CASE OF ARTYOMOV v. RUSSIA
Violations of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 13;Violation of Art. 6-1;No violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
6. The applicant was born in 1973 and lived until his arrest in the town of Gvardeysk, Kaliningrad Region. 7. On 8 September 1999 the Gvardeyskiy District Court of the Kaliningrad Region found the applicant guilty of aggravated blackmail and sentenced him to five years' imprisonment. 8. In separate proceedings, on 16 November 2000 the Supreme Court of the Russian Federation, in the final instance, convicted the applicant of disruption of order in a detention facility and sentenced him to ten years' imprisonment. 9. From 16 August 1998 to 14 April 1999 the applicant was detained in Kaliningrad no. IZ-39/1 detention facility. According to the applicant, that detention facility was built in 1929 and no construction works to the cells have been carried out since. 10. According to certificates issued on 20 December 2005 by the director of the facility and produced by the Government, the applicant was kept in twenty-two different cells which measured 7.8, 14 and 31.1 square metres. The Government submitted that the information on the exact number of inmates detained together with the applicant was not available. They noted that the cells could have occasionally been overcrowded, but at all times the applicant had had an individual bunk and bedding. Relying on the information provided by the director of the facility, the Government further argued that the sanitary conditions in the cells were satisfactory. 11. The applicant did not dispute the cell measurements. However, he alleged that the cells which measured 14 square metres had had ten sleeping places and usually had housed from 24 to 30 inmates. The smaller cells had either six or eight sleeping places and accommodated from 14 to 22 detainees. Given the lack of beds, inmates had slept in shifts. The applicant further submitted that the sanitary conditions had been appalling. 12. On 12 June 2002 the applicant lodged an action against facility no. IZ-39/1 and the Ministry of Finance, seeking compensation for damage. He described the conditions of his detention in minute detail and claimed that his detention had amounted to torture. He also sought leave to appear before the court. 13. On 17 June 2002 the Tsentralniy District Court of the Kaliningrad Region refused leave to appear because the domestic law did not require the applicant's presence. A month later the applicant again unsuccessfully sought leave to appear and asked to be assisted by legal aid counsel, arguing that he had no means to pay for legal assistance. 14. On 15 July 2002 the Tsentralniy District Court dismissed the action because the applicant had failed to prove that the facility administration had been liable for damage allegedly caused to him and he had not produced evidence showing that his rights had been violated. That judgment was quashed by the Kaliningrad Regional Court on 13 November 2002. The case was remitted for fresh examination. 15. On 21 January 2003 the applicant received a letter from a judge of the Tsentralniy District Court informing him that he could not be granted leave to appear as the law did not allow a transfer of detainees from facilities where they are serving their sentence to enable them to take part in civil proceedings. The judge noted that the District Court had no right to bring the applicant to the hearing, as his regime of detention would be violated. The judge further informed the applicant that he could appoint a representative or authorise the District Court to examine the action in his absence. 16. On 28 February 2003 the Tsentralniy District Court, in the applicant's absence, dismissed the action. The relevant part of the judgment read as follows: “[The applicant] was not brought to the hearing because the law on civil procedure does not prescribe the transport of prisoners who serve sentence in detention facilities to court hearings to allow them to take part in examination of civil cases. [The applicant] did not want to make use of his right to issue a power of authority to a representative to ensure his participation in the examination of the case; he was duly informed about the date and time of the hearing. ... As it follows from information presented on 27 February 2003 by the administration of detention facility no. IZ-39/1, cell no. 4/19 [where the applicant was detained] measures 14 square metres; it is impossible to establish how many inmates were detained in the cell as such data were not recorded. Mr S. [who was detained together with the applicant] indicates in his claim that the cells in which he had been detained had been overcrowded. As it follows from [the applicant's] detention record he was detained in 22 different cells during his detention. The above-mentioned circumstances attest to the fact that there is no objective, true and sufficient evidence corroborating [the applicant's] statement that two square metres [of personal space] were afforded to each three inmates. Moreover, funds were not provided from the federal budget for the construction of the second building of the detention facility between 1998 and 2000. According to certificate no. 1397 issued on 2 July 2002 by the Department for Execution of Sentences, due to lack of funds reconstruction and major repair works were not carried out in the detention facility in 1998 and 1999. By virtue of Article 1069 of the Civil Code of the Russian Federation, damage caused to an individual by unlawful actions (omissions) of State authorities, municipal authorities or their officials is to be compensated and is compensated at the expense of the Treasury of the Russian Federation, treasuries of the constitutive entities of the Russian Federation or treasuries of the municipal authorities respectively. Taking into account the above-mentioned circumstances, the court concludes that having regard to the lack of funds in the federal budget for the reconstruction and major repair works of the detention facility and to the fact that [the applicant's] arrest was authorised by a prosecutor, the actions of the administration of detention facility no. IZ-39/1 pertaining to [the applicant's] placement and detention in the facility had a lawful character and complied with requirements of the law; thus, the respondents do not bear responsibility under Article 1069 of the Civil Code of the Russian Federation. ... By virtue of Article 151 of the Civil Code of the Russian Federation, if an individual sustained non-pecuniary damage (physical and moral sufferings) as a result of actions which violated his personal non-pecuniary rights or which encroached on his other non-pecuniary interests or in other cases which are prescribed by law, a court may order that the adversary should compensate non-pecuniary damage. As it was indicated above, the respondents are not those who caused damage due to the overcrowding in the detention facility cells; lack of repair works; [the applicant] contracting a skin rash; the deterioration of [the applicant's] eyesight; as to [the applicant's] allegations of insufficient food, lighting and provision of essentials, they were refuted by the case file materials; accordingly, the court dismisses [the applicant's] action.” 17. The applicant lodged an appeal statement, complaining, inter alia, that he had not been afforded an opportunity to attend the hearings before the District Court and thus he had been unable to argue his case effectively. The applicant sought leave to appear before the appeal court. 18. On 4 June 2003 the Kaliningrad Regional Court upheld the judgment of 28 February 2003, endorsing the reasons given by the District Court. The relevant part of the judgment read as follows: “As to [the applicant's] claims of overcrowding in the cells in which he was detained and inability to shower at least once a week, as prescribed by the Rules on Internal Order, those allegations were confirmed; at the same time, those violations of the detention rules did not have a gross and malicious character amounting, as [the applicant] claimed, to torture. For instance, [the applicant] could shower every ten days in view of the throughput capacity of the bathhouse; that fact cannot be considered a serious violation of [the applicant's] rights. As it follows from a certificate submitted by the facility administration to the court, during the period indicated by [the applicant] from 1,600 to 1,800 persons were detained in the facility, while the maximum permitted number of inmates was 1,015. In such circumstances, the cells in fact occasionally accommodated more inmates than was permitted, however the [permitted] number was not exceeded threefold as [the applicant] claimed. At the same time the [District] Court rightfully considered that there was no guilt on the part of the detention facility in such circumstances, as the facility did not have the right not to admit the detainees when the maximum capacity of the facility had been exceeded. The [District] Court lawfully found that there were no grounds for accepting [the applicant's] action for compensation for non-pecuniary damage as the responsibility under Article 1069 of the Civil Code of the Russian Federation only arises on the condition of guilt on the part of the State authorities, which is absent in the present case. ... The court cannot accept [the applicant's] argument that his right to defence was violated. Norms of the Code of Civil Procedure (in force at the material time) do not require transport of detainees to courts which examine civil cases. The [District] Court informed [the applicant] of his right to participate in a court hearing through his representative, however, [the applicant] did not want to make use of that right. His requests for appointment of legal aid counsel also could not be granted by the [District] Court because there is no norm in the Code of Civil Procedure which requires Bar Associations to represent interests of such persons in civil cases. At the same time, nothing precluded [the applicant] from asking a Bar Association to represent him.” The applicant was not brought to the appeal hearing. 19. On 19 April 2000 the applicant was transferred from a colony where he was serving his sentence pursuant to the judgment of 8 September 1999 to facility no. IZ-39/1 to take part in the trial on the charge of disruption of order in the colony. He remained in facility no. IZ-39/1 until 26 September 2000. 20. According to the applicant, he was detained in a number of cells. He provided description of the two cells: cell no. 79 which measured 17 square metres, had 10 sleeping places and accommodated 18 to 24 inmates, and cell no. 29, which measured 10 square metres, had six sleeping places and accommodated 15 inmates. The inmates took turns to sleep. The applicant argued that the sanitary conditions in the cells had been unsatisfactory. The ventilation system did not function, making the heat in summer unbearable. The cells were permanently lit by 40-watt bulbs. The toilet was not separated by a partition from the living area. At no time did the applicant have complete privacy. Anything he happened to be doing – using the toilet, sleeping – was subject to observations by the guard. He could shower twice a month. Of the ten shower heads only five worked and a large group of inmates had to fight for a place to shower within the afforded fifteen minutes. The cells were dirty, damp and full of insects. 21. The Government, relying on certificates issued by the director of the detention facility on 15 July 2009, argued that the applicant had been detained in eight different cells, of which six cells measured between 7.7 and 7.9 square metres and had two sleeping places and the remaining two cells measured 13.4 and 16.7 square metres and were fit to accommodate three inmates. The Government submitted that the number of inmates in the cells had always corresponded to the number of bunks. As follows from a certificate issued by the facility director, the information on the exact number of inmates detained together with the applicant was unavailable as the registration logs had been destroyed. 22. The Government further submitted that each cell had a glazed window 1.2 metre high and 0.9 metre wide, which was covered by thick bars with so-called “eyelashes”, that is, slanted plates approximately two centimetres apart welded to a metal screen, which gave no access to natural air or light. In compliance with the recommendations of the Russian Ministry of Justice issued on 25 November 2002, the latter construction was removed from the windows before March 2003. According to the Government the sanitary conditions were satisfactory. The cells were ventilated and had a central heating system, water supply, sewerage, natural and electric lighting and sanitary equipment. The applicant had free access to drinking water. The toilet was separated by a one-metre-high partition from the living area of the cell. The electric lighting was constantly on for surveillance and safety reasons. At night lower-voltage bulbs were used. The cells were disinfected at least once a month. The applicant was afforded an opportunity to shower every ten days for no less than fifteen minutes. He was provided with an individual bed, mattress, pillow and bed linen. 23. On 9 June 2003 the applicant sued facility no. IZ-39/1 and the Kaliningrad Regional Department of the Federal Treasury for compensation for damage. In his statement of claim he gave a detailed account of the conditions of his detention from 19 April to 26 September 2000. 24. On 23 June 2003 the Tsentralniy District Court stayed the adjudication of the action and asked the applicant to indicate possible evidence showing that the alleged violations had in fact occurred. On 6 August 2003 the Kaliningrad Regional Court upheld that decision. There is no indication that the applicant sought resumption of the proceedings. 25. On 19 December 2003 the applicant was taken from the colony to facility no. IZ-39/1 to attend an appeal hearing pertaining to one of his actions. He was sent back to the colony on 12 January 2004. 26. The Government, relying on a certificate issued on 20 December 2005 by the director of facility no. IZ-39/1, submitted that during that period the applicant had been detained in two different cells, each measuring 7.8 square metres. The Government further noted that the sanitary norm of personal space per inmate had not always been complied with, but the applicant had had an individual sleeping place at all times. According to the Government, the applicant was detained with three other detainees in the first cell. They were unable to indicate the exact number of inmates in the second cell. However, as it follows from the above-mentioned director's certificate, the facility did not have any information on the number of inmates in either of the cells in which the applicant had been detained. 27. Citing the information provided by the director of the facility, the Government further submitted that the cells received natural light and ventilation through a large window, which was double-glazed and measured 1.2 square metres. The windows had a casement. Inmates could request warders to open the casement to bring in fresh air. The windows were covered with latticed partitions to ensure “sound and visual insulation”. The cells had ventilation shafts. The cells were equipped with lamps which functioned day and night. Each cell was equipped with a lavatory pan, a sink and a tap for running water. The pan was separated from the living area by a one-metre-high partition. Inmates were allowed to take a shower once in ten days. Each inmate was afforded at least fifteen minutes to take a shower. The cells were disinfected. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”. According to the Government, detainees, including the applicant, were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. The applicant did not ask for particular medical services. The Government furnished a copy of the applicant's medical record and medical certificates. 28. The applicant did not contest the cell measurements. However, he insisted that the cells had been severely overcrowded and he had had less than two square metres of living surface. Inmates had to take turns to sleep. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the administration did not provide any insecticide. The windows were covered with metal blinds which blocked access to natural light and air. It was impossible to take a shower as inmates were afforded only fifteen minutes and two to three men had to use one shower head at the same time. That situation was further aggravated by the fact that inmates could only take a shower once in ten days. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. Inmates were also allowed to smoke in the cells. The lavatory pan was not separated from the living area by any partition. Thus, inmates were afforded no privacy. No toiletries were provided. The food was of poor quality and in scarce supply. The applicant further argued that medical assistance had been unavailable. 29. The applicant complained to various authorities, including the Secretariat of the President of the Russian Federation, the State Duma, the Governor of the Kalinigrad Region, various prosecutors and the USA Embassy in the Russian Federation, about the conditions of his detention. The complaints were to no avail. 30. On 16 January 2004 the applicant lodged an action against facility no. IZ-39/1, seeking compensation for damage caused as a result of his detention in appalling conditions from 19 December 2003 to 12 January 2004. He also sought leave to appear before the court. 31. On 24 March 2004 the Tsentralniy District Court dismissed the action, relying on the same grounds as were cited in the judgment of 28 February 2003. In particular, the District Court noted that Article 1069 of the Russian Civil Code renders authorities amenable to responsibility for causing damage to individuals only if there has been fault in their actions or omissions. As there was no fault on the part of the domestic authorities for “mental and emotional sufferings or other damage” caused to the applicant, his action could not be accepted. 32. The applicant lodged an appeal statement, complaining, among other things, that the District Court had not granted him leave to appear. The applicant asked to be brought to the appeal hearing. 33. On 12 May 2004 the Kaliningrad Regional Court, in the applicant's absence, upheld the judgment, endorsing the reasons given by the District Court. As to the applicant's complaints that he could not attend the hearings before the District Court, the Regional Court noted that the applicant was serving his sentence in a correctional colony and thus it had been impossible to transport him to the hearings. The Regional Court pointed out that the applicant was aware of his procedural rights as a claimant. 34. At the material time the applicant was serving a prison sentence in correctional colony no. OM-216/13 in the village of Slavyanonvka, Bagrationovskiy District, Kaliningrad Region (also known as facility no. OM-216/13, hereinafter “the colony”). 35. In October 2001 a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences (отдел специального назначения Управления Исполнения Наказаний Минюста России по Калининградской области) arrived at the colony for the purpose of “performing searches in the living quarters of the colony”. 36. The applicant submitted that on 23 October 2001, at approximately 10.00 a.m., several officers had entered cell no. 22 where he had been detained. The officers wore balaclava masks. Without warning or any apparent reason they started hitting the applicant and his nine inmates with rubber truncheons and fists. The applicant fell to the floor but was forced to stand up. The officers, hitting and kicking the inmates, forced them to leave the cell. 37. The inmates were lined up in a corridor with their faces to the wall and were ordered to spread their legs, put their hands against the wall and to remain spread-eagled for ten minutes. The beatings continued. Subsequently the applicant and his inmates were taken to the entrance door where they saw two rows of officers wearing balaclava masks. The applicant was told to run between these rows to a car. While he was running, he received several blows to his back and his head with rubber truncheons. On the way back the applicant and other inmates again had to pass between the rows of masked officers, who subjected them to the beatings with rubber truncheons. 38. The applicant and the inmates were lined up with their hands against the wall and their legs wide apart. After three to four minutes of maintaining that position the applicant started feeling dizzy and his legs and arms swelled up. An officer hit the applicant with his fist on the left side of the back. Then several wardens in balaclava masks approached the inmates and started beating them up. The applicant was hit several times on the head, back and legs. He had been pushed strongly against the wall and his forehead was cut and bleeding. The beatings continued for another ten minutes. 39. During the following three days the applicant unsuccessfully requested the colony director to be examined by a doctor. On 26 October 2001 the applicant was visited by a colony doctor, who refused to record his injuries but ordered him to be confined to bed. According to the applicant, that fact was recorded in register no. 29 of the penal ward (журнал учета № 29 ПКТ-ШИЗО). 40. The Government disputed the applicant's description of events. They relied on a handwritten report by the head of the special-purpose unit, Mr M., who stated that no force or special measures had been used on 23 October 2001. 41. The Government submitted that on 23 October 2001 inmates in cell no. 22 had broken the sewage system and had begun “demanding to be detained in satisfactory conditions”. The officers of the special-purpose unit and the colony administration ordered the detainees to leave cell no. 22 and to move to cell no. 3. After the inmates had been body searched, they complied with the order. The unit officers searched the cell and found several forbidden objects, such as a metal pipe and a shaver. The Government noted that the colony doctor present during the search had recorded that the inmates had not had any complaints. The Government did not produce a copy of the relevant part of register no. 29 of the penal ward alleging its destruction in April 2005. 42. In his numerous letters to the Court and complaints to domestic authorities, the applicant provided accounts of events which had occurred on 7 November 2001. Inconsistencies abounded in those various accounts, but, in general, the applicant's version was as follows. He alleged that on 7 November 2001 he had complained to an officer on duty, Mr L., that the injuries sustained by him on 23 October 2001 had not still been properly recorded. Mr L. quickly looked through written complaints given to him by the applicant and started insulting and threatening the applicant. Following a quick argument, Mr L. took the applicant to his office and hit him several times in the hip area. The applicant fell down and the officer hit him twice in the face with his fist. Before placing the applicant back in his cell, the officer again hit him several times on the side of the back and pushed him into the cell. The latter episode was witnessed by six inmates detained together with the applicant in the cell and two warders. 43. The Government, relying on a report written by the officer on duty, Mr L., on 7 November 2001, submitted that the applicant had disobeyed a lawful order by the duty officer and force had been used to suppress the disobedience. The report read as follows: “[I] report that on 7 November 2001, at 8.50 a.m., during a check-up and examination of cells in the penal ward [I] made a remark to an inmate, [the applicant], as he was dressed improperly ([he] was standing in his underwear). [He] started explaining that he had washed his trousers. He was told to put on clean trousers. In response he began talking in a loud voice. Subsequently he was informed that he would be reported to [the facility administration]. In response he said: “Write twenty of those. ...[obscene language]”). [The applicant] was instructed to go to the duty room for a discussion concerning his dishonourable behaviour. When accompanied to the duty room, he tried to offer resistance. Having pushed me, [he] tried to run to his cell. Subsequently [I] used physical force, put [the applicant] on the floor using a fight method, and [I] gripped his arm, using a fight method.” 44. The applicant was examined by a doctor on the same day. The doctor recorded an abrasion on the side of the applicant's back. The applicant alleged that the doctor had refused to record other injuries. On the following day the applicant applied to the head of the colony seeking a thorough medical examination and asking for his injuries to be properly recorded. According to the applicant, that complaint brought no response. 45. According to the Government, on 18 January 2002 approximately 260 inmates, including the applicant, went on hunger strike. Approximately forty inmates performed acts of self-mutilation. Three days later a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences arrived at the colony to give assistance in “performing searches in the living quarters of the colony” as the hunger strike and self-mutilations continued. 46. The Government further submitted that on 21 January 2002, at about 4.30 p.m., a group of officers had entered cell no. 3, where the applicant had been detained, with the intention of searching it. The applicant refused to leave the cell, used offensive language, insulted warders and pulled their clothes. Following the applicant's refusal to stop his unlawful behaviour, an officer was forced to “use a rubber truncheon” against him. The applicant was taken out of the cell and body searched. A razor from a disposable shaver was seized. Relying on a certificate issued by the head of the colony medical division, the Government noted that the applicant had not applied for medical assistance between 21 January and 20 March 2002. 47. The applicant disputed the Government's version of events, arguing that after he had made known to the colony administration his intention to go on hunger strike, on 21 January 2002 a group of officers wearing balaclava masks had stormed into his cell and had taken inmates, apart from him, into a corridor. Then they hit him twice in the chest and head. The officers accompanied the beating with questions about the applicant's refusal to eat. Afraid for his life, the applicant promised to renounce his intention to take part in the collective hunger strike. He was taken to a corridor where some forty officers in balaclava masks stood. They intimidated and beat the applicant and his inmates. The applicant unsuccessfully asked the colony administration to record injuries sustained as a result of the beating. 48. The applicant submitted several detailed complaints to the Kaliningrad Regional Prosecutor about the events of 23 October and 7 November 2001 and 21 January 2002. He referred to Article 3 of the Convention, urging the prosecutor to institute criminal proceedings against the officers involved in the beatings, and identified witnesses who could have corroborated his complaints. It appears that a number of inmates lodged similar complaints of ill-treatment before the Kaliningrad Regional Prosecutor. 49. On 20 March 2002 the Kalinigrad Regional Prosecutor refused to institute criminal proceedings upon the applicant's and his inmates' complaints, finding no prima facie case of ill-treatment. That decision was based exclusively on statements by warders and officers of the special-purpose unit. 50. On 21 October 2002 the Tsentralniy District Court of Kaliningrad upheld the prosecutor's decision. That decision was quashed on appeal on 24 December 2002 by the Kaliningrad Regional Court on the ground that the applicant had not been allowed to attend the hearing before the District Court or to present his version of events. 51. On 17 March 2003 the Tsentralniy District Court again upheld the prosecutor's decision of 20 March 2002. The District Court's decision was quashed on appeal on 27 May 2003 because the District Court had not examined the complaints pertaining to the events on 7 November 2001. 52. On 25 June 2003 the Tsentralniy District Court quashed the prosecutor's decision and remitted the case for a fresh inquiry. The District Court reasoned that the prosecutor had not addressed the applicant's complaints of ill-treatment which had allegedly occurred on 7 November 2001. 53. Two weeks later, on 9 July 2003, the Kalinigrad Regional Prosecutor dismissed the applicant's ill-treatment complaints, refusing to institute criminal proceedings. The decision, based on the statements by the colony administration, warders and officers of the special-purpose unit, indicated that on 23 October 2001 no force had been applied to the applicant and his inmates because there had been no need to use force and that the applicant had not complained to a doctor about his state of health. In respect of the events on 7 November 2001 the prosecutor found that the use of force had been necessary because the applicant had disobeyed lawful orders of the officer on duty and had tried to run in the corridor. The applicant had been examined by a prison doctor, who had not recorded any injuries, save for an abrasion on his back which could have been sustained for some other reasons. As to the events on 21 January 2002, the prosecutor established that the applicant had refused to leave his cell, had sworn obscenely, had threatened wardens and pulled their clothing. The applicant had been hit with a rubber truncheon to stop his unlawful behaviour. The prosecutor concluded that the use of force had been lawful. 54. The applicant appealed against the prosecutor's decision to the Tsentralniy District Court. He furnished a list of inmates who could have corroborated his description of events, asked for them to be heard and also sought leave to appear before the court. 55. On 23 September 2003 the Tsentralniy District Court dismissed the complaint. The relevant part of the decision read as follows: “[The applicant] was duly informed about the place and time of the hearing; it was explained to him that it was impossible to transport him to the hearing; his absence could not preclude the examination of the complaints by the court. Having examined the case file materials, the decision of 9 July 2003, materials pertaining to [the applicant's] complaints to supervisory review instances, similar complaints by inmates, Mr B., Mr G., Mr M., and by a lawyer, Mr Me., and having heard the prosecutor who had insisted that the decision of 9 July 2003 and the prosecutor's actions were lawful and well-founded, the court finds as follows. ... The [prosecutor] carried out an inquiry into the three episodes [on 23 October and 7 November 2001 and 21 January 2002] and the court considers it lawful that while examining [the applicant's] new complaints, which did not contain any new information or facts pertaining to those episodes, [the prosecutor] used the findings of the previous inquiry. ... Thus, while carrying out an inquiry a prosecutor has the right to assess the necessity (or its absence) to question an applicant or witnesses, or to take other investigative measures. The Kaliningrad Regional Prosecutor, Mr Ko., examined [the applicant's] request of 14 July 2003 concerning the necessity to interrogate inmates of detention facility no. OM-216/13, and informed [the applicant] about it. The court did not establish, and [the applicant] did not present any evidence concerning a violation of his constitutional rights and freedoms or his right of access to a court by the contested decision of 9 July 2003 by which the institution of criminal proceedings had been refused or by other actions (omissions) of the prosecutor. Having regard to the above-mentioned circumstances, the court dismisses [the applicant's] complaint... The court does not grant [the applicant's] request for witnesses to be heard, because Article 125 of the Code of Criminal Procedure indicates the exhaustive list of persons who can take part in an examination of a complaint against a prosecutor's decision not to institute criminal proceedings or against other decisions and actions of a prosecutor. Those whose appearance before the court [the applicant] sought are not included in that list; a number of [witnesses] are inmates serving sentences in detention facilities and therefore they may not be transported to the courthouse to take part in the proceedings. [The applicant] was informed that it was impossible for witnesses to be heard.” 56. The applicant appealed, complaining, inter alia, that neither the prosecutor nor the District Court had heard him or other detainees who could have confirmed his statements, that they had not taken medical evidence and had limited their inquiry to statements by the colony officers. 57. On 18 November 2003 the Kaliningrad Regional Court upheld the decision of 23 September 2003, endorsing the reasons given by the District Court. The Regional Court noted that the applicant's presence at the hearings before the courts had not been necessary and that the District Court had rightfully refused to hear witnesses. 58. On 13 February 2006 the Presidium of the Kaliningrad Regional Court, by way of a supervisory review, quashed the decisions of 23 September and 18 November 2003, noting a violation of the applicant's right to take part in the hearings before the courts. 59. On 29 March 2006 the Tsentralniy District Court quashed the prosecutor's decision of 9 July 2003 and ordered a fresh inquiry into the applicant's ill-treatment complaints. The relevant part of the decision read as follows: “... during an inquiry into a complaint concerning a criminal offence committed, a prosecutor must thoroughly and objectively investigate all circumstances pertaining to the facts indicated in that complaint; this means that he must question all interested parties, in [the applicant's] case [he] must order an independent medical examination of the detainee, following which and having analysed all established circumstances and having performed an evaluation, [he] should issue one of the decisions indicated in Article 145 of the Code of Criminal Procedure of the Russian Federation. As it appears from the investigation file presented by the prosecutor and from the materials of the supervisory review, the inquiry into [the applicant's] complaints was not performed consistently, it was chaotic, [the applicant] himself and the eyewitnesses, indicated by [the applicant] in his complaints, were not questioned; [the prosecutor] received merely formal explanations from the officers; it is clear from those explanations that the prosecutor himself did not interrogate those officers; an independent medical examination of [the applicant] for a purpose of establishing injuries was not performed. In such circumstances, [the court] considers that the prosecutor's inquiry into [the applicant's] complaint was performed formally and subjectively, and that the contested decision by which the institution of criminal proceedings was refused is unsubstantiated. However, it is necessary to take into account that more than four years have passed since the events complained of by [the applicant] and it will be difficult to remedy the insufficiency of the prosecutor's inquiry into the complaints about the crime.” The applicant attended the hearing. 60. It appears that the investigation is now pending. 61. On 21 February 2002 the applicant and another inmate, Mr B., lodged actions against colony no. OM-216/13 and the Kaliningrad Regional Department of the Federal Treasury, seeking compensation for damage caused by beatings on 23 October and 7 November 2001 and 21 January 2002. 62. In May and June 2002 the applicant submitted several motions to the court, seeking leave to appear, asking to summon witnesses on his behalf and to obtain certain medical documents from the respondents. 63. On 26 April 2004 the Bagrationovskiy District Court, Kaliningrad Region, held a hearing in colony no. OM-216/13. The District Court heard the applicant, his co-plaintiff, the representative of the colony, and a number of witnesses. Both the applicant and his co-plaintiff insisted that the beatings had taken place. The representative of the colony confirmed that on 23 October 2001 physical force and rubber truncheons had been used against the applicant. However, he stressed that the use of the force and special means had been lawful. The head of the medical department of the colony and a prison doctor did not remember examining the applicant after the beatings. Having heard the parties and witnesses, the District Court dismissed the actions, holding, in so far as relevant, as follows: “At the plaintiffs' request the court heard, as witnesses, inmates who are serving sentences in that colony. Thus, witness T. confirmed that [the applicant] had been beaten by officers of the special-purpose unit on his way to the penal ward and in the walking area, while witnesses Kh. and Ga. (warders in the colony) did not confirm that allegation in the court hearing. An extract from [the applicant's] medical record confirms that on 26 October 2001 [the applicant] consulted a prison doctor, and an extract from register no. 29 of the penal ward corroborates the fact that the prison doctor, Mr G., had ordered that [the applicant] should be confined to bed until 29 October 2001. A witness, [the prison doctor], Mr G. stated in the court hearing that there is no information in the [applicant's] medical record pertaining to his applying for medical assistance on 23 October 2001. On 26 October 2001 he ordered [the applicant] to be confined to bed at the latter's request, as [the applicant] claimed that he was tired. [Mr G.] never refused to examine inmates, and in January 2002 he was on leave. Witnesses Mr Gr., Mr K., Mr Gu. and Mr Ta. testified that in the morning of 7 November 2001 there had been a loud argument between [the applicant], who was not dressed properly, and the officer on duty, Mr L., [and] stated that [the applicant] had been taken out of the cell and that Mr L. had twice hit [the applicant] with his fist on the back when the latter was brought back to the cell. As it follows from the statements by Mr L., [the applicant] responded rudely to Mr L.'s remark about his clothes; he was taken to the duty room to provide an explanation about the incident. However, [the applicant] pushed Mr L. aside and began running to his cell, screaming that he had been beaten up. Due to such disobedience, physical force in the form of a fight method was applied to [the applicant]. The testimony of this witness is confirmed by his report to the director of colony no. 216/13 made on 7 November 2001. An act was drawn up on 7 November 2001 as a confirmation of a use of force against [the applicant], on the same day a medical assistant, Ms Lo., recorded an abrasion on the left side of the small of [the applicant's] back. [The applicant] applied to a Justice of the Peace of the 1st Court Circuit with a complaint, seeking institution of criminal proceedings against Mr L., the warder in colony no. 216/13, alleging that he had committed libel by writing that report. The above-mentioned Justice of the Peace, in his decision of 20 October 2003, acquitted Mr L. of the charge of libel brought against him by [the applicant]... Thus, the court, in the course of the examination of the case, established that there had existed circumstances caused by [the applicant's] behaviour which had prompted the use of force against [the applicant], and that Mr L.'s report had described the events of 7 November 2001 correctly. The decision of 20 October 2003 was upheld on appeal by the decision of the appellate court on 11 February 2004 and became final on 13 April 2004. An extract from [the applicant's] medical record certifies that he did not apply for medical assistance between 26 October and 4 December 2001. On 21 January 2002, on an order of the head of the Kaliningrad Regional Department for Execution of Sentences, officers of the special-purpose unit arrived to colony no. OM-216/13 to give assistance to the colony administration in searching the living quarters and cells, having regard to an ongoing collective hunger strike and self-mutilations. At the same time a number of forbidden objects were seized from the penal ward, where [the applicant and his co-plaintiff] were detained. A rubber truncheon was used against [the applicant] who tried to resist an officer from the special-purpose unit, which is confirmed by the report and act of application of a rubber truncheon issued on 21 January 2002. As it follows from [the applicant's] medical record, medical assistance was not provided to him between 17 January and 11 March 2002. The Kaliningrad Regional Prosecutor's Office carried out an inquiry pertaining to the three episodes of beatings of which [the applicant] complained; as a result of the inquiry the prosecutor issued a decision on 9 July 2003 refusing to institute criminal proceedings as there was no criminal conduct in the actions. [The applicant] appealed against that decision in compliance with Article 125 of the Code of Criminal Procedure. The Tsentralniy District Court of Kaliningrad, by its decision of 23 September 2003, dismissed [the applicant's] complaint, finding that the disputed decision of the prosecutor was lawful and well-founded. The court decision became final on 18 November 2003. ... The Court does not have any grounds to doubt the above-mentioned court decisions. [The court] did not establish any instances of unlawful use of physical force against the plaintiffs in the course of the present proceedings, which allows the court to conclude that [the applicant's]... claim is unsubstantiated.” 64. The applicant appealed, also requesting the appeal court to ensure his presence at the hearing. 65. On 13 October 2004 the Kaliningrad Regional Court upheld the judgment of 26 April 2004, endorsing the reasons given by the District Court. Neither the applicant nor the representative of the respondents was present. 66. On 19 May 1999 six HIV-positive detainees arrived at the colony, where they stayed until 26 May 1999. The Government, relying on the information provided by the colony director, submitted that the HIV-positive detainees had been accommodated in a separate colony unit. The colony administration assigned a day when only those detainees could take showers and allocated separate medical equipment to them. Bedding provided for those detainees was changed and washed separately from that of the rest of the detainees. The tableware given to the HIV-positive detainees was also washed and disinfected separately. The colony administration, assisted by medical specialists, organised a meeting with the detainees and lectured them on AIDS and on how the virus could be transmitted. They also warned the HIV-positive detainees that knowingly transmitting HIV was a criminal offence. The Government submitted that the colony administration had taken every necessary precaution to prevent the spread of the disease in the colony. In particular, they prevented the use of drugs, sexual contact between inmates and tattooing. They also provided contraceptives to inmates who were allowed to have long-term meetings with relatives. The Government stressed that as a result of those actions no detainee had contracted HIV. 67. In 2000 and 2003 the applicant unsuccessfully sought institution of criminal proceedings against the colony administration because the HIV-positive detainees had been admitted to the colony. 68. On 20 March 2003 the Kaliningrad Regional Prosecutor sent a letter to the applicant informing him that his request had already been dismissed in 2000. 69. The applicant complained to a court that the prosecutor had failed to discharge his duties by refusing to reconsider his request. 70. On 29 July 2003 the Kaliningrad Regional Court, in the final instance, dismissed the complaint and discontinued the proceedings because an appeal should have been lodged against the decision of 2000 rather than against the letter of 20 March 2003. 71. On 1 March 2002 the applicant lodged an action against the Kaliningrad Regional Prosecutor and the Kaliningrad Regional Department for Execution of Sentences, seeking compensation for non-pecuniary damage. He claimed that he had feared for his life because the HIV-positive detainees had stayed in the colony. He also sought leave to appear. 72. On 20 March 2002 the Tsentralniy District Court informed the applicant that the hearing had been listed for 5 April 2002. The District Court also noted that the law did not provide a detainee with the right to attend a hearing in a civil case and that the applicant could appoint a representative or allow the District Court to adjudicate the action in his absence. 73. On 5 April 2002 the District Court dismissed the action, holding that the colony administration had taken the necessary steps to prevent the risk of HIV contagion and that no-one in the colony had contracted HIV. The administration provided the HIV-positive detainees with separate kitchenware. The detainees took showers separately and medical assistance was provided to them in a separate facility and with separate equipment. The colony administration organised meetings with detainees and lectured them on how AIDS could be transmitted. At the same time the District Court noted that the applicant could not contract HIV by taking showers or eating in the same premises as the HIV-positive detainees. 74. On 24 July 2002 the Kaliningrad Regional Court upheld the judgment. The applicant was not present. 75. On 26 February and 6 March 2002 the applicant lodged two tort actions against the Gvardeyskiy District police department and colony no. OM-216/13. In the first action the applicant claimed that in August 1998 police officers of the Gvardeyskiy District police department had seized his personal belongings and had not returned them to him. He further argued that he had been placed in the facility of that police department, where he had been detained in poor conditions and had only been provided with food once a day. In the second action he complained that the administration of colony no. OM-216/13 had not arranged screenings of films, as provided for by the domestic law. 76. On 13 May 2002 the Gvardeyskiy District Court dismissed the first action, finding that the applicant's allegations of insufficient food were false, and that his personal belongings had been seized lawfully. 77. On 7 August 2002 the Bagrationovskiy District Court dismissed the second action, holding that the domestic law did not provide detainees, including the applicant, with the right to see films. 78. On 21 August and 4 December 2002 the Kaliningrad Regional Court upheld the judgments of 13 May and 7 August 2002 respectively. The applicant was not brought to either the first-instance or the appeal hearings despite his requests. 79. On 31 January 2003 the applicant asked the colony administration to provide him with his medical records. On 5 March 2003 the administration provided him with general information about the state of his health and refused to give him the full record. 80. On 14 March 2003 the applicant unsuccessfully asked a prosecutor to institute criminal proceedings against the administration. On 23 September 2003 the Kaliningrad Regional Court, acting on an appeal by the applicant against the prosecutor's decision, discontinued the proceedings. 81. On 17 February and 25 April 2003 the applicant unsuccessfully asked various prosecutors to institute criminal proceedings against a judge who had determined one of his claims. Subsequently, the applicant complained to a court that the prosecutors had failed to discharge their duties. On 29 June and 29 July 2004 the Kaliningrad Regional Court, in the final instance, disallowed the complaints and discontinued the proceedings. 82. On 1 February 2004 the applicant asked for a transfer to another colony. On 17 August 2004 the Kaliningrad Regional Court, in the final instance, granted the request and held that the applicant should stay in a lower security colony. 83. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 84. When using physical force, special means or weapons, the penitentiary officers must: (1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees; (2) ensure the least possible harm to detainees and provide medical assistance; (3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28). 85. Rubber truncheons may be used for (1) putting an end to assaults on officers, detainees or civilians; (2) repressing mass disorders or group violations of public order by detainees, as well as for apprehension (задержание) of offenders who persistently disobey or resist the officers (section 30). 86. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities' own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate or continue a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Articles 113 and 209). 87. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (“the new CCP”). Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 88. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage. 89. Limitation of a citizen's rights and freedoms because of his or her HIV status may be authorised only by federal law (section 5 of the Law on Prevention of Propagation of HIV infection, 38-FZ of 30 March 1995). Detainees are subject to a compulsory medical examination (section 9 of the Law). A person who has tested HIV-positive must be informed thereof, be informed of the need to take precautions for preventing transmission of HIV and warned that contamination of others or exposing others to a risk of contamination is a criminal offence (section 13 of the Law; Article 122 of the Criminal Code). 90. According to the Rules on Compulsory Testing of Prisoners for HIV infection (adopted by the Russian Government on 28 February 1996), the prison administration must take measures preventing transmission of HIV; medical and other staff must not disclose information relating to a detainee's HIV status (Rules 11 and 13). 91. Section 101 § 2 of the Penitentiary Code provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts, alcoholics, HIV and tuberculosis infected prisoners. Federal Law No. 25-FZ of 9 March 2001 repealed that provision in so far as it related to HIV-positive prisoners. 92. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage (section 26 § 1). 93. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to a temporary detention facility if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or defendant. 94. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person's access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant's submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008). 95. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows: “b. temporary holding facilities for criminal suspects (IVS) 26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably. ... 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.” 96. The relevant extracts from the 11th General Report [CPT/Inf (2001) 16] prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning transmissible diseases read as follows: “31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries.... ...[T]he act of depriving a person of his liberty always entails a duty of care... The use of up-to date methods for screening, the regular supply of medication...constitute essential elements of an effective strategy...to provide appropriate care to the prisoners concerned. ...[T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive. ...[I]t is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. More particularly, the risks of HIV or hepatitis B/C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained...” 97. The relevant parts of the Appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organisational aspects of health care in prison read as follows: “13. Medical confidentiality should be guaranteed and respected... 38. The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medical reasons. 39. No form of segregation should be envisaged in respect of persons who are HIV antibody positive, subject to the provisions contained in paragraph 40. 40. Those who become seriously ill with Aids-related illnesses should be treated within the prison health care department, without necessarily resorting to total isolation. Patients, who need to be protected from the infectious illnesses transmitted by other patients, should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections...” 98. The relevant part of the Appendix to Recommendation no. R (93) 6 of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison reads as follows: “9. As segregation, isolation and restrictions on occupation, sport and recreation are not considered necessary for seropositive people in the community, the same attitude must be adopted towards seropositive prisoners.” 99. Detention of HIV-positive persons was also examined in the following Recommendations of the Committee of Ministers to Member States: no. R (89) 14 on the ethical issues of HIV infection in the health care and social settings; and no. R (98) 7 concerning the ethical and organisational aspects of health care in prison. 100. Similar recommendations were made by the 1993 World Health Organisation in the Guidelines on HIV infection and AIDS in prisons: “27. Since segregation, isolation and restrictions on occupational activities, sports and recreation are not considered useful or relevant in the case of HIV-infected people in the community, the same attitude should be adopted towards HIV-infected prisoners. Decisions on isolation for health conditions should be taken by medical staff only, and on the same grounds as for the general public, in accordance with public health standards and regulations. Prisoners' rights should not be restricted further than is absolutely necessary on medical grounds, and as provided for by public health standards and regulations... 28. Isolation for limited periods may be required on medical grounds for HIV-infected prisoners suffering from pulmonary tuberculosis in an infectious stage. Protective isolation may also be required for prisoners with immunodepression related to AIDS, but should be carried out only with a prisoner's informed consent. Decisions on the need to isolate or segregate prisoners (including those infected with HIV) should only be taken on medical grounds and only by health personnel, and should not be influenced by the prison administration.... 32. Information regarding HIV status may only be disclosed to prison managers if the health personnel consider...that this is warranted to ensure the safety and well-being of prisoners and staff...”