Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr Yuriy Vitaliyovych Lutsenko, is a Ukrainian national who was born in 1964.

The applicant was the Minister of the Interior. He occupied this post from 2005 to 2006 and from 18 December 2007 to 11 March 2010. Since 27 August 2014 he has been the leader of the Bloc of Petro Poroshenko party.

On 2 November 2010 the General Prosecutor’s Office (hereinafter “the GPO”) instituted criminal proceedings against the applicant and another individual, Mr P., on suspicion of abuse of office under Article 191 § 3 of the Criminal Code. On 5 November 2010 the applicant was formally charged. On the same day he gave a written obligation not to abscond.

On 11 December 2010 the GPO instituted another criminal case against the applicant for exceeding his official powers under Article 365 § 3 of the Criminal Code, on the ground that he had arranged for the allocation of a one-room apartment to his driver, Mr P.

The two criminal cases were joined together.

On 13 December 2010 the GPO completed the investigation in the case and formally charged the applicant with both offences, having reclassified his actions specified in the first charge under Article 191 § 5 of the Criminal Code (misappropriation, embezzlement, and conversion of property by malfeasance).

On 26 December 2010 the applicant was arrested and detained in the Security Service Detention Centre (Слідчий Ізолятор Служби Безпеки України).

On 27 December 2010 the Pechersk District Court (Печерський районний суд) (hereinafter “the Pechersk Court”) ordered that the preventive measure in respect of the applicant be changed from a written obligation not to abscond to remand in custody.

On 28 December 2010 the applicant was transferred to Kyiv Pre-Trial Detention Centre no. 13 (Київський Слідчий Ізолятор №13) (hereinafter “the SIZO”).

On 17 May 2011 the GPO submitted the applicant’s criminal case to the Pechersk Court which, on 27 February 2012, rendered a judgment sentencing the applicant to four years’ imprisonment. The case received extensive attention in both national and international media which were present at court hearings. Photographs depicting the applicant behind metal bars were published soon after the court hearings.

On 7 March 2012 the applicant appealed, seeking the quashing of the first-instance judgment on the ground of lack of guilt.

On 16 May 2012 the Kyiv Court of Appeal (Апеляційний суд міста Києва) upheld the judgment of the Pechersk Court.

On 31 August 2012 the applicant was transferred to Mena colony in Chernihiv Region to serve his prison sentence.

In a judgment of 3 April 2013 the Higher Specialised Court of Ukraine for civil and criminal cases (Вищий спеціалізований суд України з розгляду цивільних і кримінальних справ) upheld the applicant’s prison sentence slightly reducing the amount of compensation that he had to pay.

On 7 April 2013 the former President of Ukraine issued a decree of pardon in respect of a number of individuals, including the applicant, who was released the same day.

Prior to his arrest the applicant was diagnosed with diabetes mellitus type 2 and chronic gastritis and pancreatitis.

Upon his admission to the SIZO on 28 December 2010, the applicant was examined by the head of the medical unit and a duty doctor. He underwent clinical, laboratory and X-ray examinations. On the basis of those examinations and the applicant’s anamnesis, he was diagnosed with symptomatic hypertension and it was recommended that his arterial pressure be constantly monitored. According to the applicant, the prison doctors did not pay attention to his chronic diseases which were mentioned in the medical report submitted to the Pechersk District Court and indicated orally by him on a number of occasions.

According to the Government, during the period from December 2010 to April 2011 the applicant was under constant supervision by doctors of the SIZO medical unit who visited him on 29, 30 and 31 December 2010, 1-9, 17 and 24 January, 10, 18 and 25 February, 1, 10 and 20 March and on 1 April 2011. During this period, no complaints were received from him and his state of health remained satisfactory. Doctors regularly measured his blood pressure and pulse rate and carried out his general examination. The applicant denied that he had not complained about problems connected with his state of health. According to him, during the three first months of his detention, he lost more than 20 kilograms, his low-grade fever and spastic stomach pain was constant.

Following the applicant’s complaints about the deterioration of his health, on 24 February 2011, a private medical laboratory took blood samples from him for analysis. Inflammation was diagnosed as a result. The doctor who arrived at that conclusion presumed that it was probably a mixed viral and bacterial infection. A provisional diagnosis of rheumatoid arthritis was also made. For more specific diagnoses, further specialist examinations were required.

On 9 March 2011 the applicant was diagnosed with arthritis by SIZO doctors.

On 15 March 2011 a new blood analysis showed some negative changes in the applicant’s immune system. His requests for examination by the cardiologist/rheumatologist who issued the above conclusion were without success.

According to the Government, on 6 and 13 April 2011 the applicant was examined by the head of the SIZO medical unit. He complained of pain in the joints. He was diagnosed with symptomatic hypertension and generalised osteoarthritis, and blood pressure monitoring was recommended.

On 21 April 2011 the applicant went on hunger strike in protest at his continued pre-trial detention.

According to the Government, between 22 April and 10 May 2011 the applicant was under daily supervision by doctors of the SIZO medical unit. From time to time he complained of dizziness and general weakness. His state of health remained satisfactory during this period.

On 29 April 2011 the SIZO administration placed him in a solitary-confinement cell and demonstrated forced-feeding facilities (such as handcuffs, a mouth widener and a rubber tube). Those were apparently never applied to him.

According to the Government, on the same day, the applicant was examined by the head of the SIZO medical unit. He complained of heart pain, which he said was worse when he made turning movements. The applicant was diagnosed with symptomatic hypertension, generalised osteoarthritis, and myositis of the left major pectoral muscle. At the same time, he informed the doctor that he had eaten no food for several days and had only had tea without sugar and coffee with sugar. An analysis of the applicant’s urine was carried out. There was a one-plus reaction for acetone. General monitoring of the applicant’s state of health, of the acetone level in his urine, and of his blood pressure was recommended.

On 1 May 2011 the applicant was examined by a panel of doctors from the State Prison Service of Ukraine (Державна пенітенціарна служба України) (hereinafter “the SPS”). He was prescribed an “anti-starvation food mixture” (semolina or oatmeal, butter, sugar, milk, eggs, boiled meat, salt, and ascorbic acid, with a total caloric content of 1,638.5 kcal) and the following medication: NaCL solution, vitamins Bl and B6, and Riboxin solution. On the same date a general blood analysis, a blood sugar-level test and a urine acetone test were carried out for the applicant - (a “three-plus” reaction was obtained). On the same date the applicant consumed 500 ml of “anti-starvation food mixture”.

On 2 May 2011 the SPS medical panel found his general state of health stable and held that positive progress was being made in overcoming dizziness and general weakness. A urine test for acetone was carried out for the applicant (a “three-plus” reaction was obtained).

On 3 May 2011, upon another examination by the SPS medical panel, a urine acetone test was carried out for the applicant. A “three-plus” reaction was obtained. On the same date the applicant consumed 400 ml of “anti-starvation food mixture”. It was recommended that he undergo further biochemical and general blood tests, a general urine analysis, a blood-sugar-level test and a urine acetone test, and also ultrasonic examinations of his abdominal cavity and kidneys. Injections of Reosorbilact solution and of glucose in solution were given to the applicant.

On 4 May 2011 the SPS medical panel saw the applicant again. He was found to have moderate diffuse changes in the liver, chronic cholecystitis and chronic pancreatitis. On the same date the applicant consumed 500 ml of “anti-starvation food mixture”. Injections of Reosorbilact solution and of glucose in solution were given to the applicant.

On 5 May 2011 the applicant’s wife asked the SIZO administration to carry out medical examinations of her husband in her presence. By that time, the applicant had lost about fourteen kilograms in weight. On the same day, according to the Government, the applicant was examined by the SPS medical panel. A general blood test, a blood-sugar-level test and a test of the urine for acetone were carried out at the Dila Laboratory. The test results were low-grade positive. The applicant was diagnosed with chronic cholecystitis and chronic pancreatitis. It was also found that the applicant’s state of health reflected his starvation. On the same date, the applicant refused to eat food or to undergo fluid-maintenance therapy to restore the balance of water, protein, and electrolytes in the body.

On 6 May 2011 the applicant was transferred to the SIZO medical unit. According to the Government, he was examined by a panel of doctors from civilian medical institutions. He was diagnosed with hypertension of the 1st degree, cardiac insufficiency, type 2 diabetes mellitus in a mild form at the compensation stage, chronic cholecystitis in unstable remission, chronic pancreatitis in unstable remission, osteoarthritis without exacerbation, disseminated osteochondrosis of the spine, and thoracic kyphosis. It was recommended that the applicant: (1) undergo an exercise electrocardiography (ECG) test and ultrasonic examination of the heart in order to exclude ischaemic heart disease; (2) take antihypertensive medication (Prestarium Combi) when the blood pressure was higher than 140/90 mm Hg; take Metoprolol in order to stop the tachycardia which occurred when the pulse rate was higher than 100 beats per minute. The applicant received this medical treatment in full.

According to the Government, on 7 May 2011 he was once again examined by the SPS medical panel. A check test of the urine for acetone was carried out (a “two-plus” reaction was obtained) and a general urine test was also done for the applicant. The panel confirmed the previous diagnosis. The applicant refused to consume any of the “anti-starvation food mixture” or to undergo fluid maintenance therapy.

On 8 May 2011 he was examined by a panel of doctors from Kyiv-based medical institutions of the Ministry of Health. The previous diagnosis was confirmed and it was additionally found that the applicant had chronic gastritis in unstable remission. The panel noted that the applicant’s hunger strike was significantly affecting his general state of health. Electrocardiography and echocardiography tests were carried out for the applicant. The urinary reaction for acetone was one-plus. The applicant was refusing to consume the “anti-starvation food mixture”. He was subjected to fluid-maintenance therapy with Aminoven. It was also recommended that the applicant broaden the variety of foods he ate, limiting the consumption of easily digestible carbohydrates (sugar, honey, and sweets); consistently take graduated physical activity; take Duphalac or Guttalax (to normalise bowel function) and probiotics (Lacium or Symbiter).

On 9 and 10 May 2011 the applicant was examined by the SPS medical panel. The urinary reaction for acetone was low-grade positive. He refused to consume “anti-starvation food mixture”. He was subjected to fluid-maintenance therapy with a physiological solution, vitamins Bl, B6, C, Riboxin, and Reosorbilact.

According to the applicant, before 10 May 2011 his medical monitoring had been limited to measuring his blood pressure and weighing him, along with a superficial examination by the SIZO doctor.

On 10 May 2011 he was taken to the Kyiv Clinical Emergency Hospital (Міська клінічна лікарня швидкої медичної допомоги) (hereinafter “the Emergency Hospital”). On the following day, the management of the hospital informed the investigator that the applicant was suffering from chronic pancreatitis in the aggravated stage, chronic gastroduodenitis, cardial-type neurocirculatory dystonia, and type 2 diabetes. His condition was evaluated as moderately serious.

On 18 May 2011 the deputy medical director of the Emergency Hospital gave additional details to the applicant’s wife as regards his health. In addition to the aforementioned diagnoses, he noted the following illnesses: chronic cholecystitis, gall bladder polyposis, autoimmune thyroiditis, euthyroidism, seborrheic dermatitis, myopia, osteochondrosis, chronic sinusitis, right-ear deafness, duodenal ulcer, gastric erosion and duodenogastric reflux.

On 23 May 2011 the applicant ended his hunger strike.

According to the Government, on 24 May 2011 he was examined by doctors of the SIZO medical unit. On the same date he ate gruel. He was also subjected to fluid-maintenance treatment with Aminoven and Pariet. Generally, although he continued to complain of general weakness, his condition improved considerably once he had ended the hunger strike.

The SIZO doctors saw the applicant also on the next day. They concluded that the applicant was suffering from the following illnesses: exacerbated chronic pancreatitis, chronic cholecystitis, gall-bladder polyposis, chronic duodenal ulcer, autoimmune thyroiditis, euthyroidism, type 2 diabetes mellitus, cardial-type neurocirculatory dystonia of medium severity, seborrheic dermatitis, cervical osteochondrosis, toxic-dyscirculatory encephalopathy of endogenic origin (degree I-II), duodenal ulcer, papillomatous gastropathy, and gastric erosions. On the same date the applicant ate gruel and drank water and carrot juice. The applicant underwent fluid-maintenance treatment and anti-ulcer treatment.

On 26 and 27 May 2011 the doctors of the SIZO medical unit confirmed the previous diagnosis. The applicant received fluid-maintenance and anti-ulcer treatment and underwent a urine test (which indicated no acetone), a blood test for sugar, and biochemical analysis of the blood. A consultation with a gastroenterologist was also scheduled for the applicant.

On 28 May 2011 the applicant was examined by a panel of doctors from civilian medical institutions. As a result of the examination, the panel found the applicant’s general state of health to be satisfactory. The applicant was diagnosed with the following conditions: peptic duodenal ulcer, post gastrointestinal haemorrhage condition, erosive gastritis, and mild post haemorrhagic anemia. It was recommended that he receive anti-ulcer treatment as an in-patient basis at a gastroenterology clinic. If it was impossible to arrange in-patient treatment for him, he would have to continue to take Pariet; again undergo a fibrogastroscopy with biopsy, a general blood test, electrolytes (potassium, phosphorus, fecal occult blood test) and eat five small meals a day, sticking to a diet with a high protein content.

According to the applicant, on 28 May 2011 he was examined in the SIZO and diagnosed with a duodenal ulcer in the progressing phase, gastrointestinal bleeding, erosive gastritis, and toxic-metabolic encephalopathy. Moreover, all his previously diagnosed diseases were confirmed.

According to the Government, on 29 May 2011 he was examined by SIZO doctors, who confirmed the previous diagnoses. He continued to receive the anti-ulcer treatment and multiple small-portion meals.

On 30 May 2011 the applicant underwent a urine acetone test, which revealed no acetone, a blood test for sugar, and a general blood test. The examination results confirmed the previous diagnoses.

On 31 May and 1 June 2011 he was examined by SIZO doctors who confirmed the previous diagnoses. Analyses of his blood and urine were carried out. He continued to receive the anti-ulcer treatment and appropriate diet.

On 8 June 2011 the governor of the SIZO informed the President of the Pecherskyy Court of some further diagnoses regarding the applicant’s health, established during his examination of 28 May 2011, and sought leave for him to be examined in the Emergency Hospital. According to the Government, the letter was sent to the court only on 9 June 2011.

In his reply of 14 June 2011 the judge of the Pechersk Court stated that the court did not object to the applicant’s being examined in a civilian hospital. A copy of this letter was sent to the Convoy Service of the Ministry of the Interior with a request for escorted transport for the applicant.

On 23 June 2011 the Convoy Service replied that the applicant’s medical care was the responsibility of the SIZO administration.

On 24 June 2011 the applicant’s wife and his legal representative made a new request to the court that he be hospitalised. They alleged that the applicant had constant stomach pain and had lost more weight, 24 kg in total. On 29 June 2011 the judge replied that the court had no objection.

According to the Government, from 2 June to 2 July 2011 the applicant was examined daily by SIZO doctors. In line with the instructions given following the previous examination by the medical panel, the applicant had regular clinical, biochemical, and general blood tests and urine analyses (these took place on 7, 8, 15, 18, 19, and 30 June 2011). The applicant was receiving anti-ulcer treatment, the recommended diet, and the prescribed outpatient treatment. During this period, the above-mentioned diagnoses remained valid. Furthermore, on 24 June 2011 the doctors found that his peptic duodenal ulcer had begun to cicatrise, which indicated a gradual improvement in his state of health.

According to the Government, the court gave its permission for the applicant’s examination at the Emergency Hospital on 14 July 2011.

On 15 July 2011 the applicant was examined at the Emergency Hospital. Fibrogastroscopy and ultrasonic scans were performed for the applicant. The examination revealed that he had esophageal varicose veins with 1st degree dilatation, moderate portal hypertensive gastropathy, chronic cholecystitis, gall-bladder polyposis, chronic pancreatitis, and urolithic diathesis. It was recommended that the applicant undergo a biochemical blood test, a general blood test, analyses for hepatitis B, C, and D antibody titers, abdominal ultrasonic scanning with Doppler sonography. According to the applicant, he did not receive any of the prescribed medicines.

On 21 July 2011, blood samples were taken from the applicant in the presence of his lawyer for complex liver function tests (hepatitis B, C, and D). At the applicant’s request, in order to ensure an objective analysis, the samples were sent to two laboratories: Eurolab and Synevo.

On 22 July 2011 the applicant underwent abdominal ultrasonic scanning with Doppler sonography at the Emergency Hospital. On the basis of the examination, the following diagnosis was made: signs of diffuse damage to the liver in a chronic hepatosis pattern, portal hypertension of the P’ degree, splenomegaly of the lst degree, and chronic cholecystitis. In pursuance of the recommendation, the applicant was tested for hepatitis B, C, and D markers, and liver function tests were done.

On 23 July 2011 the applicant was prescribed the following medication: Ursofalk, Essentiale Forte, Primer, Chophytol, and Duspatalin.

According to the Government, from 2 to 30 August 2011 the applicant was under daily supervision by SIZO doctors. His state of health remained unchanged. He continued complaining of discomfort in the upper abdomen. He received the medical treatment prescribed for him earlier.

On 30 August 2011 two senior civilian doctors examined the applicant in the SIZO. They diagnosed cirrhosis of the liver supposedly triggered by the earlier hunger strike. Furthermore, two internal haemorrhages were noted. It was recommended that the applicant undergo a more thorough examination in a specialist civilian hospital. In the meantime, he needed to get proper nutrition.

According to the Government, on 2 September 2011, following a court decision, the SIZO was visited by a panel of doctors (gastroenterologists, an endoscopist, and an ultra-sonographer). The applicant refused to be medically examined, to have blood samples taken, or to undergo ultrasonic examinations and fibrogastroduodenoscopy, which had been recommended by the medical panel.

On 6 September 2011 a commission of the Ministry of Health examined the applicant in the SIZO. It recommended that he undergo examination with special equipment so that specific diagnoses could be made.

On 7 and 8 September 2011 blood samples and faeces were taken from the applicant for laboratory tests.

On 13 September 2011 the applicant’s wife again requested the Pechersk Court to allow her husband to be hospitalised and given proper treatment.

On 15 September 2011 the applicant was hospitalised and examined in the Kyiv City Diagnostic Centre, which diagnosed the initial signs of portal hypertension, as well as signs of chronic cholecystitis, angiomyolipoma of the right kidney, and parenchymatous cyst of the left kidney. On the same date the applicant underwent an abdominal ultrasonic scan, which discovered signs of gall-bladder polyps and pancreatic diffuse changes, and confirmed the aforementioned kidney pathologies.

On 20 September 2011 the applicant underwent a colonoscopy which showed sigmoid colon diverticulitis. On the same day a newly appointed commission of the Ministry of Health examined him and diagnosed fatty liver disease. Dietetic therapy, mineral-vitamin complex, proton pump blockers and hepato-protectors were prescribed.

According to the Government, on 22 September 2011 the applicant consulted a haematologist. In view of a decreased number of white blood cells (leukocytes) and thrombocytes in his blood, it was recommended that he again undergo a general blood test at two independent laboratories, to be identified by the Ministry of Health. Once the results of those examinations were known it was recommended that the applicant again consult a haematologist.

On 23 September 2011 the applicant’s blood samples were sent to the laboratory for a general blood test. On 26 September 2011, following the haematologist’s recommendation, a blood sample was sent to the Sinevo laboratory for a coagulation profile test.

On 28 September 2011 the applicant again consulted the haematologist. The results of the previous examinations led the doctor to find that he had no blood system disorders.

On 24 October 2011 the applicant completed the course of medical treatment prescribed by the panel of doctors from civilian medical institutions on 20 September 2011.

On 29 September 2011 it was proposed that he undergo a liver biopsy, which he declined.

According to him, the biopsy is a surgical intervention, after which the patient should stay in the medical institution under medical supervision for a period the doctor considers necessary to monitor any post-operative complications. However, the applicant was not provided with guarantees that the medical care would be adequate and that he would stay in the hospital after the biopsy. He considered that removing him immediately to the SIZO would hurt his state of health. Besides, the applicant feared that proper medical care would not be provided to him in the SIZO if there were complications after the biopsy. He referred in this connection to his previous experience.

On 4 October 2011 the applicant’s relatives brought him the proton pump blockers and hepato-protectors which had been prescribed by the Ministry of Health commission specialists as early as 20 September 2011.

According to the Government, on 2 November 2011 the applicant was examined by SIZO doctors. When examined, he complained of general weakness, dragging pain in the right hypochondrium, and discomfort in the upper abdomen and in the intestine area. He was diagnosed with fatty liver disease, signs of incipient portal hypertension, erosive haemorrhagic helicobacter-associated gastritis, and diverticular disease of the sigmoid colon. As the applicant had completed the prescribed course of outpatient treatment, it was proposed that he undergo laboratory and instrumental tests. The applicant submitted a written statement refusing to undergo fibrogastroduodenoscopy and rectosigmoidoscopy.

On 3 November 2011 blood samples were taken from the applicant for laboratory examination at the Kyiv diagnostic centre. In particular, he underwent clinical, general, and biochemical blood tests and a coagulation profile test.

On 5 November 2011, upon a court decision, the applicant was examined by a panel of doctors from civilian medical institutions. He was diagnosed with the following conditions: fatty liver disease, signs of incipient portal hypertension, chronic helicobacter associated gastritis, and diverticular disease of the sigmoid colon. It was recommended that the applicant undergo an abdominal ultrasound scan, a faecal occult blood test, and a faecal analysis for helminth eggs and protozoa, consult a urologist, receive diet-based treatment, take a mineral-vitamin complex, and continue to take proton-pump inhibitors.

On 8 November 2011 the applicant underwent abdominal ultrasonic scanning at the Kyiv City Diagnostic Centre. He was diagnosed with gall bladder polyp signs, moderate pancreatic changes, angiomyolipomas of the right kidney, and small cysts of the left renal sinus. However, he refused to consult a urologist.

On 9 November 2011 he received a parcel with the necessary medication.

According to the Government, during November 2011 the applicant’s state of health remained satisfactory. From time to time he complained of general weakness, discomfort in the large intestine area, and pain in the right hypochondrium. During that period, he was examined daily by doctors of the SIZO medical unit, and regularly provided with the prescribed medical treatment. The diagnosis remained unchanged.

However, the applicant continued to complain of periodic discomfort in the large intestine area. He received the medical treatment prescribed by the panel of doctors from civilian medical institutions on 5 November 2011.

On 14 December 2011 the applicant was examined by a panel of doctors from civilian medical institutions. The results of the earlier examinations led the doctors to diagnose the applicant with the following conditions: fatty liver disease, signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticular disease of sigmoid colon, but no signs of blood disorder were found. The doctors recommended that the applicant undergo some additional examinations: electrocardiography, irrigoscopy, and an analysis of faeces for dysbiosis, to determine pancreatic (faecal) elastase, and a faecal occult blood test. Also, the applicant was prescribed the following medical treatment: diet-based treatment; Spasmomen or Meteospasmyl; Posterisan suppositories; Kreon; Validolum, to stop pain in the stomach; Chophytol, to continue to take from 19 December 2011. However, on 19 December the applicant on his own initiative refused to start the medical treatment prescribed.

In early January 2012 the applicant complained to the SIZO administration of stomach and intestinal pains.

On 5 and 14 January 2012 he underwent various laboratory tests in respect of his chronic gastrointestinal diseases, and on 11 January 2012 an ultrasonic examination of his abdominal cavity was conducted.

On 19 January 2012, during a court hearing, the applicant complained that he did not feel well. An ambulance was therefore called. The doctor diagnosed exacerbation of chronic pancreatitis and administered some medication to the applicant. The applicant’s overall state of health was assessed as satisfactory.

On 20 January 2012 the applicant was examined by a panel of medical specialists delegated by the Ministry of Health which established the following diagnoses: fatty liver disease (steatosis), signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticulosis of sigmoid colon. While the commission acknowledged a deterioration of the applicant’s health due to “nutrition-regime disturbance and psycho-emotional overload”, it found his health generally satisfactory and not warranting in-patient treatment in a specialist civilian hospital. The physicians recommended normalisation of the nutrition regime and reduction of the psycho-emotional pressure. They also prescribed some medication.

On 23 January 2012 the Ministry of Health delegated another panel, of three gastroenterologists, to examine the applicant in the SIZO. The doctors found him to be in a generally satisfactory state of health, and concluded that he did not require hospitalisation. They also specified the medication to be administered to the applicant, and repeated the earlier recommendation regarding his nutritional needs.

On 24 February 2012 the applicant was examined by a panel of doctors from civilian medical institutions. They noted that his state of health had improved. The applicant was diagnosed with fatty liver disease (steatosis), signs of incipient portal hypertension, chronic helicobacter-associated gastritis, irritable bowel syndrome, and diverticulosis of sigmoid colon. It was advised that he receive rational nutrition diet, continue to take Duspatalin and take Kreon, Valeriana extract, and suppositories with belladonna. The applicant received that medication in full.

On 6 April 2012 he was transferred from the SIZO to the Emergency Hospital for further examination.

According to the applicant, despite numerous check-ups, there was no proper medical treatment or medicine available to him in the SIZO. He received proper medical treatment in the Emergency Hospital on 10 May 2011 and 6 April 2012, but was discharged from the hospital on 23 May 2011 and 20 April 2012 respectively, upon an arbitrary decision by the Prison Service authorities, rather than upon a decision of the doctors treating him at the hospital. He was provided with medication which was incompatible with his general state of health, and although they treated his immediate health problem they contributed to the deterioration of his general state of health.

Upon his admission to the SIZO, the applicant was placed in cell no. 158, measuring 8.58 square metres. He shared the cell with one or two other inmates. According to him, the cell had poor ventilation and lacked personal hygiene facilities. Its walls had mould traces. Furthermore, there was no access to drinking water. Except for period from 28 April to 8 May 2011 (see paragraph 110 below), he shared this cell with two other detainees.

According to the Government, the cell had a proper ventilation system and natural lighting. The applicant had had daily exercise in the fresh air, except on days when lengthy court hearings were held. He was permitted to receive drinking water from relatives. He was allowed to take a shower once or twice a week.

From 8 to 10 May 2011, the applicant was held in cell no. 257 in the SIZO medical unit, which measured 23.21 square metres.

From 10 to 23 May 2011 he was a patient in the Emergency Hospital.

On 23 May 2011 the applicant was transferred to cell no. 260, measuring 22.32 square metres, in the SIZO medical unit, which he shared with another person. He remained there until 1 July 2011.

On 1 July 2011 he was transferred to cell no. 158, which he shared with another inmate.

On 27 March 2012 he was moved to cell no. 136.

On 6 April 2012 the applicant was transferred to the Emergency Hospital. He returned to cell no. 136 on 20 April 2012.

From the documents provided by the Government, in particular the minutes of the hearings held before the Pechersk Court (see annex), it appears that between 23 May 2011 and 16 February 2012 the court held seventy-nine hearings at which the applicant was present. At the hearing of 27 February 2012, it pronounced the judgment convicting the applicant. During thirty-five hearings, the court did not withdraw for deliberation on intermediate procedural issues but at least one break was announced, during twelve hearings the court both withdrew to deliberate and announced at least one break, and eleven hearings were interrupted by deliberations on intermediate procedural issue of the court but otherwise were carried out without a proper break. On 14 and 19 July, 22 August and 29 September 2011, 17, 27 and 31 January, 1, 2, 6, 7, 9, 14 and 15 February 2012 the court announced breaks for lunch. However, on 14 July 2011 the applicant had been removed from the courtroom for the rest of the hearing because of his improper behavior before the lunch break was announced.

Moreover, eighteen hearings were carried out without any deliberation and the court did not announce any break. In particular, on 12 October 2011 the hearing lasted two hours and 51 minutes, on 18 October 2011 it took three hours and 36 minutes, and on 16 and 21 November 2011 the hearings lasted almost three hours.

The applicant continued his hunger strike up to 23 May 2011. He was informed beforehand that the preliminary hearing would be held on that day. According to him, he was woken up at 4.30 a.m. to be taken to the court building for a hearing which started at about 11 a.m. He had to wait in a small convoy room of about 1.5 square metres. Overall, for about twelve to fourteen hours, he was allegedly held without food and drinking water, in poorly ventilated premises. On the same day, he terminated the hunger strike, which had lasted for about a month.

According to the Government, this information was incorrect. The applicant left the hospital at 7 a.m., reaching the court-house at 7.20 a.m. At 10.30 a.m. he was transferred to the courtroom.

According to the applicant, he was brought to the court hearing with an open bleeding stomach ulcer, although this condition required immediate hospitalisation. After the eight-hour hearing he was driven to the SIZO. He was transferred to the medical unit of the SIZO only after he had lost consciousness. Despite this, no treatment was recommended for him. Late at night the applicant’s state of health suddenly worsened.

According to the Government, as long as the applicant was in hospital, his health was under constant supervision by medical specialists there. In the event that his state of health did not permit him to take part in a hearing, this would be notified by the medical staff and the applicant would not then have been convoyed to the court hearing.

According to the applicant, he suffered from the absence of drinking water and nutrition, as well as the lack of rest, during the later court hearings too, while being kept in a metal cage in the courtroom.

On 20 January 2012 the applicant, in his request under Rule 39 of the Rules of Court, which was subsequently not granted, maintained that on 17 and 18 January 2012 the Pechersk Court had held the hearings daily despite his complaints of deteriorating health and acute pain in his stomach. According to him, the hearings had lasted from 9 a.m. until 6:30 p.m. usually with one thirty-minute break. On 19 January 2012 the court hearing had lasted from 9 a.m. until 11:30 p.m. The applicant stated that after having left the SIZO, he had not been provided with any food or water until his return. Moreover, on 19 January 2012 the court called the ambulance for him four times.

According to the information submitted by the Government, on the days of the hearings detainees received food packs from the prison authorities: the applicant refused these in writing on 1 December 2011 and 11, 19 and 20 January 2012, noting that he had his own food supply.

The Government submitted tables of the schedule of the hearing days (see annex) containing the information about the time when the applicant was put in the car and reached the courtroom, when the hearings started and were closed and the time when the applicant was put in the car and arrived back in the SIZO. They also submitted the minutes of the court hearings held before the Pechersk Court.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);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 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Respondent State to take measures of a general character (Article 46-2 - Legislative amendments);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä

The applicant was born in 1939 and lives in Rome.

The twenty-seventh G8 Summit took place in Genoa on 19, 20 and 21 July 2001 under the chairmanship of Italy.

In the run-up to the Summit a large number of non-governmental organisations had set up a coordinating group known as the Genoa Social Forum (“GSF”) with a view to organising an “anti-globalisation” Summit in Genoa during the same dates (see Final Report of the Parliamentary inquiry into the events during the Genoa G8 Summit (see “Final Rapport of the Parliamentary Inquiry”), pp. 7-18).

Since the meeting of the World Trade Organisation in Seattle in November 1999, such demonstrations by the “anti-globalisation” movement have been organised during inter-State summits and meetings of international institutions on different aspects of global governance. They have sometimes been accompanied by acts of vandalism and clashes with the police (ibid.).

Law No. 349 of 8 June 2000 (“Law No. 349/2000”) had assigned the task of organising the preliminary meetings and the Final Summit of the Heads of State and Government scheduled for July 2001 to a plenipotentiary body set up within the Prime Minister’s Office. Several meetings were attended by representatives of the GSF, the Head of the plenipotentiary body, the Prefect of Genoa, the Minister of the Interior, the Minister for Foreign Affairs and local authority representatives (see Final Report of the Parliamentary Inquiry, pp. 18-21).

Substantial security measures were put in place by the Italian authorities (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 12, ECHR 2011). Under section 4(1) of Law no. 149 of 8 June 2000, the prefect of Genoa was authorised to deploy military personnel. In addition, the part of the city where the G8 were meeting (the historic centre) was designated as a “red zone” and cordoned off by means of a metal fence. As a result, only residents and persons working in the area were allowed access. Access to the port was prohibited and the airport was closed to traffic. The red zone was contained within a yellow zone, which in turn was surrounded by a white (normal) zone.

According to the information garnered by the Genoa police department up to July 2001 (see Final Report of the Parliamentary Inquiry, p. 23), the various groups expected to take part in the demonstrations were broken down into various blocs depending on the danger they posed: the non-dangerous “Pink Bloc”; the “Yellow Bloc” and the “Blue Bloc”, which were deemed to comprise persons likely to vandalise property, set up street and railway blockades and cause confrontations with the police; and lastly, the “Black Bloc”, which embraced several anarchist groups and more broadly, demonstrators dressed in black and wearing masks and balaclavas who had systematically wreaked havoc during other summits.

On 19 July 2001 two demonstrations took place during the day without incident. Disorder occurred during the evening (see Final Report of the Parliamentary Inquiry, p. 25).

On 20 July several demonstrations had been announced for various areas of the city, and rallies were scheduled for specific squares (“piazze tematiche”) (see Final Report of the Parliamentary Inquiry, pp. 25-27).

On the morning of 20 July the Black Bloc sparked numerous incidents and clashes with law-enforcement officers, and ransacked banks and supermarkets (see Giuliani and Gaggio, cited above, § 17). Marassi Prison was attacked and a number of police stations were vandalised (see Giuliani and Gaggio, cited above, § 134, and Final Report of the Parliamentary Inquiry, p. 26).

The Black Bloc sparked similar incidents while the Tute Bianche, a group broadly belonging to the “Yellow Bloc”, were marching along Via Tolemaide. Tear gas was fired on the Tute Bianche demonstrators by carabinieri, who charged forward, making use of their truncheons and non-regulation batons. The demonstrators split up, though some of them responded to the attack by throwing hard objects at the law-enforcement officers; armoured vehicles belonging to the carabinieri drove up at high speed, knocking down the barriers erected by the demonstrators and forcing the demonstrators to leave. Clashes between demonstrators and law-enforcement officers continued in the adjacent areas (see Giuliani and Gaggio, cited above, §§ 17-20, 126-127 and 136).

Similar clashes occurred at around 3 pm in Piazza Manin (see Final Report of the Parliamentary Inquiry, p. 26).

At around 3.20 pm, during a clash in Piazza Alimonda, Carlo Giuliani, a young demonstrator, was hit by a shot fired from a jeep of carabinieri attempting to escape the demonstrators (see Giuliani and Gaggio, cited above, §§ 21-25).

On 21 July the final anti-globalisation demonstration took place, attended by some 100,000 persons (see Giuliani and Gaggio, cited above, § 114).

The looting and unlawful damage began in the morning and continued all day throughout the city. In the early afternoon the march ran into a group of some one hundred individuals facing the security forces. Further clashes ensured, with the security forces firing tear gas and charging the crowd, also involving the orderly demonstrators (see Final Report of the Parliamentary Inquiry, pp. 27-28).

During the two days of incidents several hundred demonstrators and members of the security forces were injured or suffered from the effects of tear gas. Whole districts of the city of Genoa were laid waste.

On the morning of 21 July 2001 the Head of Police ordered Prefect A., Deputy Head of Police and Head of the plenipotentiary body, to assign the task of searching the Paul Klee School to Mr M.G., Head of the CID Central Operational Department (the “SCO”) (see judgment no. 1530/2010 of the Genoa Court of Appeal of 18 May 2010 (the “appeal judgment”), p. 194). Some twenty individuals were arrested following that operation, but they were immediately released by order of the prosecution or the investigating judge (see appeal judgment, p. 196).

It transpires from Prefect A.’s statements to the Genoa Court that the order issued by the Head of Police was explicable by his desire to move on to a more “incisive” phase involving arrests of suspects in order to dispel any impression that the police had remained inert vis-à-vis the looting and unlawful damage perpetrated in the city. The Head of Police had wanted to set up large-scale joint patrols directed by officers from the mobile units and the SCO and coordinated by trusted officers, with a view to stopping the Black Bloc (see judgment no. 4252/08 delivered by the Genoa Court on 13 November 2008 and deposited on 11 February 2009 (the “first-instance judgment”), p. 243; see also judgment no. 38085/12 of the Court of Cassation of 5 July 2012, deposited on 2 October 2012 (the “Court of Cassation judgment”), pp. 121122).

At 7.30 pm on 21 July M.G. ordered M.M., Head of the Genoa General Investigations and Special Operations Department (DIGOS) to second officers from his unit in order to from joint patrols with other officers from the Genoa mobile unit and the SCO (see Final Report of the Parliamentary Inquiry, p. 29).

The Genoa Municipal Council had provided the GSF and other bodies with access to the premises of two adjacent schools in Via Cesare Battisti in order to install a multimedia centre. In particular, the Diaz-Pascoli School (“Pascoli”) accommodated a press unit and temporary lawyers’ offices, while the Diaz-Pertini School housed an Internet access point. Following thunderstorms over the city which had hampered access to some camping sites, the Municipality had authorised the use of the Diaz-Pertini School as a night accommodation centre for demonstrators.

On 20 and 21 July, residents in the area reported to the police that young people dressed in black had gone into the Diaz-Pertini School and taken materiel from the site linked to the ongoing works in the school.

Early in the evening of 21 July one of the joint patrols proceeded along Via Cesare Battisti, sparking a heated verbal reaction from dozens of persons standing outside the two schools. An empty bottle was thrown at the police vehicles (see first-instance judgment, pp. 244-249, and Court of Cassation judgment, p. 122).

On their return to the police station, the police officers who had headed the patrol recounted the events at a meeting called by the most senior police officials (including Prefect A., Prefect L.B., Police Commissioner C. and M.G.).

Having contacted the GSF official to whom the Diaz-Pertini School had been assigned, the police decided to conduct a search of the premises in order to secure evidence and possibly arrest the Black Bloc members responsible for the unlawful damage. Having discussed and dismissed the idea of bombarding the school with tear gas, they agreed on the following modus operandi: a police unit made up essentially of officers belonging to a division specialising in anti-riot operations who had benefited from ad hoc training (the VII Nucleo antisommossa operating within the Rome mobile unit) was to “secure” the building; another unit would carry out the search; lastly, a carabinieri unit would surround the building to prevent suspects escaping. The Head of Police was also informed about the operation (see first-instance judgment, pp. 226 and 249-252, and Final Report of the Parliamentary Inquiry, pp. 29-31).

Late in the evening a large number of police officers from various units and departments left the Genoa police station for Via Cesare Battisti (see Final Report of the Parliamentary Inquiry, ibid.). According to the Court of Cassation judgment, the total number of officers participating in the operation was “approximately 500 police officers and carabinieri, the latter being responsible exclusively for encircling the building”. The appeal judgment (p. 204) pointed out that that figure had never been precisely substantiated.

At around twelve midnight the members of the VII Nucleo antisommossa, having arrived close to both schools with helmets, shield and tonfa-type truncheons, together with other similarly equipped officers, began to run towards the premises. A journalist and a municipal councillor standing outside the schools were kicked and struck with batons (see first-instance judgment, pp. 253-261).

Some of the persons occupying the Diaz-Pertini School who had been outside re-entered the building and closed the gates and entrance doors, attempting to block them with school benches and wooden planks. The police officers assembled in front of the gate, which they forced open with an armoured vehicle after unsuccessful attempts to shoulder-charge them. Finally, the aforementioned police unit broke down the entrance doors (ibid.).

The officers invested all the floors of the building, many of them in complete darkness. With, in most cases, their faces concealed by scarves, they began to punch, kick and club the occupiers, shouting threats at their victims. Groups of officers even struck seated or prostrate persons. Some of those who had been awakened by the noise were struck while still in their sleeping bags, while others were assaulted while holding their hands up as a sign of capitulation or showing their identity documents. Some of the occupiers attempted to escape and hide in the school toilets or lumber-rooms, but they were caught and beaten up, and some of them were hauled out of their hiding places by the hair (see first-instance judgment, pp. 263-280, and appeal judgment, pp. 205-212).

The applicant, who was sixty-two years of age at the material time, was on the ground floor. Having been awakened by the noise, when the police arrived he sat down against the wall beside a group of persons with his arms in the air (see first-instance judgment, pp. 263-265 and 313). He was mainly struck on the head, arms and legs, whereby the blows caused multiples fractures: fractures of the right ulna, the right styloid, the right fibula and several ribs. According to the applicant’s statement in the Genoa Court, the healthcare staff who arrived at the school after the violence had subsided attended to him last, despite hiss cries for help.

The applicant was operated on at the Galliera hospital in Genoa, where he remained for four days, and then a few years later, at the Careggi hospital in Florence. He was granted over forty days’ unfitness for work. The aforementioned injuries left him with a permanent weakness in his right arm and leg (see first-instance judgment, pp. XVII and 345).

Shortly after the storming of the Diaz-Pertini School, a police unit stormed the Pascoli School, where journalists were filming events both outside and inside the Diaz-Pertini School. A radio station was broadcasting the events live.

When the police officers arrived the journalists were forced to stop filming and broadcasting. Cassettes containing the reports filmed over the three days of the Summit were seized and the GSF lawyers’ hard disks were seriously damaged (see first-instance judgment, pp. 300-310).

After the storming of the Diaz-Pertini School the security forces emptied the occupiers’ rucksacks and other luggage without attempting to identify their owners or to explain the nature of the operation under way. They wrapped some of the items collected in a black flag in the school gymnasium. During that operation, some of the occupiers were taken to the gymnasium and forced to sit or lie down (see first-instance judgment, pp. 285-300).

The ninety-three persons occupying the school were arrested and charged with conspiracy to commit unlawful damage and destruction.

Most of them were taken to hospitals in the city. Some were immediately transferred to the Bolzaneto barracks.

During the night from 21 to 22 July the Head of the Italian police press unit, who was interviewed close to the schools, stated that during the search of the premises the police had found black clothing and balaclavas similar to those used by the Black Bloc. He added that the numerous bloodstains in the building had stemmed from injuries sustained by most of those occupying the Diaz-Pertini School during clashes with the police the previous day (see first-instance judgment, pp. 170-172).

The next day, at the Genoa police station, the police showed the press the items seized during the search, including two Molotov cocktails. They also showed the uniform of an official who had taken part in the storming of the Diaz-Pertini School, displaying a clean cut which might have been caused by a knife (ibid.).

The prosecution against the occupiers on charges of conspiracy to commit unlawful damage and destruction, serious or aggravated résistance to the police and the unlawful carrying of weapons led to the acquittal of all concerned.

The Genoa public prosecutor’s office initiated an investigation to ascertain the facts underlying the decision to storm the Diaz-Pertini School and to shed light on the methodology of the operation, the alleged knife attack on one of the officers and the discovery of the Molotov cocktails, as well as the events that had occurred in the Pascoli School.

In December 2004, after some three years of investigations, twenty-eight police officers and officials were committed for trial. Two further sets of proceedings concerning three other officers were subsequently joined to the initial proceedings.

The applicant had claimed damages at the preliminary hearing on 3 July 2004. A total number of 119 parties claiming damages, including dozens of Italians and foreigners who had occupied both schools, as well as trade unions and other non-governmental associations, came to a.

Those proceedings concerned the events in the Diaz-Pertini School, where the applicant had been accommodated (see paragraphs 31-34 above), and the events in the Pascoli School (see paragraphs 36 and 37 above). They involved hearing more than 300 individuals, both defendants and witnesses (including many foreigners), two expert opinions and the viewing of a great deal of audio-visual materiel.

The charges relating to the events in the Diaz-Pertini School were as follows: giving false information for inclusion in a document, simple and aggravated slander, misfeasance in public office (particularly on account of the unlawful arrest of the persons occupying the buildings), simple and aggravated bodily harm and unlawful carrying of weapons of war.

By judgment no. 4252/08 of 13 November 2008, deposited on 11 February 2009, the Genoa Court found twelve of the accused guilty of providing false information (one accused), simple slander (two accused) and aggravated slander (one accused), simple and aggravated bodily harm (ten accused) and the unlawful carrying of weapons of war (two accused). The court sentenced them to between two and four imprisonment, a prohibition of holding public office for the period of the main sentence and, jointly and severally with the Ministry of the Interior, payment of costs and expenses and of damages to the parties claiming the latter, to whom the court awarded advances of between 2,500 and 50,000 euros (EUR).

The applicant, in particular, was awarded an advance of EUR 35,000, which was paid in July 2009 following an attachment.

In determining the main sentences the court had regard to the mitigating circumstances that the perpetrators of the offences had no criminal records and that they had acted in a state of stress and fatigue. One of the convicted persons was granted a conditional suspension of sentence, whereby the court ordered that the conviction should not appear on his criminal record. Furthermore, pursuant to Law No. 241 of 29 July 2006 laying down the conditions for remission of sentence (indulto), ten of the convicted persons were granted total remission of the main sentences, and one of them, who had been given a four-year prison sentence, was granted a three-year remission.

In the reasons for the judgment (373 pages of a total of 527), the court first of all rejected the argument that the operation had been planned from the outset as a punitive expedition against the demonstrators. It accepted that the security forces might reasonably have thought, in the light of the events preceding the storming of the buildings (particularly the information provided by local residents and the attack on the patrol during the afternoon of 21 July – see paragraphs 26-27 above), that there were also members of the Black Bloc in the Diaz-Pertini School. It held, however, that the events at issue constituted a clear violation of the law, “of human dignity and of respect for the individual” (di ogni principio di umanità e di rispetto delle persone). The court considered that even in confronting members of the Black Bloc, the security forces were allowed to force inasmuch as the latter was necessary in order to overcome violent resistance from the persons occupying the buildings, subject to proportionality between the resistance encountered and the means used. According to the court neither the applicant nor, for instance, a slightly built young woman who had also been present could have put up such resistance as to justify the blows which they had received, causing bruising and fractures.

The court also emphasised that the prosecution had not requested the committal for trial of the actual perpetrators of the violence on account of the difficulty of identifying them, and that the police had not cooperated effectively. It noted in that connection that the prosecution had been provided with old photographs of the officers accused and that it had taken seven years to identify one particularly violent officer – filmed during the storming of the buildings – even though he had been easily recognisable by his hairstyle.

In its assessment of the individual responsibility of the accused, the court held that having regard to the circumstances of the case, the perpetrators had acted in the conviction that their superiors tolerated their acts. The fact that some officers and officials who had been in situ right from the beginning of the operation had not stepped in immediately to halt the violence had encouraged the officers of the VII Nucleo antisommossa and the other members of the security forces in their actions. The Court therefore took the view that only those senior officials could be considered guilty of aiding and abetting the offence of causing bodily harm.

The court then considered the prosecution argument that the security forces had produced false evidence and recounted fictitious events with a view to justifying, a posteriori, both the search of the premises and the acts of violence.

As regards the behaviour of the persons occupying the buildings before the police stormed them, the court observed that the video recordings added to the case file had not shown them throwing any large objects from the building, but that it might be considered, according to the statements of a witness and the attitude of the police officers, who had been filmed with their shields raised above their heads, that a number of small objects (coins, bolts, etc.) had probably been thrown at the officers while they had been attempting to break down the entrance door to the school.

As regards the alleged knife attack on an officer, the court, drawing on the results of the expert opinion prepared on that officer’s behaviour and the evidence at its disposal, observed that it could neither find that that attack had actually taken place nor preclude the possibility that it had in fact occurred.

Moreover, the court noted that the two Molotov cocktails shown to the press on 22 July had been found by the police in the city during the afternoon of 21 July and subsequently brought, at the behest of the Deputy Police Commissioner of Genoa, to the schoolyard towards the end of the search of the premises, and that they had ended up, under obscure circumstances, mingled with the items that had been gathered together in the gymnasium.

Finally, the court considered that the police report on the operation contained a misleading description of the facts, because it stated that all those occupying the school had resisted violently and glossed over the fact that most of them had been injured by the security forces.

The accused, the prosecutor’s office with the Genoa Court, the Principal State Prosecutor, the Ministry of the Interior (which was civilly liable) and most of the victims, including the applicant, all appealed to the Genoa Court of Appeal against the first-instance judgment. By judgment no. 1530/10 of 18 May 2010, filed on 31 July 2010, the court of appeal altered the challenged judgment.

The Court of Appeal found the accused guilty of the following offences: providing false information (seventeen accused), aggravated bodily harm (nine accused) and the unlawful carrying of weapons of war (one accused). It imposed prison sentences on them of between three years and eight months and five years and prohibited them from holding public office for five years. Pursuant to Law No. 241 of 29 July 2006, all those convicted were given the benefit of a three-year remission of sentence.

Since the limitation period for offences of aggravated slander (in the case of fourteen accused), abuse of public authority on account of the unlawful arrest of the persons occupying the Diaz-Pertini School (twelve accused) and simple bodily harm (nine accused) had elapsed, the Court of Appeal discontinued proceedings against them. The proceedings against the Head of the VII Nucleo antisommossa, who had been convicted at first instance for causing aggravated bodily harm, were also discontinued on account of mitigating circumstances. Finally, the Court of Appeal acquitted a person accused of simple slander and unlawful carrying of a weapon of war and another person accused of simple slander.

Most of the sentences involving payment of damages and costs and expenses as passed at first instance were upheld in substance, and, at the appeal level, the accused persons who had been convicted for the first time were also held civilly liable.

In the reasons for the judgment (120 pages of a total of 313), the Court of Appeal firstly pointed out that even if the suspicions concerning weapons used by the Black Bloc members during their looting could, in principle, have justified searching the schools, there was nevertheless scant evidence that all the persons occupying the two schools were armed and could be considered as belonging to the Black Bloc.

The Court of Appeal further stated that several factors demonstrated that the operation had in no way been geared to identifying the members of the Black Bloc and had been quite different in nature.

First of all, right from the planning stages of the “search” the senior police officials had allegedly specified that the VII Nucleo antisommossa and other heavily armed officers would be in the front line of the security forces; those units had not been given any precise instructions concerning the use of force against those occupying the school, their sole task being to “secure” (mettere in sicurezza) the building.

Secondly, even those individuals who had been outside the Diaz-Pertini School and had not put up the least resistance had been immediately attacked by the security forces.

Thirdly, the security forces had launched their assault by breaking down the doors without attempting to negotiate with the occupiers, explaining that a “non-violent search” was to be carried out, or to induce them voluntarily to open the door, which, according to the Court of Appeal, they had justifiably closed. On entry into the building the officers had systematically beaten those inside in a cruel and sadistic manner, inter alia using non-regulation batons. According to the Court of Appeal, the traces of blood to be seen on the photographs taken during the inspection of the premises had been fresh and could only have stemmed from the above-mentioned violence, contrary to the “shameful contention” (vergognosa tesi) that they had been the result of injuries sustained during the clashes which had occurred over the previous days.

In the light of those factors the Court of Appeal concluded that the aim of the whole operation had been to carry out a large number of arrests, even in the absence of any judicial purpose, the main thing being to remedy a media image of a powerless police force. The most senior officials of the security forces had therefore surrounded the VII Nucleo antisommossa with a heavily armed unit equipped with tonfa-type truncheons capable of dealing lethal blows, and that unit have been exclusively instructed to neutralise the persons occupying the Diaz-Pertini School, stigmatising them as dangerous troublemakers who had caused all the unlawful damage of the previous few days. The violent and coordinated action of all the officers who had participated in the operation had been the logical consequence of the instructions given.

Therefore, according to the Court of Appeal, all the most senior officials of the VII Nucleo antisommossa, as a minimum, had been guilty of causing the injuries inflicted on the persons occupying the buildings. As regards the higher-ranking police officers, the Court of Appeal pointed out that the decision not to request their committal for trial had impeded proper assessment of their criminal responsibility.

Furthermore, the Court of Appeal held that once the decision to storm the building and make the arrests had been taken, the security forces had attempted to justify their action a posteriori.

In that connection the Court of Appeal noted that during the investigation the persons occupying the school had been attributed responsibility for offences which they had not committed: the investigation had in no way shown that the occupiers had resisted the security forces or that they had thrown objects at them while standing in the schoolyard, whereby some of the officers had probably raised their shields merely as a precaution; and above all, having regard to all the circumstances of the case, the alleged knife attack on an officer during the storming of the building had proven to be a “bare-faced lie”.

The Court of Appeal further noted that the most senior officials in the security forces who were present in situ, had decided to place both the Molotov cocktails that had been found elsewhere during the afternoon among the items collected during the search, with a view to justifying the decision to conduct the search and to arrest the persons occupying the school. The Court of Appel took the view that since the arrests had been devoid of any factual or legal basis, they had been unlawful.

In determining the appropriate sentences, the Court of Appeal found that apart from the Head of the VII Nucleo antisommossa, who had attempted to limit the violence and had finally admitted the offences during the proceedings, no mitigating circumstances could be acknowledged in respect of the other accused. Having regard to the applicant’s statements, the Court of Appeal pointed out that the members of the security forces had turned into “violent thugs” indifferent to any physical vulnerability bound up with sex and age and to any sign of capitulation, even on the part of persons who had just been abruptly awakened by the noise of the attack. Moreover, the officers had compounded the violence with threats and insults. In doing so they had discredited Italy in the eyes of the international community. Moreover, once the violence had been perpetrated, the security forces advanced a whole series of fabricated “facts” implicating the occupiers.

In the Court of Appeal’s opinion, the systematic and coordinated nature of the act of violence committed by the police officers and the aforementioned attempts to justify them a posteriori constituted a deliberate, concerted effort rather than a state of stress and fatigue.

Nevertheless, having regard to the fact the whole impugned operation had originated in the instruction from the Head of Police to carry out arrests and that the accused had therefore clearly acted under the psychological pressure of that instruction, the Court of Appeal determined the sentences on the basis of the minimum penalty laid down in criminal law for each of the offences in question.

The accused, the State Prosecutor with the Genoa Court of Appeal, the Ministry of the Interior (which was civilly liable) and some of the victims, appealed on points of law against the appeal judgment; the applicant and other victims claimed civil damages in those proceedings.

By judgment no. 38085/12 of 5 July 2012, deposited on 2 October 2012, the Court of Cassation essentially upheld the impugned judgment, although it declared the offence of aggravated bodily harm for which ten of the accused had been convicted at first instance and nine at second instance (see paragraphs 49 and 60 above).

In its grounds of judgment (71 pages of a total of 186), the Court of Cassation first of all examined the objection as to the constitutionality of Article 157 of the Criminal Code on statute-barring of criminal offences as submitted by the State Prosecutor under Article 3 of the Convention and, secondarily, under Article 117 § 1 of the Constitution. It observed that – as the first- and second-instance decisions had noted, in a finding which had never in fact been contested – “the violence perpetrated by the police during their storming of the Diaz-Pertini school [had been] egregious”. The “utmost gravity” of the police conduct stemmed from the fact that the widespread violent acts committed throughout the school premises had been unleashed against individuals who were obviously unarmed, sleeping or sitting with their hands up; it was therefore a case of “unjustified violence [which], as rightly pointed out by the State Prosecutor, [was carried out] for punitive purposes, for retribution, geared to causing humiliation and physical and mental suffering on the part of the victims”. According to the Court of Cassation, the violence might have qualified as “torture” under the terms of the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment or else as “inhuman or degrading treatment” under Article 3 of the Convention.

The Court of Cassation noted that in the absence of an explicit criminal offence within the Italian legal system, the impugned violent acts had been prosecuted on the basis of simple or aggravated bodily harm, which offences, pursuant to Article 157 of the Criminal Code, had been the subject of a discontinuance decision on the ground that the limitation period had expired during the proceedings. It noted that that had been why the State Prosecutor had complained of the contradiction between the regulations on the statute-barring of the criminal offences laid down in Article 157 of the Criminal Code – inasmuch as that provision did not include ill-treatment within the meaning of Article 3 of the Convention among the offences not subject to limitation – and in Article 3 of the Convention, which, in accordance with the Court’s well-established case-law, required the imposition of appropriate penalties on ill-treatment and therefore impeded the limitation of offences or criminal proceedings in cases of ill-treatment.

Nevertheless, the Court of Cassation considered that a change in the rules on limitation as envisaged by the State Prosecutor lay outside the jurisdiction of the Constitutional Court because, under Article 25 of the Italian Constitution, only the law could establish offence and criminal penalties.

As regards the convictions for offence of bodily harm, the Court of Cassation, having reiterated the events preceding the impugned police storming of the school (see paragraphs 25-30 above), considered logical the Court of Appeal’s finding that the instruction from the Head of Police to carry out arrests had, right from the outset, “militarised” the search operation which the police was to conduct in the school. The Court of Cassation held that the very large number of officers and the lack of instructions regarding alternatives to a tear-gas assault on the school (see paragraph 29 above) and regarding the use of force against the occupiers, among other factors, showed that that operation had not been designed as a peaceful search of the premises. The operational methods used had caused virtually all the persons occupying the school to be beaten up, which explained the Court of Cassation’s upholding of the responsibility, inter alia, of the officials heading the VII Nucleo antisommossa. First of all, the latter had given no instructions on how the building was to be “secured” and had at no stage informed the officers of the possible presence of harmless individuals; secondly, they had not prevented the attacks on persons standing outside the building, the violent storming of the school and the assault on the persons occupying the premises. In conclusion, as the Court of Appeal had rightly found, those officials had been aware that violence was inherent in that type of operation.

The Court of Cassation noted, however, that even the offences of aggravated bodily harm had become statute-barred on 3 August 2010 by dint of scheduling, the calculation criteria and the interruptions of proceedings provided for in Articles 157 et seq. of the Criminal Code as amended by Law No. 251 of 5 December 2005.

The Court of Cassation also upheld the findings of the appeal judgment as regards the offences of providing false information, slander and unlawful carrying of weapons of war perpetrated in the framework of a “disgraceful whitewashing operation” in order to justify a posteriori the violence perpetrated in the school and the arrest of those occupying it. The Court of Cassation noted that the persons occupying the school had not put up any résistance either before the entrance door had been broken down or inside the premises, and also that the occupiers had not been in possession of Molotov cocktails, which had been brought into the school from the outside by the police. Therefore, the Court of Cassation declared mendacious the police reports to the contrary and slanderous the conspiracy charges levelled against the occupiers. As regards the conclusions of the appeal judgment concerning the alleged knife attack on an officer, the Court of Cassation merely specified the sentence passed on two officers convicted of providing this false information (three years and five months, as indicated in the reasons given for the appeal judgment, rather than three years and eight months as indicated in the operative part). Finally, it passed a sentence of three years and three months on one of the convicted officers for providing false information, on account of the limitation on the offence of aggravated bodily harm and the resultant inapplicability of the calculation criterion laid down in Article 81 of the Criminal Code because of the continuous nature of the offences.

The charges levelled against officers for the events in the Pascoli School concerned arbitrary search and damage to property.

By judgment no. 4252/08 (see paragraph 49 above), the Genoa Court held that the storming by the police officers of the Pascoli School had been the result of a mistake in identifying the building to be searched. It also found that no clear evidence had been provided to conclude that the accused had actually caused the damage complained of in the Pascoli School.

On the other hand, by judgment no. 1530/10 (see paragraph 59 above), the Genoa Court of Appeal found that there had been no mistake or misunderstanding behind the police storming of the Pascoli School. According to the Court of Appeal, the security forces had tried to destroy all film evidence of the storming of the neighbouring Diaz-Pertini School and had deliberately damaged the lawyers’ computers. It nevertheless decided to discontinue proceedings against the police officer charged because the impugned offences had become statute-barred.

By judgment no. 38085/12 (see paragraph 76 above) the Court of Cassation upheld that decision. It emphasised that the Court of Appeal had fully justified its conclusions by noting that the police had carried out an arbitrary search of the Pascoli School geared to seeking out and destroying audio-visual material and all other documentation concerning the events in the Diaz-Pertini School.

On 2 August 2001 the Presidents of the Chamber of Deputies and the Senate decided to order an inquiry (indagine conoscitiva) into the events during the Genoa G8 Summit by the Constitutional Affairs Committees of both chambers of Parliament. For that purpose it set up a commission comprising eighteen Deputes and eighteen Senators.

On 20 September 2001 the commission submitted a report setting out the conclusions of the majority of its members, entitled “Final Report of the Parliamentary Inquiry into the events during the Genoa G8 Summit”. According to the Report the search of the Diaz-Pertini School “could probably be seen as the most significant example of the organisational shortcomings and operational dysfunctions”.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant was born in 1969 and is serving a life sentence in Varna Prison.

The facts of the case may be summarised as follows.

On 10 November 1989 the applicant was convicted and sentenced to death. The Supreme Court confirmed this sentence on 15 January 1990. The applicant was placed in Pleven Prison and was not executed because a presidential moratorium on the execution of death sentences was introduced in the meantime.

After the death penalty was abolished in Bulgaria, the Vice-President commuted the applicant’s sentence to life imprisonment on 21 January 1999. On 7 June 1999 the authorities placed the applicant under a “special regime” to serve his sentence, and on 11 June 1999 they transferred him to Varna Prison, where he remained until June 2004. Between June 2004 and June 2007 the applicant was detained in Pleven Prison, and on 27 June 2007 he was transferred again to Varna Prison, where he was at the time the most recent information was submitted to the Court, in late 2013.

At times he shared his cell with other life prisoners who were serving their sentences under the “special regime”.

According to the applicant, throughout the entire period of his detention he has been held in cells not equipped with sanitary facilities, and has only been allowed to go to the toilet three times a day. During the rest of the time he has had to relieve himself in his cell in a bucket which he could wash out once a day. The prison authorities have not provided him with chemicals for disinfecting the bucket.

He has been permanently locked in his cell.

According to the Government, between 2004 and 2007 in Pleven Prison the applicant was placed in a cell which was only locked at night. This allowed him unlimited access to the toilet, situated in the wing’s corridor, between 5.30 a.m. and 8 p.m. Furthermore, toilets and sinks with running water were installed in all cells in Pleven Prison in 2008.

In Varna Prison the applicant was allowed to go to the lavatory more than three times a day. In particular, he had access to sanitary facilities and hot water also when he was taken out of his cell for his hour’s exercise in the open air. Without specifying further, the Government also stated that this was also the case when he took part in the weekly prison activities. A toilet and a sink with running water were installed in his cell in August 2012.

Between 7 June 1999 and 6 December 2005 the applicant was held under the most restrictive “special regime”. Under this regime prisoners were locked permanently in their cells, and could only communicate with other life inmates and not with the general prison population. In December 2005 a Commission for the Execution of Sentences changed the applicant’s regime to the lighter “enhanced regime” which became called the “severe regime” with the adoption of the Execution of Punishments and Pre-Trial Detention Act in June 2009. He was able to take part in religious discussions for up to an hour a week and to play table tennis for half an hour up to twice a week.

The Government submitted annual psychological assessments of Mr Radev in respect of 2009, 2010, 2012 and 2013. According to those assessments, the applicant demonstrated anti-social behaviour and periodically engaged in conflict with other inmates, whom he also incited to go on hunger strike as a means of pressuring the prison authorities into taking decisions favourable to them. According to the Government, the applicant had been disciplined twenty-six times for breaching the internal rules, and had only received four good-conduct awards. On six occasions he was punished for keeping an unauthorised mobile telephone and/or charger and SIM cards for it in his cell; once for keeping an item which could be used to make a hand-knife; and another time for keeping a small foldable hand-knife. On two occasions the punishments were for violent altercations with other life prisoners. One of those occasions was described by the prison authorities as “not having escalated to the level of lasting tension, but rather being a momentary emotional outburst not uncommon for both the inmates involved”. In the other incident, the physical engagement had been preceded by verbal arguments on the part of both prisoners, and the prison guards rapidly managed to separate the inmates and defuse the tension. When the applicant considered a situation was detrimental to him, he usually threatened legal action, and sometimes attempted self-harm or suicide as a means of “persuading” the prison authorities. He was emotionally unstable and had a tendency to contest the decisions of the prison authorities. Because of all this the prison authorities were not considering a change in the applicant’s prison regime.

After the Government had submitted their observations to the Court, the applicant complained that he was serving his sentence in inadequate material conditions. In particular, there was insufficient fresh air and lighting in his cell, which itself was dilapidated and infested with cockroaches, and it was impossible for him to maintain personal hygiene as he had no access to hygienic or cleaning products. He was permanently handcuffed when outside his cell, the food was rather poor, and so was the medical care provided to him in prison. Lastly, no work had been offered him, nor did he have any meaningful occupational activities.

Between 2007 and 2011 the applicant brought several claims for damages under the State and Municipalities’ Responsibility for Damage Act 1988 (“the SMRDA”) in connection with various aspects of his conditions of detention. The Supreme Administrative Court rejected all of them as inadmissible, finding in particular either that the prison authorities had not acted unlawfully or that the applicant had not established that he had suffered as a result of those conditions.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1965 and lives in Budapest.

The applicant intended to organise a demonstration protesting against “the persecution of national radicalism”. It was planned to take place between 4 p.m. and 7 p.m. on 15 August 2009. The venue was Venyige Street in Budapest Xth District, in front of Budapest Penitentiary.

Venyige Street is of a width of five metres in the Government’s submissions and of eight in the applicant’s. Parallel to the main driveway, there is a service lane, of a width equivalent to that of two cars; this area is normally used as a car park. In the applicant’s submissions, this latter section could have accommodated largely all the participants, without them creating any major traffic incident.

The applicant, in the notification addressed to Budapest Police Department under Act no. III of 1989 on the Right of Assembly, indicated that a maximum of 200 participants were to be expected. This notification was made at 5.40 p.m. on 12 August 2009.

On 14 August 2009 Budapest Police Department banned the demonstration, in pursuit of its prerogatives under section 8(1) of Act no. III of 1989. It was of the view that there was no alternative route for the traffic in the neighbourhood, and consequently the demonstration would impede traffic inordinately. The applicant was reproached with the fact that the notification did not contain the agenda for the gathering.

Because of this prohibition, the demonstration did not take place.

On 17 August 2009 the applicant requested judicial review of the police decision. He explained inter alia that he had not specified the agenda because the meeting had been intended as a rather small one and that therefore the actual course of events, such as speeches or discussion, was hard to predict.

On 19 August 2009 the Budapest Regional Court rejected the applicant’s complaint. It observed that the question of previous notification of the agenda was immaterial, since the only valid reason in the case was the disproportionate difficulties which would be caused to traffic by the demonstration.

The court relied on the expert opinion provided by the Traffic Division of Budapest Police Department, in whose view the demonstration would have significantly impeded the traffic heading to the shops located in Venyige Street, a dead end, to the local waste disposal site and to the suppliers’ entrance of Budapest Prison; and the disruption caused by the crowd might have extended to Maglódi Road, a major thoroughfare in the vicinity with lines of city transport involved. Relying on that reasoning, the court endorsed the police decision.