Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in 1968 and is currently detained in Jēkabpils Prison. He is a person with special needs. The applicant is deaf and mute since birth and his knowledge of sign language is poor.

At least as of 2 March 2001, when his disability was certified as permanent, the applicant has been recognised as being category 3 disabled (the least severe level of disability). On an unspecified date his disability was re-categorised as category 2 (medium level of disability).

On 7 May 2008 the applicant was convicted of aggravated murder and sentenced to fifteen years and six months’ imprisonment. That judgment became final on 24 February 2009. He started serving his sentence in the most restrictive “lower” regime in Liepāja Prison.

On 23 December 2011 the applicant was transferred to Brasa Prison. He was placed in the medium regime as he had served one quarter of his sentence. He was held in cell no. 301 (from 1 January 2012 to 26 February 2013) and cell no. 303 (from 26 February to 30 October 2013).

On 30 October 2013 the applicant was placed in the most restrictive “lower” regime. He was held in cell no. 203 (from 30 October 2013 until 16 February 2015).

On 24 February 2016 the applicant was placed in the least restrictive “higher” regime. It appears that as of that date he was held in three different multi-occupancy cells. The number of his cellmates varied from two to fourteen. Each inmate had no less than 4 sq. m of living space in those cells.

According to the applicant, he was held in dormitorytype cells nos. 301, 303 and 203 together with other inmates, all of whom were in good health except for the applicant. The applicant’s submissions as to the overall surface area in those cells as well as the size of the sanitary facilities were consistent with the Government’s submissions (see paragraph 13 below). His account of the number of inmates was slightly different – he alleged that he had been held together with ten to twenty inmates in cells nos. 301 and 303. However, as concerns cell no. 203 he agreed with the Government – six inmates had been held in that cell.

The applicant submitted that the heating had not been sufficient in those cells. He had been neither able to communicate with other inmates, nor with the prison management due to his disability. He had been in social isolation and had not received any special assistance.

According to the Government, the applicant was held in three different cells, the conditions of which are detailed in the table below. The calculation of personal space (overall surface area with the in-cell sanitary facility deducted, divided by number of inmates held therein) is based on an approximate measurement of the sanitary facility according to the floor plans of Brasa Prison.

As regards out-of-cell activities, the Government indicated that while being held in the medium regime – in cells nos. 301 and 303 – the applicant had been able to freely leave those cells in daytime and to use the common area. The Government further submitted that cell no. 301 had been equipped with one window. That window had been fitted with bars and had been placed in a wall (adjacent to a corridor) facing another window (in the corridor). This cell had had three fluorescent lamps, including one night lamp located above the door. Heating had been provided by one heating pipe of 5 cm in diameter and the heaters located in the adjacent corridor and in the hallway. A new automatic boiler had been installed in Brasa Prison, which had ensured a temperature of 18˚C. Heating arrangements in cell no. 303 had been the same as in cell no. 301.

While being held in the most restrictive “lower” regime – in cell no. 203 – the applicant had been able to leave this cell only for a daily walk (one hour), to take a shower or for appointments with a doctor, a prison chaplain or a social worker when necessary.

Overall, inmates in Brasa Prison had had access to a psychologist, but the applicant had never availed himself of this possibility. He had, however, met with a prison chaplain and a social worker on several occasions. The Government provided records of three conversations between the applicant and a social worker in 2016, including a meeting on 11 April 2016 where the latter had called a non-governmental organisation (Latvijas Nedzirdīgo Savienība) concerning the applicant’s hearing aid. Lastly, the applicant had visited a psychiatrist at least on six occasions in the time period from 1 April 2015 to 7 September 2016.

On 27 December 2011 the state of the applicant’s health was examined for the first time in Brasa Prison. It was noted that the applicant was deaf and mute and that he suffered from spondylosis.

The applicant submitted an extract of his medical record in Brasa Prison. According to that document (dated 26 July 2016), he had been deaf since birth. On 13 August 2009 a psychiatrist had detected a psychiatric health condition (psihiskas veselības problēmas), namely, “reaction to situations with anxiety” (situācijas reakcija ar trauksmi). On 21 January 2010 the same psychiatrist had detected another sleep-related condition. On 10 December 2015 another psychiatrist diagnosed the applicant as having “organic personality disorder” (organiski personības traucējumi).

The Government submitted another extract of the applicant’s medical record in Brasa Prison. According to that document (dated 7 April 2015), upon admission to Brasa Prison the applicant had been diagnosed as being deaf and mute and having spondylosis. During the above-mentioned period the applicant had consulted prison medical staff on thirtynine occasions. He had been examined, treated and provided with medication when necessary. No serious health conditions, which would have required an indepth examination, had been diagnosed. There had been no indications that outpatient examination or treatment had been necessary. The applicant had most often complained of colds, headache, poor sleep, gastritis and back pain related to spondylosis. Those complaints had not concerned his disability. In 2013 and 2014 the prison medical staff had organised an outpatient medical examination (in relation to tuberculosis) and a consultation by an ophthalmologist to obtain glasses. On 1 April 2015, upon the request of the Prisons Administration (Ieslodzījuma vietu pārvalde), the applicant’s state of health had been examined. It had been satisfactory, he had not had any complaints and he had gained weight while in prison. In sum, his health had not deteriorated.

Over the course of two years (2012-14) the applicant lodged some twentyfive handwritten complaints with various institutions (the management of Brasa Prison, the Prisons Administration, the Ministry of Justice and the Ministry of the Interior).

He informed the authorities that he had been deaf and mute since birth and complained as follows:

1) he had communication problems and conflicts with other inmates (he referred to “conflicts”, having been “influenced”, “offended” and “laughed about” by other inmates);

2) he wished to be transferred to a single or dual-occupancy cell;

3) he wished to be transferred to another prison;

4) he wished to have his prison regime changed;

5) his conditions of detention were inadequate and

6) his medical care was inadequate.

His complaints were examined by the Prisons Administration, save for three of them that were examined by the management of Brasa Prison.

The following conclusions were made:

(1) There had been no real threat to the applicant’s life or health in Brasa Prison. He had not been subjected to psychological harassment. His complaints to the management of Brasa Prison had not concerned any threats from other inmates.

(2) The applicant did not have a subjective right to choose his cell or cellmates. It fell within the competence of the management of Brasa Prison. There was a limited number of cells with a capacity of four inmates and those inmates could not be moved for security reasons.

(3) The decision concerning the applicant’s transfer to another prison had to be taken by the Prisons Administration. Taking into account that the applicant’s state of health had permitted his placement in any prison, there had been no grounds to transfer him to another prison; he had had to continue serving his sentence in Brasa Prison.

(4) The possibility of his transfer to the most lenient prison regime could not be examined before 10 June 2015, when he would have served the relevant proportion of his prison sentence. As to the possibility of his transfer back to the more restrictive prison regime such actions could only be taken in cases of serious or systematic breaches of the prison regime.

(5) The conditions in cell no. 301 had been adequate. It had measured 36 sq. m. Natural and artificial lighting as well as heating had been sufficient. The temperature in cell had been 18˚C.

The conditions in cell no. 303 had been similar to cell no. 301 – lighting and heating had been adequate.

The conditions in cell no. 203 had been adequate. According to the Prisons Administration and the relevant floor plans that cell had measured 19.86 sq. m (including 1.87 sq. m for sanitation facilities). Besides the applicant, it had accommodated five other inmates. A reference was made to the Court’s case-law and the applicable domestic standard of 2.5 sq. m per male inmate. The temperature in the cell had been 18˚C.

(6) The applicant’s medical care had been carried out in accordance with domestic law. He had received the necessary medication in response to his complaints. He had never complained to prison doctors of “neurological diseases”, “noises” or “fears”, but he had had at least one consultation with a psychiatrist. In any event, he had been able to complain of the quality of medical care in prison to the Health Inspectorate.

On 1 October 2012 a judge of a first-instance court refused to allow the applicant’s application to be transferred to another prison and to have his prison regime changed to a more restrictive one, a request made by the applicant in order to allow him to be held in a cell with a smaller number of inmates. Those issues fell within the realm of criminal law and could not be examined by the administrative courts.

On 25 October 2012 another judge refused to allow the applicant’s application to be transferred to another prison and to be relieved from the obligation to continue serving his sentence. As concerns his transfer, reference was made to the decision by the Prisons Administration whereby a conclusion had been drawn that the Administrative Procedure Law had not applied. As concerns judicial review of that decision, such a complaint had already been examined (see paragraph 24 above). As concerns the release application, it fell within the realm of criminal law; this issue could thus not be examined by the administrative courts.

The applicant attempted to appeal against the above-mentioned refusals, but his appeal did not appear sufficiently clear. Accordingly, on 21 November 2012 another judge decided not to proceed with his appeal (atstāt bez virzības), asking the applicant to render it more precise.

On 10 December 2013 another judge examined further complaints by the applicant. His application to be transferred to a more lenient prison regime and another prison were refused because such complaints had already been examined (see paragraphs 24-25 above). His complaint about insufficient heating in Brasa Prison did not appear sufficiently clear; the judge decided not to proceed with it, asking the applicant to render it more precise. As the applicant did not provide further information, the latter complaint was considered as not submitted (uzskatīt par neiesniegtu).

On 2 April 2014 the applicant complained to the administrative courts that the Prisons Administration had extended the time-limit for its last reply. On 29 May 2014 a judge terminated the administrative proceedings in this connection since the Prisons Administration had issued its decision in the meantime.

On 31 August 2016 a panel in Brasa Prison examined the possibility of the applicant’s transfer to a more lenient prison regime. The applicant and a sign-language interpreter were present. It was established that the applicant had been working in prison until 18 December 2015; he had stopped working owing to his state of health. He had a category 2 disability. He had completed secondary education but had not pursued his education further owing to being deaf and mute and needing a specialised learning programme. He had been working with an officer and a social worker for rehabilitation purposes. He had regularly visited a chaplain in prison; however, he had not met with a psychologist. He had participated in addiction recovery meetings. He had dedicated his free time to himself. He had received three positive citations (pamudinājums) from the prison management.

A conclusion was drawn that the applicant had participated in nearly all the rehabilitation activities provided in the prison taking into account his capabilities. Therefore it was possible to transfer him to a more lenient prison regime in a partly closed prison.

On 7 September 2016 the applicant was transferred to a partly closed prison in Jēkabpils, where he was held in a cell with two other inmates. One of them had a similar hearing impairment.


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1950 and lives in Jonava.

On 23 April 2008, around 2.45 a.m., two officers of the Jonava Police Department, V.B. and J.D., received an alert that there had been a break-in and robbery in a jewellery store. They called a dog handler, N.B., from the Kaunas Police Department who, with the help of a police dog, followed traces from the store to a garage complex on a nearby street and informed V.B. and J.D., who then went to the garage complex.

The applicant worked as a guard in that garage complex and on the night of 23 April 2008 he was on duty. It appears that no other employees were present in the garage complex at that time.

The officers V.B. and J.D. arrested the applicant and took him to Jonava police station. According to the official police record, the applicant was placed in detention at 4.55 a.m. on 23 April 2008 and released at 7.40 a.m. the same day.

Subsequently the applicant and the police officers presented different accounts of the circumstances surrounding the applicant’s arrest.

On 23 April 2008 the officer V.B. submitted the following report to his superior:

“On 23 April 2008 I was on duty in Jonava together with officer J.D. At 4.25 a.m. we arrived at the entrance to the garage complex ... where an officer of the Kaunas Police Department, N.B., was waiting for us. He said that a police dog had followed traces to [a car] ... the car was identified as belonging to [the applicant]. We called the guard of the garage and asked him whose car it was, and he said that the car was his. When he was asked to state his name, surname and place of residence, the guard refused and began shouting and jostling (pradėjo rėkti ir stumdytis). He said that he did not have to tell us anything about himself. We explained that a crime had been committed and that he was under an obligation to comply with our lawful orders. The guard refused to comply and kept shouting and jostling. A restrictive measure handcuffs – was used against him. After the man was taken to the Jonava police station, it was identified that he was [the applicant].”

The officer J.D. submitted an identically worded report the same day.

That same day the applicant submitted the following statement to the Jonava District Prosecutor (hereinafter “the prosecutor”):

“On the night of 22-23 April 2008 I was on duty at the garage complex ... Around 4.30 a.m. three police officers came onto the premises. One of them asked me why I had driven drunk and fled. I explained that I was at my workplace, that I had not been drinking and had not gone anywhere (I had arrived at work at 9 p.m.). They checked the car and again began accusing me of being drunk and driving drunk. I told them that I was not drunk and that I had a medium-level disability (antros grupės neįgalumas). Then they dragged me into the administrative area, handcuffed me, pushed me to the floor and held me down, and twisted my arms behind my back (laužė rankas), it hurt a lot (my hands were handcuffed behind my back); one of them kicked me in the stomach four or five times, and they kept telling me to confess. Since I kept denying it, they took me to the police station and gave me an alcohol test, which gave a reading of zero ...”

That same day the applicant was examined by a doctor at a local hospital. The doctor found that the applicant’s entire abdominal area was sensitive when touched, although there were no external signs of contusion, and that there was limited and painful movement in the applicant’s shoulder joints. The final diagnosis read: “a contusion of the abdomen and a sprain of the shoulder joints” (pilvo sumušimas, pečių sąnarių raiščių patempimas).

On 23 April 2008 the prosecutor opened a pre-trial investigation concerning the applicant’s allegations of ill-treatment by the police officers. The prosecutor requested an additional medical examination of the applicant in order to determine whether there were any injuries on his body, and if so their nature, gravity and possible causes.

On 24 April 2008 the applicant was examined by a court medical expert. The report on the results of that examination, issued in June 2008, found a contusion on the applicant’s abdomen and indicated that it could have been caused by one blow from a hard blunt object (vienu trauminiu poveikiu). It also detected bruised skin on the applicant’s left wrist and a sprain of his shoulder joints, noting that they could have resulted from the circumstances described by the applicant, namely from being handcuffed and having his arms twisted behind his back, thus two separate traumas (dviem trauminiais poveikiais). The report concluded that the applicant’s injuries constituted negligible health impairment (nežymus sveikatos sutrikdymas). It also indicated that the applicant’s injuries were unlikely to have been caused by deliberate self-harming actions (nebūdingi tyčiniam savęs žalojimui) and that they could have resulted from fighting or selfdefence.

On 30 April 2008 police officer V.B. was questioned as a witness in the investigation. The written record of his interview was almost identical to his initial report (see paragraph 10 above), and added:

“[The applicant] approached us and said that the car was his. After we asked him to state his name, surname and place of residence, he refused and began shouting and jostling ... After a while [the applicant] said that his documents were in the car and he went to the guard booth to get the car keys. After taking the keys, he turned to me and tried to punch me in the face. At that moment I was standing near the door. The punch missed because I managed to step back. Since he was resisting, I took him by one arm, the officer J.D. took him by the other, and we both handcuffed him. Physical force was used only when putting the handcuffs on him, other forcible actions were not used against him. We called the senior investigating officer L.B. to the scene of the event. He examined [the applicant’s car] and did not find any suspicious objects ...”

On 2 June 2008 police officer J.D. was questioned as a witness in the investigation; the written record of his interview was almost identical to that of V.B. (see paragraph 15 above).

On 17 July 2008 the police dog handler N.B. was questioned as a witness. He stated:

“On the night of 23 April 2008 ... I went to the jewellery shop in Jonava ... A police dog followed traces to [the garage complex] and lost them by the car ... The car was examined by officers of the Jonava Police Department. It was identified as belonging to [the applicant] who, it emerged later, was a security guard at the garage complex ... He refused to give any statements and refused to go to the police station, so the officers asked him to identify himself, which he also refused to do, and therefore the officers tried to take him into custody and put him into the police car ... [The applicant] resisted the officers, punched one of them in the face, pushed and jostled them to try to avoid being apprehended, used various Russian swear words ... and threatened the officers ... He mentioned that he had friends in high-level positions. The police officers used combat wrestling methods (kovinių imtynių veiksmus) and [the applicant] was apprehended, handcuffed and taken to the Jonava police station to clarify the circumstances of the incident.”

On 30 July 2008 the applicant was granted victim status in the investigation and questioned. He stated:

“On the night of 22-23 April 2008 ... [soon after 4 a.m.] two police officers entered the premises; they were wearing uniforms; one of them was taller than the other. They asked me if I was the guard. I told them I was. Then they told me to go outside ... The officers pointed to my car and asked me whose it was. I told them it was mine. Then both the officers came closer to me, one from the right and the other from the left, and without saying anything they twisted my arms behind my back (užlaužė rankas) ... Then they asked me why I had tried to escape from them and had not obeyed their order to stop. I told them that I had been at my workplace, that I had not gone anywhere and had not tried to escape from anyone. Then the officers started pulling my twisted arms upwards (užlaužtas rankas kėlė į viršų) and telling me to confess that I had fled. My arms were hurting ... I told the officers that I could go to the administrative area and get my car keys, so that they could check if my car’s engine was hot. The officers stopped twisting my arms, but did not release them and led me inside the premises. The car keys were on the table and the officers picked them up, I told them that my documents were in the car and they could check them ... When we were leaving the premises, I felt the officers handcuff me behind my back. Once I was handcuffed, the shorter officer walked in front of me and the taller officer behind me; and he was pulling up my handcuffed arms. I crouched down because of that and the shorter officer kneed me in the stomach about four times. I started feeling weak and dizzy. I kept asking the officers to release me and to stop torturing me. Then the shorter officer said that they would take me to the police station ... I told them that my documents were in the car, that my identity was known to them, and that I could not leave my workplace. Then the taller officer, who was behind me, took me outside while repeatedly twisting and pulling up my arms ... In about five minutes another officer in a uniform arrived, took my car keys, and tried to open the boot of my car ... The officers examined my car ... Then the shorter and the taller officers put me into their car, still twisting my arms. At the police station I was searched and given an alcohol test ...

[W]hen the officers arrived at my workplace they did not identify themselves; I knew they were police officers only from their uniforms. They did not tell me why they were there, and did not ask me to identify myself; they only asked me if I worked there and if I was the guard. Before being handcuffed I did not jostle. I did not intend to punch the officers ...”

On 5 September 2008 the prosecutor arranged a confrontation between the applicant and police officer J.D. They both essentially reiterated their previous statements (see paragraphs 10, 11, 16 and 18 above). In addition, J.D. stated that the applicant had sworn at the officers when he had been asked to identify himself. J.D. also stated that after the applicant had gone to the guard booth to get his car keys he had attempted to lock himself inside the booth, but the officers had prevented the door from closing and had entered the booth as well. In the booth V.B. had been standing on the applicant’s right side and J.D. on his left. The door was on J.D.’s other side. After taking the car keys, the applicant had attempted to punch V.B. After that J.D. had taken the applicant by one arm and V.B. by the other, and they had cuffed his hands behind his back.

The applicant disagreed with J.D.’s statements. He insisted that the officers had not asked him to identify himself, and that he had answered all their questions. The applicant also stated that J.D. and V.B. had been the only officers present at the scene and that there had not been a third officer with a dog. He denied swearing at the officers. J.D. replied that the dog handler, whose name he did not know, had been present during the entire incident, that he had also asked the applicant some questions, and that it was impossible for the applicant not to have noticed him.

On 15 September 2008 senior investigating officer L.B. was questioned as a witness. He stated:

“I don’t remember the exact date but it could have been 23 April 2008 ... I was called to the garage complex ... When I arrived, there were two police officers, a dog handler with a dog, and another man – as I later found out, it was [the applicant]. The officers told me that the dog had followed traces to one of the cars, so I examined that car. I don’t remember if [the applicant] was handcuffed at the time when I examined the car, I wasn’t paying attention. I don’t remember if [the applicant] was swearing at or insulting the police officers, I didn’t notice whether he was actively resisting. After examining the car I didn’t find anything suspicious. Then I immediately left, whereas the officers, the dog handler and [the applicant] stayed there ... I can confirm that the handler with the dog was present when I arrived, it was impossible for [the applicant] not to have seen him. When I was examining the car, [the applicant] was nearby, I don’t remember if he was saying or doing anything. The officers were also standing nearby, I don’t remember what exactly they were doing.”

On 30 September 2008 the prosecutor arranged a confrontation between the applicant and the dog handler N.B. The applicant stated that he had never seen N.B. before and that neither N.B. nor any dog had been present at the time of his arrest. Meanwhile N.B. insisted that he had been present:

“I was at the scene of the incident, I was with a dog, I saw [the applicant’s] arrest and I helped two police officers to twist [the applicant’s] arms (padėjau užlaužti rankas) ...

I went to the guard booth with the officers. The applicant opened the door of the booth and stepped outside. We explained to him why we were there – that a crime had been committed and that the dog had led us to the cars which were parked nearby. We asked the applicant to identify himself and to tell us whose cars were parked there. The applicant refused, began swearing and insulting us, and said that it was none of our business. Then we explained to him that if he didn’t identify himself he would be forcibly taken to the police station. At some point the applicant raised his hand against one of the officers, I don’t remember which one, and I didn’t see if he hit him or not. Then the officers and I took him by the arms; I don’t remember if we twisted them (suėmėme jam už rankų, ar užlaužėm, neatsimenu). Then my dog ran towards us; it had been fifteen metres away by the fence or the wall of the garage, I don’t remember exactly. I caught the dog and tied it up, possibly to the fence, and then I returned to the officers and the applicant. I helped the officers to hold the applicant’s hands and one of them put on handcuffs. I don’t remember what time we went to the guard booth. Nothing happened inside the booth.”

N.B. further specified that “probably not more than a minute” had passed from the moment the applicant was handcuffed until the moment he was put into the police car. He also stated that he had not seen whether the applicant had been beaten or kicked by the officers. He stated that although the incident had happened during the night, everything was clearly visible.

On 30 September 2008 the prosecutor arranged a confrontation between the applicant and police officer V.B. The applicant stated that V.B. and J.D. had twisted his arms outside, next to the guard booth, that they had handcuffed him inside the booth, and that J.D. had then forcibly pulled up his arms, while V.B. had kneed him in the stomach three or four times.

V.B. disagreed with the applicant’s statements and denied kneeing him. He stated:

“When we arrived at the garage complex, the dog handler told us that the dog had followed the traces of the possible criminal to the car. Then I identified whose car it was. Afterwards the applicant came towards me: I didn’t see how he got there because at that time I was talking on the portable radio ... After being told that a crime had been committed, the applicant said that he “didn’t give a damn” and that he “didn’t have to explain anything”. When we told the applicant that if he refused to identify himself he would be taken to the police station, he started jostling me and J.D. Then I grabbed him by the wrist and bent it back, and once again told him to identify himself. When a wrist is bent, it doesn’t hurt if the person himself doesn’t move. Besides, before grabbing the applicant I warned him that if he kept jostling us physical force would be used against him. Then the applicant identified himself to us. Then he said that he would go to the guard booth to get the car keys and documents. He walked to the booth and I, J.D. and the dog handler followed, I don’t remember in which order. In the booth the applicant went to the table and I stood by the door. He picked up the documents and then turned round and punched me in the face. His fist barely touched my mouth but didn’t cut it (jo kumštis vos palietė mano lūpą, jos neprakirto) because I managed to step back. Then I grabbed his arm and twisted it behind his back. J.D. twisted the other arm and the dog handler also helped. Then either I or J.D. handcuffed the applicant. Then I led him outside the booth ... During the arrest the applicant was swearing; he did not insult me personally and I did not pay attention to the swear words he used.”

V.B. further specified that when they went into the guard booth, he was standing closest to the applicant inside the booth, near the door, while J.D. and N.B. were standing behind V.B.’s back.

On 4 November 2008 the prosecutor discontinued the pre-trial investigation. The prosecutor held that the applicant had obstructed the police officers in the performance of their duties, had refused to comply with their lawful orders, had jostled and used swear words, had actively resisted the officers, and had attempted to punch V.B. The prosecutor found no grounds to doubt the statements of the officers V.B., J.D. and N.B., because those statements had been “consistent and logical”; the applicant’s statements could not however be considered reliable, because he had claimed that he had not seen the dog handler N.B. at the scene of the incident, although it had been established that N.B. was there. The prosecutor further held that the injury to the applicant’s abdomen was not sufficient to find that V.B. had kneed him in the stomach, because such an injury could have occurred while the applicant was resisting the officers, as seen from the statements of V.B., J.D. and N.B. In such circumstances, the prosecutor considered that the officers had been justified in using physical force against the applicant, and that they had acted in line with the applicable domestic law.

The applicant appealed against the prosecutor’s decision. He submitted that V.B. had admitted to having bent his wrist back (see paragraph 22 above) but that that detail had been disregarded during the investigation. He also submitted that the results of the medical examination had clearly indicated injuries on his abdomen which could not have been caused by the officers’ lawful actions. The applicant noted that the Police Activity Act allowed the use of physical force in order to prevent crime, arrest individuals who had committed crimes, or in other situations when justified by the public interest (see paragraph 49 below), but not in order to establish a person’s identity. He submitted that he was of advanced age (fifty-eight years old at the time of the incident) and had a medium-level disability, so it was illogical that he could have violently resisted two police officers.

The applicant also pointed out several discrepancies between the officers’ statements:

(a) V.B. had stated that the applicant had attempted to punch him inside the guard booth (see paragraph 15 above), whereas N.B. had said that nothing had happened inside the booth (see paragraph 21 above).

(b) J.D. had stated that he and V.B. had approached the guard booth and the applicant had stepped outside, and that physical force had been used against the applicant only when handcuffing him and only inside the booth (see paragraph 19 above). However, V.B. had stated that he had been examining the applicant’s car when the applicant had approached him, and that the applicant’s arms had been twisted when he was outside in order to make him identify himself (see paragraph 22 above). Meanwhile N.B. had presented yet another version of events: that the applicant had attempted to punch one of the officers outside, then he had been handcuffed, and only then had everybody gone inside the guard booth, where nothing had happened (see paragraph 21 above). Lastly, the senior investigator L.B. had not noticed any active resistance by the applicant (see paragraph 20 above).

(c) J.D. had stated that the applicant had attempted to lock himself inside the booth (see paragraph 19 above), but the booth did not have any mechanism which would allow it to be locked from the inside.

Accordingly, the applicant complained that the pre-trial investigation had not been thorough and had not objectively established the circumstances of his arrest and injury.

On 20 March 2009 a senior prosecutor upheld the applicant’s appeal and reopened the investigation.

In April 2009, at the prosecutor’s request, a court medical expert carried out an additional examination of the applicant’s medical file. The report on the results of that examination confirmed the findings of the previous medical examination (see paragraph 14 above). The report also specified that the bruises on the applicant’s left wrist and the sprain of his shoulder joints could have been caused during a fight (grumtynių metu) or by handcuffing or twisting of his arms, and that the contusion on the abdomen could have resulted from a direct blow (suduodant tiesioginį smūgį). The report concluded that the applicant’s injuries constituted negligible health impairment, and that even though he had subsequently required medical treatment, this had been caused by his defective heart valve and not by the injuries.

In April 2009 the prosecutor questioned two other witnesses as requested by the applicant – his acquaintances A. and V. They both stated that they had seen the applicant soon after his arrest and that they had noticed his injuries.

On 16 April 2009, at the applicant’s request, the Jonava District Court changed the prosecutor in charge of the pre-trial investigation. The court upheld the applicant’s arguments that the previous prosecutor, who had decided to discontinue the investigation, could not be seen as impartial, and ordered the Jonava District Prosecutor’s office to appoint a different prosecutor.

In April and May 2009 the new prosecutor inspected the location of the incident.

On 4 May 2009 another witness requested by the applicant, his acquaintance V.V., was questioned. V.V. stated:

“Around 23 April 2008, I don’t remember the exact date, around 4 a.m. I went to [the applicant’s] workplace ... to ask him to give me a lift home. At that time it was still dark. Then I saw two officers approach [the applicant] from both sides and twist his arms. I heard [the applicant] scream and ask who they were and why they were twisting his arms. After twisting his arms the officers led him to [the guard booth]. I heard [the applicant] screaming inside the booth and asking why they were hitting him. Then I saw the two officers lead him outside handcuffed and with twisted arms. Before [the applicant] was taken inside the booth, his hands had not been handcuffed. I didn’t see whether [the applicant] had been hit, I only heard him ask why they were hitting him. Then I went to [the applicant’s son’s house] to inform him about what had happened but nobody answered the door, so I came back alone [to the garage complex] but I didn’t find anyone there. I didn’t see what happened afterwards. I spoke to [the applicant] a few months later, around January-February 2009, and he mentioned the incident with the officers ...”

On 21 May 2009 the prosecutor arranged a confrontation between the officers V.B. and N.B. They were both asked about the place where the applicant had allegedly attempted to punch V.B., and gave the following responses:

“V.B.: [The applicant] punched me inside the premises, that is in the guard booth.

N.B.: I didn’t see if [the applicant] had attempted to punch the officer in the booth ... When I was outside, I saw jostling between the officers and [the applicant] (įvyko susistumdymas). [The applicant] was jostling the officers, but I can’t say exactly if he punched an officer. It was dark, I could have been mistaken.”

On 1 June 2009 the prosecutor discontinued the pre-trial investigation, relying on essentially the same grounds as the previous prosecutor in his decision (see paragraph 23 above), and a senior prosecutor upheld that decision. However, on 28 August 2009 the Jonava District Court upheld the applicant’s appeal and reopened the investigation. The court held that the investigation had not been thorough because it had not determined whether the use of force by the police officers had been within the limits provided by the Police Activity Act (see paragraph 49 below), and it had not established the circumstances surrounding the injury to the applicant’s abdomen.

In September 2009, at the prosecutor’s request, a court medical expert carried out an additional assessment of the applicant’s medical file. The report on the results of that assessment confirmed the findings of the previous medical reports (see paragraphs 14 and 26 above). In addition, the report specified that the contusion on the applicant’s abdomen could have been caused either by a blow from an object or by bumping into an object (tiek suduodant, tiek atsimušant), and that the injuries to the applicant’s left wrist and shoulder joints could have resulted from his offering resistance while being apprehended. The report also concluded that the injuries to the applicant’s wrist, shoulder joints and abdominal area were not likely to have been caused by falling down (nebūdingi sužalojimams, padarytiems nugriuvus). The examination could not determine the exact sequence of the injuries, but noted that they could have all been caused at the same time and that at that time the applicant could have been in various positions.

On 28 October 2009 L.B. was questioned again. He confirmed his earlier statements (see paragraph 20 above), and added that on 23 April 2008 he had arrived at the garage complex alone and that he had not been wearing a police uniform at the time. He also stated that at the time of his arrival the handler with a dog had been present at the scene and that it would have been impossible for the applicant not to see them.

On 12 November 2009 the prosecutor discontinued the pretrial investigation. The prosecutor held that officers V.B., J.D. and N.B. had given consistent statements about the incident and there were no grounds to doubt them. On the other hand, the prosecutor considered that the applicant’s statements had been inconsistent: during one questioning he had said that the officers had hit him inside the guard booth and during another he had said that they had hit him outside; he had also stated that officer L.B., who had arrived on the scene later, had been wearing a uniform, but L.B. had denied this; lastly, the applicant had claimed that neither N.B. nor a police dog had been present during the incident, but the contrary had been proven by N.B.’s official report and consistent statements of all the officers. The prosecutor also noted that the witness V.V. had not seen the officers hit the applicant. Lastly, the prosecutor held that the injury to the applicant’s abdomen was not sufficient to find that he had been kneed by the officers, because the medical examination had shown that such an injury could have been caused either by being hit with an object or by bumping into an object. Accordingly, the prosecutor concluded that the use of physical force by the police officers had been a lawful and proportionate response to the applicant’s violent resistance, and to his refusal to comply with their lawful orders.

The applicant appealed against the prosecutor’s decision. He submitted that the investigation had still not clarified the contradictions between the officers’ statements (see paragraph 24 above). He further submitted that V.B.’s and J.D.’s first reports had not mentioned that the applicant had been swearing at the officers or had attempted to punch one of them, and that those allegations had been made only much later, well after the incident. The applicant also noted that, contrary to N.B.’s statements (see paragraph 21 above), he could not have tied his dog to a fence because there was no fence at the garage complex, nor was it possible to tie the dog to the brick wall of the garage.

On 2 December 2009 a senior prosecutor dismissed the applicant’s appeal, but on 24 December 2009 the Jonava District Court quashed the prosecutor’s decision and reopened the investigation.

On 28 January 2010 witness V.V. was questioned again. He stated:

“[W]hen I was on my way to the garage complex, fifteen to twenty metres from the guard booth, I saw a police car and stopped by the corner of the garage wall ... Next to [the applicant’s] car there were two officers in police uniforms and [the applicant] ... I heard one of the officers ask [the applicant] to whom the car belonged ... [The applicant] said that the car was his and that he would get the keys so that the officers could examine the car ... I saw [the applicant] turn round to go to the guard booth and then the larger police officer with a moustache grabbed him by the shoulder ... twisted his arm ... and the other officer twisted his other arm. Everything happened right next to [the car]. The two officers led the applicant, with his arms twisted, to the guard booth. Outside, the officers still held his arms twisted behind his back, but didn’t handcuff him ... [the applicant] was not saying anything offensive and was not resisting. When [the applicant’s] arms were twisted, he started shouting, “Guys, why are you twisting my arms?”. But the officers, without any explanation, led him to the booth with his arms twisted behind his back. At that moment another man got out of the same police car, but I don’t know if he was an officer or not because he was in plain clothes. He also went to the booth and was standing in the doorway because the door was open. I heard [the applicant] scream inside the booth, “Guys, why are you hitting me?”. The third man did not enter the booth; he stood in the doorway the whole time. I think [the applicant] and the officers were inside the booth about ten or fifteen minutes. Then I saw the man who had been standing in the doorway step aside and the same two officers lead [the applicant] from the booth with his hands handcuffed and twisted behind his back. I think both the officers were pulling up his handcuffed arms. Outside [the applicant] asked the officers, “Guys, why did you hit me in the stomach?”... I didn’t see the officers hit [the applicant], I only heard him scream inside the booth ... I saw everything well because the area around the booth was lit. It was still before dawn then. I didn’t see a dog near the booth ...”

On 8 March 2010 the prosecutor discontinued the pre-trial investigation, relying on essentially the same grounds as in the previous decisions (see paragraphs 23 and 35 above). The applicant appealed against that decision, and on 6 April 2010 a senior prosecutor reopened the investigation.

On 21 April 2010 V.B. was questioned again. He essentially repeated his previous statements (see paragraphs 10, 15 and 22 above), but did not mention bending back the applicant’s wrist outside. V.B. also stated that when he and J.D. had followed the applicant to the guard booth, N.B. had probably followed them, but V.B. could not remember the exact order in which they had walked.

J.D. was also questioned the same day and the written record of his testimony was almost identical to that of V.B.

On 6 May 2010 N.B. was questioned again. He essentially repeated his previous statements (see paragraphs 17 and 21 above), and added:

“I didn’t go inside the guard booth, I stayed near the door, and that’s why during previous questioning I said that nothing happened inside the booth and that I didn’t see if there had been an attempt to punch an officer in the booth, because I couldn’t see it from the outside. When [the applicant] was led out of the booth, he was handcuffed ...

My dog was further away the whole time, tied to the garage wall ...

As for the punch ... I can only say that it appeared to me that [the applicant] had attempted to punch an officer. During the first questioning I said that he had punched an officer, but I may have been wrong because I didn’t consider this an important circumstance; also, during that questioning I wasn’t asked exactly whether there had been a punch or just an attempt to punch – as I said before, [the applicant] was jostling the officers, so it seemed to me that he had punched an officer.”

On 7 June 2010 the prosecutor discontinued the pretrial investigation, relying on essentially the same grounds as in the previous decisions (see paragraphs 23, 35 and 39 above), and a senior prosecutor dismissed the applicant’s appeal. However, on 29 July 2010 the Jonava District Court reopened the investigation. The court held that although the investigation concerned criminal activity allegedly committed by V.B. and J.D., these two officers had been questioned as regular witnesses, in violation of the Code of Criminal Procedure (see paragraph 50 below). The court considered that there had been a grave breach of V.B. and J.D.’s defence rights, as they had been denied the special rights of persons who may testify about their own possibly criminal activity – such as the right to have a representative, the right to request to be granted the status of a suspect, and exemption from responsibility for refusing to testify or providing wrongful testimony. As a result, all the procedural actions carried out in their respect – such as interviews and confrontations – had to be declared void. Accordingly, the court concluded that essential investigative actions had not been carried out.

On 6 September 2010 the Kaunas Regional Court upheld that judgment.

On 2 November 2010, at the applicant’s request, the pre-trial investigation was transferred to the Kaunas District Prosecutor.

In May 2011 V.B. and J.D. were questioned as special witnesses who were testifying about their own alleged criminal activity (see paragraph 50 below). They both essentially repeated their earlier statements (see paragraphs 10, 15, 16, 19, 22 and 40 above), emphasising that they could no longer exactly remember all the details, because of the passage of time.

On 30 June 2011 the Kaunas District Prosecutor discontinued the investigation. The prosecutor relied on essentially the same grounds as the Jonava District Prosecutor in its earlier decisions (see paragraphs 23, 35, 39 and 42 above), and concluded that the applicant’s statements had been inconsistent, whereas the consistent statements of all the police officers had shown that the use of force had been a lawful and proportionate response to the applicant’s resistance and his refusal to comply with the officers’ lawful orders. On 29 July 2011 a senior prosecutor upheld that decision.

On 7 September 2011 the Kaunas District Court and on 25 October 2011 the Kaunas Regional Court dismissed the applicant’s appeals. Both courts concluded that the pre-trial investigation had been thorough and its discontinuation had been justified.

On 23 April 2008 the Jonava Police Department charged the applicant with the administrative offence of refusing to comply with lawful orders of police officers and resisting them (Article 187 § 1 of the Code of Administrative Offences). On 9 May 2008 the administrative proceedings against the applicant were adjourned, pending the results of the pretrial investigation into his allegations of ill-treatment by the police, and were subsequently discontinued as time-barred.

According to the material submitted to the Court, the applicant was never suspected or accused, nor did he hold any other status in the proceedings, in the criminal case concerning the robbery of the jewellery shop (see paragraph 6 above). A report by the Jonava Police Department of 8 July 2008 indicated that the applicant’s sons E. and A. were being investigated in connection with the robbery, but it appears that neither of them was charged. In 2009 the investigation was suspended without identifying those responsible for the robbery.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in 1949 in the Khabarovsk Region. He is serving his prison sentence in a correctional colony in the village of Kochubeyevskoe, Stavropol Region.

On 9 March 2006 the applicant was arrested on suspicion of aggravated murder, robbery and firearms possession. He remained in detention throughout the investigation and trial.

On 28 July 2006 the Stavropol Regional Court found him guilty as charged and sentenced him to nineteen years’ imprisonment in a correctional colony.

On 10 February 2010 the applicant was sent to serve his sentence in correctional colony no. IK-17/1 in the village of Kochubeyevskoe, Stavropol Region (“the correctional colony”).

When the applicant arrived at the colony the resident doctor noted that he had a first-degree disability: he was totally blind as a result of mature cataracts in both eyes. His blindness, which had developed during his detention, meant that he was unable to move around alone. In addition, he was suffering from coronary disease, hypertension, gallstones and chronic pancreatitis. He was included on a list of detainees requiring enhanced medical attention.

The applicant was assigned to colony unit no. 10 for special-needs detainees, which comprised a separate dormitory. It housed forty-six detainees with various disabilities or serious illnesses. The unit had a dormitory measuring 149.6 square metres, a dining room, a toilet, showers, and several offices for administrative and medical personnel. A large part of the dormitory floor area was taken up by furniture such as bunk beds, bedside tables and chairs. According to a certificate issued by the correctional colony on 13 October 2014, each detainee was afforded 2.82 square metres of living space. As is apparent from the documents and photographs submitted by the Government, the premises were not adapted for visually impaired or blind persons.

The authorities assigned another inmate with cardiac problems to assist the applicant with his basic needs. The inmate did not receive any remuneration for the assistance he provided to the applicant. He helped the applicant to move around the dormitory and to take showers, and guided him in the dining room. The applicant had no prison work; he remained in the unit throughout the day.

According to the applicant, he faced particular difficulties in orientating himself in the correctional colony. He regularly stumbled over objects, slipped and fell. Such helplessness induced anguish and despair. In 2011 he was diagnosed as having an emotionally unstable personality disorder.

On 21 February 2011 and 19 November 2012 a medical commission confirmed the applicant’s disability. They recommended that the authorities provide him with a walking stick, a white cane, a player for audiobooks designed for blind people, a vocal clinical thermometer and a vocal tonometer. The recommendations were never enforced. According to two entries in his medical record, on 30 November 2011 and 23 January 2013 officials asked the applicant whether he wished to receive those items. The applicant allegedly refused, but did not agree to make a written note to that effect in the medical record.

In September 2014 the inmate who had been assisting the applicant was released from detention and the applicant was left to fend for himself. According to a certificate issued by the authorities, he refused the assistance of other inmates.

On 8 February 2013 the applicant asked for a medical examination to determine whether his state of health warranted his early release.

On 5 April 2013 a medical commission held that as blindness was one of the diseases listed in Government Decree no. 54 of 6 February 2004 that may warrant release from a correctional institution, the applicant could be relieved from serving his sentence.

Relying on the conclusion of the medical commission, the applicant lodged an application with the Kochubeevskoe District Court, Stavropol Region, for release on health grounds. On 16 April 2013 the District Court dismissed the application. Referring to Ruling no. 21 of the Supreme Court of Russia dated 20 December 2011 (see paragraph 26 below), the court noted that the fact that the applicant’s illness was included in the list provided for by Government Decree no. 54 did not automatically mean that he would be released. The court cited the gravity of the crimes committed by the applicant and the length of the prison term he had yet to serve. Taking those two factors into account, the court concluded that the applicant should remain in the correctional colony. The Stavropol Regional Court upheld that judgment on appeal.

On 10 July 2014 the Supreme Court of Russia rejected a cassation appeal lodged by the applicant without examining it on the merits. It found that the applicant had failed to lodge the appeal within the statutory timelimit.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The relevant details of the application are set out in the appended table.

The applicant complained of the excessive length of his pre-trial detention.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1974. He is serving a life sentence in prison.

On 21 July 2005 the applicant requested from the Governor of Pärnu Prison access to (i) the online version of Riigi Teataja (the State Gazette), (ii) the decisions of the Supreme Court and administrative courts, which are available on the Internet, and (iii) the HUDOC database of the judgments of the European Court of Human Rights. The Governor refused his request. The applicant’s subsequent complaint was dismissed by the Pärnu Administrative Court; the Tallinn Court of Appeal dismissed his further appeal. The applicant then appealed to the Supreme Court.

The Administrative Law Chamber of the Supreme Court delivered its judgment on 31 May 2007 (case no. 3-3-1-20-07). In respect of Estonian legislation and the Supreme Court’s rulings, the Supreme Court noted that these were available in the paper version of Riigi Teataja; it considered access to the paper version sufficient and found that the prison’s refusal to grant the applicant access to the online version of Riigi Teataja had been lawful.

However, the Supreme Court noted that from 1 January 2007 the primary official version of Riigi Teataja had been its online version and that since then only five “control copies” of each edition had been printed. Despite that fact, the prisons had a duty to ensure that detainees had a reasonable possibility of searching for and familiarising themselves with legal acts.

Furthermore, the Supreme Court considered that the refusal of the prison administration to grant detainees access to the rulings of the administrative courts and of the European Court of Human Rights interfered with their right to freely obtain information disseminated for public use. Given that the legislature had not specified any restrictions in this regard in respect of prisoners, their right – enshrined in Article 44 § 1 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) – to obtain information had to be given an equal level of protection as that afforded to persons at liberty. Accordingly, the refusal of Pärnu Prison to grant the applicant access to the rulings of the Estonian administrative courts and the European Court of Human Rights had been unlawful.

On 18 October 2007 Tartu Prison – to which the applicant had been transferred in the meantime – refused the applicant’s request to be granted access to the Internet sites www.coe.ee (the Council of Europe Information Office in Tallinn), www.oiguskantsler.ee (the Chancellor of Justice, or Õiguskantsler)) and www.riigikogu.ee (the Estonian Parliament, or Riigikogu). According to the applicant, he was involved in a number of legal disputes with the prison administration and needed access to those Internet sites in order to be able to defend his rights in court.

On 23 November 2007 the applicant’s complaint was dismissed by the Ministry of Justice.

By a judgment of 17 July 2008 the Tartu Administrative Court upheld the applicant’s complaint in respect of the Internet site www.coe.ee and ordered Tartu Prison to grant him supervised access to that site via a computer adapted for that purpose. The Administrative Court noted that Tartu Prison had afforded its detainees access to the online version of Riigi Teataja, the database of judicial decisions, and the Internet sites of the European Court of Human Rights and the Supreme Court. The Administrative Court further referred to the Supreme Court’s judgment of 31 May 2007 (see paragraphs 7 and 9 above) and to section 31-1 of the Imprisonment Act (Vangistusseadus) (see paragraph 21 below), which had entered into force on 1 June 2008. It noted that the Internet site of the European Court of Human Rights – to which detainees had been granted access – contained information only in English and French, whereas translations into Estonian of the rulings of the European Court of Human Rights were available on the Internet site of the Council of Europe Information Office in Tallinn. The Administrative Court considered that the burden of having the rulings of the European Court of Human Rights translated into Estonian could not be placed on the applicant and concluded that he also had to be granted access to the Internet site www.coe.ee. It considered that this Internet site was similar to the database of judicial decisions referred to in section 31-1 of the Imprisonment Act. In respect of the Internet sites www.oiguskantsler.ee and www.riigikogu.ee, the court found that access to these sites was not foreseen by section 31-1 of the Imprisonment Act; in any case, the applicant could request information directly from the institutions concerned or from Tartu Prison.

Both parties appealed. On 31 October 2008 the Tartu Court of Appeal dismissed both appeals and upheld the first-instance court’s judgment.

Both parties challenged the Appeal Court’s judgment before the Supreme Court. The Administrative Law Chamber of the Supreme Court referred the case to the Supreme Court’s plenary session on a point of constitutionality. By a judgment of 7 December 2009 the plenary session of the Supreme Court dismissed the applicant’s appeal and upheld Tartu Prison’s appeal. It quashed the lower courts’ judgments in so far as these granted the applicant access to the Internet site www.coe.ee.

The Supreme Court found that the Internet sites in question did not fall under the exceptions provided for in section 31-1 of the Imprisonment Act (see paragraph 21 below). Thus, the Supreme Court had to determine whether that provision was in conformity with the Constitution. The Supreme Court found that section 31-1 of the Imprisonment Act interfered with the right – enshrined in Article 44 § 1 of the Constitution – to freely obtain information disseminated for public use. It noted that the aims of imprisonment included the protection of the legal order and steering detainees towards law-abiding behaviour. As the possibility could not be technically excluded that detainees might misuse the right to use the Internet, access to the Internet was prohibited to them by section 31-1 of the Imprisonment Act. The exception made in respect of the official databases of legislation and the database of judicial decisions was necessary in order to ensure that detainees were afforded an effective possibility to protect their own rights. It had to be taken into account that the official texts of legal acts were only accessible to detainees via the Internet.

The Supreme Court observed that the prohibition of the use of the Internet was necessary primarily in order to restrict detainees’ ability to engage in communication for purposes that did not accord with those of their detention, such as obtaining information that could jeopardise the prison’s security or run counter to the directing of detainees towards law-abiding behaviour. Granting detainees access to any additional Internet site increased the security risk of their obtaining information running contrary to the aims of imprisonment. Moreover, this could create an opportunity for detainees to use the Internet for purposes other than that of freely obtaining information disseminated for public use. Thus, the Supreme Court concluded that the prohibition of detainees’ access to the Internet sites www.coe.ee, www.oiguskantsler.ee and www.riigikogu.ee was justified by the need to achieve the aims of imprisonment and in particular the need to secure public safety.

In respect of the proportionality of the restriction the Supreme Court considered that the denial of detainees’ access to the Internet sites www.coe.ee, www.oiguskantsler.ee and www.riigikogu.ee prevented them from misusing the Internet via these sites and that public safety was thereby protected. Moreover, granting detainees access to these Internet sites could increase the risk of their engaging in prohibited communication; this in turn would necessitate increased levels of control (and therefore costs). Thus, there were no alternative, equally effective means – besides the prohibition imposed by section 31-1 of the Imprisonment Act – of achieving the legitimate aim in question. Lastly, the Supreme Court noted that detainees were able to contact the Riigikogu and the Chancellor of Justice by mail and make a request for information (teabenõue). Therefore, detainees’ access to the public information contained on the Internet sites in question was not unduly restricted. Detainees’ access to the Internet site of the European Court of Human Rights was guaranteed, pursuant to section 31-1 of the Imprisonment Act; those of the Council of Europe’s conventions and treaties that had been ratified by Estonia were accessible on the Internet site www.riigiteataja.ee. The Supreme Court noted that it did not doubt that the printed works of the Council of Europe were accessible through prison libraries, and nor were detainees prevented from contacting the Council of Europe by post. The Supreme Court concluded that the restriction preventing detainees from accessing the Internet sites www.oiguskantsler.ee, www.riigikogu.ee and www.coe.ee was one of “low intensity”; the Supreme Court gave more weight to the aim sought by that restriction. It considered that permitting detainees extensive use of the Internet would increase the likelihood of prison authorities losing control over detainees’ activities, as it could not be completely excluded that via the Internet sites in question detainees could use the Internet for other, unauthorised purposes. Accordingly, the impugned restriction was in conformity with the Constitution.

Four judges out of eighteen delivered a dissenting opinion according to which the applicant should have been granted access to all three of the Internet sites in question. They considered that the use of the Internet sites in question did not generally pose a threat to public safety and was in conformity with the aims of imprisonment. It was unclear what additional costs the State would have to bear, since – in line with the applicable law – prisons were equipped with computers specially adapted to allow detainees access to the official databases of legislation and judicial decisions, and the prison service exercised supervision over the use of such resources. The information available on the Internet sites in question aided the exercising of the right of recourse to the courts. While it was true that detainees could also avail themselves of the right to make a request for information, this was a more time-consuming avenue and, particularly in the case of the Internet site of the Chancellor of Justice, required knowledge of which information was available on such Internet sites. No request for information under the Public Information Act (Avaliku teabe seadus) could be made to the Council of Europe Information Office in Tallinn. The rulings of the European Court of Human Rights available in the HUDOC database – which was accessible to detainees – were not in Estonian (unlike the unofficial translations published on the Internet site www.coe.ee), and it could not be presumed that detainees had sufficient command of English or French to be able to read them. The printed works of the Council of Europe that were available in prison libraries did not include all the information that was published on the Internet site of the Council of Europe Information Office in Tallinn. Thus, the four dissenting judges concluded that the restriction in question was unconstitutional.


Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

The applicant was born in 1974 and lives in Van.

According to the incident and the crime scene investigation reports, upon receipt of intelligence that terrorists were hiding in the area, on 24 June 2008 a large group of gendarme officers from the Hakkari Mountain Commando Brigade blocked the road near the village of Armutdüzü in the Yüksekova district. At about 1.30 a.m. the gendarme officers stopped a lorry on suspicion of fuel smuggling. Subsequently, another lorry approached the gendarme officers. The applicant was travelling in this vehicle and it was being driven by his cousin, N.A. The soldiers ordered them to stop, but N.A. continued to drive. According to the report drafted by the gendarme officers, the driver attempted to escape and the gendarme officers fired a warning shot in the air and then fired at the tyres of the lorry to stop it. According to the applicant, they were driving down a steep hill at high speed, and as the brakes had failed, they could not stop. They maintained that they had shouted from the window that the brakes were not working and N.A. had tried to avoid hitting the other lorry, which was parked in the middle of the street, by trying to pass it on the right. He then headed towards the hills, where there was a group of gendarme officers. The gendarme officers opened fire, first in the air and then at the vehicle. The applicant was wounded in the hip and his cousin in the leg during the incident as a result of ricochet bullets.

The crime scene investigation report revealed that there were no bullet holes on the left side or the back of the lorry. Three of the tyres were flat, namely the two front tyres and the rear right tyre. Eight bullet holes were observed on the right wing over the tyres, three bullet holes in the petrol tank, a bullet entry and exit hole on the front right door, and another bullet hole on the right wheel rim. The gendarme officers further collected a total of nine bullet cases from the scene of the incident.

On the same day, a major from the District Gendarmerie wrote to the Yüksekova Public Prosecutor and requested authorisation to search the two vehicles which had been stopped by the gendarmes. Upon receipt of authorisation, the gendarme officers searched the two lorries. They found sixtysix barrels of smuggled fuel in the first lorry and forty-five barrels in the applicant’s cousin’s lorry. No other illegal items were found in the vehicles. The applicant’s cousin, N.A., declined to sign the search report.

Also on the same day, two gendarme officers tested the lorry belonging to the applicant’s cousin in the presence of the village mayor. They reported that the vehicle had three flat tyres, that there were four bullet holes in the petrol tank, that the engine was working correctly and that the brake system was intact.

Subsequently, on the same day, the applicant’s cousin gave a statement to the Yüksekova Public Prosecutor and stated that the applicant had been taken to Van Hospital. He requested that criminal proceedings be initiated against the gendarme officers who had used force against them. He emphasised that when he had been told to stop he had been driving down a steep hill at high speed, and when he could not stop, he had shouted from the window that the brakes were not working. He had had no intention of escaping from the gendarmes. He further denied that he had been transporting smuggled fuel and maintained that the barrels found by the gendarmes must have been from the other vehicle.

The public prosecutor also took statements from two eyewitnesses to the incident. These two individuals had also been in the lorry which had been stopped by the gendarmes on suspicion of fuel smuggling. According to their statements, while they were being questioned by the gendarme officers about the barrels found in their lorry, they saw another vehicle approaching. The gendarmes ordered the driver to stop but the driver failed to obey, shouting from the window that the brakes had failed. The driver then tried to pass their vehicle, which was blocking the road, on the right. The gendarmes opened fire, first into the air and then at the tyres. Both witnesses stated that the driver had no intention of escaping and was shouting that he was unable to stop.

On 15 December 2008, the applicant’s cousin, N.A., gave a statement to the Hakkari Public Prosecutor. He explained that on the day of the incident, while he was driving down a steep hill, the gendarme officers ordered him to stop. He called out that he would stop, but the gendarmes opened fire and he was shot in the leg. He was able to stop the vehicle by using the handbrake. He stated that he had had no intention or reason to escape.

On 20 February 2009 a statement was taken from the applicant at Iskele police station. He explained that on the day of the incident he had been travelling in his cousin’s lorry. His cousin had told him that there was a problem with the brake system of the vehicle. When they approached the checkpoint, a gendarme officer ordered them to stop, and they shouted out that there was a problem with the brakes and that they were not able to stop. The gendarme thought that they were trying to escape and fired a shot in the air and then started shooting at them. The applicant was shot in the hip. He concluded that the gendarme who had shot at them was not at fault, as he must have thought that they were trying to escape.

On 22 July 2008 statements were taken from the accused gendarme officers by a sergeant from the Yeniköprü Gendarme Command. They all stated that they had ordered the driver of the lorry to stop on suspicion of fuel smuggling. The driver initially stopped the vehicle. When the officers asked about the load of the lorry, he started driving away in an attempt to escape. The officers explained that they first fired warning shots in the air and then shot at the tyres to stop the lorry. They considered that the force they had used had been proportionate as they had only used their guns, whereas they were also equipped with heavy machine guns and hand grenades.

Based on the evidence in the file, on 26 April 2009 the Yüsekova Public Prosecutor delivered a decision not to prosecute. He concluded that the use of force had been legal pursuant to Article 11 of Law no. 2803 on the establishment, duties and jurisdiction of the gendarmerie and section 39 (i) of the Regulation on the Duties and Powers of the Gendarmerie. He found it established that the driver of the vehicle in which the applicant was travelling had disobeyed the order to stop and had continued driving. He further pointed out that the lorry had not stopped and that the officers had first fired warning shots in the air and had then shot at the tyres of the lorry.

On 4 June 2009 the Van Assize Court dismissed the applicant’s appeal, finding the decision of the Yüksekova Public Prosecutor to be in line with domestic law.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 5+5-1 - Right to liberty and security (Article 5-5 - Compensation) (Article 5-1 - Deprivation of liberty;Article 5-1-f - Extradition;Article 5 - Right to liberty and security);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1970 in the town of Kustanay, in the Kazakh Soviet Socialist Republic, a constituent member of the Soviet Union. From 1988 to 1990 he served in the Soviet Army in Vladivostok. In 1990 he enrolled as a student at the military academy in the town of Ryazan in Russia. When the Soviet Union was dissolved in 1991, Kazakhstan became an independent State. Under Kazakh law, all those who were permanent residents of Kazakhstan in 1991 acquired Kazakh citizenship. A similar law was enacted in the Russian Federation. In 1992 the applicant left the military academy and for personal reasons returned to Kazakhstan. He had a USSR passport and was married to a Russian woman.

In 1998 the applicant was convicted in Kazakhstan for armed robbery. According to him, he was wrongly accused and ill-treated by the investigating officers. He claimed that the conditions of his detention in Kazakhstan were very poor, that prison officials ill-treated him and other convicts, that he was subjected to discrimination as an ethnic Russian and that prison officials extorted money from him.

The applicant served part of the sentence in a prison and was later transferred to an “open colony”, where convicts could move around unguarded. In 2001, when he was on leave from the colony, he fled to Russia. He explains that he feared for his life and for the lives of his relatives. In Kazakhstan he was put on the wanted list.

Upon his arrival in Russia the applicant obtained a false Russian passport. He lived and worked in Russia under a false name using that passport. The applicant’s real identity was discovered in 2007; he was sentenced by a judge to a fine for forgery of an official document, but remained in Russia.

The applicant claims that he tried to regularise his residence status. In particular, he claims that he was eligible for Russian nationality, since in 1991 (when the law on Kazakh nationality was enacted) he had been residing in Russia, not Kazakhstan.

In 2007 the Kazakh authorities requested the extradition of the applicant to Kazakhstan. On 2 May 2007 the applicant was arrested and detained in Russia in connection with that request, but on 5 October 2007 he was released on the order of Judge K. No extradition followed.

It appears that some time later the Kazakh authorities renewed their request. On 28 February 2011 the applicant was detained again upon the orders of the Kaluga town prosecutor.

On 30 March 2011 the applicant challenged the detention order before the court. The case was received by Judge K. from the Sverdlovskiy District Court, who set the date of the first hearing for 8 April 2011.

At the hearing of 8 April 2011 the prosecutor challenged Judge K. on the ground that she had already participated in the examination of the applicant’s extradition case earlier, in 2007, when she had ordered his release. It is unclear whether the applicant or his lawyer objected to the replacement of the judge.

On 15 April 2011 Judge N. from the Sverdlovskiy District Court of Kostroma examined the applicant’s complaint and ruled that the prosecutor’s detention order of 28 February 2011 was unlawful. The District Court found that under Russian law a prison sentence handed down by a foreign court was not sufficient for a person to be detained without a detention order issued by a court in Russia. The District Court ordered the prosecutor to take measures in order to rectify the situation complained of.

At the same hearing the prosecutor filed a request with the District Court seeking the applicant’s detention pending extradition. The District Court examined it on the spot and ruled that the applicant was to be detained to prevent him from absconding.

On 28 April 2011 that detention order was quashed by the Kostroma Regional Court as unsubstantiated. The Regional Court noted, in particular, that in view of the applicant’s profile and his previous behaviour (namely, the fact that after his first arrest pending extradition in 2007 he had continued to live openly at his officially known address) there was no reason to suppose that he would flee. The applicant was released, and house arrest was imposed on him. He was required to stay at home during the night.

In the meantime, on 5 April 2011, the Deputy Prosecutor General ordered the applicant’s extradition to Kazakhstan. The applicant challenged that decision before the court. He referred to the facts which, in his view, made him eligible for Russian nationality. He also claimed that if he returned to Kazakhstan he risked being subjected to ill-treatment by the prison authorities. In support of this argument he invoked reports by various human rights defence groups and international organisations concerning the human rights situation in Kazakhstan, in particular in the area of the rights of prisoners.

On 6 May 2011 the Kostroma Regional Court, in the presence of the applicant and his lawyer, examined the applicant’s extradition case on the merits. In particular, it examined his allegations about the risk of illtreatment in Kazakhstan, the fact that he had been serving a sentence for an ordinary criminal offence and the fact that the Kazakh authorities had given assurances to the Russian authorities that he would not be illtreated. The extradition order was upheld.

On 4 July 2011 the Supreme Court of the Russian Federation upheld the decision of the Regional Court. It noted, in particular, that the applicant had been convicted of an offence which was not political in nature and had not tried to seek refugee status in Russia because of the alleged persecution, preferring instead to live there under another name. The fact that he had been granted leave from the colony was at odds with his allegations that he had been ill-treated there. The Supreme Court further examined reports by international organisations and NGOs on ill-treatment and poor conditions of detention in Kazakh prisons but concluded that they were not sufficient to show that the applicant personally ran the risk of ill-treatment.

In 2011 the applicant asked the Migration Service to grant him Russian nationality. He claims that it was not his first attempt to that end, but the case file contains no documents in support of his claim. The Migration Service replied that in view of his background (in particular, the fact that at the time of the collapse of the USSR his permanent place of residence was in Kazakhstan) he was not eligible for automatic conversion of his USSR passport to a Russian passport, and that he had not satisfied the formal criteria for lodging a naturalisation request.

The applicant challenged the refusal of the Migration Service in court. He claimed, in particular, that in 1991 he was studying in Russia and was therefore eligible for Russian nationality. On 28 July 2011 the Sverdlovskiy District Court of Kostroma dismissed his complaint. The applicant’s appeal against the decision of 28 July 2011 is still pending.

It is unclear whether or not the applicant has been extradited.