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FIFTH
SECTION
CASE OF
LOTAREV v. UKRAINE
(Application
no. 29447/04)
JUDGMENT
STRASBOURG
8
April 2010
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 Lotarev v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29447/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Vitaliy Valeryevich
Lotarev (“the applicant”), on 3 August 2004.
- The
applicant, who had been granted legal aid, was represented by Mr A.
P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian
Government (“the Government”) were represented by their
Agent, Mr Y. Zaytsev.
- The
applicant alleged, in particular, that he had been ill-treated by the
staff of Zhytomyr no. 8 Prison and that there had been no adequate
investigation into the matter. He also complained about the
conditions of his detention in the aforementioned prison.
- On
10 March 2009 the Court decided to give notice of the application to
the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and is currently serving a sentence of
life imprisonment in Zhytomyr no. 8 Prison (“the prison”).
A Use of force by prison wardens on 9 June 2004 and
subsequent investigation
- In
the morning of 9 June 2004 the wardens conducted a routine cell
inspection and body searches of life prisoners. Following such an
inspection in the applicant's cell an incident took place, the
parties' accounts of which differ.
- According
to the applicant, he requested warden P. to clean up the mess left
behind after the search, after which the latter handcuffed him, took
him out into the corridor and repeatedly threw him against the walls
until the applicant pushed him away in self-defence. At that point
another warden, T., joined in the applicant's beating. Both wardens
continued kicking and punching him even after he had been knocked on
to the floor. Later the applicant was conveyed to the operational
unit, where he was beaten again by wardens whose identities and
number he was not able to establish. The applicant was left on the
floor for several minutes, examined superficially by two medical
assistants who found his condition to be satisfactory, and then taken
back to his cell. Although he had a fever and was suffering from pain
in the chest which severely constrained his movements, the applicant
felt discouraged from seeking any medical assistance by what he
perceived to be indifference and mockery on the part of the prison's
medical staff.
- As
submitted by the Government with reference to the information
provided by the prison administration, the applicant resisted being
body-searched by warden P., using obscene language and attempting to
hit the latter with his head. Although warned that force might be
used against him if he resisted further, the applicant tried to kick
officer P., who, in his turn, knocked him down using a martial art
technique (sambo). The applicant was then convoyed to the prison's
operational unit where he was held until he had calmed down.
- On
the same date warden P. completed a “Form regarding application
to a prisoner (detainee) of handcuffs, straitjacket or other special
measures”, in which he reported to the prison governor that he
had used a sambo technique against the applicant caused by the
latter's “physical resistance”. Two other wardens
certified the form as accurate. The prison surgeon, in his turn,
issued a report on the applicant's examination “following the
usage of a sambo technique”, in which he noted that the
applicant's condition was satisfactory with no pathology of the
internal organs discovered, while the applicant himself had not
raised any complaints.
- According
to the Government's submissions based on the domestic investigation
materials, on 9 June 2004 the applicant was X-rayed with no bone
fractures discovered. The applicant denied having been X-rayed before
November 2004 (see paragraph 20 below).
- On
15 June 2004 the prison governor disciplined the applicant for the
incident of 9 June 2004 by way of a written reprimand.
- On
an unspecified date the applicant complained to the prison's medical
unit of pain in the left part of his chest which worsened with a deep
inhalation or sharp movement.
- On
16 July 2004 the head of the prison's medical unit, a therapist, a
surgeon and a radiographer examined the applicant and diagnosed him
with “osteochondrosis”.
- On
25 August 2004 the applicant's mother complained to the prosecution
authorities that prison wardens had used unjustified force against
her son.
- On
17 September 2004 the investigator of the Zhytomyr Prosecutor's
Office for Supervision of Compliance with the Legislation in
Enforcement of Sentences (“the Zhytomyr Prosecutor's Office”)
examined wardens P. and T., whose description of the events of 9 June
2004 was identical to that summarised in paragraphs 8 and 9 above.
- On
the same date the investigator issued a decision refusing to
institute criminal proceedings against warden P. as there had been
nothing criminal in his actions. It was based on a finding that force
had been used against the applicant on the grounds and in the manner
envisaged by the Internal Regulations of the Establishments for
Enforcement of Sentences. The investigator also took into account the
fact that the applicant had been examined by a doctor immediately
after the incident, with no complaints received from him and no
injuries discovered. It was further mentioned in the decision that
the applicant had refused, with reference to Article 63 of the
Constitution (absolving a person from any responsibility for refusing
to testify or to explain anything about himself) to give any
explanation as regards his disobedience of the legitimate orders of
the prison administration on 9 June 2004.
- On
28 October 2004 the Deputy Prosecutor of the Zhytomyr Prosecutor's
Office quashed the above decision as not based on comprehensive
investigation. Specifically, the investigator had wrongly dispensed
with questioning the applicant's cellmate. He should also have
identified and heard other prisoners who might have witnessed the
incident. Lastly, no forensic medical examination of the applicant
had been undertaken with a view to establishing the nature and
gravity of his injuries.
- On
4 November 2004 the investigator examined A., the inmate with whom
the applicant shared a cell from April to July 2004, who stated that
he knew the applicant as a calm and even-tempered person. A.
described the events of 9 June 2004 as follows. Warden P. and
his colleague conducted a search in the cell, which they left in a
mess. The applicant made a remark to P., who advised him to
officially complain to the prison administration if he wished to. The
applicant, in his turn, addressed some obscene language to P., who
then unlocked the cell and took the applicant out into the corridor.
A. submitted that he had seen P. kicking the applicant once and
punching him twice. After that the door to the cell was closed and he
heard the sound of blows. The applicant returned about forty minutes
later with the left part of his back bruised and his left ear
injured.
- On
12 November 2004 warden T., as well as another prison staff member,
gave written statements concordant with those of P.
- From
15 to 29 November 2004 the Zhytomyr Regional Bureau of Forensic
Medical Examinations examined the applicant and studied his medical
documentation at the investigator's instruction with a view to
clarifying: whether there were any injuries on the applicant's body
and what their origin was; as well as the date, the nature and the
gravity of the injuries, should any be discovered. In the course of
that examination the applicant was X-rayed on 15, 18 and 19 November
2004. According to him, that was his first X-ray since the incident
of 9 June 2004. The experts discovered (in addition to some changes
in the applicant's lungs characteristic of chronic tuberculosis) that
he had a closed blunt chest injury and fractures of two ribs
estimated to be of medium gravity and no older than two months. The
possible date of the fractures was established on the basis of the
appearance of the broken bones' edges on the X-ray film, which were
only to a slight extent covered by callus (a connective tissue
emerging on a bone at the site of a fracture and transforming into
normal bone in approximately one year). The fractures had resulted
from blows with blunt objects. As regards the X-ray film of 9 June
2004, which was among the applicant's medical documents, three
radiographers participating in the examination concluded that it was
impossible to identify it as belonging to the applicant, given that
it was of low quality and did not mention his name.
- On
2 December 2004 the Zhytomyr Prosecutor's Office again refused to
institute criminal persecution of warden P. and the prison doctors
(against whom the applicant and/or his mother had apparently also
made complaints) having found that the elements of the crime had not
been set out. In addition to the reasons given for the refusal on
17 September 2004 (see paragraph 16 above), the
investigator referred to the medical report of 29 November 2004,
according to which the applicant's injuries could not have dated back
as far as to June 2004. While noting the statement given by the
applicant's cellmate A. (summarised in paragraph 18 above), the
investigator decided to treat it with scepticism, considering that it
was refuted by other circumstances of the case and was “apparently
aimed at discrediting the prison administration”.
- On
3 December 2004 the Zhytomyr Prosecutor's Office directed the prison
governor to investigate the circumstances in which the applicant
could have sustained the rib fractures which had been discovered
during his medical examination in November.
- In
the course of the investigation subsequently undertaken the prison
governor took written statements from eleven wardens who had been on
duty at various times during August and September 2004. All of them
stated that the applicant had never complained about anything and
that there had been no fights or other incidents during their shifts.
- On
8 December 2004 the prison administration issued a report about the
applicant's refusal to give any explanation regarding the injuries
supposedly sustained by him some two months before mid-November 2004.
- On
the same date the head of the prison medical unit issued a report,
according to which the applicant had not addressed any complaint to
the medical unit regarding his injuries.
- In
December 2004 (the date is illegible on the available copy) the
prison governor issued a report finding no grounds to initiate
criminal investigations into the infliction of the rib fractures on
the applicant. He noted that the applicant had neither complained
about those injuries nor explained their origin.
- On
2 April 2005 the Zhytomyr Prosecutor's Office quashed the decision of
2 December 2004, finding that additional investigation was required.
It noted that the investigation had failed to duly examine all the
concerned staff of the prison. Neither had it clarified whether any
force had been applied to the applicant when he was being convoyed
from his cell to the operational unit and later in the operational
unit. The applicant's cellmate A. had not been duly examined as
regards the applicant's beating supposedly witnessed by him. While
the medical examination established that the applicant had had two
ribs broken, the circumstances in which he had sustained those
injuries remained unknown. Furthermore, it had not been established
whether the applicant had in fact been X-rayed on 9 June 2004
and whether that had been duly reflected in the documentation of the
prison's medical unit. Lastly, the decision to refuse to institute
criminal proceedings concerned only warden P., while the applicant
alleged that he had been beaten up by several wardens.
- On
12 April 2005 wardens P. and T. gave additional written statements.
According to T., he had not participated in the applicant's convoying
to the operational unit on 9 June 2004 and was therefore not aware
whether any force had been applied to the applicant at that stage. As
submitted by P., he had been among the wardens who had convoyed the
applicant. He stated that he could give an assurance however that no
force had been used.
- On
the same date the investigator examined the scene of the incident of
9 June 2004.
- According
to his report, also dated 12 April 2005, the applicant's cellmate at
the material time, A., “unequivocally refused to give any
explanations”.
- On
13 April 2005 the investigator questioned another inmate, O., who had
been sharing the cell with the applicant between 15 July and
15 August 2004. He contended to have noticed bruises on the
applicant's face and on the left side of his torso as soon as he had
been transferred to that cell. The applicant had told him that he had
been beaten by wardens P. and T. on 9 June 2004. O. further submitted
that he had not had any conflict with the applicant, and that during
the period when they had been sharing the cell the applicant had not
had any fights with anybody and had not fallen. Two other inmates who
were held later in the same cell with the applicant refused to make
any statements.
- On
19 April 2005 another medical report was issued with a view to
clarifying, at the prosecutor's request, whether the applicant could
have sustained the fractures of his two ribs as a result of a fall or
of being punched or kicked. The expert replied that the injuries
could have been inflicted by punches, kicks or by other blunt
objects, while he excluded any accidental fall as a plausible reason.
- On
the same date the Zhytomyr Prosecutor's Office issued a new decision
refusing to institute criminal proceedings against wardens P. and T.,
as well as against the staff of the prison's medical unit, for lack
of corpus delicti in their actions. In addition to the
findings of the previous similar decisions (see paragraphs 16 and 21
above), the investigator mentioned the medical report of the same
date (19 April 2005) and the statements of inmate O.,
without comment. Having repeatedly referred to the doctors' finding
of 29 November 2004, the investigator concluded that it
should be interpreted as refuting the applicant's allegation about
his ill-treatment on 9 June 2004. He further noted that the applicant
had had unfriendly relations with warden P. and therefore his
allegations against the latter had to be taken with criticism.
- The
Government submitted to the Court a copy of a letter of the Zhytomyr
Prosecutor's Office addressed to the applicant's mother and dated
20 April 2005, by which it informed her about the
aforementioned decision, as well as that it was possible to challenge
it with the Zhytomyr Regional Prosecutor's Office within seven days
of receiving its copy (which would be sent to her if requested). The
applicant and his mother denied ever having received that letter.
- Following
the communication of the application to the Government,
Mr Bushchenko, the applicant's lawyer representing him in the
proceedings before the Court, requested a private expert, Mr T.
(Professor of the Criminology, Forensic Medicine and Psychiatry
Department of the Kharkiv National University of the Interior, Ph.D.
in medicine (кандидат
медичних наук)
and a forensic medical expert of the highest-qualified category
according to the existing appraisal system) for an advisory opinion
with a view to clarifying, in particular: what could have been the
object, which had caused the fractures of the applicant's ribs; the
probable date of the fractures; explanation of the absence of any
visible injuries on the applicant's body during his examination by
the prison's doctors; what illnesses the applicant was suffering
from; and whether his tuberculosis and lengthy stay in prison could
have delayed the fractures' healing process.
- On
10 September 2009 the expert issued the requested advisory opinion,
which was based on the applicant's medical documentation and
contained the following findings: The fractures in issue could have
been inflicted by a foot in a shoe or by another object with a short
protrusion. Having regard to the statements given by the applicant's
cellmates A. and O., the applicant's consistent complaints of pain in
the left part of his chest and the nature of those complaints, as
well as the poor quality of the applicant's X-ray film of
9 June 2004, it was not ruled out that the applicant could
have sustained the fractures on 9 June 2004. As to the medical report
of 29 November 2004, according to which those fractures
could not have been inflicted more than two months before the last
X-ray (15 and 18 November 2004), that conclusion was based
on an assumption that a regular recovery process was being analysed,
while the coalescence in the applicant's case could well have been
retarded by his chronic tuberculosis (from which he was suffering, as
was obvious from his X-rays), as well as by the fact that the prison
conditions were not the most favourable for a quick recovery. In
other words, the expert found it possible that while indeed under the
normal circumstances the callus on the edges of the broken ribs had
the appearance of being two months old, in the applicant's case it
could have in fact been older (several months). Lastly, as regards
the fact that the prison doctors who had examined the applicant
shortly after the incident of 9 June 2004 had not seen any visible
injuries on his body, the expert noted that it could have been
explained by the “depth” of the haematomas, which could
have become apparent with a delay.
B. The applicant's treatment for tuberculosis
- In
November 2001 the applicant was diagnosed with tuberculosis.
- In
March 2002 he considered himself to have fully recovered, attributing
that to his faith. From then on he refused all treatment, for
religious reasons, and complained to various authorities that his
diagnosis was false. The doctors however considered that the
applicant remained ill.
- On
24 April 2002 the Bogunskyy District Court of Zhytomyr (“the
Bogunskyy Court”) ordered the applicant to be treated forcibly
for tuberculosis, which was apparently undertaken.
- As
discovered by a routine check in April 2005 and confirmed by control
X-raying in July and September 2005, the disease reappeared. The
applicant however again refused from any treatment for religious
reasons.
- On
6 April 2006 a commission of the Ministry of Health examined him and
confirmed infiltrative tuberculosis of both lungs.
- On
4 December 2006 the applicant was transferred for specialised
treatment to Kherson no. 61 Prison, where he stayed till
21 February 2008, when his condition was found
satisfactory.
- According
to his submissions to the Court, he had contracted tuberculosis anew
at some point because of being forced to share cells (or wards) with
inmates who were ill.
C. Conditions of detention in Zhytomyr no. 8 Prison
- The
applicant has been serving his sentence of life-term imprisonment in
Zhytomyr no. 8 Prison since 5 October 2001, with exception of the
period from 4 December 2006 to 21 February 2008 (see
paragraph 42 above).
1. Conditions as presented by the applicant
- The
cells in which the applicant was held fell short of meeting basic
hygienic standards being dirty, damp and poorly ventilated. The
situation deteriorated even more after the prison authorities had
stopped providing prisoners with chlorine powder in summer 2005. The
applicant had to whitewash and paint his cell at his own expense once
in an attempt to improve its sanitary condition.
- The
medical wing of the prison, which was situated on the ground floor
and where the applicant was placed occasionally, was often flooded
with sewage and its walls were covered in mould. While staying there,
he had to share a ward with another inmate suffering from
tuberculosis, while he considered himself to have recovered from that
disease. The ward lacked proper ventilation. The medical staff were
not well qualified and lacked compassion. No medical assistance
was provided when it was required, but was imposed on prisoners who
did not need it.
- The
nutrition was insufficient and inadequate, while the prices of food
in the prison shop were unreasonably high and the administration
either refused to accept parcels of food for the applicant from his
mother or kept them for themselves. There was a practice of adding
bromine to food, adversely affecting the prisoners' cerebral cortex
and sexual potency. While being treated for tuberculosis the
applicant did not receive the required diet.
2. Conditions as presented by the Government
- The
cells for life prisoners underwent cosmetic repairs on the annual
basis. Prisoners of this category are never involved in any repairing
of the cells, which is the job of other prisoners assigned to the
maintenance service of the prison. Life prisoners are transferred to
a different cell twice a month. The cells in which they are held
measure at least eight square metres and twenty-four cubic metres.
They have natural ventilation and double window frames with
ventilation panes. An assigned staff member disinfects once a week
the cells of life prisoners who are under follow-up medical
monitoring after recovery from tuberculosis. The prison does not have
any shortages of disinfection materials, and the chlorine powder is
never issued to prisoners.
- The
prison medical unit is staffed with highly-qualified doctors and
assistants of various areas of specialisation. Namely, its staff
includes: the chief of the medical unit, a therapist, a
tuberculotherapist, a dermatovenerologist, a radiologist, a dentist,
six medical assistants (фельдшери),
a clinic laboratory assistant, an X-ray examination assistant, a
pharmacist, and a disinfector. Some of the personnel are assigned
qualification categories meaning that they have extensive work
experience and positive theoretical and practical competence
appraisals reaffirmed on a regular basis. Thus, the
dermatovenerologist has the first qualification category, for which
at least seven years' experience is required; the dentist and the
clinic laboratory assistant have the highest qualification category
assignable after at least ten years' experience; while the X-ray
examination assistant and the pharmacist have the second
qualification category (at least five years' experience). The medical
assistants are occasionally seconded to the Zhytomyr ambulance
station with a view to improving their skills. Pursuant to the
accreditation certificate issued by the Ministry of Health on 22
March 2007, the medical unit has the right to carry out medical
practice in the following areas: therapy, surgery, psychiatry,
dermatovenereology, dentistry, radiology, phthisiology, and clinical
laboratory diagnostics. The unit is fully equipped in compliance with
applicable standards. Its premises, which are wet-cleaned and
disinfected on a daily basis, are of satisfactory sanitary
condition. The applicant never shared a cell or ward with
prisoners with an active form of tuberculosis.
- The
food for prisoners is subjected to regular and strict control. A
staff member of the medical unit and the deputy prison governor taste
each meal after the cooking and certify its quality in a special
logbook, that being a precondition for its distribution to prisoners.
The food undergoes laboratory verification as regards its nutritional
value and chemical composition twice a year. During the whole period
of the applicant's stay in the prison there was not a single case of
any deterioration of prisoners' health caused by inadequate quality
of food. Prisoners with tuberculosis follow a special diet in the
framework of the recurrence prevention programme twice a year. Thus,
during the period from 1 March to 31 May, from 1 September to
30 November 2008, and from 1 March to 31 May 2009 the
applicant received dietetic nutrition according to his medical
condition and in compliance with the applicable regulations. The
prices of food in the prison shop are within the limits set by the
State Department for Enforcement of Sentences. In any event, the
applicant never had any money on his prison account and never bought
anything there.
3. Related factual information
- The
prison administration returned to the applicant's mother the parcel
of food she had sent, which was received on 14 March 2002, as it had
been sent less than six months following the previous one, while the
applicant had only been entitled to two parcels per year at that
time.
- On
22 February 2005 the applicant's mother complained about the
conditions of his detention and insufficient nutrition to the prison
governor, who, in his turn, had a conversation with the applicant.
According to the prison governor, the applicant did not complain
about anything.
D. Alleged interferences with the applicant's
correspondence
- According
to the applicant, the prison administration reviewed all his incoming
and outgoing correspondence and did not dispatch any of his
complaints to the authorities. It also delayed or reported lost some
of his correspondence with his mother.
- In
May 2006 the applicant's mother complained to the State Department
for Enforcement of Sentences of, inter alia, a failure of the
prison authorities to dispatch the applicant's letters to various
authorities.
- On
18 August 2006 the Zhytomyr Regional Office of the Department found
her allegation unsubstantiated, referring to a number of letters
successfully sent by the applicant to the prosecution and other
authorities in 2006.
E. Introduction of the application and the applicant's
representation
- On
3 August 2004 and 22 June 2005 the applicant's mother complained to
the Court, on his behalf, about his alleged ill-treatment, health
problems, conditions of detention, and alleged interferences of the
prison administration with his correspondence.
- On
6 July 2005 the Court received the application form signed by the
applicant's mother. Enclosed to it there was a standard authority
form distributed earlier by the Court Registry, which had been
completed by the applicant's mother and signed both by her and the
applicant and by which the latter authorised her to represent him in
the proceedings before the Court. It did not state the date it had
been issued.
- On
16 August 2005 the Registry received a letter from the applicant, in
which he referred to the number of his case file and reiterated the
earlier submitted complaints. It was sent by his mother and contained
additional notes written by her in the margins.
- In
September 2009 the applicant's lawyer submitted to the Court,
inter alia, a copy of an informally worded letter of
authority dated 29 August 2005, in which the applicant
stated that he fully trusted his mother to represent his interests
before any domestic or international authority, including the
Strasbourg Court.
II. RELEVANT DOMESTIC LAW
A. Use of force in prisons
- Article
106 of the Code on Enforcement of Sentences (2003) sets out rules
governing the use of force in prisons. Prison officers are entitled
to use force with a view to putting an end to physical resistance,
violence, outrage (буйство)
and opposition to lawful orders of the prison administration, or with
a view to preventing prisoners from inflicting harm on themselves or
on those around them. The use of force should be preceded by a
warning if the circumstances so allow. If the use of force cannot be
avoided, it should not exceed the level necessary for fulfilment by
the officers of their duties, should be carried out so as to inflict
as little injury as possible and should be followed by immediate
medical assistance if necessary. Any use of force must be immediately
reported to the prison governor.
- The
above rules are reiterated in paragraph 25 of the Internal
Regulations of the Establishments for Enforcement of Sentences
(2003). Paragraph 59 of the Regulations further specifies that prison
officers are entitled to use force, including martial art techniques
with a view to putting an end to wrongdoing by prisoners and
overcoming their resistance to lawful orders of the administration
when other means prove ineffective for the officers to be able to
carry out their duties. The choice of a special measure to be used
and its time and intensity depend on the circumstances, the nature of
the wrongdoing and the personal characteristics of the perpetrator.
B. Investigation of a crime
- The relevant provisions of the Code of Criminal
Procedure (1960) are summarised in Kats and Others v. Ukraine,
no. 29971/04, §§ 76-80,
18 December 2008.
C. Forced medical treatment
- Pursuant
to Article 117 of the Code on Enforcement of Sentences, prisoners
suffering from contagious diseases who have not completed their
medical treatment and refuse from it should be treated forcefully. A
decision to that regard shall be taken by a court following a
respective application from the prison administration.
D. Some issues concerning conditions of life
imprisonment
- Before
it was amended on 28 December 2007, Article 151 of the Code on
Enforcement of Sentences allowed life prisoners to receive no more
than two parcels (packages) per year. After the aforementioned date
that restriction was lifted.
III. RELEVANT INTERNATIONAL MATERIAL
- The
relevant extracts from the Report to the Ukrainian Government on the
visit to Ukraine carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) from 24 November to 6 December 2002 [CPT/Inf (2004)
34] read as follows:
“94. In its report on the 2000 visit ..., the CPT
stated that the treatment of prisoners serving life sentences
was a major source of concern to the Committee, and it made a whole
series of recommendations with a view to improving their situation.
The delegation's on-the-spot observations in 2002 in
Zhytomyr Prison no. 8 ... confirmed that certain improvements have
been made to material conditions and some aspects of the regime.
95. Material conditions of detention for these prisoners
in Zhytomyr Prison No. 8 ... were acceptable. The cells were clean,
properly lit and ventilated, equipped with beds with full bedding, a
table, a stool and toilets that were partitioned off. The cells
measured 6 to 10.2 m². They had all been originally designed for
two prisoners, although sometimes they accommodated only one.
The CPT would stress that cells measuring 6 to 7 m²
should, as a rule, be reserved for one prisoner (except in
exceptional circumstances, where it is inadvisable to leave a
prisoner alone). Cells measuring 10 m² could be
considered acceptable for two people, provided the prisoners are able
to spend a reasonable part of the day outside their cell. ...
96. The 2002 visit confirmed that life-sentenced
prisoners may now receive two large parcels weighing 30 kg each a
year and two small packets weighing 2 kg each a year; they may also
buy supplies at the prison shop. It emerged, however, that the amount
they could receive was much smaller than that which sentenced persons
in the colonies could receive. In addition, for many of them, access
to supplies from the prison shop was only theoretical since, because
of lack of work, they did not earn any money. ...
105. In Prison No. 8, the delegation observed the
practice of frequently moving life-sentenced prisoners ... to
different cells. Life-sentenced prisoners changed cells within the
section every week and changed floors every six months ....
The CPT has already dealt with this issue in ... its
report on the 2000 visit, in which, while acknowledging that
operational considerations might exceptionally require such measures,
the Committee stressed that it was desirable to avoid, as far as
possible, the needless uprooting of prisoners. The CPT recommends
that the Ukrainian authorities review the policy of frequently moving
prisoners to different cells in Prison No. 8 and, if necessary, in
Ukraine's other penitentiary establishments, in the light of these
considerations. ...
107. Prison No. 8 in Zhytomyr was built in 1914. With a
capacity of 1,600 places, it was accommodating 1,199 prisoners at the
time of the visit. ...
111. ... material conditions varied. Many of the cells
visited, although modestly equipped, were properly maintained and
clean. Others, however, had been damaged by damp and were dirtier,
with toilets in relatively poor condition, rusty beds and very modest
bedding infested with cockroaches and other vermin. ...
112. The prison administration made real efforts to
provide those prisoners who needed them with basic essentials
(hygiene and cleaning products and, if necessary, extra
clothing/shoes). ...
118. In the establishments visited, the delegation
received numerous complaints about restrictions on the number of
parcels. The CPT notes that Section 41 of the Code on the Execution
of Sentences provides for different entitlements in terms of the
number of parcels per year, depending on the type of regime. ...
The CPT can understand that in certain penitentiary
establishments there may be logistical, as well as security-related
reasons for imposing a restriction on the number of parcels which can
be received. However, this implies that the penitentiary
administration is in a position to respond adequately to prisoners'
fundamental needs (food, clothing, medication, etc.). The fact is
that this is not yet the case, since economic problems are preventing
it from meeting prisoners' basic needs. In the circumstances, the
grounds for the restrictions should be reviewed. Indeed, some
countries faced with a similar situation have granted prisoners the
right to receive an unlimited number of parcels.
The CPT recommends that the Ukrainian authorities review
the provisions of the Code on Execution of Sentences and of the law
governing detention on remand in respect of the entitlement to
receive parcels, in the light of the above remarks. ...
194. A number of improvements
had been made to the material conditions of detention and some
aspects of the regime applicable to life-sentenced prisoners. While
welcoming this progress, the CPT stressed the need to give a high
priority to the introduction of a proper prison management policy for
these prisoners. ...
195. With regard to material conditions of detention,
the CPT recommended that in Prison No. 8 the necessary repairs be
carried out to building No. 1 so that the material conditions
equalled those in building No. 2, reserved for women and minors, in
all respects. ...
197. With regard to health care, the CPT welcomed the
progress that had been made in combating tuberculosis, in terms of a
decrease in the number of prisoners suffering from tuberculosis and
the fall in the number of deaths due to the disease. Substantial
efforts had also been made to ensure that penitentiary establishments
were provided with sufficient quantities of appropriate medication
for the treatment of the disease. Progress was, however, slower with
regard to the standard of food for prisoners suffering from
tuberculosis, because of the limited resources of the prison
administration. The CPT recommended sparing no effort in ensuring
that the measures adopted to combat tuberculosis were fully
implemented and giving a high priority to the implementation of the
nutritional programme for prisoners suffering from the disease. ...”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
- The
Government submitted that the applicant's mother, who had lodged the
application and had been corresponding with the Court on his behalf,
had no standing to act as his representative given that there was no
letter of authority in the case file. They also noted that the prison
administration had not registered in the outgoing correspondence a
single letter from the applicant addressed to the Court. Making an
analogy with the case of Mikhaniv v. Ukraine, no. 75522/01,
where in the partial admissibility decision of 20 May 2008 the Court
refused to accept for examination submissions from the applicant's
relatives not expressly authorised by him, the Government considered
that the application in the present case was brought by an
unauthorised person, which called for it to be struck out of the list
of cases before the Court.
- The
applicant disagreed. Mr Bushchenko, who was appointed by him for his
representation in the proceedings before the Court after the notice
of the application had been given to the Government, contended that
the applicant's mother had been helping her son to communicate with
the Court, given the detainees' correspondence censorship legally
permitted before 1 December 2005, as well as other
unspecified practical difficulties allegedly created by the prison
administration. The lawyer further noted that the applicant had
authorised his mother to represent him before various authorities and
courts, including before this Court, in August 2008 (apparently, the
lawyer meant August 2005, which was the date indicated in the letter
of authority he was referring to – see paragraph 59 above).
- The
Government commented, in their further submissions in reply to the
applicant's observations, that the allegation about the applicant's
practical difficulties in his communication with the Court was wholly
unsubstantiated, having referred, in particular, to his unimpeded
communication with his lawyer.
- While
neither the Government nor the applicant referred to this fact in
their exchange of observations as summarised above, the Court notes
that it received on the same date (6 July 2005) both the application
form and a letter of authority, by which the applicant authorised his
mother to represent his interests in the proceedings before the Court
(see paragraph 57 above). It emphasises that neither the Convention
nor the Rules impose any specific requirements on the manner in which
the authority form must be drafted. The form may be filled in a typed
form or by hand, by the applicant, by his representative or by any
third person. What is important for the Court is that the form of
authority should clearly indicate that the applicant has entrusted
his or her representation before the Court to a representative and
that the representative has accepted that commission (see Ryabov
v. Russia, no. 3896/04, § 43, 31 January 2008). In the
instant case this condition was met, as the standard authority form
distributed by the Court's Registry was signed by both the applicant
and his mother as his representative.
- In
the light of the above conclusion the Court dismisses the
Government's preliminary objection and does not consider it necessary
to analyse the exchange of further arguments between the parties.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE APPLICANT'S ALLEGED ILL-TREATMENT BY THE PRISON
WARDENS ON 9 JUNE 2004
- The
applicant complained that on 9 June 2004 he had been
subjected to unjustified and excessive beating by the staff of
Zhytomyr no. 8 Prison, which had resulted in his ribs' fractures. He
also complained that there had been no adequate investigation into
the matter. The applicant relied on Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government submitted that the applicant had not exhausted the
remedies available to him under domestic law as required by Article
35 § 1 of the Convention having failed to challenge, within the
seven days provided for by law, the investigator's decision of 19
April 2005 refusing to institute criminal prosecution of the
concerned prison staff. In support of their assertion that the
applicant had been duly informed about that decision the Government
produced a copy of the prosecutor's letter of 20 April 2005 addressed
to the applicant's mother.
- The
applicant disagreed. He maintained that neither he nor his
representative had been informed about the aforementioned decision
and therefore could not be reproached for not having challenged it.
His mother, who was his official representative at the time, denied
having received the letter from the Zhytomyr prosecutor referred to
by the Government. In any event, the applicant considered that the
issue of exhaustion of the domestic remedies was to be joined to the
merits of his complaint under the procedural limb of Article 3 of the
Convention.
- The
Court notes that that this objection on the part of the Government is
indeed closely linked to the applicant's complaint about the
ineffectiveness of the investigation into his ill-treatment
allegation. In these circumstances it considers that the objection
should be joined to the merits of the applicant's complaint (see, for
example, Yaremenko v. Ukraine (dec.), no. 32092/02,
13 November 2007, and Muradova v.
Azerbaijan, no. 22684/05, § 87,
2 April 2009).
- The
Court further notes that this complaint is not otherwise manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Alleged ill-treatment
- While
admitting that force was used against the applicant by prison wardens
on 9 June 2004, the Government submitted that it had been a
legitimate and non-excessive reaction to his unruly behaviour. They
contested, stating that it had been refuted by the documentary
evidence, the applicant's allegation that his two ribs had been
fractured as a result of the incident at issue.
- The
applicant maintained his complaints. With a reference to the expert
report of 10 September 2009 (see paragraph 36 above), he
contested the Government's view concerning the possible date of his
rib fractures as inconclusive.
- The Court notes that Article 3 of the Convention
enshrines one of the most fundamental values of a 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, as a recent reference, Kafkaris v. Cyprus
[GC], no. 21906/04, § 95, ECHR 2008 ...).
- At the same time, 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 depends on all the circumstances of the
case, such as the duration of the treatment, its physical or mental
effects and, in some cases, the sex, age and state of health of the
victim (see Ireland v. the United Kingdom, 18 January 1978,
§ 162, Series A no. 25).
- 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 Ribitsch v.
Austria, 4 December 1995, § 38, Series A no. 336,
and, for more recent case-law, Sheydayev v. Russia,
no. 65859/01, § 59, 7 December 2006).
- The
Court notes that the applicant sustained fractures of two ribs within
the prison's walls, which is not disputed by the parties. These
injuries, which were assessed by a forensic medical commission as
being of medium gravity (see paragraph 20 above), are sufficiently
serious to amount to ill-treatment within the meaning of Article 3
(see Suptel v. Ukraine,
no. 39188/04, § 48, 19 February 2009). It
remains to be considered whether the State should be held responsible
under Article 3 for these injuries.
- As
regards the circumstances in which the applicant suffered the
injuries, the Court is confronted with two different accounts of the
events given by the parties and with conflicting medical evidence as
regards the possible time of the applicant's injuries (see paragraphs
7, 8, 20 and 36 above). Furthermore, the case file contains a medical
report excluding an accidental fall from the possible causes of those
injuries, as well as the statements of the applicant's cell-mates
corroborating his allegation of an excessive use of force by the
staff of Zhytomyr no. 8 Prison (see paragraphs 18, 31 and 32 above).
- The
Court does not find it necessary under the circumstances to verify
the parties' accounts and to embark on the establishment of the facts
on its own, for the following reasons. As noted above, it is common
ground that the applicant sustained a serious injury while serving
his sentence in prison. That being so, it is incumbent on the State
to provide a plausible explanation of how those injuries were caused,
failing which a clear issue arises under Article 3 of the Convention
(see, mutatis mutandis, Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999 V). While in the present
case the state authorities denied any relation between the incident
of 9 June 2004 and the applicant's injuries, they failed to advance
any explanation whatsoever as to the origin of those injuries. The
Court cannot accept the Government's argument that the prison
administration was not aware of what had happened to the applicant,
as being deprived of his liberty he was subject to its control and
responsibility (see Satık and Others v. Turkey,
no. 31866/96, § 54, 10 October 2000). Moreover, as a
detainee, he was in a particularly vulnerable position and the
authorities were under a duty to protect his physical well-being (see
Vladimir Romanov v. Russia, no. 41461/02, § 57,
24 July 2008, with further references).
- Accordingly,
the Court concludes that the State is responsible under Article 3 of
the Convention on account of the applicant's ill-treatment in prison
and that there has thus been a violation of that provision.
2. Alleged inadequacy of the investigation
- The
Government expressed the view that the State authorities had
undertaken a prompt and thorough investigation of the applicant's
allegations, and the fact that the results yielded were unfavourable
for the applicant did not undermine its efficiency. They underlined
in that connection that the reopening of the investigation on two
occasions illustrated the best efforts aimed at ensuring its
completeness.
- The
applicant disagreed. He reproached the domestic authorities, in
particular, for his delayed X-ray (according to him, in
November 2004) and unjustified disregard for his cellmates'
statements corroborating his allegations. He viewed the repeated
remittals of the case for additional investigation as a proof of its
inefficiency.
- The Court reiterates that where an individual raises
an arguable claim that he or she has been seriously ill-treated by
the police in breach of Article 3, that provision, read in
conjunction with the States' 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 capable of leading to the identification and punishment
of those responsible (see Assenov and Others v. Bulgaria, 28
October 1998, § 102, Reports of Judgments and Decisions
1998 VIII, and Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000 IV). The minimum standards as to effectiveness
defined by the Court's case-law also include the requirements that
the investigation must be independent, impartial and subject to
public scrutiny, and that the competent authorities must act with
exemplary diligence and promptness (see, for example, Menesheva v.
Russia, no. 59261/00, § 67, ECHR 2006 III).
- In
the present case the Court has found that the respondent State is
responsible under Article 3 for the ill-treatment of the applicant
(see paragraph 84 above). The applicant's complaint in this regard is
therefore “arguable”, which means that the authorities
had an obligation to carry out an effective investigation into the
circumstances in which the applicant sustained his injuries (see
Krastanov v. Bulgaria, no. 50222/99, § 58,
30 September 2004).
- It
is not clear when the applicant raised the complaint about his
alleged ill-treatment before the domestic authorities for the first
time. Even assuming that it was no earlier than on 25 August
2004 (the date when the applicant's mother complained to the
prosecutor), the response of the authorities cannot be regarded as
prompt. Having regard to the findings of the medical report of 29
November 2004 and the prosecutor's conclusions in the decision of 2
April 2005 (see respectively paragraphs 20 and 27 above), the Court
does not accept the Government's assertion that the applicant was
X-rayed immediately after the incident of 9 June 2004.
According to the documentary evidence, it was not until November 2004
when he was X-rayed for the first time after the mentioned incident,
which is with a delay of five months (or three months if calculated
from 25 August 2004). As is stated in a later expert report
of 10 September 2009, which was produced at the request of
the applicant's lawyer and was not disputed by the Government (see
paragraph 36 above), such a delay undermined the ability of the
investigation to establish with precision the date of the applicant's
injuries, which was essential in the present case. That amounts to a
deficiency sufficient in itself for the investigation to fall foul of
the promptness and reasonable expedition standards (see, for example,
Mikheyev v. Russia, no. 77617/01, §§ 107 et
seq., 26 January 2006, and Assenov and Others, cited
above, § 102).
- The
Court does not lose sight of the criticism towards the domestic
investigation expressed by the Zhytomyr Prosecutor's Office in the
decisions of 28 October 2004 and 2 April 2005, by which the
investigator's refusals to institute criminal proceedings on the
applicant's complaint were quashed and additional investigation was
ordered. In both cases the investigation was criticised for its
failure to duly examine other inmates in the prison whose statements
might shed light on the events of 9 June 2004. It is true that
subsequently the investigator questioned two inmates with whom the
applicant had been sharing the cell as of 9 June 2004 and later (A.
and O.), and both of whom corroborated his account of the events. The
investigation however dismissed the statements of A. with the sole
explanation that it was “apparently aimed at discrediting the
prison administration”, while it disregarded without even
commenting the statement of the other inmate (see paragraphs 21 and
33 above). At the same time, the statements given by the prison
wardens were accepted as accurate and reliable. This is a selective
approach in the assessment of evidence by the investigating
authorities, which the Court has already criticised (see Antipenkov
v. Russia, no. 33470/03, § 69,
15 October 2009).
- Lastly,
but not less importantly, the Court notes that the domestic
investigation, although being confronted with an established fact
that the applicant had sustained multiple ribs' fractures in prison,
failed to establish what had in fact happened to him, which was not
seen as an obstacle however for dismissing his allegation of
ill-treatment as unsubstantiated.
- The
foregoing considerations provide sufficient basis for the Court to
conclude that the State authorities fell short of their obligation to
conduct an effective investigation into the applicant's allegations
of ill-treatment as required by Article 3 of the Convention.
- The
Court will examine now the Government's objection as to the
exhaustion of domestic remedies previously joined to the merits (see
paragraphs 72 and 74 above). First of all, it notes that although the
Government produced a copy of the prosecutor's letter of
20 April 2005 notifying the applicant's mother of the
decision about the refusal to institute criminal proceedings upon the
applicant's complaint of ill-treatment (see paragraph 34 above), it
was not post-marked and the Government put forward no other evidence
that this letter, together with the decision of 19 April 2005,
had actually been sent or otherwise delivered to the applicant or his
representative. The Court has already found in a similar situation
that under the circumstances the applicant could not be considered to
have been duly informed of the decision at issue, which was
sufficient for rejecting the Government's objection as to exhaustion
of domestic remedies (see Muradova, cited above, § 131).
In any event, had even the applicant been informed of the
aforementioned decision, the Court considers that he cannot be
reproached for not seeking repeated reopening of the investigation,
which is found it be ineffective (see paragraph 92 above and, for the
case-law, Yaremenko v. Ukraine, no. 32092/02, § 70,
12 June 2008).
- Accordingly,
the Court dismisses the Government's objection as to the exhaustion
of domestic remedies and finds that there has been a violation of
Article 3 of the Convention under its procedural limb as well.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE CONDITIONS OF THE APPLICANT'S DETENTION IN ZHYTOMYR
NO. 8 PRISON
- The
applicant also complained under Article 3 of the Convention that the
conditions of his detention in Zhytomyr no. 8 Prison were inadequate.
- According
to the Government, the applicant failed to raise these complaints, at
least in substance, before the prison administration, the State
Department of Enforcement of Sentences, the prosecution authorities
or courts. Therefore, he could not be regarded as having exhausted
the domestic remedies. In the alternative, the Government submitted
that these complaints were incompatible ratione personae with
the Convention provisions as being too vague and unspecified to the
applicant's personal situation.
- The
applicant disagreed. He noted that the domestic authorities were
sufficiently informed about his situation and had the opportunity to
examine the conditions of his detention, in particular following his
mother's complaint to the prison administration on 22 February 2005.
As to the Government's second objection, the applicant submitted that
the conditions of his detention did not differ from those of other
prisoners. Accordingly, he was under no obligation to specify his
personal case. In substantiation, the applicant referred to some
extracts from the CPT report following its visit to Zhytomyr no. 8
Prison in 2002 (see paragraph 65 above for the extracts relevant
for this case, which include those referred to by the applicant).
- The
Court does not find it necessary to address the Government's
objections concerning non-exhaustion and incompatibility ratione
personae, as the applicant's complaints concerning the conditions
of detention are in any event inadmissible for the reasons set out
below.
- The Court reiterates that, under Article 3 of the
Convention, the State must ensure that a person is detained in
conditions which are compatible with respect for his or her human
dignity, that the manner and method of the execution of the measure
do not subject the detainee to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention
and that the individual's health and well-being are adequately
secured. When assessing conditions of detention, account has to be
taken of the cumulative effects of those conditions and the duration
of the detention in the particular conditions (see Dougoz v.
Greece, no. 40907/98, § 46, ECHR 2001 II, and
Kalashnikov v. Russia, no. 47095/99, § 102, ECHR
2002 VI).
- In
the present case the applicant complained about the following issues:
the sanitary conditions in cells and wards; the lack of space; the
quality of the distributed food and the prices in the food shop; as
well as the qualification of the medical staff.
- The
Court notes that he provided neither factual details nor documentary
evidence in support of those complaints. The only substantiation
provided by the applicant was limited to selected extracts from the
CPT report.
- The
Court has not always required that an applicant support each and
every allegation with particular documents in cases concerning
complaints about detention conditions, recognising that relevant
information and possibilities to investigate the facts in such cases
lie primarily in the hands of the authorities. However, in order for
the Court to reverse the burden of proof and examine the merits of
the complaints, they must at least have been clearly and consistently
formulated (see, for example, Trepashkin v. Russia,
no. 36898/03, § 85, 19 July 2007).
- The
Court does not consider that the applicant's complaints concerning
the conditions of his detention have complied with that minimum
requirement. As it transpires from the facts of the case, as well as
from the CPT report (see paragraphs 18, 31 and 65 above), the
applicant changed cells quite often, which in itself he did not
complain about. He did not specify however about the conditions in
which cells (or the medical wards) he was complaining and for how
long he had been held there. Equally vague are his complaints about
the qualification of the medical staff and the quality of food, being
uncorroborated with any details or examples. As to the applicant's
submission about some dangerous ingredients being added to food, the
Court notes that it was a mere speculation and that the applicant did
not even allege having been personally affected.
- As regards the CPT report relied on by the applicant,
the Court accepts that its findings are relevant and provide at least
to some degree a reliable basis for the assessment of the conditions
of the applicant's detention before the introduction of his
application in 2004 (see Iovchev v. Bulgaria,
no. 41211/98, § 103, 2 February 2006, and Dvoynykh
v. Ukraine, no. 72277/01, § 64, 12 October 2006).
It observes however that the applicant chose to rely on some isolated
negative comments contained therein while disregarding the generally
positive conclusions concerning, in particular, the material
conditions of detention of life prisoners, praised efforts of the
staff to accommodate their hygienic needs, as well as the overall
progress in combating tuberculosis. As to the lack-of-space
allegation, the CPT noted that at the time of its visit (2002) the
prison's cells allocated for life prisoners were not full to the
limit of their capacity (accommodating 1,199 prisoners, while having
the capacity of 1,600 places). Although the actual space for some
prisoners could have been below the accepted standards, the Court
notes again that the applicant failed to specify whether, how, and
for how long it had been his case.
- It
is true that the CPT report raised some issues concordant with the
applicant's complaints. Namely, it criticised the restrictions on the
number of food parcels for life prisoners, the limited access to
supplies from the prison shop given the common lack of earnings, and
“slower progress with regard to the standard of food for
prisoners suffering from tuberculosis”.
- The
Court does not consider that those general problems as highlighted by
the CPT are sufficiently grave in the applicant's case to go beyond
the threshold tolerated by Article 3 of the Convention. It also
does not lose sight of the fact that on 28 December 2007 the
restriction on the number of food parcels for life prisoners was
lifted (see paragraph 64 above).
- As
regards the nutrition for prisoners suffering from tuberculosis, the
Court notes that, again, the applicant failed to provide any details,
while the CPT acknowledged some, albeit slow, progress in that
regard. On the facts of the case, the Court notes the following. In
March 2002 the applicant denied being sick with tuberculosis at all,
although he continued to receive medical treatment (see paragraphs 38
and 39 above). Later on, after his disease was confirmed in
April 2006, he was transferred for more than a year (from
4 December 2006 to 21 February 2008) to the
Kherson no. 61 Prison for specialised treatment (see paragraph
42 above), and he did not complain in his application about the
nutrition in that prison. Lastly, the Government provided documentary
evidence that after his return to Zhytomyr no. 8 Prison in
February 2008, the applicant received a special diet in the
framework of the recurrence prevention programme on a regular basis
in 2008 and 2009 (see paragraph 50 above). The Court therefore
considers that the complaint concerning the special
tuberculosis-related diet equally unsubstantiated.
- Having regard to all the foregoing, the Court
concludes that the applicant has not made up an arguable claim about
the incompatibility of his detention conditions in Zhytomyr no. 8
Prison with Article 3 of the Convention (see, for comparison, Ukhan
v. Ukraine, no. 30628/02,
§§ 65 66, 18 December 2008, and
Vergelskyy v. Ukraine,
no. 19312/06, §§ 89-91, 12 March 2009). It
therefore dismisses this complaint as manifestly ill-founded in
accordance with Article 35 §§ 3 and 4 of the Convention.
IV. THE REMAINDER OF THE APPLICATION
- With
a general reference to Articles 1, 2, 3, 6, 8, 9, 13, 17 and 34
of the Convention, the applicant complained that he had been wrongly
diagnosed with tuberculosis and subjected to forceful medical
treatment against his religious convictions. He also alleged
interference of the prison administration with his correspondence.
- However,
in the light of all the material before it, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the provisions the applicant relied on.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
V. 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 EUR 60,000 in respect of non-pecuniary damage.
- The
Government contested that claim.
- The
Court finds that the applicant must have suffered pain and distress
which cannot be compensated solely by the finding of a violation.
Having regard to the nature of the violations found in the present
case and ruling on an equitable basis, the Court awards the applicant
EUR 8,000 in respect of non pecuniary damage plus any tax
that may be chargeable.
B. Costs and expenses
- The applicant did not lodge any claim under this
head. The Court therefore gives no award.
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
- Dismisses the Government's objection concerning
the applicant's representation;
- Decides to join to the merits the
Government's objection as to the exhaustion of domestic remedies in
respect of the applicant's complaint under Article 3 of the
Convention concerning his alleged ill-treatment by the prison staff
and dismisses it after having examined the merits of that complaint;
- Declares admissible the complaints about the
applicant's alleged ill-treatment in prison and the lack of an
effective investigation into that allegation;
- Declares the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention under its substantive and procedural limbs;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,000
(eight thousands euros) in respect of non-pecuniary damage plus any
tax that may be chargeable, to be converted into the currency of the
respondent State at the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
