The applicants described in detail the circumstances of the alleged ill‑treatment. They submitted, in particular, that the officers of ORB-2 had punched and kicked them, beat them up with truncheons, administered electric shocks while putting gas masks or plastic bags over their heads, and had threatened them with rape and blackmail. According to the second applicant, he was also beaten over the head with a plastic bottle filled with water while his head was pressed against the floor. Furthermore, the perpetrators jumped on his head with all their weight, burnt his back with cigarette butts, beat his fingers with a varnished stick while his hands were pressed against a table, and threatened to pierce his hands with staples and shoot him. The applicants alleged that two of the perpetrators had been officers Yakh. and Gul.
10.Once the applicants’ arrests were formalised, they reiterated their confession statements in the presence of the chief investigator, S., and two legal aid lawyers, Ts. and D. The applicants confirmed that they had made their statements voluntarily. According to them, officers Yakh. and Gul. were both present during their interviews.
11.When questioning the second applicant on 24September 2002 in the presence of D. and officer Yakh., S. lifted up his shirt and saw marks of beatings on his back (bruises, marks from electric wires and swellings). When asked how they had been caused, the second applicant said that he had fallen down the stairs. Several days later he told D. that he had received the injuries in a fight with his brother.
12.On 18 and 22 December 2002 respectively the applicants were transferred from the IVS to remand prison IZ-20/2 in Chernokozovo in the Naurskiy District of northern Chechnya.
13.The Government failed to submit the applicants’ medical documents for the period between September and December 2002, relying on the fact that they must have been destroyed following the expiry of their storage time-limit.
14.The Government provided a copy of a register of medical examinations of persons admitted to IZ-20/2 in the period between 26November 2002 and 4 October 2003. The entries concerning both applicants state “no bodily injuries”.
B.Investigation into the applicants’ complaints of ill-treatment and their conviction
15.After their transfer to the remand prison in December 2002 the applicants made several complaints to the Prosecutor’s Office of the Chechen Republic of their having been subjected to torture while in police custody at ORB-2. However, the institution of criminal proceedings was refused. On 3December 2003 the investigator S. submitted as follows:
“Following their transfer to the SIZO in Grozny there was a flow of complaints and applications. At the present time I cannot remember the exact dates when the decisions on the applicants’ complaints and applications were made.”
16.On 14 and 18 April 2003S. refused to institute criminal proceedings into the second applicant’s complaints of ill-treatment. The decisions were taken on the basis of statements by officers Gul. and Yakh., who denied using any physical force against him. It appears that a further complaint of ill-treatment submitted on 9 July 2003 to the Prosecutor’s Office of the Chechen Republic received no reply.
17.On 25November 2003, during the course of the trial, the applicants complained to the court that during their unrecorded detention (between 25and 30 September in respect of the first applicant and between 19and 24September in respect of the second applicant) they had been subjected to torture involving electric shocks, gas masks, beatings and threats by officers of ORB-2 and forced into making a confession. The applicants alleged that one of the perpetrators had been the chief operational officer, Yakh.
18.On the same day the Rostov Regional Court (“the Regional Court”) requested the Prosecutor’s Office of the Chechen Republic to conduct an inquiry into the applicants’ allegations.
19.On 8 December 2003 D., an investigator from the Leninskiy district prosecutor’s office of Grozny, having questioned S. (the investigator in charge of the pre-trial investigation in the criminal case against the applicants), Yakh. (the chief operational officer of ORB-2), T. (the legal aid lawyer for the applicants’ co-defendant) and Ts. (the legal aid lawyer for the first applicant), as well as M. (an attesting witness in several investigative activities), refused to open a criminal investigation into the applicants’ complaints of ill-treatment for lack of evidence that a crime had been committed. The decision, in so far as it concerns the applicants, reads as follows:
“[S.] submitted that he had been in charge of the pre-trial investigation of the criminal case [against the applicants] and that operational assistance had been provided by officers of [ORB-2], including the chief operational officer, Yakh.
After their arrest [the applicants] were placed in the temporary detention facility at [ORB-2], following which they were transferred to remand prison [illegible]. ... During the initial pre-trial investigation [the applicants] made no complaints of having been subjected to any unlawful methods of investigation. However, they subsequently made [relevant] complaints, which were decided by [S.] in the framework of the criminal case under investigation. On each occasion the [applicants’] arguments were not objectively confirmed and it was decided [that a criminal investigation would not be instituted]; he could not remember the dates of the relevant decisions ... [The applicants made their statements of their own free will; they were not subjected to any violence; all investigative measures were carried out with the participation of legal aid lawyers].
The legal aid lawyer Ts. submitted that she had represented [the first applicant] from 30September 2002 until the end of the preliminary investigation. During the course of the preliminary investigation [the first applicant] had not complained of having been subjected to unlawful methods of investigation and physical violence, and Ts. had not lodged any complaints of ill-treatment with the prosecutor’s office on [the first applicant’s] behalf.
...
[Yakh.] submitted that ... no physical violence had been used against [the applicants] by the officers of [ORB-2], and that [the applicants] had made their statements of their own free will.”
20.On 9 December 2003 the presiding judge received a copy of the above-mentioned decision and read it out in court.
21.The trial court further questioned S. and the attesting witnessM., who submitted that no physical force had been used against the applicants, who had made all their statements voluntarily and without coercion. S.admitted that when he had questioned the applicants at ORB-2 they had been handcuffed to the radiator to prevent them escaping.
22.On 18 and 30 December 2003 and 12 April 2004 the applicants’ lawyer asked the trial court to exclude the evidence obtained from the applicants under torture, but the requests were dismissed.
23.During the submissions the presiding judge allowed the prosecutor to amend one of the charges against the applicants in so far as it concerned a change to the date of the alleged murder of P. (from 30 to 29May 2001).
24.On 11 May 2004 the Regional Court convicted the applicants, along with another co-defendant, of membership of an illegal armed group, several counts of murder, attempts on the life of law-enforcement officers and illegal possession of firearms. They were sentenced to twenty‑five years’ imprisonment. The applicants’ conviction was based on self‑incriminating statements given by the defendants during the pre-trial investigation in the period between September and December 2002 while they had been on the premises of ORB-2 (records of their questioning as suspects, records of their questioning as accused, records of confrontation between the parties, records of crime-scene examinations), and the findings of forensic medical examinations. The court also relied on statements by prosecution witnesses, including Ts., L. and K., and victims, although these did not link the applicants to the crimes they had been charged with. Despite the court’s rulings, most of the prosecution witnesses and the victims did not attend the trial. Having regard to the challenging social situation in the Chechen Republic, where the witnesses in question lived, the court used the statements obtained from them at the pre-trial stage as evidence. The defence witnesses were all heard during the trial and provided alibis for the applicants. The court, however, excluded their testimony, as they were all either their relatives or friends. The court decided that the applicants’ sentences should start to run from 25 and 19September 2002 respectively.
25.The applicants appealed, claiming, inter alia, that they had been subjected to ill-treatment during the pre-trial investigation and convicted on the basis of evidence obtained under torture, that they had not been afforded an opportunity to examine the prosecution witnesses and the victims, and that during the submissions the presiding judge had allowed the prosecutor to amend one of the charges against them, thereby violating their right to defence. Attached to the second applicant’s appeal were witness statements by D., the legal aid lawyer who had represented him during the pre-trial investigation. The relevant part reads as follows:
“On 24 September 2002, when [the second applicant] was being questioned as a suspect, we saw that his back was covered in bruises. I agreed to make the relevant submissions to the [Regional Court]. However, somebody has misled the trial court, stating that I had “flatly refused to make any depositions”. I was not questioned during the pre-investigation inquiry, nor [did I] give any depositions to anybody except the lawyer [representing the applicants during the trial].”
26.On 18 August 2004 the Supreme Court of Russia upheld the judgment on appeal and reduced the applicants’ sentences to twenty-three and twenty‑four years’ imprisonment respectively. The court held that the applicants’ allegations had been reasonably found to be unsubstantiated, and that the difficult social situation in Chechnya could account for the inability to secure the attendance of the prosecution witnesses and victims. The appellate court found that the amendment of one of the charges against the applicants had not violated the applicants’ right to defence since, in any event, in the statements made during the pre-trial investigation they had mentioned having committed the crime “in around the spring of 2001” and furthermore during the trial had denied committing it at all.
27.On 25 October 2013 the Ust-Vymskiy District Court of the Republic of Komi reviewed the first applicant’s sentence in line with amendments to the criminal law and reduced it to twenty-two years’ imprisonment.
C.Developments in the case following its communication to the Government
28.Following communication of the applicants’ complaint of ill‑treatment to the Government in October 2011, on 6December 2011 the prosecutor of the Leninskiy district of Grozny quashed as unlawful and unsubstantiated the decision of 8December 2003 refusing to institute a criminal investigation into the applicants’ complaints of ill-treatment. An additional pre-investigation inquiry was ordered, so that the applicants could be questioned concerning the circumstances of the alleged ill‑treatment, the identity of the alleged perpetrators, the injuries allegedly sustained as a result of the ill-treatment and any requests made for medical assistance in this connection.
29.The case file contains no further information about the outcome of the additional pre-investigation inquiry.
D.The applicants’ allocation to correctional penal facilities
30.Following the applicants’ conviction, in September 2004 their families requested the head of the Rostov Regional Department of the Russian Federal Penal Authority (“the FSIN”) to allocate them to penal facilities in regions adjacent to their home region, the Chechen Republic.
31.In November 2004 the first applicant was allocated to a strict-regime correctional colony in the Republic of Komi, located over 3,000 kilometres from the Chechen Republic.
32.In December 2004 the second applicant was allocated to a strict‑regime correctional colony in the Omsk Region, located over 3,400kilometres from the Chechen Republic.
33.On 22 August 2005 the first applicant’s family asked the head of the FSIN to transfer him to a penal facility in a less remote region. They referred, in particular, to his state of health (tuberculosis) and indicated that appropriate facilities were available in the Republic of Kalmykia. Their request was rejected.
34.The second applicant and his family lodged requests with the Omsk regional prosecutor, the head of the FSIN, the Prosecutor General of Russia and the Ombudsman for the Omsk Region seeking the applicant’s transfer to a less remote penal facility. They argued that he was serving a twenty‑four year sentence over 3,400 km from his home region, and that his parents had difficulties travelling long distances in view of their advanced age. It was likely that over time they would be unable to travel and would have no opportunity to visit their son.
35.In May 2006 the FSIN refused the second applicant’s request on the grounds that there were no strict-regime penal facilities in the Chechen Republic and no exceptional circumstances preventing him serving his sentence in the Omsk Region. Reference was made to Article73 § 2 and Article 81 of the Code of Execution of Criminal Sentences (“the CES”).
36.On 18 July 2006 the applicants and their families complained to the Supreme Court of Russia that the applicants were being detained in penal facilities far from their home region and asked it to facilitate contact. The complaint reached the court on 28July 2006. The case file contains no further information as to the outcome of this request.
37.On 4 December 2006 the second applicant asked the Prosecutor General of Russia to transfer him to a penal facility in the Chechen Republic or a nearby region. He pointed to difficulties in terms of family visits and contact.
38.On 15 March 2007 the FSIN again rejected the second applicant’s request.
39.On 30 July 2009 the FSIN rejected the first applicant’s request to be transferred to a penal facility in the Chechen Republic, with reference to Article73 § 4 and Article 81 § 2 of the CES.
40.Subsequently, on an unspecified date the second applicant was transferred from the correctional colony in the Omsk Region to a correctional colony in the Murmansk Region, located over 3,700 km from the Chechen Republic.
47.The relevant parts of the public statement of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning the Chechen Republic of the Russian Federation of 10July 2003, read as follows:
“5.One establishment stands out in terms of the frequency and gravity of the alleged ill-treatment, namely ORB-2 (the Operative and Search Bureau of the North Caucasus Operations Department of the Chief Directorate of the Russian Ministry of Internal Affairs in the Southern Federal District) in Grozny.
ORB-2 has never appeared on any official list of detention facilities provided to the CPT. However, persons certainly are being held there, on occasion for very lengthy periods of time. In the course of its visits in 2002, the CPT received a large number of allegations of ill-treatment concerning this establishment which were supported in several cases by clear medical evidence gathered by its delegation. During the CPT’s most recent visit to the Chechen Republic, in May 2003, further allegations were received, once again supported in some cases by medical evidence.
When the CPT re-visited ORB-2 in May 2003, it was holding 17 persons, some of whom had been there for several months. The persons detained were extremely reluctant to speak to the delegation and appeared to be terrified. From the information at its disposal, the CPT has every reason to believe that they had been expressly warned to keep silent. All the on-site observations made at ORB-2, including as regards the general attitude and demeanour of the staff there, left the CPT deeply concerned about the fate of persons taken into custody at the ORB.
The CPT has repeatedly recommended that a thorough, independent inquiry be carried out into the methods used by ORB-2 staff when questioning detained persons; that recommendation has never been addressed in a meaningful manner. To argue that “a formal, written complaint is required for action to be taken” is an indefensible position to adopt given the climate of fear and mistrust which currently pervades the Chechen Republic, and constitutes a dereliction of responsibility. The CPT calls upon the Russian authorities to put a stop to ill-treatment at ORB-2 in Grozny.”
48.For the public statements of the CPT concerning the Chechen Republic of the Russian Federation of 13 March 2007 and 24January 2013, also mentioning ORB-2 in Grozny, see Mukayev v. Russia (no.22495/08, §§60-61, 14March 2017).

5.The applicant was born in 1979 and is detained in Strzelce Opolskie Prison.
6.The facts of the case may be summarised as follows.
A.The period of the applicant’s detention
7.The applicant was detained in Mysłowice Remand Centre from 20April 2010 to 12 January 2011 and in Wojkowice Prison from 12January 2011 to 9 March 2012 (1 year, 10 months and 20 days).
B.The conditions of the applicant’s detention
8.The parties’ statements relating to the conditions of the applicant’s detention from 20 April 2010 to 9 March 2012 are to a large extent contradictory.
9.The applicant submitted that throughout his detention in Mysłowice Remand Centre and Wojkowice Prison, he had been held in overcrowded cells in which the space per person had been below the Polish statutory minimum standard of 3 m².
10.In their observations, the Government submitted that the applicant had been detained in overcrowded cells only on 20 April, 18 and 19 May 2009.
11.In the course of civil proceedings instituted by the applicant (see paragraphs 14-16 below), the domestic courts established, without giving any further details, that the applicant had been detained in overcrowded cells from 20 April 2010 to 9 March 2012 (1 year, 10 months and 20 days).
12.Regarding the conditions of detention in Mysłowice Remand Centre, the domestic court established that the overall conditions in cells were adequate. The applicant had one hot shower per week and one hour of outdoor exercise per day.
13.Regarding the conditions of detention in Wojkowice Prison, as established by the domestic courts, the toilets were separated from the cell’s living area, every prisoner had his own bed, a stool and access to cold running water. The prisoners had basic hygiene products at their disposal. The ceiling was infested with humidity. The applicant had one hot shower per week and one hour of outdoor exercise per day.
C.Civil proceedings against the State Treasury
14.On 24 February 2012 the applicant brought a civil action for the infringement of his personal rights on account of inadequate living conditions in Wojkowice Prison from November 2005 to July 2006 and from January to March 2007, in Mysłowice Remand Centre from 20 April 2010 to 12January 2011 and, subsequently, again in Wojkowice Prison from 12January 2011 to 9 March 2012. The applicant argued that he had been detained in overcrowded cells, where the space per person had been below the statutory minimum of 3 m². He claimed 80,000 Polish zlotys (PLN) (approximately 20,000 euros (EUR)) in compensation.
15.On 18 December 2012 the Katowice Regional Court dismissed the applicant’s action, finding that from 20 April 2010 to 9 March 2012 the applicant had been detained in cells above the minimum statutory standard. As regards the remainder of the period, the claim was time-barred as lodged outside the three-year period of statutory limitation.
16.On 27 June 2013 the Katowice Court of Appeal overruled the lower court’s judgment and allowed the applicant’s action, finding that from 20April 2010 to 9 March 2012 he had been detained in overcrowded cells. The court relied in this respect on the applicant’s submissions, holding that the State Treasury had in fact acknowledged these by its multiple refusals to provide the first and the second instance courts with an official register of cells in which the applicant had been detained. It also granted the applicant PLN1,000 (EUR 250) in compensation, holding that the breach of the statutory minimum standard had not been significant.

5.The applicants, who are police officers, were born in 1967, 1978, 1976, 1979 and 1964 respectively. The first and second applicants live in Chișinău and Caușeni and the remaining applicants live in Bender.
A.The applicants’ arrest and alleged ill-treatment
6.On 14 June 2006 officers Mangîr, Vasiliev and Condrea, who were conducting a criminal investigation in Tiraspol, were arrested by the secret service of the self-proclaimed “Moldovan Republic of Transdniestria” (“MRT”)[1]. During their arrest they managed to call the Bender police station.
7.The other two applicants (officers Daţco and Pohila) went to Tiraspol to clarify the reasons for the arrest of their colleagues, but were also arrested upon their arrival.
8.The applicants were placed in the Tiraspol Remand Centre (IVS Tiraspol).
9.On 17 June 2006 officers Pohila, Daţco and Vasiliev were released without charge and without any explanation for their arrest.
10.On 18 June 2006 officer Mangîr was allegedly beaten up and injected with an unknown substance, which rendered him unconscious for four days. After his release he was admitted for in-patient treatment in the hospital of the Ministry of Internal Affairs of the Republic of Moldova, where he was diagnosedwith, inter alia, concussion.
11.On 20 June 2006 the Tiraspol City Court issued a warrant for officer Mangîr to be detained for thirty days. On 23 June 2006 the “MRT” authorities released officers Mangîr and Condrea. The head of the “MRT” secret service declared in an interview that the officers had been released after Russian authorities had “given assurances” that Moldovan authorities would not “kidnap people” in the “MRT”.
12.The applicants were accused in the “MRT” media of being members of “black squadrons” created for the purpose of kidnapping politicians and other persons causing nuisance to the Moldovan authorities. According to the applicants, during their detention they were questioned by the “MRT” secret service and forced to declare that in Tiraspol they had been trying to kidnap “MRT” politicians. Officers Pohila, Daţco and Vasiliev were allegedly beaten on the soles of their feet and threatened with the killing of members of their families, as well as with being transferred to cells occupied by common criminals, where they would be ill-treated or even killed.
13.Officer Condrea was allegedly subjected to so-called “Palestinian hanging” for up to seven hours and was taken to his cell unconscious thereafter.
B.Conditions of the applicants’ detention
14.The applicants described as follows their conditions of detention at the Tiraspol Remand Centre. The cells in which they had been held had been in the basement and had not had access to natural light. In the absence of ventilation and because of overcrowding it had been difficult to breathe. Officer Condrea submits that he was detained in the same cell as that in which Mr Ilie Ilaşcu had been detained (for more details see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004‑VII).
15.During their detention the applicants did not have any daily exercise and were not given access to a shower; they could not receive parcels containing food from their relatives, they did not have bed linen and they were not allowed to be seen by doctors.
C.The actions undertaken by the Moldovan authorities
16.After the applicants’ release the Moldovan authorities initiated two sets of criminal proceedings concerning their unlawful detention and their alleged ill-treatment while in detention. However, several years later the investigation was discontinued.
17.The applicants were also subjected to medical check-ups, which found no traces of violence on their bodies. Only one applicant, Stefan Mangîr, was found to be suffering from the consequences of concussion.

5.The applicant was born in 1980. He is currently serving a prison sentence in Bezhetsk, Tver Region.
A.The applicant’s alleged ill-treatment in police custody
6.On 10 July 2005 the body of B., a police driver with the Ruza District Police Department of the Moscow region (ОВД Рузского района Московской области), was found with multiple injuries near the village of Baranovo in the Ruza District.The next day the Ruza town prosecutor’s office opened criminal investigation into B.’s murder.
7.On 11 July 2005 at night the applicant was arrested in P.’s house by three police officers. According to him, he did not resist the arrest, but the police officers kicked and punched him on the legs, in the kidneys and around the groin region at least seven times.After the arrest he was taken to a temporary detention facility (IVS) located on the premises of the Ruza district police department.Then two police officers took him out of the cell and led him to a room. There one of the officers hit the applicant with a rubber truncheon all over his body about twelve times. Then they brought him back to the IVS cell. Soon afterwards another officer entered the cell and punched the applicant in the face and body about five times. During the ill-treatment the officers demanded that the applicant confess to B.’s murder.
8.At 4.05 a.m. on 11 July 2005 in the IVS, L., an investigator with the Ruza town prosecutor’s office, drew up a record of the applicant’s arrest. Between 3.05 p.m. and 5.20 p.m. the applicant was examined as a suspect in the presence of a State-appointed lawyer, K., in the IVS. The applicant confessed to the crime, stating that he had inflicted several blows to the victim’s body. It was stated in the record of the interview that the applicant had been informed of his right under Article 51 of the Constitution not to incriminate himself.
9.On the same day the applicant’s family members were notified of his arrest. They retained a lawyer, R., who came to see the applicant on the same day. According to the applicant, the prosecutor of the Ruza district denied R. access to him on the grounds that the latter was being examined as a suspect in the presence of the State-appointed lawyer at that moment.
10.On the evening of 11 July 2005 the applicant’s mother saw the applicant appearing in a television programme, Vremechko. According to her, he could hardly move and bore evident signs of ill-treatment. At10.35p.m. on the same day, R. sent a telegram to the Ruza district prosecutor’s office asking for a meeting with the applicant. He also requested the medical examination of the applicant, who had been allegedly subjected to ill-treatment in the IVS. The next day R. repeated these requests in another telegram sent to the Moscow Region prosecutor’s office.
11.On 12 July 2005 the applicant was brought before a judge of the Ruza District Court, who ordered that he be placed in pre-trial detention. R., who represented the applicant at the hearing, submitted that the latter had been subjected to ill-treatment by the police officers from the moment of his arrest. The prosecutor responded that the telegrams sent by R. containing these allegations had been received and that there would be an inquiry into them.
12.According to the applicant, during the hearing on 12 July 2005 he had informed the judge and the prosecutor of his ill-treatment by police officers and had showed them traces of the beatings. However, they had remained unresponsive, not reacting to his allegations.After the hearing the escorting guards had taken the applicant to the first floor of the courthouse and subjected him to ill-treatment. They had punched him in the kidney region, demanding that he confess to the crime. The beatings had continued for about ten minutes, with breaks; afterwards the applicant had been taken to the IVS.
13.On 13 July 2005, following a meeting with the applicant, R. lodged an application with the Ruza district prosecutor’s office for the applicant’s immediate transfer to a remand centre in Mozhaysk, Moscow Region. He stated that the applicant had been subjected to ill-treatment by the police at the Ruza district police department and that the implicated police officers could interfere with the investigation of this incident. He sent a similar complaint to the Moscow Region prosecutor’s office on the following day, adding that three of B.’s brothers had worked at the Ruza district police department at the time of the applicant’s detention in that facility. According to the applicant, he was transferred to remand centre IZ‑50/4 in Mozhaysk, Moscow Region only on 24 July 2005.
B.Pre-investigation inquiry into the applicant’s complaint of ill‑treatment
14.On 12 and 13 July 2005 the applicant complained to the Moscow regional prosecutor of his alleged ill-treatment by police officers during his apprehension, while in police custody and while in the courthouse.
15.On 14 July 2005 a forensic medical expert from the Ruza Forensic Medical Bureau examined the applicant at the request of an investigator from the prosecutor’s office. The expert recorded the following injuries: (i)two bruises on the eyelids measuring 3 cm by 2.5 cm and 2.5 cm by 1.5cm; (ii)a bruise on the chin measuring 3 cm by 3 cm, with abrasions on its surface 1.5 cm by 1.5 cm in size; (iii)eleven bruises on the back measuring from 0.3 cm by 0.7 cm to 7 cm by 1.5 cm; (iv) nineteen bruises on the chest and stomach measuring from 1 cm by 1 cm to 2 cm by 13 cm; (v) two abrasions on the left leg (from the knee to the foot) measuring 1 cm and 5 cm long, respectively, and (vi) a 6-cm-long abrasion on the internal side of the left hip. The applicant stated that the injuries had been inflicted during his arrest and while he had been in police custody by police officers who had punched and kicked him and beaten him with a truncheon. The expert concluded that the injuries could have been inflicted on the date and in the circumstances described by the applicant with a hard blunt object of limited surface area. He specified that bruises could have been inflicted with a hard blunt object of an elongated shape, and that the applicant’s injuries were unlikely to have been caused by his falling from his own height.
16.On 21 July 2005, following a pre-investigation inquiry, a deputy prosecutor of Ruza refused to institute criminal proceedings against two police officers, Sh. and D.K., for lack of the elements of a crime in their actions, and against unidentified police officers for lack of evidence of a crime in their actions. He found, in particular, that the applicant’s injuries could have been the result of the lawful use of force by Sh. and D.K. when apprehending the applicant, who had resisted arrest. They stated that they had used force lawfully during the applicant’s arrest and submitted that they had had to lay him down on the floor, and while handcuffing him, had pressed their knees into his back to keep him still. The decision stated that P., who had been present during the applicant’s arrest, had not confirmed the applicant’s allegations of ill-treatment. The deputy prosecutor also considered that the applicant’s alleged ill-treatment in the IVS by unidentified police officers had not been confirmed. He relied on the statements of officers U., B. and V.P. (who had been on duty in the IVS on 11 July 2005) and denied any malpractice in respect of the applicant.
17.In August 2005 the Ruza town prosecutor made a submission (представление) to the head of the Ruza district police department, requiring him to conduct an internal inquiry into the applicant’s ill-treatment by unidentified police officers in the IVS and to subject those responsible to disciplinary proceedings.
18.R. lodged an appeal against the decision of 21 July 2005 with the Ruza District Court. On 16 August 2005 the Ruza town prosecutor annulled the decision of 21 July 2005 and ordered an additional inquiry into the applicant’s allegations of ill‑treatment. In his decision the prosecutor held that the investigator should adduce the results of the ongoing internal inquiry into the alleged unlawfulness of the applicant’s detention in the IVS, verify the applicant’s allegations, and assess them.
19.By an order of 22 August 2005 the head of the Ruza district police department reprimanded officers U. and B., who had been on duty in the IVS when the applicant had been brought there, for lack of diligence. He found that – in breach of the law on the pre-trial detention of suspected and accused persons – on 11 July 2005 two unidentified police officers had taken the applicant out of the cell and subjected him to ill-treatment.
20.On 26 June 2006 R. lodged a request with the Ruza town prosecutor to inform him of the results of the additional inquiry. On 30 June 2006 the prosecutor provided him with a copy of a decision issued by an investigator of the Ruza town prosecutor’s office dated 23 August 2005 refusing to open criminal proceedings against the police officers. The investigator of the Ruza town prosecutor’s office, N., maintained the findings made in the decision of 21 July 2005.
21.In August 2006 R. lodged an appeal against the decision of 23August 2005 with the Ruza Town Court. He argued that the investigating authority had failed to explain the origin of the applicant’s injuries.
22.On 9 October 2006 the Ruza District Court decided that the above‑mentioned decision had been unlawful and unsubstantiated and that an additional inquiry was needed. It held that the investigator had failed to address the instructions given by the prosecutor in his decision of 16 August 2005 – in particular, to take all necessary measures to identify the culprits and to hold them criminally responsible.
23.According to the Government, on 26 October 2006 the investigator of the Ruza Town Prosecutor’s Office issued a new decision refusing to institute criminal proceedings against police officers. However, they failed to produce a copy of this decision. According to the applicant, neither he nor his lawyer was notified about it.
C.The applicant’s trial
24.On 28 February 2006 a jury trial against the applicant and his co‑defendant began before the Moscow Regional Court.The applicant pleaded not guilty. At the hearing of 14 March 2006, L., who represented the applicant during the trial, requested that the record of the applicant’s interview as a suspect be declared inadmissible and excluded from the body of evidence. He submitted that the statements made in the course of that interview had been obtained by means of the applicant’s ill-treatment and in the presence of a State-appointed lawyer, who had not acted in the applicant’s best interests. L. also requested to examine the report of 14 July 2005 containing the results of the applicant’s forensic medical examination.
25.The trial court refused both requests, noting that the allegations of ill-treatment by the police officers were unconfirmed. It relied on the refusal of 23 August 2005 to open a criminal case on account of the alleged ill‑treatment (see paragraph 20 above), which had gone unchallenged at the time. The court also noted that the applicant had not objected to the participation of K., the State-appointed lawyer, in the proceedings and had made no remarks in the interview record to the effect that he had rejected his services. Furthermore, the court considered that the contents of the report by forensic medical expert did not constitute part of the factual circumstances to be determined by the jury. It therefore allowed to be read out before the jury the record of the applicant’s interview as a suspect of 11July 2005.
26.On 11 April 2006 the jury found the applicant guilty of battery, the misappropriation of a car, murder, the causing of intentional damage to property, and the acquisition of property obtained in a criminal manner. The Moscow Regional Court sentenced him to eighteen years’ imprisonment.
27.The applicant lodged an appeal against the judgment with the Russian Supreme Court, complaining, inter alia, that the initial statements that he had given during the investigation had been inadmissible.
28.On 13 July 2006 the Supreme Court of Russia dismissed the applicant’s appeal and upheld the judgment of the Moscow Regional Court. It stated that the trial court had duly assessed the applicant’s allegations of ill-treatment, noting that the applicant had never denied the use of force by the police to restrain him during his apprehension.
29.On 12 October 2007, at the applicant’s lawyer’s request, the Ruza prosecutor’s office re-opened the criminal case on account of newly discovered circumstances – namely certain information in the victim’s medical records. However, the proceedings were terminated on 25October 2007, and (following an appeal by the applicant’s lawyer) by a final decision of 18 February 2008 the Supreme Court upheld that decision.

1. The case originated in an application (no. 33586/15) against the Republic of Bulgaria lodged with the Court on 10 July 2015 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twelve Bulgarian nationals whose names and years of birth are set out in paragraphs 5 and 7 below (“the applicants”). They were represented by Ms D. Mihaylova and Mr A. Kashumov, lawyers practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicants
4. The applicants are two families of Bulgarian nationals of Roma ethnic origin: the Aydarovi family and the Ilievi family.
5. The Aydarovi family consists of Mr Stoyan Aydarov, born in 1987, and Ms Lilyana Aydarova, born in 1989, and their three children. The first child, Mr Yosif Aydarov, was born in 2006. The second, Mr Mariyan Aydarov, was born in 2008. The third (who is not an applicant in these proceedings), Ms Lidia Aydarova, was born on 21 August 2015.
6. Mr Mariyan Aydarov and Ms Lidia Aydarova both suffer from congenital glaucoma in both eyes, for which they have undergone medical treatment and several operations since infancy.
7. The Ilievi family consists of Mr Krasimir Iliev, born in 1979, and Ms Makedonka Kirilova, born in 1984, and their six children. The first child, Ms Sinema Ilieva, was born in 2001. The second, Ms Elena Kirilova, was born in 2004. The third, Mr Iliya Kirilov, was born in 2006. The fourth, Mr Yoan Iliev, was born in 2009. The fifth, Mr Hristo Iliev, was born in 2011. The sixth, Mr Yosif Iliev, was born in 2013. It appears that after 2015 the family had another child; his or her name was not specified by the applicants, and he or she is not an applicant in these proceedings.
8. Mr Iliya Kirilov suffers from spastic diplegia (a form of cerebral palsy) and is completely paralysed.
2. Background to the case
9. The two applicant families live near the village of Marchevo, in the municipality of Garmen, in an area known as the Kremikovtsi settlement, which was apparently established in the late 1960s. The settlement consists of 134 houses in which about 770 people reside, all of Roma ethnic origin. About 350 of them are children, 140 of whom were between one and six years old in August 2015. The land in the area on which the settlement stands, known as Padarkata, belongs to the Garmen Municipality and is earmarked as agricultural. Most of the houses in the settlement, including the two houses inhabited by the applicant families, are or were crude one-storey brick buildings with one or two rooms.
10. Between December 2010 and February 2012 the Garmen Municipality issued 114 certificates saying that, although they had been unlawfully built, the houses in the Kremikovtsi settlement, including those in which the applicant families resided, could be tolerated under the transitional provisions of the Territorial Organisation Act 2001 (see paragraphs 44 and 45 below). The certificates relating to the houses in which the Aydarovi and Ilievi families lived stated that they had been built before 1987; it appears that this was only based on declarations to that effect by Mr Stoyan Aydarov and Mr Krasimir Iliev.
11. Between March 2011 and November 2012 the National Building Control Directorate ’ s regional office set aside 104 of those certificates and upheld the remaining ten. It is unclear whether the certificates relating to the two houses in which the applicant families lived were set aside or upheld.
12. In 2013 and 2014 the Garmen Municipality sold plots of land in Padarkata to twenty-four people who lived there. The applicants were not among those people. The municipality apparently stated that it intended to continue with such sales, but then halted them.
3. Demolition orders and proceedings for judicial review of the order addressed to Mr Stoyan Aydarov
13. On various dates in 2010 and 2011 officers of the National Building Control Directorate inspected 134 houses in the Kremikovtsi settlement and found that they had been unlawfully built. The house in which the Aydarovi family lived was inspected on 19 August 2010, and the house in which the Ilievi family live was inspected on 23 August 2010.
14. Based on the results of the inspection, in an order of 22 March 2011 the National Building Control Directorate ’ s regional office noted that the house in which the Ilievi family lived had been built in 2002-03 on land owned by the Garmen Municipality without the requisite construction papers, in breach of section 148(1) of the 2001 Act, and in the absence of a detailed zoning plan, in breach of section 12(2) of the same Act. There had been no procedure to legalise it under the Act ’ s transitional provisions. It was therefore unlawful and as such liable to be demolished.
15. Mr Krasimir Iliev, who was notified of the order on 14 December 2011, did not seek judicial review, and the order became final on 29 December 2011.
16. In an order of 22 June 2011, the same office noted that the house in which the Aydarovi family lived had been built in 2002-03 on land owned by the Garmen Municipality without the requisite construction papers, in breach of sections 137(3) and 148(1) of the 2001 Act; without a right to build on another ’ s land, in breach of section 182(1) of the Act; and in the absence of a detailed zoning plan, in breach of section 12(2) of the Act. There had been no procedure to legalise it under the Act ’ s transitional provisions. It was therefore unlawful and as such was liable to be demolished.
17. Between 2010 and 2012 the National Building Control Directorate ’ s regional office apparently issued a total of 124 similar demolition orders in relation to houses in the Kremikovtsi settlement.
18. Unlike Mr Krasimir Iliev, Mr Stoyan Aydarov sought judicial review of the order relating to the house in which his family lived. He argued that the order did not properly describe the house, that a procedure to legalise the house was pending, and that the Garmen Municipality had certified that the house could be tolerated under the 2001 Act ’ s transitional provisions (see paragraphs 10 above and 44 below).
19. On 20 October 2011 the Blagoevgrad Administrative Court dismissed the claim for judicial review. It found that the order had been issued in the proper form, with a proper description of the house, and in line with the relevant rules of procedure. The available evidence showed that there was no pending procedure to legalise the house. The house had been built on agricultural land belonging to the Garmen Municipality without a building permit or the requisite construction papers, and did not fall under any of the statutory clauses making those requirements less stringent with respect to certain classes of buildings. Nor did it fall within the ambit of the 2001 Act ’ s transitional provisions, as it was not tolerable under a relevant detailed zoning plan, as required under those provisions – no such plan existed with respect to the relevant area, which was agricultural land. The certificate issued by the Garmen Municipality confirming that the house was tolerable under those provisions could not preclude the court from determining that point for itself, and had no evidential value in proceedings for judicial review of a demolition order (see реш. № 1524 от 20.10.2011 г. по адм. д. № 652/2011 г., АдмС-Благоевград ).
20. Mr Stoyan Aydarov did not appeal against that judgment, and accordingly it became final on 11 November 2011.
21. The judgment was nearly identical to a series of judgments given by the Blagoevgrad Administrative Court between July and November 2011 in which it dismissed claims for judicial review of other orders to demolish other houses in the Kremikovtsi settlement (see paragraph 17 above, and реш. № 1154 от 18.07.2011 г. по адм. д. № 425/2011 г.; реш. № 1158 от 18.07.2011 г. по адм. д. № 416/2011 г.; реш. № 1171 от 19.07.2011 г. по адм. д. № 418/2011 г.; реш. № 1172 от 19.07.2011 г. по адм. д. № 478/2011 г.; реш. № 1214 от 26.07.2011 г. по адм. д. № 470/2011 г.; реш. № 1329 от 16.09.2011 г. по адм. д. № 540/2011 г.; реш. № 1330 от 16.09.2011 г. по адм. д. № 543/2011 г.; реш. № 1331 от 16.09.2011 г. по адм. д. № 552/2011 г.; реш. № 1332 от 16.09.2011 г. по адм. д. № 522/2011 г.; реш. № 1339 от 19.09.2011 г. по адм. д. № 479/2011 г.; реш. № 1344 от 20.09.2011 г. по адм. д. № 521/2011 г.; реш. № 1347 от 20.09.2011 г. по адм. д. № 379/2011 г.; реш. № 1379 от 28.09.2011 г. по адм. д. № 417/2011 г.; реш. № 1437 от 10.10.2011 г. по адм. д. № 590/2011 г.; реш. № 1461 от 12.10.2011 г. по адм. д. № 672/2011 г.; реш. № 1462 от 12.10.2011 г. по адм. д. № 654/2011 г.; реш. № 1478 от 14.10.2011 г. по адм. д. № 554/2011 г.; реш. № 1488 от 17.10.2011 г. по адм. д. № 539/2011 г.; реш. № 1491 от 17.10.2011 г. по адм. д. № 673/2011 г.; реш. № 1543 от 21.10.2011 г. по адм. д. № 377/2011 г.; реш. № 1585 от 27.10.2011 г. по адм. д. № 653/2011 г.; and реш. № 1718 от 11.11.2011 г. по адм. д. № 759/2011 г., АдмС-Благоевград ). In all but two of those judgments the court examined whether the houses were tolerable under the 2001 Act ’ s transitional provisions and found that they were not, because no urban zoning plan with respect to the area covered by the Kremikovtsi settlement, which was agricultural, had ever existed. It does not appear that any of those judgments was appealed against.
4. Proceedings to enforce the demolition orders and related judicial review proceedings
(a) Unfolding of the enforcement proceedings until July 2015
22. In December 2013 the National Building Control Directorate decided to stay the enforcement of the demolition orders relating to the Kremikovtsi settlement pending a solution to the housing problem of the people living there.
23. About a year and a half later, on 25 May 2015, Blagoevgrad ’ s regional governor wrote to the National Building Control Directorate and its regional office, enquiring about the steps taken to enforce the orders. He referred to a letter of 23 February 2015 written by the inhabitants of Marchevo in which they protested against the “brutal gypsy raids on the property of the villagers [and] the uncontrolled settlement of a large gypsy community” in Kremikovtsi.
24. It appears that the governor ’ s letter was triggered by an incident on 23 May 2015 in which a fight had erupted between a few Roma from the Kremikovtsi settlement and ethnic Bulgarians from Garmen. As a result of the incident, in the few days which followed police forces from the whole region had had to intervene and block the roads between the settlement and Garmen to prevent inter-ethnic clashes, and the Bulgarian inhabitants of Garmen had held several rallies, requesting the eviction of the Roma living in the settlement. The incident and the rallies had been widely reported by the national media.
25. In reply to the governor ’ s letter, the National Building Control Directorate asked the governor and Garmen ’ s mayor what steps, if any, had been taken to provide housing for the people concerned by the demolition orders, so that the enforcement of those orders could resume.
26. On 27 May 2015 the National Building Control Directorate ’ s regional office invited Mr Stoyan Aydarov and Mr Krasimir Iliev to comply with the demolition orders in their cases within fourteen days of receiving notice to do so, and advised them that failure to do so would prompt it to enforce the orders at their expense.
27. On 23 June 2015 the National Building Control Directorate, having noted that the orders had not been complied with, retained a private company to demolish the houses in which the applicant families lived between 13 and 24 July 2015.
28. In a letter of 6 July 2015 the Social Protection Agency informed the Blagoevgrad Building Control Directorate that children with disabilities lived in both houses.
29. In a letter of 16 July 2015 to all other authorities concerned by the case, the National Building Control Directorate noted, inter alia, that the houses in the Kremikovtsi settlement whose demolition had been ordered were buildings which were unsafe and had no sanitation facilities, and so put at risk the life and health of those living in them, especially the young children.
(b) First set of proceedings for judicial review of the enforcement of the demolition orders
30. Meanwhile, on 8 July 2015 Mr Stoyan Aydarov and Mr Krasimir Iliev had sought judicial review of the enforcement of the orders. They argued, inter alia, that enforcement would be in breach of Articles 3 and 8 of the Convention because the houses liable to be demolished were their and their families ’ only homes, and their families included children who were minors, some of whom were disabled. They also argued that enforcement would run counter to the principle of proportionality, enshrined in Article 6 of the Code of Administrative Procedure 2006 as a general rule of Bulgarian administrative procedure. They requested that enforcement be stayed by way of interim measures pending the examination of their claims on the merits.
31. On 10 July 2015 the Blagoevgrad Administrative Court found that the claims for judicial review were out of time. Since, under Bulgarian law, a claim that an administrative decision or action is null and void is not limited by time, the court nevertheless examined the fundamental validity of the steps taken to enforce the demolition orders, and concluded that they were not null and void. Lastly, the court held that the applications for interim measures could only be entertained if they had been made alongside admissible claims for judicial review, which was not the case. Therefore, they could not be allowed (see реш. № 1124 от 10.07.2015 г. по адм. д. № 535/2015 г., and реш. № 1125 от 10.07.2015 г. по адм. д. № 536/ 2015 г., АдмС-Благоевград).
32. Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. On 13 and 21 October 2015 the Supreme Administrative Court held that, in so far as the appeals concerned the refusals to impose interim measures, they were inadmissible, because no appeal lay against such rulings. The rulings that the enforcement measures were not null and void were final as well. However, the rulings that the claims for judicial review were out of time were open to appeal and had been tainted by a procedural irregularity, because, when making the rulings, the lower court had sat in three-judge rather than single-judge formations. Accordingly, the Supreme Administrative Court remitted those parts of the cases (see опр. № 10577 от 13.10.2015 г. по адм. д. № 10005/2015 г., ВАС, II о., and опр. № 10968 от 21.10.2015 г. по адм. д. № 11571/2015 г., ВАС, II о. ).
33. On 8 and 9 December 2015 the Blagoevgrad Administrative Court, this time sitting in single-judge formations, again found that the claims for judicial review were out of time (see опр. № 1924 от 08.12.2015 г. по адм. д. № 862/2015 г., and опр. № 1928 от 09.12.2015 г. по адм. д. № 861/2015 г., АдмС-Благоевград ).
34. Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. On 25 February 2016 the Supreme Administrative Court upheld the lower court ’ s decision in the case of Mr Krasimir Iliev (see опр. № 2188 от 25.02.2015 г. по адм. д. № 1313/2016 г., ВАС, II о. ), but on 18 March 2016 quashed the lower court ’ s decision in the case of Mr Stoyan Aydarov, holding that he had not been duly notified of the enforcement, as his address had not been correctly set out in the letter informing him of it (see опр. № 3098 от 18.03.2015 г. по адм. д. № 2796/2016 г., ВАС, II о. ).
35. Following the remittal, the Blagoevgrad Administrative Court dismissed Mr Stoyan Aydarov ’ s claim on the merits in a judgment of 24 March 2016. It held, inter alia, that the principle of proportionality did not apply to the removal of an unlawful building, unless the demolition order only concerned a part of it, and that it was immaterial how many people lived in the building. Demolition did not amount to inhuman or degrading treatment or to an unjustified interference with the right to respect for one ’ s home. People who did not have a home could rent a dwelling or build one in a lawful way. No one could derive rights from his or her own unlawful conduct (see реш. № 441 от 24.03.2016 г. по адм. д. № 861/2015 г., АдмС-Благоевград ). That judgment was not amenable to appeal (see paragraph 41 below).
(c) Intervening developments
36. Meanwhile, on 13 July 2015, citing a request by the applicants for the indication of interim measures under Rule 39 of the Rules of Court and a request for information sent by this Court in connection with this request, the National Building Control Directorate decided to adjourn enforcement of the two demolition orders until the end of July 2015.
(d) Second set of proceedings for judicial review of the enforcement of the demolition orders
37. On 20 July 2015 Mr Stoyan Aydarov and Mr Krasimir Iliev sought judicial review of the letters informing them of that adjournment. On 22 July 2015 the Blagoevgrad Administrative Court found that the letters did not amount to an enforcement measure amenable to judicial review, and declared the claims inadmissible (see опр. № 1234 от 22.07.2015 г. по адм. д. № 560/2015 г., and опр. № 1238 от 22.07.2015 г. по адм. д. № 559/2015 г., АдмС-Благоевград ). Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. On 15 and 16 October 2015 the Supreme Administrative Court quashed those decisions and remitted the cases, as it found that the lower court had, in breach of the rules of procedure, sat in a three-judge formation, whereas it should have sat in a single-judge one (see опр. № 10735 от 15.10.2015 г. по адм. д. № 11498/2015 г., ВАС, II о., and опр. № 10797 от 16.10.2015 г. по адм. д. № 11497/2015 г., ВАС, II о. ). The Blagoevgrad Administrative Court, this time sitting in single-judge formations, again held that the letters did not amount to an enforcement measure amenable to judicial review (see опр. № 1541 от 20.10.2015 г., по адм. д. № 760/2015 г., and опр. № 1560 от 22.10.2015 г. по адм. д. № 769/2015 г., АдмС-Благоевград ). Its decisions were upheld by the Supreme Administrative Court on 1 and 3 February 2016 (see опр. № 1004 от 01.02.2016 г. по адм. д. № 14276/2015 г., ВАС, II о., and опр. № 1099 от 03.02.2016 г. по адм. д. № 14261/2015 г., ВАС, II о. ).
(e) Intervening and subsequent developments in the applicants ’ cases
38. In the meantime, the building control authorities had adjourned enforcement of the two demolition orders until the end of August 2015, and then until the end of October 2015, on the basis that no alternative accommodation had been found for the applicants.
39. However, on 7 September 2015 the house in which the Aydarovi family lived was demolished. The Aydarovi family submitted that they had been informed of the demolition just minutes before it had taken place, and that after that they had spent several nights out in the open, until they had been accommodated in the house of Ms Aydarova ’ s mother. They did not provide further particulars. From the documents in the case file it is clear that, at the time of the demolition, the family ’ s youngest child, who is not an applicant in these proceedings, was seventeen days old (see paragraph 5 above).
40. According to a register available on the National Building Control Directorate ’ s website on 24 September 2018, the order to demolish the house in which the Ilievi family live has not yet been carried out, the matter having been formally adjourned until the end of March 2018. Its enforcement had previously been adjourned until the end of November 2015, then the end of January, April, June and September 2016, and then the end of January, May, June, July, August and October 2017.
B. Relevant domestic law and practice
1. Unlawful buildings and their demolition
41. The Court ’ s judgment in Ivanova and Cherkezov v. Bulgaria (no. 46577/15, §§ 25-27 and 33-40, 21 April 2016) set out the provisions of the Territorial Organisation Act 2001 and the 2006 Code of Administrative Procedure and the case-law of the administrative courts relating to the demolition of unlawful buildings and legal challenges against building control authorities ’ orders to that effect by way of (a) claims for judicial review of the demolition orders themselves; (b) claims under Article 294 of the Code for judicial review of the enforcement of the orders (which are examined at one level of court only – Article 298 § 4 of the Code); and (c) claims under Article 292 of the Code for a judicial declaration that enforcement should not proceed owing to newly emerged facts.
42. An examination of the Supreme Administrative Court ’ s case-law since that judgment shows that that court has fully adhered to its position that the building control authorities have no discretion in relation to the removal of unlawful buildings; that the only course of action open to them in such cases is to order their demolition; and that, in such cases, those authorities are not bound by the general requirement of proportionality laid down in Article 6 of the 2006 Code, because it only applies when the relevant authority has a discretion (see the following judgments given in proceedings for judicial review of demolition orders: реш. № 5103 от 27.04.2016 г. по адм. д. № 8537/2015 г., ВАС, II о.; реш. № 8956 от 18.07.2016 г. по адм. д. № 3380/2016 г., ВАС, II о.; and реш. № 8713 от 05.07.2017 г. по адм. д. № 773/2017 г., ВАС, II о., and the following judgments given in proceedings for a judicial declaration under Article 292 of the 2006 Code: реш. № 7893 от 29.06.2016 г. по адм. д. № 14264/ 2015 г., ВАС, II о., and реш. № 12463 от 16.11.2016 г. по адм. д. № 4802/2016 г., ВАС, II о. ).
43. By contrast, contrary to its earlier rulings under Article 294 of the 2006 Code (see реш. № 1791 от 20.11.2015 г. по адм. д. № 869/2015 г., АдмС-Благоевград ), in a recent case the Blagoevgrad Administrative Court examined, for the first time, the proportionality of the intended demolition of a house by reference to Article 8 of the Convention, as construed in Yordanova and Others v. Bulgaria (no. 25446/06, 24 April 2012) and Ivanova and Cherkezov (cited above), and in view of the individual circumstances of the woman living in the house. The court found, inter alia, that the building control authorities had not duly elucidated whether the house was her only home, even though she had expressly made that point in the course of the proceedings to enforce the demolition order, and had not properly assessed whether the measure would be proportionate in the light of that fact. The court therefore annulled the steps taken to enforce the order and referred the case back to the building control authorities (see реш. № 1072 от 30.06.2017 г. на по адм. д. № 316/2017 г., АдмС-Благоевград ). A few similar decisions have recently been given in such proceedings by other first-instance administrative courts (see реш. № 72 от 05.10.2015 г. по адм. д. № 47/2015 г., АдмС-Силистра; реш. № 52 от 02.03.2016 г. по адм. д. № 42/2016 г., АдмС-Добрич; реш. № 335 от 29.08.2017 г. по адм. д. № 485/2017 г., АдмС-Добрич; реш. № 502 от 27.10.2017 г. по адм. д. № 271/2016 г., АдмС-Пазарджик; and реш. № 467 от 24.11.2017 г. по адм. д. № 34/2017 г., АдмС-Добрич ).
2. The possibility of not demolishing unlawful buildings erected before the end of March 2001
44. The Court ’ s judgment in Ivanova and Cherkezov (cited above, §§ 28-29 ) also set out paragraph 16(1)-(3) of the transitional provisions of the 2001 Act and paragraph 127(1) of a 2012 Act for its amendment – according to which buildings erected before end of March 2001 without construction papers are not liable to be demolished if they were tolerable under the zoning plans and building regulations in force at the time of their construction, or under the corresponding plans and regulations issued under the 2001 Act.
45. Here, it should be added that by paragraph 16(1) in fine of the 2001 Act ’ s transitional provisions and paragraph 127(1) in fine of the 2012 Act ’ s transitional provisions, such buildings may be conveyed to others on the basis of certificates issued by municipalities ’ chief architects confirming that the buildings can be tolerated.
46. In accordance with the Supreme Administrative Court ’ s established case-law, those certificates do not legalise the buildings; their sole purpose is to permit the buildings ’ notarised conveyance. Nor do the certificates bind the building control authorities when they seek to determine whether a building is unlawful and as such liable to be demolished, or the courts reviewing their orders. In such proceedings, the building control authorities and the courts must ascertain a building ’ s legality for themselves (see реш. № 12649 от 18.12.2006 г. по адм. д. № 8560/2006 г., ВАС, II о.; реш. № 3440 от 25.03.2008 г. по адм. д. № 415/2008 г., ВАС, II о.; реш. № 2122 от 16.02.2009 г. по адм. д. № 13312/2008 г., ВАС, II о.; реш. № 13141 от 05.11.2010 г. по адм. д. № 9816/2010 г., ВАС, петчл. с-в; реш. № 466 от 10.01.2012 г. по адм. д. № 12702/2011 г., ВАС, II о.; реш. № 11348 от 09.08.2013 г. по адм. д. № 5892/2013 г., ВАС, II о.; реш. № 6287 от 12.05.2014 г. по адм. д. № 10208/2013 г., ВАС, II о.; реш. № 4949 от 04.05.2015 г. по адм. д. № 2346/2015, ВАС, II о.; реш. № 6537 от 02.06.2016 г. по адм. д. № 12664/2015 г., ВАС, II о.; and реш. № 7677 от 19.06.2017 г. по адм. д. № 11244/2016 г., ВАС, II о. ).
3. Protection against discrimination
47. The Protection Against Discrimination Act was enacted in 2003 and came into force on 1 January 2004. It prohibits, in section 4(1), any direct or indirect discrimination on the basis of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other grounds established by law or by an international treaty to which Bulgaria is party. In paragraph 1(6) of its additional provisions, the Act also defines racial segregation, and provides, in section 5, that it is a form of discrimination.
48. The authority responsible for ensuring compliance with the Act is the Commission for Protection Against Discrimination (section 40). It can act of its own motion or pursuant to complaints by those concerned (section 50). If the Commission finds a breach of the Act, it can order that it be averted or brought to an end, or that the status quo ante be restored (section 47(2)). It can also impose sanctions or order coercive measures, or give compulsory directions (section 47 (3) and (4)). The Commission ’ s decisions are subject to judicial review (section 68(1)).
49. People who have obtained a favourable decision by the Commission and wish to obtain compensation for damage suffered as a result of the breach established by the Commission can bring a claim for damages against the people or authorities that have caused the damage (section 74(1)). If the damage stems from unlawful decisions, actions or omissions of public authorities or officials, the claim must be brought under the State and Municipalities Liability for Damage Act 1988 (section 74(2)).
50. Alternatively, those complaining of discrimination can directly bring court proceedings and seek declaratory or injunctive relief or an award of damages (section 71(1)). The claim can be brought on behalf of the aggrieved party by a non-governmental organisation (section 71(2)). If the alleged discrimination affects many people, the non-governmental organisation can even bring the claim in its own name, in which case those directly affected can join the proceedings as third parties (section 71(3)).
51. Claims for damages under section 71(1) directed against public authorities or officials fall under the jurisdiction of the administrative courts (see тълк. п. № 2 от 19.05.2015 г. по тълк. д. № 2/2014 г., ОСС на ГК от ВКС и ОСС на I и II к. на ВАС, т. 4 ).

5.The applicants were born in 1979 and 1978 respectively and live in Tikhoretsk, Krasnodar region.
A.The applicants’ arrest and alleged ill-treatment
6.On 3 January 2005 a young woman (S.) was found near a block of flats in Tikhoretsk with serious head injuries from which she died in a hospital on the following day. Criminal proceedings were initiated and an investigation was conducted firstly by Sh. and later, from 23January 2005, O. – both investigators with the Tikhoretsk inter-district prosecutor’s office (“the inter-district prosecutor’s office”). Operational and search activities in the case were conducted by the criminal investigation unit of the Tikhoretsk Town and District Police Department (ОУР УВД города Тихорецка и Тихорецкого района, “the Tikhoretsk Police Department”) – in particular by three police officers, Ch., K. and R. Those officers established that B. could have been involved in the crime. On 20January 2005 B. was arrested and gave a statement incriminating the first applicant.
1.The first applicant (MrGolubyatnikov)
7.On 21 January 2005 Ch., K. and R. arrested the first applicant in the presence of witnesses and took him to the Tikhoretsk Police Department, where they interviewed him. The applicant denied his involvement in the crime.
8.The applicant’s account of events at the police station is as follows. Officers Ch., K. and R. demanded that he confess to the crime. He refused. They knocked him down, punched and kicked him, beat him with a rubber truncheon, and put a gas mask over his head, blocking his access to air.
9.At 9 p.m. on 21 January 2005 Sh., the investigator, drew up a record of the applicant’s arrest as a suspect.
10.The applicant was taken to the temporary detention facility (IVS) at the Tikhoretsk Police Department. At 10.30 p.m. the IVS officer called an ambulance.
11.The ambulance doctor examined the applicant and recorded multiple haematomas on his chest and back, sharp pain upon palpation in the area of sternum, and the applicant’s complaints about pain in the chest and stomach, weakness and difficulty breathing. The applicant was diagnosed with a fracture of the ribs, multiple contusions and traumatic shock. The doctor noted the applicant’s explanation that he had been beaten up and assessed his condition as grave.
12.At 11.30 p.m. the applicant was brought to Tikhoretsk town hospital for an X‑ray examination. He was examined by a surgeon and by a traumatologist, who diagnosed him with a fracture of the ribs on the left‑hand side. The applicant was taken back to the IVS.
13.On 22 January 2005 the applicant was examined by Sh. – in the presence of an officially assigned lawyer – as a suspect. He denied having been involved in the crime. According to the applicant, he complained to the investigator that the police officers had subjected him to violence in order to coerce him into giving a confession but that he had received no response.
14.On 23 January 2005 the Tikhoretsk Town Court ordered that the applicant be detained on remand.
15.On 31 January 2005 the applicant was charged with causing grievous bodily harm to S. leading to her death. During his examination as an accused on that day and on 20 May 2005 the applicant denied his involvement in the crime and refused to give a statement, citing his right not to incriminate himself.
16.On 25 March 2005 the applicant’s mother lodged a complaint with the inter-district prosecutor’s office submitting that the applicant had been subjected to violence by police officers from the Tikhoretsk Police Department and seeking the institution of criminal proceedings against those officers. On 18 April 2005 O., the investigator, replied that during his examinations as a suspect and as an accused the applicant had not complained that he had been subjected to ill-treatment by police officers. In May 2005 the applicant’s mother complained to the Krasnodar regional prosecutor’s office (“the regional prosecutor’s office) that O. had used unlawful investigation methods.
17.The applicant’s lawyer in a record dated 25 May 2005 noting his being granted access to the case file, stated, inter alia, that the applicant’s involvement in the crime had not been proven as the prosecution case had been based, inter alia, on the second applicant’s confession, which he had subsequently retracted as having been given under coercion.
18.According to an expert opinion of 5 May 2010 (ordered in the course of an inquiry into the applicant’s alleged ill-treatment by the police and prepared by a commission of forensic medical experts from the Krasnodar regional forensic medical examination bureau and a traumatologist), multiple haematomas on the applicant’s chest and back recorded by the ambulance doctor on 21 January 2005 had been caused by multiple blows from a blunt object. Due to the brevity of the description of the haematomas in the medical records it was impossible to establish the time of their infliction. The experts further concluded that the applicant had sustained fractures to two ribs on the left-hand side, which could have been caused by a blunt object on 21January 2005 in the circumstances described by the applicant – for example as a result of the applicant being punched, kicked or hit with a rubber truncheon. Those fractures, complicated by traumatic shock, gave rise to a long-term health disorder for a period exceeding 21days and were classified as harm to health of medium gravity.
2.The second applicant (Mr Zhuchkov)
19.According to the second applicant, at around 8 a.m. on 26 January 2005 police officers K. and R. arrested him at his place of work in his colleagues’ presence and took him to the Tikhoretsk Police Department.
20.The applicant’s account of events at the police station is as follows. K., R. and another police officer demanded that he confess to having inflicted bodily injuries on S. He refused and was then beaten with a rubber truncheon. A gas mask was put over his head and his access to air was blocked. Thereafter the police officers handcuffed him to a ladder at the police station. The applicant spent the night at the police station. The following morning K. and R. started beating him again, demanding that he give a statement of surrender and confession (явка с повинной) and telling him that V. ( another suspect in the case) had already given a statement of surrender and confession incriminating the first applicant and the second applicant, together with B., and himself (that is to say V.) in inflicting head injuries on S. The applicant could not stand the violence any longer and so wrote a statement of surrender and confession that was dictated by the police officers, stating that he and the first applicant, as well as B. and V., had inflicted head injuries on S.
21.His statement of surrender and confession (явка с повинной) was recorded by K. at 1p.m. on 27 January 2005.
22.At 2.30 p.m. on 27 January 2005 O., the investigator, drew up a record of the applicant’s arrest as a suspect. O. stated in the record that the applicant had been arrested at 2.30 p.m. that day.
23.According to the records of the Tikhoretsk Police Department IVS, in which the applicant was placed on the same day, the applicant did not complain about his health. According to the applicant, at the IVS he was not asked about his state of health and did not undergo any medical examination.
24.On 28 January 2005 the applicant was taken to O. According to the applicant, O. threatened him with further violence by police officers if he refused to repeat his confession. The applicant was examined as a suspect by O. in the presence of an officially assigned lawyer, D. The applicant reiterated his confession incriminating himself, the first applicant, B. and V. in the infliction of head injuries on S. On the same day the Tikhoretsk Town Court ordered that the applicant be detained on remand.
25.On 1 February 2005 from 2.30 p.m. to 4.05 p.m. O. carried out an on-site verification of the applicant’s statements in the presence of D. and the applicant. According to the applicant, he had been told by the police officers “what to show [them] and where”. The applicant again reiterated his confession. These investigative steps were recorded on video.
26.According to the applicant’s mother, who was present during the verification of the applicant’s statements at the crime scene on 1 February 2005, there was a bruise on the applicant’s face and he was limping. His limp was also visible on the video recording, which was shown on a local television channel.
27.On 2 February 2005 the applicant was taken by Kl., a police officer, to his grandparents from whom the applicant requested a sum of money. According to the applicant and his grandmother, when left alone with her, he explained that he had been beaten up by the police officers, that he had confessed to committing a crime out of fear for his life, and that he needed money in order to evade prosecution. His grandmother saw that he was limping and had a bruise on his face. His grandparents gave him the money.
28.On 3 February 2005 the applicant was informed that his mother had retained D., a lawyer, to defend him during the criminal proceedings against him. During their meeting on the same day the applicant told D. that he had given the confession as a result of his having been beaten up by the police officers. During his examination as an accused on the same day he pleaded not guilty and refused to testify, citing his right not to incriminate himself.
29.On 7 February 2005 the applicant’s mother lodged a complaint with the inter-district prosecutor’s office, submitting that over a twenty-four hour period the applicant had been held in police custody and beaten by police officers until he had given a confession.
30.On 15 February 2005 lawyer D. lodged a complaint with the inter‑district prosecutor’s office, submitting that the applicant had been beaten up by police officers and that, as a result, he had given a confession (recorded as a statement of surrender and confession), which was repeated during his examination as a suspect and during the on-site verification of his statements, and that money (given to him by his grandparents) had been extorted from him by the police officers.
31.On 17 March 2005 the applicant lodged a complaint with a prosecutor at the inter-district prosecutor’s office, submitting that he had been unlawfully detained and subjected to violence by police officers from the Tikhoretsk Police Department and had thus been coerced into giving a confession. On the same day he lodged a similar complaint with the investigator in charge of his criminal case, asking to be further examined as an accused.
32.On 25 March 2005 the applicant’s mother lodged another complaint with the inter-district prosecutor’s office, submitting that the applicant had been beaten up by police officers from the Tikhoretsk Police Department.
33.On 30 March 2005 the applicant’s mother once again lodged a complaint with the inter-district prosecutor’s office, submitting that after his arrest on 26January 2005 the applicant had been threatened and beaten during the night until he had confessed to a crime that he had not committed.
34.On 18 April 2005 D., the lawyer, complained to the inter-district prosecutor’s office that his and the applicant’s complaints had remained unanswered.
35.In a letter of the same date O., the investigator, replied to the applicant’s mother’s complaint dated 25 March 2005 that during his examinations as a suspect and as an accused in the presence of a lawyer the applicant had not complained that he had been subjected to ill-treatment by police officers. O. concluded that he had given his statements voluntarily.
36.On 26 April 2005 the applicant repeated his request to the investigator in charge of his criminal case that he be further examined as an accused, stating that he had not received any reply to his complaint of 17March 2005 (see paragraph 31 above).
37.On 3 May 2005 the applicant’s mother lodged a complaint with the regional prosecutor’s office, expressing her disagreement with the statement in investigator O.’s letter of 18 April 2005 that the applicant had not complained about his alleged ill-treatment by police officers. She noted that her complaints about the applicant’s alleged beating by the police – as well as similar complaints lodged by the applicant and his lawyer, D. – had remained unanswered, and that O. had failed to examine (in accordance with the law) the applicant’s complaints.
38.During his examination as an accused on 16 May 2005 the applicant retracted his confession statements, asserting that they had been made under coercion exerted by police officers, and pleaded not guilty.
39.The applicant’s lawyer, D., stated in a record dated 23 May 2005 noting his being granted access to the case file that in the course of the preliminary investigation the applicant and D. had repeatedly complained that the applicant had been beaten on 26 and 27January 2005 by police officers from the Tikhoretsk Police Department, as a result of which he had given a statement of surrender and confession incriminating himself and his co‑accused. They had not received any reply to their complaints and to requests lodged by them for an inquiry and confrontations to be held.
B.Refusals to institute criminal proceedings in respect of the applicants’ alleged ill-treatment; the applicants’ trial
1.Refusal of 2 June 2005
40.On 2June2005 an investigator from the regional prosecutor’s office refused to institute criminal proceedings against O. for lack of evidence of a criminal event in his actions. The decision referred to the official records of the investigative activities undertaken and statements made by O., K. and R., which denied any ill-treatment of the applicants. In particular, O. stated that neither he nor the officers of the Tikhoretsk Police Department had used any unlawful physical or psychological measures in relation to the applicants, and that accordingly, no pre-investigation inquiry had been carried out. The decision of 2 June 2005 concluded that the applicants had been arrested, examined as suspects, detained on remand in custody and charged, in accordance with the law.
41.On 29 June 2005 at the preliminary hearing in the applicants’ criminal case the second applicant requested that his statement of surrender and confession of 27 January 2005, the record of his examination as a suspect of 28January 2005 and the record of the on-site verification of his statements of 1 February 2005 be excluded from evidence on the grounds that his confession had been obtained through the use of physical violence by police officers who had unlawfully kept him in custody for twenty-four hours before his official arrest.The Tikhoretsk Town Court dismissed his request as premature and unfounded, stating that no such request had been lodged during the preliminary investigation in the case.
42.On 30 June 2005 the second applicant’s mother lodged a complaint with the Town Court, submitting that the applicant had been unlawfully detained by the police officers for about twenty-four hours between his actual arrest at his place of work at about 7.45 a.m. on 26 January 2005 and his formal arrest on 27 January 2005. During that time Ch., K. and R. had subjected him to physical and psychological pressure, as a result of which he had made a confession in relation to a crime that he had not in fact committed. She requested that the police officers be prosecuted and that evidence be examined in support of her complaints.
43.On 6 July 2005 the Town Court dismissed the complaint of 30 June 2005 lodged by the second applicant’s mother on the grounds that she had not been authorised to represent the applicant, who was not a minor, and that it was no longer possible to complain under Article 125 of the Code of Criminal Procedure (“CCrP”) about the police officers’ actions in respect of the preliminary investigation since the preliminary investigation in the case had been completed and the trial had started. On 11 July 2005 the second applicant lodged a complaint (similar to that lodged by his mother on 30June 2005) with the Town Court.
44.On 14 July 2005 the Town Court heard a certain St., who had allegedly shared a cell with the second applicant in March 2005 at the Tikhoretsk Police Department IVS. St. stated that he had been told by the second applicant that he (that is to say the second applicant) had committed a crime [against S.] together with other people but had decided to deny it and to argue that his statements had been obtained under coercion. St. stated that he knew that no pressure had actually been exerted on the applicant. St.did not remember whether there had been other people present when the applicant had told him this.
45.On the same day the Town Court heard the applicants and their co‑accused. All four defendants complained that they had been subjected to ill‑treatment by police officers. The first applicant argued, inter alia, that the second applicant’s confession incriminating him of having murdered S. had been obtained as a result of the second applicant’s ill-treatment by the police officers and therefore constituted inadmissible evidence. The second applicant reiterated the arguments that he had advanced at the preliminary hearing – namely, that he had actually been arrested on 26January 2005 and held continuously in police custody, where he had been subjected to violence until he had given a confession. He also stated that when he had been brought to O., the investigator, for questioning on 28 January 2005, he had complained about the above-mentioned ill-treatment; O. had replied that if he did not reiterate his statements he would spend another night with the police officers. The applicant furthermore stated that the police officers had visited him every day and had threatened him; his family had been unaware of his whereabouts; he had given confession statements out of fear for his life; and he had not in fact committed the crime in question. The Town Court ordered that the hearing be adjourned and an inquiry into the applicants’ and their co-defendants’ allegations be carried out by the inter-district prosecutor’s office before the next hearing on 26July 2005.
46.On 22 July 2005 the Town Court dismissed the second applicant’s complaint of 11 July 2005 (see paragraph 43 above) on the grounds that it was no longer open to him to complain under Article 125 of the CCrP about the police officers’ actions during the preliminary investigation in respect of his case, since the preliminary investigation had been completed and the trial had started.
2.Refusal of 23 July 2005
47.On 23 July 2005 an investigator from the inter-district prosecutor’s office issued a refusal (pursuant to Article24§1(1) of the CCrP) to open a criminal case for absence of a criminal event under Articles 286 (abuse of powers) and 302 (forced extraction of confession) of the Criminal Code. The investigator relied on statements given by the investigators, O. and Sh., and the police officers, K. and R., all of whom had denied the applicants’ allegations of ill‑treatment. O. also stated that no forensic medical expert examination had been carried out in relation to the applicants since no complaints concerning their state of health or the police officers’ actions had been lodged by them. K. and R. stated that on 21 January 2005 they had established the first applicant’s whereabouts, taken him to the Tikhoretsk Police Department and interviewed him. He had denied his involvement in the crime. He had later been arrested by Sh. The investigator also relied on statements given by K., R. and V.V., a police officer who had been on duty at the IVS, according to which during the first applicant’s arrest and at his arrival at the IVS, respectively, they had heard him saying that he was suffering from a pain in the chest sustained during a fight with someone two days previously.
48.On 28 July 2005 at a hearing in the trial concerning the applicants’ criminal case, M.S., a senior assistant to the prosecutor of the inter-district prosecutor’s office who was representing the prosecution at the hearing, reported the results of the pre‑investigation inquiry, stating that the applicants’ allegations of ill‑treatment by the police officers had not been confirmed. The applicants and their co-defendants objected, considering the inquiry to have been superficial and to have constituted a pure formality. The second applicant requested that an additional inquiry be carried out, since his complaints about extortion by the police officers who had taken him to his grandparents on 2February 2005, had remained unaddressed. The court ordered that an additional inquiry be carried out before the next hearing on 2 August 2005.
3.Refusal of 1 August 2005
49.On 1 August 2005 an investigator from the inter-district prosecutor’s office issued a decision not to institute criminal proceedings for lack of evidence of a criminal event. He relied on the statements given by Kl., the police officer, that he had taken the second applicant out of the IVS on 2February 2005 in order to verify his suspected involvement in some thefts; and by taking the applicant to his grandparents he had done him a favour (see paragraph 27 above). The investigator concluded that Kl.’s actions had had no connection with the second applicant’s alleged coercion into making a confession concerning S.’s death.
4.The request for the exclusion of the second applicant’s confession from evidence
50.On 2 August 2005 the Town Court examined the results of the additional inquiry, which had been communicated to it by M.S. The applicants considered that inquiry to have been superficial and formalistic. At their request the Town Court examined witnesses. Two witnesses, in whose company the first applicant had spent time immediately before his arrest, stated that the first applicant’s state of health before his arrest had been normal. It also examined G., the second applicant’s colleague, who stated that at about 7.50 a.m. on 26January 2005 the applicant had left his place of work at the request of two persons who, as he had learned later during the day, had been from the police.
51.In a decision of 2 August 2005 the Town Court dismissed the request for the exclusion from the evidence of the record of the second applicant’s examination as a suspect of 28January 2005 and the record of the on-site verification of his statements of 1February 2005 (see paragraph41 above). Relying on the refusals of 23 July and 1 August 2005 by the inter-district prosecutor’s office to institute criminal proceedings and the official record dated 27 January 2005 of the second applicant’s arrest (which indicated that the applicant had been arrested at 2.30 p.m. on 27January 2005), the Town Court found that his allegations of police ill‑treatment and unlawful detention had not been based on real facts. As regards the record of the second applicant’s statement of surrender and confession of 27January 2005, the Town Court excluded it from evidence on the grounds that it had been obtained in the absence of a lawyer.
5.The applicants’ conviction
52.On 5 August 2005 the Tikhoretsk Town Court convicted the applicants, who had pleaded not guilty, of causing grievous bodily harm to S. leading to her death and sentenced the first applicant to twelve years’ imprisonment and the second applicant to nine years’ imprisonment. Relying on the refusals to institute criminal proceedings issued by the inter‑district prosecutor’s office and the regional prosecutor’s office, the Town Court dismissed their allegations of ill-treatment by the police as unfounded. The evidence presented in the case included the record dated 28January 2005 of the second applicant’s examination as a suspect and the record of the on-site verification of his statements of 1February 2005 (see paragraph 51 above), as well as the confession statements given by B. and V. during the preliminary investigation and subsequently retracted by them as having been given under coercion exerted by Tikhoretsk Police Department officers. The applicants appealed against that judgment, reiterating their arguments that they had been subjected to violence by the police officers and that the second applicant’s confession incriminating them should have been excluded from evidence as having been given under duress.
53.On 29 March 2006 the Krasnodar Regional Court upheld the judgment on appeal, endorsing the trial court’s decision to dismiss the applicants’ arguments concerning their alleged ill-treatment and the request for the exclusion of the second applicant’s incriminating statements allegedly obtained under coercion exercised by the police officers. It referred to the refusals issued by the inter-district prosecutor’s office and the regional prosecutor’s office to institute criminal proceedings into the applicants’ allegations.
54.The applicants lodged applications for supervisory review in respect of their case, which were dismissed on 9 June 2006 by the Krasnodar Regional Court and on 17September 2007 by the Supreme Court of the Russian Federation.
55.On 31 May 2011 the Promyshlenniy District Court of Stavropol reduced the first applicant’s sentence of imprisonment by two months, in accordance with the amendments to the Criminal Code. The applicants’ sentences of imprisonment ended and the applicants were released in 2014 (the second applicant) and 2016 (the first applicant).
C.Annulments of the refusals to institute criminal proceedings in respect of the applicants’ alleged ill-treatment by the police, and further developments
1.Annulment of the refusal of 2 June 2005
56.On 6 February 2007 a deputy prosecutor of the regional prosecutor’s office annulled the decision of 2 June 2005 refusing to open a criminal case against O., the investigator. A new refusal was issued on 8 February 2007 and was declared unlawful on 20November 2007 by the Oktyabrskiy District Court of Krasnodar. A further refusal dated 9 January 2008 pointed out that the allegations of the applicants’ ill-treatment by the police had been the subject of a different inquiry, which was pending. On 6 August 2008 the Krasnodar Regional Court terminated proceedings initiated by the applicants’ mothers to appeal against the refusal of 9 January 2008 on the grounds that it was no longer open to them to complain under Article 125 of the CCrP about the investigator’s actions during the preliminary investigation in respect of the applicants’ case, since the preliminary investigation had been completed. The Regional Court noted that should the unlawfulness of actions on the part of O. or the police officers from the Tikhoretsk Police Department be established during the investigation in the criminal case opened on 5 March 2008 (see paragraph 60 below), the decisions not to open criminal cases against them would be annulled and the proceedings in the criminal case against the applicants would be reopened owing to newly discovered circumstances.
2.Annulment of the refusals of 23 July and 1 August 2005
57.Following the numerous complaints lodged by the applicants, on 22March 2007 a deputy prosecutor from the inter-district prosecutor’s office annulled as unlawful and based on an incomplete inquiry the refusals of 23July 2005 and 1 August 2005 to institute criminal proceedings, and ordered an additional inquiry. Eight further decisions taken by investigators refusing to open a criminal case between 27March 2007 and 6 January 2008 were annulled on the grounds that they were unlawful and had been based on an incomplete inquiry.Some of the annulments followed the delivery of court decisions under Article 125 of the CCrP finding refusals to institute criminal proceedings unlawful and unfounded (namely, the Town Court’s decisions of 15 October 2007, 27December 2007 and 29 January 2008) – particularly in view of the investigating authority’s failure to correct certain deficiencies (highlighted by courts and the supervising authorities) in the inquiry in question.
58.One of those eight decisions not to institute criminal proceedings, dated 23 May 2007, referred to the following statements collected by an investigator during the inquiry:
-According to V.Yu., the second applicant’s colleague, shortly after 8a.m. on 26January 2005 the second applicant had left his place of work at the request of two men. They had all left by car. Before leaving, the applicant had had no visible injuries and had not complained about his health. Those men had enquired about the applicant’s whereabouts the day before.
-The second applicant’s mother stated that she had seen the second applicant during the verification of his statements at the crime scene on 1February 2005. He had had a bruise on his face and had been limping.
-According to the second applicant’s grandmother, on 2February 2005 two police officers had brought the applicant to her place. He had been handcuffed. He had said that he needed money. When left alone with her, he had explained that he had been beaten unconscious and threatened by the police officers as a result of which he had signed a document at their request. He had had a bruise on the face and had been limping. His grandfather had given him the money he asked for.
-According to D., he – as one of the lawyers on duty – had been officially assigned to defend the second applicant during the applicant’s examination as a suspect and during the verification of his statements at the crime scene. D. had not noticed any injuries on the applicant. After those investigative activities he had concluded an agreement with the applicant’s mother to defend the applicant during the criminal proceedings against him. At their next meeting he had informed the applicant about the agreement concluded with his mother, and the applicant had told him that he had not committed the crime and had given statements incriminating himself and the first applicant as a result of coercion exercised by the police officers, who had threatened him and beaten him up. At the applicant’s request D. had lodged complaints concerning his alleged ill‑treatment by the police. The applicant had not shown D. any injuries.
59.The following statements were also received during the inquiry:
-According to the second applicant’s mother, the second applicant had been arrested by K. and R., the police officers, at his place of work at 7.45a.m. on 26January 2005 in the presence of a team of co-workers, including V.Yu., G. and three others. K. and R. had visited her the day before, when the applicant had not been at home, asking about his whereabouts. They had again come at 7.30 a.m. on 26 January 2005, shown their service identity cards and asked about the applicant’s whereabouts. She had told them that the applicant had gone to work and they had left. When she had gone to the applicant’s place of work she had been told that the applicant had been taken away by two men matching the description of K. and R. From 26 until 28 January 2005 she had called the Tikhoretsk Police Department many times but had been told that the applicant was not there. On 28 January 2005 D. had informed her that the applicant was suspected of having committed a grave crime and had offered his services as a lawyer.
-According to S.A. (the second applicant’s girlfriend), after the second applicant’s arrest she had seen the video recording of the verification of the applicant’s statements at the crime scene on a local television channel. She had noticed that the applicant was limping and that his face was bruised and swollen. After the applicant had been taken away by police officers on 26January 2005, she had called the Tikhoretsk Police Department IVS on 27January 2005 but had been told that the applicant was not there. On 28January 2005 she had gone to the Tikhoretsk Police Department to enquire about the applicant’s whereabouts, and had been informed by O., the investigator, that the applicant was suspected of having committed a murder.
3.Institution and termination of criminal proceedings in relation to the first applicant’s injuries
60.On 5 March 2008 an investigator of the Tikhoretsk inter-district investigation unit of the investigative committee at the regional prosecutor’s office (“the Tikhoretsk investigative committee”) opened a criminal case under Article112§1 of the Criminal Code (harm to health of medium gravity) in relation to the injuries inflicted on the first applicant by an unknown person at an unknown place at an unknown time in January 2005.By decisions of 5 June, 2 August, 13 September and 22 October 2008 the criminal proceedings were suspended for failure to identify any person to be charged with an offence. Those decisions were annulled by the head of the Tikhoretsk investigative committee.
61.The Tikhoretsk Town Court acknowledged repeatedly that the Tikhoretsk investigative committee’s inaction had been unlawful and that it had failed to conduct the investigation in accordance with the law (namely, the Town Court’s decisions of 30 May, 1 July, 21August and 26September 2008). The Tikhoretsk inter‑district prosecutor repeatedly called upon the Tikhoretsk investigative committee to put an end to violations of the CCrP being committed in the course of the criminal proceedings.Thereafter the proceedings were repeatedly terminated for lack of evidence of a criminal event or suspended for failure to identify any person to be charged with an offence, and the relevant decisions were annulled as unlawful and unfounded.
62.In 2010 the criminal case was transferred to the Tikhoretsk Police Department for further investigation for the reason that the police officers’ involvement in the first applicant’s ill‑treatment had not been established. On several occasions the investigation was suspended for failure to identify any person to be charged with an offence and then resumed again.
63.According to the investigating authority, in 2012 a certain N.K. turned himself in to the Tikhoretsk Police Department and confessed that in 2005 he had inflicted bodily injuries on the applicant two days before the applicant’s arrest. The proceedings against N.K. were terminated as time‑barred.
64.In April 2013 an investigator of the Tikhoretsk Police Department was disciplined for violations of criminal procedure in the course of the investigation. On 4April 2013 the Tikhoretsk Town Court acknowledged numerous shortcomings in the investigation, such as the failure to question the applicant about allegations raised by N.K. in his testimony or to obtain a medical expert opinion as to whether the applicant’s injuries could have been inflicted in the circumstances described by N.K.
4.Reopening and termination of the criminal proceedings against the applicants in the light of newly discovered circumstances
65.On 7 October 2008 the Tikhoretsk inter-district prosecutor allowed an application lodged by the applicants for the reopening of the criminal proceedings against the applicants (in the light of newly discovered circumstances) on the grounds that the refusals to institute criminal proceedings in respect of the applicants’ allegations of police ill-treatment (on which the trial court had relied) had later been annulled.
66.On 15 July 2010 the prosecutor terminated the proceedings, holding that the applicants had been lawfully convicted by final judicial decisions, while their allegations of police ill-treatment were being examined in the course of the separate proceedings (concerning the applicants’ complaints about their alleged ill-treatment by the police). On 28 July 2011 the Tikhoretsk Town Court upheld the prosecutor’s decision of 15 July 2010.
5.Other refusals to institute criminal proceedings into the applicants’ alleged ill-treatment by the police
67.In parallel with the proceedings described above, a joint pre‑investigation inquiry into both applicants’ allegations of police ill‑treatment was carried out by the Tikhoretsk investigative committee, starting from November 2010 (after a number of refusals to open a criminal case into the second applicant’s alleged ill-treatment had been issued and annulled between 26 November 2009 and 19November 2010).
68.Between 29November 2010 and 15 July 2015 seven more decisions not to institute criminal proceedings were taken and subsequently annulled as based on incomplete inquiries.Some of the annulments followed the delivery of court decisions under Article 125 of the CCrP finding refusals to institute criminal proceedings unlawful and unfounded, namely, the Tikhoretsk Town Court’s decisions of 5March 2011 (which was upheld by the Krasnodar Regional Court on 13April 2011), 1 April 2013 and 23 April 2013.
69.The most recent decision not to institute criminal proceedings into the applicants’ alleged ill-treatment in police custody – for lack of the constituent elements of crimes under Articles 285 and286 (abuse of powers) of the Criminal Code in the actions of Ch., K., R. and other police officers, as provided by Article 24§1 (2) of the CCrP – was taken on 24February 2016 by an investigator from the Tikhoretsk district investigation unit of the Krasnodar regional investigative committee. Relying on the police officers’ statements denying that they had ill-treated the applicants, the investigator concluded that no material showing that the police officers could have committed crimes against the applicants had been established. The decision also mentioned other statements, in particular the following:
-statements by Sh. and O., the investigators, denying the applicants’ ill‑treatment;
-statements by several persons that the first applicant had not had any visible injuries before his arrest;
-statements by the police officers K., R. and V.V. (see paragraph47 above);
-statements by D. (see paragraph 58 above);
-statements by the police officers K. and R. that the second applicant had been arrested on 27January 2005 on suspicion of having committed the above-mentioned crime against S. and taken to the Tikhoretsk Police Department, where he had written a statement of surrender and confession, after which he had been arrested by O.; and
-statements by S.A. that after the second applicant’s arrest she had seen him being filmed in detention on a programme on a local television channel; she had noticed that his face was an unnatural colour; and she had later seen on the same television channel another programme that had shown the video recording of the verification (with the applicant’s participation) of the applicant’s statements at the crime scene.

7.The applicants are nationals of Tajikistan and Uzbekistan. Their initials, dates of birth, the dates on which their applications were introduced, application numbers, as well as the particulars of the domestic proceedings and other relevant information are set out in the Appendix.
8.On various dates they were charged in their countries of origin with religious and politically motivated crimes, their pre-trial detention was ordered in absentia, and international search warrants were issued by the authorities.
9.Subsequently the Russian authorities took final decisions to remove (that is to say extradite or expel) the applicants, despite consistent claims that in the event of removal the applicants would face a real risk of treatment contrary to Article 3 of the Convention.
11.The references to the relevant reports by the UN agencies and international NGOs on the situation in Tajikistan were cited in the case of K.I. v. Russia (no. 58182/14, §§ 2-28, 7 November 2017) and on the situation in Uzbekistan in the cases of Kholmurodov v. Russia (no.58923/14, §§ 46-50, 1 March 2016), and T.M. and Others v. Russia ([Committee], no.31189/15, § 28, 7 November 2017).

1. The applicant, Mr Zbigniew Orłowski, is a Polish national who was born in 1959 and lives in Czerwionka.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
3. The Government has not objected to the examination of the application by a Committee.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. In 2008 the applicant, who is a diabetic, started serving a four-year prison sentence which had been imposed on him on the basis of a cumulative sentence ( wyrok łączny ) resulting from a number of his convictions.
A. Prison cell
1. Description of the material conditions
6. From 3 to 29 June 2010 and from 19 August to 23 September 2010 the applicant was detained in Kielce Remand Centre in cell no. 346.
7. A toilet annex was in the corner of the cell. It was separated from the living space by, on one side, a fibreboard partition 1.8 m high, and on another side, a cloth curtain. The window in the cell could not be opened, as it was blocked by a double layer of bars, internal and external.
2. Remedies used
8. The applicant complained on numerous occasions to the prison authorities that that arrangement infringed his dignity, firstly because it did not provide for a reasonable level of privacy, and secondly because the cell could not be ventilated. His requests to have the internal window bars taken down remained unanswered.
9. The applicant also lodged two civil actions against the State Treasury, seeking compensation for infringement of his privacy on account of the prison ’ s failure to adequately fit toilet facilities during his detention during each of the two periods which are described above.
10. In respect of the period from 3 to 29 June 2010, on 16 February 2011 the Kielce Regional Court ( Sąd Rejonowy ) awarded the applicant compensation in the amount of 800 Polish zlotys (PLN – approximately 200 euros (EUR)). The court held that the applicant ’ s personal rights and right to dignity had been breached, and that the defendant to the action had not explained why the internal window bars could not be taken down so as to make it possible to open the window and ventilate the cell. The defendant had not argued or shown that this would have necessitated any particular expense or entailed difficulty. The court further noted that the nuisance caused by the foul odour in the cell had been aggravated by the warm weather in June. On 21 June 2011 the Cracow Court of Appeal dismissed an appeal lodged by the defendant, fully upholding the findings of fact and law made by the first-instance court.
11. In respect of the period from 19 August until 23 September 2010, on 18 March 2011 the Kielce Regional Court ( Sąd Okręgowy ), relying on similar reasoning as that given in the first case, awarded the applicant compensation in the amount of PLN 500 (approximately EUR 125). On 13 July 2011 the Cracow Court of Appeal dismissed an action by the applicant after the defendant ’ s appeal. That judgment was served on the applicant on 16 September 2011. The appellate court did not question the findings of fact of the first-instance court. It observed that the impugned sanitary arrangements were compliant with standards from the 1970s ‑ when the prison had been built – and with the applicable law. The State Treasury had thus not acted unlawfully, and no intention to act in bad faith or with the intention to cause harm or damage to the applicant could be established. It was concluded that, in the absence of unlawfulness, no breach of personal rights within the meaning of the provisions of the Civil Code on tort liability could be found. The court further observed that, in any event, the nuisance complained of had not exceeded normal difficulties inherent in serving a prison sentence.
B. Disciplinary punishment
1. Description of the relevant events
12. The following sequence of events in Kielce Remand Centre can be established from reports on the use of a measure of direct restraint ( protokół z zastosowania środków przymusu bezpośredniego ) dated 16 March and 30 April 2009 (“the 16 March report” and “the 30 April report”); from findings made by the domestic court in the course of the proceedings described below; from the Government ’ s observations on the case; and from the applicant ’ s own submissions to the domestic court and to this Court.
(a) First period of confinement
(i) Events during the isolation measure
13. On the morning of 16 March 2009 the applicant became irritated by a cellmate ’ s personal hygiene habits and started kicking the cell doors. As submitted by the Government and established by the domestic court in the course of the proceedings described below, but contested by the applicant, the applicant was aggressive, was uttering obscenities and refused to calm down.
14. The prison officers put a straightjacket ( kaftan bezpieczeństwa ) on the applicant and at 10.50 a.m. placed him in an isolation cell.
15. At 12.30 p.m. the applicant refused to return to his cell and ignored the requests of his prison supervisor in this regard.
16. Between 11.40 a.m. and 7.55 p.m. prison guards entered the cell and checked on the applicant every hour. Each time, they considered that the restraining and isolation measures which had been implemented should remain in place, in view of the applicant ’ s continued inappropriate behaviour. Between 9.50 p.m. on that day and 6 a.m. on the following day the guards entered the cell to check on the applicant approximately every two hours.
17. From 6.05 p.m. on 16 April until presumably 6.04 a.m. on 17 April the applicant was provided with a mattress with bed linen. For the rest of the time, he was lying on the floor.
18. As stated in the 16 March report, and as established by the domestic court and submitted by the Government, at 9.50 p.m. (after approximately eleven hours) the straightjacket was removed because the applicant had calmed down. In the applicant ’ s submission, the straightjacket was removed at 10 p.m.
19. On 17 March 2009 the applicant was released from the isolation cell, as it was considered that his behaviour had improved. According to the domestic court, the Government and the 16 March report, the release took place at 8.03 a.m. (after approximately twenty-one hours). In the applicant ’ s submission, he was released at 10 a.m. (after approximately twenty-three hours).
20. At the time of his release the applicant had a superficial examination by an in-house doctor, having refused to undergo a more thorough physical examination. That examination did not reveal that he had any external injuries. The applicant complained to the doctor of backache.
(ii) Alleged urination incident
21. In the isolation cell the applicant did not have free access to a toilet.
22. According to the applicant, at an unspecified hour on 16 March, when he was still immobilised, he pressed the button calling for a guard in order to be taken to the toilet to urinate. By the time the guard arrived, thirty minutes later, the applicant had leaked some urine. The applicant was not given a chance to wash himself and change his wet clothes until after he was released the following day.
23. The 16 March report, in so far as it is legible, does not make any reference to the applicant ’ s use of the toilet or to the urination incident which is described above.
24. The domestic court considered that the incident described above was unsubstantiated by evidence. In particular, according to the court, at an unspecified moment a guard had expressly offered to take the applicant to the toilet.
25. The Government reiterated the content of the 16 March report and the findings of the domestic court.
(b) Second period of confinement
26. On 30 April 2009 the applicant shouted obscenities in the prison corridor. According to the findings of the domestic court and as noted in the 30 April report on the use of a measure of direct restraint, he also banged his head against the wall and was aggressive and disobedient. The applicant contested that he had hit his head against the wall.
27. The prison officers put a restraining belt ( pas obezwładniający ) on the applicant and at 11.50 a.m. placed him in an isolation cell. In the cell, a protection helmet was also put on his head.
28. The applicant continued shouting, assaulting officers and reacting to any attempts to talk to him with obscenities and hostility. Attempts to reason with the applicant were made on 30 April at 2.47 p.m. by his supervisor and an in-house psychologist, and by the supervisor again on 1 May at 9.33 a.m.
29. Between 12.52 p.m. and 7.51 p.m. the prison officers entered the cell and checked on the applicant approximately every hour. During the night and the following day they entered the cell and checked on him approximately every two hours. Each time, they considered that the applicant was still acting up and should remain restrained and in isolation.
30. From 6.04 p.m. on 30 April until 6.06 a.m. on 1 May the applicant was provided with a mattress with bed linen. For the rest of the time, he was lying on the floor.
31. On 1 May 2009 at 9.30 a.m. the applicant was examined by an in ‑ house doctor. The applicant uttered obscenities during the examination. The doctor recorded redness around the applicant ’ s wrists and authorised the continued use of the measures of direct restraint.
32. At 2.45 p.m. (after approximately twenty-seven hours) the protective helmet was taken off.
33. It is unknown whether the restraining belt was taken off prior to the applicant ’ s release. According to the 30 April report, prison officers checked and readjusted the applicant ’ s restraining belt on 1 May at 1.10 p.m. and at 4.48 p.m.
34. At 6.23 p.m. (after over thirty hours) the applicant was released from the isolation cell, as it was considered that he had calmed down.
35. At 6.50 p.m. the applicant was once more examined by a doctor. That examination revealed redness around his wrists. The doctor did not recommend any treatment.
(i) Urination incident
36. According to the applicant, at an unspecified hour during his isolation on 30 April he urinated on himself while he was immobilised, as he did not have access to a toilet. In addition, for several hours he was not given a chance to wash himself or change his wet clothes.
37. According to the 30 April report, in so far as it is legible, the applicant declined to go to the toilet when given such an opportunity at 12.52 p.m. At 1.30 p.m., 2.15 p.m., 3.30 p.m. and 4.15 p.m an officer checked on him and noted that he was lying down. The next note on the report shows that at 4.37 p.m. the applicant was allowed to change his wet trousers. At 5 p.m. he declined the opportunity to use the toilet. On 1 May at approximately 7.39 a.m. the applicant was given an opportunity to use the toilet.
38. The domestic court established that the applicant had urinated on himself on 30 April, having twice refused to be taken to the toilet and having used the toilet at 12.52 p.m. The court also established that a video recording of the cell revealed the following sequence of events starting at 2.20 p.m.: before the incident the applicant did not call the guards to communicate to them that he needed to go to the toilet; prison officers arrived at 4.45 p.m.; a doctor and a psychologist were also present in the cell (see paragraph 28 above); the applicant asked them to allow him “to wash himself and change his clothes”; a guard replied that that was impossible, but if the applicant improved his behaviour then he would be able to leave the isolation cell altogether; the guards loosened the applicant ’ s handcuffs (referred to here as “ kajdanki ”); the applicant told the guards that he would “go in his pants”, he was swearing, acting aggressively and shouting that he wanted to wash himself and change his clothes; a guard reiterated that the moment the applicant improved his behaviour he would be able to leave the cell; the applicant replied that he did not want to leave; a guard asked whether the applicant needed to use the toilet; the applicant replied in the negative and repeated that he wanted to wash himself and change his clothes; a guard said that that was impossible; the applicant replied “pity, then we will talk at the prosecutor ’ s [office]”.
(ii) Use of handcuffs
39. According to the applicant, his handcuffs (referred to here as “ kajdany ”) were broken. As a result, they were so tight around his wrists that they hurt him. They were not loosened during the entire night that he was in isolation.
40. The 30 April report, in so far as it is legible, does not mention the use of handcuffs during the applicant ’ s isolation.
41. According to the Government, the 30 April report indicated that no handcuffs had been used during the applicant ’ s isolation.
2. Remedies used
42. According to the applicant, he complained to the prison judge in respect of both instances of disciplinary punishment described above. The domestic court established that he had lodged one such complaint, only in relation to the second period of confinement.
43. On 5 May 2009 the applicant complained to the prison judge that he had been tortured on 30 April 2009 in that he had been placed in an isolation cell and had not been allowed to wash himself. On 23 June 2009 the judge informed the applicant by letter that he considered his complaint ill-founded.
44. On 24 January 2011 the Kielce District Court upheld a prosecutor ’ s decision of 12 November 2010 to refuse to open a criminal investigation into some of the applicant ’ s allegations that between 16 March and 1 May 2009 prison officers had frequently woken him up and deprived him of access to the toilet, thus breaching their official duties. The court agreed with the findings of the prosecutor, which had been made on the basis of various reports and the video-recording from the isolation cell, that no wrongdoing could be attributed to the prison officers.
45. The applicant filed a civil action against the State Treasury, seeking compensation in the amount of PLN 10,000 for the alleged breach of his right to personal dignity. To this end, the applicant submitted, inter alia, that he had twice been put in a solitary isolation cell and immobilised; that on the first of these occasions he had urinated on himself and had not been allowed to change his clothes or wash himself; and that he had been woken up by the guards every two hours, which had made it impossible for him to sleep, and consequently he had been exhausted. The applicant argued that such treatment amounted to intentional harassment.
46. On 19 August 2010 the Kielce Regional Court dismissed the applicant ’ s action on the basis of evidence comprising: submissions which he had made at hearings on 28 September 2009 and 8 February 2010; his prison records; extracts of the video-recording from the cell; the testimony of eight prison officers who had been on duty at the material time; the 16 March and 30 April reports; and a number of letters from the Kielce Remand Centre ’ s administration.
47. The court concluded that, in the light of the available evidence, the force used on the applicant had not been unjustified or excessive. In particular, the straightjacket used during the first period of confinement and the restraining belt used during the second period of confinement had been removed as soon as the applicant had calmed down; he had not suffered any injuries, and if he had urinated on himself on 30 April 2009, this had been despite the fact that on two occasions shortly before prison officers had offered to take him to the bathroom. The court also observed that the applicant had been given the opportunity to wash himself and change his clothes on condition that his behaviour improved. He had refused, and instead had become even more agitated.
48. The court also took note of the redness of the applicant ’ s wrists, as registered by prison doctors during his second period of isolation. The court did not find any evidence that the condition in question had been caused by unlawful conduct on the part of the prison officers. The court concluded that it had most likely resulted from the fact that the applicant had not stayed calm during the thirty hours when he had been wearing the restraining belt. It was also observed that, in any event, the condition could not have been anything severe, since none of the doctors had ordered any treatment or had otherwise tried to remedy the applicant ’ s situation.
49. Overall, the court considered that the duration of the applicant ’ s solitary confinement had been justified, as he had continued to utter obscene and aggressive statements, and that the measure had not been intended to be harassment against the applicant.
50. On 19 November 2011 the Cracow Court of Appeal ( Sąd Apelacyjny ) dismissed an appeal by the applicant, upholding the first ‑ instance court ’ s findings of fact and law in full.

6.The applicants are Ukrainian nationals of Roma ethnicity. Before 10September 2002 the applicants lived in the village of Petrivka, Ivanivskyy District, Odessa Region (hereinafter also “the village”). They currently live in Berezivka District, Odessa Region.
A.The events of 7 to 10 September 2002
7.On 7 September 2002 a 17-year-old ethnic Ukrainian was murdered in the village, allegedly by a Romany man who was apparently convicted of the murder afterwards. It appears that this occurred in the course of an altercation between Romany men and other youngsters from the village at a local bar or dancehall.
8.On 8 September 2002 a crowd of village residents gathered and demanded that the Roma be expelled from the village. According to the statement of the village mayor, Mr M.S., made in the course of a subsequent criminal investigation, the local officials attempted to defuse the situation and urged the villages not to do anything illegal.
9.On the same day the village council met. Among those present were: a representative of the Ivanivskyy District State Administration (“the District Administration”) and the head of the Ivanivskyy District Police Department (“the District Police Department”). According to the minutes of the meeting submitted by the applicants, in his opening remarks the mayor said, inter alia:
“... today a cruel crime was committed [in the village] by a group of residents of Gypsy ethnicity. One student of [the village high school] was murdered and three others were injured and are now in hospital in a serious state. This crime was made possible by the fact that no appropriate measures are being taken against them in the event of their [engaging in crimes]. Everybody knows that the spread of drug addiction, which is taking place in our village, is their fault. Today a meeting of villagers took place at which a negative opinion was expressed about the banditry and other [forms of crime] on the part of this category of people ... I invite the council members to speak responsibly and to express their opinion about the crime committed and about the decision of the villagers. I would like this meeting not to turn into something which aggravates inter-ethnic relations.”
10.At the close of the meeting the council decided, in particular, to “support the decision of the meeting of the village residents to expel persons of Gypsy ethnicity from the village”.
11.On 9 September 2002 the village council met again. The heads of the District Administration and the District Police Department and the chairperson and members of the Ivanivskyy District Council were present. The village council examined the question of “bringing the decision of the village council [of 8 September] concerning the expulsion of the persons of Gypsy ethnicity into compliance with legal norms”. The head of the District Administration invited the village council members to carefully consider the wisdom of their decision, drawing a clear line between crime‑related problems and inter-ethnic relations. A council member, D., stated that whatever the wording of the decision it would have no legal consequences and that legal action against drug dealers would also be ineffective. In fact, it was not possible to keep the situation under control. D. furthermore stated that the neighbours of the Roma residents were saying that it was necessary to cut off their gas supply and to burn down the Roma’s houses. At the close of the meeting the village council decided to ask law enforcement authorities “to ensure the expulsion of socially dangerous individuals, regardless of ethnic origin, from the village”.
12.On the evening of the same day the mayor and the local police advised the applicants to leave the village, as a “pogrom” was about to start. Electricity and gas supplies to their houses were cut. Subsequently, in the course of the night of 9-10 September 2002 a crowd of several hundred people, allegedly led by a certain MrO.M., ransacked the houses belonging to the Roma, destroying their belongings. A number of police officers were present but did not intervene to prevent the looting and apparently concentrated solely on preventing human casualties. The house where the first applicant lived had burned down. According to the Government, the results of the expert analysis of the causes of the fire were inconclusive (seeparagraph 118 below).
B.The applicants’ statements concerning their particular situation
13.The applicants submitted a number of written statements from the applicants addressed to Ms Duducehava, the leader of a Roma association, and Mr Stoyanov, a lawyer who represented a number of applicants in the domestic criminal proceedings (see below). The statements bear various dates from 2004 and 2007, contain descriptions of the events of 7‑10September 2002, and ask for help in dealing with the authorities. According to the general tenor of the statements, the applicants’ had been urged to leave by the police prior to the pogrom, and in their absence their houses had been ransacked by the mob – in particular, doors and windows had been smashed, and furniture and belongings destroyed or stolen.
14.According to the fifth applicant’s statement, dated 17 November 2007, she and the fourth applicant (her husband) had been away from the village at the time of the events and had only learned about them when they had returned on 20 September. She had had to sell her house “at half the price” (“за полцены”), as had other Roma victims of the pogrom. The seventh, eighth, thirteenth and sixteenth applicants’ statements, as well as the statements of some other former Roma residents of Petrivka, were similarly worded, speaking of the houses having been sold for less than their normal price (for instance, Mrs M. Burlya, the second applicant’s wife, characterised the price for which her house had been sold as “very cheap”).
15.The applicants submitted eight undated photographs showing the ruins of one or several houses, certain photographs showing signs of fire. The origin of these photographs is unclear. In her statement to MsDuducehava in 2004 the sixth applicant referred to certain photographs showing damage to her and her relatives’ houses.
16.The seventh and eighth applicants stated that all the Roma had left the village before the attack started.
17.Applicants identified in the Appendix asserted in their statements to Ms Duducehava, Mr Stoyanov or to the police in the course of the subsequent criminal investigation that they had been away from the village at the time of the events of 7-10 September 2002 and of the attack and had only learned about it later.
18.In her statement to Mr Stoyanov dated 18 November 2007 the ninth applicant stated that she had been at home with her two granddaughters (aged ten and fifteen at the time) when the attack started. Stones had started flying through the windows, four attackers had broken down the door and started shouting, and the older granddaughter had pleaded with the attackers not to kill them. The attackers had not touched the applicant or her granddaughters; the applicant had then fled.
However, in her statement to the police dated 26 September 2002 this applicant stated that she had fled the village prior to the attack and had returned the next day to find her home ransacked. In her statement (addressed to Ms Duducehava) and dated 13 June 2004 this applicant complained of having been expelled from her home but did not mention that she had personally witnessed any attack.
C.Aftermath of the events
19.According to a report published on 20 September 2002 in the regional newspaper Porto Franko and information given at a press conference held on 12 September 2002 by the Secretary of State (Державний секретар) for the Ministry of the Interior and by the head of the Odessa Regional Police Department (“the Regional Police”), police officers had been present in force and had observed the attack. However, they had not attempted to prevent or stop it, apparently concentrating solely on preventing casualties.
20.The events were reported in a number of regional and national newspapers.
21.The applicants alleged that after the attack they had had to move to another town and live with family and friends in overcrowded and inadequate conditions.
D.Criminal investigation
22.On 10 September 2002 the Ivanivka district police initiated criminal proceedings against persons unknown on suspicion of disorderly conduct committed in a group (хуліганство вчинене групою осіб).
23.On 10 September 2002 police investigators from Ivanivka, Berezivka, and several other districts conducted on-site examinations of the damaged houses in Petrivka (which included the taking of fingerprints). A regional police investigator conducted further on-site examinations in December 2002 and January 2003.
24.On 12 September 2002 it was decided to constitute an investigative team composed of a senior investigator from the regional police department and investigators and other police officers from the Ivanivka district and three other districts.
25.From 12 September to 9 October 2002 the regional police investigator obtained a number of expert opinions concerning the material found on the scene (notably assessing the damage there).
26.On 20 September 2002 an officer of the Ivanivka police questioned neighbours of some of the applicants. Those neighbours stated that on the night of the attack they had seen around 150 and 300 people near the applicants’ houses.
27.From 23 September 2002 to 27 January 2003 at least sixty village residents, including O.М. and P.M. (who were later accused by the applicants’ representative Ms Duducehava of having a role in the attack ‑ see paragraph 36 below), were questioned by the police – four of them by Ivanivka police officers and the rest by the regional police investigator. The villagers generally stated that there had long been tensions in the village between the Roma and non-Roma populations (many mentioning that this was connected with the alleged involvement of Roma residents in the drug trade), and that on the night of 9 September 2002 several hundred individuals had ransacked the houses of the Roma residents. This had been done to ensure that Roma would be expelled from the village. Some expressed approval of the attackers’ actions (as having been triggered by the authorities’ inaction against the drug trafficking), but denied that they had personally taken part in the attack.
28.The police also questioned a number of applicants, who gave statements largely consistent with the account of events set out in paragraphs 7-17 above.
29.On 14 November 2002 a certain Mr V. – apparently a Roma and a Petrivka resident at the time – was questioned. He stated that on 9September he had been called in to Ivanivka district police station and told that residents of Petrivka would be attacking Roma houses. Upon learning this, he returned to the village and helped to evacuate his family, as well as other Roma residents, to another village.
30.The police recognised the applicants listed in the Appendix as having the official status of aggrieved parties or of civil claimants (see paragraphs53 and 54 below).
31.In January 2003 (in the summary provided by the Government the relevant dates seem to be misstated as being in January 2002 and January 2007) the regional police investigator questioned three officers of the “Berkut” special police unit. They stated that about 2,000 persons had participated in the pogrom. They had asked the officers not to interfere in their actions. They had entered the houses and asked the individuals there not to resist and to leave.
32.In February 2003 the police obtained an expert opinion in an attempt to identify the voices on a video cassette. It appears that the video cassette contained a recording of a meeting of village residents held before the pogrom. The expert concluded that no voice could be identified owing to the poor quality of the recording.
33.On 4 February 2003 the police suspended the investigation for failure to identify the perpetrators. On 17 February 2003 the regional prosecutor’s office ordered that it be resumed.
34.On 20 February 2003 the Ivanivsky district prosecutor’s office (“the DPO”) refused to institute criminal proceedings against the village council’s officials for lack of constituent elements of a crime in their actions.
35.On 1 April 2003 the regional police investigator suspended it again.
36.On 27 February 2005 Ms Duducehava, the chairperson of Romani Zbora, an NGO, wrote to the Odessa regional prosecutor’s office asking it to institute criminal proceedings against the persons who had participated in the attack and the officials who had allowed it. Specifically, she named MrO.M., Mr P.M. and Mr I.D., all of whom, she alleged, had incited the attack; she named M.S., the chairman of the village council, and O.V., the head of the district police department, as being among the officials who had allowed it. She named the first fifteen and the seventeenth to nineteenth applicants as persons whose property had been damaged, summarising their statements to her (see, in particular, paragraph 13 above).
37.On 28 March 2005 the Odessa regional prosecutor’s office informed Ms Duducehava that an investigation into disorderly conduct had been initiated and suspended on 1 April 2003 but that operational measures were being taken to identify the perpetrators (see paragraph 58 below for a summary description of the legislative framework in respect of such measures). Twenty-three individuals, including those whose statements had been added to Ms Duducehava’s complaint, had been recognised as aggrieved parties or civil claimants. Concerning the failure of the police to prevent the disorderly conduct in question, the head of the Regional Police had imposed disciplinary sanctions on the police officers at fault.
38.On 21 November 2005 Mr I.Stoyanov, a lawyer representing a number of the applicants, complained to the President of Ukraine and the Prosecutor General that the crime committed had been incorrectly classified as merely disorderly conduct, even though it could be characterised as an act of discrimination and mass disorder. The identity of the guilty parties was well known.
39.On 31 December 2005 the head of the regional police informed MrStoyanov that the investigation had been suspended on 1 April 2003 and that the regional prosecutor’s office had examined the case and left the decision to suspend it in force.
40.On 25 January 2006 the DPO informed Mr Stoyanov of the decision not to institute criminal proceedings against the village officials (seeparagraph 34 above) and stated that Mr Stoyanov could obtain information about the situation in the hooliganism case from the regional police, who were in charge of it.
41.On 27 January 2006 the Ivanivka district police took over the investigation in respect of the hooliganism case and decided to resume it. On 5 April 2006 they suspended it again.
42.On 22 August 2008 Mr Stoyanov wrote to the Prosecutor General’s Office asking to be informed about the progress of the operational measures to identify the perpetrators and to be allowed to study the case file.
43.On 25 September 2008 the DPO informed Mr Stoyanov that the investigation had been lawfully suspended and that the aggrieved parties could only examine the case file once the investigation had been completed.
44.The applicants submitted a copy of a letter from the district police dated 13 July 2009 addressed to Mr Stoyanov. The letter informed MrStoyanov, in response to his query, that on 10 February 2009 the investigation had been renewed and on 2 March 2009 suspended again for failure to identify the perpetrators. No reason for the alleged renewal was mentioned. The Government argued that the letter was not genuine (seeparagraphs 88 to 91 below).
E.Judicial proceedings
1.Quashing of the village council’s decision
45.On 21 March 2003 the Ivanivskyy District Court (“the District Court”), having heard an appeal by the DPO, quashed the village council’s decision of 9 September 2002 on the grounds that it was contrary to the Constitution and had been taken under the pressure exerted by a crowd of angry villagers in order to calm them down and prevent the lynching of the Roma.
2.Civil claim for damages
46.On 23 December 2005 the applicants (except the fourth and sixteenth) lodged with the District Court a civil claim for damages against the District Administration and the village council.
47.On 23 November 2007 the District Court rejected the applicants’ claim, holding that it fell within the jurisdiction of the Odessa District Administrative Court. No appeal was lodged.
3.Administrative proceedings for the investigating authorities’ inaction to be declared unlawful
48.On 3 May 2007 the first three and the fifth to nineteenth applicants lodged a claim seeking to have the failure of the DPO and the district police to investigate the incident declared unlawful.
49.On 9 February 2008 the Odessa Circuit Administrative Court rejected the claim without considering it on the merits, holding that it fell outside the jurisdiction of the administrative courts. On 17 March 2008 the Odessa Administrative Court of Appeal upheld this ruling.
4.Complaints to courts in the context of criminal procedure
50.On 5 June 2008 the District Court initiated proceedings concerning the claim brought by the first three and the fifth to nineteenth applicants under the Code of Criminal Procedure in which they challenged the decision to suspend the investigation. On 19 August 2008 and 8 April 2009 MrStoyanov lodged additional complaints on behalf of the first to third, sixth to fifteenth and seventeenth to nineteenth applicants in these proceedings. In those complaints, they stated that they had never been questioned and had never been recognised as aggrieved parties (потерпілі). They asked the court to order the police to recognise them as such. According to the applicants, at the time of the application to the European Court of Human Rights the proceedings were still pending before the District Court and no decision had been made.
59.The relevant parts of the second report on Ukraine by the European Commission against Racism and Intolerance (ECRI), adopted on 14December 2001, read as follows:
“56.As is the case in some European countries, the Roma/Gypsy population of Ukraine is faced with situations of severe socio-economic disadvantage, but also with manifestations of prejudice, discrimination and violence on the part of the majority population and sometimes on the part of the authorities, particularly law enforcement officials. ECRI expresses concern at this situation and considers that policies are urgently needed to address the position of the Roma/Gypsy communities in Ukraine in order to ensure that the members of these communities enjoy in practice the same rights as the rest of the population of Ukraine. ECRI believes that the first necessary step towards developing an appropriate response to the problems faced by the Roma/Gypsy population of Ukraine is the recognition on the part of the authorities that such problems exist and that they need to be addressed ...
...
58.Another priority area for action identified by ECRI is the behaviour of the law enforcement officials vis-à-vis members of the Roma/Gypsy communities. In this respect, ECRI notes with concern frequent reports of excessive use of force, ill‑treatment, verbal abuse and destruction of property by law enforcement personnel. Discriminatory practices are also reported to be widespread and include arbitrary checks, unwarranted searches, confiscation of documents and, as noted in ECRI’s first report, discriminatory enforcement of crime prevention policies targeting persons with criminal records. ECRI urges that action be taken to address manifestations of unlawful behaviour on the part of law enforcement officials generally, including through a more effective institutional response to such manifestations and through training and awareness raising measures. In addition, noting reports that the response of the police to crimes committed by the general population against Roma/Gypsies is often inadequate, ECRI recommends that the Ukrainian authorities take measures to ensure that the police react promptly and effectively to all crimes, including those committed against Roma/Gypsies and, in line with its recommendations formulated above, to ensure that the racist element of such offences is duly taken into account.”
60.The relevant parts of the third report on Ukraine by the ECRI, adopted on 29June 2007, read as follows:
“76.As previously indicated, Roma face a number of problems in their relationship with the police and other law enforcement agencies. ECRI has received reports according to which some police officers illegally arrest and harass members of Roma communities... Attempts to find a common understanding between Roma organisations and the Ministry of Interior, the Office of the Prosecutor and law enforcement officials have reportedly yielded few results. ECRI has also received reports according to which Roma do not receive an adequate response from the police when they are the victims of crime.”
61.On 27 November 2002 the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities (“the Advisory Committee”) published its first opinion regarding Ukraine’s compliance with that Convention. It concerned the first monitoring cycle and was based on the Advisory Committee’s visit to Ukraine in December 2001. The relevant parts of the opinion read:
“30.The Advisory Committee considers that Ukraine has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment and housing... These problems are exacerbated by the unsatisfactory situation of Roma in the educational system... The Advisory Committee is of the opinion that these issues merit increasing attention.
...
36.The Advisory Committee notes with concern that societal attitudes towards Roma remain negative, and sociological studies suggest that the prejudices towards Roma are markedly more widespread than towards persons belonging to other national minorities. The Advisory Committee believes that it would be helpful to design further initiatives aimed at promoting inter-cultural dialogue between Roma and others.
37.The Advisory Committee notes with concern that there have been incidents of discrimination and ill-treatment of Roma, including by law-enforcement officials, which have been reported inter alia by the Parliamentary Ombudsman. It is also concerned about credible reports about discrimination and hostility, including by law-enforcement officials, concerning asylum-seekers and other persons who have arrived in Ukraine relatively recently... The Advisory Committee deeply regrets that there appears to be some reluctance within the law-enforcement bodies to acknowledge and examine these problems, and it urges the authorities to increase the vigour with which these incidents are investigated and prosecuted.”
62.The Advisory Committee’s second opinion on Ukraine, issued on 30May 2008, reads, in the relevant part:
“79.Some interlocutors informed the Advisory Committee that persons belonging to national minorities are affected by unjustified and/or unlawful stop and search procedures which are carried out by law-enforcement officials. Roma, as well as persons belonging to visible minorities living in various regions of Ukraine, seem to be particularly targeted by this practice which is allegedly accompanied, in certain cases, by calls for bribes. Raids and home searches in Roma settlements, sometimes accompanied by an excessive use of force, have reportedly not ceased. Cases of ill-treatment by the police are still being reported, and the complaints brought against the officials under suspicion are often not properly investigated.
Moreover, there are reports of Roma convicted of crimes and subsequently sentenced to imprisonment, without substantive proof of guilt. By contrast, law-enforcement agencies are reported to be more reluctant to investigate crimes committed against Roma. Widespread negative stereotypes of the Roma population seem to be prevalent also within law enforcement agencies as well as the judiciary... and no doubt contribute to the risk of unequal treatment by these institutions.”

5.The applicant was born in 1987 and lived in St Petersburg before his arrest.
A.The applicant’s arrest and alleged ill-treatment
6.On 27 June 2013 D., an investigator at the Main Investigation Department of the Investigative Committee in St Petersburg (Главное следственное управление Следственного комитета РФ по г.Санкт‑Петербургу – “St Petersburg Investigative Committee”), instituted criminal proceedings into fraud against MsR. allegedly committed by the applicant.
7.At 4.30 p.m. on 4 July 2013 the applicant was arrested near his car on a street in St Petersburg by masked police officers of the special rapid response unit of the Main Directorate of Internal Affairs (GUVD) of StPetersburg and the Leningrad Region (СОБР ГУ МВД РФ по Санкт‑Петербургу и Ленинградской области­), and operational police officers of unit no. 7 of the operative‑search division of criminal investigation department no. 3 of the GUVD (оперуполномоченные 7отдела ОРЧ (УР) №3 ГУ МВД РФ по Санкт‑Петербургу и Ленинградской области – “the criminal investigation department”). The applicant was dressed in a polo shirt and shorts. He lay on the ground until D.’s arrival at the scene.
8.The following investigative measures were carried out that day:
(i)from 5.25 to 6.30 p.m. the applicant’s car was searched;
(ii)at 7 p.m. he was arrested as a suspect and searched by D. at police station no. 59 in St Petersburg (a record of the arrest was drawn up at 8.50p.m.);
(iii)from 10 to 11.58 p.m. his apartment (which he rented from S.) was searched by D.;
(iv)shortly after midnight his wife’s garage was searched, after which he was taken to D.’s office at the St Petersburg Investigative Committee.
9.According to the applicant, he did not resist his arrest. From the time he was taken to police station no. 59 on 4 July 2013 until about 6 a.m. on 5July 2013 operational police officers Ch., K. and P. of the criminal investigation department, in D.’s presence, allegedly subjected him to ill‑treatment in order to force him to confess to crimes. In particular, he was allegedly punched and kicked in the head and abdomen (by Ch. and K. at police station no. 59); struck with a book to the head, ears and back of the head and made to kneel on small objects spread out on the floor (by Ch., K. and P. during the search in his apartment); punched, kicked and dragged to the ground and spat upon in the face (during the search in the garage); punched in the head, abdomen and chest, nearly suffocated with a plastic bag placed over his head, struck several times in the torso and kicked in the left kidney (by Ch., K. and P. from 2a.m. to 6 a.m. in D.’s office at the StPetersburg Investigative Committee), and threatened with a gun by Ch. D. allegedly refused to contact the applicant’s family and lawyer.
10.From 7 to 8.30 a.m. on 5July2013 at the St Petersburg Investigative Committee D. questioned the applicant as a suspect in the presence of A.D., a State‑appointed lawyer invited by D.According to the applicant, he asked A.D. to inform the Internal Security Department of the Ministry of Internal Affairs of his alleged ill‑treatment, but he did not do so.
11.At around midday on 5 July 2013 police officers took the applicant to Aleksandrovskaya Hospital in St Petersburg, where the injuries on him were recorded. The applicant denied being physically assaulted. According to the applicant, he denied the assault because he had been threatened with violence by those who had ill-treated him if he “open[ed] [his] mouth”.
12.From 5.10 to 6.05 p.m. that day the Vyborgskiy District Court of StPetersburg held a hearing in the presence of the applicant and his lawyer. It granted a request by D. for the applicant’s detention and remanded him in custody.
13.After the court hearing, the applicant was taken to a different police station (no.57) in St Petersburg, where his injuries were also recorded. The police records contain an explanation by the applicant stating that his injuries were caused from 4 to 5 July 2013 during his questioning at the Investigative Committee.
14.At around 9a.m. on 6 July 2013 the applicant was taken to hospital for a second time, where he remained until 9 July 2013.
15.On 9 July 2013 the applicant was placed in pre-trial detention facility IZ 47/4 in St Petersburg.
B.The applicant’s injuries
16.According to medical records from Aleksandrovskaya Hospital in StPetersburg, the applicant was admitted as an emergency and underwent inpatient treatment in the urology unit from 5to 9 July 2013. He complained, in particular, of pain in the left side of his lumbar region and in his abdomen and knee joints. He was diagnosed with a contusion of the left kidney. He also had a superficial abrasion on his upper abdomen, abrasions on both his knee joints (measuring from 0.5x1cm to 1x 1.5 cm) and bruising on his abdomen, chest and arms. After his hospitalisation the applicant was discharged for further supervision and outpatient treatment by a urologist.
17.According to records from police station no. 57 in StPetersburg of 5July 2013, where the applicant was examined by an on‑duty officer, the applicant had: (i)a bruise on his forehead; (ii)abrasions on his right elbow; (iii)bruising on his chest and abdomen and (iv)abrasions on both his knees.
18.On 9 July 2013 the applicant was examined by a doctor at pre-trial detention facility IZ 47/4. He complained of pain in the left side of his lumbar region. The doctor recorded abrasions on the applicant’s knee joints and bruising on his abdomen and noted that the injuries had been received on or around 5 July 2013.
19.On 2 September 2013 Sh., an investigator at the St Petersburg Investigative Committee in charge of a pre-investigation inquiry into the applicant’s alleged ill-treatment by the police, ordered a forensic medical examination of the applicant’s medical documents, stating that he was in custody and could not therefore appear for the examination in person. The investigator summarised the applicant’s allegations of ill-treatment as follows. After his arrest in the course of his questioning he had been repeatedly punched and kicked to the ears, back of the head and abdomen.
20.According to forensic medical report no. 3575 P, which was carried out in the absence of the applicant from 13 to 18September 2013 on the basis of the investigator’s order of 2September 2013, and which comprised an analysis of the applicant’s medical records, the applicant had the following injuries: (i)bruising on his forehead; (ii)bruising on his chest and abdomen; (iii)an abrasion on his abdomen; (iv)abrasions on his right elbow joint and both knee joints, recorded on 5July 2013; and (v)bruising on his arms, recorded on 8July 2013. The expert concluded that the applicant’s injuries, as recorded on 5 and 8 July 2013, had been caused within the last fourteen to fifteen days. The expert did not exclude the possibility that the applicant’s injuries had been caused on 4July 2013 and concluded that the injuries had originated from impact with a hard, blunt object or objects as a result of a blow or pressure (bruising), friction or a blow with friction (abrasions), and had not caused any “health damage” to the applicant. The expert did not exclude the possibility that the applicant’s injuries to his abdomen could have been caused by being kicked in that area, as was alleged by the applicant. The expert further defined no less than seven areas on the applicant’s body where there was evidence that force had been used. The expert considered that in view of the available medical data it was impossible to confirm for certain a contusion of the applicant’s left kidney, therefore it was not subject to expert assessment.
21.On 15 October 2013 Sh. ordered an additional forensic medical examination of the applicant’s medical documents, stating again that the applicant was in custody and could not therefore appear for the examination in person. The investigator stated that it had been established based on the video recording of the applicant’s arrest that in the course of his arrest the applicant had been “knocked down” (повален) to the ground, where had remained lying for some time, face down and motionless. The investigator further stated that, according to explanations gathered during the pre‑investigation inquiry, upon the arrival of the officers of the special rapid response unit the applicant had attempted to flee by spinning his car around (огибания). However, the officers had surrounded the vehicle from both sides. Since the applicant had further resisted arrest, the officers had used sambo techniques, as a result of which the applicant had been “knocked down” (повален) from behind, face down on the ground and handcuffed. According to eyewitnesses, there had been light fresh abrasions on the applicant’s elbows and knees, which must have been caused by his falling to the ground. There had been no other injuries on him. The investigator ordered the expert to determine whether the applicant’s injuries could have been caused as a result of his falling down onto hard asphalt ground.
22.On 15 November 2013 an additional forensic medical report (no.4414 P) was issued by the same expert. It was carried out in the absence of the applicant on the basis of the investigator’s order of 15October 2013, and comprised an analysis of the applicant’s medical documents and photographs in which he could be seen lying on the ground face down after his arrest in the presence of several police officers of the special rapid response unit. In reply to the investigator’s question, the expert stated that the bruising on the applicant’s forehead and abdomen and abrasions on his abdomen, elbow and knees could possibly have been caused as a result of a fall (при падении) onto hard asphalt. The expert further reiterated the conclusions made in the previous report about the other possible causes of the injuries such as being struck and, in particular, that he did not exclude the possibility that the applicant’s injuries to his abdomen, taking into account their nature and localisation, could have equally been caused by being kicked in that area one or more times, as was alleged by the applicant.
C.Pre-investigation inquiry under Article 144 of the Code of Criminal Procedure
23.On 7 August 2013 the applicant lodged a formal criminal complaint concerning his alleged ill-treatment (see paragraph 9 above) with the StPetersburg Investigative Committee.
24.Sh. at the St Petersburg Investigative Committee carried out a pre‑investigation inquiry under Article 144 of the Code of Criminal Procedure (“the CCrP”).
25.On the dates specified below, and pursuant to Article24§1(2) of the CCrP, Sh. refused to initiate criminal proceedings against the police officers and D. owing to the absence of the elements of an offence under Article 286 of the Criminal Code (abuse of powers) in their actions. Four of those refusals were overruled by a higher authority within the Investigative Committee as unsubstantiated and/or unlawful, and the investigating authorities were ordered to carry out additional pre‑investigation inquiries:
(i)10 September 2013 (overruled on 16 September 2013);
(ii)15 October 2013 (overruled on 8 November 2013);
(iii)9 December 2013 (overruled on 7 October 2014);
(iv)18 December 2014 (overruled on 7 August 2015);
(v)5 September 2015.
1.Explanations and other material collected by Sh.
26.Sh. based his refusals to initiate criminal proceedings on the following explanations and other material collected during the pre‑investigation inquiry, as well as the forensic medical reports.
27.A. and S.B., police officers of the special rapid response unit, assisted Ch., K. and P. during the applicant’s arrest. They stated that the applicant had attempted to abscond by spinning his car around; they had surrounded the vehicle and used the following techniques on the applicant: they had held him in a hammerlock (загиб руки за спину) and “struck him with their feet” (подсечка). Afterwards, they had laid (уложили) him on the ground face down. He had then been handcuffed. They did not state that they had knocked the applicant down to the ground. Nor did they state that the applicant had fallen to the ground. L., a driver of the special rapid response unit, filmed the arrest. His account of the way the arrest had been carried out was identical to that of A. and S.B.
28.Ch., K. and P., the police officers of the criminal investigation department who participated in the applicant’s arrest, stated that they had not seen the precise moment of his arrest, that is to say when he had been apprehended and laid face down on the ground by A. and B.S. According to Ch. and D. (who arrived after the arrest), the applicant had had fresh abrasions on his elbows and knees, which had probably been caused as a result of a fall to the ground. K. and P. had not noticed any visible injuries on him after his arrest. They stated that the applicant had “possibly” had abrasions on his arms and forehead. He had not had any other injuries. No threats or physical force had been used against him after his arrest on the street, during the search of his car, at police station no. 59 in St Petersburg, during the searches of his home and his wife’s garage, or at the StPetersburg Investigative Committee. The police officers denied subjecting the applicant to any form of threats or ill-treatment to extract a confession of fraud.
29.A.B. participated in the search of the applicant’s car after his arrest as an attesting witness, together with M. According to A.B., the applicant had behaved calmly and not made any complaints. The police officers had not insulted or threatened him. A.B. had not noticed any injuries on the applicant. According to A.B., the neighbours from the building nearby (whose names are not indicated in the investigators’ decisions) had allegedly seen the applicant attempting to run away from the police officers in the direction of his car; however, he had then been apprehended by the police officers of the special rapid response unit.
30.O. participated in the search of the applicant’s apartment and the garage as an attesting witness, together with Sch. According to O., the applicant had behaved quietly and not made any complaints. The police officers had neither threatened nor physically assaulted him. O. had not seen any visible injuries on him.
31.S., the owner of the apartment rented by the applicant, stated that she had seen the applicant during the search of the apartment. She had not noticed any visible injuries on him. According to S., the applicant had been calm and had not complained of being assaulted by the police. S. further stated that the police officers had behaved politely. After the search of the apartment, the applicant had gone downstairs without protest. He had been in handcuffs.
32.The applicant’s case file contained an undated internal memorandum by Ch. notifying D. of the applicant’s arrest at 4.30 p.m. on 4 July 2013 on suspicion of fraud. The report indicates that “during the arrest, A.V.Samesov failed to obey and attempted to abscond. Sambo combat techniques and special devices – handcuffs – were therefore used on him” (“При задержании Самесов А.В. оказал неповиновение, пытался скрыться, в результате чего в отношении него были применены приемы самбо и спец. средства – наручники”).
33.The video recording made by the special response unit showed the applicant after his arrest lying face down on the ground. According to Sh.’s observations, injuries resembling abrasions were visible on the applicant’s forehead and right elbow.
2.Refusal to open a criminal case of 5 September 2015
34.In the most recent refusal (5 September 2015) to open a criminal case – owing to the absence of the elements of offences under Articles 286 (abuse of powers) and 302 (forced extraction of confession) of the Criminal Code in the actions of Ch., K., P. and D. – Sh. considered that the applicant’s allegations of police ill-treatment contained unresolved contradictions, evidencing his attempts to avoid criminal liability and provide false information to the investigating authorities. In particular, the applicant indicated that he had been physically assaulted many times, receiving injuries to his head, abdomen and extremities. However, according to his medical records, he had not had any head injuries, and the alleged contusion of his left kidney had not been confirmed. As to the abrasions on his limbs, head and abdomen, the investigator concluded that they had most probably been caused during the arrest as a result of the use of combat techniques on the applicant by the officers of the special rapid response unit and the applicant’s position (нахождение) on the ground. The investigator further indicated seven areas where force could have been used against the applicant on the forehead, chest, abdomen, arms and knees. The investigator noted that the applicant’s injuries, as recorded on 5 and 8 July 2013, had been caused within the last fourteen to fifteen days. Accordingly, they could have been caused on a day other than 4July2013.
3.Judicial review of the refusals to open a criminal case
35.The applicant challenged the refusals (of 9December 2013, 18December2014 and 5 September 2015) to open a criminal case against the police officers under Article125 of the CCrP.
36.On 25 June 2014 the Oktyabrskiy District Court of St Petersburg dismissed the applicant’s appeal against the refusal of 9 December 2013. On 7October 2014 the St Petersburg City Court quashed that decision on appeal and found the refusal in question unlawful and unsubstantiated; it ordered the investigating authorities to rectify the deficiencies. In particular, the appellate court noted that the investigator had taken the decision to refuse to open a criminal case without identifying all the officers responsible, in breach of the criminal procedural law requirements. Moreover, the appellate court found that the pre‑investigation inquiry was incomplete, as not all of the applicant’s arguments had been addressed.
37.On 26 June 2015 the Oktyabrskiy District Court of St Petersburg found the refusal of 18December 2014 unlawful and unsubstantiated, and the investigating authorities were ordered to rectify the deficiencies. In particular, the court found that the investigator had not addressed the applicant’s arguments concerning the alleged threats and incidents of physical assault by the police during the search of the garage, and had not substantiated its refusal to open a criminal case.
38.On 6 May 2016 the Oktyabrskiy District Court of StPetersburg dismissed the applicant’s appeal against the refusal of 5 September 2015 which it considered lawful and well founded. On 2August 2016 the StPetersburg City Court dismissed an appeal by the applicant against the District Court’s judgment.

THE CIRCUMSTANCES OF THE CASE
5.The applicant was born in 1995 and lives in Republic of Dagestan.
A.Applicant’s allegations of rape
6.On 26June 2012 Mr N. reported to the inter-district investigative committee that, since 2010, his minor daughter, the applicant in the present case, had been repeatedly forced to have oral and anal sex with eleven men over a period of almost two years from October or September 2010 to June 2012. The men had filmed the events and had threatened to disclose this information to the public should the applicant refuse to comply with their demands.
B.Investigation in response to the applicant’s complaint
1.Preliminary inquiry
7.In response to a complaint lodged by the applicant’s father, the authorities instituted a preliminary inquiry during which P., an investigator, questioned the applicant (who provided a detailed account of the above-mentioned events), subjected the applicant to a gynaecological examination (which did not detect any traces of sexual assault on the applicant’s body), conducted an inspection of the locations where the alleged rapes had taken place and collected wet towel wipes found at the location of the “T.L.” area (the applicant having explained that one of the rapists had wiped himself with a towel wipe). The wipes were sent for forensic examination. The investigator also questioned six of the men accused by the applicant of having raped her. They all denied her allegations. The investigator examined the mobile telephones belonging to those men and found none of the video recordings mentioned by the applicant.
8.On 18July 2012 the applicant’s lawyer submitted a DVD with a video recording of one of the alleged occasions.
9.On 20July 2012 the investigator examined the video recording. Having discerned no visible traces of injuries on the applicant’s body, he concluded that the applicant had been engaging in oral sex voluntarily.
10.Having examined the material obtained in the course of the inquiry, P., the investigator, discerned no evidence to support the applicant’s allegations of rape and on 26July 2012 issued a decision declining to open a criminal investigation against the alleged perpetrators.
11.On 2August 2012 the head of the inter-district investigative committee quashed the decision of 26July 2012, noting that the investigator had not questioned all the alleged perpetrators and had failed to obtain the results of the forensic examination.
12.On 12August 2012 P. declined to open a criminal investigation. The relevant decision reiterated verbatim the wording of the decision of 26July 2012.
13.On 17August 2012 the deputy head of the investigative committee quashed the decision of 12August 2012, noting that the investigator had failed to comply with the decision of 2August 2012.
14.On 27August 2012 P. issued a decision declining to open a criminal investigation. The wording of that decision reiterated that of his earlier decisions and added that the forensic examination of biological material obtained from one of the perpetrators had not been completed. The said decision was quashed by the deputy head of the investigative committee on 4October 2012.
15.On 3November 2012 P., the investigator, declined to open a criminal investigation. He based his findings on the material collected in the course of the first inquiry. In addition, he relied on the statements made by the other three alleged perpetrators and the results of the forensic analysis, according to which the sperm found on the towel wipes could belong to Dzh.N. or K.G.
2.Criminal investigation
16.On 28November 2012 the head of the investigative committee opened a criminal investigation into the applicant’s allegations of rape.
17.On 15January 2013 the applicant was granted the status of victim of a crime and advised of her procedural rights.
18.On several occasions the investigator questioned the alleged perpetrators. The submissions that they made during that questioning are summarised in Annex I below.
19.On 10 and 11March 2013 M.G., Dzh.A., K.G., Dzh.N., Sh.D., M.M., N.A., and M.Kh. were arrested and remanded in custody on the charges of rape.
20.On 13 and 19March 2013 they were released.
21.On 17June 2013 the forensic expert prepared a report concerning the examination of the flash memory drives of six mobile telephones which the investigator had earlier obtained from the alleged perpetrators. The expert indicated that it was impossible to restore the flash memory drives of the phones because the laboratory did not have the necessary equipment.
22.On 9August 2013 the forensic expert concluded that the genetic material collected at the location indicated by the applicant could not have originated from Dzh.A., K.G. or Dzh.N.
23.On 4October 2013 an investigator, Z., ordered that the applicant undergo a polygraph test. On 7October 2013 the applicant underwent the test. According to the polygraph specialist’s report, the applicant had been telling the truth when she had said that M.G. had sexually assaulted her at the B. Hotel, that he had blackmailed her and that he had slapped her.
24.On 9October M.G. underwent a polygraph testing. The polygraph specialist concluded, on the basis of the answers provided by M.G., that it was probable that he had blackmailed or threatened the applicant and had coerced her into performing oral sex on him at the B. Hotel.
25.On 6December 2013 D., an investigator, suspended the investigation.
26.On 13January 2014 the first deputy head of the republican investigative committee determined that the criminal investigation had been incomplete and perfunctory and quashed the decision of 6December 2013, ordering a further investigation.
27.On 25February 2014 D. discontinued the criminal investigation, noting that there was no evidence, except for the applicant’s statements, implicating seven of the alleged perpetrators.
28.On 16May 2014 D. discontinued, on similar grounds, the criminal investigation against M.G. and A.P.
29.On 20June 2014 the Sovetskiy District Court dismissed a complaint lodged by the applicant against the decision of 25February 2014. On 20August 2014 the Supreme Court upheld the said decision on appeal.
30.On 28January 2015 the deputy head of the second division of the republican investigative committee quashed the decision of 16May 2015 and reopened the criminal investigation against M.G. and A.P. On the same date he discontinued the criminal investigation.
31.On 29January 2015 the District Court dismissed the applicant’s complaint against the decision of 16May 2014. On 1April 2015 the Supreme Court of the Dagestan Republic upheld the decision of 29January 2015 on appeal.
32.On 1September 2015 the District Court quashed the decision of 29January 2015.
33.On 30September 2015 the Presidium of the Supreme Court quashed the decisions of 20June 2014 and 20August 2014.
34.On 2October 2015 the investigative committee reopened the criminal investigation against M.G. and A.P.
35.On the same date the investigative committee discontinued the criminal investigation.
36.On 27October 2015 the District Court accepted the applicant’s argument that the investigation had been incomplete and found the decision of 25February 2014 to have been unlawful.
37.After the reopening of the case, the investigator questioned Dzh.A., K.G., Dzh.N. and Sh.D.
38.On 30January 2016 the criminal investigation was discontinued. The investigator relied on the statements made by the applicant, her parents and the alleged perpetrators, and forensic evidence. He also indicated in the decision to discontinue the investigation that he had received a response from the relevant mobile-telephone service providers that they had not been able to obtain and submit information concerning mobile communications between the applicant and the alleged perpetrators. The investigator concluded as follows:
“... the allegations that [the applicant was raped] are confirmed only by [the applicant] and her parents ... who learned about them from [the applicant]. The [applicant’s] allegations contradict the statements of many witnesses and the forensic evidence. [The alleged perpetrators] denied the [applicant’s] accusations. They maintained their innocence in [the applicant’s] presence.
The investigation has not produced any additional evidence that would support the [applicant’s] allegations. The [sexual] crimes were committed in the absence of witnesses, and obtaining proof of those crimes has become problematic. It should be also taken into consideration ... that a significant amount of time has passed since the crimes were committed.”
3.Investigation case file
39.On 18November 2016 the Government were requested to submit a complete investigation file in the applicant’s case.
40.On 29March 2017 the Government submitted an incomplete copy of the material from the case file (comprising 898 pages, including seventeen pages containing nine tables of contents). According to the tables of contents, the complete case file comprised nine volumes totalling 1,882pages. No explanation was given for the failure to submit the complete case file, as had been requested.
41.In particular, the Government did not submit any of the material referred to by the investigator in his decision of 30January 2016 as regards mobile communications between the applicant and the alleged perpetrators.

1. The applicant, A.S. is a Sudanese national, who was born in 1986 and lives in the Netherlands. He was represented before the Court by Mr C. den Hartogh, a lawyer practising in the Netherlands, who has also assisted the applicant throughout the domestic proceedings set out below. The President decided ex officio not to disclose the applicant ’ s identity to the public (Rule 47 § 4 of the Rules of Court).
2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, who was succeeded by Ms B. Koopman, and their Deputy Agent, Ms L. Egmond, who was succeeded by Ms K. Adhin, all 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 2 September 2011 the applicant applied for asylum in the Netherlands, claiming fear of persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). On the same day the immigration authorities held a first interview ( eerste gehoor ) with the applicant about his identity, nationality and travel itinerary. The applicant stated among other things that he had travelled by boat from Port Sudan to Greece where he had stayed for about three months and from where he had travelled by boat to the Netherlands where he had arrived on 20 July 2011. He did not have any travel or identity documents and his journey had lasted about four months in total.
5. A written record of this interview was drawn up and the applicant was given the opportunity to submit corrections and additions, which the applicant ’ s lawyer did on the applicant ’ s behalf on 5 September 2011. In these written corrections and additions, the applicant ’ s lawyer mentioned that the applicant bore several scars on his body and requested the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie, Integratie en Asiel; “the Minister”) to have these scars examined. No such examination took place.
6. On 6 September 2011 a further interview ( nader gehoor ) was held with the applicant about his reasons for seeking asylum. A written record of this interview was drawn up and on 7 September 2011 the applicant ’ s lawyer submitted written corrections and additions, again including a request to have the applicant ’ s scars examined.
7. In his interviews, the applicant stated that his family originally hailed from Darfur and belonged to the Al Gimr population group. The applicant himself was born in a village near Khartoum, where he had lived all his life. He was married and had a daughter. His spouse and their child had not accompanied him but were living in the village in the household of his parents and his youngest brother. The applicant had never been politically active in Sudan. In March 2010 he had been arrested in his home by the National Intelligence and Security Service (“ the NISS”). He was suspected of belonging to the rebel group Al-Ade wa Al Musawat (Justice and Equality Movement (“ the JEM”)) and involvement in the attack of 12 May 2008 on Omdurman. This city lies on the western banks of the river Nile, opposite the capital Khartoum. He had been held for one year, during which period he had been ill-treated for the purpose of obtaining a confession from him. He had been taken thrice before a judge. On the last time he had been sentenced to death. During his detention, he had developed an itchy skin rash on his arms and torso. After one year he had managed to escape with the help of his uncle, who had bribed some of his guards. The applicant did not submit documents or other items to substantiate his claim.
8. On 8 September 2011 the Minister notified the applicant of his intention ( voornemen ) to reject the asylum application. On 9 September 2011 the applicant ’ s lawyer submitted written comments ( zienswijze ) on the Deputy Minister ’ s intended decision.
9. By decision of 12 September 2011 the Minister rejected the asylum application. In the absence of a detailed, coherent and verifiable account, the Minister disbelieved the applicant ’ s account of his journey from Sudan to the Netherlands. The Minister further did not believe the applicant ’ s claim that he had been arrested in Sudan. On this point, the Minister noted that the applicant had stated that, when he had been arrested by the NISS, they had mentioned his name whereas, according to the applicant, he was not registered in Sudan. According to the Minister the applicant had failed to demonstrate how the NISS had discovered his name and address. Furthermore, the Minister did not attach credence to the applicant ’ s account of his escape. In this respect the Minister noted that it appeared from the country assessment report on Sudan drawn up by the Netherlands Ministry of Foreign Affairs on 22 June 2011 that persons arrested by the NISS were detained at unknown locations. It was therefore disbelieved that, as stated by the applicant, his uncle had managed to track him down and to bribe his guards. He had further failed to establish why two guards would risk their lives to help someone escape who had been sentenced to death.
10. The applicant appealed this decision. He further submitted a report of the Medical Examination Group of the Dutch Section of Amnesty International ( Medische onderzoeksgroep; “ the MOG”) of 27 January 2012, which concluded that the applicant ’ s injuries could be the result of the ill ‑ treatment he claimed to have undergone.
11. The report summarised the applicant ’ s asylum statements, described the applicant ’ s state of health and provided an interpretative opinion ( interpretatie bevindingen lichamelijk onderzoek ). It stated inter alia :
“The [applicant] has been arrested and blindfolded at night by 4 armed men and transported by car. He was accused of involvement with the [JEM] which he denied, but he was beaten with sticks and cables, also on his hands and feet, hanged by his cuffed hands and cold water poured over him. He stated that his ears had been pulled with pliers ....
The [applicant] has fallen ill in the prison in Sudan, he got a rash on his arms and torso with a lot of itching all over his body; he also got a small swelling on a buttock which, in the [applicant ’ s] words, has been cut out in prison. Because he was hit with a heavy iron bar on his toe, the nail of his big toe had loosened which had caused him a lot of pain. He had also been beaten on his calve with a baton with a nail sticking out which had caused a big wound due to which and for about 6 months he could poorly or barely walk. ...
The impaired and painful movement pattern of the left shoulder fits injuries caused by protracted stretching such as hanging by the arms. The origin of the small scars is less obvious; the [applicant] has been beaten with sticks but not on the naked body; through clothing this usually does not cause scars. The small sharp-defined scars may fit small injuries which were infected but have healed well. The scar on the left wrist may fit a burn. The scar on the left calve may fit an injury caused by a nail. The skin discolorations found on the front and back of the torso would be remnants of scabies suffered [by the applicant], as already also diagnosed and treated by the general practitioner. ...
The [applicant ’ s] mental state can be described as traumatised which shows in his lack of initiative and flat facial expressions; it is very well possible that this stems from the alleged motives. ...”
12. On 16 March 2012 the Minister informed the applicant that the decision of 12 September 2011 had been withdrawn. The applicant therefore withdrew his appeal on 19 March 2012.
13. In his decision of 16 May 2012, following a fresh intended rejection of 25 April 2012 and written comments submitted by the applicant ’ s lawyer, the Minister again rejected the applicant ’ s asylum application. He considered that the applicant ’ s failure to substantiate in a sufficient manner his stated identity, nationality and travel itinerary as well as his failure to give a detailed, coherent and verifiable account of his journey from Port Sudan, via Greece, to the Netherlands, cast doubt on the sincerity of his asylum claim and detracted from the credibility of his asylum statement. As to the question whether nevertheless the applicant ’ s asylum statement should be accepted as positively persuasive ( positieve overtuigingskracht ), the Minister found that this was not the case. The applicant had failed to establish why he had been suspected of involvement in the JEM and on what grounds he had been sentenced to death. It was further considered that the applicant had failed to establish why he had been able to escape prison so easily. The medical report of the MOG did not alter this. The Minister emphasised that he did not challenge the medical complaints described in the report, but only the conclusions attached to them by the applicant. The Minister concluded that no credence could be attached to the applicant ’ s asylum statement and rejected the applicant ’ s arguments under Article 3 of the Convention.
14. On 11 June 2012 the applicant lodged an appeal to the Regional Court ( rechtbank ) of The Hague. He argued inter alia that, other than his Darfuri origins, he was not aware of any reasons why he would be suspected of JEM involvement. However, according to country-of-origin information, this (i.e. his Darfuri origins) could be enough. Thus, a report compiled by the Internal Displacement Monitoring Centre and the Norwegian Refugee Council, dated 23 December 2010, stated:
“Following the 10 May 2008 attack on Omdurman ... by the Darfuri rebels from the Justice and Equality Movement, several human rights organisations accused the Sudanese authorities of arbitrary arrests and detention, beatings, dubious judicial proceedings, extra-judicial executions, torture and ill-treatment of detainees. These practices were largely targeted at Darfuris living in Khartoum/Omdurman on the basis of their ethnic origin or appearance.”
15. The applicant also referred to a Report dated 27 October 2009 of the Panel of Experts established by the United Nations (UN) Security Council pursuant to resolution 1591 (2005) concerning the Sudan, which stated:
“269. The Panel has received a significant number of reports of arbitrary arrest and detention as well as ill-treatment and torture of persons while in the custody of the Government security apparatus. Most of these cases are related to the campaign carried out by NISS and the Military Intelligence with the cooperation of the Ministry of the Interior, in and outside Darfur, against Darfurians suspected of being linked to the attack against Omdurman on 10 May 2008. According to the United Nations High Commissioner for Human Rights, ‘ among those arrested by NISS were hundreds of civilians of Darfurian origin who in many cases appeared to have been targeted solely because of their Darfurian ethnicity or appearance.”
16. In addition, the applicant referred to the United States ’ Department of State 2009 Human Rights Report on Sudan, which included the following:
“Persons continued to be tried in antiterrorism courts in connection with the May 2008 JEM attack on Omdurman. Authorities did not permit defendants access to lawyers before trial, held them incommunicado for up to four months, and reportedly tortured defendants. From April to June the antiterrorism courts sentenced 53 persons to death. At year ’ s end the total number of death sentences in the JEM trials was 103.”
17. As to the Minister ’ s argument that the NISS kept detainees at unknown places and his uncle would therefore not have been able to find him, the applicant referred to country-of-origin information according to which the places of detention were not all that secret and he argued that his uncle had been in the army and that this background may have helped him trace the applicant. As for the country-of-origin information, the applicant referred to an Amnesty International document of 21 January 2010, according to which 106 death sentences had been passed by special courts since July 2008 and that all convicts were male and held in Kober prison in Khartoum.
18. He also referred to a Human Rights Watch report of June 2011 which stated inter alia :
“The security forces have targeted Darfuri activists for detention and t. In late October and early November 2010, for example, NISS arrested a group of 13 Darfuri journalists and human rights activists and detained them in their Khartoum offices before transferring them to Kober prison.”
19. In its judgment of 27 December 2012, following a hearing held on 12 October 2012 which was attended by the applicant and his lawyer, the Regional Court of The Hague sitting in Arnhem rejected the applicant ’ s appeal. In its relevant part, this judgment reads:
“6. ... In accordance with section 31 § 2(f) of the Aliens Act 2000 ( Vreemdelingenwet 2000 ), the circumstance that an alien is unable to submit any travel or identity documents or other materials in support of his asylum application which are necessary to assess that application is also taken into account in the assessment of an asylum application, unless the alien can demonstrate that this inability cannot be imputed to him.
7. It is established that the [applicant] has not submitted any travel documents. In the Court ’ s opinion the [Minister] could in reason have held this against the [applicant], because he has not produced any travel documents or other indicative evidence in substantiation of the account of his journey and neither has he been able to give a detailed, coherent and verifiable account of his travel itinerary. In this the [Minister] could take into account that the [applicant] has been unable to submit indicative evidence of the journey and that the [applicant], who has stated that he has travelled by boat from Port Sudan to Greece and subsequently to the Netherlands is unable to give any information about matters like the name of the boat, under what flag it was sailing and whether it has docked at another harbour on the way. The [Minister] could refuse to accept the mere statement of the [applicant] that he had boarded and disembarked during the night. ...
9. When a circumstance as referred to in section 31 § 2(f) of the Aliens Act 2000 obtains, the asylum statement must – according to paragraph C14/204 of the Aliens Act 2000 Implementation Guidelines ( Vreemdelingencirculaire 2000 ) – have positive persuasiveness in order to attach credence to it.
10. The question then arises whether the [Minister] could in reason consider that the [applicant ’ s] asylum statement lacks positive persuasiveness. In this, the criterion is not the judge ’ s own opinion about the credibility of the asylum statement, but the question whether there is ground for holding that the [Minister] – noting the reasons set out in the intention and the impugned decision, considered in the light of the records drawn up on the interviews, the corrections, additions and written comments – could not in reason have reached his finding about the credibility of the asylum statement.
11. In the court ’ s opinion, the [Minister] could in reason find that the [applicant ’ s] asylum statement lacks positive persuasiveness. In this, the [Minister] has taken into account that the [applicant] has not established what caused his arrest, detention and conviction. The [applicant] has not indicated for what reason he was suspected of involvement with an opposition party in Darfur and his argument that his origin apparently sufficed for the suspicion is merely an own assumption which has remained wholly unsubstantiated. The [applicant ’ s] reference to the Report of the Panel of Experts established pursuant to resolution 1591 (2005) concerning the Sudan does – according to the [Minister] – not affect that it remains for the [applicant] to establish the alleged events which were the cause for leaving the country. According to the Minister, a mere reference to this report does not suffice.
The [Minister] has further found not credible the relatively simple manner in which the [applicant] has escaped. In this, the [Minister] has taken into account that it appears from the official country report ( ambtsbericht ) on Sudan of 27 June 2012, which concerns the period from mid-April 2011 up to and including May 2012, that persons who have been apprehended by the Sudanese authorities are being detained on unknown locations and have in fact (temporarily) disappeared. The [Minister] has found vague and thus dismissed as insufficient, the [applicant ’ s] unsubstantiated claim that his uncle had a military past and thus had been able to find out where the [applicant] was being held. In the [Minister ’ s] opinion, the height of the bribe paid to free the [applicant] contrasts sharply with the life sentence and security measures imposed [on the applicant] and therefore also on this point the asylum statement is not persuasive. The [applicant ’ s] reference to a number of public sources does not render credible that his uncle has been able to find him, in which context the [Minister] has considered that written comments or grounds for appeal are not intended to adapt or make additions to – at wish and at a later stage – statements given by the [applicant].
12. The court further finds that it was possible for the [Minister] to conclude that, although admittedly concluded in the MOG report of Amnesty International submitted by the [applicant] that the noted [medical] complaints (can) fit the events alleged by the [applicant], this does not render his asylum statement positively persuasive. ... [the Regional Court quotes here the conclusion of the Medical Examination Group of the Dutch Section of Amnesty International (see paragraph 10 above) and part of § 187 of the Istanbul Protocol (see paragraph 28 below)] ....
16. The court notes that the gradations used in the MOG report concerning the level of consistency between the [applicant ’ s] medical complaints and what he has presented in his asylum statement about their origins leaves room for many other causes than the alleged torture. It was therefore possible for the [Minister] to adopt the position that the report does not alter the [Minister ’ s] finding about the credibility of the asylum statement. Since the ill-treatment c.q. torture has not been established, there is – other than argued by the [applicant] – no similar situation as in the judgment of the European Court of Human Rights of 9 March 2010, no. 41827/07, R.C. v. Sweden, Jurisprudentie Vreemdelingenrecht [ Immigration Law Reports ] 2010/147.
17. In view of the above and having taken into account the assessment framework as set out in paragraph 10 above, there is no ground for finding that the [Minister] could not reasonably have adopted the view that the [applicant ’ s] asylum statement lacks positive persuasiveness. The court, taking into account that the fear of persecution alleged by the [applicant] is derived from the arrest, detention, conviction and escape which have not been found credible by the [Minister], finds that it was not necessary for the [Minister] to assess the gravity ( zwaarwegendheid ) [of the asylum statement]. This means that the [Minister] has justly concluded that the [applicant] is not eligible for a[n asylum-based] residence permit based on one the grounds set out in section 29 § 1 of the Aliens Act 2000. ...”
20. On 8 January 2013 the applicant lodged a further appeal before the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ). As a further appeal did not have automatic suspensive effect, the applicant applied for a provisional measure ( voorlopige voorziening ) allowing him to remain in the Netherlands pending the outcome of the further appeal. On 11 March 2013 the President of the Administrative Jurisdiction Division rejected the request for a provisional measure, finding that it was unclear whether and, if so when, removal would take place. This finding was not altered by the circumstance that on 20 February 2013 the applicant had been placed in immigration detention ( vreemdelingenbewaring ).
B. Subsequent developments
21. The application was lodged with the Court on 20 March 2013, together with a request to issue an interim measure under Rule 39 of the Rules of the Court seeking that the applicant ’ s removal to Sudan be stayed pending the proceedings before the Court.
22. On 9 April 2013 the Acting President of the Section to which the case had been allocated decided to grant the request to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Sudan until further notice. On 12 April 2013 and in connection with the decision to apply Rule 39, the order for the applicant ’ s placement in immigration detention was lifted and the applicant was released from immigration detention.
23. The applicant ’ s further appeal of 8 January 2013 was rejected on 12 February 2014 by the Administrative Jurisdiction Division. It held that under section 91 § 2 of the Aliens Act 2000, no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against that ruling.
C. Relevant domestic law and practice
24. The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000. Further rules are laid down in the Aliens Decree 2000 ( Vreemdelingenbesluit 2000 ), the Regulation on Aliens 2000 ( Voorschrift Vreemdelingen 2000 ) and the Aliens Act 2000 Implementation Guidelines ( Vreemdelingencirculaire 2000 ). The General Administrative Law Act ( Algemene Wet Bestuursrecht ) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in the latter Act.
25. Section 13 of the Aliens Act 2000 provides that an application for a residence permit shall be granted only if:
a) international obligations require this;
b) the presence of the alien would serve a genuine interest of the Netherlands, or
c) urgent reasons of a humanitarian nature require this.
1. Asylum applications
26. A general overview of the relevant domestic law and practice as regards asylum proceedings has been set out in X v. the Netherlands (no. 14319/17, §§ 34-40, 10 July 2018).
2. Domestic policy in respect of Sudanese asylum seekers
27. An official country report ( algemeen ambtsbericht ) on Sudan released by the Netherlands Minister of Foreign Affairs in June 2011 and covering the situation in Sudan in the period between May 2010 and mid ‑ April 2011, states inter alia:
“In February 2010, the government of Sudan and the JEM signed a framework agreement in which the parties declared a cease-fire, and agreed on an amnesty for members of the JEM and release of all JEM prisoners and convicts. According to the framework agreement, a definitive agreement should be signed by 15 March 2010. However, this deadline was not met. In March 2010, the government of Sudan also concluded with the Liberation and Justice Movement (LJM) a framework agreement, including a cease-fire, which should form the starting point for further negotiations. In response to the negotiations between the LJM and the government, the JEM suspended the negotiations with the government.”
28. The official country report on Sudan, released by the Minister of Foreign Affairs on 20 June 2017, covering the situation in Sudan in the period between July 2015 and the end of May 2017, contains the following statements:
“During the reference period various parties ... have made attempts to obtain the return to the negotiating table of the [Sudanese] government and the rebel movements who have not signed the Doha Document for Peace in Darfur, such as the Justice and Equality Movement (JEM)/Gibril, the Sudan Liberation Army/Minni Minnawi (SLA/MM) and the Sudan Liberation Army/Abdul Wahid (SLA/AW).
On 8 August 2016 SLA/MM and JEM-Gibril as members of the Sudan Call signed the AUHIP [African Union High Level Implementation Panel for the Sudan and South Sudan] roadmap after all and the next day negotiations about a cease-fire were resumed. ... JEM and SLA/MM are no longer a significant factor in Darfur as a consequence of the effective strategy of the government to curb the uprising. JEM now mainly operates in South-Sudan. ...
According to a source about one million Fur from Darfur are living in Khartoum and its surrounding area. Most Darfuris are living in poor neighbourhoods in North-Khartoum ..., the area between the Blue and the White Nile ... and in Omdurman ... Sometimes dilapidated neighbourhoods are cleared and their inhabitants forced to move further away from Khartoum. Darfuris and persons hailing from the Two Areas who can afford it are living in better neighbourhoods of the city, including the centre.
The improved economic situation in Khartoum, including improved employment rates, is one of the pull factors of migration from Darfur and the Two Areas to Khartoum. Many find work in the informal sector, for instance as guards, and in construction and agriculture. Many Darfuris work in laundry shops all over Khartoum. Darfuris are also working as university teachers. Because it is difficult for Darfuris and persons originating from the Two Areas to find work in the formal sector, those with an academic degree look for work abroad, for instance in the Gulf States or Europe.
Darfuris and persons originating from the Two Areas are still often referred to by members of Arabic tribes as ‘ slave ’. However, despite systematic discrimination Darfuris and persons originating from the Two Areas can maintain themselves reasonably in daily life in Khartoum. They are not as much discriminated against by other citizens but by the public order police who extort them and by some authorities. According to sources in Khartoum, Darfuris are not looked down upon because of their ethnicity but because of their bad economic circumstances. ...
In general, it can be said that persons, who are considered a threat by the Sudanese authorities, risk falling victim to human rights violations upon return, including detention and torture. An example might be human rights defenders having profiled themselves as critical. According to various sources, this would only concern a small number of Sudanese asylum-seekers. It is assumed that the Sudanese Government monitors activities of opponents abroad but from this side it is not known to what extent and what the consequences thereof are. According to various sources, there are no indications that rejected asylum-seekers from Darfur or the Two Areas, after their forced return, have encountered problems upon arrival in Khartoum. Some rejected asylum-seekers have been removed from Switzerland and Norway during the reference period. None of them have been arrested upon return.”
29. On 20 November 2017 the Deputy Secretary of Justice and Security sent a letter to the Lower House of Parliament ( Tweede Kamer der Staten ‑ Generaal ) on the country-specific asylum policy in respect of Sudan. In its relevant part, it reads as follows:
“On 20 June 2017 the Minister of Foreign Affairs has released a new official country assessment report on Sudan, describing the situation in that country from July 2015 up to and including May 2017. Insofar as relevant for policy determination, it appears from this report that the security situation in Darfur as well as in the areas of South Kordofan and Blue Nile has remained as bad as before. A national dialogue between the government and the (armed) opposition, which took place during the reporting period, has brought little change. Although some rebel groups have laid down their weapons, most opposition groups and the most important (armed) opposition group have boycotted the national dialogue. Just as during the previous reporting period, the situation in the conflict areas is diffuse and volatile. In the areas, there is still random violence and large numbers of refugees and displaced persons. In South Kordofan and Blue Nile, armed opposition groups continue their battle against the government. In Darfur, the battle dynamics have evolved from rebels versus the government to a multitude of actors in a diversity of conflicts. The highest number of battles in this region no longer takes place between government and rebel forces but in the context of tribal violence.
For the purpose of careful decision-making in individual cases and in order to be able – in assessing these cases – to do justice to the complex and evolving situation, some adjustments to the applicable policy are called for.
The starting point of the country-specific asylum policy in respect of Sudan remains that asylum applications of Sudanese foreign nationals are assessed on the basis of the individual asylum statement of the asylum-seeker. At the same time, special policies remain in place for specific population groups and specific areas in Sudan, but certain components must be adjusted.
Under the policy of previous years – in contrast to the other parts of Darfur – West Darfur was not considered as being in a situation as meant in Article 15c of the [Council Directive 2004/83/EC of 29 April 2004] Qualification Directive, because the situation there was relatively calm and stable. However, it appears from the official country assessment report that during the reporting period violent tribal violence, resulting in deaths and large numbers of displaced persons, has emerged also in West Darfur. The reason for the difference in policy between the different parts has thus been cancelled, especially now that most of the fighting takes place in the other parts of Darfur as part of tribal violence. In view of this, the policy has been adjusted in such a way that a situation as referred to in Article 15c of the Qualification Directive is now assumed to pertain throughout Darfur. The reason to differ in policy between the different parts has thus ceased to be valid, the more so now also in the other parts of Darfur most of the fighting occurs in the framework of tribal violence. In view of this, the policy has been adjusted in such a way that a situation as referred to in Article 15c of the Qualification Directive is now assumed to pertain throughout Darfur.
A further policy adjustment is called for, because it appears from the official report that the security situation has deteriorated for people who are committed to promoting respect for human rights. They are monitored, threatened, arrested, detained, ill-treated and persecuted by the Sudanese security services. Human rights activists are therefore designated as an at ‑ risk group in the policy. This means that in respect of foreigners, who have demonstrated that they have been active in the field of human rights in Sudan, limited indications suffice to make a plausible case that problems connected with one of the grounds for persecution give rise to a well-founded fear of persecution. However, the individualisation requirement ( individualiseringsvereiste ) will remain applicable to foreigners who belong to this at-risk group.
It is expected that the above policy adjustments will have limited significance for the granting of permits. The influx of foreigners from Sudan is relatively constant. Moreover, the policy in respect of internal fight or internal relocation to another location in Sudan has remained unchanged.”
30. The policy changes indicated in this letter are included in the decision of 31 May 2018, no. 2018/3, amending the Aliens Act 2000 Implementation Guidelines ( Wijzigingsbesluit Vreemdelingencirculaire 2000; “WBV 2018/3”) which entered into force on 13 June 2018. Under the new policy in respect of Sudan only those persons are considered as belonging to a risk-group:
- a non-Arab population group, hails from Darfur and had his/her normal residence there before arriving in the Netherlands; or
- a non-Arab population group from the Nuba mountains and had his/her normal residence there before arriving in the Netherlands.
It is further accepted under the new policy and in respect of persons hailing from Darfur and from South Kordofan (including Abyei) and Blue Nile, that in those areas the general situation is such that removal must be regarded as entailing a real risk of incurring serious harm.
D. Relevant international materials
31. In paragraph 187 of the United Nations Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Istanbul Protocol”; see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 100, ECHR 2004 ‑ IV (extracts)) it is stated:
“For each lesion and for the overall pattern of lesions, the physician should indicate the degree of consistency between it and the attribution given by the patient. The following terms are generally used:
(a) Not consistent: the lesion could not have been caused by the trauma described;
(b) Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes;
(c) Highly consistent: the lesion could have been caused by the trauma described, and there are few other possible causes;
(d) Typical of: this is an appearance that is usually found with this kind of trauma, but there are other possible causes;
(e) Diagnostic of: this appearance could not have been caused in any way other than that described.”
32. The Country of Origin Information Report on Sudan, released on 16 April 2010 by the UK Home Office contains the following passages:
“This Country of Origin Information Report (COI Report) has been produced by COI Service, United Kingdom Border Agency (UKBA), for use by officials involved in the asylum/human rights determination process. The Report provides general background information about the issues most commonly raised in asylum/human rights claims made in the United Kingdom. The main body of the report includes information available up to 1 March 2010. The ‘ Latest News ’ section contains further brief information on events and reports accessed from 2 March 2010 to 10 April 2010. ...
18 March [2010] Sudan signed a ceasefire agreement with a second Darfur rebel group as part of the Government ’ s campaign to resolve the conflict before elections. However there were concerns the recent deal with the Liberation and Justice Movement (LJM), an umbrella group of small factions, could threaten the continued fragile peace accord signed by the Justice and Equality Movement (JEM). A spokesperson for JEM dismissed the latest deal with the LJM as ‘ meaningless ’. ...
17 March [2010] Amid signs the peace deal with the Justice and Equality Movement (JEM) was faltering, Sudanese security officials [re-]arrested 15 Darfur rebels weeks after President Al Bashir had pardoned and freed them as part of the Darfur peace process. Reuters Africa, Sudan security re ‑ arrests Darfur rebels: lawyer, 17 March 2010 ...
3 March [2010] The rebel Justice and Equality Movement (JEM) leader, Khalil Ibrahim, threatened to pull out of peace talks with the Government, because of parallel talks being progressed with other rebel groups. JEM has wanted to progress peace talks exclusively with the government and represent the collective interests of the various Darfur rebel groups. ...
Trials relating to the Justice and Equality Movement attack on Omdurman – 10 May 2008
13.16 With regard to trials connected to the 10 May 2008 Justice and Equality Movement attack on Omdurman, the USSD Report 2008: Sudan, noted that there were special anti-terrorism courts set up to hear such cases but they ‘ ... did not have the same rights as those tried in regular courts ’.
13.17 The Human Rights Watch report, End Unfair Trials, dated 24 June 2008, noted that Special Courts were created under terrorism law to specifically try individuals accused of participating in the Omdurman attack by JEM in May [2008]: ‘ ... Lawyers for some of the 36 defendants told Human Rights Watch that they had limited or no access to their clients and described the court proceeding as arbitrary, forcing some defense lawyers to withdraw. Under Sudanese law, a defendant can be convicted on the basis of a confession made while in incommunicado detention or during coerced interrogations. ’
13.18 The Report of the Special Rapporteur on the situation of Human Rights in the Sudan, published June 2009, noted that:
‘ In April and May 2009, anti-terrorism courts in Khartoum sentenced a further 41 individuals to death for participation in the May 2008 JEM attack, bringing the total number of death sentences for participation in the attack to 91. As in earlier trials, those condemned were convicted of charges under the Criminal Act, Anti-Terrorism Act, and Arms, Ammunitions and Explosives Act. The charges did not aim to establish individual criminal responsibility for killing or injuring civilians or recruiting child soldiers. Instead, they referred mainly to collective crimes including criminal conspiracy, membership of a terrorist organization and waging war against the state. Defendants were not granted access to defense counsel until the trials began. The accused were held incommunicado for up to four months before the trials, during which most of them registered confessions they later retracted in court, alleging the statements were made under duress. Nonetheless, the confessions were admitted as prosecution evidence and eventually formed part of the basis for the verdicts. In a meeting between the Special Rapporteur and the National Assembly ’ s Human Rights Committee on 3 June 2009, the Committee stated the court sessions were closed, and that its members were not able to attend. ’
13.19 The Report of the Secretary-General on the deployment of the African Union-United Nations Hybrid Operation in Darfur, dated 13 July 2009, reported that on 9 June 2009, a criminal court in Khartoum sentenced a further ‘ 12 members of the Justice and Equality Movement to death for their involvement ... [in the May 2008 attacks], bringing the total number of death sentences for members of the Justice and Equality movement to 103. ’
13.20 Reuters Africa reported on 20 January 2010, that a Khartoum court had passed a further two death sentences against suspected JEM members. A total of 105 people awaiting execution, were due to be freed under a good will agreement following the release of 82 prisoners by JEM in 2009. On 24 February 2010, Reuters Alertnet reported that the government had ‘ ... freed 57 JEM fighters, half the number of men imprisoned by Khartoum after being implicated in the insurgent force ’ s shock attack on the capital in 2008. ... The releases were promised as part of the new JEM ... [temporary ceasefire agreed on 20 February 2010]. ’ ...
JEM and the aftermath of the Omdurman attack of May 2008
17.22 The Guardian article dated 12 May 2008, entitled ‘ Sudan severs Chad ties after Darfur rebels attack capita ’ observed that:
‘ The assault by the Justice and Equality Movement (JEM) on Omdurman on Saturday [9 May 2008] marked the first time in decades of civil war that any rebel group had reached Sudan ’ s capital. Government forces repulsed the attack, which prompted an overnight curfew in Khartoum, and accusing fingers were immediately pointed towards neighbouring Chad.... Chad denied any involvement, but it does have a history of close military ties with JEM. ... Unlike other Darfur rebel movements, JEM has a countrywide agenda, and has launched previous attacks in Kordofan, including an assault on a Chinese-run oilfield last year. It accuses Bashir ’ s Arab-dominated regime of propagating inequality throughout Sudan, and wants the different regions to have a stronger say in national government.
With just a few thousand fighters, JEM is vastly outnumbered and outgunned by the 100,000 strong Sudanese army. But it does have money and powerful benefactors. ’
17.23 The UN Report of the Special Rapporteur dated June 2009 in considering the impact of the Omdurman attack reported:
‘ Government security forces arrested hundreds of people in Khartoum and other parts of Sudan on suspicion of alleged involvement. The UNMIS [United Nations Mission in Sudan] Human Rights section received reports of the arrests of close to 1,000 people, the majority of whom were ethnic Darfurians, and repeatedly sought confirmation of the arrests and detentions from the authorities since May 2008. The Special Rapporteur was pleased to attend the Human Rights Forum on 26 May 2009, where discussions were held to clarify the fate of around 200 people, including eight presumed children, who are not known to have been either charged or released following their reported arrests. On 3 June the Special Rapporteur met with the General Prosecutor for Khartoum State. According to the Prosecutor, 51 people were dismissed at the investigation stage by the Prosecutor; 24 were dropped at the trial stage by the Court; 53 were released on bail; 24 were released by Presidential decree; 12 were referred to Juvenile Court; 3 were acquitted on account of mental illness and referred to mental hospital; 91 convicted and sentenced to death; and one convicted and sentenced to five years imprisonment. The Prosecutor did not provide information on the approximately 200 people whose status and whereabouts remained unconfirmed. ’
17.24 Similarly Human Rights Watch in its report The Way Forward: Ending Human Rights Abuses and Repression across Sudan dated October 2009 reported that: ‘ [t]he fate of up to 200 people who “disappeared” in the government crackdown after the May 2008 attack on Omdurman by Justice and Equality Movement (JEM) rebel forces remains unknown, while at least ten are still being held incommunicado without charge 15 months after their arrest. ... ’
17.25 Amnesty International ’ s (AI) 2009 Annual Report for Sudan, covering events in 2008, observed that following the JEM attack on Omdurman on 10 May 2008:
‘ Hundreds of civilians were arrested in the aftermath, with reports of extrajudicial executions, torture and other forms of ill-treatment. Many people were held incommunicado in unofficial places of detention. The youngest victim of such detention was a nine-month-old infant who was held with his mother underground in a detention centre for two months. At least one individual died as a result of ill ‑ treatment in detention during the first two weeks after the arrests... Although many of the arrested individuals were released, many remained unaccounted for, their whereabouts and fate unknown. ’
17.26 The USSD Report 2008 also noted that: ‘ NISS arrested and detained large numbers of Darfuris in May and June [2008] following the May 10 JEM attack on Omdurman. Human rights organizations claimed that while most of the detainees were released, the government continued to hold several hundred detainees without charges at year ’ s end. ’ The same report further added that: ‘ Several members of S[udan] L[iberation] A[rmy]/Minni Minawi were arrested at their homes, beaten, and detained overnight following the May 10 JEM attack. ’
17.27 The UN Human Rights Council (UNHRC) Report of the Working Group on Enforced or Involuntary Disappearances (EID), published in February 2009 noted:
‘ ... Credible sources reported that following an attack on 10 May 2008 by rebel forces [JEM] on Omdurman (one of the three towns that form the Sudanese capital of Khartoum) the Sudanese authorities arrested hundreds of men, women and children, many of whom were subjected to disappearance.
Many of those arrested were picked up in public locations, such as on public transport and on the street. State agents are reported to have transferred an unknown number of detainees to locations outside Khartoum, such as Shandi to the north of the capital and Port Sudan in eastern Sudan.
Allegedly, many relatives of arrested or disappeared individuals reported that they have been unable to get information on the whereabouts of their loved ones, and that the authorities have refused to acknowledge that they are in detention.
Reportedly, relatives who have tried to locate detainees contacted the media or the National Intelligence and Security Services Information Office have themselves been harassed and risked being arrested. ... ’
Treatment of ethnic groups from Darfur
... 22.33 Amnesty International ’ s (AI) 2009 Annual Report for Sudan, covering events in 2008, recorded that following the JEM attack on Omdurman on 10 May [2008] government forces combed Omdurman, arresting and detaining any individual – man, woman or child – of Darfuri appearance, those suspected of supporting opposition groups, and especially Zaghawas. Whilst the UN Report of the Special Rapporteur, dated June 2009, also noted that the UNMIS [United Nations Mission in Sudan] Human Rights section received reports, following the May 2008 attack, ‘ ... of the arrests of close to 1,000 people, the majority of whom were ethnic Darfurians. ’
22.34 The UN Report of the Panel of Experts, dated 29 October 2009, also documented that it received ‘ a significant number of reports of arbitrary arrest and detention, as well as ill-treatment and torture of persons while in the custody of the Government security apparatus ’ The report further noted that most cases were ‘ ... against Darfurians suspected of being linked to the attack against Omdurman on 10 May 2008 ’. The report went on to quote the findings of the United Nations High Commissioner for Human Rights (OHCHR), report dated 28 November 2008, who observed: ‘ [following the JEM attack in May 2008] among those arrested by NISS were hundreds of civilians of Darfurian origin who in many cases appeared to have been targeted solely because of their Darfurian ethnicity or appearance. ’ ...
22.35 The OHCHR ’ s report, entitled Tenth Periodic report of the UN High Commissioner for Human Rights on the situation of human rights in the Sudan, dated 28 November 2008, observed:
‘ Darfurians in the Khartoum area are at heightened risk of being subjected to arbitrary arrests, in particular if they are suspected of maintaining links with Darfurian rebel groups or political movements. Darfurians may raise the suspicion of the security forces by the mere fact of travelling from other parts of Sudan to Darfur, by having travelled abroad, or by having been in contact with individuals and organizations abroad. Over the past three years, United Nations human rights officers have conducted numerous interviews with Darfurians who have been arbitrarily arrested and detained. Many reported that they were ill-treated and tortured. Reports on the questioning which they underwent in detention indicate that most of the detentions were carried out to obtain information about Darfurian political groups and rebel movements. ’ ...
22.37 The UN Report of the Panel of Experts, dated 29 October 2009, also reported that it documented specific cases of human rights violations carried out by the National Intelligence Security Services (NISS), which included mistreatment of individuals of Darfurian origin (although ethnicity is not specified as the reason for the ill-treatment in the report).”
33. The United States (US) State Department ’ s Country Reports on Human Rights Practices for 2010, issued on 8 April 2011, noted the following in respect of Sudan:
“There were no further developments in the cases of up to 2,500 Darfuris detained by the NISS following the 2008 JEM attack. Most had been released by the end of 2008. According to information in a July Amnesty International report, there may be approximately 200 persons whose whereabouts remained unknown. ...
In January antiterrorism courts tried and convicted two additional persons in connection with the 2008 JEM attack on Omdurman, bringing the total number of death sentences in the trials to 106. In trials involving these cases, authorities did not permit defendants access to lawyers before trial, held them incommunicado for up to four months, and reportedly tortured defendants. On February 24, following the signing of the framework agreement with the JEM, the government released 50 of the prisoners sentenced to death in these trials. Reportedly, some persons acquitted by these trials were not released, and authorities rearrested other persons who had been released.”
34. The US State Department ’ s Country Reports on Human Rights Practices for 2011, issued on 24 May 2012, states in respect of Sudan:
“The whereabouts of an unknown number of Zaghawa Darfuris detained in Khartoum following the Justice and Equality Movement ’ s (JEM) attack on Omdurman in 2008 remained unknown.”
35. In August 2016, a joint report “ Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum ” was released by the Danish Immigration Service and UK Home Office on joint fact finding missions to Khartoum, Kampala and Nairobi conducted in March 2016. The report focuses on the situation of persons from Darfur and the Two Areas (Southern Kordofan and the Blue Nile State) in Khartoum, including treatment of such persons upon arrival at Khartoum International Airport, treatment by the authorities in Khartoum, prevalence of societal discrimination, and living conditions in Khartoum. Its executive summary reads:
“Sizeable populations from Darfur and the Two Areas reside in Khartoum. There are two main drivers behind the immigration of persons from these areas to Khartoum: the security situation in Khartoum and the socio-economic factors.
Persons with a political profile returning to Sudan may be questioned and/or arrested upon arrival at Khartoum International Airport (KIA) depending on the person ’ s profile. Seeking asylum abroad would not in itself cause persons from Darfur and the Two Areas problems with the authorities upon return except returnees from Israel. Neither would returnees face severe difficulties with the authorities because of staying abroad for a longer period or travelling with emergency papers. A person ’ s ethnicity would not generally affect the treatment, he or she would receive on arrival at KIA.
The National Intelligence and Security Service (NISS) acts with impunity. Persons from Darfur and the Two Areas with a political profile are at risk of being targeted by the NISS and its affiliated militias in Khartoum, particularly student activists and persons with an affiliation to rebel groups. The Darfuri and Two Areas communities in Khartoum are monitored by the NISS, principally to identify those with a political profile. Activists at most risk are likely to be those from the Darfuri African tribes of Fur, Masalit and Zaghawa, and persons from the Nuba Mountains.
Persons from Darfur and the Two Areas have access to documents, housing, education and healthcare in Khartoum. However, the quality of these services is low in the poor neighbourhoods surrounding Khartoum where a majority of these persons live. The main factor regarding access to housing and services is the person ’ s financial resources. There is in practice limited humanitarian assistance provided in Khartoum to those displaced by violence elsewhere in Sudan. Most Darfuris and persons from the Two Areas work in the informal sector as their access to employment in a number of sectors, particularly the public sector, is limited due to discrimination as well as the general adverse economic conditions in Sudan. Those working illegally, for example women selling tea without a licence, are at risk of arrest and prosecution under Public Order laws as well as harassment and extortion by the police.
Persons from Darfur and the Two Areas, and in particular those of African descent, may experience societal discrimination in Khartoum.
It is possible to travel by road and air between Khartoum and Darfur as well as Khartoum and the Two Areas. A person has to go through checkpoints controlled by different actors (the government, rebel groups and local armed groups). Access to certain parts of the Two Areas is restricted.
In general, Khartoum is a safe place for persons fleeing from a private conflict in their local areas. However, the level of security depends on individual circumstances, particularly whether the other party in the conflict has connections with the authorities.”
36. According to the Swedish Migration Board Country Information Service (Lifos) report of 6 December 2016 on the security situation in Darfur and the situation for internally displaced persons in Khartoum, both the cultural affiliation and the skin colour of a person are of importance in the Sudanese society. Reports from several initiated sources state that people are discriminated against in society because of their ethnicity. Which ethnic group a person belongs to affects the understanding of that person ’ s political affiliation. Human rights activists, political opponents to the regime, leaders in civil society, students, lawyers and journalists risk intimidations from the authorities. They can be arrested and detained by the NISS without charge or trial. People from some non-Arab groups can be perceived as rebel affiliated and people from Darfur with a political profile, can be at risk also in Khartoum.
37. The final report of the Panel of Experts on the Sudan established by the UN Security Council pursuant to resolution 1591 (2005), as sent on 9 January 2017 to the President of the Security Council, states amongst other things:
“JEM and ... no longer have a significant presence in Darfur as a result of the Government ’ s effective counter-insurgency strategy. JEM now operates mostly in South Sudan, while.... operates mainly in Libya. These groups are engaged in mercenary activities and, allegedly, in criminal activities in those countries. ...”
38. The United Kingdom Home Office Country Policy and Information Note “ Sudan: Non-Arab Darfuris ”, released in August 2017, states inter alia as follows:
“3.1.1 The security, human rights and humanitarian situation in Darfur continues to be poor. Non-Arab Darfuris in the Darfur region are likely to face human rights violations which amount to serious harm or persecution.
3.1.2 Existing case law has found that non-Arab Darfuris as an ethnic group are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan, including to Khartoum.
3.1.3 The Home Office view is, however, that there is cogent evidence indicating that non-Arab Darfuris are not generally at risk of persecution or serious harm solely on the grounds of their ethnicity in Khartoum. This evidence provides strong grounds to depart from the existing case law of AA and MM.
3.1.4 Rather, a person ’ s non-Arab Darfuri ethnicity is likely to be a factor which may bring them to the attention of the state and, depending on other aspects of their profile and activities, may lead to a risk of serious harm or persecution in Khartoum.
3.1.5 Darfuris in Khartoum face discrimination in accessing public services, education and employment, experience forced eviction, societal harassment from other Sudanese, and do not have access to humanitarian assistance. However in general such treatment is not so severe that it is likely to amount to persecution but each case will need to be considered on its individual facts.
3.1.6 All returns are to Khartoum. It will generally be reasonable for a person, including those not previously resident in Khartoum, to return to that city but each case will need to be considered on its individual facts. If the person is able to demonstrate a risk of persecution or serious harm from the state in Khartoum, internal relocation to another part of Sudan will not be reasonable. ...
7.1.6 The UK-DIS FFM [the UK Home Office – Danish Immigration Service fact finding missions to Kenya, Uganda and Sudan] report, based on a range of sources, noted:
‘ A number of sources stated that they had no information to indicate that failed asylum seekers / returnees from Darfur or the Two Areas would generally experience difficulties on return to Khartoum International Airport (KIA), or they did not consider that claiming asylum overseas would put such a person at risk per se. Western Embassy (C) noted that they had monitored the forced return of two persons from Europe in 2015 and had no reason to believe that they experienced any difficulties or mistreatment, although the source acknowledged that they were not present throughout the arrival procedure. The diplomatic source mentioned that they had experience of a very few rejected asylum seekers being deported from Switzerland and Norway. According to the source it was unclear whether these returnees could get support upon return to Sudan. However the source added that those sent back from Norway had not faced any problems upon return. ... ’ ...
7.1.10 The British Embassy in Khartoum observed in September 2016: ‘ As reported in our letter of February 2015 ... it remains the case that neither we nor our international partners are aware of substantiated cases of returnees, including failed asylum seekers, being mistreated on return to Sudan. ’ ...”

5.The applicant was born in 1974 and lives in Luhansk. She has had a first-degree disability since childhood.
6.On 2 April 1998, during her time at the Slavyanoserbskiy Psychoneurological Asylum run by the Luhansk Regional Council (Слав’яносербський психоневрологічний інтернат Луганської обласної ради) (“the asylum”), another patient, B., inflicted grievous bodily harm on the applicant. Her injuries included concussion, a fractured jaw and nose, and numerous cuts on her face. Later she also lost the sight in her right eye and the sight in her left eye deteriorated which, according to the forensic examination report of 25 June 2007, was also due to the trauma sustained by the applicant on 2 April 1998.
7.On 16 September 1998 B. died.
A.Criminal proceedings
8.On 8 May 1998 the Slavyanoserbskiy district prosecutor’s office of the Luhansk Region (прокуратура Слов’яносербського району Луганської області  “the prosecutor’s office”) refused to institute criminal proceedings against two asylum employees (orderlies), N. and L. When questioned about the incident, the orderlies testified that on the morning of 2April 1998 they had been cleaning the rooms when they had heard someone crying. They had found the applicant on her bed with her face smashed. Other patients had told N. and L. that B. had beaten the applicant with a mop because she had hit B. The prosecutor noted that (i) B. was “without legal capacity because of a mental disorder” (недієздатна внаслідок психічного розладу) and thus could not be held criminally responsible for assaulting the applicant, and (ii) even though it appeared that orderlies N. and L. had been negligent in their duties (according to the asylum orderlies’ list of duties submitted by the Government they were not allowed to leave patients unsupervised), which could possibly constitute a crime under Article 167 of the 1960 Criminal Code (see paragraph 27 below), they were not considered to be “officials” who could be prosecuted under that provision.
9.On 9 December 2004, within civil proceedings (see paragraphs 11–16 below), the applicant’s representative requested that the first-instance court reopen a criminal investigation into the incident. On the same date the request was rejected. The court noted that the prosecutor’s office had already issued a decision on 8 May 1998, which had not been appealed against. Moreover, B. had died and therefore, in accordance with the law in force, no criminal proceedings could be instituted against her. The ruling was upheld by the Luhansk Regional Court of Appeal and the Supreme Court of Ukraine on 3 August 2005 and 31March 2006 respectively.
10.Following the entry into force of a new Criminal Procedure Code, on 26 December 2012 the applicant lodged a complaint with the police, alleging negligence by the orderlies. The complaint was registered and two separate investigations launched into negligent performance of duties by members of the medical or pharmaceutical profession and negligence of duties by officials. On 19 February 2013 both investigations were merged. Several witnesses were questioned including the applicant, her mother and orderly L. The latter testified that she had not seen the incident take place but had later learned that for an unknown reason B. had hit the applicant with a mop left by L. in their room. On 30 June 2013 the proceedings were terminated by a police investigator of the Slyavyanoserbskyy District Police Department (слідчій слідчого відділу Слов’яносербського районного відділу ГУМВС України в Луганській області). That decision was identical to the one of 8 May 1998 (see paragraph 8 above) and referred to the investigator’s findings (i) that B. had been “without legal capacity because of a mental disorder” (недієздатна внаслідок психічного розладу) and thus could not be held responsible for assaulting the applicant, and (ii) that even though it appeared that the orderlies N. and L. had been negligent in their duties, which could constitute a crime under Article 167 (negligence of duties by officials) or Article 140 of the new 2001 Criminal Code (negligent performance of duties by members of the medical profession), they were not considered to be “officials” or “members of the medical profession” who could be prosecuted under those provisions of the law.
B.First set of civil proceedings
11.On 10 February 1999 the applicant instituted civil proceedings against the asylum in the Zhovtnevyy Local Court of Luhansk, seeking compensation for non-pecuniary and pecuniary damage (the cost of medications and food expenses incurred while staying in a hospital between 2and 30 April 1998 and between 18 and 26 May 1998 and the costs of dental prosthesis care). The applicant claimed that following negligence on the part of the asylum employees L. and N. she had been beaten by B. The applicant also indicated that the asylum should not have placed B. in one room with the applicant since B. had been known for her violent behaviour.
12.On 4 May 1999, at the request of a prosecutor, the court launched proceedings to establish the applicant’s legal capacity. Eight days later the consideration of the applicant’s claim for compensation was suspended pending the outcome of the legal capacity proceedings.
13.On 9 October 2002 the legal capacity proceedings were terminated because the prosecutor failed to appear at the hearing.
14.On 19 June 2003 the first-instance court ordered a medical examination of the applicant and the case was forwarded to the Luhansk Bureau of Forensic Medical Examinations. On 19 October 2004 the case was returned to the first-instance court with an expert report confirming that the applicant had sustained grievous bodily harm.
15.On 3 October 2006 the Zhovtnevyy District Court of Luhansk awarded the applicant 30,000 Ukrainian hryvnias (UAH) in compensation for non‑pecuniary damage (approximately 4,500 euros (EUR) at the material time). In a court hearing the asylum’s representative submitted that in his view the applicant had initiated the conflict with B. herself and thus there had been no negligence on the part of the asylum’s employees. The court, having listened to the parties and witnesses and having examined the case material, concluded that on 2 April 1998 as a result of a fight between the applicant and B., “who at the material time was found to be without legal capacity” (яка на той момент була визнана недієздатною), the applicant had received injuries. The court expressly noted that those conclusions were not disputed by the parties. The court further referred to the decision of the prosecutor’s office of 8 May 1998 (see paragraph 8 above) and held that harm had been inflicted on the applicant as a result of negligence by the asylum employees (orderlies). Lastly, the court rejected the applicant’s claims for pecuniary damages (compensation for medication, food, loss of income and travel expenses) as not supported by relevant evidence.
16.The applicant lodged an appeal challenging the refusal of the court to award her pecuniary damages but later withdrew it. The decision of 3October 2006 thus became final and enforceable.
C.Disciplinary proceedings
17.On 13 December 2006 the prosecutor’s office sent a demand to the asylum pointing out violations of work safety regulations which required remediation. According to the demand, the applicant’s rights had been violated because there had been no internal investigation into the incident within the statutory time‑limit (of within ten days of the incident).
18.There is no information to suggest that the asylum complied with the demand.
D.Proceedings concerning the facts surrounding the incident
19.On 3 October 2007 the applicant lodged a complaint with the Zhovtnevyy District Court of Luhansk, seeking an acknowledgement that bodily harm had been inflicted on her. The applicant asserted, in particular, that the asylum was avoiding delivering a report on the incident even though it was necessary to establish the facts surrounding the incident and to recover damages for the injuries sustained.
20.On 22 November 2007 the complaint was allowed by the court. Referring to its decision of 3 October 2006, which had become final (seeparagraph 16 above), the court established that the applicant had had a fight with B. and had received injuries while at the asylum.
E.Second set of civil proceedings
21.On 18 February 2008 the applicant instituted a new set of proceedings against the asylum, seeking compensation for loss of labour capacity and expenses for medications which the applicant permanently needed.
22.On 15 June 2012 the Zhovtnevyy District Court allowed the claim. Referring to its judgment of 3 October 2006 (see paragraph 15 above), the court established that harm had been inflicted on the applicant as a result of negligence by the asylum employees. The court also noted that even though B. had not been declared to be without legal capacity, at the time of the incident both she and the applicant had been under the supervision of the asylum, which should accordingly have been held responsible for the incident. On 23 October 2012 the Luhansk Regional Court of Appeal upheld this decision.
23.On 30 January 2013 the Higher Specialised Civil and Criminal Court of Ukraine, following an appeal by the defendant, quashed the decisions of the lower courts and remitted the case to the first-instance court for fresh consideration. It held that since B. “ha[d] not been declared to be without legal capacity” (не була визнана недієздатною), she had been partially responsible for the incident and thus the lower courts should have considered the extent of her liability.
24.On 27 September 2013 the first-instance court allowed the applicant’s claim in part and awarded her UAH 44,130 (around EUR 4,140 at the material time). The asylum was ordered to pay the applicant each month UAH 779.52 (approximately EUR 71), which was 64% of the monthly minimum wage. The court noted that, according to the court decision of 3October 2006, harm had been inflicted on the applicant as a result of negligence by the asylum employees. However, since B. had not been officially declared to be without legal capacity and thus had been partially liable for the incident, liability for the incident and damages were divided between the asylum and B. as to 80% and 20%, respectively. No particular grounds for that assessment were given.
25.Both parties appealed against this judgment. The applicant argued that the asylum had been solely responsible for her injuries, referring to the court’s findings on 3 October 2006 (see paragraph 15 above) and 22November 2007 (see paragraph 20 above). On 18 December 2013 the Luhansk Regional Court of Appeal upheld the judgment of 27 September 2013, noting that “the first-instance court had correctly established the degree of guilt of those who had inflicted harm”. On 17 February 2014 the Higher Specialised Civil and Criminal Court of Ukraine rejected the applicant’s request for leave for appeal as unsubstantiated.

THE CIRCUMSTANCES OF THE CASE
A.Criminal proceedings against the applicant
5.The applicant was born in 1966 and lives in Chevelcha.
6.Between October 2003 and November 2004 a number of thefts of cattle from different farms were committed and criminal proceedings were instituted on that account.
7.In the early morning of 2 November 2004 a cow and a bull were stolen from a farm in a village next to the one in which the applicant lived.
8.On 12 November 2004 criminal proceedings were instituted in respect of the theft of 2 November 2004.
9.On 14 November 2004 – at 8.30 a.m. according to the applicant – the applicant was taken by the police from her home to the Orzhytsya police station (“the police station”) to verify her possible involvement in the above-mentioned criminal offences.
10.According to the applicant, at the police station she was subjected to beatings and psychological pressure with a view to extracting her confession to the cattle thefts. The police officers hit her in her face, laid her on the floor with her face dawn, stamped on her legs and twisted her arms back. She was also made to spread her legs as widely as possible while standing and threatened with a beating if she fell down. Her requests for legal assistance were allegedly rejected.
11.The Government maintained that the applicant had not been subjected to any ill-treatment.
12.On the same day, in police custody, the applicant drafted “statements of surrender and confession” (явка з повинною) in which she confessed to several counts of cattle theft and gave “explanations” in which, according to the Government, she submitted that she had committed the criminal offences as a member of a group of persons. No copies of those statements and “explanations” have been made available to the Court. As can be seen from the available complaints lodged by the applicant’s lawyer with the domestic authorities, the applicant drafted a separate document for each of her confessions.
13.At 6.10 p.m. on the same date the investigator of the Orzhytsya police unit dealing with the criminal proceedings concerning the cattle thefts (“the investigator”) drew up a report on the applicant’s detention as a suspect. The applicant signed a record of the explanation of procedural rights to her; in that record she stated that she did not wish to be legally represented at that stage. The investigator therefore issued a decision to conduct the pre-trial investigation into the proceedings concerning the thefts committed in 2003-2004 without the involvement of a defence lawyer.
14.Thereafter, the applicant was questioned as a suspect in the absence of a lawyer. The verbatim record of the questioning suggests that her right to a lawyer and to a meeting with him before the first round of questioning (as well as her right not to incriminate herself) had been explained to the applicant before the start of the questioning. According to the record, the applicant confessed to a number of cattle thefts in 2003 and 2004, committed as a part of a group, and provided some details in this respect. No questions were put or remarks made by the investigator.
15.On 16 November 2004 the applicant’s mother signed a contract for her legal representation with a lawyer, V. On three occasions on the same day and twice on 17 November 2004 (in the morning and afternoon) he attempted to hold a meeting with the applicant but for different reasons was denied access to the police station by duty officers. After each attempt on 17November 2004, he lodged a complaint with the prosecutor’s office that the police had unlawfully obstructed him from meeting with the applicant, and submitted that all investigative steps taken with the applicant’s participation but in his absence should be considered as having been conducted in breach of her defence rights.
16.On 17 November 2004, apparently during the lunch break, V. managed to see the investigator and requested to be admitted to the proceedings as the applicant’s lawyer on the basis of the agreement concluded with the applicant’s mother. The case-file suggests that on the same date the investigator admitted V. to the proceedings concerning the theft committed on 2 November 2004 and granted him permission to meet with the applicant.
17.On the same date – between 8.15 and 11.30 a.m. according to the official records, and in the afternoon according to the applicant – a reconstruction of the crime was carried out in the presence of the investigator, two attesting witnesses and an expert in criminal law. The relevant record, which was signed by the applicant without any observations, suggests that before the reconstruction commenced, the applicant had been apprised of her constitutional right not to make self-incriminating statements and her right to refuse to participate in the reconstruction or to insist that it be carried out in the presence of a lawyer. The applicant declined (“in the lawyer’s presence”, according to the record) to exercise those rights and expressed her wish for the reconstruction to be carried out without the assistance of a lawyer.
18.During the reconstruction, the applicant provided details as to the theft committed during the early morning of 2 November 2004 and pointed out the place where the stolen animals had been slaughtered by her. The immediate inspection of the place revealed two detached cattle heads and two respective identification tags.
19.From 5 p.m. until 6.15 p.m. on the same date, a court hearing on the application of the preventive measure in respect of the applicant was held, following which the applicant’s detention was extended to ten days. As suggested by the records of the hearing, at the beginning of the hearing the applicant submitted that she wished to be represented by V. and her request was granted by the court. Upon his arrival, the applicant requested a meeting in private with V. Having heard V., who submitted that he was entitled to represent the applicant as of 9 a.m. of 16 November 2004 but since then had been unlawfully obstructed from meeting her, the court announced a break until 6.10 p.m. in order to allow the applicant to meet the lawyer in private.
20.According to the applicant, no such meeting was ever ensured and V. was, in fact, excluded from the hearing. The verbatim record of the hearing refers to no intervention on V.’s part after the break had finished.
21.On 17 November 2004 the applicant was transferred to the Lubny temporary detention facility (ізолятор тимчасового тримання – “the ITT”). The admissions register of the facility suggests that upon her admission the applicant was found to be suffering from abrasions on her chin, left elbow and hip, a bruise on her right hip and a scratch mark on her left knee. It is furthermore stated in the register that the applicant’s injuries had been sustained three days before her admission to the facility and that she raised no complaints before the ITT staff.
22.On 18 November 2004 V. unsuccessfully tried to meet the applicant in the Orzhytsya ITT as he had not been informed of her transfer to the Lubny ITT. On the same date he lodged a complaint with the prosecutor’s office, stating that he had been unable to meet the applicant and had not been informed of her transfer to the Lubny ITT.
23.On 19 November 2004 the deputy head of the Lubny ITT declined to allow V. to meet with the applicant as the investigator’s room was allegedly occupied and there was no other way to allow his request. On the same date V. complained to the prosecutor about this fact. He noted, in particular, that he had waited at the Lubny ITT until the end of the working day and had seen nobody coming out of the premises but the police officers from the Orzhytsya police unit; this, in his opinion, constituted evidence that they had been “working with the applicant” in the lawyer’s absence.
24.On 23 November 2004 V. again complained to the Orzhytsya prosecutor’s office that he was still not able to see the applicant and that no response had been given by the prosecutor to his four earlier complaints about violations of the applicant’s defence rights and his rights as her lawyer.
25.On the same date, from 12.29 until 4.14 p.m., another reconstruction of the crime was carried out in the presence of the investigator, two attesting witnesses and an expert in criminal law. The relevant verbatim record, which was signed by the applicant without observations, suggests that, on being informed of her procedural rights, the applicant declined to be assisted by a lawyer during this investigative step.
26.During the reconstruction, the applicant provided details as to nine episodes of cattle thefts that she had allegedly committed as part of a group in 2003 and 2004 and showed the directions from which her accomplices had brought the stolen animals to her and the places where the cattle had been slaughtered by her. The record of the reconstruction furthermore suggests that once the reconstruction was terminated, the applicant attested that she had given that evidence of her own free will, without any physical and psychological influence being exerted by the police.
27.On 24 November 2004, on being notified of her procedural rights as a suspect, the applicant expressed her wish to be represented by V. On the same date the latter was admitted to the proceedings concerning the thefts committed in 2003-2004.
28.On the same day, in V.’s presence, the applicant was charged with having committed, as a member of a group, the theft on 2November 2004. She was then questioned as an accused in this respect. The applicant denied her guilt for the theft and submitted that she had given her earlier statements after being told that other persons had incriminated her in the theft and that there was thus no point in her denying her guilt. When asked how it had then happened that she had known and shown the place where the slaughtered animals’ heads had been hidden, she stated that she had been told about the place by the attesting witnesses.
29.On 3 December 2004 a new investigator was appointed to the criminal proceedings concerning the applicant.
30.On 9 December 2004 the Orzhytsya prosecutor ordered the head of the Orzhytsya police unit to cease the violations of the applicant’s defence rights and to ensure that she could meet with her lawyer, V., without any limitations as to the number and duration of such meetings.
31.On 17 December 2004 V. was denied a meeting with the applicant as he had not received any authorisation to do so from the newly appointed investigator to the case. On the same day V. complained about this fact to the prosecutor, referring to the police’s failure to comply with the prosecutor’s order of 9 December 2004 (see paragraph 30 above).
32.On 22 December 2004, on being notified of her procedural rights in the case concerning the theft committed during the early morning of 2November 2004, the applicant expressed a wish to be represented by V. On the same date, the investigator admitted V. to these proceedings.
33.On 23 December 2004 V. was again denied a meeting with the applicant as “there had been no information proving his admission to the proceedings”. On the following day the applicant lodged a complaint with the prosecutor’s office regarding this refusal to allow her to meet her lawyer. The latter furthermore submitted that on 22 December 2004 his meeting with the applicant had been interrupted and she had been taken out of the meeting room.
34.On the same date, on 23 December 2004, during a court hearing regarding the application of the preventive measure, which was held in the presence of V., from 10 until 12 a.m., the applicant submitted, inter alia, that on the morning of 14 November 2004, at the police station, she had denied having participated in the thefts and had unsuccessfully requested the assistance of a lawyer. She furthermore complained that the police officers had ill-treated her and forced her to draft confessions to a number of thefts, as dictated by them. She provided details of her ill‑treatment on 14November 2004, as summarised above (see paragraph 10 above), and submitted that she had been afraid of raising any complaint during her examination by a forensic expert on 22 November 2004.
35.On an unspecified date criminal proceedings concerning all instances of theft were joined into a single case.
36.On 19 February 2005, being apprised of her procedural rights as an accused, the applicant stated that she wished to be represented by V. In his presence, she was charged with having organised in 2003 a criminal group and having committed in 2003 and 2004 a number of cattle thefts.
37.On 2 March 2005, when signing a record stating that she had been acquainted with the contents of the case file, the applicant denied her guilt and stated, without giving any details, that all investigative actions had been carried out in breach of her defence rights. V. submitted that there had been no evidence of the applicant’s guilt and requested, accordingly, that the criminal proceedings against the applicant be terminated. On the same day the investigator refused the lawyer’s request as unsubstantiated and having been raised in only general terms.
38.On 22 March 2005 the case against the applicant and her alleged accomplices was sent for trial to the Chornukhinskiy District Court, Poltava Region (“the District Court”).
39.On 19 April 2005 the District Court held a preparatory hearing in the presence of all the defendants and of V. No complaints were raised by them during that hearing.
40.During the trial the applicant pleaded not guilty and claimed, inter alia, that her self-incriminating statements had been obtained by the police by means of ill-treatment and in the absence of a lawyer. Similar statements were made by the applicant’s co-defendants.
41.On 15 September 2005 the District Court found the applicant guilty on a number of counts of theft and sentenced her to five years’ imprisonment. In doing so, it referred mainly to the self-incriminatory statements made by the applicant on 14, 17and 23 November 2004 (see paragraphs 12, 14, 18 and 26 above) and the confessions given by her accomplices during the pre-trial investigation. When dismissing the applicants’ allegations of ill-treatment by the police, the District Court referred to the statements of attesting witnesses present at the crime reconstructions of 17 and 23November 2004 (see paragraphs 17 and 25 above); according to those witnesses, the applicant and other defendants had given evidence at those crime reconstructions of their own free will. It furthermore referred to evidence given by the police officers concerned (all of whom had denied all allegations of ill-treatment) and to the fact that no injuries had been found on the applicant’s body during her medical examinations on 22 and 25November 2004 (see paragraphs 52 and 55 below). The court also stated that during the whole pre-trial investigation the defendants had acknowledged their guilt and had never complained about any ill-treatment, but had retracted their statements only during the trial (which the court considered they had done simply as part of their defence strategy).
42.On appeal of the applicant, on 15 March 2006 the Poltava Regional Court of Appeal (“the Court of Appeal”) quashed the above-mentioned judgment and remitted the case for fresh examination. It noted, inter alia, the selective approach taken by the trial court to the assessment of evidence in the case, including the evidence concerning the alleged ill-treatment, and a breach of the applicant’s defence rights.
43.On 20 March 2007 the prosecutor withdrew charges against the applicant on four counts of theft for lack of evidence.
44.On 18 April 2007 the District Court found the applicant and her co‑defendants guilty as charged and sentenced them to different terms of imprisonment. The applicant was given a four-year suspended sentence. The court based the applicant’s conviction on: her voluntary surrender to the police and the self-incriminatory statements that she had made on 14,17and on 23 November 2004 (see paragraphs 12, 14, 18 and 26 above); confessions given by her accomplices during the pre-trial investigation; the records of the crime scene examinations; and statements by the victims (that is to say farm owners) and witnesses confirming the fact that animals had been stolen from the farms.
45.The District Court dismissed the defendants’ allegations of ill‑treatment by the police as ill-founded. It noted in this respect that the police officers concerned had denied all allegations of ill-treatment; a surgeon, N., who examined the applicant on 25 November 2004 (see paragraph 55 below) had submitted that he had found no bodily injuries when he had examined her; the forensic expert who had examined the applicant on 22 November 2004 had also attested that no injuries had been found by him on the applicant’s body (see paragraph 52 below); and attesting witnesses who had been present at the crime reconstructions (in which the defendants had participated) had submitted that the applicant and other defendants had given evidence of their own free will.
46.The applicant appealed, submitting that the District Court had failed to comply with the instructions of the Court of Appeal and to duly examine the allegations made by her and her co-defendants of ill-treatment by the police. She stated, inter alia, that the District Court had deliberately ignored evidence proving her bodily injuries. She relied, inter alia, on the relevant data from the admissions register of the Lubny ITT (see paragraph 21 above) and the testimony of a prosecutor who had seen the applicant’s injuries. The applicant furthermore contested the credibility of the statements given by the police officers in the light of the fact that they were direct perpetrators. She also stated that two of the attesting witnesses could not be objective as at the time of the events in question one of them had been undergoing prosecution by the police and the other one was himself a former police officer who had close ties with the police. She furthermore submitted that the District Court had falsified the statement made by N., the surgeon, during the trial regarding the results of the applicant’s examination on 25 November 2004 (see paragraph 55 below). She noted in this respect that N. had in fact confirmed that there had indeed been bodily injuries, which he had recorded in the applicant’s medical file. Lastly, the applicant stated that she had been unlawfully deprived of legal assistance between 14and 24November 2004 and that all the evidence on which her conviction had been based, in particular her confessions, had been obtained during that period. She also referred in this regard to the unsuccessful attempts made by her lawyer to hold a meeting with her within the above-mentioned period and to the complaints that he had unsuccessfully lodged with the prosecutor’s office in this respect.
47.On 2 July 2008 the Court of Appeal upheld the judgment of the District Court. In doing so the court referred to (i) the applicant’s voluntary surrender to the police and to the further self-incriminatory statements that she had made during her questioning, which had been corroborated by those made by her alleged accomplices, and (ii) the fact that remains of animals had been found at the place pointed out by the applicant during the reconstruction of the crime. It furthermore stated that the applicant’s allegations of ill-treatment had been correctly dismissed by the first-instance court as unsubstantiated, given that the police officers had denied any ill‑treatment and no injuries had been uncovered in the course of the applicant’s medical examinations of 22 and 25 November 2004 or during her further medical examinations in detention in view of the worsening of her chronic health conditions.
48.The applicant lodged a cassation appeal, maintaining, inter alia, her complaints concerning her alleged psychological and physical ill-treatment in police custody and the lack of access to a lawyer between 14 and 24November 2004. She submitted in this respect that the courts had deliberately ignored evidence proving the fact that she had had bodily injuries shortly after her arrest.
49.On 26 March 2009 the Supreme Court upheld the applicant’s conviction. It noted that her guilt had been proved by her own statements as a suspect in which she had confessed to the thefts and which she had later confirmed during the reconstructions of crimes. The Supreme Court furthermore found that the applicant’s statements had been corroborated by the confessions of her co-defendants. It noted that her complaint of ill‑treatment had been thoroughly examined by the lower courts and had been lawfully rejected as unsubstantiated. It also noted that the applicant’s allegations had been disproved by the testimony of the surgeon, N., and the forensic expert, as well as by that given by the police officers. As regards the alleged violation of the applicant’s defence rights, the Supreme Court noted that during the pre-trial investigation, the applicant had been informed of her right to a lawyer and that the lawyer of her choice had been admitted to the proceedings. The judgment of the Supreme Court was sent to the applicant on 8 April 2009.
B.Investigation of the allegations of ill-treatment
50.On a number of occasions between 16 and 21 November 2004 lawyer V. complained to the Orzhytsya prosecutor’s office of the applicant’s ill-treatment in police custody and requested that she be given a medical examination, in his presence, in order to secure evidence of that ill‑treatment.
51.On 18 and 19 November 2004 similar complaints were made by the applicant’s mother.
52.On 22 November 2004 the applicant was examined by a forensic medical expert. The relevant record suggests that the applicant had had no bodily injuries and had raised no complaints. According to the applicant, she had done so because she had been afraid of further beatings by the police.
53.On 23 November 2004 the Orzhytsya prosecutor’s office declined to institute criminal proceedings in respect of the complaints of the applicant’s lawyer that the applicant had been ill-treated and her defence rights violated. No copy of that decision has been made available to the Court. According to the Government, the decision was based on the results of the applicant’s medical examination of 22 November 2004 (see paragraph 52 above), the police officers denial of ill‑treatment and on the fact that the applicant had not raised any complaint about her ill-treatment during a court hearing on the application of a preventive measure. As regards the defence rights, it was also noted that under the decision of the Orzhytsya District Court of 17November 2004 lawyer V. had been granted permission to have a meeting with the applicant (see paragraph 19 above).
54.On 25 November 2004 the applicant, through her lawyer, requested a meeting with the prosecutor with a view to making statements regarding “what [had been] done to her at the police station” and “how her voluntarily surrenders [had] appeared”. She also denied her guilt of any criminal offence and asked for a medical examination of her to be conducted in order to identify and treat the injuries that she had been suffering from as a result of her ill-treatment by the police and to protect her from fresh beatings.
55.According to the extracts from the applicant’s medical file, which was provided by the latter to the Court, on the same date, on 25 November 2004, the applicant complained about her poor state of health, including pain in her left elbow. She was examined by N., a surgeon from the local civil hospital who discovered “active yellow marks” (квітучі пятна жовтуватого кольору) from 0.5 to 1 cm in diameter on the applicant’s forearms, hips and right breast. Following the examination, N. found that the applicant’s state of health did not require any medical intervention.
56.On 26 November 2004, after having a meeting with the applicant and being given the results of the aforesaid medical examination, lawyer V. again complained to the prosecutor’s office of the applicant’s ill-treatment by the police and requested, inter alia, that she be given another forensic medical examination in his presence.
57.On 29 November 2004 the applicant was transferred to the Poltava Temporary Detention centre (“the Poltava SIZO”). As can be seen from a certificate issued by the SIZO governor, upon her arrival the applicant underwent a medical examination which uncovered a bruise on her left hip measuring 5 cm by 3 cm and an inflammation on her left forearm.
58.On 17 December 2004 lawyer V. complained to the prosecutor’s office that no response had been made to the applicant’s complaints of ill‑treatment.
59.On the same date the applicant refused to undergo a medical examination unless her lawyer was present.
60.On 21 December 2004 lawyer V. complained to the Poltava prosecutor’s office about the lack of any response to the complaints lodged regarding the applicant’s ill-treatment; the failure to conduct a medical examination of her in the absence of police officers and in the presence of her lawyer; and violations of her defence rights. He furthermore drew the prosecutor’s attention to the allegations of ill-treatment made by the applicant’s alleged accomplices, one of whom had been allegedly hospitalised after being beaten by the police.
61.On 10 January 2005 the Poltava prosecutor’s office quashed the prosecutor’s decision of 23 November 2004 (see paragraph 53 above) as unsubstantiated and ordered an additional investigation in respect of V.’s allegations. It noted, inter alia, that the case file contained no explanations by the officers from the Orzhytsya and the Lubny ITTs and no information regarding whether the applicant had been provided with medical assistance when in the Poltava SIZO and whether she had undergone a medical examination with a view to establishing whether she had bodily injuries. It was furthermore noted that M.M., the applicant’s alleged accomplice, had also lodged a complaint about his physical and psychological ill-treatment by police officers of the Orzhytsya police unit.
62.According to the Government, on 20 January 2005 the Orzhytsya prosecutor’s office had declined to institute criminal proceedings and the applicant had not appealed against that decision. No copy of that decision has been made available to the Court.
63.The applicant furthermore unsuccessfully raised a complaint in respect of her ill-treatment by the police before the domestic courts (seeparagraphs 40-49 above).

4.The applicant was born in 1968 and was detained in LPU-3, Chelyabinsk.
A.Ill-treatment in respect of the applicant
1.Beatings by prison warders and criminal charges against the applicant
5.On 14 November 2003 the Saint Petersburg City Court found the applicant guilty of aggravated murder and possession of firearms, and sentenced him to twenty-one years’ imprisonment. On 1November 2004 the conviction was upheld on appeal.
6.On 28 September 2007 the applicant arrived at medical detention facility no. LPU-3 in Chelyabinsk, where he stayed until 30 October 2007.
7.On 2 October 2007 the applicant was ordered to leave his cell. He entered the corridor, turned to face the wall and took up a spread-eagle position leaning against the wall. Having refused to strip naked for a body search, he was immediately subjected to beatings. A warder hit him a number of times on the buttocks with a rubber truncheon. At the same time another warder started kicking and hitting the applicant on the back and head. Trying to protect himself from more serious harm, the applicant turned and faced his assailants. He raised his arm and inadvertently hit the warder’s face. The beatings intensified and the applicant was pushed to the floor. The warders continued kicking and punching him and hitting him with truncheons. The applicant lost consciousness. A warder dragged him back to the cell and the applicant was left there on the floor.
8.On the same date the applicant was examined by a prison doctor. The doctor found hematomas on his buttocks and documented them in the applicant’s medical records as follows:
“Skin hyperaemia on both buttocks, traces of blunt injury, blue hematomas. Moderate pain on palpation.”
9.On 5 October 2007 criminal proceedings were instituted against the applicant on suspicion of assault on a warder and disruption of order in the detention facility. The prosecution’s case was that on 2 October 2007 the applicant had refused to be subjected to a body search and had waved his hands to prevent the search. Warder B. had warned the applicant about the intention to use force should he fail to comply with the order. In response, the applicant had punched another warder, Mr L., in the face, splitting his lip.
10.On 2 September 2008 the Chelyabinsk Regional Court, by a jury verdict, acquitted the applicant. Having established that he had hit warder L. once and had split his lip, the jury nevertheless concluded that the applicant had caused the injury in an attempt to protect himself. The relevant part of the judgment read as follows:
“The jury has established in a verdict that two injuries to Mr L.’s lower lip were caused by [the applicant] with a single punch to Mr L.’s face. [The applicant] had refused to strip naked and to submit his clothes to a check-up, and had asked for a copy of a decision by the head or deputy head of the facility authorising a full body search. [The applicant] who had stayed with his face to the wall, had been subsequently kicked and punched, and hit with rubber truncheons a number of times, at least ten, on various parts of his body, head [and] limbs. [The beating] had been accompanied by verbal assaults. In an attempt to prevent further beatings and to protect himself, [the applicant], while falling down, had turned and taken an aimless swing in the direction of the persons who had continued hitting him.”
11.On 18 November 2008 the Supreme Court of the Russian Federation upheld the judgment on appeal.
2.Investigation into the applicant’s allegations of ill-treatment
12.After the acquittal had become final, the applicant lodged a complaint with the prosecutor’s office of the Chelyabinsk Region, providing his version of the events of 2 October 2007 and complaining of ill‑treatment.
13.On 28 January 2009 the investigative department of the Metallurgicheskiy District of Chelyabinsk opened a criminal investigation into the events of 2 October 2007 on charges of abuse of power committed with violence. The investigators questioned the applicant along with fourteen witnesses and conducted three cross-examinations.
14.On 28 September 2009 the investigation was suspended for failure to identify the alleged perpetrators.
15.On 18 November 2009 the investigation was reopened.
16.On 22 December 2009 the criminal proceedings against the prison warders were discontinued and the investigation was suspended for failure to identify the alleged perpetrators. The investigators had questioned the warders B. and L. mentioned in the acquittal judgment of 2 September 2008, who had testified that they had indeed administered up to six truncheon blows to the applicant’s buttocks because he had refused to go through a body search and had hit warder L. in the face.
17.On 8 November 2012 the criminal proceedings against the warders were reopened.
18.On 19 November 2012 the investigation was suspended again for failure to identify the alleged perpetrators. The investigator analysed the depositions of warders and other witnesses, and the findings of the medical examination of 2 October 2007, and concluded that the applicant had not obeyed the warders’ lawful orders and had been aggressive. Therefore, the use of rubber truncheons had been justified. Moreover, the medical records contained a vague summary description of the applicant’s injuries, which were not life-threatening. Lastly, the jurors’ verdict did not contain any assessment of the warders’ actions or any proof of the warders’ guilt.
19.On 14 November 2013 the prosecutor’s office of the Chelyabinsk Region quashed the decision of 19 November 2012 and reopened the investigation.
20.On 28 February 2014 the criminal proceedings against the warders were terminated. The investigator found that the warders had not abused their powers and had acted in accordance with the law.
3.Challenging the investigator’s decisions before the court
(a)Challenging the decision of 28 September 2008
21.The applicant’s representative challenged the decision of 28September 2009, arguing that the jury verdict of 2 September 2008 had already identified the assailants and that there had therefore been no reason to adjourn the proceedings.
22.On 10 February 2011 the Metallurgicheskiy District Court of Chelyabinsk dismissed the complaint, having found as follows:
“As follows from the case-file materials, on 28 September 2009 a senior investigator of the investigative department, Mr V., refused to open a criminal case against officers of [medical colony no. 3], Mr M., Mr B. and Mr L., who, as follows from that decision, had lawfully used force against [the applicant]. That decision remains in force.
In those circumstances, the decision by which the criminal proceedings were adjourned is lawful and well-founded; there are no grounds to consider it unlawful.”
23.On 9 April 2012 the Chelyabinsk Regional Court quashed that decision on appeal and remitted the case for re-examination.
24.On 1 June 2012 the Metallurgicheskiy District Court of Chelyabinsk held to discontinue the proceedings as the decision of 28 September 2008 had been quashed on 18 November 2009.
(b)Challenging of the investigator’s decision of 22 December 2009 and other decisions
25.On an unspecified date the applicant asked the court to declare unlawful the investigator’s decisions of 28 September 2008, 11 November 2008, 22December 2009 and an opinion of 12 October 2009 justifying suspension of the investigation. He argued that those decisions contradicted each other and sought to conceal the warders’ crime.
26.On 9 November 2012 the Metallurgicheskiy District Court of Chelyabinsk discontinued the proceedings on the applicant’s claim.
27.On 21 March 2013 the Chelyabinsk Regional Court quashed that decision and remitted the case for fresh examination.
28.On 18 April 2013 the District Court allowed the applicant’s claim. It held that the decisions of 28September 2008 and 22 December 2009 lacked sufficient reasoning, did not contain any references to the jurors’ verdict, and were based only on the testimony of warders. It ordered that the violations found be remedied.
B.Compensation proceedings
29.The applicant brought a civil action against the prosecutor’s office of the Chelyabinsk Region, the Treasury and the Ministry of Finance, seeking compensation for non-pecuniary damage caused by the unlawful institution of criminal proceedings. He also sought apologies from the implicated officials.
30.On 10 August 2011 the applicant and his lawyer asked the court to consider the case in their absence.
31.On 11 August 2011 the Tsentralnyy District Court of Chelyabinsk awarded the applicant 15,000 Russian roubles (RUB) (353 euros (EUR)) in compensation for non-pecuniary damage and dismissed the remaining claims. The District Court held the hearing in the applicant’s absence. The applicant lodged an appeal against this decision.
32.On 6 February 2012 the Chelyabinsk Regional Court upheld the decision of 11 August 2011 and rejected the applicant’s appeal. The appellate court also noted that as an inmate, the applicant had been duly notified of the court hearing but had failed to attend it.

5.The applicant was born in 1969 and is now serving his sentence in a detention facility at Nizhniy Tagil.
6.The facts of the case, as submitted by the parties, may be summarised as follows.
7.On 7 November 2013 a group of nine detainees, including the applicant, was scheduled for a transfer from a police station to a remand prison. A Gazel prison van was available for transfer. It was designed to transport a maximum of seven prisoners, but Police Major V., who was in charge of the transfer, took the decision to take all nine prisoners at once to save fuel.
8.The prison van was manned by four officers. Driver G. and Major V. were seated in the front, and Officers K. and D. were riding in the rear part of the cabin next to the prisoner cells.
9.Five prisoners were placed in the large cell in the van, and three prisoners in individual cells. As the applicant was a former law-enforcement officer, the transfer regulations required that he should be separated from the other detainees. However, no other individual cells were available, so he was allowed to ride in the rear together with Officers K. and D.
10.Approximately half way to the destination, prisoners Sa., Ma. and Mu. kicked out the door of the large cell and attacked the convoy officers. Prisoner Mu. overpowered Officer D. and seized his holster containing a handgun. A struggle for the gun ensued and Mu. fired a shot at the floor. Prisoner Sa. grabbed Officer D. from behind, and a second shot was fired.
11.Meanwhile, Officer K. pushed prisoner Ma. aside, drew his gun and told everyone to freeze or he would shoot. Prisoners Sa. and Mu. were still struggling with Officer D. for the gun. Officer K. shot at Sa. and hit him.
12.Major V. came running to the back of the van and opened the door. More shots followed. Eventually, prisoner Mu. released the gun and threw it out of the van. At some point, a bullet ricocheted, wounding the applicant in his left shin.
13.The applicant was taken to a local military hospital where his wounded leg was put in a cast. On the following day he was discharged and transferred to a prison hospital.
14.In December 2013 the applicant complained to a prosecutor that he had been injured as a consequence of the grossly negligent actions of convoy officers who had breached the transfer regulations.
15.On 9 January 2014 an investigator with the Bashkortostan Regional Division of the Investigations Committee refused to open a criminal case. He found no indications of gross negligence arising from the decision to transport two prisoners in excess of the van’s design capacity and that not putting the applicant in a cell had been motivated by “considerations of budgetary austerity and saving money allocated for the purchase of fuel”.
16.On 4 December 2014 a deputy prosecutor of the Kirovskiy District in Ufa rejected the applicant’s complaint against the investigator’s decision.
17.On 30 April 2015 the Kirovskiy District Court in Ufa upheld the investigator’s decision as lawful, noting that it had been within his competence to issue such a decision, and that the decision contained no defects of form. On 20 July 2015 the Supreme Court of the Bashkortostan Republic rejected an appeal against the District Court’s judgment.
18.On 14 September 2015 the acting head of the regional division of the Investigations Committee ordered an additional “pre‑investigation inquiry” into whether an offence of negligence causing grievous bodily harm had been committed. Ten days later the investigator refused to institute criminal proceedings:
“... it does not appear possible to establish with certainty that the bullet which hit [the applicant] was shot from the handgun of Officer V., rather than from [the handgun of] Officer D., while it was in the possession of prisoner Mu. Besides, under Article [41] of the Criminal Code, causing damage to interests protected by criminal law is not a criminal offence if the act causing such damage was based on a reasonable risk assessment and sought to achieve a socially useful objective, such as preventing an attempted escape in the instant case.”
19.On 8 February 2016 the deputy head of the regional division upheld the investigator’s decision refusing to institute criminal proceedings.
20.On 5 May 2016 the supervising deputy prosecutor of the Bashkortostan Republic set the decision aside and ordered a forensic assessment of the applicant’s injury. On 6 June 2016 the investigator with the Central Investigations Department in Ufa again refused to institute criminal proceedings, noting that the applicant’s medical record could not be located. It had been sent to the facility where he was serving his sentence and that facility had not responded to the investigator’s request for a copy.
21.In parallel criminal proceedings, on 22 December 2014 the Ordjonikidzevskiy District Court in Ufa convicted prisoners Mu. and Sa. of attempted escape from prison and sentenced them to five years’ imprisonment each. Convoy Officers K., D. and V. had been given the status of injured parties in those proceedings. The applicant testified as a witness.

6.The applicant, Mr Fabian Gjini, a Croatian citizen of Albanian origin, was born in 1972 and lives in Crikvenica, Croatia.
A.The applicant’s arrest
7.On 22 August 2008 the applicant was arrested by the Serbian police on suspicion of having attempted to pay a toll at Tovarnik border crossing (a border crossing between Serbia and Croatia) with a counterfeit ten‑euro(EUR) banknote.
8.Upon his arrest, the applicant was taken before an investigating judge. The applicant was unable to provide the EUR 6,000 security for his bail, and the investigating judge ordered his detention.
9.The applicant spent 31 days in custody in Sremska Mitrovica Prison and was released from detention on 22 September 2008.
10.On 30 September 2008 the criminal proceedings against the applicant were discontinued by the prosecuting authorities, because the expert tests performed on the allegedly counterfeit banknote showed that it was actually genuine.
B.The applicant’s ill-treatment by his cellmates
1.The applicant’s version of events
11.The applicant alleges that in Sremska Mitrovica Prison he was placed in a four-bed cell which already housed four other inmates. Because of the lack of space, the applicant had no proper bed and had to sleep on the floor, on a sheet of foam material.
12.According to the applicant, the ill-treatment and humiliation started immediately. His cellmates forced him to mop the cell floor. While he was mopping, they did not allow him to raise his head, and would kick him sporadically. After he had mopped up, the cellmates would slap and kick the applicant for his “failure” to mop the floor properly. The applicant was compelled to clean the floor again and again. He could not remember how many times he had mopped the cell floor. He remembered, however, that his cellmates poured the water containing detergent over him to teach him how to get “things” clean.
13.According to the applicant, his cellmates thought that he was an informer. They did not believe that he had been put in their cell because of a counterfeit note. Rather, they thought that he had been placed there to spy on them and find out about their crimes.
14.The cellmates threatened the applicant by saying that they would stage his suicide if he told anyone what was happening in the cell. At night, the applicant was put in the toilet. There, the cellmates forced him to keep his feet in cold water for the whole night. He was not allowed to move. The morning after, the skin on his feet tore off and open wounds appeared.
15.The situation worsened after the applicant’s cellmates found out about his origin. Upon learning that he lived on the Croatian coast, they said that they wanted to test him to see how well a person from the coast could “dive”. They filled a bucket with water and put the applicant’s head in it. Afterwards, they would shower the applicant with cold water. This test was performed over and over again.
16.On one occasion, the applicant’s cellmates gave him a wet towel and forced him to fight with another prisoner. After the applicant had managed to hit his opponent, his four cellmates jumped on him, punched and kicked him, and abused him for daring to hit a Serb.
17.They made him sing Serb nationalist songs (četničke pesme). After he said that he did not know any, they taught him some and forced him to sing them for several nights. The applicant could not remember whether he had also been forced to sing Croat nationalist songs (ustaške pesme).
18.According to the applicant, his cellmates raped him. Although he could not remember the rape itself, he assumed that it happened as follows. One day the cellmates gave him a glass of water. The water caused him to feel dizzy, and he felt unable to walk and quickly lost consciousness. The next morning, he had pain in his anus and saw blood in his faeces. On that day his cellmates shaved him and shaved his eyebrows. Later, he discovered that shaved eyebrows were a sign that he had become someone’s “girl” (curica). Being a “girl” meant that he had been sodomised.
19.According to the applicant, the prison guards were perfectly aware of what was happening to him. In particular, all the events happened while one guard – who appeared to be a school friend of one of the applicant’s cellmates – was on duty. The applicant remembered that the prison guards laughed at him openly during his walks in the prison yard. He also had impression that everything that happened to him was because of his origin and nationality.
20.Several days after the start of his detention, the applicant’s lawyer noticed changes in the applicant’s behaviour and sensed that something was wrong. The applicant was afraid to say anything to his lawyer. Nevertheless, the lawyer urged the prison authorities to move the applicant to another cell.
21.After his relocation, the applicant was no longer ill-treated.
2.The Government’s version of events
22.The Government contended that the applicant’s version of the events was not supported by evidence. They did not provide a separate description of the events from 22August 2008 until 22 September 2008 when the applicant was detained in Sremska Mitrovica Prison.
C.Proceedings and developments before the domestic authorities
1.Civil proceedings
23.On 29 October 2008 the applicant invited the Ministry of Justice to make a payment in respect of his allegedly unlawful detention. He received no reply.
24.On 1 September 2009, the applicant amended his proposal, adding a request for compensation for the ill-treatment he had suffered during the period of detention. Again, he received no reply.
25.On 25 December 2009 the applicant lodged a civil complaint against the Republic of Serbia with the Second Municipal Court (subsequently renamed the Court of First Instance) in Belgrade. He requested compensation for his detention, and in respect of the non-pecuniary damage he had sustained in terms of fear, physical pain and mental anxiety owing to the ill-treatment to which he had been subjected during his time in detention.
26.On 12 March 2010 the Republic Attorney General’s Office (Republičko javno pravobranilaštvo) contested the applicant’s claims. The office underlined that the applicant had failed to submit any medical evidence in support of his claims concerning the alleged ill-treatment.
27.On 15 June 2010 a hearing was held before the Court of First Instance. The Republic Attorney General’s Office was not present. The applicant was represented by his lawyer. However, owing to the nature of the applicant’s complaints, the domestic court decided that the applicant had to be present at hearings. The applicant was summoned to attend the next hearing, scheduled for 21 October 2010, subsequently rescheduled for 2February 2011.
28.At the hearing of 2 February 2011, and the further hearing on 20May 2011, the judge interviewed several witnesses: (i) P.S., who had been serving a sentence in Sremska Mitrovica Prison at the same time when the applicant had been there; (ii) D.Ž., who had represented the applicant in the criminal proceedings and was familiar with the events in prison; and (iii)M.Č., the applicant’s uncle.
29.P.S. stated that he had met the applicant in Sremska Mitrovica Prison. The applicant was placed in a cell in the part of the prison where he was imprisoned. P.S. remembered hearing someone singing Serb and Croat nationalist songs at night. That was before the applicant was transferred to another part of the prison. P.S. and the applicant used to talk during the morning walks in the prison. One morning P.S. observed that the applicant’s eyebrows had been shaved. On that occasion, he also noticed haematomas behind the applicant’s ears and on the upper part of his arm. He could see the injuries because it was summer and they were all in T-shirts. The applicant had a strange look in his eyes and seemed very scared. The applicant avoided the company of other prisoners and complained to P.S. regarding the ill-treatment to which he had been subjected by his cellmates. The applicant also complained that his anus was bleeding and that he had been given some medicine which had made him lose consciousness. P.S. could not remember whether someone had screamed at night. Their cells were 10-15 metres apart. P.S. confirmed that shaved eyebrows in prison meant that the person had been raped. He also saw the damaged skin on the applicant’s feet. The guards in prison must have heard that somebody was singing songs, and they must also have noticed other signs of maltreatment. The guards knew what shaved eyebrows meant. Prison guards patrolled the prison corridors day and night. Through peepholes, they controlled what prisoners did in their cells. There were cameras placed in the corridors, but there were no cameras in the cells. The applicant was moved to another cell after his lawyer urged the prison authorities to relocate him. P.S. left Sremska Mitrovica Prison seven to eight days before the applicant.
30.D.Ž. met the applicant in 2008 when he represented him in the criminal proceedings concerning the use of an allegedly forged banknote. He visited the applicant in prison. On that occasion, D.Ž. noticed that the applicant had been shaved and his eyebrows had also been shaved. The applicant looked disorientated and scared. D.Ž. asked the applicant whether there was any problem, but the applicant could not give him a clear answer. The applicant seemed frightened and confused. D.Ž. urged the prison authorities to transfer the applicant to another cell. Specifically, D.Ž. called the prison authorities, expressed his concern about the applicant’s treatment, and underlined that the authorities should respect the laws and regulations concerning the placement and status of detainees. D.Ž. also talked to another client, V.D., who informed him what had happened to the applicant.
31.M.Č. had known the applicant since birth. He was the applicant’s uncle. He visited the applicant once during his time in prison. On that occasion, he could not recognise the applicant. The applicant was bald, with shaved eyebrows. M.Č. also noticed bruises on the applicant’s right arm, as well as bruises on his head. M.Č. stated that he wanted to know what had happened to the applicant, yet the applicant was evasive and avoided eye contact. M.Č. had previously known the applicant to be a happy and cheerful person, but said that the applicant had never fully recovered from what had happened to him in prison.
32.Between the two hearings, a statement was taken from another witness, V.D., who was still serving his sentence in Sremska Mitrovica Prison. This witness remembered the applicant, but was not exactly sure what had happened to him during his time in the prison. V.D. recalled seeing him with shaved eyebrows and a strange haircut. He also recalled hearing the applicant singing or screaming at nights, but he could not remember what he had actually been singing.
33.At the hearing of 9November2011 two expert witnesses – an expert on traumatology and a neuropsychiatrist – submitted their reports. They found that, due to his suffering in prison, the applicant had suffered certain physical pain and had sustained an overall loss of 10% in his “vital activity” (umanjenje opšte životne aktivnosti).
34.The Republic Attorney General’s Office denied the events in Sremska Mitrovica Prison as alleged by the applicant. It, in particular, referred to the absence of medical evidence.
35.On 9 November 2011 the Court of First Instance in Belgrade accepted the applicant’s complaint concerning the request for compensation for his detention, but rejected his request in respect of compensation for non-pecuniary damage caused by ill-treatment in a State-owned institution. The court found:
“[The applicant has] no medical certificate proving the injuries. Medical expert witnesses testified on the basis of the claimant’s statement. The testimonies of other witnesses are based on what the claimant told them. The claimant, if injured at all, should have gone to see the doctor in the detention unit; he ought to have visited the doctor, who would have confirmed the injuries, or he should have said something in order to be transferred to another cell and protected. The claimant has no medical certificate concerning any injuries.”
36.On 17 October 2012 the Court of Appeal in Belgrade upheld the Court of First Instance’s decision as regards the compensation for detention, but quashed the rejection of the claim for compensation in respect of the ill‑treatment. The case was remitted to the Court of First Instance for reconsideration. As regards the Court of First Instance, the Court of Appeal stated the following:
“[It] failed to properly evaluate the evidence in accordance with Article 8 of the Law on Civil Procedure, in accordance with which a court must decide on the facts established as proven, but on the basis of a conscientious and meticulous assessment of each particular piece [of evidence] and of all the evidence together, as well as in relation to the outcome of the whole proceedings. Given that such an evaluation was not carried out in this particular case, the findings of the first-instance court that it had not been proved that the claimant had been ill-treated and molested by other cellmates during his time in detention – causing him to sustain different types of non-pecuniary loss for which the [State] could be held responsible as defined in Article 172 of the Obligations Act (Zakon o obligacionim odnosima) – cannot be accepted with any certainty.”
37.In the reopened proceedings, the Court of First Instance re-examined the applicant’s first lawyer, D.Ž., as well as the two expert witnesses. The court also considered reports produced by a psychologist and a psychiatrist from Rijeka, Croatia concerning the applicant’s current mental health and emotional distress. Those reports confirmed that, because of the ill-treatment he had sustained in Sremska Mitrovica Prison, the applicant was still in a state of mental anxiety.
38.On 10 May 2013 the Court of First Instance awarded the applicant 200,000 Serbian dinars (RSD – approximately EUR 1,900) in respect of non-pecuniary damage for the 10% loss in his general vital activity associated with the events in detention. However, the claim for the applicant’s physical suffering was rejected because, in the court’s view, his suffering had not constituted grievous but rather slight bodily harm, for which no compensation could be awarded, according to the law. Also, the court refused to award the applicant compensation for non-pecuniary damage for his fear.
39.On 10 December 2013 the Court of Appeal in Belgrade upheld the decision of the Court of First Instance in part and reaffirmed the findings of that court that the applicant had suffered from an acute stress disorder as a result of being detained and harassed by other inmates, which, in general, had led to his experiencing post-traumatic stress and a loss in his general vital activity. However, the Court of Appeal awarded the applicant an additional RSD 50,000 (approximately EUR 450) for the fear arising from the events during his detention, and explained its reasoning in the following manner:
“Taking into account the established factual situation and all the circumstances of the present case, as well as the findings of the neuropsychiatrists, according to which the claimant suffered post-traumatic stress during and after his detention, this being, in itself, a complex reaction when a person’s physical and personal integrity is threatened, which [in this case] lasted for days and involved fear, emotional distress, a feeling of sadness, distraction and despair, and being a reaction which, by its nature, is more complex than a fear of strong intensity, the Court of Appeal finds that, in accordance with Article 200 of the Obligations Act, the claimant is entitled to a just award for non-pecuniary damage for the fear he experienced.”
40.On 18 January 2014 the applicant lodged a constitutional appeal. He complained under Articles 21, 23, 25, 28, 29, 32, 35 and 36 of the Constitution (articles corresponding to Articles 3, 6, 13 and 14 of the Convention). In particular, his complaint was as follows:
“The domestic courts have unlawfully and unconstitutionally rejected the claimant’s clearly justified claim for compensation in respect of the non-pecuniary damage he suffered on account of the violation of his human dignity after being placed in illegal detention, where he was molested for days by a group of prisoners as a person of Croatian and Albanian origin, being beaten and kicked all over his body, drenched with water, beaten with wet towels, tortured, battered, raped and thereafter shaved all over his body, which was the symbol of a raped person, and being subjected to real and serious threats that he would ‘commit suicide by hanging [himself] over the door handleʼ, or be cut with a razor blade and similar items. And all this was done with the silent approval of prison officers who knew which cell they had put the claimant in, and who knew or ought to have known about everything that happened to him.”
41.On 9 June 2015 the Constitutional Court rejected the applicant’s constitutional appeal. It only considered his complaint under Article 6 of the Convention, and found it to be manifestly ill-founded. The Constitutional Court did not address any other complaint raised by the applicant.
2.Other relevant facts
42.About the ill-treatment he had suffered during the period of detention, the applicant also complained to the President of the Republic and to the Minister of Justice herself. No one ever replied to those complaints.
43.On 24 February 2010 the applicant’s representative complained to the Provincial Ombudsperson (Pokrajinski ombudsman) regarding the applicant’s ill-treatment in prison. On 16 March 2010 the Provincial Ombudsperson replied that he had no jurisdiction over the case, as the applicant was no longer in detention.
44.On 1 March 2010 the applicant’s representative also informed the State Ombudsperson (Zaštitnik građana Republike Srbije) about the detention and ill-treatment of the applicant. He particularly highlighted the fact that even if State authorities knew or ought to know about the applicant’s ill-treatment in detention, none had ever launched an investigation into the case. The State Ombudsperson replied on 26April2010 that he had no jurisdiction over the work of the public prosecutor’s office or the courts, and accordingly had no jurisdiction over the case.

5.The applicants, a brother and two sisters, were born in Bulgaria and lived in a centre for children left without parental care, located in the village of Strahilovo (“the orphanage”). X (“the first applicant”) was born in 2000, Y (“the second applicant”) was born in 2002, and Z (“the third applicant”) was born in 2003. In June 2012, aged twelve, ten and nine respectively, they were adopted by an Italian couple and moved to Italy.
6.In October 2012, following an argument with her brother, the third applicant complained about his behaviour towards her, accusing him of abusing her sexually. Alerted by the complaint and by the behaviour of the third applicant, who had begun biting her mother, shutting herself in the bathroom and crying out, the adoptive parents had the children examined by two psychologists specialising in child abuse who worked in a relationship counselling centre.
7.The report drawn up by the psychologists does not contain a verbatim record of the applicants’ statements, but rather represents an account which also includes the psychologists’ comments. According to the report, the psychologists had conversations first with the parents and then with the children during October 2012. The conversations with the applicants, described as “therapy sessions”, were conducted using the methods recommended for children who had been victims of abuse, and were recorded. The first applicant was the first to speak to the psychologists. As the three children did not speak Italian very well at the time, the adoptive father accompanied the first applicant, at the latter’s request, and helped to explain what he was saying.
8.During this conversation the first applicant stated that one of the boys in the orphanage, D., used to enter the smallest children’s dormitory during the night and abuse some of them sexually while forcing the others to watch, and used to hit children. The first applicant did not name the children concerned, apart from D. and D.’s sister. He described the acts in question using few words, from which it transpired that D. had touched the intimate parts of some of the children and placed his penis in their mouths. The first applicant said that he had reported these events to the director of the orphanage, E., who had assured him that she would call the police if it happened again.
9.The second and third applicants spoke to the psychologists together. The part of the report concerning the second applicant stated as follows: “Y seems to have viewed it all as a game and did not attach negative connotations to the events, saying ‘I saw M. and B. doing sex and I did it with [my brother]’. On the other hand, both sisters appear worried about [their brother], who was the victim of violence on several occasions, saying ‘X got hit more, I wasn’t hit so much’”. The report did not name the alleged perpetrator. Speaking to the psychologists, the third applicant mentioned another situation in which the children from the orphanage had allegedly been taken to a “discotheque” where they had danced and where some men had arrived and “played” with them. The third applicant stated that she was the only one who had put up a struggle, and said “I cried out loudly and hit him”.
10.During the conversation, the applicants were asked to point out the body parts in question on dolls given to them by the psychologists.
11.Other conversations were held with the children in November and December 2012. On 5 November 2012 the first applicant stated that, in the “discotheque”, some men had played sexual games with the children from the orphanage and had filmed them.
12.The children were monitored regularly. According to the psychologists’ report, the applicants subsequently refused to speak about the events in question and said that they were “sick of Bulgaria”.
13.On 16 November 2012 the children’s adoptive father sent an email to the Bulgarian State Agency for Child Protection (hereafter “the Agency”) stating that he wished to lodge a complaint concerning abuse in an orphanage. In a reply written in Bulgarian, the Agency stated that it needed further information in order to carry out a check, and in particular the name of the institution in question and the children’s Bulgarian names. The father wrote back saying that he could not understand the letter. There was no further correspondence.
14.On 22 November 2012 the applicants’ adoptive parents alerted the Italian association that had assisted them during the adoption process, and subsequently the Italian Commission for Intercountry Adoption. In their letter to the Commission they described the events referred to in the psychologists’ report, together with other information given to them by the applicants. They gave the forenames of seven men and four women, including a certain N., whom the applicants had allegedly identified as the perpetrators of the abuse. Some of the persons concerned were members of the orphanage’s staff while others were from outside. The applicants’ adoptive parents alleged that groups of children from the orphanage had been taken “on holiday” to a village where they visited a place they called a “discotheque” on a daily basis, and where they were touched and assaulted by men from outside the orphanage. The first applicant had allegedly been forced to watch his sisters being raped. It was alleged that the children, left unsupervised during the night at the orphanage, had subsequently repeated with the younger children the behaviour of which they had themselves been victims.
15.On 21 December 2012 the applicants’ adoptive parents lodged a criminal complaint with the Italian police.
16.The adoptive parents also contacted an investigative journalist. At the beginning of January 2013 the weekly news magazine L’Espresso published an article entitled “Bulgaria, in the paedophiles’ den” which reported on the allegations made by the applicants’ parents but without naming them. The article stated that dozens of children from the orphanage in which the applicants had been placed in Bulgaria had been subjected to systematic sexual abuse by staff members and outsiders, in particular at a discotheque in a holiday village. The article described an organised network, with acts of paedophilia and violence, including threatening with weapons, being carried out by masked men, and stated that some scenes had been videoed. It stated that the youngest children had been the victims of one of the older children, who had entered their dormitory, and that the first applicant had reported the incidents to the director of the orphanage, who had done nothing. The author of the article said that he had travelled to Bulgaria in December 2012 and had visited the places described by the applicants, which, he said, matched their descriptions. He had made informal contact with a police officer and had passed on the information given to him by the applicants’ parents. However, the police officer had later told him that his supervisors had forbidden him to take up the case.
17.On 15 January 2013 the Italian public prosecutor dealing with the case forwarded the information in his possession to the Bulgarian embassy in Rome, taking the view that it was for the Bulgarian authorities to investigate the allegations.
18.On 22 February 2013 the journalist from L’Espresso gave a statement to the Italian prosecutor.
19.Having learnt about the article published in the Italian press, in particular via reports broadcast on Bulgarian radio, the Agency ordered an inspection of the orphanage on 14 and 15 January 2013. The Ruse Regional Child Rights Monitoring Department was tasked with carrying out the inspection. The inspectors interviewed the mayor of Strahilovo municipality, the director of the orphanage, the general practitioner, the welfare assistant, the psychologist, the nurse and the other staff members who were on duty at the time of the inspection. The inspectors also spoke to the thirteen children who were present, aged between eight and thirteen. The staff and the children were asked to complete an anonymous questionnaire concerning possible violent incidents, the quality of life in the orphanage and the relationship between children and staff.
20.According to the report drawn up by the inspectors on 21 January 2013, the children in the orphanage were never left unsupervised, access by outside visitors was subject to checks and there were CCTV cameras around the outside of the premises, the footage from which was viewed on a regular basis. The report stated that the children were divided into different dormitories by age and, in the case of the older children, by gender, and that the layout of the dormitories was such that the children could not move from one dormitory to another without being seen by the staff members on duty. The children’s replies to the questionnaire made no mention of violence or sexual abuse, but merely referred to arguments and to sometimes being hit by other children, who had apparently been reprimanded by staff as a result. According to the psychologist who had monitored the applicants while they were living in the orphanage, they had never mentioned ill-treatment or sexual abuse and had shown no signs of it.
21.The Agency sent a team of psychologists to the orphanage from 18 to 24 January 2013. The team likewise found no cause for alarm.
22.On the basis of this report, the Agency concluded that there was no evidence that the children in the orphanage had been subjected to the treatment reported in L’Espresso. In view of the seriousness of the allegations, however, the Agency forwarded the file to the Veliko Tarnovo district and regional prosecutors’ offices.
23.On 28 January 2013 the Veliko Tarnovo district prosecutor’s office opened a preliminary investigation (преписка) into the reports of abuse. Taking the view that there was no evidence in these reports that a criminal offence had been committed, the prosecutor’s office asked the Agency whether it had any other evidence. The Agency confirmed that the inspection carried out did not suggest that any abuse had been committed.
24.In an order of 18 November 2013 the prosecutor’s office found that there were no grounds for criminal prosecution and discontinued the case.
25.While the first set of proceedings was pending, a second investigation was opened on 18 February 2013 by the regional prosecutor’s office following a further report from the director of the Agency, which had received a report on 8 January 2013 from the Italian Association SOS Telefono Azzuro. The association’s report gave the names and descriptions of persons allegedly implicated in abusing children from the orphanage, and was accompanied by the reports of the Italian psychologists who had spoken to the applicants. The file was transmitted to the Veliko Tarnovo district prosecutor’s office, which opened a preliminary investigation on 22February 2013. A team of investigators from the police and the local and regional healthcare, social welfare and child protection departments visited the orphanage on 25 and 26 February 2013.
26.The investigators consulted the documents available in the orphanage, including the children’s medical files, and spoke to members of staff (the director, the psychologist, two supervisors, a childcare assistant, and the driver, caretaker and heating technician), to a photographer and an electrician who occasionally worked in the institution, and to four children aged between eleven and thirteen. On 6 March 2013 a police report was drawn up describing the running of the institution and the activities and care provided to the 53 children who were living there at the time. The report stated that, in the course of the regular medical check-ups carried out by the general practitioner from outside the orphanage, no signs of physical or sexual assault had been observed on the children. It mentioned that a complaints box was available to the children, as well as a telephone which gave the number of the national helpline for children in danger, and that no incidents corresponding to the applicants’ allegations had been reported by those means.
27.The report noted that only three staff members were men – the driver, the caretaker and the heating technician – and that they were not allowed to enter the dormitories unless accompanied by the director of the orphanage or by a female member of staff.
28.The report further noted that the orphanage underwent regular inspections by the local child protection department and that a police officer visited every week. It stated that security measures were in place, particularly regarding entry by outside visitors, and that no incidents of sexual abuse of children had been reported, either during the interviews with staff members in the course of the investigation or in the years preceding the investigation.
29.The report also referred to investigations conducted by the public prosecutor’s office or the police into incidents occurring at the orphanage since 2002, and in particular one case of ill-treatment by an employee who had subsequently been dismissed, and one case in which some children had accidentally swallowed medication. It noted that no reports of sexual abuse had been recorded.
30.According to a second police report, dated 5 June 2013, the police also questioned the director of the orphanage, the psychologist, the welfare assistant, the photographer, and the electrician who had worked in the orphanage and the initial of whose forename was N. (see paragraph 14 above). B., one of the children from the orphanage, who had been mentioned in the documents transmitted by the Italian authorities, was also questioned with the assistance of the orphanage’s psychologist. The report found that the applicants’ allegations were not corroborated by the evidence gathered and, in particular, that – contrary to the applicants’ assertions – the director of the orphanage was not called E., no incidents of sexual abuse had been reported to her by the applicants, and the children had not been taken to a “discotheque”. The only occasion on which the children had had an opportunity to dance had been at a party during the annual class excursion organised by an association. The children had been accompanied by the supervisors from the orphanage and the only other person present had been a disc jockey who had been invited for the evening. According to the report, the psychologist had stated that the third applicant had not displayed the symptoms referred to (crying out while she was in the bath) during her time at the orphanage, and that the first and second applicants had a tendency to manipulate other people, including adults. The witness statements indicated that D. and his sister (see paragraph 8 above) had been adopted by Italian parents in the late summer of 2011, when D. was 12 years old.
31.The Agency report on the visits to the orphanage observed that the institution largely complied with the relevant regulations and that there were no grounds to suspect sexual abuse. The report made several recommendations including improvements to the programme of activities offered to the children.
32.On conclusion of the preliminary investigation the district prosecutor’s office, in an order of 28 June 2013, decided not to institute criminal proceedings and discontinued the case. According to the order, the allegations made by the applicants’ parents had not been confirmed, the male staff members and the electrician N. (who had worked only occasionally in the orphanage) had not had access to the children without a female supervisor being present, and the children had not come into contact with any men on outside excursions without the female staff being present. The public prosecutor concluded that the evidence gathered in the case did not lead to the conclusion that a criminal offence had been committed.
33.On 8 April 2013 the first and second applicants gave evidence to the public prosecutor at the Youth Court, with a psychologist present. However, the record of that interview was not produced before the Court. On 24 June 2013 the public prosecutor transmitted the file to the Youth Court.
34.The Youth Court appointed an expert specialising in paediatric neuropsychiatry to assess the credibility of the applicants’ testimony. According to the assessment made by the expert on the basis of the written reports and the recordings of the interviews with the applicants, their allegations appeared sufficiently credible.
35.On 29 June 2013 the public prosecutor at the Youth Court proposed that the court should order a review of the applicants’ psychological counselling and rule that it was unnecessary to question the applicants again as requested by the Bulgarian authorities.
36.By a decision of 13 May 2014 the Youth Court held that there were no grounds for ordering a protective measure in respect of the applicants or for reviewing their psychological counselling, and found that the ability of the adoptive parents to take care of and raise the children was not in question. However, the court noted that the conduct of the adoptive parents had been inappropriate in so far as they should have applied to the Youth Court or another competent authority immediately rather than having recourse to a journalist. It held that it was not in the children’s interests to subject them to further questioning by the courts.
37.On 22 January 2014 the Italian Ministry of Justice sent an official letter to the Bulgarian authorities, forwarding the information gathered by the Italian public prosecutor’s office and asking them to open an investigation into the allegations. On 14 March 2014 the public prosecutor’s office at the Supreme Court of Cassation sent a translation of the Italian documents to the Veliko Tarnovo regional prosecutor’s office, which in turn forwarded them to the Veliko Tarnovo district prosecutor’s office. On 4April 2014 the district prosecutor’s office opened a preliminary investigation. On 15 April 2015 the prosecutor noted that three sets of proceedings had been opened concerning the same facts, and forwarded the files to the regional prosecutor’s office, proposing that the proceedings be joined and that the orders made be set aside.
38.In an order of 5 June 2014 the Veliko Tarnovo regional prosecutor’s office ordered the joinder of the three set of proceedings and set aside the order of 28 June 2013 on the grounds that it had been made while the first set of proceedings had been pending. The discontinuance order of 18November 2013 thus remained in force.
39.In December 2014 and January 2015 a representative of the Italian embassy in Sofia made an official enquiry regarding the progress of the investigation. On 23 January 2015 the Bulgarian authorities informed the Italian embassy in Sofia that the criminal investigation had been closed by means of the order of 18 November 2013. A copy of the order was sent to the embassy on 28 January 2015.
40.On 19 January 2015 the Italian Ministry of Justice requested its Bulgarian counterpart to inform it of the outcome of the criminal proceedings. It received the information in a letter of 11 March 2015.
41.On 11 December 2015 the applicants’ adoptive father wrote to the Italian Ministry of Justice requesting access to all the information in the file. On 1 February 2016, in response to that request, the Italian authorities sent to the adoptive parents the decisions given by the Bulgarian prosecuting authorities, translated into Italian, including the order of the Veliko Tarnovo district prosecutor’s office of 18 November 2013. The order stated that it was open to appeal to the regional prosecutor’s office.
42.On 7 June 2016 the Italian Ministry of Justice sent additional information concerning the case to its Bulgarian counterpart, and in particular a letter from the applicants’ adoptive parents challenging the investigation carried out and casting doubt on the independence of the Veliko Tarnovo district prosecutor’s office.
43.These documents were forwarded to the Veliko Tarnovo district prosecutor’s office on 1 August 2016. On 2 August 2016 the prosecutor in charge withdrew from the case, in view of the doubts raised by the applicants’ parents regarding the way in which it was being handled. A different prosecutor was put in charge of the case. He forwarded the file to the regional prosecutor’s office, taking the view that the letter from the adoptive parents should be treated as an appeal against the order of the district prosecutor’s office of 18 November 2013.
44.In an order of 30 September 2016 the regional prosecutor’s office upheld the discontinuance order of 18 November 2013. It noted that the order had been based on an inspection carried out by the Agency which had not identified any shortcomings in the running of the orphanage or any infringement of the children’s rights, and that the prosecutor had concluded accordingly that the information contained in the article in the Italian weekly magazine had not been corroborated.
45.The prosecutor in charge of the case made the following observations. In the course of the second set of proceedings, opened following the report by the association SOS Telefono Azzuro, an investigation had been conducted by the police and the various relevant departments. In that context, evidence had been taken from the following members of the orphanage staff: the director, the psychologist, two supervisors, the driver, the heating technician, the caretaker and a childcare assistant. Some outsiders who had worked in the orphanage, namely a photographer and an electrician, had also given evidence on that occasion. The police investigators had then conducted further interviews with the director, the psychologist, the welfare assistant, and one child, and also with the electrician, the photographer and the municipality’s IT officer, all of whom had carried out work in the orphanage. The investigation had shown that the children were supervised during the night and had not had any contact with individuals from outside the orphanage without being accompanied by a childcare assistant or a supervisor from the centre. The children went each summer to a holiday camp in Lyaskovets, where they were also accompanied by supervisors from the orphanage. A party was usually organised at the end of their stay, at which the only outside person present was a disc jockey.
46.The public prosecutor noted that only three men had worked in the orphanage and that they did not have access to the rooms used by the children. The outside photographer came to the orphanage only to take photographs or make videos for adoption purposes or for parties or ceremonies. There was no employee with the initial N; the only person of that name was an electrician who had come to the orphanage occasionally to repair kitchen equipment, and there had never been a director called E.
47.Hence, in the prosecutor’s view, there was nothing in the evidence gathered to suggest that any offences had been committed against the three applicants.
48.The prosecutor also observed that the documents sent subsequently by the Italian authorities confirmed the information contained in those that had already been sent and did not add anything to it. He therefore concluded that there were no grounds for a criminal prosecution, and upheld the discontinuance order of 18 November 2013.
49.On 17 November 2016 that decision was upheld by the Veliko Tarnovo appellate prosecutor’s office in the context of a review performed of its own motion.
50.On 27 January 2017 a prosecutor from the public prosecutor’s office at the Supreme Court of Cassation reviewed the order of the appellate prosecutor’s office of her own motion. She found that the investigation carried out appeared to have been comprehensive and did not reveal that the applicants had been subjected to ill-treatment in the orphanage. She noted that the applicants’ initial statements to the psychologists and their replies when questioned by the prosecutor at the Italian Youth Court had been at variance with each other and that the circumstances in which they had allegedly witnessed acts of a sexual nature were not clear. She considered it likely that the applicants had witnessed touching of a sexual nature between other children and had repeated similar acts between themselves, and that in view of their adoptive parents’ disapproval of such behaviour and in order to avoid upsetting them, they had made up a story in which they were victims of abuse.
51.In addition to the inspections conducted in the orphanage following the applicants’ allegations, the child protection services carried out a further check in June 2013 following a report by the association the Bulgarian Helsinki Committee concerning the quality of the educational activities, the presence of children older than the statutory maximum age, and the presence of the heating technician in rooms intended only for the children, in breach of the rules. The report of the child protection services noted, in particular, that the heating technician had not entered the rooms occupied by the children unless accompanied by a staff member. However, the director of the orphanage told the child protection services that one employee had made inappropriate remarks about adult relationships in front of the children and had been reprimanded by the director.
52.A criminal investigation was also opened in 2013 by the Veliko Tarnovo district prosecutor’s office following a report by the social welfare department of a town in the region concerning complaints made by three children M., S. and Y., stating that, when they had lived in the orphanage between 2011 and 2012, one of the childcare assistants had hit them with a stick. The public prosecutor’s office ordered an inspection to be carried out by the police and the Svishtov child protection department. A further check was carried out by the Strahilovo social services, on the orders of the mayor, concerning the same report. In an order of 19 June 2013 the district prosecutor’s office discontinued the case, noting that there was insufficient evidence to find that the children had been ill-treated by members of staff. It emerges from the order that the young girl M. had previously complained of sexual abuse within her family and had told the other children in the orphanage about it.
53.The orphanage was closed in July 2015 as part of a policy of deinstitutionalisation aimed at placing as many children as possible with families.
54.Under Articles 207 to 211 of the 2006 Code of Criminal Procedure, criminal proceedings are instituted by the authorities where there are legal grounds (законен повод) and sufficient evidence (достатъчно данни) pointing to the commission of a criminal offence. The legal grounds may be a report (съобщение) addressed to the public prosecutor or another competent body stating that an offence has been committed, a press article, statements made by the perpetrator of an offence, or direct observation by the prosecuting authorities of the commission of an offence.
55.Under Article 213 of the Code, where the public prosecutor decides not to institute criminal proceedings, he or she must inform the victim of the offence or his or her heirs, the legal entity affected and the person who made the report. Those persons may lodge an appeal against the decision to discontinue the case with the higher-ranking prosecutor, who has the power to order the opening of criminal proceedings. The higher-ranking prosecutor may also review the discontinuance decision of his or her own motion.
56.Under section 17(1) of the Child Protection Act, the Chair of the Agency is empowered, among other things, to monitor respect for children’s rights by schools, healthcare establishments and social services providers such as orphanages. In the event of an infringement of these rights or of the applicable rules, he or she may issue binding instructions with a view to remedying the shortcomings identified.
57.Under section 20 of the Act, the municipal social welfare department is responsible for child protection at local level.

7.The applicants are nationals of Tajikistan and Uzbekistan. Their initials, dates of birth, the dates on which their applications were lodged, the application numbers, as well as the particulars of the domestic proceedings and other relevant information are set out in the appendix.
8.On various dates the applicants were charged in their countries of origin with religious and politically motivated crimes, their pre-trial detention was ordered in absentia, and international search warrants were issued by the authorities.
9.Subsequently, the Russian authorities took final decisions to remove (that is to say extradite or expel) the applicants, despite consistent claims that in the event of removal the applicants would face a real risk of treatment contrary to Article 3 of the Convention.
11.The relevant reports by UN agencies and international NGOs on the situation in Tajikistan were cited in the case of K.I. v. Russia (no. 58182/14, §§2-28, 7 November 2017) and on the situation in Uzbekistan in the cases of Kholmurodov v. Russia (no.58923/14, §§ 46-50, 1 March 2016), and T.M. and Others v. Russia ([Committee], no.31189/15, § 28, 7 November 2017).

6.The applicant is a national of Uzbekistan born on 5 November 1972. The relevant details of the application are set out in the appended table.
7.On 21 July 2015 the applicant was charged in Uzbekistan with religious and politically motivated crimes. On 22 July 2015 his pre-trial detention was ordered in absentia, and international search warrant was issued by the authorities.
8.Subsequently the Russian authorities decided to deport the applicant (see the appended table), despite his consistent claims that in the event of removal he would face a real risk of treatment contrary to Article 3 of the Convention in his country of origin.
10.The relevant reports by the UN agencies and international NGOs on the situation in Uzbekistan up until 2015 were cited in the case of Kholmurodov v. Russia (no. 58923/14, §§ 46-50, 1 March 2016).
11.Furthermore, the most recent Amnesty International’s Report 2017/18 “The State of the World’s Human Rights” reveals some steps taken for improving the human rights protection in Uzbekistan:
“In November, the President issued a decree explicitly prohibiting the use of torture to obtain confessions and their admission as evidence in court proceedings.”
12.However, the relevant chapter of the same report on Counter-Terror and Security issues reads as follows:
“The authorities continued to secure forcible returns, including through extradition proceedings, of Uzbekistani nationals they identified as threats to the “constitutional order” or national security. NSS officers continued to abduct wanted individuals (so‑called renditions) from abroad. Those abducted or otherwise forcibly returned were placed in incommunicado detention, often in undisclosed locations, and tortured or otherwise ill-treated to force them to confess or incriminate others. In many cases, security forces pressured relatives not to seek support from human rights organizations, and not to file complaints about alleged human rights violations.”
13.Similar conclusions were drawn in Human Rights Watch World Report 2016 and Amnesty International’s Submissions to the Committee of Ministers of the Council of Europe in the group of cases Garabayev v.Russian Federation (No.38411/02).

8.The applicant, who belongs to the German-speaking minority in Belgium, was born in 1957. He is detained in the Paifve social-protection facility (établissement de défense sociale, or “EDS”).
A.The applicant’s initial placement in compulsory confinement
9.In 1997 the applicant was convicted of indecent assault of a minor aged under 16, rape of a minor aged under ten, theft, destruction and damage, and possession of prohibited firearms by the Liège Court of Appeal and the Eupen Criminal Court. The prison terms were due to expire on 20February 2004.
10.While in prison the applicant committed other offences, in respect of which fresh proceedings were brought, in particular for threats, harassment and making false accusations against members of the judiciary. In consequence, on 16 June 2003 the Committals Division (chambre du conseil) of the Liège Court of First Instance ordered that he be placed in a psychiatric institution, pursuant to section 7 of the Law of 9 April 1930 on Social Protection in respect of Mental Defectives, Habitual Offenders and Perpetrators of certain Sexual Offences (the “Social Protection Act”), applicable at the material time, and on the basis, inter alia, of a neuropsychiatric report by Dr L., dated 15 December 2001, and a report by psychologist H., dated 20 August 2002.
11.On 1 August 2003 the Indictment Division of the Liège Court of Appeal upheld that decision. The applicant did not appeal on points of law.
12.On 15 January 2004, based on, among other information, a psychiatric report by Dr V. dated 23 September 2003, the Minister of Justice also ruled that the applicant was to be placed in compulsory confinement, pursuant to section 21 of the Social Protection Act, in continuation of the sentences imposed in 1997.
13.On 21 January 2004, further to a decision of 16 October 2003 by the Social Protection Board for the Lantin Prison psychiatric wing (commission de défense sociale, or “CDS”), the applicant entered the Paifve EDS, located in the French-speaking region of Belgium.
14.An expert psychiatric report drawn up by Dr Ri. on 5September 2005 stated, in particular, as follows:
“... there is no doubt that Mr Rooman requires treatment which focuses initially on his paranoiac psychosis. Here, therapy must be undertaken simultaneously at psychopharmacological and psychotherapeutic level. ... Long-term therapy over several years is required. The psychotherapy must be carried out by therapists specialising in the treatment of chronic psychosis, with, in the present case, support meetings and psycho-educational and pedagogical aspects. It is essential in this context that the therapies are administered in parallel; that is, that the psychotropic drugs help to prepare the patient for the psychotherapy and that, in turn, the psychological sessions enable the patient to respond to the psychotropic drugs.
... The therapy should therefore begin in a secure institution; treatment might then be possible in the closed unit of a long-stay institution, before envisaging treatment in an open unit. Confirmation that [the applicant] has achieved the required level in order to vary the [place of] therapy must be given by a psychiatric expert.
... With regard to practical implementation of the therapy, the language raises a significant problem. The psychopharmacological and psychotherapeutic treatment must take place in German. ...”
B.The first application for conditional discharge and the request for day release, submitted to the CDS
15.On an unspecified date the applicant made an initial application for conditional discharge.
16.On 27 January 2006 the CDS postponed its examination of the request for conditional discharge until March 2006, holding that it was necessary to identify an institution that could admit the applicant and provide him with therapy in German, the only language that he understood and spoke.
17.On 9 June 2006 the CDS examined the application. At the hearing, the director of the Paifve EDS acknowledged that the institution was unable to provide the therapeutic care recommended by the experts who had already been consulted, given that no German-speaking doctor, therapist, psychologist, welfare officer or custodial staff member was employed in the institution.
18.In consequence, the CDS issued the following conclusions:
“It is undisputed that the detainee speaks only German, and that the medical, welfare and prison staff in the institution in which he is detained are unable to provide him with any therapeutic or welfare assistance; that he has been abandoned to his fate without any treatment since his arrival in Paifve (on 21 January 2004), although some individuals have, on a voluntary basis, made considerable efforts to explain to him his situation, which he experiences as an injustice;
In the present case, the two-fold legal aim of the compulsory confinement, namely protection of society and of the patient’s health, can only be achieved if the deprivation of liberty is accompanied by the treatment necessitated by the detainee’s mental health; since this dual condition is not fulfilled, [Mr] Rooman’s detention is unlawful; ...”
19.The CDS postponed its examination of the application for conditional discharge until a hearing to be held in September 2006, pending the appointment of German-speaking employees to the Paifve EDS.
20.In accordance with an order by the chairperson of the CDS of 24September 2006, the applicant was transferred to Verviers Prison so that its German-language psychosocial team could assess his mental health and ascertain whether he posed a danger to the public. On 30 October 2006 the CDS confirmed this order and postponed the case to a later date.
21.On 26 January 2007 the CDS dismissed the application for conditional discharge. A report of 24 January 2007, drawn up by the German-language psychosocial team in Verviers Prison, indicated that the applicant had a psychotic personality and paranoid character traits (high self-esteem; lack of respect for others, whom he used only for his own purposes; a feeling of omnipotence; lack of self-criticism; use of threatening remarks), and that he was refusing any treatment. Furthermore, the CDS noted that there was no institution in Belgium which could meet the security and language requirements arising from the applicant’s specific profile, and that the only German-language hospital which could be considered was an open hospital, and had thus to be ruled out in view of the applicant’s mental health.
22.On 14 April 2008 the applicant applied for day release. On 5 June 2008 the CDS noted that it had proved impossible to provide any treatment and that the search for a German-language institution had proved fruitless. Accordingly, it ordered the Eupen remand prison to prepare a plan for conditional discharge, and ordered a new expert report to assess the level of danger posed by the applicant. It adjourned examination of the request sine die.
C.The proceedings concerning the second application to the CDS for conditional discharge
23.Having received a new application from the applicant for conditional discharge, the CDS issued a decision on 5 May 2009, finding as follows:
“There has been no progress in Mr Rooman’s situation; progress cannot occur until he is in a setting where he can be understood in his own language, like any citizen of this country. A single member of the prison staff, a nurse [A.W.], is temporarily providing him with social contact, whereas a psychiatrist and/or a psychologist should be made available to him.
For years, the prison authorities have failed to put forward any kind of solution to this problem, of which its services are fully aware. Worse, as those authorities are unable to provide him with the necessary treatment, they seem to have resigned themselves to a role that extends no further than an unfair repressive detention.
The medical reports and [Dr Ro.’s] expert report [of 21 January 2009] indicate that Rooman, who continues to present a danger to society, cannot be discharged without support and preparation in an institutional setting, something that cannot currently be provided in Belgium, but is available abroad.”
24.In view of those findings, the CDS invited the Eupen remand prison to prepare, together with the applicant, a plan for conditional discharge, and requested that the authorities rapidly take the necessary measures to improve the applicant’s situation.
25.On 13 October 2009 the CDS found as follows:
“In the years since this file was opened (October 2003), the persons involved in this case have been thwarted by the fact that the individual in compulsory confinement speaks and understands only one language, and that the authorities have no German‑speaking staff available for him, with the exception of one nurse [A.W.] (who is apparently due to retire in the near future);
In September 2005 Doctor [Ri.], expert, wrote that changes to the detainee’s regime ‘are possible only in parallel with successful treatment, assessed by predefined steps. The treatment must begin in a secure establishment, then in a closed institution...’ Given that treatment in Germany is impossible, it was to begin in Paifve with German-speaking psychiatrists and therapists;
Since that time the detainee’s situation has not changed: he converses and leaves the building only with the sole German-speaking member of staff, and a treatment programme has not even been put in place. No satisfactory follow-up has been given to the requests by the [Social Protection] Board for an end to be put to this unlawful situation for Mr Rooman, who is deprived of his freedom in order, on the one hand, to protect society from possible dangerous conduct by him, and on the other, to provide him with the treatment necessary for his reinsertion; ...
In the light of the authorities’ failure, the question now before the Board is whether there exists, outside the social-protection facility, a unit or persons who could provide home-based therapy for Mr Rooman; ...”
26.In consequence, and pointing out that German was one of the national languages of Belgium and that the applicant was thus entitled to speak, be understood and receive treatment in that language, the CDS asked the Eupen remand prison to search in and around Verviers and Eupen for either a mental health unit, or a doctor or clinic, which could provide home‑based therapy for the applicant in his mother tongue. It reserved its decision on the application for conditional discharge.
27.On 12 January 2010 the applicant submitted pleadings in support of his application for discharge. He criticised the failure to provide him with therapeutic care and complained about the effect on his health of the absence of any prospect of improvement in his situation. As his main submission, he requested his immediate discharge on the grounds of the illegality of his deprivation of liberty. Alternatively, he asked that the CDS impose an obligation on the relevant authorities to take all necessary measures so that he would receive, in his mother tongue, the treatment required by his mental-health condition.
28.In an interlocutory decision of 13 January 2010, the CDS noted that the applicant’s situation had not changed and that the reply from the Eupen judicial assistance unit gave no grounds for hoping that he could receive appropriate treatment, in a secure establishment or elsewhere, in the foreseeable future. It considered that it was necessary to attempt one last plea to the Minister of Justice, whose intervention had previously yielded some fruit, even if this had been insufficient to resolve the problem. The CDS accordingly ordered that an “official report” on the applicant’s situation be sent to the Minister of Justice.
29.On 29 April 2010 the CDS noted that the Minister of Justice had not responded to its submission and that the applicant’s situation had worsened, since he was no longer assisted by the German-speaking nurse A.W., who had left the Paifve EDS. It found as follows:
“It follows from the report [from the psychosocial department] of 30 March 2010 that, except for occasional meetings with a welfare officer “who speaks German”, the detainee has no social contact in his language and that he has had no opportunity for several months to converse and to gain a fresh perspective in the outside world; the doctor and psychologist who signed this report do not seem particularly convinced of progress in the ‘ongoing measures (taken) by the department to enable a German‑psychologist to intervene occasionally to provide care for the German‑speaking patients in the EDS’;
Mr Rooman’s situation is deadlocked: an ill individual, he is detained in a prison medical institution where no one is able to provide the treatment to which he is entitled; the Minister and his departments are turning a deaf ear, with no concern for the despair to which this manifestly unjust attitude may lead;
In spite of the unlawfulness of Mr Rooman’s detention, his health condition means that discharge cannot be envisaged unless it is accompanied by therapy and practical support;
The [Social Protection] Board has no powers, firstly, to restore the detainee’s basic rights, namely, the rights to liberty, health care and respect for his humanity; and secondly, to compel the Minister to put an end to this situation, which his administration has been fully aware of for more than six years.”
30.The CDS decided, while “remaining open to any proposals”, to leave the applicant’s situation unchanged; in other words, it rejected his application for discharge.
31.The applicant appealed against that decision to the Higher Social Protection Board (Commission supérieure de défense sociale or “the CSDS”).
32.In parallel, he made an urgent application to the President of the Liège Court of First Instance, asking that his detention be declared unlawful and requesting his immediate discharge, or, in the alternative, that a decision be issued ordering the Belgian State to provide him with the medical care required by his situation.
33.By an order of 12 May 2010, the president of the court held that he did not have jurisdiction to hear this application, on the grounds that the CDS was the legally competent body to decide on the applicant’s discharge or his continued compulsory confinement.
34.On 27 May 2010 the CSDS upheld the decision of 29 April 2010 by which the CDS had held that the applicant was to remain in compulsory confinement. Unlike the CDS, it held that the applicant’s detention was perfectly legal, given that he had been lawfully placed in compulsory confinement and that he did not meet the necessary conditions for definitive or conditional discharge. It noted that, under section 18 of the Social Protection Act, discharge could only be ordered if the detainee’s mental condition had improved sufficiently and if the conditions for his reintegration into society were satisfied. It considered, however, that this was not the situation here. It also found that the mere fact that the applicant spoke only German did not mean that the authorities had not taken all the necessary steps to provide him with the treatment required by his condition.
35.The applicant appealed on points of law, alleging a violation of Articles 3 and 5 of the Convention.
36.On 8 September 2010 the Court of Cassation dismissed the appeal on points of law. In response to the argument alleging a violation of Article5 § 1 of the Convention, it held that legal reasons had been given for the CSDS’s decision and that it had been justified in law. It argued as follows:
“As compulsory confinement is primarily a security measure, the therapeutic action necessitated by such detention is not legally required in order for the deprivation of liberty to be lawful, even if a secondary aim, after that of protecting society, is to provide the detained person with the necessary treatment.
Under section 14(2) of the Act, the social protection boards have the power, rather than the duty, to order, in a decision giving specific reasons, placement in an appropriate institution, corresponding to the relevant security measures and treatment required. It follows that execution of the compulsory confinement measure does not become unlawful solely because it is implemented in one of the institutions created by the government for that purpose, rather than in another institution specifically designated for the treatment it may provide.”
37.The Court of Cassation declared inadmissible the argument alleging a violation of Article 3 of the Convention, on the grounds that examining it would require a factual verification of the conditions in which the applicant was detained and such an examination fell outside the scope of its jurisdiction. For the remainder, it considered that the CSDS had replied to the applicant’s complaint in stating that the fact that he spoke only German did not mean that the relevant authorities had not taken all the necessary steps to provide him with the required treatment.
D.The third application to the CDS for discharge
38.On 13 November 2013 the applicant again applied for discharge.
39.A report by the psychosocial department of the Paifve EDS, dated 13January 2014, reiterated that the applicant had a poor command of the French language, speaking only a few words of French which were insufficient to enable him to conduct a conversation; in consequence, he had very little contact with the other patients and members of staff. The report also indicated that the applicant had met a German-speaking psychologist on a single occasion, in June 2010; his behaviour had improved, he was less aggressive and intolerant than before, and he had recently been moved from the cell wing to the community wing; in addition, he had never expressed a wish to meet members of the psychosocial team on a regular basis. The report concluded that the applicant should remain in the Paifve EDS, citing among other reasons his “untreated mental health problems”.
40.On 24 January 2014 the CDS issued its decision. It noted, firstly, the content of the reports by Dr Ri., dated 5 September 2005, and Dr Ro., dated 21January 2009, finding that it was necessary for the applicant to receive psychopharmacological and psychotherapeutic treatment in a secure establishment, then in a closed institution, before his admission to an open facility could be envisaged. It noted that, since those reports were drawn up, the various attempts to resolve the language problem had not succeeded in securing a significant improvement in the applicant’s health: his rare outings accompanied by a German-speaking member of the prison staff had been abandoned, since this employee was no longer available and had not been replaced; attempts to find a German-language institution, doctor or therapist had met with failure; no follow-up seemed to have been given to the commitment that a minimum number of German-speaking staff were to be recruited, and the applicant had, of his own accord, declined the assistance of the German-speaking welfare officer with whom he had occasionally met. Nonetheless, the CDS rejected the application for conditional discharge, finding that the conditions for discharge, namely an improvement in the applicant’s mental state and guarantees for his social rehabilitation, were not met. With regard to the absence of treatment in German, complained of by the applicant, it held:
“The detainee claims that he is not receiving the appropriate treatment for his mental health condition in German, his mother tongue, without however describing or even referring to the treatment allegedly denied to him, and that he would agree to accept or participate in. The mere fact that he only speaks German does not mean that the Paifve social-protection facility has not taken all the necessary steps to provide him with the treatment his condition requires.
While, as [the applicant] points out in his submissions, it is for the relevant authorities to take all the necessary measures for his health, it is not, however, within the [Social Protection] Board’s powers to discharge a detainee who claims to be the victim of shortcomings on the part of the authorities...
Nor does the Board have jurisdiction to issue orders to the authorities or to third parties, [or] to reprimand them for their actions or shortcomings ...”
41.On 3 April 2014 the CSDS upheld the CDS’s decision. It held, interalia, as follows:
“Contrary to what he alleges in his pleadings, the detainee receives all the treatment required by his condition from competent and qualified staff in the Paifve EDS, and his specific medical needs are fully taken into account. In spite of the treatment given, the detainee’s mental condition has not yet improved sufficiently, on account of his paranoid and psychopathic character traits, his lack of self-criticism and his constant demands. The detainee is thus clearly wrong in attributing the lack of improvement in his mental condition to the language issue alone.
The continued compulsory confinement in an EDS suited to his medical condition of an individual who would represent a danger to the public in the event of discharge, when his mental condition has not sufficiently improved and the conditions for his social rehabilitation are not met, is not unlawful and does not amount to a violation of the provisions of the [Convention].”
42.On 25 June 2014 the Court of Cassation quashed the decision by the CSDS on the grounds that it had not addressed the applicant’s argument that he was not receiving care appropriate to his situation, in view of the fact that he spoke and understood only German and that no German-speaking staff members were available in the facility where he was being held. The case was sent back to the CSDS with a differently constituted panel.
43.On 22 July 2014 the CSDS issued an interlocutory order, requesting the CDS to appoint a group of German-speaking experts to update the psychiatric report of 21 January 2009. It invited the director of the Paifve EDS institution to take all the necessary measures to ensure that the requisite care was made available to the applicant, by at least providing the services of a German-speaking psychiatrist and psychologist. It ordered that the case be reopened and scheduled a hearing for 17 October 2014.
44.In a decision of that date, the CSDS took note of the fact that the applicant had been treated by a German-speaking psychologist since 11July 2014 and by a German-speaking psychiatrist since 16 September 2014. It ordered that a panel of experts be appointed; assisted by a German interpreter, it was to update Dr Ro.’s report of 21 January 2009.
45.The updated report, prepared by three experts who had each examined the applicant separately, was submitted on 27 March 2015. The experts concluded that the paranoia-like delusional disorder persisted, that the psychotic aspect of the applicant’s personality was also still present, and that his neuropsychological condition was practically identical to what it had been in 2009 when Dr Ro. had drawn up his report.
46.By a decision of 20 May 2015, the CSDS dismissed the request for final or conditional discharge, considering that the applicant’s state of health had not improved sufficiently and that the conditions for his reintegration into society were not met. It also specified that it had not been established that this lack of improvement in the applicant’s situation was due solely to the fact that he had not had an opportunity to be in contact with German‑speaking individuals, particularly in view of the treatment provided by medical staff since 11 July 2014.
47.The applicant lodged an appeal on points of law against that decision, which the Court of Cassation dismissed in a judgment of 28October 2015. The Court of Cassation restated the CSDS’s conclusions and specified that, having regard to the reasons given by it, it was not necessary to examine the applicant’s submissions alleging a violation of Articles 3 and 5 of the Convention.
E.The proceedings before the Brussels urgent-applications judge
48.In the meantime, on 28 March 2014 the applicant had brought proceedings against the Belgian State before the President of the French‑language Brussels Court of First Instance, as the judge responsible for hearing urgent applications in accordance with Article 584 of the Judicial Code. He requested his discharge or, in the alternative, that the authorities be ordered to take the measures required by his state of health.
49.By an interlocutory order of 4 July 2014, the president of the court asked the director of the Paifve EDS and Dr B. from that EDS’s psychosocial unit to inform him, firstly, about the treatment available in that EDS and, secondly, about the treatment that had in fact been provided to the applicant.
50.In their respective replies, dated 28 August 2014, the director of the Paifve EDS and Dr B. indicated that the applicant now had access to consultations with a German-speaking psychologist and that the authorities had made contact with a German-speaking psychiatrist who had agreed to meet the applicant. Dr B. stated, in particular:
“Psychiatry is a branch of medicine which deals with mental disorders, and its modus operandi entails, first and foremost, a specific dialogue between a patient and his or her therapist, the doctor. This implies the use of language; it also implies, of course, that there is mutual understanding; it implies that the two sides have access to a common language, enabling them to communicate and allowing the psychiatrist to assess accurately all the nuances of the patient’s condition and its development.
From this perspective, however, we have constantly emphasised that [the applicant] is essentially German-speaking. Admittedly, he occasionally comes out with a few simple words in French, but, clearly, the years spent in Paifve have not persuaded him to learn to use French more fluently so as to communicate more meaningfully with those caring for him. Alternatively, as certain examinations seem to indicate, he is so cognitively disadvantaged that he cannot achieve this.
... One can of course always hope that in [the applicant’s] case, permanent support and appropriate treatment in the German language could improve his personality disorder somewhat, but, to repeat, I am more of the opinion that with this type of paranoid personality disorder, paranoia with anti-social traits, positive progress is unlikely.”
51.In an order of 10 October 2014, the president of the court noted that, until September 2014, the applicant had had no access to a psychiatrist who could communicate with him in German. He had had access to an external German-speaking psychologist between May and November 2010. The president noted that the consultations with that psychologist had ended, not because the applicant no longer wished to attend them, as alleged by the State in its pleadings, but because of the Belgian State’s late payment of the psychologist’s fees and expenses, and that the consultations had resumed in July 2014. He noted that, until April 2010, the applicant had benefitted from the presence and care of a German-speaking nurse, who had in the meantime left the Paifve EDS, but that since August 2014 the same nurse had been authorised to accompany the applicant on outings. Lastly, he noted that the applicant had met a German-speaking welfare officer, but had declined the latter’s services in February 2014.
52.With regard to the main request, the president held that he did not have jurisdiction to order the applicant’s discharge, holding that only the social protection bodies had power to do so. Ruling on the subsidiary request, the president noted that the applicant had not had access to the mental-health treatment required by his condition, and considered that, prima facie, there had been a breach of his right of access to health care and that he had sustained inhuman and degrading treatment within the meaning of Article3 of the Convention. In consequence, he ordered the Belgian State to appoint a German-speaking psychiatrist and medical auxiliary to treat the applicant, subject to a penalty in the event of non-compliance, and to initiate the treatment routinely provided to French-speaking persons in compulsory confinement who suffered from a similar mental illness to the applicant.
53.No appeal was lodged against that order. According to the applicant’s representative, the Belgian State appointed a German-speaking psychiatrist and psychologist, who visited the applicant several times. However, those visits appear to have stopped towards the end of 2015.
F.The claim for damages
54.In the meantime, on 2 May 2014 the applicant had filed a negligence claim against the Belgian State on the basis of Article 1382 of the Civil Code.
55.By a judgment of 9 September 2016, the French-language Brussels Court of First Instance held that the failure to provide the applicant with psychological treatment in his mother tongue between 2010 and 2014 had been negligent. It held, in particular:
“It is undeniable that the psychiatric and psychological treatment which must be provided to [the applicant] must be provided to him in German, the only language in which he is fluent and, moreover, one of the three national languages in Belgium.
However, between 2010 and 2014 [the applicant] received no medico-psychological treatment in his own language.
Whatever the quality – which is, indeed, undisputed – of the care provided to detainees in the Paifve [EDS], it is totally inappropriate for [the applicant’s] mental‑health condition purely and simply on account of the fact that it is not given in German.
In spite of the official and repeated denunciations of this situation by the Social Protection Board to the Belgian State since 2010, the latter has taken no measures to correct it. In addition, it has produced no evidence of the slightest step taken by it to that end.
This failure to act amounts to negligence within the meaning of Article 1382 of the Civil Code.
...
Moreover, and as [the applicant] also submits, Articles 3 and 5 [of the Convention] require the Belgian State to take the necessary measures to provide him with access to the basic care necessitated by his mental health.
...
In the present case, the applicant’s vulnerability on account of the very nature of his psychological disorder and the absence of any real possibility of contact in his language have necessarily exacerbated his feelings of distress and anxiety.
It is immaterial that, in any event, the [applicant’s] state of mental health does not permit his discharge. The mere fact of having been detained for an indefinite period without appropriate treatment amounts in the present case to a violation of Articles3and 5 [of the Convention].
Contrary to the submissions of the Belgian State, the fact that [the applicant] is not always receptive to psychological, medical and social therapy does not permit minimisation of the Belgian State’s negligent attitude towards an individual suffering from a mental disorder, and whose discernment is, by assumption, uncertain.
Equally, at the risk of disregarding the lived experience of the person suffering from a mental disorder, [the applicant’s] stable conduct within the institution does not suffice to establish that he received appropriate treatment for his condition.”
56.Finding that this absence of treatment had caused the applicant mental suffering, the court ordered the State to pay him 75,000 euros (EUR), an amount assessed ex aequo et bono, in compensation for the period from January 2010 to October 2014. It is unclear from the case file on what date this judgment was served on the parties.
57.On 24 January 2018 the applicant lodged an application with the Brussels Court of Appeal requesting legal aid in order to appeal against the judgment of the French-language Brussels Court of First Instance. By an order of 26 January 2018, the Brussels Court of Appeal granted that request.
58.For its part, the Belgian State appealed against the same judgment on 19 February 2018, arguing that the applicant’s complaints were inadmissible and/or ill-founded. A preliminary hearing was held before the Brussels Court of Appeal on 22 March 2018.
59.At the date of adoption of the present judgment those proceedings were still pending.
G.The application for discharge submitted to the Social Protection Division
60.In their observations to the Grand Chamber, the parties produced documents showing that fresh proceedings had been brought for the applicant’s discharge, under the new Law of 5May 2014 on compulsory confinement (“the Compulsory Confinement Act”, see paragraphs91‑97 below). In this context, on 12 January 2017 a team from the psychological and welfare service of the Paifve EDS, which included a psychiatrist, a psychologist and a welfare officer, drew up a multi-disciplinary psychiatric and psycho-social report on the applicant’s situation. It stated that the information set out in its report had been drawn from various psychiatric examinations conducted during the applicant’s period in compulsory confinement, and that in view of the language barrier, it had been impossible to obtain other information or compare the information from previous expert reports with the applicant’s statements at the time the report was being prepared. It then confirmed that the patient spoke only German and that he knew only a few words of French, which were not sufficient to enable him to hold a conversation, with the result that he had limited contact with the other patients and with members of staff. The team which produced the report added that this language barrier had restricted and complicated the clinical observation, and that, in view of this shortcoming in the assessment, it was unable to provide a sufficiently informed psychiatric opinion on the application for discharge. Nonetheless, in spite of this difficulty in providing an objective assessment of the applicant’s dangerousness, the likelihood of his reoffending, and his capacity for autonomy, it considered it possible to state that grey areas still remained. It indicated, in particular, that the applicant continued to display an obsession with vengeance, as highlighted in the 2015 expert report, and that the risk of his harassing the victims could not be ruled out. It therefore gave an unfavourable opinion in respect of the applicant’s application for discharge.
61.On 5 May 2017 the director of the Paifve EDS prepared a separate report in which she indicated that the applicant continued to require an institutional setting, given his pathology and the fact that he remained dangerous in that he was still likely to commit offences or harass the victims. She considered that, in order for “the conditions for conditional discharge to be satisfied, and given Mr Rooman’s personality, the only safe option was [conditional] discharge to an institution [a structured facility]”. She also expressed the view, in light of the existing situation, that the applicant should not be discharged.
62.Basing its decision on the arguments contained in these two reports, on 29 May 2017 the public prosecutor at the Liège Post-Sentencing Court (TAP) issued an opinion in favour of maintaining the applicant in compulsory confinement and opposing the request for conditional discharge.
63.On 28 July 2017 the Social Protection Division (CPS) at the Liège TAP, sitting in a different composition, which now had jurisdiction under the new 2014 Compulsory Confinement Act (see paragraph 97 below) to rule on whether to extend compulsory confinement and, if appropriate, to order the applicant’s discharge, issued an interlocutory decision. It ordered that the proceedings be reopened, so that the parties could submit relevant information on whether the situation which had led the European Court of Human Rights to find a violation of Article 3 in the Chamber judgment of 18July 2017 persisted. Pending receipt of that information, the CPS adjourned its examination of the case. It also summoned the Director General of Prisons to a hearing fixed for November 2017.
64.On 16 November 2017 the CPS held a hearing, in private, at the Paifve EDS, at which the applicant was present; he was assisted by his lawyers and an interpreter.
In its judgment, delivered on 27 December 2017, the CPS found as follows:
“... According to the information submitted to the Division, [the applicant] can now contact a German-speaking psychologist (3 visits since August 2017). If he so wishes, he can also request a visit from a German-speaking psychiatrist. He has one outing a month, accompanied by a German-speaking nurse. Contact with German-speaking psychological and welfare assistants has been organised. A German interpreter will be called upon whenever necessary (CAP, disciplinary hearings, expert reports). Clinical consultations have been scheduled in order to assess the treatment plan and to adapt it as necessary (one meeting has already taken place, another is scheduled).
... It is established that [the applicant’s] detention, during those periods when he was not being treated by German-speaking medical staff, was in breach of Article 3 of the [Convention].
It was demonstrated in the hearings on 16 November 2017 that that violation has now ceased, as the Paifve EDS and the prison authorities have done what was necessary to ensure that German-speaking care providers are available, both in terms of his psychological and psychiatric treatment and with regard to welfare assistance and supervised outings. An interpreter is also called upon whenever required. ...
... while accepting [the applicant’s] argument that the failure to provide treatment in his mother tongue broke the link between the compulsory confinement and the illness at its origin, so that the detention became unlawful ..., it should again be noted that the unlawful nature of the detention ended following the measures currently put in place.
[The applicant’s] current detention is justified by his mental health, and the conditions of his detention make it possible to provide him with treatment while at the same time ensuring his safety and that of others.
... there remain obstacles to [the applicant’s] discharge, namely:
- the lack of prospects for social reintegration, given his mental disorder ...
- the risk that offences will be committed ...
- the risk that he will harass the victims, and his attitude towards the victims of the offences which resulted in his compulsory confinement ...”
65.On those grounds, the CPS dismissed the main request for final discharge and held that it was also inappropriate to grant conditional discharge. With regard to the subsidiary request for treatment in German, it added that this had become devoid of purpose. It ordered an eight-month observation period, at the close of which the director of the Paifve EDS would be required to provide a fresh opinion on the applicant’s situation.
66.By a judgment of 28 February 2018 the Court of Cassation dismissed an appeal on points of law lodged by the applicant against the CPS’s judgment of 27 December 2017.
H.Chronological summary of the treatment provided to the applicant, attached to the Government’s observations submitted to the Grand Chamber
67.In support of the observations submitted in the proceedings before the Grand Chamber, the Government attached a chronological summary of the treatment administered to the applicant since he was placed in compulsory confinement in the Paifve EDS in 2004. They also provided factual clarifications at the public hearing on 6 June 2018.
68.With regard to psychiatric treatment, the document submitted by the Government indicates that the applicant was treated by various French‑speaking psychiatrists. The frequency of the consultations is not specified. From 2004 to 1 February 2014, a German-speaking nurse assisted the psychiatrists during those meetings by providing interpretation. Between March 2008 and August 2009 the applicant was monitored by a psychiatrist who spoke elementary German. On 20 May 2015 the applicant met with DrV., a German-speaking psychiatrist. This meeting did not give rise to regular meetings. The psychiatrist noted that the applicant had expressed no particular requests or asked for psychiatric assistance. She had nonetheless agreed to return if necessary. She had reiterated her availability on 23March 2016, then at the end of 2017, in a telephone conversation with the in-house psychiatrist at the Paifve EDS. At the public hearing before the Court, the Government stated that the applicant, who was deemed to be capable of forming his own views, did not wish to enter into regular contact with the psychiatrist.
69.With regard to psychological treatment in German, the applicant had attended nine meetings with a psychologist in 2010, and nine other meetings in 2014-2015. Between 18 August 2017 and 12 March 2018, the date on which the Government’s observations were submitted, the applicant had had monthly meetings with this psychologist, the most recent, according to the information provided to the Court at the public hearing on 6 June 2018, being on 20 March and 27 April 2018. For his part, the applicant stated that he had had no further meetings since March, and submitted that the last meeting had taken place in February 2018.
70.With regard to welfare assistance, the Government stated that since 1October 2006 the applicant had received welfare assistance from a German-speaker, except for the periods from May to September 2014 (on account of maternity leave), and from 1 April to 1 November 2017 (on account of a change in post). Since November 2017, the German-speaking welfare assistant had returned to her post in the Paifve EDS and continued to meet the applicant several times a month. She had essentially dealt with the applicant’s requests for administrative help, or for practical help in his contacts with the outside world, especially with his lawyer.
71.With regard to psychiatric nursing care, the document submitted by the Government indicated that, from his arrival at the Paifve EDS, the applicant had been assisted regularly by a German-speaking male nurse. In addition to his somatic nursing skills, this nurse had specialised psychiatric care skills and had been able to spend time with the applicant, mainly to support him and help him deal with his stress. According to the Government, this nurse’s listening skills had enabled him to assess the applicant’s state of mind and report his observations to the psychiatrist. The nurse had been transferred to the prison on 1 February 2014 and retired on 1December 2016. After that date, he had continued to meet the applicant in order to maintain contact with him and accompany him on outings, the last of these having taken place on 24 April 2017.
72.Moreover, the applicant was able to see a general practitioner once a month. Since 30 November 2017, an interpreter had been called in to translate at these meetings.
73.On 25 November 2017 a multidisciplinary meeting of the care team had taken place, in the presence of the applicant and an interpreter. At the public hearing, the Government stated, without submitting any document in support of this assertion, that a coordination meeting of the various actors involved in the applicant’s treatment both inside and outside the Paifve EDS had been held, in the applicant’s presence. At that meeting, the team had, in particular, sought the applicant’s permission for the external German‑speaking psychologist to transmit to the in-house psychosocial team information obtained in her monthly meetings with him, as well as her conclusions regarding developments in his state of health, given that the psychosocial team was responsible for preparing an assessment of the degree of danger posed by him and of the prospects for his rehabilitation. The applicant had refused to consent to this transmission of information.
74.Lastly, the applicant had been authorised to leave the institution on day-release, accompanied by the nurse. The number of these daytrips had progressively increased from one in 2007 to six in 2017. Since 2015 the applicant had made regular visits to Germany. In 2016 he had resumed contact with his family. It appears from other information in the file that the applicant has a brother with whom he has renewed contact in the past few years.

5.The applicant was born in 1970 and lives in Mankivka.
6.On 2 April 2007 the applicant underwent surgery in connection with an umbilical hernia (exomphalos).
A.The applicant’s arrest, alleged ill-treatment by the police, and ensuing investigation
7.According to the applicant, on 9 February 2008 the police arrested him in Vinnytsya on suspicion of abduction and murder. On the same day he was transferred to Kyiv and placed in detention in a cell of the Shevchenkivskyy district police station.
8.According to the Government, the applicant was arrested in Kyiv on 10 February 2008 on suspicion of abduction and murder, and on the same day he was placed in detention in a cell of the Shevchenkivskyy district police station.
9.According to the applicant, between 10 and 16 February 2008 he was beaten by police officers who tried to force him to confess to the abduction and the murder. In particular, Officer G., the first deputy head of Kyiv Shevchenkivskyy district police station, kicked the applicant in the face and abdomen, injuring the area where he had had the operation for his umbilical hernia (see paragraph 6 above). After the beating, the applicant started suffering from constant pain in his abdomen.
10.On 16 February 2008 the applicant confessed to the murder and the abduction and signed several documents which were undated. On the same day the police transferred him to the Kyiv Temporary Detention Facility (hereinafter, “the ITT”). The ITT medical staff examined the applicant on the same day and noted that he had a bruise under his right eye.
11.According to the applicant, on 19 February 2008 the Kyiv Pre-trial Detention Centre (hereinafter, “the SIZO”) administration refused to admit him because of his poor state of health. This was the second time that the SIZO administration refused to admit him (see paragraph 39 below). The applicant was sent back to the ITT and the ITT staff called an ambulance, which transported him to the Kyiv Medical Emergency Hospital (“the Emergency Hospital”). According to a certificate issued by the Emergency Hospital, the applicant stayed there from 20 to 25 February 2008 and received treatment for “contusion to the abdomen and facial tissue”.
12.On 26 February 2008 the applicant was placed in the SIZO. He was examined by a SIZO doctor, who diagnosed him with a “post-operative condition” following the operation on his umbilical hernia in 2007.
13.On 16 May 2008 the applicant’s defence lawyer complained to the prosecutor’s office regarding the applicant’s ill-treatment by the police officers of the Kyiv Shevchenkivskyy district police station between 10 and 16 February 2008.
14.On 24 June 2008 the investigator dealing with the criminal case against the applicant ordered a forensic medical expert to establish the injuries the applicant had sustained between 9 and 16 February 2008. The forensic medical expert examined the applicant on 4 July 2008 and did not find any injuries on him which could have been inflicted during that period. The expert noted that a liquid was leaking from the applicant’s navel, and recommended that he be examined by a surgeon.
15.On 11 August 2008 the applicant’s lawyer submitted a petition to the prosecutor’s office in which he stated that the applicant had been beaten by Officer G., the first deputy head of the Kyiv Shevchenkivskyy district police station.
16.On 16 September 2008 the investigating officer of the Kyiv Shevchenkivskyy district prosecutor’s office refused to institute criminal proceedings in relation to the applicant’s ill-treatment complaints on the grounds that there were no constituent elements of an offence. The investigating officer based his decision on statements of the investigator and the police officers dealing with the initial investigative activities concerning the applicant. Those questioned denied that the applicant had been ill‑treated.
17.On 29 September 2008 the applicant’s defence counsel lodged a complaint with the Kyiv City public prosecutor against the decision of 16September 2008.
18.On 16 October 2008 the Kyiv City public prosecutor’s office considered that there were no legal grounds for quashing the decision of 16September 2008 (see paragraph 16 above).
19.On 18 November 2008 the Kyiv Shevchenkivskyy District Court (hereinafter, “the local court”) quashed the decision of 16 September 2008. It held that, in the course of the inquiry, the investigating officer had failed to question the applicant and Officer G., the police officer whom the applicant had pointed out. The local court also found that the investigator had failed to append to the case file the results of the forensic examination of the applicant’s injuries which his lawyer had referred to in the application of 11August 2008 (see paragraph 15 above).
20.On 19 December 2008, following an inquiry into the applicant’s ill‑treatment complaints, the prosecutor’s office refused to institute criminal proceedings against the police officers because there were no constituent elements of an offence. In the course of the above inquiry, Officer G. was questioned. He said that he had not taken part in the applicant’s arrest or in any other investigative activities relating to him.
21.On 1 December 2009 the local court quashed the above decision and remitted the case file for an additional inquiry. The local court noted that the investigating officer had failed to comply with the instructions it had given in the decision of 18 November 2008 (see paragraph 19 above). In particular, the investigating officer had not questioned the applicant and had failed to provide any substantiation for his decision of 19 December 2008 (see paragraph 20 above).
22.On 30 January 2010, following an additional inquiry into the applicant’s ill-treatment complaints, the prosecutor’s office refused to institute criminal proceedings against the police officers because there were no constituent elements of an offence. In the course of the above inquiry, Officers О., L., Psh., and S., were additionally questioned and they denied physically or psychologically coercing the applicant into making a confession.
23.On 18 May 2010 the local court quashed the above decision and remitted the case file for an additional inquiry. The court noted that the instructions it had given in the decisions of 18 November 2008 and 1December 2009 (see paragraphs 19 and 21 above) had not been followed by the investigating officer.
24.On 23 August 2010, following an additional inquiry into the applicant’s complaints, the prosecutor’s office refused to institute criminal proceedings against Officer G., the person who had allegedly ill-treated the applicant (see paragraph 9 above), because there were no constituent elements of an offence. In the course of that additional inquiry, the applicant was questioned and he reiterated his account of the events relating to the ill‑treatment. The investigating officer concluded that there was no evidence proving Officer G.’s involvement in those events.
25.On 5 December 2010 and 30 March 2011 the applicant lodged petitions with the Prosecutor General of Ukraine in which he reiterated, inter alia, that he had been ill-treated by Officer G. and that the investigation into his complaints in that respect had been ineffective.
26.On 17 January 2011 a superior prosecutor quashed the decision of 23August 2010 (see paragraph 24 above) and remitted the case file for an additional inquiry.
27.On 12 April 2011, following an additional inquiry into the applicant’s complaints, the investigating officer refused to institute criminal proceedings against Officer G. because there were no constituent elements of an offence. In the course of the above inquiry, the investigating officer questioned Officer Ovs., who had been on duty at the time of the applicant’s arrest. The officer denied that there had been blood on the applicant’s body in the stomach area. The investigating officer also noted that the applicant had not raised any complaints either during his time at the police station or after his transfer to the Kyiv SIZO. On 30 March 2012 the local court quashed that decision and remitted the case file for an additional inquiry.
28.On 28 June 2012, following an additional inquiry, the prosecutor’s office refused to institute criminal proceedings against Officer G. because there were no constituent elements of an offence. The investigating officer came to the conclusion that it was impossible to question the people who had been at the police station with the applicant in February 2008. On an unspecified date that decision was quashed and the case file was remitted for an additional inquiry.
29.On 7 September 2012, following an additional inquiry, the investigating officer refused to institute criminal proceedings against Officer G. because there were no constituent elements of an offence. On 17September 2012 a superior prosecutor quashed that decision and remitted the case file for an additional inquiry.
30.On 27 September 2012, following an additional inquiry into the applicant’s complaints regarding ill-treatment, the prosecutor’s office refused to institute criminal proceedings against Officer G. because there were no constituent elements of an offence. In the course of the inquiry, the inspector on duty at the material time, Inspector Ag., was questioned and stated that he didn’t remember whether he had seen the applicant.
31.On 7 May 2013 the local court quashed the decision of 27 September 2012 (see paragraph 30 above) and remitted the case file for an additional inquiry. The court held that the investigating officer had failed to interrogate and/or properly analyse the statements of:
- the people who had been detained with the applicant in the cell at the Kyiv Shevchenkivskyy district police station in February 2008;
- the ITT and SIZO staff, in relation to the applicant’s alleged ill‑treatment and the SIZO’s alleged refusal to admit him after the court had ordered his arrest;
- the medical personnel from the emergency service who had provided the applicant with medical assistance in February 2008;
- the surgeon from Buchanska Prison Hospital who had performed an operation on the applicant on 20 January 2010;
- the police officers who had arrested the applicant in Vinnytsya on 9February 2008.
32.On 21 May 2013 the information about the physical injuries inflicted on the applicant was entered into the Unified Register of Pre-Trial Investigations and the respective pre-trial investigation started, in accordance with the provisions of the new Code of Criminal Procedure.
33.On 27 June 2013, following the results of the pre-trial investigation, the prosecutor’s office issued a decision to terminate the criminal proceedings because there were no constituent elements of an offence.
34.On 4 July 2013 a superior prosecutor quashed the above decision, holding that the investigating officer had failed to follow the instructions given by the local court in its decision of 7 May 2013 (see paragraph 31 above).
35.On 5 July 2013 the investigating officer questioned S., who had been detained with the applicant in the ITT cell. The witness stated that he did not remember the applicant being beaten.
36.On 29 August 2013, following the results of the investigation, the prosecutor’s office issued a decision to terminate the criminal proceedings because there were no constituent elements of an offence. On 18 February 2014 the local court upheld that decision.
37.On 15 April 2014 the Kyiv City Court of Appeal quashed the decision of the investigating officer of 29 August 2013 and the decision of the local court of 18 February 2014 (see paragraph 36 above) and remitted the case file for a pre-trial investigation. The court held that the investigating officer had failed to comply with the instructions given by the local court in its decision of 7May 2013 (see paragraph 31 above), and in particular had failed to establish the origin of the injuries sustained by the applicant in February 2008.
38.The parties did not submit information about further developments in the case.
B.The applicant’s detention and the medical assistance provided to him
39.Meanwhile, on 13 February 2008 the local court had ordered the applicant’s detention on remand and ordered that he be transferred to the SIZO. As indicated before (paragraph 11 above), according to the applicant, the SIZO administration refused to admit him because of his poor state of health. The police then transported the applicant back to the Shevchenkivskyy district police station.
40.On 16 February 2008 the applicant was placed in the ІТТ (see paragraph 10 above). As a result of a medical examination, a bruise was found under his right eye. It was classified as a minor physical injury.
41.Following a deterioration in the applicant’s state of health, the ITT staff called an ambulance, which transported him to the Emergency Hospital. According to a certificate issued by the Emergency Hospital, the applicant stayed in that facility from 20 to 25 February 2008 and received treatment for “contusion to the abdomen and facial tissue” (see paragraph11 above).
42.On 26 February 2008 the applicant was transferred from the ITT to the SIZO. As indicated in paragraph 12 above, upon his arrival he was examined by a SIZO doctor, who diagnosed him with a post-operative condition following his umbilical hernia operation in 2007 (see paragraph 6 above).
43.According to the applicant, on 29 February, 5, 10, and 16 March 2008 he complained to the SIZO staff of constant pain in his abdomen. The SIZO doctors examined him and established that the pain was due to a post-operative navel fistula. On 21 March 2008 he was examined by a SIZO general practitioner who gave him an anaesthetic. Between 13 May and 2July 2008 the applicant stayed in the SIZO medical unit and was treated with the following: lactulose, aloe, fluconazole, ascorbic acid, and Captopril. His navel injury was treated with hydrogen peroxide, vitamins В1 and В6, Thiotriazolin, Levomekol (an ointment), Riboxin, and angiotensin-converting enzyme (ACE). After being treated, he was discharged and placed in a cell.
44.On 13 June 2008 the applicant was examined by a surgeon from the Emergency Hospital, who diagnosed a suture sinus (a type of wound complication) following the umbilical hernia operation. He recommended that a bandage be applied to the applicant’s navel area, and also recommended that he be treated with antiseptics, antibiotics and have elective surgery. The surgeon noted that the applicant did not need urgent inpatient treatment, and the applicant was returned to the SIZO on the same day.
45.On 22 October 2008 the applicant was examined in the SIZO by another surgeon, who noted that he did not need inpatient treatment or an urgent operation in connection with his navel fistula.
46.From 26 November to 15 December 2008 the applicant had examinations at the Emergency Hospital in connection with the constant pain in his abdomen. He was diagnosed with omphalitis (inflammation of the navel and the surrounding area) and a suture sinus following the umbilical hernia operation in 2007 (see paragraph 6 above). He was also diagnosed with: ischemic heart disease, myocardial cardiosclerosis, category II hypertension, hypertonic crises of 27 November, 1 and 4December 2008, category I cardiac failure with cephalgia phenomena, asthenoneurotic syndrome, discirculatory encephalopathy, and chronic acute cholecystopancreatitis. The applicant received the following treatment: antispasmodic drugs, hepatoprotectors, antibiotics, biocatalysts, antihypertensive drugs (inhibitors, angiotensin-converting enzyme, beta-blockers, diuretics), and bandages on his umbilical area. On 5 December 2008 and 30 January 2009 the surgeon from the Emergency Hospital recommended that the applicant have elective surgery on the fistula and continue with the care and treatment of his symptoms under the surgeon, neuropathologist and cardiologist at the SIZO medical unit.
47.Between 9 February and 10 April 2009 the applicant stayed in the SIZO medical unit. He was diagnosed with and received treatment for: omphalitis, a urachal cyst, a navel fistula and suture sinus, ischemic heart disease, encephalopathy and an exacerbation of his chronic pancreatitis. The treatment consisted of oral medication and the application of antiseptic to the applicant’s navel area.
48.On 6 and 7 May 2009 the applicant was examined by the SIZO cardiologist, neuropathologist and surgeon. He was diagnosed with a urachal cyst, a ligature fistula and category II hypertension. He was prescribed outpatient treatment for his symptoms.
49.On 31 July 2009 the SIZO surgeon recommended that the applicant have an operation on the fistula, to be performed in a public hospital.
50.On 4 August 2009 the SIZO informed the applicant’s wife that the operation to remove his navel fistula would be arranged as soon as the court dealing with the criminal case against him allowed him to be transferred to an outside medical facility.
51.On 15 August 2009 the applicant was examined by the SIZO therapist. He was diagnosed with a urachal cyst, a ligature fistula, and category II hypertension. It was recommended that he continue with the prescribed outpatient treatment.
52.On 24 September 2009, during hearings at the Kyiv City Court of Appeal, an ambulance was called for the applicant. The ambulance team suggested that the applicant had peritonitis, and recommended that he be hospitalised urgently. According to the ambulance team report, the person in charge of the prison escort refused to allow him to be hospitalised. After the hearing, the applicant was taken back to the SIZO medical unit. He remained in that unit until 8 October 2009 and was treated for his navel fistula and inflammation of the navel. He received oral medication and antiseptic was applied to his navel area.
53.On 29 September 2009 the applicant was transported to the Emergency Hospital in connection with the constant pain in his abdomen. A duty surgeon and a supervising surgeon diagnosed him with omphalitis with a small amount of purulent discharge. The doctors did not prescribe any emergency operation, but recommended that bandages be applied, with Levomekol and Ceftriakson. On the same date the applicant was returned to the SIZO.
54.Between 24 September and 8 October 2009 the applicant remained in the SIZO medical unit, where he received the necessary treatment. He was discharged with a recommendation that his health be further monitored by the therapist and the surgeon of the SIZO medical unit.
55.On 30 October 2009 the Court granted the applicant’s request under Rule39 of the Rules of the Court and indicated to the Government that he should be placed in a medical facility where he could receive appropriate medical treatment.
56.On 4 November 2009 the SIZO administration proposed to place the applicant in the Emergency Hospital. The applicant refused that proposal, explaining that he did not trust the Emergency Hospital’s doctors. An ambulance team which had been called for the applicant did not transfer him to the Emergency Hospital, but recommended that he see a surgeon.
57.On the same day V., one of the applicant’s lawyers, asked the SIZO administration to transfer the applicant to Public Hospital no. 6 for inpatient treatment in connection with his fistula. Another of the applicant’s lawyers, A., asked the SIZO to place the applicant in a private hospital. The applicant agreed to be placed in that hospital. Eventually, he was not placed in either of those hospitals.
58.On the same day the SIZO staff called an ambulance for the applicant. The ambulance team noted that the applicant did not require urgent hospitalisation, and recommended that he continue with the outpatient treatment in connection with his fistula. The applicant was then placed in the SIZO medical unit.
59.On 9 November and 16 November 2009, in reply to the requests of the applicant’s lawyers concerning his hospitalisation, the SIZO administration advised that it was not competent to decide on the applicant’s placement in an outside medical facility, and suggested that the lawyers should address the requests to the court dealing with the applicant’s case.
60.On 10 November 2009 the applicant was taken to Public Hospital no. 9 for an examination. The doctors recommended that he have an operation on his navel fistula. On the same date the applicant was returned to the SIZO.
61.On 24 November 2009 an ambulance doctor examined the applicant in the hearing room of the Kyiv City Court of Appeal in connection with the constant pain in his abdomen. The applicant was given treatment for his symptoms.
62.On 26 November 2009 an ambulance doctor examined the applicant in the SIZO in connection with the constant pain in his abdomen, and found that he did not require urgent hospitalisation.
63.On 27 November 2009 a surgeon from the Emergency Hospital examined the applicant and recommended that he continue with the outpatient treatment for his navel fistula.
64.On 4 December 2009, in the light of additional information from the respondent Government on the applicant’s state of health and the treatment provided to him in the SIZO, the Court decided to lift the interim measure under Rule 39 of the Rules of Court (see paragraph 55 above).
65.In December 2009 the applicant lodged several requests with the SIZO administration, asking to be transferred to any medical facility in view of the serious deterioration in his state of health.
66.On 25 December 2009 the SIZO administration informed the applicant’s lawyer that the applicant did not require urgent hospitalisation in an outside medical facility and was receiving adequate medical treatment for his fistula in the SIZO.
67.On 18 January 2010 the applicant was placed in the surgery department of Buchanska Prison Hospital, diagnosed with a ligature fistula of the umbilical area.
68.On 20 January 2010 the applicant underwent an operation to remove the navel fistula. On 26 February 2010 he was discharged and sent back to the SIZO.
69.The Government did not provide information or supporting documents as to the treatment provided to the applicant after his discharge from the hospital. They submitted that the medical documentation for the period of time from 26 February 2010 onwards had been lost.
C.Material conditions of the applicant’s detention in the SIZO
70.According to the applicant, the cells in which he was kept in the SIZO lacked natural light, and the electric light was dim and constantly on. The inmates slept on beds without mattresses or bed linen.
71.He added that the food was unsatisfactory in terms of quality and quantity, and the prisoners were given tea and bread in the morning, porridge in the afternoon and boiled water in the evening.
D.Provision of food and water to the applicant on hearing days
72.According to the applicant, he was not provided with food and water on hearing days, since Ukrainian legislation did not make provision for this. It was not possible to have meals or drinks at the courts dealing with his case.
75.The relevant Council of Europe material and other material establishing standards for the conditions of detention, together with reports concerning the conditions of detention in Ukraine, can be found in Davydov and Others v. Ukraine (nos.17674/02 and 39081/02, §§ 101-108, 1 July 2010) and Gorbatenko v.Ukraine (no. 25209/06, §§ 97-100, 28 November 2013).

9.The first applicant was born in 1942 and at the time of the events he lived in Baku.
10.He was a linguist and worked at the Linguistic Institute of the Academy of Sciences of the Republic of Azerbaijan. He was of Talysh ethnicity and carried out research on the Talysh language. He also worked as editor-in-chief of the Tolishi Sado, a bilingual Azerbaijani-Talysh newspaper, and regularly published articles therein.
A.The first applicant’s arrest, alleged ill-treatment and administrative conviction
1.The first applicant’s version of events
11.At around 4 p.m. on 2 February 2007 the first applicant was arrested by agents of the MNS in Javid Park in Baku. He was taken to the premises of the MNS where he was questioned for twenty-three hours about his alleged collaboration with the Iranian intelligence service.
12.He was deprived of water and food and was kept awake. He was also subjected to physical violence. In particular, the fingers of his right hand were several times squashed with a door and he got injuries on his left shoulder. His ill-treatment was stopped owing to his high blood pressure.
13.At around 4 p.m. on 3 February 2007 the MNS’s agents took the first applicant by car to the area near the Elmler Akademiyasi metro station in Baku and released him there. The applicant was not provided with any document concerning his arrest and detention.
14.Immediately after his release while the first applicant crossed the road, a police officer approached and arrested him because of his alleged failure to comply with the police officer’s request to identify himself. He was taken to Yasamal District Police Station no. 28, where an administrative-offence record was drawn up by police officers. The first applicant refused to sign the record.
15.On the same day the first applicant was taken to the Yasamal District Court and appeared before a judge. The judge found him guilty under Article 310 § 1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences and sentenced him to fifteen days’ administrative detention.
16.On 5 February 2007 the first applicant’s lawyer appealed against that decision. He claimed that the first applicant’s administrative conviction had been totally unjustified and that the first-instance court had not examined any evidence proving his guilt. His lawyer further noted that the first applicant had been ill-treated on the premises of the MNS, where he had been unlawfully detained from 4 p.m. on 2 February 2007 to 4 p.m. on 3February 2007. In that connection, the lawyer submitted that there were bruises on his hand and asked the court to order his forensic examination. The relevant part of the complaint reads as follows:
“It appeared at the court hearing [before the first-instance court] that N. Mammadov [the first applicant] had also been subjected to physical violence. In fact, the existence of bruises on his left hand was clearly seen.”
17.On 9 February 2007 the Court of Appeal dismissed the appeal and upheld the first-instance court’s decision. The appellate court’s decision made no mention of the lawyer’s particular requests and complaints. The hearing was held in the absence of the first applicant.
18.Following his administrative conviction on 3 February 2007 by the Yasamal District Court, he was returned to the premises of the MNS where he was kept until 17 February 2007. He was again ill-treated by MNSagents during that period. In particular, although he suffered from hypertension, prostatitis and hyperthyroidism, he was not provided with the relevant medical care and medication. He was questioned in general at night and no record was drawn up in respect of those interviews. He was given false information about his family according to which his two sons had also been arrested and detained in the next cells and that his wife had been hospitalised and was suffering from a serious disease. He was not provided with clean clothing during this period. His family was not informed of his place of detention.
19.It appears from the documents in the case file that an investigator at the MNS, N.Z., compiled on 9 February 2007 a record on the first applicant’s questioning as a witness on the premises of the MNS. The investigator questioned him about his travels to and relations with Iran.
2.The Government’s version of events
20.The Government submitted that they had been unable to obtain the files of the case concerning the first applicant’s administrative detention as they had been destroyed owing to the expiration of their term of storage. For this reason, the Government were not able to clarify the conditions of the first applicant’s detention and treatment to which he had been subjected during this period.
B.Remedies used in respect of the first applicant’s alleged ill‑treatment and unlawful detention on the premises of the MNS
21.As the first applicant’s family had no information about his place of detention following his administrative conviction, his lawyer sent numerous letters and telegrams to the MNS, the Prosecutor General’s Office, the Ministry of Internal Affairs and the Court of Appeal asking for information about the first applicant’s place of detention. The lawyer also indicated in his submissions that there were bruises on the first applicant’s hand, and that the first applicant had to follow a special diet and be provided with the relevant medication because of his state of health.
22.In reply to the above-mentioned requests, by a letter of 9 February 2007 the MNS informed the lawyer that the first applicant had not been arrested or detained on their premises. By a letter of 16 February 2007 the Ministry of Internal Affairs also informed the lawyer that the first applicant had not been taken to or detained in the detention facilities of the Ministry of Internal Affairs.
23.On 15 February 2007 the second applicant lodged a request with the Prosecutor General asking for the first applicant’s forensic examination in the presence of his lawyer. In that connection, she noted that at the hearing of 3 February 2007 before the Yasamal District Court the first applicant’s family members had noticed injuries to the index finger of his right hand. She further noted that she had not been informed of his place of detention and that the first applicant could not live without his medication because of his state of health.
24.By a letter dated 20 February 2007 the Prosecutor General’s Office informed the second applicant that her request concerning the allegedly unlawful actions taken against her husband had been transferred to the Baku City Prosecutor’s Office and that she would be informed of the outcome.
25.It appears from the case file that on 7 April 2007 the investigator in charge of the case ordered the first applicant’s forensic examination. According to forensic report no. 32/TM, during his examination by the expert on 12 April 2007, the first applicant complained of having been ill‑treated on the premises of the MNS on 2 February 2007. In particular, he stated that the index finger of his right hand had been squashed with a chair and that he had been struck on his left rib cage. The expert concluded that there was not at that time any objective sign of injury on the first applicant’s body. The first applicant was not provided with a copy of the report. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the domestic proceedings, the Government failed to provide the Court with a copy of the above-mentioned forensic report.
26.On 8 October 2007 the first applicant lodged an action with the Sabail District Court, asking the court to find violations of his rights protected under Articles 3, 5 and 14 of the Convention. He alleged, inter alia, that he had been ill-treated by agents of the MNS between 2 and 17February 2007, that his arrest and detention on the premises of the MNS from 2 to 3 February 2007 had been unlawful, and that he had been discriminated against on the grounds of his ethnicity. The part of the complaint concerning the first applicant’s ill-treatment reads as follows:
“It appeared from the submissions that he [the first applicant] made to his representative in the presence of the investigator on 17 February 2007 that, although he had not officially asked for medical aid, he suffered from hypertension, prostatitis and poor eyesight. During the period when he had been administratively detained on the premises of the MNS, he had been subjected to unrecorded interviews with 200/220 mm Hg blood pressure, he had not been provided with the relevant medication, and on several occasions, he had not been allowed to go to the toilet with the intention of breaking his will.
... N. Mammadov had been threatened on several occasions and had been given false information according to which his two sons had also been arrested and detained in the next cells and his wife had been hospitalised on account of a serious heart disease ...
Although the application and request of his wife and representative concerning the violence against N. Mammadov had been addressed to the Prosecutor General’s Office, those complaints had been sent first to the Yasamal District Prosecutor’s Office and the Baku City Prosecutor’s Office, and then again to the Prosecutor General’s Office. The latter sent the complaints made on 9 March for a legal assessment two months later to the Investigation Department of the MNS. They were dealt with with delay on purpose so that the visible trace of injuries to the index finger of his right hand would disappear and recover; and the forensic examination had been ordered only in April 2007.”
27.On 18 October 2007 the Sabail District Court, which examined the action under the procedure established by Articles 449-51 of the Code of Criminal Procedure concerning appeals against the prosecuting authorities’ actions and decisions, dismissed it without addressing any of the first applicant’s particular complaints.
28.On 24 October 2007 the first applicant appealed against that decision, reiterating his previous complaints.
29.On 16 November 2007 the Baku Court of Appeal upheld the decision of 18 October 2007.
C.Institution of criminal proceedings against the first applicant and his remand in custody
30.On 17 February 2007 the first applicant was charged with the criminal offence of high treason under Article 274 of the Criminal Code.
31.On the same day the Sabail District Court, relying on the official charges brought against the first applicant and the prosecutor’s request for the preventive measure of remand in custody to be applied, ordered the first applicant’s detention for a period of three months. The judge substantiated the necessity of this measure by the seriousness of the first applicant’s alleged criminal acts, and the possibility of his absconding and obstructing the investigation.
32.On an unspecified date the first applicant appealed against the Sabail District Court’s decision of 17 February 2007. He claimed, in particular, that there had been no justification for the application of the preventive measure of remand in custody. He also complained that the court had failed to take into account his personal situation, such as his age and his having a permanent place of residence, when it had ordered his detention pending trial.
33.On 1 March 2007 the Court of Appeal dismissed the appeal, holding that the detention order was justified.
34.On 12 May 2007 the Sabail District Court extended the first applicant’s pre-trial detention until 3 August 2007. The court substantiated the need for the extension by the seriousness of the charges and by the necessity of additional time to carry out further investigative steps.
35.On an unspecified date the first applicant appealed against that decision, claiming that he had not committed any crime and that there was no reason for his continued detention.
36.On 31 May 2007 the Court of Appeal upheld the first-instance court’s decision.
37.On 28 July 2007 the Sabail District Court extended the first applicant’s pre-trial detention until 3 December 2007. The court substantiated the necessity of this extension on the grounds that a number of investigative steps needed to be carried out and thus more time was needed to complete the investigation.
38.On 3 August 2007 the Baku Court of Appeal upheld the first-instance court’s decision.
39.On 15 November 2007 the first applicant’s case was sent to the Assize Court for trial.
40.On 7 December 2007 the Assize Court held a preliminary hearing. The first applicant complained at the hearing that he had been ill-treated and had been unlawfully detained on the premises of the MNS and asked the court to return the case to the investigators for a new examination. On the same day the Assize Court dismissed his applications. The court further decided that the preventive measure of remand in custody in respect of the first applicant should remain “unchanged”, as there were no grounds for his release.
41.In the course of the proceedings before the Assize Court, the first applicant reiterated his previous complaints relating to the alleged violation of his rights protected under Articles 3 and 5 of the Convention. In this regard, he claimed that he had been ill-treated by agents of the MNS between 2 and 17 February 2007 and that he had been unlawfully arrested and detained by them.
42.It appears from the case file that on 5 March 2008 a judge of the Assize Court ordered the applicant’s forensic medical examination, asking the expert to clarify the conclusions of forensic report no. 32/TM (see paragraph 25 above). Following the first applicant’s examination on 3 April 2008, the expert concluded in his report, no. 54/TM, that there was no objective sign of injury on the first applicant’s body. The expert also concluded that the first applicant’s pain in his left shoulder had not been noted in the conclusions of forensic report no. 32/TM as it had not constituted an objective sign of injury. It further appears from report no.54/TM that the first applicant complained of pains in his left shoulder and these pains were having an effect on the fourth finger of his left hand. However, there was no sign of injury to his finger or left shoulder.
43.On 5 March 2008, following a request from the first applicant’s lawyer, a judge at the Assize Court asked the MNS to inform the court, inter alia, whether the first applicant had been on the premises of the MNS on 2,3 and 9 February 2007, whether he had been questioned on the premises of the MNS on 9 February 2007, and whether he had been subjected to a medical examination and what his diagnosis had been.
44.In reply to the judge’s letter of 5 March 2008, by a letter dated 16April 2008 the MNS informed the judge that the first applicant, who was at that time detained in the MNS pre-trial detention facility, had been diagnosed with hypertension and was being provided with the relevant treatment. However, the MNS’s letter was silent as to the judge’s requests for information concerning the first applicant’s presence on the premises of the MNS on 2,3and 9 February 2007.
45.On 24 June 2008 the Assize Court convicted the first applicant of high treason and sentenced him to ten years’ imprisonment and confiscation of his property. The Assize Court also held, relying on the conclusions of forensic report no. 54/TM, that there had been no objective sign of injury to the first applicant’s body.
46.On 26 December 2008 the Baku Court of Appeal upheld the Assize Court’s judgment of 24 June 2008.
47.On 27 May 2009 the Supreme Court upheld the Baku Court of Appeal’s judgment of 26 December 2008.
D.The first applicant’s conditions of detention and death in prison
48.According to the first applicant, he suffered from various medical conditions, including hypertension, prostatitis and hyperthyroidism and poor eyesight before his arrest. He regularly received medical treatment in connection with the above-mentioned conditions.
49.It appears from the documents in the case file that the first applicant was detained from 17 February 2007 to 25 June 2008 in the MNS pre-trial detention facility, from 25 June 2008 to 14 January 2009 in pre‑trial detention facility no. 1, from 14 January to 28 July 2009 in prison no. 15, and from 28 July 2009 until his death on 17 August 2009 in the medical facility of the Prison Service (“the medical facility”).
50.It appears from the extracts of the first applicant’s detention-facility medical record (tibbi kitabça) no. 353, as well as from the documents in the case file, that in 2007 and 2008 the first applicant was examined on numerous occasions by doctors. During this period the first applicant’s state of health was stable and he mainly complained of high blood pressure and headaches. According to medical record no. 353, which covered the first applicant’s detention from 17 February 2007, the first applicant was subjected to initial examination (ilk baxış) upon his arrival at the detention facility. The initial examination did not contain references to any injury on his body. The date of the initial examination was not indicated in the medical record, but there was a stamp dated 20 February 2007 on that page of the medical record indicating the result of the first applicant’s blood test.
51.It appears from two letters dated 1 and 12 September 2007 sent from the first applicant’s lawyer to the head of the MNS pre-trial detention facility that the lawyer asked for information about the first applicant’s medical treatment. The lawyer also expressed his gratitude for the conditions created for the first applicant’s medical treatment in detention.
52.It also appears from a request from the first applicant dated 30 June 2008 that he asked the head of pre-trial detention facility no. 1 to allow his lawyer to provide him with the medication.
53.As regards the period of his detention from 14 January to 28 July 2009 in prison no. 15, on 14 January 2009, upon his transfer to that facility, the head of that prison decided to place the first applicant in a punishment cell for a period of fifteen days. It appears from the case file that following the intervention of the Azerbaijani Committee against Torture, a local non-governmental organisation, on 21January 2009 the first applicant was transferred to a normal cell.
54.On 26 January and 19 February 2009 the first applicant’s lawyer wrote to the head of prison no. 15, complaining about the first applicant’s conditions of detention. The lawyer noted that the first applicant had been placed in a punishment cell for a period of fifteen days without any reason and asked for a copy of the decision in this regard. The lawyer further submitted that although the first applicant suffered from various medical conditions, he had not been provided with the adequate medical assistance.
55.On 23 February 2009 the first applicant’s lawyer lodged an action with the Nizami District Court, complaining of the first applicant’s conditions of detention and the violation of his rights protected under Articles 3 and 13 of the Convention. In particular, he pointed out that the first applicant had been unlawfully placed in a punishment cell and had not been provided with the adequate medical assistance.
56.On 6 March 2009 the Nizami District Court partially allowed the action, holding that the first applicant’s placement in a punishment cell had been unlawful. The court also found that the first applicant had not been subjected to a medical examination upon his arrival at the prison and ordered the latter to carry out a medical examination of the first applicant and to provide him with adequate medical care. It further appears from the judgment that the head of the medical department of prison no. 15 stated at the court hearing that he had been on leave when the first applicant had been placed in a punishment cell and that he had requested to be transferred to a normal cell immediately after his return to work. He further stated that the first applicant suffered from hypertension and that he had informed the first applicant of the necessity of his transfer to a specialised medical establishment, but the first applicant had rejected that suggestion.
57.On 29 March 2009 the first applicant appealed against that judgment, noting that the first-instance court had failed to acknowledge the violation of his rights protected under Articles 3 and 13 of the Convention. In particular, he noted that he had been detained from 14 to 21 January 2009 in a punishment cell which had been windy, wet and not heated. He also pointed out that the cell had not received natural light and that he had not been provided with the relevant clothing. During this period, he had been obliged to remain standing from 5 a.m. to 9 p.m. every day as there had been no chair in the cell. In his appeal the first applicant confirmed that the head of the medical department of prison no. 15 had proposed his transfer to a specialised medical establishment. In that connection, he submitted that he had refused that proposal because of his financial situation as he had not considered that he would have been provided with the adequate medical assistance free of charge.
58.On 16 April 2009 the Baku Court of Appeal dismissed the appeal. The appellate court’s decision was not amenable to appeal.
59.It appears from the documents in the case file that in the meantime, as evidenced by a document dated 30 March 2009 and signed by the first applicant, the latter refused to be transferred to a specialised medical establishment. He substantiated his refusal by the poor quality of medical treatment in that particular medical establishment.
60.It appears from the documents in the case file that on 7 July 2009 the first applicant again refused to be transferred to a specialised medical establishment. In that connection, he submitted that he had not had any financial means and that he had not thought that he would have been provided with the adequate medical assistance there.
61.It further appears from the extracts of the first applicant’s medical records that he refused on several occasions to be examined by the doctors. Various medical records were compiled by the doctors in this connection.
62.On 28 July 2009 the first applicant was transferred upon his consent to the medical facility with the diagnosis of osteochondrosis of the cervical vertebrae (boyun fəqərələrinin osteoxondrozu) and right shoulder plexus (sağ tərəfli çiyin pleksiti).
63.It appears from a letter dated 14 August 2009 and signed by the head of the medical facility, sent in reply to an information request from the first applicant’s lawyer, that upon his arrival at the medical facility the first applicant mainly complained of neck pains, general weakness and dyspnea. On various dates indicated in the letter the first applicant was examined by a number of specialists, including a neurosurgeon, an endocrinologist, a urologist and an ophthalmologist, who confirmed the diagnosis of osteochondrosis of the cervical vertebrae and right shoulder plexus. The doctors also confirmed that the first applicant suffered from various other medical conditions such as hypertension, prostatitis, acute cholecystitis, bronchitis, hyperthyroidism and cataracts.
64.On 17 August 2009 the first applicant died. According to the death certificate, the death resulted from an ischemic cerebral infarction (baş beyinin işemik infarktı).
E.Criminal investigation concerning the first applicant’s death
65.Following the death of the first applicant, the Nizami District Prosecutor’s Office launched a criminal inquiry into the circumstances of his death.
66.On 18 August 2009 the deputy prosecutor of the Nizami District Prosecutor’s Office ordered a post-mortem examination of the body, which was carried out on the same day, for the purposes of determining the cause of death. Report no. 105 dated 29 August 2009 showed that death had resulted from an acute ischemic cerebral infarction (baş beyinin kəskin işemik infarktı).
67.On 24 August 2009 the second applicant lodged a request with the Prosecutor General, claiming that the first applicant had died in detention because he had not been provided with the adequate medical treatment after January 2009. In that connection, she submitted that the first applicant’s state of health had worsened following his placement in a punishment cell between 14 and 21 January 2009 in prison no. 15 and that his medical treatment following that had not been adequate.
68.By a letter dated 27 August 2009, the Baku City Prosecutor’s Office returned the documents of the criminal inquiry to the Nizami District Prosecutor’s Office, finding that the inquiry into the first applicant’s death had not been conducted thoroughly. In particular, the Baku City Prosecutor’s Office held that the Nizami District Prosecutor’s Office had failed to determine the medical conditions from which the first applicant had suffered and whether he had been provided with adequate medical assistance. It further found that the first applicant’s cellmates and the doctors examining him in prison had not been questioned by the prosecuting authorities.
69.On 31 August 2009 the deputy prosecutor of the Nizami District Prosecutor’s Office ordered a forensic examination by a panel of experts. The prosecutor asked the experts to establish whether the first applicant had been provided with adequate medical assistance, whether his medical conditions had been correctly diagnosed and whether his death had resulted from a lack of adequate medical treatment in detention.
70.Report no. 177/KES dated 1 September 2009, which examined only the period of the first applicant’s treatment following his transfer to the medical facility on 28 July 2009, showed that the first applicant’s medical conditions had been correctly diagnosed and treated in the medical facility. The three experts furthermore found that, although the first applicant had been suffering from numerous conditions (such as osteochondrosis, hypertension, prostatitis, cataracts), the latter could not have developed during a short period of time and could only have appeared following long pathological processes in his body. The report further found that the death had resulted from a cerebral infarction as a result of thrombosis inside cerebral blood vessels and was not related to his medical treatment.
71.On 28 September 2009 the deputy prosecutor of the Nizami District Prosecutor’s Office refused to institute criminal proceedings in connection with the first applicant’s death because of the lack of evidence of a crime in his death. He relied in this connection on the findings of the above-mentioned two forensic expert reports, concluding that the first applicant’s medical treatment had been adequate and that there had been no causal link between his medical treatment and death. The decision also referred to the statements from various doctors and the first applicant’s cellmates according to which the medical treatment had been adequate and that the first applicant had not made any complaint in this connection during his treatment. In particular, the head of the medical department of prison no. 15 stated that although the first applicant’s transfer to the medical facility had been proposed on several occasions, he had refused that proposal.
72.On 21 October 2009 the second and third applicants lodged a complaint against the prosecutor’s decision of 28 September 2009 with the Nizami District Court, asking the court to overrule it. They claimed that the first applicant had not been provided with adequate medical assistance in detention and that his unlawful placement in a punishment cell on 14January 2009 had resulted in the development of numerous diseases. In that connection, they complained that the first applicant had been transferred to the medical facility only on 28 July 2009, despite the fact that on 6 March 2009 the Nizami District Court ordered prison no. 15 to provide the first applicant with adequate medical care. They further submitted that they had not been provided with a copy of the first applicant’s medical records and the forensic reports relating to his death and that they had been provided with a copy of the prosecutor’s decision of 28September 2009 only on 19 October 2009.
73.On 2 November 2009 the Nizami District Court dismissed the complaint. The court found that the first applicant had been provided with adequate medical care. It further noted that although his transfer to the medical facility had been proposed on several occasions before 28 July 2009, he had rejected these proposals.
74.On 5 November 2009 the second and third applicants appealed against that decision, reiterating their previous complaints.
75.On 17 November 2009 the Baku Court of Appeal dismissed the appeal. As to the argument that the Nizami District Court’s decision of 6March 2009 had not been executed, the appellate court found that the first applicant had refused to be transferred to the medical facility. That decision was not amenable to appeal.