PREMININY v. RUSSIA - 44973/04 [2011] ECHR 252 (10 February 2011)

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European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> PREMININY v. RUSSIA - 44973/04 [2011] ECHR 252 (10 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/252.html
Cite as: [2011] ECHR 252, 31 BHRC 9, 62 EHRR 18, (2016) 62 EHRR 18

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FIRST SECTION

CASE OF PREMININY v. RUSSIA

(Application no. 44973/04)

JUDGMENT

STRASBOURG

10 February 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 Premininy v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 18 January 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 44973/04) 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 two Russian nationals, Mr Nikolay Anatolyevich Preminin and Mr Anatoliy Nikolayevich Preminin (“the applicants”), on 7 November 2004.

The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

On 9 July 2007 the President of the First Section decided to give notice of the application to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1981 and 1953 respectively and live in the town of Surgut in the Tyumen Region. They are son and father.

A. Criminal proceedings against the first applicant

On 19 January 2002 criminal proceedings were instituted against the first applicant. He was suspected of having broken into the online security system of an American bank, Green Point Bank (hereafter – the Bank), and having stolen the Bank’s client database. According to the prosecution, in November 2001 the first applicant contacted the Bank using a fake name. He demanded money in exchange for a promise not to publish the Bank’s database on the Internet. The Bank agreed to pay and the first applicant provided it with his real name and address. At the same time he published a part of the Bank’s database on the Internet. The Bank transferred 10,000 United States dollars to the first applicant.

At the beginning of April 2002 the first applicant was charged with aggravated extortion. He gave a written undertaking not to leave the town.

1. Arrest of the first applicant

On 23 April 2002 a deputy prosecutor general of the Russian Federation authorised the first applicant’s placement in custody on the ground that he had been charged with a serious criminal offence and was liable to pervert the course of justice, reoffend or abscond.

The first applicant was arrested on 7 May 2002 and placed in a detention ward at Surgut police station. On the following day he lodged a complaint with the Surgut Town Court challenging the grounds for his placement in custody. His lawyer submitted a separate complaint. On 9 May 2002 the first applicant was transferred to a detention facility in Tyumen.

On 24 May 2002 the Surgut Town Court declined to examine the first applicant’s and his lawyer’s complaints, noting that it did not have territorial jurisdiction over the matter. The Town Court advised the first applicant and his lawyer to lodge complaints with a court in Yekaterinburg.

2. Further complaints concerning the unlawfulness of detention

(a) Request for release of 11 July 2002

On 11 July 2002 the first applicant’s counsel, Mr Ch., lodged a complaint with the Surgut Town Court arguing that the first applicant’s arrest and detention were unlawful.

On 17 July 2002 the Surgut Town Court declined to examine the complaint giving the same reasons as those cited in its decision of 24 May 2002. On 20 August 2002 the Khanty-Mansi Regional Court upheld the Town Court’s findings.

(b) Complaint of 22 July 2002

On 22 July 2002 Mr Ch. complained to the Surgut Town Court that the first applicant’s arrest and subsequent detention were unlawful and asked for his release.

Three days later the Surgut Town Court declined to examine the complaint, once again relying on a lack of territorial jurisdiction. On 20 August 2002 the Khanty-Mansi Regional Court, acting in its appellate jurisdiction, confirmed the lawfulness of the Town Court’s decision.

3. Proceedings for application of compulsory measures of a medical nature to the first applicant

On 25 July 2002 the Sverdlovsk Regional Psychiatric Hospital carried out a psychiatric examination of the first applicant and issued an expert report. The relevant part of the report read as follows:

“... the psychiatric examination concludes that [the first applicant] is showing signs of brief reactive psychosis.

The examinee reports that the illness emerged after the offence, during his stay in the temporary detention facility where he developed strong feelings of fear and hopelessness accompanied by psychologically understandable feelings of depression as a result of additional traumatic experiences, systematic ill-treatment, and physical and psychological abuse inflicted on him by his fellow inmates. There is no information in the medical record concerning [the first applicant’s] mental health during his stay in the hospital of the temporary detention facility with concussion and broken ribs.

...

[The first applicant] cannot take part in any investigative or judicial activities.

[The first applicant] needs to be placed in a psychiatric hospital for compulsory treatment ... until his recovery from the psychosis ...”

On 28 September 2002 a deputy prosecutor of Surgut sent the case to the Surgut Town Court for trial. He noted that the first applicant was mentally ill, presented a danger to public safety and was liable to cause substantial damage. The deputy prosecutor argued that compulsory measures of a medical nature ought to be applied to the first applicant.

On 18 October 2002 the Surgut Town Court fixed the first hearing for 4 November 2002. It also examined a request from the second applicant seeking his son’s release or, alternatively, his transfer to a psychiatric hospital. The Town Court decided that the first applicant was to remain in custody because he had been charged with a serious criminal offence. However, he was to be transferred to the Tyumen Regional Psychiatric Hospital in view of the state of his mental health. The first applicant was placed in that hospital on 4 December 2002.

4. Re-examination of the detention order of 24 May 2002 and the trial proceedings

On 22 November 2002 the Presidium of the Khanty-Mansi Regional Court considered, by way of supervisory review, that on 24 May 2002 the Surgut Town Court had incorrectly applied the law and had wrongfully concluded that it had not had territorial jurisdiction over the matter of the first applicant’s detention. The Presidium quashed the decision of 24 May 2002 and sent the case to the Town Court for fresh examination.

In the meantime, on 3 December 2002 the Surgut Town Court found that the first applicant had committed aggravated extortion but absolved him of criminal responsibility finding that he was mentally incapacitated. The Town Court ordered that compulsory measures of a medical nature should be applied to the first applicant and that he should be placed in a psychiatric hospital for general care. The judgment was not appealed against and became final.

On 10 December 2002 the Surgut Town Court declined to re-examine the complaints of the first applicant and his lawyer that his arrest and detention were unlawful. The Town Court held that on 3 December 2002 it had examined the criminal case, found that the first applicant had committed aggravated extortion and ordered that he be placed in a psychiatric hospital. It had no competence to examine the subject of the applicant’s detention after the criminal case had been decided on its merits.

5. Re-examination of the detention order of 25 July 2002

On 24 October 2003 the Presidium of the Khanty-Mansi Regional Court, by way of supervisory review and giving the same reasons as it had given on 22 November 2002, quashed the decisions of 25 July and 20 August 2002 by which the lawyer’s request of 22 July 2002 for the first applicant’s release had been refused. The Presidium ordered an examination of the detention on its merits.

On 5 February 2004 the Surgut Town Court, having re-examined the lawyer’s complaint concerning the lawfulness of the first applicant’s detention, dismissed it finding that the criminal case had already been closed, the first applicant was being detained by virtue of the final judgment and the Town Court could no longer examine the matter.

On 30 March 2004 the Khanty-Mansi Regional Court quashed the decision of 5 February 2004 and ordered a fresh examination of the applicant’s detention. The relevant part of the decision read as follows:

“By virtue of Article 123 of the Russian Code of Criminal Procedure, parties to criminal proceedings and other persons, in so far as their interests have been affected by procedural actions and decisions, can appeal against [the] actions and decisions of a pre-trial investigation body, an investigator, an interviewing officer, a prosecutor or court in accordance with the procedure established by the present Code.

Article 125 of the Russian Code of Criminal Procedure sets forth the judicial procedure for an examination of such complaints.

Examination of the presented materials shows that the [town] court did not in fact examine the grounds for [the first applicant’s complaints] or check the lawfulness of the actions and decisions of the indicated persons.

The record of the court hearing does not show which materials were examined by the court.

The [town] court’s conclusion that the subject of the complaint no longer existed was not based on law; the fact that a court has given a judgment in a criminal case cannot serve as a ground for declining to examine the lawfulness of procedural actions and procedural decisions taken in the course of that criminal case and affecting the [first applicant’s] interests, [and cannot serve as a ground] for declining to examine the [first applicant’s] complaints.

Moreover, that complaint was lodged with the court long before the examination of the criminal case by the court.”

On 19 May 2004 the Surgut Town Court found that the first applicant’s arrest and subsequent detention had been lawful. The first applicant’s lawyer attended the hearing. However, the second applicant, despite having been properly summonsed, defaulted and did not notify the Town Court of the reasons for his absence.

On 21 July 2004 the Khanty-Mansi Regional Court upheld the decision on appeal.

6. Proceedings concerning the first applicant’s release from hospital

On 17 June 2003 Lebedyovskaya Psychiatric Hospital examined the first applicant and recommended that he be released from hospital because he no longer presented a danger to himself or the public. On 30 June 2003 the Director of Lebedyovskaya Psychiatric Hospital applied to the Surgut Town Court seeking the release of the first applicant.

On 4 July 2003 the Surgut Town Court sent the request to the Zavudkovskiy District Court, finding that the latter had territorial jurisdiction over the matter.

On 8 October 2003 the Zavudkovskiy District Court returned the case file to the Surgut Town Court noting that the matter should be examined in Surgut.

On 12 March 2004 the Presidium of the Khanty-Mansi Regional Court, by way of supervisory review, quashed the decision of 4 July 2003 and ordered the Surgut Town Court to examine the request for the first applicant’s release.

On 13 July 2004 Tyumen Regional Psychiatric Hospital carried out a psychiatric examination of the first applicant and considered that the conclusions reached by Lebedyovskaya Psychiatric Hospital on 17 June 2003 had been incorrect and that the first applicant should remain in a psychiatric hospital for further compulsory medical treatment.

On 2 September 2004 the Surgut Town Court dismissed the request for the release of the first applicant on the ground that the expert report of 17 June 2003 had been inconclusive, that on 13 July 2004 it had been found that the first applicant was still suffering from schizophrenia and had been considered in need of further compulsory psychiatric treatment. The decision was not appealed against and became final.

On 2 February 2005, following a new psychiatric examination of the first applicant and a request from Tyumen Regional Psychiatric Hospital, the Surgut Town Court authorised his release from hospital.

B. Ill-treatment of the first applicant in the temporary detention facility

1. Events of 10 June 2002

At the end of May 2002 the first applicant was transferred to Yekaterinburg no. 1 temporary detention facility and placed in cell no. 131. The cell housed four inmates. According to the first applicant, he was systematically humiliated and ill-treated by warders and detainees alike. On 10 June 2002 his cellmates, acting upon an order of the administration of the detention facility, severely beat him up with long wooden sticks which they had received from the warders.

The Government disputed the first applicant’s version of events, arguing that on the night of 9 June 2002 the first applicant had initiated a conflict with one of his cellmates, calling him names. A fight broke out and the first applicant received injuries. The Government insisted that the first applicant’s allegations of the authorities’ instigating role in the dispute were not supported by any evidence.

The Government submitted medical certificate no. 226 drawn up in the detention facility on 10 June 2002 following an examination of the first applicant by a prison doctor. It appears from the certificate that the prison doctor diagnosed the first applicant with concussion and numerous abrasions to his arms, legs, back, shoulders, face and ears and prescribed him bed rest. The doctor also noted that the first applicant had received those injuries over a period of a week in cell no. 131. The first applicant was transferred to the medical unit of the detention facility on the afternoon of 10 June 2002.

According to a copy of the facility’s logbook produced by the Government, on the morning of 10 June 2002 an officer on duty made an entry in the log of an incident involving the first applicant and listed his injuries.

On 11 June 2002 the acting director of detention facility no. 1, having examined the information about a possible offence committed against the first applicant, refused to institute criminal proceedings. He found that on 10 June 2002 the first applicant had had a heated argument with one of his cellmates, Mr K. The latter had kicked the first applicant once in the stomach, as a result of which the first applicant had fallen, having hit his head and back against a wall. The first applicant had got back to his feet and attempted to strike back, but was stopped by two other cellmates who broke up the fight. The director of the facility also noted that, when questioned about the incident, the first applicant had confirmed that he had verbally assaulted Mr K. and asked that criminal proceedings against the latter not be instituted. The two remaining cellmates gave similar descriptions of the incident. A copy of the director’s decision of 11 June 2002 was served on the first applicant and sent to the Sverdlovsk Regional Prosecutor’s Office to verify that the domestic law had been properly applied in the case.

In April 2004 the second applicant was appointed the legal guardian of the first applicant. On 21 April 2004 he complained to the Sverdlovsk Regional Prosecutor’s Office about the decision of 11 June 2002.

On 16 August 2004 the Sverdlovsk Regional Prosecutor quashed the decision of 11 June 2002 finding that it had been issued “prematurely” and ordered an additional investigation into the first applicant’s complaints. The prosecutor also noted that the first applicant suffered from a serious mental illness impairing his legal capacity and that in those circumstances his alleged request that no proceedings be instituted against cellmate K. should not have had any legal implications.

On 18 August 2004 the administration of the temporary detention facility refused to institute criminal proceedings in respect of the first applicant’s complaint of ill-treatment on the ground that the statutory limitation period had expired. That decision was quashed on 14 December 2004 and an additional investigation was authorised.

On 24 December 2004 an assistant to the Sverdlovsk Regional Prosecutor refused to institute criminal proceedings against Mr K. because the statutory limitation period of two years had expired on 10 June 2004 and Mr K. could no longer bear criminal responsibility. In his decision the assistant also listed statements by warders who had insisted that the first applicant had had a dispute with Mr K. The latter had beaten up the first applicant. The fight had been stopped by the two other cellmates. The warders had not asked the cellmates to threaten the first applicant or to beat him up. At the same time, Mr K. retracted his previous statements and claimed that he had not beaten up the first applicant. The other two inmates were not questioned because their whereabouts were unknown. A copy of the decision of 24 December 2004 was served on the second applicant.

The Government submitted that on 29 August 2007 the decision of 24 December 2004 had been quashed by a higher-ranking prosecutor and the investigation was now pending.

2. Events of 14 June 2002

The first applicant complained that he had been systematically beaten up by warders. He claimed that on 14 June 2002 the warders had broken three of his ribs.

The Government argued that on the night of 14 June 2002 the first applicant had fallen over on his way to the lavatory, breaking two ribs.

As can be seen from a copy of the first applicant’s medical record drawn up in detention facility no. 1 and submitted by the Government, on 14 June 2002 the first applicant was examined by a neurologist and the head of the detention facility’s medical unit. They noted an injury to the first applicant’s chest and authorised a chest X-ray. The X-ray was taken on 18 June 2002 and showed that the first applicant had two broken ribs on his right side. Four days later the first applicant was again examined by the facility doctors, who noted his anxious state. The doctors recorded that the first applicant had refused to remain in his cell, had been disorientated and inert, and had not given proper responses to their questions. Following a further medical examination on 24 June 2002 the doctors noted that the first applicant had had difficulty formulating sentences and concentrating, that his reactions had been slow and that he had constantly stared straight ahead. A psychiatric examination of the first applicant was recommended.

On 21 June 2002 the director of the facility closed an investigation into the cause of the first applicant’s injury, finding that he had broken his ribs when falling over in a cell on 14 June 2002. The decision was based on statements by the first applicant’s three cellmates who had insisted that no force had been used against him. The director also noted that it had been impossible to interview the first applicant as his behaviour had been strange and he had not answered the questions put to him owing to the poor state of his mental health. A copy of the director’s decision was served on the first applicant and sent to the Sverdlovsk Regional Prosecutor for verification.

On 21 April 2004 a deputy to the Sverdlovsk Regional Prosecutor quashed the decision of 21 June 2002 and ordered an additional investigation, having found that it was necessary to carry out a forensic medical examination of the first applicant and to question his cellmates and the warders. The deputy prosecutor stated that his decision was a response to information received on 21 June 2002 from the director of detention facility no. 1 about a possible criminal offence.

On 30 April 2004 a senior inspector, having concluded that on 14 June 2002 the first applicant had slipped, fallen to the floor and injured himself, found that the complaint was unsubstantiated. The decision was based on evidence collected during the internal investigation carried out by the administration of the detention facility in June 2002. In addition, the senior investigator relied on a report by forensic medical experts who had studied the first applicant’s medical documents in April 2004 and concluded that there was insufficient evidence to confirm that the first applicant had had broken ribs.

On 14 December 2004 the decision of 30 April 2004 was quashed and an additional investigation was ordered.

On 24 December 2004 an assistant of the Sverdlovsk Regional Prosecutor refused to institute criminal proceedings against the warders, finding no prima facie case of ill-treatment. The assistant’s decision was based on the statements of one of the first applicant’s cellmates, a warder and a medical assistant who had examined the first applicant on 22 June 2002. The first applicant’s cellmate stated that he had fallen over. He had had no visible injuries, but had complained of being in pain. The warder, while noting that conflicts among detainees had been very frequent and that it was impossible to remember each and every one of them, insisted that no force had been used against the first applicant on any occasion. The medical assistant stated that prior to his placement in the detention facility’s medical unit on 22 June 2002 the first applicant had acted aggressively towards other inmates and provoked, in turn, aggressive actions towards himself.

The assistant was unable to locate and question the first applicant’s other cellmates.

It appears from the Government’s submissions that the decision of 24 December 2004 was quashed on 29 August 2007. A fresh investigation appears to be pending now.

II. RELEVANT DOMESTIC LAW

A. Investigation into criminal offences

The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) provides that a criminal investigation can be initiated by an investigator or a prosecutor upon a complaint by an individual or on the investigative authorities’ own initiative where there are reasons to believe that a crime has been committed (Articles 146 and 147). The prosecutor is responsible for the overall supervision of the investigation (Article 37). He or she can order specific investigative measures, transfer the case from one investigator to another or order an additional investigation. If there are no grounds upon which to initiate a criminal investigation, the prosecutor or investigator shall give a reasoned decision to that effect, which must be brought to the attention of the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction in accordance with a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions given by investigators and prosecutors that might infringe the constitutional rights of parties to proceedings or prevent access to court.

B. Authorities’ response to alleged instances of ill-treatment in detention facilities

Russian law sets out detailed guidelines for the detention of individuals in temporary detention facilities. These guidelines are found in Ministry of Justice Decree no. 189 on Internal Regulations of Temporary Detention Facilities (“the Decree”), enacted on 14 October 2005. In particular, Section II of the Decree provides that an investigation should be carried out into the circumstances in which a detainee has sustained injuries. Case-file materials drawn up as part of the investigation into the circumstances of a possible offence should be transferred to a prosecutor’s office which has to take a decision on the institution or refusal to institute criminal proceedings in compliance with the requirements of the Russian Code of Criminal Procedure (paragraph 16 of Section II).

C. Supervision by prosecution authorities in detention facilities

Chapter III of the Prosecutor’s Offices Act (Federal Law no. 2202-I of 17 January 1992) identifies the jurisdiction and powers of prosecution authorities in the field of prosecution supervision. In particular, if information about a possible violation of Russian law is received, prosecution authorities should carry out their supervisory function. Prosecutors are authorised to monitor the enforcement of the Russian Constitution and laws by various federal and local authorities and their officials, including the administrations of detention facilities (section 21). They should also ensure that the rights and freedoms of detained individuals are respected in places of detention. In performing their task prosecutors should respond to information about possible violations of human rights and freedoms and take measures to prevent or eliminate such violations, bringing those responsible to justice, which can include instituting administrative or criminal proceedings and awarding damages (sections 26, 27 and 32). While supervising the work of the administration of a detention facility, prosecutors are to demand that the administration creates conditions in which the rights and freedoms of detained individuals are fully respected, to check that the administration’s decisions comply with domestic legal norms and to receive additional explanations from officials of the detention facility if needed (section 33).

III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS

The complexity and importance of prevention of violence in detention facilities, specificity of procedures to be employed by facility administration addressing inter-prison violence and necessity of special care, including psychiatric care, of detainees was discussed by the European Committee for the Prevention of Torture in its General Reports. The following are the extracts from the Reports:

A. 2^nd General Report of the European Committee for the Prevention of Torture [CPT/Inf (92) 3]

“54. Effective grievance and inspection procedures are fundamental safeguards against ill-treatment in prisons. Prisoners should have avenues of complaint open to them both within and outside the context of the prison system, including the possibility to have confidential access to an appropriate authority. The CPT attaches particular importance to regular visits to each prison establishment by an independent body (eg. a Board of visitors or supervisory judge) possessing powers to hear (and if necessary take action upon) complaints from prisoners and to inspect the establishment’s premises. Such bodies can inter alia play an important role in bridging differences that arise between prison management and a given prisoner or prisoners in general.

55. It is also in the interests of both prisoners and prison staff that clear disciplinary procedures be both formally established and applied in practice; any grey zones in this area involve the risk of seeing unofficial (and uncontrolled) systems developing. Disciplinary procedures should provide prisoners with a right to be heard on the subject of the offences it is alleged they have committed, and to appeal to a higher authority against any sanctions imposed. Other procedures often exist, alongside the formal disciplinary procedure, under which a prisoner may be involuntarily separated from other inmates for discipline-related/security reasons (eg. in the interests of "good order" within an establishment). These procedures should also be accompanied by effective safeguards. The prisoner should be informed of the reasons for the measure taken against him, unless security requirements dictate otherwise1, be given an opportunity to present his views on the matter, and be able to contest the measure before an appropriate authority.”

B. 3^rd General Report [CPT/Inf (93) 12]

“ii) psychiatric care

41. In comparison with the general population, there is a high incidence of psychiatric symptoms among prisoners. Consequently, a doctor qualified in psychiatry should be attached to the health care service of each prison, and some of the nurses employed there should have had training in this field.

The provision of medical and nursing staff, as well as the layout of prisons, should be such as to enable regular pharmacological, psychotherapeutic and occupational therapy programmes to be carried out.

42. The CPT wishes to stress the role to be played by prison management in the early detection of prisoners suffering from a psychiatric ailment (eg. depression, reactive state, etc.), with a view to enabling appropriate adjustments to be made to their environment. This activity can be encouraged by the provision of appropriate health training for certain members of the custodial staff.”

C. 11^th General Report [CPT/Inf (2001) 16]

“Staff-prisoner relations

26. The cornerstone of a humane prison system will always be properly recruited and trained prison staff who know how to adopt the appropriate attitude in their relations with prisoners and see their work more as a vocation than as a mere job. Building positive relations with prisoners should be recognised as a key feature of that vocation.

Regrettably, the CPT often finds that relations between staff and prisoners are of a formal and distant nature, with staff adopting a regimented attitude towards prisoners and regarding verbal communication with them as a marginal aspect of their work. The following practices frequently witnessed by the CPT are symptomatic of such an approach: obliging prisoners to stand facing a wall whilst waiting for prison staff to attend to them or for visitors to pass by; requiring prisoners to bow their heads and keep their hands clasped behind their back when moving within the establishment; custodial staff carrying their truncheons in a visible and even provocative manner. Such practices are unnecessary from a security standpoint and will do nothing to promote positive relations between staff and prisoners.

The real professionalism of prison staff requires that they should be able to deal with prisoners in a decent and humane manner while paying attention to matters of security and good order. In this regard prison management should encourage staff to have a reasonable sense of trust and expectation that prisoners are willing to behave themselves properly. The development of constructive and positive relations between prison staff and prisoners will not only reduce the risk of ill-treatment but also enhance control and security. In turn, it will render the work of prison staff far more rewarding.

Ensuring positive staff-inmate relations will also depend greatly on having an adequate number of staff present at any given time in detention areas and in facilities used by prisoners for activities. CPT delegations often find that this is not the case. An overall low staff complement and/or specific staff attendance systems which diminish the possibilities of direct contact with prisoners, will certainly impede the development of positive relations; more generally, they will generate an insecure environment for both staff and prisoners.

It should also be noted that, where staff complements are inadequate, significant amounts of overtime can prove necessary in order to maintain a basic level of security and regime delivery in the establishment. This state of affairs can easily result in high levels of stress in staff and their premature burnout, a situation which is likely to exacerbate the tension inherent in any prison environment.

Inter-prisoner violence

27. The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks.

Tackling the phenomenon of inter-prisoner violence requires that prison staff be placed in a position, including in terms of staffing levels, to exercise their authority and their supervisory tasks in an appropriate manner. Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE BEATINGS BY INMATES

The applicants complained that the first applicant had been systematically humiliated and beaten up by his cellmates, the most serious incident having occurred on 10 June 2002, and that there had not been an effective investigation into the events. The Court will examine this complaint from the standpoint of the State’s obligations flowing from Article 3, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Submissions by the parties

The Government first submitted that the second applicant could not be regarded as a victim of the alleged violations as he had not been personally affected by the situation. They insisted that his complaints should therefore be dismissed as being incompatible ratione personae within the meaning of Article 35 § 3 of the Convention. The Government further argued that the first applicant’s complaints were also inadmissible. In the Government’s opinion the first applicant’s failure, prior to his being pronounced legally incompetent, to complain to a prosecution authority or court that he was being beaten up, as well as the second applicant’s reluctance for two years to appeal against the decision of 10 June 2002, should be interpreted by the Court as a failure to exhaust domestic remedies contrary to the requirements of Article 35 § 1 of the Convention.

In addressing the merits of the applicants’ complaints, the Government stressed that the first applicant’s injuries had been caused by a private individual for whom the State did not bear any responsibility. They maintained that there was no evidence that the fight between the first applicant and his cellmate had been initiated or in any way provoked by the administration of the detention facility. At the same time the facility administration had taken all possible steps to ensure detainees’ safety. In particular, the facility lights were not turned off at night and warders occasionally checked that order was maintained in the cells. They submitted, however, that conflicts among detainees occurred quite often and could not be entirely prevented by any system of control or security, no matter how efficient. The Government concluded by stating that the administration of the detention facility had carried out an investigation into the events of 10 June 2002, having questioned the warders and the first applicant’s cellmates and having examined medical documents. There was no evidence that the decision of the facility administration not to institute criminal proceedings had been manifestly ill-founded or unlawful.

The applicants disputed the Government’s description of the circumstances in which the first applicant had sustained his injuries. In particular, relying on medical certificate no. 226 drawn up on 10 June 2002, they argued that the medical personnel who had examined the first applicant on the morning of 10 June 2002 had considered his version of systematic beatings by his cellmates to be a plausible one and had recorded this in the first applicant’s medical notes. Furthermore, forensic medical experts, while assessing the state of the first applicant’s mental health in July 2002, also accepted that systematic ill-treatment of the first applicant in the detention facility had been the underlying cause of the deterioration of his mental health. The applicants submitted that the first applicant’s poor mental health should be taken into account when assessing the issue of exhaustion of domestic remedies. They further noted that once the second applicant had learned of the first applicant’s ill-treatment in 2004 he had immediately complained to the domestic authorities.

B. The Court’s assessment

1. Admissibility

The Court notes that the Government raised two major objections against the admissibility of the applicants’ complaint. In particular, they argued that the second applicant did not have standing in the proceedings before the Court as he was personally unaffected by the events under examination. They further submitted that the applicants had failed to exhaust domestic remedies as the first applicant had never raised an issue of ill-treatment before any domestic authorities and the second applicant had not appealed against the decision of 10 June 2002 until more than two years later.

(a) Victim status

As to the question whether both applicants can be regarded as “victims” within the meaning of Article 34 of the Convention, the Court reiterates that there must be a sufficiently direct link between an applicant and the damage which he or she claims to have sustained as a result of the alleged violation in order for that applicant to be able to claim that he or she is the victim of a violation of one or more of the rights and freedoms recognised by the Convention and its Protocols (see Smits and Others v. the Netherlands (dec.), nos. 39032/97, 39343/98, etc., 3 May 2001).

The Court observes that the second applicant was not directly affected by the matters complained of. He was neither present at or affected by the events of June 2002 nor a direct party to the investigation carried out by the domestic authorities into the events in question. Furthermore, he never argued that he himself had sustained any damage as a result of his son’s situation. The Court notes that the complaints before it concern the allegation that the first applicant had been ill-treated in the detention facility and that there had been no effective investigation into the matter, in breach of Article 3 guarantees. In these circumstances the Court does not consider that the second applicant can claim to be a victim of violations of that Convention provision in the sense of Article 34 of the Convention (see O’Reilly and Others v. Ireland (dec.), no. 54725/00, 4 September 2003). It follows that his complaint under Article 3 of the Convention in respect of the events of June 2002 is thus incompatible ratione personae with the Convention’s provisions and must be dismissed pursuant to Article 35 § 4 of the Convention.

(b) Exhaustion of domestic remedies

(i) General principles

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against a State before the Court to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention (with which it has close affinity), that there is an effective remedy available in respect of the alleged breach in the domestic system, whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).

Under Article 35 of the Convention, an applicant should normally have recourse to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Johnston and Others v. Ireland, 18 December 1986, § 22, Series A no. 112). Article 35 also requires that complaints made before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Cardot v. France, 19 March 1991, § 34, Series A no. 200).

Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact been used, or was for some reason inadequate or ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement.

The Court emphasises that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot, cited above, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-68, Reports of Judgments and Decisions 1996 IV).

(ii) Application of the general principles to the present case

The Court notes that the Government’s objection is twofold. They argued that the first applicant had not complained of ill-treatment even when he had still been legally competent to do so. In addition, they submitted that the second applicant, being the legal representative of the first applicant, had waited for two years before raising the issue of ill treatment before the prosecutor’s office.

Turning to the circumstances of the present case, the Court observes that on 11 June 2002 the director of the detention facility gave a decision refusing to open a criminal investigation into the beatings of the first applicant. The decision was served on the first applicant and then sent to the Sverdlovsk Regional Prosecutor’s Office for supervision (see paragraph 36 above). It was not until 16 August 2004, that is, more than two years after the events in question, that the Regional Prosecutor quashed the decision of 11 June 2002 and authorised an additional investigation into the events (see paragraph 38 above). The Court accepts the Government’s argument that there is no evidence that the first applicant has ever raised a complaint of ill treatment before any domestic authority. However, it does not find this situation surprising given the manner in which the ensuing events developed. In particular, the Court observes that merely days after the decision of 11 June 2002 the medical personnel of the detention facility made a record of the first applicant’s strange behaviour, noting his anxious state, disorientation and inertness, as well as his inability to concentrate, respond to questions or formulate sentences in an organised manner (see paragraph 44 above). Similar comments regarding the first applicant’s ability to express his opinion were made by the director of the detention facility when he had attempted to question the first applicant about the events of 14 June 2002 (see paragraph 45 above). Following a psychiatric examination of the first applicant on 25 July 2002, which diagnosed a serious mental disorder, the first applicant was declared legally incompetent. The Court attributes particular weight to the fact that the psychiatrists considered the first applicant to be mentally incapable of taking part in investigative or judicial activities (see paragraph 14 above). In these circumstances the Court is convinced that there exists clear and conclusive evidence that the first applicant’s state of mental health hindered his ability to steer his way through the complaints procedure and prevented him from applying to the competent domestic authorities with a complaint of ill-treatment (see, by contrast, Peters v. Germany, no. 25435/94, Commission decision of 20 February 1995). Having found that the first applicant could not have been reasonably expected to exhaust the national channels of redress, the Court dismisses this part of the Government’s objection.

The Court further notes the Government’s argument that, even if the first applicant’s mental health had precluded him from applying to the domestic authorities, it was for the second applicant, the legal guardian of the first applicant, to step in and promptly challenge the decision of 11 June 2002, thus notifying the domestic authorities of a possible violation of his son’s rights. In this connection the Court observes that, as it can be seen from the parties’ submissions, the second applicant applied to the prosecutor’s office with a complaint of ill-treatment as soon as he had acquired legal status as the first applicant’s representative, received access to the case file and had grounds to make a complaint (see paragraph 37 above). As a result, the decision of 11 June 2002 is no longer in force, having been quashed on 16 August 2004 by a decision of the Sverdlovsk Regional Prosecutor’s Office which authorised a fresh investigation. That investigation is still pending, having been closed and reopened on a number of occasions following the second applicant’s successful complaints to higher-ranking prosecutors. The domestic authorities were therefore afforded ample opportunity to remedy the alleged violation of the first applicant’s rights. In these circumstances the Court is unable to accept the Government’s objection that the second applicant’s alleged failure to appeal for two years against the decision of 11 June 2002 rendered the first applicant’s Article 3 complaint inadmissible (see, for similar reasoning, Samoylov v. Russia, no. 64398/01, § 45, 2 October 2008).

(c) The Court’s decision on the admissibility of the complaint

The Court notes that this complaint of the first applicant 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

The Court observes that the first applicant drew his complaint in two directions, laying blame on the authorities of the respondent State for the incitement of ill-treatment and humiliation to which he was allegedly subjected by his cellmates while at the same time suggesting that, even if this systematic ill-treatment had not been organised by State agents, the authorities knew or ought to have known that he had been at risk of physical violence at the hands of his cellmates and failed to take appropriate measures to protect him against that risk. In this connection, the Court notes that there is no evidence in the file capable of founding an “arguable claim” of any direct involvement of State agents in the first applicant’s beatings. There is no indication that violence against the first applicant was, in any way, permitted by the facility administration.

However, the absence of any direct State involvement in acts of violence that meet the condition of severity such as to engage Article 3 of the Convention does not absolve the State from its obligations under this provision. The Court reiterates that the engagement undertaken by a Contracting State under Article 1 of the Convention is confined to “securing” the listed rights and freedoms to persons within its own “jurisdiction” (see Soering v. the United Kingdom, 7 July 1989, § 86, Series A no. 161).

It is true that, taken together, Articles 1 and 3 place a number of positive obligations on the High Contracting Parties, designed to prevent and provide redress for torture and other forms of ill-treatment. Thus, in A. v. the United Kingdom (23 September 1998, § 22, Reports 1998-VI) the Court held that, by virtue of these two provisions, States are required to take certain measures to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals (see, for similar reasoning, Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, § 98, ECHR 2005-VII (extracts), and M.C. v. Bulgaria, no. 39272/98, § 149, ECHR 2003-XII). In Aksoy v. Turkey (18 December 1996, § 98, Reports 1996-VI) it was established that Article 13 in conjunction with Article 3 imposes an obligation on States to carry out a thorough and effective investigation of incidents of torture and, in Assenov and Others v. Bulgaria (28 October 1998, § 102, Reports 1998 VIII), the Court held that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and 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. Such a positive obligation cannot be considered to be limited solely to cases of ill-treatment by State agents (see Denis Vasilyev v. Russia, no. 32704/04, § 99, 17 December 2009).

Admittedly, it goes without saying that the obligation on States under Article 1 of the Convention cannot be interpreted as requiring a State to guarantee through its legal system that inhuman or degrading treatment is never inflicted by one individual on another or, if it has been, that criminal proceedings should necessarily lead to a particular punishment. However, it has been the Court’s constant approach that Article 3 imposes on States a duty to protect the physical well-being of persons who find themselves in a vulnerable position by virtue of being within the control of the authorities, such as, for instance, detainees or conscripted servicemen (see Chember v. Russia, no. 7188/03, § 50, 3 July 2008; Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005; Jalloh v. Germany [GC], no. 54810/00, § 69, ECHR 2006-IX; and Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX).

Article 3 also requires that authorities conduct an effective official investigation into any alleged ill-treatment even if such treatment has been inflicted by private individuals (see Ay v. Turkey, no. 30951/96, § 60, 22 March 2005, and M.C. v. Bulgaria, cited above, § 151). Even though the scope of a State’s positive obligations might differ between cases where treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals (see Beganović v. Croatia, no. 46423/06, § 69, ECHR 2009 ... (extracts)), the requirements for an official investigation are similar. For the investigation to be regarded as “effective”, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. Authorities must take the 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, and a requirement of promptness and reasonable expedition is implicit in this context (see, among many other 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 1998-VIII). In cases under Articles 2 and 3 of the Convention where the effectiveness of the official investigation has been at issue, the Court has often assessed whether the authorities reacted promptly to the complaints at the relevant time (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000 IV). Consideration has been given to the opening of investigations, delays in taking statements (see Timurtaş v. Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin v. Turkey, 9 June 1998, § 67, Reports 1998-IV) and to the length of time taken for the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001).

(b) Application of the above-mentioned principles to the circumstances of the present case

The Court observes that the present complaint which the first applicant raised under Article 3 of the Convention in fact poses two separate but interconnected questions: the credibility of his version of events and the gravity of the ill-treatment to which he was allegedly subjected, and the State’s accountability for that treatment.

(i) Obligation of the State to prevent ill-treatment or mitigate its harm

(α) Establishment of the facts and assessment of the severity of the ill-treatment

The Court notes that the facts were disputed by the parties. In particular, the first applicant argued that for at least a week prior to the culmination of the events on 10 June 2002 he had been systematically humiliated and assaulted by his cellmates in cell no. 131. On 10 June 2002 he had been brutally attacked by his cellmates, sustaining concussion and numerous injuries to his body. The Government averred that the first applicant’s injuries had resulted from a one-off fight between the first applicant and his cellmate K., in which the latter had kicked the first applicant in the stomach.

The Court reiterates that for the treatment to fall within the scope of Article 3 of the Convention it must attain a minimum level of severity. The assessment of this minimum is, by nature, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, amongst many other authorities, Soering, cited above, § 100). Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see T. v. the United Kingdom [GC], no. 24724/94, § 69, 16 December 1999).

The Court further 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 under 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).

Turning to the circumstances of the present case, the Court observes that on the morning of 10 June 2002 the first applicant was examined by a prison doctor who recorded numerous injuries to his arms, legs, back, shoulders, face and ears and also diagnosed him with concussion. The doctor’s conclusion was that the injuries resulted not from a sporadic occurrence but were evidence of systematic beatings sustained within the week preceding the medical examination. The first applicant was recommended bed rest (see paragraph 34 above). The parties do not dispute that those injuries as recorded in medical certificate no. 226 were sustained by the first applicant during his detention, that is, when he was under the full control of the administration of Yekaterinburg no.1 detention facility.

The Court is not convinced by the Government’s argument that the first applicant’s injuries resulted from a one-off fight with his cellmate K. It observes that the first applicant alleged that he had suffered physical and psychological abuse at the hands of his cellmates in cell no. 131 for over a week. It appears that attacks on the first applicant were initiated almost immediately after his transfer to that cell (see paragraph 32 above). The Court notes that the Government contested the first applicant’s allegations and argued that they were false and unsubstantiated. They submitted that the first applicant’s injuries as recorded in medical certificate no. 226 had resulted from a blow to the stomach he had received from cellmate K. and the subsequent fall he had taken after hitting his head and back against a wall. The Court considers that the Government’s explanation sits ill with the nature and location of the first applicant’s injuries. It does not lose sight of the prison doctor’s finding that the first applicant had numerous injuries covering a substantial surface of his body, although no injuries to his stomach were recorded (see paragraph 34 above). The Court finds, and this finding is also supported by the prison doctor’s opinion (see paragraph 34 above), that the description of the first applicant’s injuries corresponds to physical sequelae from systematic beatings rather than to injuries sustained as a result of a single blow and the subsequent collision of the first applicant with a concrete wall. The Court further observes that a forensic psychiatric examination of the first applicant carried out on 25 July 2002 revealed a strong link between the deterioration of his mental health and a psychologically traumatic experience encountered by the first applicant through systematic ill-treatment and physical and psychological abuse in detention. The Court is therefore bound to conclude that the first applicant was a victim of systematic ill-treatment at the hands of his cellmates which lasted for at least a week.

The Court further finds that all the injuries recorded in the medical certificate and the first applicant’s statements regarding the ill-treatment to which he had been subjected in detention establish the existence of physical and undoubtedly mental pain and suffering. The acts complained of were such as to arouse in the first applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and emotional resistance. This conclusion is supported by the experts’ finding that physical and psychological abuse led to the first applicant feeling afraid, depressed and hopeless (see paragraph 14 above). An important element to be taken into consideration is also the long-term consequences of the ill-treatment on the first applicant’s mental health (see paragraphs 14 and 16 above). The Court also attaches great importance to the first applicant’s young age at the time of the events, which made him particularly vulnerable at the hands of his aggressors. Having regard to the nature and degree of the ill-treatment and its effect on the first applicant’s mental health, the Court finds that there are elements which are sufficiently serious to render such treatment inhuman and degrading contrary to the guarantees of Article 3 of the Convention. It therefore remains to determine whether the State authorities can be held accountable for the ill-treatment of which the first applicant was a victim.

(β) State responsibility: supervision and control system in detention

The Court notes that the Government refused to take any responsibility for the ill-treatment in question, arguing that there had been no failing or omission on the part of the detention facility administration. They submitted that the State could neither be implicated in instigating a conflict between the inmates nor accused of failing to take all necessary steps to prevent the occurrence of such a conflict. In the Government’s opinion, violence was an inevitable element of prison life and its existence was not related to the efficiency of the system of supervision and control existing in a detention facility.

In this connection, the Court firstly reiterates that Article 3 enshrines one of the most fundamental values of democratic societies and, in accordance with this notion, prohibits in absolute terms torture and inhuman or degrading treatment or punishment (see, among other authorities, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V). It imposes an obligation on the Contracting States not only to refrain from provoking ill-treatment, but also to take the necessary preventive measures to preserve the physical and psychological integrity and well-being of persons deprived of their liberty (see Mouisel v. France, no. 67263/01, § 40, ECHR 2002 IX, and Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001 III). At the same time the Court has consistently interpreted that obligation in such a manner as not to impose an impossible or disproportionate burden on the authorities (see Pantea v. Romania, no. 33343/96, § 189, ECHR 2003 VI (extracts)). The Court has also stated that the scope of the State’s positive obligation under Article 3 must be compatible with the other rights and freedoms under the Convention (see Keenan, cited above, §§ 89-91).

Having regard to the absolute character of the protection guaranteed by Article 3 of the Convention and given its fundamental importance in the Convention system, the Court has developed a test for cases concerning a State’s positive obligation under that Convention provision. In particular, it has held that to successfully argue a violation of his Article 3 right it would be sufficient for an applicant to demonstrate that the authorities had not taken all steps which could have been reasonably expected of them to prevent real and immediate risks to the applicant’s physical integrity, of which the authorities had or ought to have had knowledge. The test does not, however, require it to be shown that “but for” the failing or omission of the public authority the ill-treatment would not have occurred. The answer to the question whether the authorities fulfilled their positive obligation under Article 3 will depend on all the circumstances of the case under examination (see Pantea, cited above, §§ 191-96). The Court also reiterates that State responsibility is engaged by a failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm to the applicant (see E. and Others v. the United Kingdom, no. 33218/96, §§ 89-101, 26 November 2002). The Court therefore has to establish whether, in the circumstances of the present case, the authorities knew or ought to have known that the first applicant was suffering or at risk of being subjected to ill-treatment at the hands of his cellmates, and if so, whether the administration of the detention facility, within the limits of their official powers, took reasonable steps to eliminate those risks and to protect the first applicant from that abuse.

The Court notes the Government’s argument that the authorities could not have foreseen a sporadic fight breaking out between the first applicant and his cellmate K. They stressed that conflicts among detainees were not rare and therefore there existed no means of eliminating them entirely. In this connection, the Court notes that it is the State’s utmost responsibility to prevent and address violence among inmates in prisons in accordance with its obligation to respect, protect and fulfil the right of individuals not to be subjected to torture or to inhuman or degrading treatment or punishment.

Furthermore, the Court has already made a finding on the materials before it, which are uncontroverted, that the first applicant suffered systematic abuse at the hands of his cellmates. The acts of violence against the first applicant continued for at least a week (see paragraph 80 above). The materials before the Court also disclose the authorities’ knowledge of the situation. In particular, as can be seen from the decision of 24 December 2004 given by the assistant prosecutor of the Sverdlovsk Region, the administration of the detention facility was aware of the acts of violence against the first applicant, which they considered to be a response to his own aggressive behaviour (see paragraph 49 above). Irrespective of the cause of the abuse which the first applicant suffered, the Court is of the opinion that the authorities, apprised of the first applicant’s allegedly provocative behaviour, could have reasonably foreseen that such behaviour rendered him more vulnerable than an average detainee. The authorities should have enquired into the first applicant’s psychological state, having considered that, in view of his relatively young age, background and no previous experience of the criminal justice system, the detention could have exacerbated his feeling of distress, already inherent in any measure of deprivation of liberty, making him more prone to episodes of anger and irascibility, which he allegedly manifested against other inmates (see, for similar reasoning, Pantea, cited above, § 192). Moreover, apart from a general knowledge that the first applicant was at risk of violence as a consequence of his unconventional behaviour, the administration of the detention facility could not but have noticed actual signs of abuse, as it was not disputed by the parties that at least part of the first applicant’s injuries were visible. In this situation the Court takes the view that even if the facility administration was not immediately aware of the first attack inflicted on the first applicant, within a few days they should have been alerted to the fact that the first applicant had been subjected to ill-treatment and that there was cause to introduce specific security and surveillance measures to prevent him being the subject of continual verbal and physical aggression.

The Court notes that responding to prison violence requires prompt action by facility staff, including ensuring that the victim is protected from further abuse and can access the necessary medical and mental health services. Such response should include the coordination of security staff, forensic, medical, and mental health practitioners and facility management. However, in the present case, notwithstanding the existence of a serious risk to the first applicant’s well-being, no specific and prompt security or surveillance measures were introduced at the detention facility. In particular, there is no evidence in the materials submitted by the parties that the administration of the detention facility had ever considered the specific details of the first applicant’s personal situation in their choice of co-detainees to place in his cell (see, for similar reasoning, Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, § 71, 27 May 2008). In fact, it appears that the management of the detention facility lacked a clear policy on the classification and housing of detainees, key to promoting internal prison security and preventing prison violence. The Court reiterates that a proper classification system which includes screening for the risk of victimisation and abusiveness, consideration of the traits known to place someone at risk and of an individual’s own perception of vulnerability is critical to ensuring that potential predators and potential victims are not housed together (see, also for guidance, paragraph 54 above).

Furthermore, there is no indication that the facility administration attempted to monitor, on a regular basis, the conduct of inmates prone to being violent or those who were at risk of being subjected to violence. Nor is there evidence that disciplinary measures were taken against the offenders. As to the monitoring, the Court is not satisfied that keeping the lights on at night and having cells occasionally checked on by warders were sufficient measures to enhance inmate security, and, in particular, to protect the first applicant from continual abuse. The Government, however, did not suggest any other protective measures which could have prevented further attacks on the first applicant. In respect of the disciplinary action, the Court is not convinced that the facility administration adhered to a standardised policy of punishments for inmates who perpetrated abuse. The absence of such a policy shows that prison violence was not taken as seriously as other crimes and that the facility administration allowed detainees to act with impunity to the detriment of the rights of other inmates, including the right guaranteed by Article 3 of the Convention.

At the same time, what is more striking is that it was not until the incident of 10 June 2002, which the first applicant described as the culmination of the ill-treatment, that he was removed from the cell where he had been subjected to systematic assault. The Court attributes particular weight to this fact in view of the absence of any other mechanisms for promoting inmates’ security in the detention facility. The Court also finds it regrettable that the facility administration did not make any meaningful attempts to provide the first applicant with psychological rehabilitation in the aftermath of the events.

In sum, the facility administration did not maintain a safe environment for the first applicant, having failed to detect, prevent or monitor, and respond promptly, diligently and effectively to the systematic inhuman and degrading treatment to which he had been subjected by his cellmates. The Court therefore concludes that the authorities did not fulfil their positive obligation to adequately secure the physical and psychological integrity and well-being of the first applicant.

Accordingly, there has been a violation of Article 3 of the Convention in this respect.

(ii) Obligation to investigate

The Court holds that medical evidence of serious damage to the first applicant’s health, together with his allegation of being subjected to systematic beatings by his cellmates, amounted to an “arguable claim” of ill-treatment. Accordingly, the authorities had an obligation to carry out an effective investigation into the events. For the purposes of its further analysis, the Court refers to the requirements as to the effectiveness of an investigation set out in paragraph 74 above.

The Court notes that the first applicant was entirely reliant on the prosecuting authorities to assemble the evidence necessary to corroborate his allegation of ill-treatment. The prosecutor had the legal powers to interview the warders and inmates, visit the scene of the incident, collect forensic evidence and take all other crucial steps for the purpose of establishing the veracity of the first applicant’s account. The prosecutor’s role was critical not only to the pursuit of criminal proceedings against the perpetrators of the offence but also to the pursuit by the first applicant of other remedies to redress the harm he had suffered (see paragraph 51 above).

The Court observes, firstly, that the competent prosecution authorities were particularly slow in opening a criminal investigation into the alleged ill-treatment. The situation was initially addressed by the acting director of the detention facility who on 11 June 2002, the day following the most serious incident of ill-treatment, gave a decision finding no cause to take any action. In this connection the Court has serious doubts as to the ability of the facility’s administration to carry out an independent investigation as required by Article 3. The initial one-day investigation was closed on the basis of the unreasonable finding that the first applicant had had a sporadic fight with his cellmate K. and that the first applicant had had no intention of pressing charges. That decision was sent to the Sverdlovsk Regional Prosecutor’s Office in compliance with the established procedure. It was more than two years later that the prosecution authorities responded, having quashed the decision of 11 June 2002 as premature. An additional investigation into the events of June 2002 was authorised. However, the initial delay in opening the investigation resulted in a loss of precious time and made it impossible to secure evidence of the incident. That failure also made it impossible to bring the perpetrators to justice owing to the expiry of the statutory limitation period.

The Court notes the Government’s argument that it was the second applicant’s failure to appeal against the decision of 11 June 2002 that had led to the prosecution’s futile attempts to investigate the events. In this respect, the Court does not lose sight of the fact that Russian law entrusts prosecution authorities with a function of supervision over decisions of the management of detention facilities, particularly those which concern instances of alleged ill-treatment of detainees. The authorities must act of their own motion, once the matter has come to their attention, and they cannot leave it to the initiative of the victims or their relatives (see paragraphs 52 and 53 above). It appears that by not linking the obligation to investigate to the presence of a complaint, that legal provision has been designed to protect the interests of detainees, individuals in a vulnerable situation who, owing to intimidation and fear of reprisal, are not inclined to complain of unlawful actions committed against them in detention. The fact that the investigation was only initiated after the second applicant’s complaint that the decision of 11 June 2002 was unlawful is evidence of a manifest breach of the applicable procedures by the prosecution authorities in the present case.

The Court is also not convinced that, once instituted, the proceedings were conducted in a diligent manner. The responsibility for the investigation was transferred from the prosecution authorities to the facility administration and back to the prosecution authorities. Within a period of four months two decisions not to institute criminal proceedings were given, only to be subsequently quashed by supervising prosecutors. The decisions ordering the reopening of the proceedings consistently referred to the need for further and more thorough investigation. However, this direction was not followed by the investigators in charge of the case, and the decisions to discontinue the proceedings were based on identical evidence and reasoning. It appears that the authorities took no meaningful steps to ensure, as far as possible, that all the facts were established, that culpable conduct was exposed and that those responsible were held accountable. The scope of the investigation has not evolved over time to include verification of new versions of events, such as the one that the first applicant was systematically beaten up in cell no. 131 and that a number of his co-detainees had been involved. The Court also notes that the investigation is currently pending without any evidence of progress being made.

In the light of the very serious shortcomings identified above, the Court concludes that the investigation was not prompt, expeditious or sufficiently thorough. The Court accordingly holds that there has been a violation of Article 3 of the Convention under its procedural limb in that the investigation into the first applicant’s allegations of systematic ill-treatment by inmates in detention facility no. 1 in Yekaterinburg was not effective.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF EVENTS OF 14 JUNE 2002

The first applicant, relying on Article 3 of the Convention, complained that he had been severely beaten up by warders on 14 June 2002 and that the investigation had not led to the punishment of those responsible.

A. Submissions by the parties

The Government again argued that the complaint of the first applicant should be dismissed for failure to exhaust domestic remedies, as neither he nor the second applicant had made use of the avenues available to them under the Russian law. In particular, the Government once again stressed that the first applicant had never raised his grievances before any domestic authority and the second applicant had delayed his appeal against the decision of 21 June 2002.

In the alternative, they submitted that the complaint was manifestly ill-founded as no evidence of ill-treatment of the first applicant on account of the events of 14 June 2002 had been established by the domestic investigating authorities. The only injuries discovered during the medical examination of the first applicant were two broken ribs which, as it was unequivocally found by the investigating authorities, had been the result of the fall the first applicant had taken when, feeling unwell and dizzy owing to concussion, he had slipped and fallen to the concrete floor. The first applicant had, therefore, failed to prove “beyond reasonable doubt” that he had been subjected to ill-treatment. Having addressed the quality of the investigation, the Government noted that it had been effective and efficient. They stressed that, being questioned on 14 June 2002 the first applicant had acted “strangely”, refused to answer the warders’ questions and failed to exercise his rights, to complain about the ill-treatment and to assist the investigators in establishing the exact circumstances leading to his injury.

The first applicant maintained his complaints.

B. The Court’s assessment

1. Admissibility

The Court reiterates that in dealing with the allegations of the first applicant’s ill-treatment by his cellmates it has addressed the Government’s non-exhaustion argument which was built along the same lines. The Court has dismissed the objection, having found that the state of the first applicant’s mental health precluded him from effectively raising his grievances before the competent domestic authorities. It has also not escaped the Court’s attention that the investigation, reopened at the second applicant’s request as soon as he had acquired the legal authority to complain, is still pending, thus rendering the Government’s non-exhaustion argument devoid of substance (see paragraphs 66-68 above).

The Court sees no reason to depart from the above-mentioned finding. It observes that the same considerations which led it to the decision to dismiss the Government’s non-exhaustion argument raised in respect of the admissibility of the applicants’ complaint of ill-treatment by his cellmates govern its decision to reject the similar objection within the examination of the admissibility of the present complaint.

The Court further 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) Alleged ill-treatment by warders

Having examined the parties’ submissions and all the material presented by them, the Court finds it established that on 14 June 2002 the first applicant, detained in the medical unit of the detention facility, was examined by a neurologist and the head of the medical unit. Having recorded an injury to the first applicant’s chest, the doctors prescribed a chest X-ray which, taken four days later, revealed that the first applicant had two broken ribs on his right side (see paragraph 44 above).

The Court notes that the Government, relying on the findings of the domestic investigating authorities, argued that the first applicant’s injury had been caused by a fall. They explained that the fall had been purely accidental and occurred when the first applicant had slipped over in a cell. The first applicant did not provide any description of the events on 14 June 2002 save for a general statement that the injury had been caused by warders in the detention facility. The Court observes that the medical evidence before it does not allow either version of events to be excluded. It is particularly mindful of the expert findings in April 2004 which called into question the nature of the first applicant’s chest injury (see paragraph 47 above). While noting the inconclusive character of the first applicant’s injury, the Court further observes that there was no other evidence of ill-treatment, such as testimony by an independent witness, which could have provided support to the applicant’s version of events on 14 June 2002. At the same time the Court attributes particular weight to the fact that the Government’s submissions were corroborated by statements by the three inmates detained together with the applicant in the facility medical unit (see paragraph 45 above).

It follows that the material in the case file does not provide an evidential basis sufficient to enable the Court to find “beyond reasonable doubt” that the first applicant was subjected to the alleged ill-treatment on 14 June 2002 (see, for similar reasoning, Gusev v. Russia (dec.), no. 67542/01, 9 November 2006; Toporkov v. Russia, no. 66688/01, §§ 43 45, 1 October 2009; and, most recently, Maksimov v. Russia, no. 43233/02, §§ 97-99, 18 March 2010). Accordingly, the Court cannot but conclude that there has been no violation of Article 3 of the Convention under its substantive limb.

(b) Alleged inadequacy of the investigation

The Court considers that the medical evidence, the first applicant’s complaint of ill-treatment, and the fact that he had already alleged being assaulted in detention together raise a reasonable suspicion that his chest injury may not have been self-inflicted. The first applicant’s complaint in this regard is therefore “arguable”. The authorities thus had an obligation to carry out an effective investigation into the circumstances in which the first applicant sustained that injury (see Krastanov v. Bulgaria, no. 50222/99, § 58, 30 September 2004).

The Court notes that the investigation into the events of 14 June 2002 was riddled with the same defects as those which the Court identified in the investigation into the first applicant’s allegations of systematic ill treatment by his cellmates (see paragraphs 93-97 above). In particular, it observes that following the refusal of the facility director to initiate criminal proceedings on 21 June 2002, the prosecution authorities launched the investigation almost two years later when the chance of collecting any evidence of alleged ill-treatment was almost illusory. As to the very fact of 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 which were to be 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-..., and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). Furthermore, the Court would like to stress at this juncture that it is struck by the fact that, despite relying on the warders’ and inmates’ statements in the decision of 30 April 2004, the investigator did not hear evidence from them in person and merely recounted the witnesses’ statements made during the internal investigation. 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, the discovery of 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.

The Court is also struck by the fact that it was not until December 2004 that the investigator questioned one of the first applicant’s cellmates. The excerpts from the cellmate’s testimony were included for the first time in the decision of 24 December 2004. Owing to the significant length of the investigation the authorities could no longer locate other former inmates who had been detained with the first applicant in the medical unit of the detention facility. The Court also finds it inexplicable that in disregard of direct orders from the Sverdlovsk Regional Prosecutor the investigator did not make any attempt to question the warders, save for one, who could have witnessed the events of 14 June 2002. In this connection, the Court notes that while the investigating authorities may not have been provided with the names of individuals who could have witnessed the first applicant’s alleged beatings or provided other valuable information, they were expected to take steps on their own initiative to identify possible eyewitnesses.

In addition, no attempt was ever made to promptly conduct a forensic medical examination of the first applicant. 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). When a doctor writes a report after examining a person who has alleged ill-treatment, it is extremely important that the doctor states the degree of consistency with the history of ill-treatment. A conclusion indicating the degree of support for the alleged history of ill-treatment should be based on a discussion of different possible diagnoses (injuries not relating to ill-treatment including self-inflicted injuries and diseases) (see Barabanshchikov v. Russia, no. 36220/02, § 59, 8 January 2009). The forensic medical examination performed in April 2004 did not comply with the above-mentioned requirements. The experts only studied medical evidence drawn up in the aftermath of the events of 14 June 2002 and made conclusions without observing the first applicant. In this connection, the Court has doubts that an expert examination carried out almost two years after the events in question could have provided valid and valuable findings as to the origin and nature of the first applicant’s injuries. The indecisive character of the experts’ conclusions supports this finding by the Court.

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 14 June 2002.

The Court further observes that, having been opened almost two years after the alleged incident of ill-treatment, the investigation became very lengthy. The Court finds it striking that for a period of almost three years between December 2004 and August 2007 there were no further developments. The investigation is still pending, having been reopened in August 2007. The Government did not indicate what progress had been made since August 2007 and also failed to provide any explanation for the length of the criminal proceedings.

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. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

The first applicant complained that he had been denied effective judicial review of his application for release of 22 July 2002 as it had not been examined speedily by the domestic courts. The Court considers that the present complaint falls to be examined under Article 5 § 4 of the Convention, which reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A. Submissions by the parties

The Government stressed that the Russian courts had lawfully declined to examine the lawyer’s application for release as the first applicant had been transferred to a detention facility in another town and the courts no longer had jurisdiction over the case.

The first applicant averred that the Presidium of the Khanty-Mansi Regional Court had declared the lower courts’ interpretation of the jurisdictional issue to be incorrect and had quashed their decisions. The Presidium’s decision led to the re-examination of the first applicant’s detention. The proceedings therefore lasted for almost a year.

B. The Court’s assessment

1. Admissibility

The Court observes 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

The Court reiterates that Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful. Although it does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention, a State which institutes such a system must in principle accord to detainees the same guarantees on appeal as at first instance (see Navarra v. France, 23 November 1993, § 28, Series A no. 273-B, and Toth v. Austria, 12 December 1991, § 84, Series A no. 224). The requirement that a decision be given “speedily” is undeniably one such guarantee and Article 5 § 4, concerning issues of liberty, requires particular expedition (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 79, ECHR 2003-IV). In that context, the Court also observes that there is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because the defendant should benefit fully from the principle of the presumption of innocence (see Iłowiecki v. Poland, no. 27504/95, § 76, 4 October 2001).

(b) Application of the general principles to the present case

The Court observes that on 20 August 2002 the Khanty-Mansi Regional Court upheld the decision of the Surgut Town Court dismissing the lawyer’s complaint of 22 July 2002 by which the latter petitioned for the release of the first applicant. On 24 October 2003 the Presidium of the Khanty-Mansi Regional Court, having found that the reasoning by the lower instances was erroneous, quashed both decisions by way of supervisory review and authorised the detention to be re-examined. On 21 July 2004 the Regional Court, ruling at final instance, confirmed the lawfulness of the first applicant’s arrest and subsequent detention.

The Court therefore finds that the domestic proceedings in issue were pending from 22 July to 20 August 2002 (see paragraphs 12-13. above) and from 24 October 2003 to 21 July 2004 (see paragraphs 20-24 above) (see, mutatis mutandis, Chevkin v. Russia, no. 4171/03, §§ 32-34, 15 June 2006). It thus took the domestic courts almost ten months to examine the request for release. Nothing suggests that the first applicant or his lawyer caused delays in the examination of the request. The Court considers that the period under examination cannot be considered compatible with the “speediness” requirement of Article 5 § 4, especially taking into account that its entire duration was attributable to the authorities (see, for example, Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006; Khudoyorov, cited above, §§ 198 and 203; and Rehbock v. Slovenia, no. 29462/95, §§ 85-86, ECHR 2000-XII, where review proceedings which lasted twenty-three days were not “speedy”).

Furthermore, the Court cannot overlook the fact that the final decision was taken on 21 July 2004, that is, almost twenty months after the trial court had determined the merits of the criminal case against the first applicant. The Court finds that the issue of the speediness of review in the present case overlaps with the issue of its effectiveness. The Court considers that in the circumstances of the case the authorities’ failure to review without delay the lawfulness of the first applicant’s detention deprived, in principle, the review of the requisite effectiveness (see Sabeur Ben Ali v. Malta, no. 35892/97, § 40, 29 June 2000; Galliani v. Romania, no. 69273/01, §§ 61-62, 10 June 2008; and, most recently, Eminbeyli v. Russia, no. 42443/02, § 57, 26 February 2009).

The Court therefore finds that there has been a violation of Article 5 § 4 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

124. The Court has examined the other complaints submitted by the applicants. 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.

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 first applicant claimed 300,000 euros (EUR) in respect of non pecuniary damage.

The Government submitted that the claim was unsubstantiated, excessive and manifestly ill-founded.

The Court reiterates, firstly, that the first applicant cannot be required to furnish any proof of the non-pecuniary damage he sustained (see Gridin v. Russia, no. 4171/04, § 20, 1 June 2006). The Court further observes that it has found particularly grievous violations in the present case. The Court accepts that the first applicant suffered humiliation and distress on account of the ill-treatment inflicted on him by his cellmates. In addition, he did not benefit from an adequate and effective investigation into his complaints of ill-treatment. In these circumstances, it considers that the first applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Nevertheless, the particular amount claimed appears excessive. Making its assessment on an equitable basis, it awards the first applicant EUR 40,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

The first applicant did not claim any amount for the costs and expenses incurred before the domestic courts or before the Court. Consequently, the Court does not make any award under this head.

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

Declares the first applicant’s complaints concerning his ill-treatment by inmates and warders in the first half of June 2002, the ineffectiveness of the investigations into both incidents and absence of effective judicial review of the application for his release lodged on 22 July 2002 admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to fulfil their positive obligation to adequately secure the physical and psychological integrity and well-being of the first applicant in detention facility no. 1 in Yekaterinburg;

Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to investigate effectively the incidents of the first applicant’s ill-treatment by his cellmates in detention facility no. 1 in Yekaterinburg;

Holds that there has been no violation of Article 3 of the Convention on account of the first applicant’s allegations of ill-treatment by warders on 14 June 2002;

Holds that there has been a violation of Article 3 of the Convention on account of the authorities’ failure to investigate effectively the first applicant’s complaint of ill-treatment by warders;

Holds that there has been a violation of Article 5 § 4 of the Convention on account of the domestic courts’ failure to examine speedily and effectively the application for release lodged on 22 July 2002;

Holds

(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 40,000 (forty thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on the date of settlement, plus any tax that may be chargeable on that amount;

(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 first applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PREMININY v. RUSSIA - 44973/04 [2011] ECHR 252 (10 February 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/252.html Cite as: [2011] ECHR 252, 31 BHRC 9, 62 EHRR 18, (2016) 62 EHRR 18