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KHATAYEV v. RUSSIA - 56994/09 [2011] ECHR 1593 (11 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1593.html
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[2011] ECHR 1593
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FIRST
SECTION
CASE OF KHATAYEV v. RUSSIA
(Application
no. 56994/09)
JUDGMENT
STRASBOURG
11
October 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Khatayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Peer
Lorenzen,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre
Sicilianos,
Erik
Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 56994/09)
against the Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Russian national, Mr Shamil Elsiyevich Khatayev (“the
applicant”), on 27 October 2009.
2. The
applicant was represented by Ms V. Shaysipova, a lawyer practising in
the town of Tambov. The Russian Government
(“the Government”) were represented by Mr G. Matyushkin,
the Representative of the Russian Federation at the European Court of
Human Rights.
3. The
applicant alleged, in particular, that he had not received adequate
medical assistance in correctional facilities after his conviction in
2007, and that his complaints of having been
subjected to inhuman and degrading treatment by warders in a prison
hospital on two occasions had not been effectively investigated.
On
2 March 2010 the President of the
First Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
Further to the applicant’s request, the Court granted priority
to the application (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1976 and lived until his
arrest in the village of Serebryaniki in the Tver Region.
A. General information on the applicant’s arrest
and conviction
6. On
2 August 2001 the Vyshne-Volotsk Town Court of the Tver Region found
the applicant guilty of aggravated rape and sexual assault on a minor
and sentenced him to six years’ imprisonment. He was released
on 28 February 2007, having served the sentence.
7. On
7 April 2007 the applicant was arrested on suspicion of aggravated
robbery.
On
1 October 2007 the Tverskoy District Court of Moscow found the
applicant guilty of having attempted to commit an aggravated robbery
and sentenced him to two years and six months’ imprisonment,
which he was sent to serve in correctional colony no. 5 in the town
of Morshansk in the Tambov Region. In December 2008 he was
transferred to special medical correctional facility no. 7 (“the
medical colony”) in the village of Polevoy in the Tambov
Region.
B. The applicant’s medical history
1. Prior to the applicant’s arrest in 2007
Copies of medical records presented to the Court
indicate that in 2000 the applicant was diagnosed with pulmonary
tuberculosis accompanied by bacterial excretion and tuberculous
papillitis of the kidneys and right ureter. From 16 February to 19
May 2000 the applicant underwent treatment in the Vyshne-Volotskiy
Tuberculosis Hospital.
10. Subsequently,
the applicant was regularly monitored in the Tver Regional Clinical
Tuberculosis Hospital (“the TB hospital”). In particular,
on 30 January 2001, following a complex examination in the TB
hospital, the applicant was diagnosed with infiltrative tuberculosis
in the disintegration stage. The examining doctors concluded that the
tuberculoma was growing and that the applicant should undergo surgery
to remove it. The applicant refused surgery and was admitted to the
TB hospital for treatment with antimicrobial medicines. He was
discharged from the hospital on 10 April 2001 following numerous
unauthorised leaves and violations of hospital regulations. An
extract of his medical record shows that by the date of his discharge
the applicant’s state of health had not improved.
11. On
his admission to a temporary detention facility in Tver after his
arrest in 2001, the applicant was diagnosed with “focal
pulmonary tuberculosis in the infiltration stage”. On a number
of occasions in 2001, 2002 and 2003 the applicant was admitted to
prison hospital no. 3 or the Tver Regional TB hospital for
anti-tuberculosis treatment. On 24 August 2004 a medical commission,
comprising a number of specialists from prison hospital no. 3,
examined the applicant and issued the final diagnosis: “clinical
recovery from the focal tuberculosis of the upper lobe of the left
lung accompanied by small residual post-tuberculosis changes in the
form of pulmonary fibrosis, and clinical recovery from renal
tuberculosis”.
12. In
September 2004 the applicant was transferred to correctional colony
no. 4 in the Tver Region to serve the remaining part of his sentence.
He was placed under regular supervision by a tuberculosis specialist,
underwent complex in-patient medical examinations and received
seasonal antibacterial prophylactic treatment twice a year.
2. After the arrest in April 2007
(a) Detention
between April 2007 and October 2009
On
admission to the detention facility in Moscow following his arrest on
7 April 2007, the applicant underwent a complex prophylactic
examination, inter alia by a tuberculosis specialist. The
following diagnosis was noted in the applicant’s medical
record: “clinical recovery from pulmonary tuberculosis, dense
nidi, pulmonary fibrosis”. He was placed on a special
diet, received multivitamins and underwent a two-month course of
anti-tuberculosis drug treatment in the tuberculosis department of
the prison hospital.
When
he arrived at correctional colony no. 5 in the town of Morshansk in
the Tambov Region on 30 January 2008, the applicant did not make any
complaints concerning his health. A medical examination performed on
his admission to the colony confirmed the previous diagnosis of
clinically treated pulmonary tuberculosis with residual changes. The
doctor’s recommendation was that the applicant should be placed
on an enriched diet, should undergo X-ray testing twice a year and
should receive prophylactic treatment with two anti-bacterial drugs
each spring and autumn.
According
to a letter sent by the head of the Tambov Regional Department of the
Service for the Execution of Sentences to the applicant’s
lawyer on 23 December 2008, the applicant applied for medical
assistance once during the entire period of his detention in
correctional colony no. 5. In particular, the applicant’s
medical history shows that on 8 February 2008 he complained to a
prison doctor about a phlegm cough. Following an examination,
including a chest X-ray, he was diagnosed with “clinical
recovery from pulmonary
tuberculosis [and] bronchitis.” After undergoing conservative
treatment, the applicant was considered to have been cured of
bronchitis.
16. The
Government stressed that the recommendations given on the applicant’s
admission to correctional colony no. 5 had been followed to the
letter. The applicant disputed that assertion, arguing that he had
not received the requisite medical attention. According to the
applicant’s medical history submitted to the Court in 2008,
during the first year of his detention in colony no. 5 the applicant
was given a chest X-ray once and received a full course of
anti-bacterial treatment in the autumn of 2008. At the same time a
prison medical assistant or a prison doctor attended the applicant
once a month, took his blood pressure, measured his body temperature
and recorded no health complaints on the applicant’s part.
During
a medical examination on admission to the medical colony in December
2008, the applicant made no complaints about his health. His state of
health was considered to be satisfactory. At the same time, he was
registered for regular medical check-ups because of his medical
history. The examining doctor confirmed the diagnosis of the
applicant’s clinical recovery from pulmonary tuberculosis, but
noted the unclear status of the applicant’s renal illness and
authorised blood and urine tests. As the tests could not be performed
in the medical colony for lack of a laboratory technician, the
applicant’s transfer to the Tambov Regional Prison Hospital was
authorised.
From 13 to 23 December 2008 the applicant underwent a
complex medical examination, including blood and urine tests and
X-ray exams of the urinary tract and chest, in the tuberculosis
department of the Tambov Regional Prison Hospital. Tests for the
presence of mycobacterium tuberculosis (“MBT”) in the
urine were also performed, producing negative results. The applicant
was treated for acute cystitis and also received prophylactic
anti-tuberculosis treatment. His medical record drawn up in the
hospital, in so far as relevant, read as follows:
“Diagnosis:
clinical recovery from focal tuberculosis of the upper lobes of both
lungs resulting in circumscribed post-tuberculosis pneumosclerosis...
Acute cystitis. The diagnosis in respect of the tuberculosis was made
on 17 December 2008 by the Central Medical Commission of the Tambov
Regional Tuberculosis Hospital.
Fitness for work:
able to work, excluding types of work involving exposure to cold,
dust and gas pollution.
[The applicant] is
recommended treatment twice a year (spring and autumn) for two or
three months with two anti-tuberculosis drugs to prevent a relapse of
tuberculosis and X-ray examinations twice a year in compliance with
[internal regulations].
[The applicant]
should be detained in correctional facilities in general conditions.”
The
final diagnosis was made on 17 December 2008 by the Central Medical
Commission of the Tambov Regional Anti-Tuberculosis Clinic.
19. According
to the applicant, the recommendations were never complied with. On a
number of occasions he requested the facility administration to admit
him for medical treatment, but to no avail.
20. The applicant’s
medical history, however, shows that following his transfer back to
the medical colony he was regularly examined (at least once a month)
by the colony medical personnel or independent medical specialists,
including a tuberculosis specialist from the Kirsanov Town
Tuberculosis Hospital. In particular, examinations by independent
tuberculosis specialists were carried out on 8 March, 3 and 24 May
and 9 August 2009. Relying on the applicant’s medical
record, the Government argued that the personnel of the medical
colony had fully complied with the recommendations given by the
independent tuberculosis specialists. At the same time, those
recommendations had met with resistance from the applicant. For
instance, following the examination on 8 March 2009 the tuberculosis
specialist noted the applicant’s satisfactory state of health
and recommended maintaining a three-month course of prophylactic
antibacterial treatment. The applicant refused to take the
anti-bacterial medicines, however, expressing a general
disinclination to submit to medical procedures. A report recording
the applicant’s refusal to undergo treatment was drawn up and
signed by four colony staff members. It was also noted that the
applicant would not confirm his refusal in writing.
21. In response to
the applicant’s refusal to submit to the treatment, the colony
administration intensified the frequency of his medical examinations
by a prison doctor or medical assistant to a rate of at least once a
fortnight. The applicant submitted that on 1 May 2009, when the
colony administration had attempted to reason with him, he had gone
on a hunger strike, being dissatisfied with the conditions of his
detention and appalled by the fact that he had to use the same
crockery as “inmates of a lower social status”. The
attending prison doctor noted the applicant’s complaint about
dizziness, fatigue and stomach ache, recommended his transfer to the
colony hospital and asked to be informed of the result of the
applicant’s urine test for the presence of the MBT in the
urine. A chest X-ray performed the following day revealed no changes.
An independent tuberculosis specialist who saw the applicant on 3 May
2009 confirmed the need to perform additional testing in the
tuberculosis hospital, suspecting reactivation of the tuberculosis
process in the urinary tract.
22. The
applicant was transferred to the therapeutic department of the prison
hospital. While he started receiving prophylactic anti-bacterial
treatment, the necessary tests and X-rays were carried out, revealing
no presence of MBT in the applicant’s urine and no reactivation
of the tuberculosis process in his lungs. The report drawn up by the
attending doctor read, in so far as relevant, as follows:
“Taking into
account the results of additional examinations (microbiological and
X ray [testing]) there is no sufficient evidence of any
reactivation of the tuberculosis process in the kidney and urinary
tracts.
Recommended:
dynamic supervision, chest X-ray testing once every six months,
repeated urine testing for the presence of MBT after six months ...
Diagnosis: clinical
recovery from pulmonary tuberculosis resulting in fibrosis and firm
nidi in the
upper lobes of the lungs... No evidence of recurrence of the
illness...”
23. After the
applicant’s release from the hospital, the colony medical
personnel examined him at least once a month. The applicant’s
medical record shows that he had no health complaints apart from
those raised on the following occasions. On 4 July 2009 a doctor
called to the applicant made the following two entries in his medical
record. The first entry read as follows:
“4 July 2009.
A medical examination of [the applicant] was performed after special
measures (handcuffs) and physical force were used [against him].
No injuries were
discovered during the medical examination ...”
The
second entry read as follows:
“...[the
applicant] made two slash wounds to his right and left forearms at
11.05 a.m. During the examination he did not make any complaints.
Objectively: his
general condition is satisfactory, lungs and heart are without any
peculiarities; blood pressure is 125/80 mm. [There is] a cut
measuring 4 cm in length and 0.2 cm in width on his right
forearm; insignificant bleeding. [There is] a cut measuring 5 cm
in length and 0.2 cm in width on his left forearm; insignificant
bleeding. [The applicant] refused to explain why he had cut himself.
Diagnosis:
self-injuring. Slash wounds on both forearms.
[Treatment
provided]...”
24. In the early
morning of 17 August 2009 the doctor on duty was called to the
punishment unit, where the applicant was detained at the time. The
doctor made the following entry in the applicant’s medical
record:
“Complaints
about headache, dizziness.
Special measures
were applied to [the applicant].
Objectively:
temperature 36.4 degrees. [The applicant] exited [the cell] without
assistance. [He] is threatening the colony administration with ‘his
relatives’.
Oedematous face. A
bruise measuring 2.5 cm on the forehead.
There are no fresh
injuries on the body ...
Diagnosis:
Quincke’s oedema? Self-injury? ...”
25. The doctor
treated the applicant’s bruise and gave him an analgesic, an
antiallergenic and a sedative. At each subsequent daily examination
the attending doctor recorded the applicant’s facial oedema and
the absence of any other health complaints. Suspecting that the
applicant was suffering from an allergic reaction of some kind, the
doctors continued treating him with antiallergenics.
26. On 18 August 2009
a medical assistant reported to the head of the medical colony that a
medical examination of the applicant performed that same day had
revealed that, in addition to the facial oedema, the applicant had an
abrasion 1.5 cm in length on his left shin. The necessary
medical assistance was provided. On 21 August 2009 the applicant
complained to the doctor of severe back pain. After examining him,
the doctor concluded that he was suffering from allergic oedema of
the face and was feigning a kidney injury. Two days later the
applicant complained of severe headache and dizziness. The attending
doctor found no signs of health problems apart from the facial
oedema.
27. The acting deputy
head of the medical colony drew up the final report, which read as
follows:
“On 17 August
2009 [the applicant] was examined by the doctor on duty, who noted
that the inmate had a facial oedema and a bruise 2.5 centimetres in
length on the left side of his forehead. [He] did not record any
other objective pathological data, or any fresh injuries.
Over the following
three days of proactive supervision, as [the applicant] did not apply
for medical assistance himself, the facial oedema (of the paraorbital
region), which revealed no changes symptomatic of a traumatic
pathology was still recorded. No other objective pathological changes
to the body or viscera were noted (such as changes in the colour of
the urine [or] phlegm, the stool, blood pressure, body temperature,
heart beat, breathing, etc.).
[After the
applicant] had taken special medicines, including antiallergenics,
the dynamic of the oedema was arrested, which shows that the oedema
was of the allergic aetiology typically associated with insect
bites.”
28. Following
an examination by a number of prison medical specialists on 27 August
2009, the applicant’s transfer to a hospital was recommended
“for subsequent supervision and examination to exclude his
feigning illness”. The applicant was immediately transferred to
the therapeutic department of the Tambov Regional Prison Hospital.
29. On 31 August 2009
the applicant underwent blood and urine testing and chest and skull
X-rays, which revealed no signs of injuries. He was also examined by
a surgeon, a neurologist, a tuberculosis specialist, a psychiatrist
and a general practitioner. Having heard the applicant’s
complains of chest pain, headache, pain in the lumbar region and
stomach, dizziness and nausea, which he alleged were caused by a
beating in the medical colony on 17 August 2009, and having noted
healing abrasions on the applicant’s head, the medical
specialists concluded that the applicant was simulating the kidney
injury and the general deterioration of his health. The tuberculosis
specialist also found that there were no signs of reactivation of the
tuberculosis process and recommended keeping up the seasonal
prophylactic treatment.
30. A course of
prophylactic antibacterial treatment was initiated on 1 September
2009. On 9 September 2009 a medical assistant made an entry in the
applicant’s medical record noting his refusal to continue
treatment. The applicant submitted that he had been admitted to the
therapeutic department of the hospital by mistake instead of to a
specialised tuberculosis medical facility. He argued that any
treatment he received there would accordingly be ineffective.
(b) Detention
after October 2009
31. On 30 September
2009 the applicant was transferred to temporary detention facility
no. 4 to take part in criminal proceedings instituted against him. A
prison doctor examined him on admission to the facility, recorded his
complaints of chest pain and his slurred speech, noted his generally
satisfactory state of health, authorised continuation of his enriched
food ration and re-initiated his seasonal prophylactic
anti-tuberculosis treatment. Medical records submitted by the
Government show that the applicant was placed on a two-month
chemotherapy course, with each intake of antibacterial drug observed
and noted in the applicant’s medical record by the medical
personnel.
32. Another
medical examination, performed on 2 October 2009 in response to the
applicant’s complaints of a constant ache in the lumbar region,
chest pains and a burning sensation during urination, led to his
being diagnosed with lower back pain. The applicant was prescribed
treatment on the condition that it should not interfere with the
prophylactic anti tuberculosis procedures.
33. On 14 October
2009 the applicant, suffering from a slight fever, shortness of
breath, a runny nose and fatigue, was diagnosed with acute
respiratory disease, for which he started receiving treatment.
Following subsequent medical examinations the chemotherapy was
adjusted to respond to the changes in the state of the applicant’s
health, his health complaints and his refusals to take certain
medicines. On 21 October 2009 a schedule for the applicant’s
clinical examinations and X-ray testing was developed. However, it
was not until his transfer to the Tambov Regional Prison Hospital on
9 November 2009, given no positive changes in his condition, that the
applicant was subjected to an X-ray exam. The delay was due to the
fact that temporary detention facility no. 4 did not have the
necessary equipment to perform the exam and had no means of
transporting the applicant to the tuberculosis hospital for testing.
34. During
the applicant’s stay in the prison hospital, he underwent a
full clinical examination, including blood and urine tests, chest,
abdominal and kidney X-rays and ultrasound scans, sputum smear and
urine culture testing, monitoring of renal functions, screening by a
tuberculosis urologist, which revealed no new signs of tuberculosis.
At the same time, as the medical records show, the applicant refused
to submit to additional MBT tests. His attitude towards the
examinations and treatment was recorded by the attending doctor in
his medical record in the following manner:
“During his
in-patient treatment, [the applicant] failed to cooperate,
occasionally refusing to take injections and submit to clinical
testing.”
The
applicant was released from the hospital on 26 November 2009 with a
recommendation to admit him to the tuberculosis department of the
Tambov Regional Prison Hospital for additional testing after the new
round of criminal proceedings against him came to an end.
35. In December 2009
and January and February 2010 the applicant received treatment for
migraines, intercostal neuralgia, a slight cold and dental problems,
as well as undergoing prophylactic treatment against acute
respiratory illness. In March 2010 he started the spring course of
his seasonal prophylactic anti-tuberculosis treatment. An examination
of the applicant in April 2010 showed that his health was
satisfactory and there were no signs of any deterioration of his
health.
3. Complaints about
the lack of medical assistance
On
10 March 2009 the applicant’s lawyer, Ms Shaysipova, arrived at
the medical colony and, after producing identification papers and a
writ issued by the Bar Association to represent the applicant’s
interests, asked the colony administration to organise a meeting with
her client. The request was refused because the lawyer had not
submitted a copy of the power of attorney showing that the applicant
had retained her as his counsel.
The
lawyer lodged a complaint with the Tambov Regional Prosecutor,
describing the events of 10 March 2009 and asking for permission to
see the applicant.
On
20 April 2009 the Tambov Regional Prosecutor supervising correctional
institutions sent a letter to the applicant’s lawyer, which, in
so far as relevant, read as follows:
“It was established that on 10 March 2009 at 7.15
a.m., having arrived at the check point of [the medical colony]
in the Tambov Region and disregarding the orders of an officer on
duty... to wait until the beginning of the working day, you entered
the restricted area adjacent to the [medical colony].
On arriving at the office building, you did not file a
request for a meeting with [the applicant] with the colony
administration.
The facility administration considered that your actions
constituted an administrative offence proscribed by Article 19.3 of
the Russian Code of Administrative Offences; you were accordingly
asked to produce identification documents in order to draw up a
report [of an administrative offence], but you categorically refused
[to comply with the request] and left the premises.
However, the inquiry shows that [the applicant], when
asked why he needed to see a lawyer, refused to give any explanation;
a report on the incident was drawn up on 14 April 2009 and it
was signed by deputy directors of the colony Mr D. and Mr K. and by
the head of the duty unit, Ms A.
...
In these circumstances there is no ground for the
prosecution authorities to apply supervisory measures.”
The
lawyer sent a letter to the Prosecutor General of the Russian
Federation complaining about the applicant’s poor state of
health, the lack of medical assistance in the colony and her
inability to visit her client.
On
19 June 2009 the lawyer received a letter from a deputy prosecutor of
the Tambov Region. The relevant part of the letter read as follows:
“The Regional prosecutor’s office examined
your complaint which was forwarded by the office of the Prosecutor
General of the Russian Federation [and in which you complained] about
beatings and threats of violence against [the applicant], about the
refusal of the [colony] administration to provide him with medical
assistance, about the refusal to organise meetings with the lawyer
and so on.
In the course of the inquiry no acts of violence,
threats of violence against [the applicant] either on the part of the
administration or other convicts... have been objectively proven. In
fact, in his statement to a deputy head of the medical colony on 4
June 2009 ... [the applicant] affirmed that he did not have any
complaints against the administration.
[The applicant] unequivocally refused to give
prosecution officials any explanation pertaining to the facts laid
down in your complaint and a complaint lodged by [the applicant’s
female partner].
During a medical examination of [the applicant]
performed on 10 June 2009 by officers of the medical department of
the prison hospital in the presence of an officer from the Tambov
Regional Prosecutor’s office... no injuries were discovered on
[the applicant’s] body.
During his detention in correctional facilities in the
Tambov Region [the applicant] received and continues to receive
appropriate medical treatment for his illnesses.
Following additional medical tests and an additional
examination by a prison tuberculosis specialist on 12 May 2009, no
convincing evidence showing any reactivation of the tuberculosis
process in the applicant’s lungs and urinary tract was
discovered; therefore, there is no medical data calling for [the
applicant’s] routine admission to the tuberculosis department
of the hospital ...
[The applicant] is detained in a [solitary] cell in [the
medical colony]; his state is satisfactory.”
The
remaining part of the letter repeated the content of the letter sent
to the lawyer on 20 April 2009.
On
23 June 2009 the lawyer arrived at the medical colony. Once again,
however, she was not allowed to see the applicant. She was given a
note allegedly handwritten by the applicant to the head of the colony
in which he stated that he did not need legal assistance. The
applicant, relying on the handwritten power of attorney filled in and
submitted by him to the European Court of Human Rights in compliance
with Rule 36 of the Rules of Court, disputed the authenticity of that
note.
Two
days later the applicant went on a hunger strike in response to the
facility administration’s alleged refusal to provide him with
legal assistance.
C. Ill-treatment in the medical colony. Institution of
criminal proceedings against the applicant. His detention on remand
1. Events of 4 July 2009
According to the applicant, on 4 July 2009 warders at
the medical colony began beating an inmate, K., who had recently been
transferred there. In response to inmate K.’s cries for help,
the applicant and other inmates started banging on their cell doors
demanding that the beating stop. The warders, a deputy director, Mr
D., and a junior inspector, Mr S., forced the applicant out of his
cell and beat him up. The applicant alleged that as a result of the
beating his ribs had been broken and he had had severe chest and head
pains and numerous injuries and bruises to the head and legs. The
applicant further submitted that when he was put back in his cell
following the beating, Mr D. had thrown a razor blade at him, urging
him to commit suicide. In response to this treatment the applicant
had slashed his forearms with the razor blade.
The
Government disputed the applicant’s version of events. Relying
on records of disciplinary offences drawn up in correctional colony
no. 5, they noted that during his detention in the colony between
January and December 2008 the applicant had violated the regulations
fifty-four times and had been ranked a “persistent offender”.
On three occasions he had been placed in a punishment ward, where he
had spent thirty-seven days in all. On 28 November 2008 a decision
was taken to place the applicant in a solitary confinement cell for
ten months. When transferred to the medical colony, the applicant had
continued his unruly behaviour, and was reprimanded almost on a daily
basis. The Government submitted that a conflict between the
administration of the colony and the applicant had come to a head on
4 July 2009, when the applicant had attempted to cut junior inspector
S. with a piece of glass, part of which was wrapped in a white cloth
for use as a handle. The warder had grabbed the applicant by the
hands and handcuffed him behind his back. The applicant had then been
taken to a punishment ward, where he broke a glass in the window and
cut his forearms with a piece of broken glass. The Government
stressed that a prison doctor had examined the applicant twice on 4
July 2009: after the use of physical force and handcuffs on him and
after the act of self-mutilation. No injuries, save for two small
cuts on the forearms, were reported on the applicant’s body.
On
4 July 2009 duty officer Mr F. reported to the head of the medical
colony that physical force in the form of arm-twisting and
handcuffing had been used against the applicant in response to his
attack on junior inspector S. Similar reports were made by two other
warders who had witnessed the incident.
On
the same day junior inspector S. addressed a complaint to the
Kirsanovskiy District Prosecutor. The complaint read as follows:
“On 4 July 2009, at 9.23 a.m., when I was on duty,
[the applicant]..., who is serving a disciplinary penalty in the
punishment ward of the [medical colony], attacked me, Mr S., with a
piece of glass in the corridor of the punishment ward near cell no.
17 when a partial search of his person was being performed”.
The
complaint was registered with the Kirsanovskiy District Prosecutor’s
office on 9 July 2009. Ten days later an investigator from the
prosecutor’s office instituted criminal proceedings against the
applicant for having attacked junior inspector S. and threatened him
with violence on 4 July 2009.
In the meantime an investigator from the operations
unit of the medical colony carried out an internal inquiry into the
incident of 4 July 2009. The inquiry was closed following a decision
of 20 July 2009 that the use of force and handcuffs had been lawful,
reasonable and proportionate to the applicant’s violent
behaviour. The investigator also addressed the applicant’s
self-inflicted injuries to the forearms, noting that the applicant
had refused to explain his conduct. He concluded that the applicant
had intended to “blackmail” the colony administration to
avoid detention in a solitary punishment cell and to secure more
comfortable conditions of detention. A similar conclusion was reached
on 24 July 2009 by the Tambov Regional Prosecutor supervising
detention facilities.
2. Events of 17 August 2009
Without
offering any description of the events of 17 August 2009, the
applicant submitted that he had again been given a severe beating by
the warders. He further stated that since the beating he had suffered
from stammering and distorted facial expressions when speaking.
The
Government submitted that in the morning of 17 August 2009 the
applicant had violently resisted the warders’ attempts to
transfer him to a punishment cell, where he was to stay for fifteen
days because of another disciplinary offence. The applicant had tried
to punch the director of the punishment ward, Mr St., in the face.
Warders had restrained the applicant by holding his hands behind his
back and handcuffing him. Inside the punishment cell the applicant
had immediately started hitting his head against the bars of a bed,
causing abrasions. The Government stressed that, in an attempt to
“make matters worse”, the applicant had placed a wasp on
the bridge of his nose. The wasp had stung him, causing an allergic
reaction in the form of facial swelling. The applicant had received
treatment for both the abrasions and facial swelling. On the
following day the applicant had cut his left shin with the sharpened
handle of a tooth brush. The medical assistant who had treated his
cut had not observed any other injuries on his body and had not
reported any health complaints.
On
20 August 2009 warder F. wrote an explanatory note to the head of the
medical colony which, in so far as relevant, read as follows:
“...on 17 August 2009, at 6.00 p.m., I went on
duty supervising the inmates in [the punishment ward]. After the
lights-out call at 9.30 p.m., [the applicant], who was detained in a
solitary confinement cell, started talking to inmates in neighbouring
cells... He referred in particular to the fact that the warders had
used physical force and handcuffs against him in the morning when
taking him to the punishment cell. He had intentionally ‘pulled
a stunt’ [“mastyrka” was the term he used in
inmates’ slang] and injured himself and [he urged] other
inmates to certify that handcuffs had not been used and that [the
applicant] had been beaten up instead. He said it was necessary for
their ‘common benefit’ and that he would file a complaint
about the unlawful actions of the colony administration...
Before the wake-up call, at approximately 4.30 or 4.40
a.m. during a scheduled round of the cells, I looked through a
peephole in the door of cell no. 05 and saw [the applicant] sitting
on the lower bunk with his back to the door and his legs tucked up
beneath him, doing something. I called out, startling him. He turned
and, after a while, replied that he was waiting for the wake-up call,
ready to brush his teeth, and he showed me a tooth brush. I warned
him that he was violating the regulations and he laughed at me. I
thought no more of the incident”.
An
internal inquiry into the events of 17 August 2009 resulted in the
following decision:
“On 17 August 2009, at 8.00 a.m., by decision of
the head [of the medical colony], [the applicant], who had breached
prison regulations, was found guilty of a disciplinary offence and
was to be placed in the punishment ward for fifteen days. While being
escorted to the punishment cell, in a corridor near the entrance to
cell no. 05 [the applicant] started pushing away the warders ...
[and] grabbing their uniforms. He was warned to stop misbehaving.
[The applicant] disregarded the warning and continued pushing the
warders. At the same time he proffered threats of violence against
the officers and their families. Suddenly, he turned towards the head
of the [punishment ward], Mr St., and tried to punch him in the face.
Given [the applicant’s] unruly conduct, handcuffs were used to
restrain him, but without harming him ....
After a medical examination [the applicant] was placed
in a punishment cell as a disciplinary measure. [He] did not make any
complaints or requests.
The inquiry did not reveal that any other physical force
had been applied to [the applicant].”
Another
inquiry looking into the applicant’s self-mutilation ended with
decisions of 20 and 21 August 2009 which, in so far as relevant, read
as follows:
Decision of 20 August 2009
“On 17 August 2009... [the applicant] applied for
medical assistance, complaining of abrasions on the head and swelling
round both eyes.
... After [the applicant] had been placed in [the
punishment cell], at 8.45 a.m., while checking cells, the officer on
duty heard a noise in the cell and, looking through a peephole,
discovered that [the applicant] was attempting to injure himself,
hitting his head against the bars of the bunk, and uttering
obscenities against the administration of [the facility]. He ignored
orders to calm down. Warders and a medical assistant, called to the
scene, took [the applicant] from the cell. Once outside the cell,
[the applicant] was calm. On examining him a prison doctor noted two
abrasions in the region of the forehead and swelling round both eyes.
[The applicant] did not make any complaints or requests.
The inquiry established that [in the evening] of 17
August 2009, after the lights-out call, [the applicant] started
talking to inmates in other cells, telling them that the warders had
used physical force against him and that he had taken advantage of
the opportunity and injured himself, banging his head and getting a
wasp to sting him on the bridge of his nose for extra effect. He was
intending to apply to human rights organisations and to lodge a
frivolous complaint about the actions of the prison staff. To help
him put his plan into action [the applicant] asked the other inmates
to corroborate the reality of the beating when representatives of the
human rights organisations arrived ... and to organise their visit by
calling his wife on the phone and giving her the following message:
‘Do the same as the last time’. She would know what to
do. He threatened anyone who refused to comply with his instructions
with violence. [The applicant] wanted to discredit the administration
... and blackmail them into closing the criminal proceedings against
him ... The facts were confirmed by witnesses; [the applicant]
angrily refused to give any explanation.”
Decision of 21 August 2009
“[The head of the detention facility] talked to
[the applicant to prevent further self mutilation, but the
applicant] did not abandon his plan [to discredit the administration]
and on 18 August 2009 he again injured himself. In particular, he
inflicted a small cut measuring 1.5 centimetres in length on his left
shin, using the rough end of his toothbrush, which he had heated on a
fire before he was placed in the punishment cell; [the applicant]
constantly picked open his cut. That fact is confirmed by eyewitness
statements and reports by medical staff.
The conclusions of the internal
inquiry that the use of handcuffs had been lawful and well-founded
and that the applicant’s injuries were the result of his own
actions were reproduced by the Tambov Regional Prosecution in a
decision of 28 August 2009.
On
1 September 2009 the applicant’s lawyer, Ms Shaysipova, found
out that criminal proceedings had been instituted against the
applicant in July 2009. On the following day she informed the
investigator in charge of the applicant’s case of her intention
to represent the applicant and submitted a power of attorney. On the
same day the investigator sent a letter to the head of the medical
colony to notify him of the applicant’s counsel’s name.
The investigator misspelt the lawyer’s last name as Ms
Shaysinova.
The
lawyer arrived at the colony for the first consultation with the
applicant, but was not allowed to see him on 2 September 2009. The
same thing happened the next day. She immediately lodged a complaint
with the Kirsanovskiy District Prosecutor’s office, asking to
have her client medically examined. Two days later a prosecution
investigator dismissed the request, finding that it was groundless
and unnecessary for the criminal investigation. The lawyer was
notified of the investigator’s decision on 15 September
2009.
On
4 September 2009 the lawyer lodged a complaint with the Prosecutor
General of the Russian Federation and the Tambov Regional Prosecutor,
alleging numerous violations of the applicant’s defence rights.
She also complained about the investigating authorities’
refusals to interview the applicant and to medically examine him in
response to his ill treatment complaints. On the same day the
lawyer applied to various human rights organisations in the Tambov
Region asking for their assistance.
On
8 September 2009 the lawyer and representatives of two regional human
rights NGOs arrived at the colony and asked to see the applicant and
a number of other inmates who had complained of numerous instances of
ill-treatment in the facility. While the human rights activists were
allowed to enter the premises of the medical colony, the
administration did not consent to the lawyer’s visit. A
handwritten note by the head of the medical colony in response to the
lawyer’s written request for a meeting with the applicant
stated that the visit “was not allowed on the investigator’s
orders because no investigative actions were being performed [with
the applicant] in connection with the criminal proceedings” at
the time when the request for a meeting was lodged.
Following their visit to the prison hospital, the
representatives of the human rights organisations issued the
following joint statement:
“The basis for the visit was complaints from the
relatives of inmates detained in the punishment ward and a phone call
from a staff member of ‘Amnesty International’.
On 8 September 2009, during a visit to [the medical
colony], following discussions with warders and inmates detained in
[the punishment ward], it was established:
According to the inmates detained in [the punishment
ward], they are subjected to severe beatings by the warders in that
ward. The most recent beatings occurred when a group of newcomers was
admitted to the punishment ward. Inmate K. was subjected to the
cruellest beating. Unable to bear the cries and moans, detainees in
the punishment ward responded by banging on their cell doors. Those
responsible for the uproar were subjected to psychological pressure
and threats and unjustified beatings. Several warders – up to
12 officers from the punishment ward – entered the cells and
beat up inmates, using rubber truncheons and punching and kicking
them. During the visit on 8 September 2009, injuries could be
observed on the inmates’ heads, faces, bodies and legs.
A doctor present during the beatings had insisted that
it was necessary to provide medical assistance, apply bandages, stop
the bleeding; but the warders in the punishment ward had replied that
the detainees did not need medical assistance and continued the
beatings. The doctor’s insistence was to no avail. The officers
in the punishment ward ignored the persistent lawful requests of the
detainees; in order to break their will they seized the inmates’
tableware then returned it to them, telling them it had been
‘defiled’ by ‘untouchable’ inmates. Having no
other means to protect themselves, the detainees went on a hunger
strike; [the facility administration] kept the hunger strike a secret
for seventeen days. Inmates are subjected to psychological pressure;
they are threatened with rape; inmates who have been raped or who are
likely to commit rape are placed in the cells to show that the
threats are real. Inmates slash their veins ([the applicant], Mr Yu.)
and drive nails into their bodies (Mr Ye.) to escape rape. All this
is being concealed. Complaints of ill treatment are not being
investigated; detainees are given the run-around in response to their
complaints to the prosecution authorities. Criminal proceedings were
instituted against one of them ([the applicant]) for allegedly
attacking a warder in the punishment ward.
The lawyer, Ms Shaysipova, who had power of attorney to
represent [the applicant], was not allowed to see her client.”
The
human rights activists called on the prosecution authorities to
perform forensic medical examinations of a number of inmates,
including the applicant, to provide the applicant with the necessary
medical assistance and perform appropriate medical tests in
connection with his ailments, and to open a criminal investigation
into the actions of the colony officials.
On
9 September 2009 the applicant’s lawyer lodged complaints with
various prosecution authorities and human rights organisations
alleging numerous violations of her client’s rights in the
colony.
Five
days later the applicant was served with a bill of indictment.
According to the prosecution, on 4 July 2009, during the morning
search in the cells, the applicant refused to comply with the lawful
orders of the officers on duty and started calling for collective
disobedience. The applicant was taken out to the corridor, where he
grabbed inspector S.’s right hand and tore his uniform. He
subsequently produced a piece of glass hidden in his sleeve and tried
to hit inspector S. in the chest with it. Inspector S. knocked the
piece of glass from the applicant’s hand. Two other warders
intervened, handcuffed the applicant and took him to a punishment
cell.
On
24 September 2009 the Tambov Regional Prosecutor supervising
detention facilities set aside the decisions dismissing the
applicant’s complaints of ill-treatment. The prosecutor noted
that the initial inquiry had failed to secure expert evidence which
might have made it possible to determine whether the injuries on the
applicant’s head and his facial swelling had been caused by a
beating.
On 5 October 2009 an expert examined the applicant and
found that the medical evidence, including X-ray results, indicated
that the injury on the applicant’s head could have been caused
by self-mutilation on 17 August 2009. The expert discovered no
other injuries on the applicant’s body, save for pigment spots
on his shin, which he interpreted as possible signs of a now cured
skin disease.
On
6 October 2009 a deputy Tambov Regional Prosecutor sent a letter to
the head of a human rights group, a copy of which was delivered to
the applicant’s lawyer. The letter, in so far as relevant, read
as follows:
“During his detention and while serving his
sentence in correctional institutions in the Tambov Region [the
applicant] has been viewed negatively; on a number of occasions [he]
has violated the internal regulations of his detention facility; for
those [violations] he has received 223 oral and written reprimands in
the form of warnings, and been placed in a punishment cell and
transferred to a punishment ward.
On 28 November 2008 the head of the [medical colony], Mr
M., authorised the applicant’s placement in the punishment ward
for ten months.
[The applicant] continues to break the rules in the
punishment ward..., for which he is lawfully punished with
disciplinary sanctions.
Furthermore, the inquiry showed that [the applicant] has
committed unlawful attacks on the staff members of [the colony]. As a
result, on 19 July 2009 the Kirsanovskiy District [Prosecutor’s
office] opened criminal case no. 01714 under Article 318 § 1 of
the Russian Criminal Code in connection with the [applicant’s]
unlawful attack on a junior inspector in the punishment ward, Mr S.
The investigation in that criminal case has not yet been
completed.
...
At the same time the inquiry showed that the
administration of [the medical colony] actually violated certain
provisions of Article 48 of the Russian Constitution ...
On 15 September 2009 the Regional Prosecutor’s
office lodged an order with the Tambov Regional Department of the
Federal Service for the Execution of Sentences in connection with a
violation by the administration on 8 September 2009 of [the
applicant’s] right [under Russian law] to receive legal
assistance from his lawyer, Ms Shaysipova ....
On 2 October 2009 the prosecutor’s order was
examined at a meeting attended by the head of the Regional Department
of the Federal Service for the Execution of Sentences and regional
prosecution authorities, and [the order] was accepted.
On 30 September 2009 the Tambov Regional Prosecutor ...
sent an official warning to the head of [the medical colony] stating
that such violations would not be tolerated in the future.”
On 19 October 2009 an investigator from the
Kirsanovskiy Inter district Investigation Office refused to
institute criminal proceedings against the personnel of the colony,
finding no evidence of ill-treatment on either occasion. The
investigator’s decision was based on statements by the
applicant, the warders and a medical assistant who had examined the
applicant after the alleged beating on 4 July 2009, medical reports
from the Tambov Regional Prison Hospital following his examination on
31 August 2009 and the expert opinion of 5 October 2009. The
investigator also interviewed two inmates, Mr Yu. and Mr K., who
confirmed the applicant’s version of the events of 4 July
2009, stating that they too had been beaten by the warders. However,
their statements were not considered trustworthy as the inmates had
refused to sign the interview report and certify their awareness of
their criminal liability in the event of false testimony.
3. Bill of indictment and authorisation of the
applicant’s detention on remand
In
the meantime, on 14 September 2009 the applicant was questioned in
the presence of Ms Shaysipova. The applicant denied having attacked
inspector S. and maintained his version of events, alleging that he
had been severely beaten up by several warders, including inspector
S., and that his requests for medical examinations and assistance
after the beating had been disregarded. He also complained that he
had been beaten on 17 August 2009.
On
30 September 2009 the Kirsanovskiy District Court of the Tambov
Region authorised the applicant’s detention on remand, finding
that it was warranted by the applicant’s numerous convictions,
the gravity of the charges brought against him in respect of the
events of 4 July 2009, the fact that he had no permanent place of
residence, and information provided by a deputy head of the medical
colony that the applicant intended to abscond to avoid investigation
and trial and to pervert the course of justice if released. The
applicant’s lawyer appealed, arguing that the detention order
was not based on any relevant facts. On 27 October 2009 the Tambov
Regional Court upheld the detention order of 30 September 2009,
endorsing the District Court’s reasoning.
On
3 November 2009 the applicant’s lawyer asked the prosecution
authorities to perform another forensic medical examination of the
applicant, to question inmates who had been detained together with
the applicant in the punishment ward and to hold confrontation
interviews between the applicant and two detainees who had already
been questioned by the investigating authorities in respect of the
events of 4 July 2009. Two days later the investigator partly
accepted the request, authorising a forensic medical examination of
the applicant.
A complex medical examination of the applicant
performed between 6 and 9 November 2009 entirely confirmed the
expert’s findings of 5 October 2009.
Following
the expert examination the applicant lodged a complaint with the
Tambov Regional Prosecutor, asking for criminal proceedings to be
instituted against the warders who had participated in the beating on
4 July and 17 August 2009. He further complained about the
absence of medical assistance and the refusal of the medical
personnel to record his injuries after the beating.
On
16 November 2009 the pre-trial investigation was closed and the
applicant was committed to stand trial before the Kirsanovskiy
District Court.
In the course of the trial against the applicant the
District Court heard, among other witnesses, the representatives of
the human rights NGOs who had visited the applicant after the alleged
beatings in the summer of 2009. The representatives testified to
having met the applicant and a number of other inmates, including Mr
Yu., and having heard their complaints of severe beatings in the
colony. According to them, there had been no eye-witnesses to the
applicant’s beating among the inmates, but the detainees had
provided a very coherent and similar version of the events of 4 July
2009. The applicant had told them that on 4 July 2009 approximately
twelve warders had burst into his cell and beaten him with rubber
truncheons and kicked him repeatedly in the head and other parts of
his body. He had fallen to the floor covered in blood and had then
been dragged to the punishment cell. There, he had tried to commit
suicide by slashing his wrists with a piece of a tile he had taken
from a wall. The human rights activists stressed that at their
meeting on 8 September 2009 the applicant’s face had been
swollen, he had twitched his head from time to time and he had had an
old scratch on the face, an abrasion on his shin and some kind of
bump on the chest which he said was a broken rib. The applicant had
also stammered, complained of pain in the ribs and kidneys and had
desperately pleaded for help. The representatives also noted,
however, that the applicant had had no “pronounced”
bruises on him. One of the representatives testified to having seen
photos of a wasp and a wasps’ nest on a cell window that were
presented to him by the colony administration during the visit.
The District Court also heard several inmates who had
been detained with the applicant during the summer of 2009. One
inmate, Mr Yu., testified to having witnessed the applicant’s
beating by the warders on 4 July 2009. He stated that three
warders had attacked the applicant for no apparent reason and had
started beating him with rubber truncheons and kicking him
repeatedly. Mr Yu. was unable to recall the exact course of events as
he had been subjected to ill-treatment by the warders at the same
time. Mr Yu. also stressed that he had refused to sign the record of
his questioning by the investigator during the proceedings instituted
in respect of the applicant’s ill-treatment complaints and did
not want to complain about the beatings himself as that was his usual
behaviour vis-à-vis the authorities. Another inmate
claimed that he had heard the applicant being beaten up in the
corridor on 4 July 2009. That witness said he had heard the
voices of at least three warders, the sound of blows and the
applicant screaming with pain.
On
4 March 2010 the Kirsanovskiy District Court, relying heavily on the
testimony of the staff members of the medical colony, found the
applicant guilty of a violent attack on an officer on duty in a
detention facility and sentenced him to three years’
imprisonment. The court dismissed the applicant’s argument that
he had been severely beaten by warders on 4 July 2009. It noted that
the applicant’s complaints had already been examined by the
investigating authorities and there was no reason to doubt the
results of their inquiry laid down, inter alia, in the
decision of 19 October 2009.
However, the District Court found it necessary to
issue a separate interim order, noting “the poor standard of
the pre-trial investigation into the events of 4 July 2009”.
Citing the investigator’s inexperience with difficult criminal
cases, the lack of supervision of the investigator despite his
inexperience, the delays in the opening an inquiry into the events,
the length of the investigation, the investigator’s failure to
examine the scene of the events, the improper filing of documents and
evidence in the case file, the failure to interrogate certain
witnesses and so on, the District Court urged the Kirsanovskiy
Inter-District Prosecutor to take the necessary steps to avoid the
same defects in future investigations.
On
29 April 2010 the Tambov Regional Court amended the judgment of 4
March 2010. Finding that the applicant’s criminal conduct had
not been characterised by serious violence or caused any physical
pain to the warder, the court reduced the sentence to two years’
imprisonment.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND REPORTS
The relevant provisions of the domestic and
international law on health care of detainees and authorities’
response to alleged instances of ill treatment in detention
facilities are set out in the following judgments: Pakhomov v.
Russia, no. 44917/08, 30 September 2011 and
Yevgeniy Alekseyenko v. Russia, no. 41833/04,
27 January 2011.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE QUALITY OF MEDICAL ASSISTANCE IN DETENTION
The
applicant complained that the authorities had
not taken steps to safeguard his health and well-being, having failed
to provide him with adequate medical assistance after his arrest in
2007. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Submissions by the parties
Relying
on a copy of the applicant’s medical record, the Government
submitted that the applicant had been under effective medical
supervision throughout his detention. That supervision involved
regular medical check ups and a prompt and effective response to
any health grievances the applicant had, as well as effective medical
treatment to the point of cure whenever an illness revealed itself.
The treatment the applicant had received complied with the
requirements laid down by Russian law and international medical
standards. The Government specifically pointed out that the complex
medical supervision received by the applicant had included
consultations and examination by independent medical specialists from
a civil hospital. The recommendations by those specialists had been
closely followed through by the medical staff of the detention
facilities.
The
Government concluded by arguing that the prosecution authorities as
well as prison administration officials had thoroughly studied the
applicant’s complaints of alleged lack of medical assistance
and had found them to be unsubstantiated.
The
applicant insisted that the medical assistance he had received in the
detention facilities had been ineffective from the start as it had
been dispensed in the therapeutic departments of prison hospitals and
not in a specialised tuberculosis clinic. He further submitted that
his medical history unequivocally showed that he had not regularly
received seasonal prophylactic anti-tuberculosis treatment, that
doctors had not always complied with the schedule of X-ray
examinations and that medical examinations to which he had been
subjected had had a “formal” character. His state of
health had continued to deteriorate but that fact had not brought any
adequate response from the authorities. Even when in autumn 2009, in
response to his own, his lawyer’s and his relative’s
complaints, the authorities had admitted him to the Tambov Regional
Prison Hospital, he had not received any treatment. He also pointed
out that while some medical attention had been devoted to his
pulmonary tuberculosis, his suffering from renal tuberculosis had
gone entirely unnoticed. The applicant stressed that, even assuming
that the Government’s submission of the lack of health
complaints on his part was true, the prison authorities should have
taken a more active position given the seriousness of his illness and
the social and legal priority that his right to health took over any
other considerations of the domestic authorities.
B. The Court’s assessment
1. Admissibility
(a) General principles
The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim’s behaviour (see, for example, Labita v. Italy
[GC], no. 26772/95, § 119, ECHR 2000-IV). Ill treatment
must attain a minimum level of severity if it is to fall within the
scope of Article 3. The assessment of this minimum is relative; it
depends on all the circumstances of the case, such as the duration of
the treatment, its physical and mental effects and, in some cases,
the sex, age and state of health of the victim (see, among other
authorities, Ireland v. the United Kingdom, 18
January 1978, § 162, Series A no. 25).
Ill-treatment
that attains such a minimum level of severity usually involves actual
bodily injury or intense physical or mental suffering. However, even
in the absence of these, where treatment humiliates or debases an
individual, showing a lack of respect for or diminishing his or her
human dignity, or arouses feelings of fear, anguish or inferiority
capable of breaking an individual’s moral and physical
resistance, it may be characterised as degrading and also fall within
the prohibition of Article 3 (see Pretty v. the United Kingdom,
no. 2346/02, § 52, ECHR 2002-III, with further references).
In
the context of deprivation of liberty the Court has consistently
stressed that, to fall under Article 3, the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering and humiliation connected with the detention (see, mutatis
mutandis, Tyrer v. the United Kingdom, 25 April 1978,
§ 30, Series A no. 26, and Soering v. the United
Kingdom, 7 July 1989, § 100, Series A no. 161).
The State must ensure that a person is detained in
conditions which are compatible with respect for human dignity, that
the manner and method of the execution of the measure do not subject
him to distress or hardship of an intensity exceeding the unavoidable
level of suffering inherent in detention and that, given the
practical demands of imprisonment, his health and well-being are
adequately secured (see Kudła v. Poland [GC],
no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov v.
Russia, no. 26853/04, § 208, 13 July 2006). In
most of the cases concerning the detention of people who are ill, the
Court has examined whether or not the applicant received adequate
medical assistance in prison. The Court reiterates in this respect
that even if Article 3 does not entitle a detainee to be released “on
compassionate grounds”, it has always interpreted the
requirement to secure the health and well-being of detainees, among
other things, as an obligation on the part of the State to provide
detainees with the requisite medical assistance (see Kudła,
cited above, § 94; Kalashnikov v. Russia,
no. 47095/99, §§ 95 and 100, ECHR 2002-VI; and
Khudobin v. Russia, no. 59696/00, § 96, ECHR
2006-XII (extracts)).
The
“adequacy” of medical assistance remains the most
difficult element to determine. The CPT proclaimed the principle of
the equivalence of health care in prison with that in the outside
community (see paragraph 76 above). The Court insists that, in
particular, authorities must ensure that the diagnosis and care are
prompt and accurate (see Hummatov v. Azerbaijan, nos.
9852/03 and 13413/04, § 115, 29 November 2007; Melnik v.
Ukraine, no. 72286/01, §§ 104-106, 28 March 2006;
and, mutatis mutandis, Holomiov v. Moldova,
no. 30649/05, § 121, 7 November 2006), and
that where necessitated by the nature of a medical condition,
supervision is regular and systematic and involves a comprehensive
therapeutic strategy aimed at curing the detainee’s health
problems or preventing their aggravation (see Hummatov, cited
above, §§ 109, 114; Sarban v. Moldova,
no. 3456/05, § 79, 4 October 2005; and Popov,
cited above, § 211). However, the Court has also held that
Article 3 of the Convention cannot be interpreted as securing for
every detained person medical assistance at the same level as “in
the best civilian clinics” (see Mirilashivili v. Russia
(dec.), no. 6293/04, 10 July 2007). In another case the
Court went further, holding that it was “prepared to accept
that in principle the resources of medical facilities within the
penitentiary system are limited compared to those of civil clinics”
(see Grishin v. Russia, no. 30983/02, § 76,
15 November 2007).
On
the whole, the Court reserves sufficient flexibility in defining the
required standard of health care, deciding it on a case-by-case
basis. That standard should be “compatible with the human
dignity” of a detainee, but should also take into account “the
practical demands of imprisonment” (see Aleksanyan v.
Russia, no. 46468/06, § 140, 22 December 2008).
(b) Application of the above principles to
the present case
The
Court observes that, unlike in other cases concerning the quality of
medical assistance administered to Russian detainees, in the present
case it is not called upon to examine the cause of the applicant’s
infection with tuberculosis, from which he suffered from 2000 onwards
(see paragraph 9 above). However, keeping in mind the State’s
responsibility to ensure treatment for prisoners in its charge and
given the fact that a lack of adequate medical assistance for serious
health problems, such as tuberculosis, may amount to a violation of
Article 3 (see Hummatov, cited above, §§ 108 et
seq., and Vasyukov v. Russia, no. 2974/05,
§ 66, 5 April 2011), the Court has to assess the quality
of medical services the applicant was provided with after his arrest
in 2007 and to determine whether he was deprived of adequate medical
assistance as he claims, and if so whether this amounted to inhuman
and degrading treatment contrary to Article 3 of the Convention (see
Sarban cited above, § 78).
Turning
to the circumstances of the present case, the Court observes that the
quality of the medical care provided to the applicant following his
arrest in 2007 appears to have been adequate. In particular, the
evidence put before the Court shows that the Russian authorities used
all existing means (sputum smear bacterioscopy, culture testing and
X-rays) for the correct diagnosis of the applicant’s condition,
thoroughly considered the possibility of a recurrence of the illness,
and took the necessary steps to prevent a new onset of the
tuberculosis by, inter alia, prescribing appropriate
prophylactic treatment and admitting the applicant to medical
institutions for in-depth examinations. This conclusion is not
altered by the applicant’s argument that the tuberculosis
specialists’ recommendations as to the frequency of X ray
testing and prophylactic TB treatment were disregarded by the medical
personnel of the facilities where he was detained at the time. In
this regard, the Court attributes particular weight to the fact that
it is not asked to assess the quality of the medical services
rendered in response to an active form of the disease and aiming at
curing the illness, or at least maintaining it under control, when
any failure on the part of domestic authorities to keep up with a
schedule of necessary medical procedures may have a crucial effect on
a patient’s health (see, for example, Vasyukov, cited
above, §§ 68 76). The Court’s task in the
present case is limited to the examination of the level of medical
care meant to prevent a patient’s relapse, that is a
therapeutic strategy not comprising measures of such an urgent and
vital character. While noting that the domestic authorities did
occasionally fail to comply with the schedule of X-ray examinations
and prophylactic treatment in the applicant’s case, the Court
does not find that that failure was such as to endanger his health
and well-being (see paragraphs 16 and 33 above). Furthermore, the
Court does not exclude that in the absence of any signs of
deterioration of the applicant’s health and in the
circumstances of his close clinical monitoring by the medical
personnel, the authorities’ decision to dispense with another
X-ray test or seasonal prophylactic chemotherapy regimen, that is,
with generally aggressive/invasive medical procedures, was reasonable
(see paragraph 16 above).
At
the same time, the Court observes that when placed on a strict
medication regime required for the prophylactic tuberculosis therapy,
the applicant received the necessary anti-tuberculosis medicines,
which were administered to him in the requisite dosage, at the right
intervals and for the appropriate duration, unless the treatment was
interrupted as a result of the applicant’s refusal to continue
with it. The applicant was subjected to regular and systematic
clinical assessment and bacteriological monitoring, which formed part
of the comprehensive therapeutic strategy aimed at preventing a
relapse. The detention authorities also effectively implemented the
doctors’ recommendations about a special dietary ration
necessary to improve the applicant’s health (contrast
Gorodnichev v. Russia, no. 52058/99, § 91, 24 May
2007).
Furthermore,
the Court attributes particular weight to the fact that the facility
administration not only ensured that the applicant was attended to by
doctors, that his complaints were heard and that he was prescribed
trials of anti-tuberculosis medication, but they also created the
necessary conditions for the prescribed treatment to be actually
followed through (see Hummatov, cited above, § 116). The
Court notes that the intake of medicines by the applicant was
supervised and directly observed by the facility medical personnel as
required by the DOTS strategy. In addition, in a situation where the
authorities met with occasional refusal to cooperate and resistance
to the treatment on the applicant’s part, they offered him
psychological support and attention, providing clear and complete
explanations about medical procedures, the desired outcome of the
treatment and the negative side-effects of interrupting the
treatment, irregular medication or fasting (contrast Gorodnichev,
cited above, § 91; and see Testa v. Croatia, no.
20877/04, § 52, 12 July 2007, and Tarariyeva v. Russia,
no. 4353/03, § 80, ECHR 2006 XV (extracts)) (see paragraphs
20 and 21 above). It also does not escape the Court’s attention
that when unsuccessful in their attempts to persuade the applicant to
continue with the prophylactic treatment, the authorities intensified
the clinical monitoring of his condition, invited independent medical
specialists to examine him and even transferred him to the prison
hospital for additional testing. The authorities’ actions
ensured the applicant’s adherence to the treatment and
compliance with the prescribed regimen.
The
medical record containing the applicant’s diagnosis as
“clinical recovery from focal pulmonary tuberculosis... [and]
clinical recovery from renal tuberculosis” showed no signs of a
relapse during the entire period of the applicant’s detention,
thus confirming the effectiveness of the medical care he received in
the detention facilities. The Court also notes that the authorities
efficiently addressed any other health grievances that the applicant
might have had (see paragraph 35 above). The applicant’s
anti tuberculosis treatment was adjusted accordingly, to take
account of his concomitant health problems as well as his personal
preferences as to medical procedures to follow and medicines to take.
In this respect, the Court would like to stress that patients like
the applicant have a responsibility to communicate and cooperate with
health authorities, to follow treatment and to contribute to
community health. The Court does not lose sight of the fact that the
applicant’s refusals to undergo treatment or medical
examinations were occasionally linked to his requests for those
procedures to be performed in a particular medical establishment (see
paragraph 30 above). In this regard, the Court would like to
reiterate its constant jurisprudence according to which a State has a
sufficient margin of discretion in defining the manner in which it
fulfils its obligation to provide detainees with the requisite
medical assistance, inter alia, by choosing an appropriate
medical facility, taking into account “the practical demands of
imprisonment”, as long as the standard of chosen care is
“compatible with the human dignity” of a detainee (see
Aleksanyan, cited above, § 140, and most recently,
Vasyukov, cited above, § 79). There is no indication
in the file that the authorities’ choice of medical facility
for the applicant was incompatible with the required standard of
care.
To
sum up, the Court considers that the Government provided sufficient
evidence to enable it to conclude that the domestic authorities,
without undue delay, afforded the applicant comprehensive, effective
and transparent medical assistance during the entire period of his
detention after his arrest in 2007. It follows
that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 § 3 (a) and §
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF ALLEGED ILL-TREATMENT ON 4 JULY AND 17 AUGUST 2009
The
applicant, relying on Article 3 of the Convention,
complained that he had been severely beaten by warders on 4 July and
17 August 2009 and that the investigation had not led to the
punishment of those responsible. Article 3 of the Convention has been
cited above.
A. Submissions by the parties
The
Government argued that the applicant’s complaints of severe
ill treatment on 4 July and 17 August 2009 were clearly
ill-founded. In particular, they stressed that despite unlawful and
aggressive behaviour by the applicant, who had repeatedly disregarded
the lawful orders of the colony administration and persistently
resisted attempts by the administration to engage in constructive
dialogue, on the two occasions when the colony personnel had used
force and handcuffs in the last resort, they had remained within the
limits of the lawful and acceptable application of those special
measures. Relying on medical records and the findings by the
investigating authorities, the Government further submitted that
there was no evidence that excessive force had been used. Every
injury which had been discovered on the applicant’s body in the
wake of the various events had been the result of his own attempts to
malign the colony administration.
The
applicant maintained his claims, arguing that he had been subjected
to inhuman treatment on both occasions. Despite the fact that there
had been witnesses to the ill-treatment among the inmates and that
his injuries had been observed by the human rights activists and had
been recorded in his medical history, the authorities had turned a
blind eye on his complaints, dismissing his claims as unreliable and
fully accepting the warders’ version of events. He further
stated that the investigators had delayed his expert medical
examination and only performed it at the request of his counsel and
almost three months after the events, by which time it had been
virtually impossible to establish the facts. The investigators’
indifference towards his complaints had been demonstrated in their
decisions not to institute criminal proceedings against the warders.
B. The Court’s assessment
1. Admissibility
The Court notes that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention and that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
(a) General principles
(i) As to the scope of Article 3
The
Court has consistently stressed that measures depriving a person of
his liberty may often involve an element of the suffering and
humiliation connected with a given form of legitimate treatment or
punishment. In the context of detainees, the Court has emphasised
that persons in custody are in a vulnerable position and that the
authorities are under a duty to protect their physical well-being
(see Tarariyeva, cited above, § 73; Sarban,
cited above, § 77; and Mouisel v. France,
no. 67263/01, § 40). In respect of a person deprived
of his liberty, any recourse to physical force which has not been
made strictly necessary by his own conduct diminishes human dignity
and is in principle an infringement of the right set forth in Article
3 of the Convention (see Sheydayev
v. Russia, no. 65859/01, § 59, 7 December 2006;
Ribitsch v. Austria, 4 December 1995, § 38,
Series A no. 336; and Krastanov v. Bulgaria,
no. 50222/99, § 53, 30 September 2004).
(ii) As to the establishment of the facts
The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing evidence, the Court has
generally applied the standard of proof “beyond reasonable
doubt” (see Ireland v. the United Kingdom, 18 January
1978, § 161, Series A no. 25). However, such proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Where the
events in issue lie wholly, or in large part, within the exclusive
knowledge of the authorities, as in the case of persons within their
control in custody, strong presumptions of fact will arise in respect
of injuries occurring during such detention. Indeed, the burden of
proof may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII).
Where
domestic proceedings have taken place, it is not the Court’s
task to substitute its own assessment of the facts for that of the
domestic courts and, as a general rule, it is for those courts to
assess the evidence before them (see Klaas v. Germany, 22
September 1993, § 29, Series A no. 269). Although the
Court is not bound by the findings of domestic courts, in normal
circumstances it requires cogent elements to lead it to depart from
the findings of fact reached by those courts (see Matko
v. Slovenia, no. 43393/98, § 100, 2 November
2006). Where allegations are made under Article 3 of the Convention,
however, the Court must apply a particularly thorough scrutiny (see,
mutatis mutandis, Ribitsch, cited above, § 32).
(b) Application of the above principles in
the present case
(i) Alleged ill-treatment: establishment
of the facts
The Court observes, and the
parties did not dispute this fact, that on 4 July and 17 August 2009
the warders used physical force against the applicant. The exact
circumstances and the intensity of the force used were, however,
disputed by the parties. The Government alleged that on both
occasions the force had been used lawfully in response to the
applicant’s unruly conduct and had not exceeded what was
reasonable and necessary in the circumstances of the case. As is
apparent from the reports by the warders, their interviews with the
investigator and the findings of the domestic courts, when in the
morning of 4 July 2009 warders attempted to perform a search on the
applicant, the latter attacked one of them, inspector S., grabbed him
by the uniform and attempted to cut him with a piece of glass.
The warders overpowered the applicant by
placing his arms behind his back and, after handcuffing him, took him
to the punishment ward. According to the Government, similar events
had occurred on 17 August 2009, the only difference being that the
applicant had tried to punch the director of the punishment ward
while resisting his transfer there. The applicant disputed that he
had disobeyed the warders’ orders and actively resisted them to
the point of using violence. He submitted that on 4 July 2009 the
warders had repeatedly hit and kicked him in various parts of his
body, breaking his ribs and injuring his head and legs in response to
his attempt to stop the beating of another inmate, Mr K. Without
providing any description of the events of 17 August 2009, the
applicant further submitted that the warders had again subjected him
to a severe beating for no apparent reason.
The Court first notes that the
applicant was examined by a prison doctor on 4 July 2009. According
to the applicant’s medical record, he had no injuries save for
two small slash wounds on his forearms (see paragraph 23 above).
Following another instance of the use of force by the warders on 17
August 2009, the applicant was examined by the prison doctor who
noted his swollen face and a bruise on his forehead (see paragraph 24
above). An examination on the following day led to a small abrasion
on the applicant’s left shin being recorded (see paragraph 26
above). On 31 August 2009, in response to repeated complaints of
severe head and back pain and dizziness, the applicant underwent a
complex medical examination in the Tambov Regional Prison Hospital.
Observation by a number of hospital specialists, as well as clinical
and X-ray testing, did not reveal any injuries, apart for the healing
abrasions on his head. The doctors’ conclusion was that the
applicant was simulating a kidney injury and the general
deterioration of his health (see paragraph 29 above). In this
connection the Court is particularly mindful of the fact that the
applicant did not dispute the credibility or accuracy of the findings
made by the hospital personnel.
The Court also does not lose
sight of additional evidence which attests to the applicant’s
state of health following the alleged beatings. In particular,
representatives of the human rights NGOs who visited the applicant on
8 September 2009 noted his swollen and scratched face, an
abrasion on his shin and a mysterious bump on his chest which they
took for a broken rib. While seeing no “pronounced”
bruises on the applicant, the visitors still concluded that he had
been severely beaten up, given his stammering and head twitching (see
paragraphs 58 and 71 above). The fact that the applicant’s
speech was “slurred” was noted during yet another
examination on the applicant’s admission to a temporary
detention facility on 30 September 2009 (see paragraph 31 above).
Finally, two forensic medical examinations performed in October and
November 2009 only revealed the applicant’s head injury and a
pigment spot on his shin, with the experts linking the head injury to
an act of self-mutilation and the pigmentation to the consequence of
a skin disease.
The Court notes that the
Government put forward an explanation for every injury discovered on
the applicant’s body in the aftermath of the events under
consideration.
In particular, they submitted
that the two small cuts discovered on the applicant’s forearms
on 4 July 2009 were the result of an act of self mutilation when
the applicant cut himself with a piece of a broken glass in the
punishment ward. Although the Court is mindful of the applicant’s
argument that he injured himself in response to the warders’
“provocative” conduct, what is of significance is that he
corroborated the Government’s argument as to the nature of
those injuries. In the absence of any other evidence recording
physical sequela of the alleged violence on the applicant’s
body, the Court cannot accept his allegation of ill-treatment by
warders on 4 July 2009.
This conclusion is not altered
by the fact that one of the applicant’s inmates, Mr Yu.,
testified before the Kirsanovskiy District Court to having witnessed
the beating of the applicant on 4 July 2009. In this regard, the
Court cannot overlook the inconsistencies that abounded in the
various accounts of the events which the applicant and Mr Yu. gave in
their complaints to human rights activists and domestic authorities
and which the applicant laid down in his submissions to the Court.
For instance, during the meeting with the representatives of human
rights NGOs the applicant affirmed that there had been no
eye-witnesses to his beating (see paragraph 71 above). It
further appears that Mr Yu., who was also heard by the visitors, did
not claim to be an eye-witness to the incident involving the
applicant. However, when questioned by the investigator, both the
applicant and Mr Yu. amended their version of events, asserting that
the warders had been beating Mr Yu. in the corridor at the same time
as the applicant and that Mr Yu. had, therefore, witnessed the
applicant’s beating (see paragraph 64 above). Nevertheless, in
his testimony during the applicant’s trial Mr Yu. partly
retracted his statement to the investigator, noting that his having
been beaten at the same time as the applicant precluded him from
giving a detailed description of the course of the events of 4 July
2009 (see paragraph 72 above). The Court also finds it peculiar that
the applicant’s description of the events of 4 July 2009
changed with time, depending on who was the recipient of his
complaint. In particular, while complaining to the human rights
activists that he had been beaten by up to twelve warders and that he
had then tried to take his life by slashing his wrists with a piece
of broken tile, in his application to the Court the applicant claimed
that two warders had participated in the beating and that he had cut
his forearms with a razor blade allegedly thrown at him by the deputy
head of the medical colony.
In these circumstances, keeping
in mind the inconsistencies in the applicant’s versions of
events recounted at the various stages of the proceedings and having
regard to the material in the case file, the Court is unable to find
that the applicant was subjected to the alleged ill-treatment on
4 July 2009.
As to the events of 17 August
2009, the Court observes that the applicant did not provide any
description of the beating on that occasion, noting that the injuries
recorded in his medical history or by witnesses spoke for themselves.
The Government, on the other hand, once again gave an account of the
applicant’s violent resistance to the warders’ orders and
accounted for every injury on the applicant’s body. According
to them, the applicant’s facial swelling was caused by a wasp
bite when he placed the insect on his nose, the abrasions on his head
were the result of his banging his head against the metal bars of the
bunk and the cut on his shin was again an act of self-mutilation,
with the sharpened handle of a toothbrush. The Government further
submitted that the listed injuries, as well as the applicant’s
simulation of the head twitching and stammering, had merely been
attempts to malign the colony administration.
Here, the Court observes that
the evidence before it does not allow it to entirely exclude either
the Government’s or the applicant’s version of events.
The injuries on the applicant’s face, head and leg are
consistent both with a physical confrontation between the applicant
and the warders and with acts of self-mutilation as described by the
Government. While noting that the story of the wasp bite may seem odd
and reiterating that the applicant’s face was still swollen
more than two weeks after the alleged bite (see paragraph 58 above),
the Court cannot ignore the applicant’s medical records and
findings by the prison doctors reporting that the applicant’s
facial oedema was a manifestation of an allergic reaction to the wasp
bite. The doctors’ conclusion was based on the fact that the
applicant’s medical condition responded to the antiallergenics
with which he was treated and that the development of the illness was
successfully arrested (see paragraphs 25-27 above). The Court
also takes note of the fact that the human rights activists saw
photos of the wasps’ nest on the window of the cell (see
paragraph 71 above). Furthermore, the conclusion that the applicant’s
head abrasions and cut on the leg were also of non-traumatic origin
is supported by the findings of the medical experts in their opinions
of October and November 2009. Although disappointed with the timing
of the expert examinations, the impact of which on the quality of the
investigation into the applicant’s complaints of ill-treatment
will be discussed below, the Court cannot disregard the experts’
opinion (see paragraphs 62 and 68 above).
While noting the inconclusive
analysis of the applicant’s injuries, the Court further
observes that there was no other evidence which could have shed light
on the events of 17 August 2009. Under these circumstances, the Court
cannot consider it established beyond reasonable doubt that on 17
August 2009 the warders used excessive force when, in the course of
their duties, they were confronted with the alleged disorderly
behaviour of the applicant.
To sum up, the materials in the
case file do not provide an evidential basis sufficient to enable the
Court to find “beyond reasonable doubt” that either on
4 July 2009 or on 17 August 2009 the applicant was subjected to
treatment contrary to Article 3 or that the authorities had recourse
to physical force which had not been rendered strictly necessary by
the applicant’s own behaviour.
Accordingly, the Court cannot
but conclude that there has been no violation of Article 3 of the
Convention on account of the applicant’s alleged ill-treatment
by prison warders on those two occasions.
(ii) Alleged inadequacy of the
investigation
The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated in breach of
Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention to “secure
to everyone within their jurisdiction the rights and freedoms defined
in ... [the] Convention”, requires by implication that there
should be an effective official investigation. An obligation to
investigate “is not an obligation of result, but of means”:
not every investigation should necessarily be successful or come to a
conclusion which coincides with the claimant’s account of
events; however, it should in principle be capable of leading to the
establishment of the facts of the case and, if the allegations prove
to be true, to the identification and punishment of those
responsible. Thus, the investigation of serious allegations of
ill treatment must be thorough. That means that the authorities
must always make a serious attempt to find out what happened and
should not rely on hasty or ill-founded conclusions to close their
investigation or as the basis of their decisions. They must take all
reasonable steps available to them to secure the evidence concerning
the incident, including, inter alia, eyewitness testimony,
forensic evidence, and so on. Any deficiency in the investigation
which undermines its ability to establish the cause of injuries or
the identity of the persons responsible will risk falling foul of
this standard (see, among many authorities, Mikheyev v. Russia,
no. 77617/01, §§ 107 et seq., 26 January 2006, and
Assenov and Others v. Bulgaria, 28 October 1998, § 102
et seq., Reports of Judgments and Decisions 1998 VIII).
Turning to the circumstances of
the present case, the Court notes that the prosecution authorities,
who were made aware of the applicant’s beating, carried out a
preliminary investigation which did not result in the criminal
prosecution of the warders. In the Court’s opinion, the issue
is consequently not so much whether there was an investigation, since
the parties did not dispute that there was one, but whether it was
conducted diligently, whether the authorities were determined to
identify and prosecute those responsible and, accordingly, whether
the investigation was “effective”.
The Court will therefore first assess the promptness
of the prosecutor’s investigation, viewed as a gauge of the
authorities’ determination to identify and, if need be,
prosecute those responsible for the applicant’s alleged
ill-treatment (see Selmouni v. France [GC], no. 25803/94,
§§ 78 and 79, ECHR 1999 V). In the present case,
inquiries into both the incident of 4 July 2009 and that of 17 August
2009 were opened by the administration of the medical colony
immediately after the events. As to the very fact of the internal
investigation by the management of the detention facility, the Court
acknowledges the need for internal investigation with a view to
possible disciplinary action in cases of abuse by warders. However,
it finds it striking that in the present case the initial
investigative steps, which usually prove to be crucial for
establishing the truth in cases of brutality committed by State
officials, were conducted by the same State authority whose employees
were allegedly implicated in the events being investigated (see, for
similar reasoning, Vladimir Fedorov v. Russia, no.
19223/04, § 69, 30 July 2009, and Maksimov
v. Russia, no. 43233/02, §
87, 18 March 2010). In this connection the Court reiterates
its finding, made on a number of occasions, that the investigation
should be carried out by competent, qualified and impartial experts
who are independent of the suspected perpetrators and the agency they
serve (see Ramsahai and Others v. the Netherlands [GC],
no. 52391/99, § 325, ECHR 2007-II, and Oğur v.
Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III).
Furthermore, the Court is struck by the fact that, merely days after
the closing of the internal inquiries, the prosecution investigators
issued decisions of similar content (see paragraphs 47 and 53 above).
Despite relying on the warders’ and inmates’ statements,
the investigator did not hear evidence from them in person and merely
recounted the witnesses’ statements made during the internal
inquiry. The Court, however, is mindful of the important role which
investigative interviews play in obtaining accurate and reliable
information from suspects, witnesses and victims and, in the end, in
discovering the truth of the matter under investigation. Observing
the suspects’, witnesses’ and victims’ demeanour
during questioning and assessing the probative value of their
testimony forms a substantial part of the investigative process (see
Premininy v. Russia, no. 44973/04, §
109, 10 February 2011).
The
Court also finds it striking that it was not until 24 September 2009,
following numerous complaints from the applicant, his counsel and
human rights activists, that the investigation into the applicant’s
ill treatment complaints was reopened. In reinitiating the
investigation, the supervising prosecutor pointed to the
investigator’s failure to summon expert evidence to determine
the origin of the applicant’s injuries. The Court reiterates in
this connection that proper medical examinations are an essential
safeguard against ill-treatment. The forensic doctor must enjoy
formal and de
facto independence, have been provided with specialised
training and have a mandate which is broad in scope (see Akkoç
v. Turkey, nos. 22947/93 and 22948/93, § 55 and §
118, ECHR 2000 X). An expeditious expert medical examination of
the applicant was particularly crucial in the circumstances of the
present case in the absence of conclusive medical evidence of the
physical violence alleged by him. Although the forensic expert
examination was finally performed in October 2009, that is three
months after the first instance of alleged beating on 4 July 2009 and
almost two months after the second instance, the Court cannot but
suspect that the initial delay in authorising the expert examination
resulted in a loss of precious time and made it impossible to secure
evidence of the alleged ill-treatment. The Court notes with concern
that the lack of objective evidence – such as timely expert
examination might have provided – was subsequently relied on as
a ground for refusing to institute criminal proceedings against the
warders.
The
Court does not overlook the fact that the investigation into the
applicant’s ill-treatment complaints was intertwined with the
criminal proceedings instituted against him on suspicion of an attack
on the warder. However, the Court is of the opinion that the
pre-trial investigation into the alleged attack, as well as the
subsequent court proceedings, were unable to remedy the authorities’
failure to effectively investigate the applicant’s allegations
of ill-treatment. The Court firstly observes that the main purpose of
the criminal proceedings against the applicant was to establish
whether the latter had committed an act of violence against an
officer on duty and not whether he himself had been a victim of
brutality. This conclusion is corroborated by the fact that in
responding to the applicant’s complaints of ill-treatment by
the warders, the domestic courts refused to go into the matter,
relying heavily on the results of the separate investigation and, in
particular, the investigator’s decision of 19 October
2009. The Court further notes that, according to the domestic courts,
the pre-trial investigation into the applicant’s alleged attack
on the warder was itself marred by the same defects as those which
the Court can identify in the investigation into the applicant’s
allegations of ill-treatment by the warders. The Court fully agrees
with the domestic courts’ description of the pre-trial
investigation as being of “a poor standard” given its
protracted nature, the failure to perform important investigative
steps, such examining the crime scene and questioning important
witnesses, and the lack of supervision over the investigator’s
actions (see paragraph 74 above).
Proceeding
further with the assessment of the thoroughness of the investigation
into the applicant’s ill-treatment complaints, the Court is
under the impression that the primary focus of the investigation was
not the instances of alleged ill-treatment. Instead it appears that
the authorities concentrated on finding an explanation for the
applicant’s alleged acts of self-mutilation. The investigating
authorities’ selective and somewhat inconsistent approach to
the assessment of evidence demonstrated itself in their conclusions,
based mainly on testimonies given by colony staff members. Although
excerpts from the testimonies of the applicant and two other inmates
were included in the decision of 19 October 2009 refusing to
institute criminal proceedings, the investigator did not consider
those testimonies to be credible. However, the investigator
unquestioningly accepted the warders’ testimonies as credible,
even though they might simply have been defence tactics aimed at
damaging the applicant’s credibility. In the Court’s
view, the prosecution inquiry applied different standards when
assessing the testimonies, as those given by the applicant and his
fellow inmates were deemed to be subjective but not those given by
the colony officials. The credibility of the latter testimonies
should also have been questioned, as the prosecution investigation
was supposed to establish whether the warders were guilty of
disciplinary or criminal offences (see Ognyanova and Choban v.
Bulgaria, no. 46317/99, § 99, 23 February
2006).
The
Court further observes that the investigator questioned two inmates
who had been detained with the applicant in the medical colony in
July 2009. The excerpts from their testimonies were included in the
decision of 19 October 2009. The Court firstly finds it inexplicable
that the investigator limited his inquiry to the examination of only
two inmates. It is also peculiar that the investigator never heard
any witness, such as an inmate, a prison doctor or a representative
of a human rights organisation, who might have had information in
relation to the events of 17 August 2009. In this connection, the
Court notes that while the investigating authorities may not have
been given the names of individuals who might have witnessed the
alleged beatings or have been able to shed light on the events under
investigation, they would have been expected to take steps on their
own initiative to identify possible eyewitnesses.
The
Court is thus of the view that the investigator’s inertness and
reluctance to look for corroborating evidence precluded the creation
of an accurate, reliable and precise record of the events of 4 July
and 17 August 2009.
In
such circumstances the Court is bound to conclude that the
authorities failed to comply with the requirements of promptness,
thoroughness and effectiveness (see Kişmir v. Turkey,
no. 27306/95, § 117, 31 May 2005; Angelova and
Iliev v. Bulgaria, no. 55523/00, § 103,
ECHR 2007-IX; and Vladimir Fedorov,
cited above, § 70). Accordingly, it holds that there
has been a violation of Article 3 of the Convention under its
procedural limb.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the Court has examined the other complaints submitted by the
applicant. However, having regard to all the material in its
possession, and in so far as these complaints fall within the Court’s
competence, it finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 15,000 euros (EUR) in respect
of non pecuniary damage.
The
Government submitted that the claim was excessive.
The
Court notes that it has found a serious violation of the Convention
in the present case. In these circumstances the Court considers that
the applicant’s suffering and frustration caused by the
ineffective investigation into his ill-treatment complaints cannot be
compensated for by a mere finding of a violation. Making its
assessment on an equitable basis, it awards the applicant in full the
sum claimed in respect of non-pecuniary damage, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
The
applicant also claimed 177,165.4 Russian roubles
(RUB) for the costs and expenses incurred before the domestic
authorities and the Court, of which RUB 84,000 was the cost of legal
representation during the criminal proceedings against the applicant,
RUB 45,000 estimated translation fees, RUB 18,000 legal fees for
representing the applicant in the proceedings pertaining to his
ill-treatment complaints, RUB 30,000 the cost of legal representation
before the Court and RUB 165.40 postal expenses.
The
Government stressed that only those reasonable expenses and costs
which had in fact been incurred should be reimbursed to the
applicant.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the sum
of EUR 1,500 covering costs under all heads.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning alleged
ill-treatment by the warders on 4 July and 17 August 2009 and
ineffective investigation into the applicant’s ill-treatment
complaints admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 3 of the Convention on account of the alleged ill-treatment
of the applicant on 4 July and 17 August 2009;
Holds that there has been a violation of Article
3 of the Convention on account of the authorities’ failure to
investigate effectively the applicant’s ill-treatment
allegations;
Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into Russian
roubles at the rate applicable at the date of settlement:
(i) EUR
15,000 (fifteen thousand euros) in respect of non pecuniary
damage;
(ii) EUR
1,500 (one thousand five hundred euros) in respect of costs and
expenses incurred before the domestic authorities and the Court;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajic Registrar President
