Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1980 and lived until his arrest in the town of Dyatkovo in the Bryansk Region. He is serving his sentence in the correctional colony in the village of Kamenka in the Bryansk Region.

On 14 December 2002 the police arrested the applicant and brought him to the Dyatkovskiy District police station.

On the same day a police officer, I., who had taken part in the applicant's arrest, drew up a report, informing the chief of the Dyatkovskiy District police station that a man had approached him and his fellow officers in a street, complaining that he had been beaten up and robbed. The applicant had passed by and the victim had identified him as the robber. The applicant had tried to escape but he had been apprehended and taken to the police station. The report did not indicate whether force or special means had been used during the arrest.

The applicant lodged a complaint with the Dyatkovo Town Prosecutor's office, seeking institution of criminal proceedings against the arresting police officers. In particular, he alleged that the police officers had unlawfully applied force against him during the arrest.

On 30 December 2002 a deputy Dyatkovo Town Prosecutor issued a decision, finding that there was no case to answer and dismissing the applicant's complaint. The decision stated that on 14 December 2002, after the applicant had committed the robbery, police officers had stopped him in a street and had ordered him to get into a police car. The applicant had refused, had punched police officer Ka. in the face and had attempted to escape, threatening the officers with a knife. Police officer I. had hit the applicant with a rubber truncheon on the arm, forcing him to drop the knife. Subsequently, the police officers had forced the applicant into the car. The deputy prosecutor concluded that there had been no indication of a criminal offence in the police officers' actions. The applicant was served with a copy of that decision.

According to the applicant, after being taken to the Dyatkovskiy District police station on 14 December 2002, he had been placed in a cell. An assistant police officer on duty, P., had approached the applicant and hit him with a rubber truncheon approximately ten times on the left side of the body and once in the face. An officer on duty, S., had entered the cell and had started beating the applicant as well. The beatings had continued for an hour and a half. The applicant had subsequently been placed in the detention facility of the Dyatkovskiy District Police Department.

The Government, relying on the information provided by the Prosecutor General's office, submitted that on 14 December 2002 the applicant had been taken in a state of alcoholic intoxication to the duty unit of the Dyatkovskiy District police station. After being placed in a cell for administrative detainees, he had started kicking the door, using obscene language and ignoring the police officers' orders to stop the unlawful behaviour. Police officer P. had entered the cell and hit the applicant a number of times in the back with a rubber truncheon. After officer P. had left, the applicant had stripped to the waist and started pushing the door. The police officers, using force, had transferred him to another cell. While he was being escorted to the new cell and was passing the desk of an officer on duty, the applicant had started spitting on the desk communication board. Officer P. had thus been forced to hit the applicant with a rubber truncheon. In the new cell the applicant had continued kicking the door. The police officers had had no choice but to handcuff the applicant to a metal bar, so he could not reach the door. Shortly after, when the applicant had calmed down, the handcuffs had been removed. No force had been applied against the applicant after that incident.

On 15 December 2002, on admission to the detention facility of the Dyatkovskiy District Police Department, an officer on duty examined the applicant and drew up a report, recording the following injuries on his body: bruises on the chest, numerous injuries on the back, bruises on the left hip and buttock, injuries on the forehead, face and left cheek. As shown by the documents presented by the parties, on 16 December 2002 an emergency doctor was called to attend to the applicant in response to his complaints about severe pain in the jaw and chest. The doctor examined the applicant, noted his injuries and, suspecting that he could have had a rib fracture, recommended an examination by a traumatologist.

Five days later the applicant complained to the head of the detention facility about the beatings in the police station and sought the institution of criminal proceedings against the police officers.

On 20 December 2002 the applicant was examined in the medical division of the Dyatkovskiy District Police Department and a report was drawn up. According to the report, he had a hypodermic injury on the left side of the chest. The injury measured 15 centimetres in length and 5 centimetres in width and resulted from a blow by a rubber truncheon.

Ten days later the applicant, being diagnosed with encephalomyelopolyneurotis, was admitted to the hospital of the Dyatkovskiy District Police Department where he stayed until his transfer, on 22 January 2003, to Bryansk prison hospital no. OB-21/2. He remained in that hospital until 4 February 2003 with a diagnosis of “consequences of neuritis of the left fibular nerve”.

In the meantime the applicant lodged a complaint with the Dyatkovo Town Prosecutor, describing the beatings in the police station on 14 December 2002 and asking for an investigation into the incident.

On 23 January 2003 a deputy Dyatkovo Town Prosecutor refused to institute criminal proceedings against police officers P. and S., finding that their actions, in a situation where the applicant had behaved in an unruly manner, had been lawful and proportionate.

On 4 April 2003 a deputy Bryansk Regional Prosecutor annulled the decision of 23 January 2003 and authorised a re-examination of the applicant's ill-treatment complaints. The relevant part of the decision read as follows:

“The decision [of 23 January 2003] was manifestly ill-founded and premature, as the investigation had been incomplete; the circumstances in which the injuries to [the applicant] had been caused were not fully examined; [the applicant] was not questioned and [he] did not undergo an examination by a medical expert; administrative and criminal arrestees detained in [the police station] were not questioned about the events; the traffic police officers who had brought [the applicant] to the [police station] were not questioned; therefore [the decision] should be annulled.”

The deputy prosecutor also drew up a list of measures which should be taken in the course of the new round of the investigation, including a medical examination and questioning of the applicant, and the establishment and questioning of possible eyewitnesses among those persons who had been detained with the applicant.

On 14 April 2003 a deputy Dyatkovo Town Prosecutor, in a decision worded identically to the one issued on 23 January 2003, once again refused to institute criminal proceedings against officers S. and P., confirming the lawfulness of their actions.

On 6 August 2003 the Bryansk Regional Prosecutor informed the applicant that the decision of 14 April 2003 had been quashed, that an additional investigation into his complaints was to be conducted and that the case file had been sent back to the Dyatkovo Town Prosecutor's office. When quashing the decision of 14 April 2003, the Bryansk Regional Prosecutor's office repeated the list of investigative steps to be taken.

On 22 August 2003 an assistant Dyatkovo Town Prosecutor dismissed the applicant's complaints against police officers S. and P., finding no case of ill-treatment. The decision of 22 August 2003 was similar in its wording to those issued on 23 January and 14 April 2003.

In October 2003 a neuropathologist examined the applicant and diagnosed him with asthenovegetative syndrome related to a head injury.

On 21 October 2003 the Dyatkovo Town Prosecutor annulled the decision of 22 August 2003, finding that the investigation had been incomplete. A new round of investigation was authorised.

Three days later, on 24 October 2003, an investigator of the Dyatkovo Town Prosecutor's office once again dismissed the applicant's complaint, repeating the findings made in the decision of 22 August 2003. In addition, the investigator recounted statements made by the applicant, by an investigator who had interviewed him on 14 December 2002, by a doctor who had examined the applicant on 16 December 2002, by two persons who had been detained with the applicant on 14 December 2002, and by the victim whom the applicant had robbed. The applicant had maintained his complaints. The investigator had testified that he had not seen any injuries on the applicant and that the latter had not made any complaints. The doctor had stated that she had been called to attend to the applicant who had complained about pain in the jaw and on the left side of the chest. She had examined the applicant and recorded injuries on the chest and lower jaw. She had presumed that the applicant had had a rib fracture. She had indicated that the applicant had to be examined by a traumatologist. The inmates had testified that the applicant had been placed in their cell in the second half of the day on 14 December 2002. He had shown them injuries on his back and complained that he had been beaten up by the police officers. The victim had testified that he had not seen any injuries on the applicant's body on the day of the robbery.

The investigator concluded that officers S. and P. had acted in full compliance with requirements of Articles 13 and 14 of the Police Act.

On 19 May 2004 the Dyatkovo Town Court, acting on the applicant's appeal against the decision of 24 October 2003, confirmed the findings made by the investigator. The Town Court noted that the officers' actions had been beyond reproach, the lawfulness and proportionality of their actions being manifest.

On 23 July 2004 the Bryansk Regional Court quashed the decision of 19 May 2004 and remitted the case for re-examination to the Town Court. The Regional Court held, in particular, as follows:

“At the same time it is impossible to conclude that the decision of the investigator refusing institution of criminal proceedings was lawful and well-founded, taking into account the following considerations.

As shown by the material from investigation no. 1-13 opened upon the [applicant's] complaint, the investigator's conclusions drawn up in the decision [of 24 incomplete.

The fact of [the applicant's] arrest and [his] placement in the detention facility of the Dyatkovskiy District Police Department on 14 December 2002, at 7.20 p.m., was confirmed by an extract from the registration log of persons brought to the police department... According to an extract from the record of medical examinations of persons detained in the detention facility of the Dyatkovskiy District Police Department, on 15 December 2002, at the time of the placement, [the applicant] had injuries on the left and right sides of the body, the left and right buttocks, injuries on the forehead, the bridge of his nose, the left cheek, and numerous injuries on the back.

As is apparent from the statements by [the victim of the robbery], on 14 December 2002, at about 7 p.m., [the applicant] had no visible injuries.

The decision [of 24 October 2003] did not indicate whether it had been established that [the applicant] had been injured by officers of the police department during his arrest.

Therefore, in the course of the investigation the investigator of the prosecutor's office did not establish the time, place, extent, or method and means of infliction of the injuries which [the applicant] had been found to have during his examination on 15 December 2002; the severity [of those injuries] was likewise not established.

Accordingly, [the court] cannot regard as rightful and substantiated the investigator's finding that [the applicant] received injuries as a result of the two blows to his back made by Mr P. and by [the applicant's] knocking on the door and walls and by his being handcuffed.

The investigator did not examine, and thus did not evaluate, the [applicant's] statements concerning the effect of the injuries which had led to his having obtained a leg disease... accordingly, [an investigator] did not check information concerning [the applicant's] stay in hospital; a diagnosis which had been pronounced at the end of the treatment; the severity of the damage caused to [the applicant's] health leading to the diagnosis; the existence of a causal link between the injuries which he had been found to have on 15 December 2002 and his illness.

In the decision the investigator refers to statements by Mr K. and Mr G., from which it transpires that they were arrested and detained in cell no. 7, when on 14 December 2002 after dinner, [the applicant] was placed there, allegedly in a state of intoxication; [he had] injuries and explained that they had been caused by the police officers when he had offered resistance to the arresting officers.

At the same time, as is apparent from the material in investigation file no. 1/13, on 14 December 2002, at 11.50 p.m., [the applicant] was placed in a cell where Mr Sh., Mr T., and Mr D. were being held. On 15 December 2002, at 4 p.m., [the applicant] was placed in cell no. 7 with Mr G. and Mr K.

In these circumstances, the [Regional] Court considers that the conclusions of the [Town] Court about the lawfulness and rightfulness of the investigator's decision of 24 October 2003, concerning the refusal to institute criminal proceedings, do

On 4 November 2004 the Dyatkovo Town Court accepted the applicant's complaint and annulled the investigator's decision of 24 October 2003, endorsing the reasoning of the Regional Court. The decision of 4 November 2004 was upheld on appeal on 24 December 2004.

On 19 November 2004 the investigator of the Dyatkovo Town prosecutor's office refused to institute criminal proceedings against officers S. and P. The wording of that decision was similar to that of the decision of 24 October 2003, but with an additional paragraph which read as follows:

“[The applicant] in his numerous complaints stated that, as a result of being beaten by the police officers, his legs had been paralysed; however, his statement is refuted by the conclusions of a forensic medical examination which had been performed [in compliance with the Town Court's decision of 4 November 2004] on the basis of [the applicant's] medical records from facilities nos. IZ-32/1 [detention facility of the Police Department] and OB-21/2...; on the basis of which it was established that the illnesses with which [the applicant] had been diagnosed in those facilities...do not have a pathogenetic causal link to his injuries and that [the illnesses] are independent diseases of a non-traumatic character. When [the applicant] asked for medical assistance on 15 December 2002, he had an injury on the forehead and the nose bridge, an injury on the left cheek-bone, bruises on the left and right sides of the chest, and bruises on the back and buttocks. Those injuries were caused by numerous applications of firm blunt objects to those parts [of the body], which could have been carried out by blows with those objects or by his being hurled against those objects. Those injuries, taken together or separately, caused 'slight' damage to the health ... During the examination and treatment of [the applicant], immediately after the injuries had been caused or in a subsequent period of time, [the investigation] did not establish any data which could have shown that [the applicant] had had a head injury, a rib fracture, a spinal injury or any other injuries of a traumatic character.”

On 1 December 2006 a deputy Bryansk Regional Prosecutor quashed the decision and authorised the Dyatkovo Town Prosecutor's office to open an additional investigation into the applicant's complaints.

According to the Government, three days later the Dyatkovo Town Prosecutor closed the investigation, finding no criminal conduct in the police officers' actions. The Government did not produce a copy of the decision of 4 December 2006. However, they submitted that officers S. and P. had been questioned and had confirmed the statements they had made during the previous rounds of the investigation. In particular, the officers had stressed that the use of rubber truncheons had been an adequate and proportionate response to the applicant's unlawful behaviour. The Government further noted that in his decision of 4 December 2006 the prosecutor had relied on the results of the applicant's medical examination of 4 November 2004. The examination had established that the applicant's illnesses had had no causal link to the injuries recorded on 15 December 2002. The prosecution authorities had also questioned four persons who had been detained together with the applicant on 14 and 15 December 2002. According to those individuals, the applicant had not complained about being beaten in the police station.

The Government further noted that the Prosecutor General's office of the Russian Federation had thoroughly studied the conclusions of the investigation conducted by the Dyatkovo Town prosecutor's office between 1 and 4 December 2006, and in the Government's view the investigation had been comprehensive. The applicant's injuries had been “caused as a result of his unlawful actions”. The Prosecutor General's office had conceded that officers S. and P. had not overstepped the boundaries of their professional responsibilities in applying force against the applicant.

On 29 May 2003 the Dyatkovo Town Court found the applicant guilty of robbery and assault and sentenced him to eight years and three months' imprisonment. On 11 July 2003 the Bryansk Regional Court, on appeal, reduced the sentence by one year.

The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities' own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37). He can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds to initiate a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect which has to be notified to the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction within a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP 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.

Rubber truncheons may be used in the following cases:

- to repel an attack on a staff member of a detention facility or on other persons;

- to repress mass disorder or put an end to collective violations of the detention rules and regulations;

- to put an end to a refusal to comply with lawful orders of facility administration and warders;

- to release hostages and liberate buildings, rooms and vehicles taken over by a detainee;

- to prevent an escape;

- to prevent a detainee from hurting himself (section 45).

Police officers are only entitled to use physical force, special means and firearms in the cases and within the procedure established by the Police Act; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by the Custody Act (section 12).

Section 12 of the Police Act provides that a police officer resorting to physical force, special means or a firearm, should warn an individual that force/special means/firearms are to be used against him. In cases when a delay in the use of force, special means or firearms may endanger the life and health of civilians or police officers or cause other serious damage such a warning is not necessary. Police officers should ensure that damage caused by the use of force/special means/firearms is minimal and corresponds to the character and extent of the danger that an unlawful conduct and a perpetrator pose and the resistance that the perpetrator offers. Police officers should also ensure that individuals who have been injured as a result of the use of force/special means/firearms receive medical assistance.

By virtue of section 13 of the Police Act police officers may use physical force, including combat methods, to prevent criminal and administrative offences, to arrest individuals who have committed such offences, to overcome resistance to lawful orders, or if non-violent methods do not ensure compliance with responsibilities entrusted to the police.

Sections 14 and 15 of the Police Act lay down an exhaustive list of cases when special means, including rubber truncheons and handcuffs, and firearms may be used. In particular, rubber truncheons may be used to repel an attack on civilians or police officers, to overcome resistance offered to a police officer and to repress mass disorder and put an end to collective actions disrupting work of transport, means of communication and legal entities. Handcuffs may only be used to overcome resistance offered to a police officer, to arrest an individual caught when he is committing a criminal offence against life, health or property and if he is attempting to escape, and to bring arrestees to police stations, to transport and protect them if their behaviour allows the conclusion that they are liable to escape, cause damage to themselves or other individuals or offer resistance to police officers.


Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicant was born in 1962 and lived in Szeged.

On 13 May 2003 the applicant was caught in the act of committing armed robbery. In the ensuing exchange of shots, he killed a police officer and wounded another. He was also injured in his spine, as a consequence of which he became paralysed in both his legs from the waist down. Ever since, he has also been suffering from incontinence. He is now 100% disabled, only capable of moving in a wheelchair; moreover, he has to use diapers.

The applicant was sentenced to life imprisonment. Between 25 February 2005 and 15 December 2006 he was detained in Szeged Prison.

The applicant described the conditions in Szeged Prison as follows: Since he was unable to fulfil the obligations incumbent on healthy inmates, he needed to sleep in his clothes in an undone bed and use his jacket as a blanket in order to avoid being sanctioned for violating the daily routine of making the bed on time. With no assistance from staff, he could wash or relieve himself only if his cellmates helped him do so. He was not provided with a proper bath chair; instead, he was given a wooden toilet-seat which – unfit for the purposes of bathing – rotted away fast and on one occasion, broke under him. Because of harassment from fellow inmates on account of his disability and incontinence, he did not participate in the daily open-air stays. Classified as a 'Grade 4' security-level prisoner, he was transported with his hands handcuffed to his belt at all times. While being transported in this posture in a van without a safety belt, he could keep himself in his wheelchair only by supporting his body by leaning his head against the door of the transport cabin. As a consequence, he regularly suffered swellings on his head. When entering or exiting the transport van, staff dragged him by his belt, sometimes on the floor causing him bruises; an incident of this kind took place on 12 June 2006. On other occasions, his wheelchair – with the applicant, weighing 110 kilograms, sitting in it – was rolled down the van's steps.

The applicant's complaint about the above conditions to the Csongrád County Chief Public Prosecutor's Office was to no avail.

According to the prison's medical service, the applicant suffered inter alia from high blood pressure, overweight, paraplegia and a neurogenic bladder. His transfer to a specialised penitentiary was recommended but not taken up by the prison administration. Upon the applicant's complaint, the National Prison Administration investigated his situation. Its findings included the following:

“The applicant's cell is located on the ground floor ..., next to the medical consultancy room. It is suitable for accommodating four inmates, but only two or three inmates, including the applicant, are actually placed in it. The furniture is refurbished and adjusted to the applicant's health needs: the table is elevated, the beds are single rather than bunk beds, the wardrobe and the mirror are placed at a height reachable by the applicant, entrance obstacles have been removed and a handrail has been fitted next to the toilet. A cellmate has voluntarily undertaken the task of keeping the cell tidy and helping the applicant perform his everyday duties. The applicant has never been reproached for a violation of the prison cell order.

A hot water shower (bath) has been provided to the applicant on a daily basis. A hand shower and a bath chair are available to him. ... A cellmate has voluntarily undertaken to help the applicant wash himself. ...

... In order to prevent harassment by fellow inmates, the applicant has been granted the opportunity to have daily open-air stays in a [protected] courtyard ... The applicant, however, does not wish to make use of this possibility.

Upon the applicant's complaints ... on 30 May 2006 the warden ordered the transport van [in question] to be equipped with a safety belt and informed the applicant thereof ... as well as of the fact that, in the light of medical opinion, his transportation in an ambulance car ... was not justified. According to the findings of the investigation, the applicant suffered light scratches and bruises [while in transport] in December 2004 and June 2006. Therefore the prison management instructed staff to proceed with special care in respect of the applicant. According to the opinion of the competent health organ, the applicant's transport did not require the participation of medical staff.

On 21 April 2006 the applicant requested to be transferred to Nagyfa Prison. His request was dismissed by the ... National Prison Administration on 9 June 2006 on the ground that he was serving his sentence in a penitentiary institution whose strictness was commensurate with the offence he had committed and with the regime imposed on him; where his nursing and medical supervision was resolved and where physical obstacles had been removed in order to ensure his free movement in a wheelchair. The applicant filed a complaint against the decision. The complaint was dismissed by the National Commander on 26 July 2006 and his transfer was not authorised. According to the reasoning of the decision, '[the applicant did] not require permanent nursing or medical supervision. At his present place of detention, alterations had been made in the building, as required by his disability. Medical treatment, as appropriate in his present state, can be provided for him at his present place of detention, where the circumstances have been adjusted to his needs ...'”

The applicant submitted that the transport van was not equipped with a safety belt until the end of August 2006. Concerning open-air stays, he explained that the surface of the courtyard in question was uneven and therefore unsuitable for a wheelchair.

Given that other criminal proceedings were pending against him, the applicant had to be regularly transported to Budapest to stand trial. In a complaint dated 5 September 2006 and addressed to the head of the Transportation Department of Budapest Prison, the applicant submitted that on Monday, 4 September 2006 he had been placed in an admission cell in which he had had to spend five hours with no access to water and without any possibility to change his diapers. He also submitted that during the transport he had been placed in a one-person box of the van where he had suffered bruises: in a road curve, he had fallen out of his wheelchair and had been travelling on the floor of the van, handcuffed to his belt, with his arms under his body. He furthermore submitted that the following day, when he had requested a medical check-up, the nurse had informed him that no medical examination was available until the next weekly consultation to be held on the following Monday.

In the course of the ensuing investigation, on 18 September 2006 a medical report was drawn up but no external sign of injury was detected. In the absence of evidence, on 3 October 2006 the warden of Budapest Prison dismissed the applicant's complaint.

Upon the applicant's criminal complaint, an investigation was opened by the Szeged Military Public Prosecutor's Office against unknown persons for abuse of administrative authority, but was discontinued on 12 December 2006 by the Szeged Military Public Prosecutor's Office for want of evidence.

In a letter dated 27 October 2006 and addressed to the National Commander, the applicant complained about injuries allegedly suffered during his transport and the malfunction of his wheelchair. The ensuing investigation did not support the applicant's allegations about the injuries, but his wheelchair was subsequently repaired.

On 15 December 2006 the applicant was transferred to Sopronkőhida Prison where he was placed in a single cell specially designed for disabled inmates. On 18 December 2006 he was examined by a forensic medical expert. In his opinion the expert stated:

“... [In respect of standing up] the inmate ... partly or wholly exaggerates his pains... [He is] 100% disabled ... [but is] nevertheless, not totally unable to care for himself. His compulsive eating, together with his reluctance to accept painkillers ..., is a serious psychological obstacle to enhancing his mobility. At the same time ... the very existence of pain cannot be proven beyond doubt. From a forensic medical point of view, it can be established that ... the inmate has received all the medical, nursing and caring help he needs.”

Decree No. 6/1996 (VII.12.) of the Minister of Justice on the Rules of the Execution of Imprisonment and Pre-trial Detention provides as follows:

“Such inmates shall be classified as 'Grade 4 security' prisoners as are expected with good reason to commit an act severely violating the order of the penitentiary, to escape or to endanger his/her own life or limb or that of others, or as have already committed such acts, and whose safe detention may only be guaranteed by guarding or – exceptionally – by surveillance.”

The CPT's Report to the Hungarian Government after its visit to Hungary from 5 to 16 December 1999 provides, insofar as relevant, as follows:

“96. Under the prisoner grading system operated in Hungary, remand or sentenced prisoners who are considered as dangerous are placed in Grade 4 (Decree No. 6/1996 (VII.12.) of the Minister of Justice). Allocation is made either by the prosecutor, the court or the reception committee of the establishment. The CPT was informed that courts and prosecutors tend to attribute this grade to prisoners accused or convicted of serious crimes (especially persons involved in organised crime activities) and the prison reception committees, to persons with a previous record of ill discipline (including those prone to escape or those who have attempted suicide) or with a military background.

The status of Grade 4 prisoners is reviewed every six months. However, it would appear that the reasons underlying the decision for placement/prolongation of a Grade 4 measure are not disclosed to the prisoner concerned.

It is axiomatic that a prisoner should not be held in a special security regime any longer than the risk which he presents makes necessary. This calls for regular reviews of the placement decision. Further, prisoners should as far as possible be kept fully informed of the reasons for their placement and, if necessary, its renewal; this will inter alia enable them to make effective use of avenues for challenging that measure.”

The CPT's Report to the Hungarian Government after its visit to Hungary from 30 March to 8 April 2005 provides, insofar as relevant, as follows:

“64. Concerning the legal safeguards applicable to prisoners placed in Grade 4, their status is now reviewed every three months (at the time of the 1999 visit, the frequency of reviews was every six months); the CPT welcomes this change. However, the other long-standing recommendations of the CPT – concerning the provision to the inmates concerned of written information on the reasons for the measure and offering them an opportunity to express their views on the matter – had not been implemented.

Many Grade 4 prisoners interviewed by the delegation complained that they had not been informed of the reasons for the measure, had had no involvement in the review procedure and had received no information on the possibilities to contest it. Further, it was generally felt that the periodic review of the Grade 4 status was a pure formality. The examination of relevant documentation and interviews with inmates led the delegation to conclude that the determining factors in retaining the Grade 4 status were historical ones, like the violent nature of the crime committed (often many years before), rather than an assessment of the inmate's current dangerousness or propensity to act again in an unacceptable way. ...”

“184. During the 2005 visit, close attention was given to the situation of prisoners placed under a special security regime. The CPT has welcomed the fact that the status of prisoners classified as Grade 4 is now reviewed every three months; at the same time, it has called upon the Hungarian authorities to implement its previous recommendations concerning the provision to such prisoners of written information on the reasons for the measure as well as the opportunity to express their views on the matter. More generally, the Committee has recommended that the system of classifying prisoners as Grade 4 be reviewed and refined, with a view to ensuring that this grade is only applied – and retained – vis-à-vis prisoners who genuinely require to be accorded such a status.

The policy as regards the application of means of restraint to Grade 4 prisoners - already strongly criticised in the past by the CPT - remains unsatisfactory; the Committee has called upon the Hungarian authorities to review that policy without further delay. ...”


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in 1980 and lives in the town of Khimki, the Moscow Region.

In July 2004 the applicant married Mr O.A.

In the applicant’s submission, after the registration of the marriage her husband told her that his father, Mr M.A., was an influential person in the criminal world. She also submits that her husband has informal connections with police officers.

On 19 August 2004 the applicant gave birth to a son, M.

In 2007 marital tensions began to develop between the couple.

On 28 April 2008 Mr O.A. threw the applicant out of their family home without M. He said that he would take M. to Armenia and would not allow the applicant to contact the boy.

The applicant kept calling her son on the phone, but her husband’s family did not allow her to speak to M. Her attempts to visit her son were futile.

On 15 May 2008 the applicant instituted divorce proceedings before the Moscow Kuzminskiy District Court (“the district court”). She also requested the court to make an order concerning the child’s place of residence and to restrict Mr O.A.’s parental rights (“to remove a child from a parent” within the meaning of Article 73 of the Family Code of Russia).

On 25 August 2008 Mr O.A. and M. officially registered their place of residence as being at the Nikitskoe residence. In the applicant’s submission, Mr O.A. did not ask for her consent when changing M.’s place of residence.

In September 2008 the applicant saw her son for the first time since her separation from her husband for twenty minutes in the presence of Mr O.A., his mother and sister, as well as officials of child welfare authorities.

Two different district child welfare authorities examined the applicant’s and Mr O.A.’s respective places of residence. The Khimki Town Child Welfare Authority (“the Khimki child welfare authority”) delivered a report stating that it was in the best interests of the child to stay with the applicant, while the Moscow Kuzminki District Child Welfare Authority (“the Kuzminki child welfare authority”) decided that it was best for M. to live with his father, who had good living conditions and was prosperous.

On 13 November 2008 the district court dissolved the applicant’s marriage. It further found that the best interests of M. required that he reside with his mother. The judgment read, in so far as relevant, as follows:

“Having assessed all [the available] evidence as a whole, the court sees no reason to order that the child’s place of residence be with his father after the dissolution of the marriage, since it has not been proven that his mother has acted in breach of the child’s best interests. For a lengthy period of time the child has been living with the defendant without his mother’s consent. The defendant has not taken any real steps to reunite the family after the institution of court proceedings and has not provided the claimant with an opportunity to see the child.

... The court disagrees with the conclusions of the Kuzminki child welfare authority, as they are based exclusively on the fact that the defendant has certain assets ... The defendant did not deny that he had kept the child at his place [of residence against the claimant’s will], which was not taken into account by the [Kuzminki] child welfare authority when drafting the conclusions.

The child was born in 2004 ... Taking into account the his mother to bring him up, [and] the conclusions of the Khimki child welfare authority, the court considers it appropriate, while dissolving the parties’ marriage, to order that the child live with his mother, while ensuring his father’s rights as a separately-residing parent.

The court has thus decided to dissolve the marriage ... The child ... should continue residing with [the applicant].”

Mr O.A. later asked the police to institute criminal proceedings against the applicant, claiming that she had hired a hitman to kill him. On 6 March 2009 the authorities dismissed the request and refused to open a criminal investigation against the applicant.

Mr O.A. sent letters to child welfare authorities claiming that the applicant was trying to kill him. At some point he alleged that he had been beaten up on the street by persons hired by the applicant. Criminal proceedings instituted in this respect were suspended owing to the authorities’ inability to identify those responsible.

At some point the Kuzminki child welfare authority changed its view and produced another report stating that M. should live with his mother.

On an unspecified date Mr O.A. appealed against the district court judgment and sought the withdrawal of the applicant’s parental rights because she had allegedly organised an attempt on his life.

On 22 January 2009 the Moscow City Court (“the city court”) quashed the district court judgment of 13 November 2008 in part as regards the child’s place of residence for the reason that the two child care authorities had issued conflicting reports and remitted the case for fresh examination at first instance.

On 17 April 2009 the district court again decided that M. should reside with his mother. The judgment read, in so far as relevant, as follows:

“The representative of the Kuzminki child welfare authority ... considers it appropriate [for the court] to order that the child’s place of residence should be with his mother, but does not support [the applicant’s] claim to have the child removed [from his father] and considers it unsubstantiated.

The representative of the Kuzminki child welfare authority supports [the applicant’s] claims and considers it necessary to order that the child live with his mother, having removed him from his father.

... The court grants the claims in part ...

Under Article 73 of the Family Code of Russia a court ... may decide to remove a child from [his or her] parents (or one of them) without a withdrawal of parental rights. [Such a] restriction of parental rights is permissible where it is dangerous for a child to stay with [his or her] parents (or a parent) because of circumstances out of the parent(s) control, such as a mental illness or other disease or distressing circumstances.

The Khimki and Kuzminki child welfare authorities established that ... [the applicant]’s room was equipped with everything necessary for the child ...

The court has established that the defendant has impeded the claimant’s contact with the child, has breached the child’s rights to know who his mother is and to be brought up by his mother and has thus breached Articles 55, 56, 61 and 63 of the Family Code of Russia, while under the law in force he as a parent is obliged to protect the child’s rights and interests ... and not to breach the claimant’s rights concerning the child.

Taking into account all the circumstances as a whole, the court finds no reason to order that the child’s place of residence be with his father, because it has been proven that his father has been violating the child’s rights and those of the claimant. For a lengthy period the child has been living with his father without the claimant’s consent, the defendant has impeded the child’s contacts with his mother. The defendant has not ensured that the claimant could stay in full contact with the child, [and] has not ensured the child’s right to be brought up by his mother ...

Taking into account all the his mother to bring him up, [and] the conclusions of the child welfare authorities, the court considers it appropriate to order that the child live with his mother, while ensuring the father’s rights as a separately-residing parent. The claim to remove the child from his father is not granted [on that basis that it is] unsubstantiated, since the plaintiff has not shown, as required by Article 73 of the Family Code of Russia, that [the defendant] suffers from a mental or other illness or is in distressing circumstances.

The court has decided to order that M., born in 2004, reside with his mother, [the applicant].

The remainder of the claims is dismissed.”

Mr O.A. appealed against the judgment.

On 6 August 2009 the city court upheld on appeal the judgment of 17 April 2009, which became final.

On 31 August 2009 the applicant was issued a writ of execution on the basis of the judgment of 17 April 2009 stating that the child should reside with his mother. The writ was issued on a form which was no longer in use after 15 August 2009.

The applicant sent the writ to the circuit bailiffs’ office. On 3 September 2009 the bailiffs’ service for the South-Eastern Circuit of Moscow (“the circuit bailiffs’ office”) delivered a decision refusing to institute enforcement proceedings because the writ was issued on an old form. They sent the decision to the applicant by post. She received it on 29 September 2009.

It appears that on a number of occasions the applicant visited the circuit bailiffs’ office premises in person.

On 15 September 2009, during one of those visits, bailiffs showed the applicant their office’s undated decision not to commence the enforcement proceedings but refused to officially serve it on the applicant, claiming that she would receive it by post.

The circuit bailiffs’ office did not return the writ of execution issued on the old form to the applicant, thus precluding her from immediately applying to the district court for a writ in the new form.

On 21 September and 28 October 2009 the applicant requested the district court to issue a writ of execution in the new form.

On 21 September 2009 the applicant’s representative requested the district court to order the immediate enforcement of the judgment of 17 April 2009.

In October 2009 a deputy head of the circuit bailiffs’ office notified the applicant in writing that their decision of 3 September 2009 had been unfounded.

On 19 November 2009 the district court issued a new writ of execution and the applicant received it on an unspecified date upon her request.

The applicant complained to a prosecutor’s office about the failure to institute enforcement proceedings. On 4 December 2009 the prosecutor’s office for the South-Eastern Circuit of Moscow dismissed her complaint, stating that a decision making an order in respect of a child’s place of residence was of a factual nature and could not be enforced under the Federal Enforcement Act 1997.

Nevertheless, on 11 December 2009 the circuit bailiffs’ office instituted enforcement proceedings but delivered a decision to postpone the use of enforcement measures for the reason that the manner in which the judgment required to be executed was not clear. For this reason, on 16 December 2009 the circuit bailiffs’ office requested the district court to clarify the requirements of the writ of execution and to specify the manner in which it should be enforced.

While awaiting the district court’s decision, the circuit bailiffs’ office postponed the use of enforcement measures because the writ of execution was unclear on 25 December 2009 and 18 January 2010.

On 28 January 2010 the Federal Migration Service issued M., upon his father’s request, with a passport enabling him to leave the territory of the Russian Federation.

On 29 January 2010 the district court dismissed the circuit bailiffs’ office’s request for clarification stating that, when performing his duties, a bailiff should use all powers provided for by law.

On 4 February 2010 the circuit bailiffs’ office sent an official summons to Mr O.A.’s address and also sent him an order to immediately comply with the judgment of 17 April 2009 as upheld on appeal on 6 August 2009. Furthermore, on 3 and 11 February and 21 April 2010 bailiffs from the circuit bailiffs’ office visited Mr O.A.’s place of residence indicated in the writ of execution on Zelenodolskaya Street in Moscow (“the Zelenodolskaya flat”). Mr O.A. was absent on all three occasions. The bailiffs established that Mr O.A. resided at the address in question and that M. was absent.

On 11 February 2010 the circuit bailiffs’ office received a request for termination of the enforcement proceedings from Mr O.A. for the reason that M. had moved from Moscow to the village of Nikitskoe, in the Ramenskiy District of the Moscow Region.

On 25 February 2010 Mr O.A.’s representative was served with an order requiring Mr O.A. to comply with the court judgment. The representative explained that Mr O.A. resided together with his son M. in the village of Nikitskoe. The representative asked the circuit bailiffs’ office to terminate the enforcement proceedings for the reason that Mr O.A. had moved away from Moscow, which resulted in a delay in the execution of the judgment.

On the following day the circuit bailiffs’ office asked the bailiffs’ service for the Ramenskiy District of the Moscow Region (“the Ramenskoe bailiffs’ office”) to visit Mr O.A. at the Nikitskoe residence. A bailiff from that office visited the Nikitskoe residence on 19 March 2010. Nobody was home but the bailiff established that both Mr O.A. and M. resided there.

On 7 and 10 April 2010 the applicant notified the police that her son had been kidnapped.

On 20 April 2010 a bailiff from the Ramenskoe bailiffs’ office again visited the Nikitskoe residence. Nobody was home but the bailiff established that Mr O.A. resided there and M. was absent. On the same day, however, police officers paid a visit to Mr O.A.’s house in Nikitskoe. Both Mr O.A. and M. were there. M.’s identity was confirmed by his passport, which Mr O.A. presented to the police. A police officer talked to M. in the presence of Mr O.A.’s adult family members. No further action was taken.

Towards the end of April 2010 the applicant visited the Moscow City Department of the Interior. Officers P. and O. told her that they had gone to Nikitskoe on 20 April 2010 and had seen her son. They produced a picture of a boy. The applicant did not recognise her son in that picture.

On 21 April 2010 a bailiff from the circuit bailiffs’ office visited Mr O.A.’s flat at 11 Ferganskaya Street in Moscow. Nobody opened the door at first. Mr O.A. later appeared and told the bailiff that M. was absent from the flat. He refused to receive a copy of the decision ordering the commencement of enforcement proceedings and requiring him to comply with the judgment.

On 19 May 2010 an investigator from the South-Eastern Circuit Investigative Unit of the Investigative Committee of the Russian Prosecutor’s Office (“the investigator”) visited the village of Nikitskoe. He met Mr O.A., his father, as well as M.’s aunt, uncle and cousin near a café not far from the Nikitskoe residence. The investigator talked to M. and his minor cousin in the presence of the adults. M. said that he lived with his father and the latter’s wife and that he did not want to live with his mother. The investigator made a video of M. and his minor cousin.

On 20 May 2010 the police unit in charge of cases involving minors paid a visit to the Nikitskoe residence and issued a certificate upon its examination confirming that Mr O.A. and his son M. lived in good conditions. The following day the Ramenskoe Town Prosecutor’s Office notified the applicant of the following. Mr O.A., his wife, parents and M. were residing in Nikitskoe in a six-room house. M. did not go to kindergarten but was receiving daily private lessons from a teacher hired by Mr O.A. In the event of M. having medical problems Mr O.A. personally took him to a Moscow hospital. Mr O.A. performed his parental duties in full and the child had a separate bedroom. M. resided in Mr O.A.’s house in Nikitskoe on a permanent basis.

On 22 May 2010 the investigator issued a decision not to institute a criminal investigation into the alleged kidnapping for lack of a criminal event, because the child lived with his father.

On 3 June 2010 the circuit bailiffs’ office issued a decision to search for the applicant’s son which was forwarded to the police on 29 June 2010.

On 8 July 2010 the applicant and a journalist went to Nikitskoe and saw Mr M.A. and M.’s cousin. Mr M.A. told the applicant that her son was not in the village. On the same date the police established that M. resided at the Nikitskoe residence confirmed by a photo of a police officer together with M. and his cousin. On 12 July 2010 the police communicated this information to the circuit bailiffs’ office.

The decision of 22 May 2010 not to institute criminal proceedings into the kidnapping was quashed on 30 July 2010 by the Moscow City Investigative Committee of the Russian Prosecutor’s Office. On 6 August 2010 a new decision not to open an investigation into M.’s kidnapping was taken but this decision was also quashed.

On 13 August 2010 Mr O.A. came to the Ramenskoe Town Prosecutor’s Office to give “explanations” concerning his son.

On 25 August 2010 a bailiff from the Ramenskoe bailiffs’ office again visited the Nikitskoe residence. Nobody was home. The bailiff established that Mr O.A. resided there and M. was absent.

On 2 September 2010 the Ramenskoe bailiffs’ office took over the case, having received the writ of execution, and opened enforcement proceedings.

On 9 September and 2 and 25 November 2010 bailiffs from the Ramenskoe bailiffs’ office visited the Nikitskoe residence. Nobody was home on these dates.

On 18 October 2010 the Ramenskoe District Council Child Welfare Authority (“the child welfare authority”) paid a visit to the Nikitskoe residence and established that M. lived there with his father.

On 2 November 2010 the investigator together with a bailiff from the Ramenskoe bailiffs’ office, a representative of the child welfare authority, the applicant and her mother came to the Nikitskoe residence. Nobody was home. The investigator questioned the neighbours, who confirmed that Mr. O.A.’s family lived there most of the time. The authorities established that Mr O.A. might reside at three other Moscow addresses.

On 9 November 2010 the investigator visited two flats in Moscow: one at 11 Ferganskaya, and another one at 13 Ferganskaya Street. It was established that Mr O.A.’s brother lived at 11 Ferganskaya Street, while Mr O.A.’s sister resided at 13 Ferganskaya Street. Both explained that Mr O.A. lived at the Nikitskoe residence.

On 10 November 2010 the investigator again decided not to open a criminal case concerning the allegation of kidnapping.

On 29 November 2010 the Ramenskoe bailiffs’s office summoned Mr O.A. to their premises on 1 December 2010. Mr O.A. failed to appear.

On 30 November 2010 the applicant complained to the district court about the investigator’s decision of 10 November 2010 not to open criminal proceedings. The complaint was returned to the applicant in order for her to eliminate defects in the document.

On 2, 17, 25, 26, 27 and 29 December 2010 bailiffs from the Ramenskoe bailiffs’ office, accompanied on some occasions by the police and the applicant, visited the Nikitskoe residence. Nobody was home.

On 23 December 2010 the Ramenskoe bailiffs’ office ordered a temporarily limit on Mr O.A.’s freedom to leave the Russian Federation and forwarded the order to the border control service. On the same date the Ramenskoe bailiffs’ office decided to search for the child and forwarded a decision in that regard to the police. They repeated their request on 28 December 2010.

On 29 December 2010 a bailiff from the Ramenskoe bailiffs’ office imposed a fine of 1,000 Russian roubles (approximately 25 euros) on Mr O.A. for a continuing failure to comply with the requirements of the writ of execution.

On 4 January 2011 the district court dismissed the applicant’s complaint about the prosecutors’ refusal of 10 November 2010 to institute criminal proceedings in connection with her son’s kidnapping.

On 5, 12 and 17 January 2011 bailiffs from the Ramenskoe bailiffs’ office visited the Nikitskoe residence. Nobody was home. They also asked the police to send a police officer on a daily basis to the Nikitskoe residence in order to check whether Mr O.A. and M. resided there.

On 18 January 2011 the applicant lodged another complaint with the district court about the investigator’s decision of 10 November 2010. On 4 February 2011 the complaint was dismissed. On 23 March 2011 the Moscow City Court upheld the first-instance decision at final instance.

It appears that on an unspecified date the Ramenskoe district department of the interior decided to resume the investigation into the applicant’s allegations of kidnapping. In the course of this investigation, on 2 February 2011 an official from the unit in charge of cases involving minors questioned M. in the presence of his father. M.’s identity was confirmed by his passport. M. told the official that he wanted to live with his father.

On 7 February 2011 it was decided once more not to institute criminal proceedings into the alleged kidnapping. The applicant did not challenge the decision.

On an unspecified date the transport police informed the Ramenskoe bailiffs’ office that Mr O.A. had purchased a plane ticket to Sochi for 27 February 2011. On 27 February 2011 bailiffs came to the airport to question Mr. O.A. but he was not among the passengers boarding the plane. On the same date the bailiffs went to the Nikitskoe residence but Mr O.A. and M. were not there.

On 2 March 2011 the Khimki Town Police Department opened a file concerning the search for M. and put him on the federal search list.

On 10 March 2011 the Ramenskoe bailiffs’ office requested the district court to clarify the manner in which the execution of its judgment of 17 April 2009 should be carried out. On 21 March 2011 the district court issued a clarification concerning the execution of its judgment of 17 April 2009, stating that Mr O.A. was under an obligation to take M. to the applicant’s place of residence.

On 26 April 2011 the bailiffs suspended the execution proceedings in the absence of Mr O.A. and M.

On 10 May 2011 the police visited the Nikitskoe residence. Mr O.A. and M. were absent. Mr O.A.’s father explained that they were in the Zelenodolskaya flat.

On 11 May 2011 Mr O.A. talked to a prosecutor on the phone and stated that he and his family were on vacation until the end of May 2011 and refused to give the particulars of M.’s whereabouts.

According to the Government’s submissions of 30 May 2011, M.’s whereabouts remained unknown to that date.

According to the information provided by the applicant on 13 September 2012, the judgment of 17 April 2009 remains unenforced to that date and M. continues to live with his father. The applicant submitted that she had not seen her son for several years.

Both parents have equal parental rights (Article 61 § 1). Parents have a right and an obligation to bring up their children. The parents’ right to bring up their children has precedence over such a right of any other person (Article 63 § 1). A child’s place of residence in case of separation of the parents should be established by an agreement between the parents. If the parents disagree on a child’s place of residence, the dispute should be resolved by a court, taking into account the child’s best interests and their opinion. The court should consider how attached a child is to each parent, his or her age, the moral qualities of the parents, their material welfare, family status, and so forth (Article 65 § 3). A parent residing separately from his or her child has a right to contact him or her and to participate in his or her upbringing (Article 66 § 1). A court may restrict parental rights (“to remove the child from the parent”) if a parent could be dangerous to his or her child because of circumstances out of their control (a mental or other illness, distressing circumstances) or where their behaviour is dangerous for the child but not to the extent necessary to warrant withdrawal of parental rights (Article 73 § 2).

A bailiff must issue a decision to open enforcement proceedings or to refuse to do so within three days of receipt of a writ of execution (Article 30). The creditor, the debtor and the bailiff can ask the court which issued the writ of execution to clarify its provisions and the manner of its enforcement (Article 32 § 1). If the debtor fails to fulfil the obligations contained in the writ of execution within the time-limit established for doing so voluntarily, the bailiff shall recover an execution fee from the debtor and set up a new time-limit for the execution of those obligations (Article 105 § 1). If the debtor does not fulfil the obligations within the newly established time-limit, the bailiff shall impose a fine on the debtor (Article 105 § 2). The court must examine complaints about the decisions, actions or inaction of bailiffs within a ten-day time-limit (Article 128 § 4).