CASE OF KUCHERUK v. UKRAINE
Preliminary objection (non-exhaustion of domestic remedies) partially joined to merits and dismissed (Art. 3 and 13) and remainder dismissed;Preliminary objection (six-month period) dismissed (Art. 3 and 13);Preliminary objection (six-month period) allowed (art. 5-1 and 5-4 : detention in the SIZO);Preliminary objection (non-exhaustion of domestic remedies) dismissed (art. 5-4 : confinement in the hospital);Violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-4;Not necessary to examine Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings
Peer Lorenzen
5. The applicant was born in 1980 and lives in the city of Kharkiv. 6. In 1998 the applicant was diagnosed as suffering from schizophrenia. Since then the applicant has undergone outpatient treatment at the City Psychoneurological Healthcare Centre no. 3 (hereafter “the Healthcare Centre”). 7. In March 2001 the applicant was convicted of theft and hooliganism and sentenced to one and a half year’s imprisonment suspended on probation. 8. On 12 April 2002 the applicant was arrested and taken into police custody at the Kominternovskyy District Police Station on suspicion of hooliganism and theft. 9. On 15 April 2002 the police investigator assigned to the applicant’s case charged him with hooliganism and theft. On the same day, considering that there were serious suspicions against the applicant, that he had a previous conviction for similar offences and was on probation and that there was a serious risk that the applicant would commit further offences or escape trial, the judge of the Kominternovskyy District Court of Kharkiv (hereafter “the Kominternovskyy Court”) ordered the applicant’s detention on remand. 10. On that same date the applicant was examined at the City Hospital no. 13. He was found to be suffering from schizophrenia but fit for detention on remand. 11. On 16 April 2002 the applicant was brought to the Kharkiv Regional Pre-trial Detention Centre SIZO no. 27 (hereafter “the SIZO”) from the police station. On his admission the applicant was received by the SIZO medical department for observation and assessment. The prison psychiatrist diagnosed him as suffering from schizophrenia, but certified him fit for detention at the SIZO. 12. The applicant was admitted to a psychiatric ward of the medical wing of the SIZO. On 17 and 25 April 2002 he was visited by a prison therapist who prescribed him cardiovascular and systemic medication. 13. On 30 April 2002 the investigator asked the Healthcare Centre for information on whether the applicant had been known to be suffering from a mental disease. On 5 May 2002 the Healthcare Centre confirmed that the applicant had been under psychiatric treatment for schizophrenia since 1998. Relying on this information, on 13 May 2002, the investigator ordered an inpatient forensic psychiatric examination of the applicant to determine his sanity at the time of the offence. 14. The applicant was transferred to the Psychiatric Hospital no. 15 (hereafter “the Hospital”), where he was examined from 17 to 29 May 2002. On the latter date forensic experts drew up a report, which included the following findings: “...Psychiatric status The patient is available for verbal contact. However such contact is highly formal. Mimics and movements are spontaneous and incongruous. He cannot understand or appreciate the purpose of the examination or the situation in general. The patient is restless, euphoric, fidgety, talkative but incoherent in his speech. .... The patient ... roars with laughter and grimaces, sticking his tongue out. ... Sometimes he starts asking in a whisper whether he will be released, but having received the answer, asks the same question again. ... If asked about his experience after the arrest, the patient becomes restless, somewhat confused, the expression on his face becomes blank. ... His memory and intelligence cannot be tested for lack of productive contact... Sometimes he becomes tense, restless and quarrelsome.... Conclusion 1. Mr Kucheruk currently shows symptoms of acute personality disorder in the form of a reactive state of mind. 2. It is at present impossible to determine the question of his sanity at the time of the offences on account of the complexity of the clinical manifestations of his reactive state of mind, which could also point to another mental illness. 3. Mr Kucheruk’s mental state requires compulsory inpatient psychiatric treatment.” 15. In early June 2002 the applicant was transferred back to the SIZO. On 6 June 2002 he was examined by the prison psychiatrist. No medication was prescribed on that occasion. 16. On 12 June 2002 the investigator requested compulsory psychiatric treatment for the applicant. On the same date the applicant’s case-file was sent to the Kominternovskyy District Prosecutor’s Office for approval. On 14 June 2002 the investigator’s request and the case-file were received by the Kominternovskyy Court. 17. On 5 July 2002 the Kominternovskyy Court, following an adversarial trial in the presence of the applicant’s lawyer, found him guilty of theft and hooliganism as charged. Referring to the experts’ report of 29 May 2002, the court found that the applicant’s acute personality disorder made it impossible at that stage to determine his sanity at the time of the offences and, consequently, to consider the question of punishment. The Kominternovskyy Court made an order under Article 421 of the Code of Criminal Procedure (hereafter the CCrP) committing the applicant for compulsory psychiatric treatment and suspended the criminal proceedings against him pending his recovery. The court also specified that: “Mr Kucheruk’s preventive detention on remand is to be revoked upon his admission to the psychiatric establishment. The judgment may be appealed against to the Kharkov Regional Court of Appeal within fifteen days from its delivery.” 18. On 10 July 2002 the court order of 5 July 2002 was sent to the SIZO for implementation. 19. In the meantime, the applicant, who was held in an ordinary cell, started to show signs of personality disorder. At the subsequent inquiry the inmates with whom he shared a cell stated that the applicant had acted in a strange way, mumbling incoherently, suddenly yelling at them or starting a fight. On 2 July 2002 the applicant assaulted one of his cellmates. On the same day he was transferred to the medical wing of the SIZO, where he shared a cell with other prisoners. 20. From 2 July 2002 onwards each new duty shift of the SIZO guards was regularly informed of the possibility of violent outbursts on the applicant’s part, and of the threat he posed to other detainees, the SIZO staff and himself. 21. On 3 July 2002 the prison psychiatrist examined the applicant, diagnosed him as suffering from schizophrenia and catatonic stupor and prescribed tranquilisers, analeptics (drugs that stimulate the central nervous system) and systemic drugs. On 4 July 2002 the psychiatrist found that the applicant had recovered from the catatonic stupor, and prescribed a change in his medication. 22. On 8 July 2002 the applicant became particularly agitated, moving erratically around the cell, waving his arms, bumping into the furniture and swearing at prison guards. At 7.00 a.m. three prison guards on duty were called by the medical wing staff to deal with the applicant. Through the peephole they observed his erratic movements and, having classified them as an “outrage” (буйство) within the meaning of section 18 of the Law “on Detention on Remand”, ordered the applicant to stand still, face the wall and put his hands behind his back. When the applicant failed to comply, the guards warned him that they were about to use force and entered the cell. The guards beat the applicant with truncheons, forced him to the floor and handcuffed him. Although a prison paramedic was called to attend to the applicant soon after the incident, there is no information that he received any treatment or medication for the injuries sustained during the struggle to restrain him. 23. In a report dated 8 July 2002 and amended, it would appear, on 15 July 2002, the three prison guards and the paramedic involved in the incident informed the Governor of the SIZO about the circumstances of the use of special police equipment (truncheons and handcuffs). In different handwriting it was added that the handcuffs were applied at 7.00 a.m. on 8 July 2002 and removed at 6.45 a.m. on 15 July 2002. At the bottom of the page, below the signatures of the officers and the paramedic, it is indicated that “distinct traces of the use of [truncheons and handcuffs] were found” and that “no other injuries ... could be detected”. These notes were signed by a certain Kh., apparently a prison doctor or paramedic, and dated 15 July 2002. 24. On 8 July 2002 the Governor ordered the applicant to be confined to a disciplinary cell for ten days for “serious breach of prison rules”. Before his transfer the applicant was examined by two prison officers and a doctor, who indicated in their report that his shoulders and buttocks bore traces of injuries inflicted by truncheons. They concluded, however, that the applicant was fit to be detained in the disciplinary cell. 25. Whilst in the disciplinary cell the applicant was locked up for about twenty-three hours each day. Although the disciplinary cell was visited each day by a physician and psychiatrist, no treatment or medication was administered to him as, according to the medical records, he refused to accept them. The entries made by the prison physician in the applicant’s medical record for 10, 12 and 16 July 2002 state: “10 July 2002 ... [the applicant] lurched towards me, stretching out his handcuffed hands... 12 July 2002 ... [the applicant] was moving quickly around the cell, bending down and trying to pull his legs between his handcuffed hands... banging his head against the wall trying to free himself from the handcuffs ... 16 July 2002 ... [the applicant] is trying to remove the handcuffs, rolling on the floor”. 26. The applicant’s detention in the disciplinary cell continued until his discharge from the SIZO on 17 July 2002. 27. On 17 July 2002 the applicant was transferred to the Hospital for compulsory treatment pursuant to the Kominternovskyy Court’s judgment of 5 July 2002. 28. On 27 January 2003, following a fresh assessment of the applicant’s mental condition, the psychiatric commission of the Hospital recommended that his psychiatric treatment should continue. 29. On 28 February 2003, having regard to the experts’ report of 29 May 2002 and the oral submissions of the doctor in attendance at the Hospital, the Kominternovskyy Court allowed the petition of the chief psychiatrist of the Hospital and ordered an extension of the applicant’s compulsory psychiatric treatment pending his recovery. 30. On 2 April 2003 the applicant’s mother filed a petition with the Moskovskyy District Court of Kharkiv (hereafter “the Moskovskyy Court”) under Article 256 of the Code of Civil Procedure (hereafter “the CCivP”) seeking to have her son declared incapable by reason of mental disorder. 31. On 26 May 2003 the psychiatric commission of the Hospital recommended that the applicant’s compulsory treatment be discontinued. 32. On 28 May 2003 the Moskovskyy Court ordered a forensic psychiatric examination of the applicant under Article 258 of the CCivP in order to determine his sanity. 33. On 7 July 2003 the Kominternovskyy Court lifted the compulsory treatment order. It also indicated that criminal proceedings against the applicant should be resumed and a forensic psychiatric examination ordered to determine his sanity at the time of the offence. 34. On 1 August 2003 the pre-trial investigation against the applicant was resumed. 35. On 4 August 2003 the Hospital received the Kominternovskyy Court’s ruling of 7 July 2003. 36. On 5 August 2003 the investigator requested the Kominternovskyy Court to authorise the applicant’s inpatient psychiatric examination under Article 205 of the CCrP, which request was granted on 6 August 2003. 37. Both forensic examinations ordered by the Moskovskyy and Kominternovskyy Courts were completed on 1 September 2003. The psychiatric experts concluded that the applicant’s mental disorder prevented him from understanding the consequences of his actions and controlling his behaviour. 38. On 2 September 2003 the applicant was discharged from the Hospital and handed over to his mother. 39. On 4 November 2003 the Kominternovskyy Court terminated the criminal proceedings against the applicant in view of his lack of criminal liability. 40. On 11 November 2003 the Moskovskyy Court allowed the mother’s petition and declared the applicant legally incapacitated. 41. Upon the applicant’s admission to the Hospital on 17 July 2002 his mother was informed of his whereabouts. Ms Kucheruk stated that when she visited him the following day she saw that he was badly injured and could hardly move or talk. The only words he allegedly managed to utter were “[they] beat [me] severely” (cильно били). 42. On 25 July 2002 the applicant’s mother filed a criminal complaint against the prison guards for ill-treatment of her son. 43. On 2 August 2002 the applicant’s mother and a human rights activist from a local non-governmental organisation visited the applicant in his ward. They drew up a document attesting that the applicant had an injury on his head behind the left ear, several bruises on the face and forehead and deep cuts around his wrists. 44. On an unspecified date the Governor of the SIZO opened a criminal investigation into the applicant’s mother’s complaint. On 19 and 20 August 2002 written statements were taken from two of the inmates who had shared an ordinary cell with the applicant, from his four cellmates in the medical wing who witnessed the incident of 8 July 2002, from three prison guards involved in that incident and from a prison paramedic. The inmates and the prison guards briefly outlined the events of 2-8 July 2002 as they are described above in paragraphs 19 and 22. The paramedic wrote that he had been called to attend to the applicant after the latter had been immobilised by the guards. He had observed truncheon marks on the applicant’s shoulder blades and buttocks and marks on his wrists made by handcuffs. 45. As part of the inquiry, on 14 August 2002 the Governor of the SIZO ordered that medical evidence be obtained. On the same day the applicant was examined by an expert from the Kharkiv Forensic Medicine Institute. The expert’s report stated the following: “Examination Mr Kucheruk has a 2.5x0.5 cm oblong abrasion with a thick scab on the outer part of his right wrist. The wound is horizontal. Similar abrasions are observed on the inner part of the right wrist and the outer and inner parts of the left wrist, as well as on the left elbow, the right occipital area and the inner-rear and frontal parts of the left thigh. These injuries measure from 1x0.2 cm. to 5.5x0.3 cm. ... Conclusion 1. According to the medical documents provided [by the Governor of the SIZO] it is established that Mr Kucheruk bore bruises and abrasions which had been inflicted by blunt solid objects. When Mr Kucheruk was examined on 14.08.2002 he had abrasions on his head, right foot, arms and left thigh. He also had bruises on the left eye and the left shoulder. All these injuries were inflicted by blunt solid objects. The bruises were three to five days old and the abrasions seven to ten days old... 2. Having regard to the description of the injuries in medical documents [drawn up by the SIZO staff], as well as the entries for 8 and 15 July 2002, where the injuries are not described at all, and the nature of the injuries (indicating the use of truncheons and handcuffs), it is impossible to draw any conclusions about the time of the injuries. 4. Mr Kucheruk’s injuries could have been inflicted by special equipment (truncheons and handcuffs).” 46. On 21 August 2002 the Governor of the SIZO decided not to bring criminal proceedings against the guards involved in the incident, finding no wrongdoing on their part. He relied in this conclusion on the written statements made by the inmates and prison officers and the forensic report of 14 August 2002. On an unknown date the prison supervision department of the Kharkiv Regional Prosecutor’s Office confirmed this decision. 47. On 4 September 2002 the applicant’s mother received a letter from the Governor of the SIZO in which he informed her that no criminal investigation in respect of the accused prison officers was to be opened, without, however, indicating the date of the relevant decision or providing a copy. In his letter the Governor also expressed the opinion that the truncheons and handcuffs had been used by the guards in accordance with the relevant regulations, to protect the SIZO staff and the applicant himself from his uncontrolled and aggressive behaviour. 48. On 26 December 2002 the Kharkiv Regional Prison Department (hereafter “the Department”) informed the applicant’s mother that an additional internal inquiry, undertaken, apparently, on her request, had revealed no wrongdoing on the part of the SIZO guards. 49. By a letter of 16 January 2003 the Head of the Department informed the applicant’s mother that her further complaints were unsubstantiated. He referred in this connection to the inquiry carried out by the Governor of the SIZO, which had culminated in his decision of 21 August 2002. This was the first mention of the date of the Governor’s decision in any official correspondence with the applicant’s mother. On 8 February 2003 she requested a copy of the final report and access to the case-file. On 25 February 2003 the Head of the Department rejected this request. On 27 March 2003 he rejected her second request for access to the file. 50. On 31 March 2003 the applicant’s mother challenged the Governor’s decision of 21 August 2002 before a court. On 27 May 2003 the Zhovtnevy District Court of Kharkiv (hereafter “the Zhovtnevy Court”), having heard the prosecutor, rejected her complaint as unsubstantiated. The applicant’s mother appealed. 51. In the course of the appeal proceedings, on 14 August 2003, the applicant’s lawyer was, for the first time, given access to the case-file. 52. On 18 November 2003 the Kharkiv Regional Court of Appeal quashed the decision of the Zhovtnevy Court on the grounds that it had been taken in the complainant’s absence, and remitted the case for fresh consideration. 53. On 24 December 2003 the Zhovtnevy Court found, without giving any details, that the inquiry was flawed. It reopened the case and handed it to the Governor of the SIZO for further investigation. 54. On 4 March 2004 the Governor, referring to the same evidence as before, discontinued the criminal proceedings again. His final report indicated, inter alia, that: “...Mr Kucheruk arrived at the [SIZO] with a medical certificate, issued by the city hospital no. 13 on 15 April 2002, according to which he was fit to be detained in a SIZO. ... On the basis of this information Mr Kucheruk was placed in a psychiatric ward of the medical wing. On 16 April 2002 Mr Kucheruk was examined by [the prison psychiatrist] who diagnosed him as suffering from schizophrenia. At the time of the examination his mental condition was satisfactory and he did not need any active treatment.” As to the applicant’s conduct after the incident of 2 July 2002 and his transfer from the ordinary cell to the medical wing, the Governor stated that: “On 3 July 2002 Mr Kucheruk was examined by [the prison psychiatrist], who found him suffering from schizophrenia and catatonic stupor and prescribed the relevant medication. On 4 July 2002 the patient recovered from the catatonic stupor ... but continued to have tense relations with his cellmates. Accordingly, based on general information about Mr Kucheruk’s behaviour, the officers on duty were warned daily about his possible violent outbursts against his cellmates or the SIZO staff.” The report of 4 March 2004 further states that, following the incident of 8 July 2002, the applicant was placed in the disciplinary cell for serious breach of prison rules. Having regard to the applicant’s mental condition, the paramedic who examined him after the incident had recommended keeping him handcuffed. As regards the time of the applicant’s discharge to the Hospital, the Governor indicated that: “The [Kominternovskyy Court’s judgment of 5 July 2002] did not contain any provision for immediate execution. It set out a fifteen-day time limit for appeal; therefore the term provided by Article 404 of the Code of Criminal Procedure for execution of this judgment was complied with as the applicant was transferred to the [Hospital] on 17 July 2002.” 55. On 1 October 2004 the Zhovtnevy Court, acting on a complaint lodged by the applicant’s lawyer, quashed that decision and ordered further investigations, pointing out the following irregularities: failure to take account of the submissions of the applicant’s mother concerning the applicant’s state of health in July-August 2002; failure to measure the lawfulness and reasonableness of the guards’ conduct against the legal principle prohibiting degrading treatment; failure to determine whether the applicant’s misbehaviour constituted a breach of prison rules that warranted his placement in a disciplinary cell; failure to consider the proportionality of the force used; the fact that the investigation was conducted by the Governor of the SIZO, a person whose impartiality was highly doubtful. 56. The case-file was transmitted to the Kharkiv Regional Prosecutor’s Office for additional investigations. In a final report of 1 November 2004 a prosecutor of the prison supervision department of the Kharkiv Regional Prosecutor’s Office came to a similar conclusion to that reached by the Governor of the SIZO, that the applicant was fit for detention in the SIZO and the prison officers concerned acted properly on the basis of the orders they were given and the relevant regulations. The prosecutor referred to the evidence collected by the Governor’s investigation and the statements of the prison psychiatrist that certain drugs should normally be used to pacify mentally ill patients, and when no drugs were available, special equipment could be used to immobilise such patients. The prosecutor further agreed with the Governor’s finding that the applicant’s conduct constituted a flagrant violation of prison rules and warranted his detention in the disciplinary cell. The applicant’s mother appealed. 57. On 30 July 2005 the Chervonozavodskyy District Court of Kharkiv (hereafter “the Chervonozavodskyy Court”) quashed that report and ordered further investigations as the authorities had failed to follow the instructions of the Zhovtnevy Court. 58. On 6 September 2005 a senior prosecutor of the prison supervision department of the Kharkiv Regional Prosecutor’s Office, following additional investigation, decided not to bring any charges against the prison officials. His final report repeated, in substance, the findings in the report of 1 November 2004 that the applicant had been fit to be detained in the SIZO and that there had been no wrongdoing on the part of the prison authorities. The senior prosecutor stated, inter alia, that the applicant’s detention after 12 June 2002 had been based on a letter from the Head of the Investigative Department of the Kominternovskyy District Police Station that the applicant’s case-file had been sent to the Kominternovskyy District Prosecutor’s Office for approval. As to the applicant’s ten-day confinement in the disciplinary cell, he considered that “the severity of the punishment imposed was fully in keeping with the nature of the offence committed”. He further considered that the applicant had been held in the SIZO until 17 July 2002 because of the fifteen-day time-limit for entry into force of the judgment of 5 July 2002. Although the forensic report of 14 August 2002 recorded the use of handcuffs by the prison guards, the investigation did not establish whether or not, between 8 and 15 July 2002, the applicant was handcuffed all the time. The senior prosecutor concluded that there was no evidence that the prison officers had acted in bad faith or in violation of the relevant laws and regulations when restraining the applicant with truncheons and handcuffs, putting him in a disciplinary cell and holding him in the SIZO until 17 July 2002. 59. On 28 October 2005 the applicant’s mother challenged that report before the Chervonozavodskyy Court, where the proceedings are still pending. 60. The relevant extracts from the Constitution read as follows: “Article 28 Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ... Article 29 Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law...” 61. The text of Article 19 and Articles 92 and 94-96 of the Criminal Code of 5 April 2001 can be found in the Court’s judgment in the case of Gorshkov v. Ukraine (no. 67531/01, § 28, 8 November 2005). 62. Article 365 of the Code provides: “Excess of authority or official powers, that is the wilful commission by an official of acts which patently exceed the rights and powers vested in him or her and which cause any significant damage to the legally protected rights and interests of individual citizens, state and public interests or those of legal entities shall be punishable ....” 63. Article 367 of the Code prescribes liability for official negligence: “Neglect of official duty, that is failure to perform, or improper performance, by an official of his or her official duties due to negligence, where it causes any significant damage to the legally protected rights and interests of individual citizens, state and public interests or those of legal entities, shall be punishable ...” 64. The relevant provisions of the CCrP regulating the conduct of pretrial investigation proceedings are summarised in the Court’s judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 38 and 39, 4 April 2006), 65. Article 101 enumerates the bodies responsible for inquiries. Normally these functions are discharged by the police. However, paragraph 5 of Article 101 also vests this power in the governors of prisons and pre-trial detention centres, who conduct inquiries into offences committed by prison officials involving infringements of prison rules. 66. Articles 148 (purpose of and grounds for taking preventive measures), 149 (list of preventive measures), 150 (circumstances that should be taken into account in choosing a preventive measure) and 156 (time-limits for holding in custody) of the CCrP are to be found in the Nevmerzhitsky v. Ukraine judgment (no. 54825/00, § 53, ECHR 2005). 67. Article 155 of the CCrP insofar as relevant provides as follows: “Detention on remand as a preventive measure shall be applied in cases concerning offences for which the law envisages a penalty of more than three years’ imprisonment... Persons against whom a detention on remand order is issued shall be held in pre-trial detention centres.” 68. Article 237 of the CCrP insofar as relevant provides: “In a case received from the prosecutor [with the bill of indictment], the judge in a preliminary hearing shall resolve the following questions: ...4) whether there are any reasons to change, terminate or apply a preventive measure.” 69. Article 241 of the CCrP reads as follows: “A preparatory hearing shall be held within 10 days or, in complex cases, 30 days of receipt of the case-file by the court.” 70. Article 205 of the CCrP provides: “If forensic medical or psychiatric examination necessitates long-term monitoring or assessment of the suspect, the court, on the investigator’s request and with the prosecutor’s authorisation, may order the suspect’s commitment to the relevant medical institution.” 71. Article 347 of the CCrP provides: “An appeal may be lodged against: ...2) a court order concerning the application of ... compulsory medical treatment.” 72. According to Article 349 of the CCrP: “An appeal against a judgment, ruling or order of a first instance court ... may be filed within fifteen days of its adoption...” 73. Article 402 of the CCrP reads as follows: “The court order or ruling shall become final and enforceable upon the expiry of the time-limit for appeal.” 74. Articles 416 (Grounds for the application of measures of compulsory medical treatment) and 422 (Termination or modification of the applicable compulsory measures of medical treatment) of the CCrP are set out in the Gorshkov judgment (cited above, § 31). 75. Article 424 provides as follows: “An appeal or cassation appeal or an appellate or cassation petition by the prosecutor (апеляційне чи касаційне подання прокурора) against a ruling or resolution adopted by a judge or a court in the manner laid down by this Chapter, shall be entered in the ordinary manner.” 76. According to Article 417 of the CCrP: “Pre-trial investigation in cases concerning illegal acts committed by persons who are not criminally responsible or who bear only limited criminal responsibility, as well as in cases concerning offences committed by persons who become mentally ill after the events in question but before the imposition of the sentence, shall be conducted by the investigating authorities pursuant to the rules set out in Articles 111-130 and 148222 of the present Code. Following the completion of the pre-trial investigation, if the alleged offender is found to have no, or limited, criminal responsibility, the investigator shall draw up a ruling requesting the court to commit the person for compulsory medical treatment ... This ruling shall be sent to the prosecutor.” 77. Article 418 of the CCrP reads as follows: “Having received a case with the ruling under Article 417 of this Code, the prosecutor: 1) if he agrees with the ruling, shall confirm it and transmit the case to the court; 2) if he finds that the ... collected evidence is insufficient to reach a conclusion as to the mental condition of the accused or that the collected evidence is insufficient to prove that the illegal act was committed by the person concerned, shall return the case-file to the investigator with written instructions for further inquires.” 78. Article 419 of the CCrP insofar as relevant provides: “If the judge or the president of the relevant court who received the case-file with the request for compulsory medical treatment agrees with the investigator’s ruling, he or she shall send the case directly for trial. The trial in such cases shall be held in open hearing, with the obligatory participation of the prosecutor and defence lawyer, in accordance with rules laid down in Chapters 25 and 26 [Articles 283-317] of this Code.” 79. According to Article 421 of the CCrP: “When it is established that a [mentally ill] person has committed an illegal act or a person became mentally ill after committing an offence ... the court shall commit him or her for compulsory medical measures, indicating exactly what measure should be applied.” 80. Article 221 of the CCivP provides in its relevant part: “The court must suspend its examination of a case if ...it is impossible to hear the case before other civil, criminal or administrative proceedings have been terminated.” 81. Article 256 of the CCivP provides that close relatives of a mentally ill person, associations, a prosecutor or a local board of tutorship may apply to the court with a view to declaring that person incapable by reason of mental disorder. 82. According to Article 257 of the CCivP a petition filed under Article 256 should include evidence of the mental disorder which prevents the person concerned from understanding his or her actions and conducting his or her affairs. 83. Article 258 of the CCivP empowers the court to order forensic psychiatric examination of the person concerned. In exceptional cases, when the person overtly avoids examination, the court may order his or her compulsory psychiatric examination. 84. Section 8 of the Act provides that: “Detained persons shall be held in ordinary cells. In exceptional circumstances ... and for medical reasons, following a reasoned decision of the relevant investigating authority or governor of the relevant pre-trial detention facility, a detainee may be placed in solitary confinement.” 85. Section 18 of the Act sets out rules governing the use of force by prison guards. Officers in pre-trial detention facilities are entitled to use physical force, police equipment and firearms against the inmates. The use of force should be preceded by a warning if the circumstances so allow. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties and should be carried out so as to inflict as little injury as possible. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs, truncheons etc., with a view to putting an end to physical resistance, violence, outrage (буйство) and opposition to the lawful directions of the administration of the detention facility when other means of achieving a legitimate objective prove ineffective. Special police equipment and firearms must not be used on women with visible signs of pregnancy, elderly persons, persons with visible signs of invalidity or underage persons, except in the event of an assault by a group of these persons which is dangerous for the lives of the prison officers or others. 86. A governor has the power to place a prisoner in a disciplinary cell where this is necessary to put an end to physical resistance, violence, outrage and opposition to the lawful directions of the administration. 87. The choice of the means to be used and the time and intensity of their use depends on the circumstances, the nature of the wrongdoing and the personal characteristics of the perpetrator. 88. An officer who uses force or special equipment must immediately report it to his direct supervisor and the relevant prosecutor. All persons against whom the above means have been used should be immediately examined by a medical practitioner. 89. The relevant provisions of the Act are quoted in the case of Gorshkov (cited above, § 30). 90. Paragraph 4 of the Resolution enumerates the cases when special means may be used, including when they are necessary for putting an end to resistance to police officers or other persons carrying out official public order duties. 91. Paragraph 6 of the Resolution provides that decisions to use special means must be taken by an official responsible for maintening public order or by the head of the particular operation. A person taking such a decision must immediately inform his or her superiors in writing. 92. Paragraph 7 of the Resolution obliges the police officers who applied the special means to ensure immediate medical assistance to the victims. 93. Paragraph 14 of the Resolution prohibits the application of rubber truncheons to the head, neck, collar area, stomach and genitalia. 94. According to Paragraph 2.5 of Decree no. 346/877 psychiatric establishments are obliged to inform the relevant local police department of the imminent release of mentally ill persons. 95. The relevant extracts from Decree no. 397 of the Ministry of Health of 8 August 2001 on the procedure for applying compulsory measures of medical treatment in psychiatric hospitals to persons who have mental illnesses and who have committed socially dangerous acts (approved by the Supreme Court of Ukraine, the Ministry of Internal Affairs and the General Prosecution Service) are set out in Gorshkov (cited above, § 32). 96. The relevant extracts from the Instruction on the procedure for applying measures of compulsory medical treatment to persons of unsound mind who have committed socially dangerous acts (adopted by Decree No. 397 of the Ministry of Health) are also quoted in the case of Gorshkov (cited above, § 33). 97. According to Section 8 of the Resolution, force, as an element of excess of power, can be both physical and psychological. Physical force may involve, inter alia, unlawful deprivation of liberty and inflicting blows. 98. Section 9 of the Resolution provides that illegal actions constituting an excess of power fall within the scope of criminal law when they are “painful or abusive”, and the Supreme Court has declared that such actions are to be interpreted as “painful or abusive” when they inflict physical pain or moral suffering on the victim. These actions can involve, inter alia, the unlawful use of special police equipment such as truncheons and handcuffs. 99. The 1983 Resolution was valid at the material time. In 2005 it was replaced by Resolution no. 7 of 3 June 2005. 100. In both Resolutions (1983 and 2005 - Sections 9 and 15 respectively) the Supreme Court, interpreting domestic law regulating the types of compulsory measures of a medical character, stated that a court which orders compulsory treatment of a person against whom a preventive measure had been taken should simultaneously order the discontinuation of the preventive measure from the moment of the person’s admission to a psychiatric institution. 101. The relevant provisions of the first and second annual reports are set out in the Nevmerzhitsky judgment (cited above, §§ 60 and 61). 102. The relevant extracts from Committee of Ministers Recommendation No. R (87) 3 on the European Prison Rules (adopted by the Committee of Ministers on 12 February 1987 at the 404th meeting of the Ministers’ Deputies) read as follows: “Medical services 26. 1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general heath administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. 2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be staff of suitably trained officers. 30. 1. The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. 2. The medical officer shall report to the director whenever it is considered that a prisoner’s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment. Discipline and punishment 38. 1. Punishment by disciplinary confinement and any other punishment which might have an adverse effect on the physical or mental health of the prisoner shall only be imposed if the medical officer, after examination, certifies in writing that the prisoner is fit to sustain it. Instruments of restraint 39. The use of chains and irons shall be prohibited. Handcuffs, restraint-jackets and other body restraints shall never be applied as a punishment. They shall not be used except in the following circumstances: a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; b. on medical grounds, by direction and under the supervision of the medical officer; c. by order of the director, if other methods of control fail, in order to protect a prisoner from self-injury, injury to others or to prevent serious damage to property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority. 40. The patterns and manner of use of the instruments of restraint authorised in the preceding paragraph shall be decided by law or regulation. Such instruments must not be applied for any longer time than is strictly necessary. Insane and mentally abnormal prisoners 100. 1. Persons who are found to be insane should not be detained in prisons and arrangements shall be made to remove them to appropriate establishments for the mentally ill as soon as possible. 2. Specialised institutions or sections under medical management should be available for the observation and treatment of prisoners suffering gravely from any other mental disease or abnormality. 3. The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all prisoners who are in need of such treatment.” 103. The relevant extracts from the CPT Report [CPT/Inf (2004) 34] on a visit to Ukraine from 10 to 26 September 2000 read as follows: “The CPT would point out that all mentally ill prisoners, including those serving life sentences, should be cared for and receive treatment in a hospital facility adequately equipped and with qualified staff. Forcing such prisoners to stay in prison, where they cannot receive appropriate treatment for lack of suitable facilities or because such a facility refuses to accept them, is an unacceptable state of affairs. The transfer of mentally ill prisoners to an appropriate psychiatric facility should be considered a high priority.”