CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juillet 2008

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display:inline-block } .sBA727180 { width:35.3pt; display:inline-block } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }       FIRST SECTION         CASE OF VLADIMIR ROMANOV v. RUSSIA   (Application no. 41461/02)               JUDGMENT       STRASBOURG   24 July 2008       FINAL     26/01/2009     This judgment may be subject to editorial revision. In the case of Romanov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Khanlar Hajiyev,   Dean Spielmann,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 3 July 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 41461/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Anatolyevich Romanov (“the applicant”), on 21 October 2002. 2.     The applicant was represented by Ms M. Bystrova, a lawyer practising in Ivanovo. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that he had been severely beaten up in a detention facility, that there had been no effective investigation of his complaints of ill-treatment and that he had not been afforded an adequate opportunity to confront two prosecution witnesses at the trial proceedings. 4.     On 3 June 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 5.     The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government’s objection, the Court dismissed it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1973 and lived until his arrest in the town of Ivanovo. A.     Criminal proceedings against the applicant 7.     On 27 October 2000 four individuals attacked Mr I. near his flat, beat him up and attempted to rob him. Mr I. fought back and the attackers ran away. 8.     Three days later the applicant was arrested on suspicion of having attempted to rob Mr I. in conspiracy with Mr B. and Mr V. The arrest record indicated that he had been arrested for disorderly conduct. The applicant was placed in detention facility no. IZ-37/1. 9.     An investigator interviewed Mr B. and Mr V. who were drug addicts and were suffering from drug withdrawal syndrome. They confessed to robbery, committed with the applicant. According to the applicant, they had confessed because policemen had promised to supply them with drugs. The applicant insisted that in October and November 2000 Mr B. and Mr V. had written statements confessing to the robbery after the policemen had given them drugs. 10.     On 30 October 2000 emergency doctors visited Mr V. The medical report of 30 October 2000 showed that Mr V. was a drug addict and that he had been provided with medical assistance.     On 5   and 6 November 2000 the emergency doctors examined Mr B. He was diagnosed with drug addiction and withdrawal syndrome. Medical assistance was provided. 11 .     On 2 November 2000 the applicant had a confrontation interview with Mr I. who stated that four men wearing balaclava masks had attempted to rob him on 27 October 2000. Mr I. noted that the applicant was of the same height as one of the attackers. The applicant did not dispute Mr I.’s submissions and did not ask any questions. 12.     While being questioned by the investigator the applicant admitted that he had intended to beat Mr I. up because a friend had asked him to do it. He denied that he had ever attempted to rob Mr I. The applicant maintained that testimony at the trial. 13.     On 26 October 2001 the applicant was committed to stand trial before the Frunzenskiy District Court of Ivanovo. 14.     A lawyer representing Mr V. successfully asked the District Court to examine the medical report of 30 October 2000 indicating that Mr V. was a drug addict. 15.     At the trial Mr V. and Mr B. retracted their confessions made during the pre-trial investigation. They claimed that they had confessed to the robbery under the influence of drugs and in the absence of a lawyer. They insisted that on 27 October 2000 they had met Mr I. but had merely intended to beat him up and had had no intention of robbing him. 16 .     Mr I. did not attend the trial and the District Court found that there were “good reasons” for his absence. The Government, relying on a written statement by a District Court secretary, submitted that on 29   November 2001 Mr I. had notified the secretary by telephone that he had not been able to attend the trial hearings as he had been in another country. Mr I. had confirmed his statements made during the pre-trial investigation. The Government also produced a written statement issued on 28 November 2001 by a lay assessor who had sat in the applicant’s case. According to the lay assessor, Mr I.’s wife informed her by telephone that Mr I. had left Russia and had been unable to come back before 3   December 2001. 17 .     At the hearing on 29 November 2001 the District Court read out depositions made by Mr I. on 23 April and 8 May 2001. The court record indicated that the District Court had not asked the applicant or his lawyer whether they had agreed to the reading of the depositions. According to the depositions, on 27 October 2000 Mr I. opened the entrance door and saw four men wearing balaclava masks. One of them hit him in the face. Mr I. attempted to close the door but an attacker followed him into the flat. The entrance door of the flat accidentally closed and other perpetrators could not enter. Mr I. fought the attacker, opened the entrance door and was able to push the attacker out of the flat. After he had opened the door, he saw another man, whom he identified as the applicant. The applicant hit Mr I. with the handle of a gun and ran away. Mr I. claimed that the attackers had intended to rob him. 18 .     The District Court summonsed three witnesses, Mr L., Mr S. and Mr   T. Mr L. and Mr S. attended the trial and testified that on 27   October 2000, the day of the alleged robbery, they had seen four men running but had not been able to identify them. Mr T., who lived in Israel, did not appear at the trial and his depositions made during the pre-trial investigation were read out. His statements were identical to those given by Mr L. and Mr   S. 19.     On 9 January 2002 the Frunzenskiy District Court of Ivanovo found the applicant guilty of aggravated robbery and sentenced him to eleven years and three months’ imprisonment. The court issued a confiscation order in respect of the applicant’s property. 20 .     The District Court based its judgment on the depositions by Mr I. made during the pre-trial investigation, the testimony by Mr   L. and Mr S., the deposition by Mr T. made during the pre-trial investigation, the confession statements made by Mr V. and Mr B. during the pre-trial investigation, and the applicant’s statements in which he had admitted that on 27 October 2000 he had visited Mr I. but had not robbed him. The District Court noted that it had not been established of what property the defendants had intended to rob Mr I. 21.     The District Court rejected the co-defendants’ arguments that they had confessed in a state of drug intoxication. It noted that there was no indication that Mr V. and Mr B. had been forced to confess or that they had been administered drugs to induce them to admit their guilt. Throughout the pre-trial investigation they had given consistent and detailed statements in the presence of attesting witnesses and their interviews had been recorded on video. The District Court watched those video recordings. The defendants had appeared to be in a normal state of health and had no longer claimed that they had been drugged. 22 .     On 16 and 22 January 2002 the applicant and his lawyer filed appeal statements against the judgment of 9 January 2002. They complained, inter alia, that the District Court had based the conviction on the depositions by Mr I. and Mr T. given during the pre-trial investigation. 23 .     On 23 April 2002 the Ivanovo Regional Court upheld the judgment of 9   January 2002, endorsing the reasons given by the District Court. In particular, it noted that the District Court had rightfully convicted the applicant on the basis of the statements given by Mr I. and Mr T. 24.     On 18 October 2002 the Presidium of the Ivanovo Regional Court, on a supervisory review, reduced the applicant’s sentence to nine years and three months’ imprisonment, having regard to the fact that the gravity of the offence did not correspond to the severity of the sentence. B.     Ill-treatment by wardens 1.     The events of 22 June 2001 25 .     The applicant submitted that on 22 June 2001, on an order of the director of detention facility no. IZ-37/1, warders had entered cell no. 81 where he had been detained. The warders, hitting the inmates with rubber truncheons, forced them to leave the cell. In the corridor they continued hitting the applicant with rubber truncheons. The applicant fell on the floor and the beatings continued. After the beatings stopped, he crawled into his cell. Several hours later he felt extreme pain and his fellow inmates asked for a prison doctor. The applicant was taken to a hospital where doctors removed his spleen. 26 .     According to the Government, on 22 June 2001 the applicant took part in a prison disobedience action. They relied on written statements by warders, including the warder Mr Ye., and a report issued on 23   June 2001 by the head of the task unit of detention facility no. IZ-37/1. The report, in its relevant part, read as follows: “On 22   June 2001, at 8.05 a.m., a junior inspector, senior sergeant of the internal service Mr P., who was on duty,... raised the alarm and informed a senior lieutenant of the internal service Mr La... that detainees in cell no. 81 were attempting to kick the cell door out, banging on it with boots, metal plates and cups. On an order of the senior lieutenant of the internal service Mr La., a group of off-duty warders... went to cell no. 81... Upon their arrival, a senior lieutenant of the internal service Mr Pa... ordered the detainees to stop their unlawful actions and warned them that force might be used if they did not comply with the lawful order. However, the inmates ignored the order of the facility administration and continued their collective disobedience actions. Moreover, [inmates] in certain other cells... supported the actions of the inmates of cell no. 81 [and] also started knocking on the doors, which could have turned into a prison riot. The facility director, who by 8.15 a.m. had received full information on the incident involving inmates in cell no. 81, raised a general alarm and ordered that the senior lieutenant of the internal service Mr La. repeat his orders and warn the detainees of special means and consequences if they did not comply. After the repetition of the administration’s orders and the warning of the possible use of force had no effect on the detainees, the facility director decided to carry out a special operation in respect of the detainees in cell no. 81. In the presence of a group of medical staff members, the group of off-duty warders, other staff members who had gathered on an alarm signal and had been equipped accordingly, the cell door was opened and the detainees were requested to stop their active demonstration of discontent, to leave the cell [and] go into the corridor. In response to that lawful order the inmates climbed on to the upper bunks, refusing to leave the cell. They accompanied their actions with obscene and defamatory language towards the representatives of the facility administration. After rubber truncheons PR-73 had been applied to certain detainees who had clearly refused to comply, all the inmates went into the corridor. In the course of a discussion they did not raise any complaints nor did they substantiate claims against the facility administration which could serve as objective justification for confrontation... Inmates who had been allowed to return to the cell stopped their disorderly actions. Detainees in other cells followed their lead. It was established in the course of the investigation pertaining to that incident that the majority of the inmates in cell no. 81 had not known the real reasons for the disorderly actions when those actions had started, assuming that the flame of discontent had been fanned by the appalling (according to them) conditions of detention in the cell and [they] had taken part in those actions obeying exclusively the feeling of corporate solidarity. Secret operative measures taken with the purpose of establishing the true reason for the conflict allowed the conclusion that a voice message from an inmate of a cell on the lower floor about beatings of another inmate, Mr D., by warders, which took place at the same time... served as an incentive for the beginning of the collective disobedience.... As it follows from the inmates’ explanations, most of them heard orders addressed to them to stop disorderly actions and warnings that special measures would be used, but they did not react in any way. As a result of the selective application of rubber truncheons by the warders injuries were sustained by... and Mr Romanov Vladimir Anatolyevich... who were examined and received the necessary assistance from medical personnel of the facility. The investigation showed that the facility personnel in that situation had acted firmly, without compromise, taking the special measures promptly, without delay and in compliance with requirements of paragraph 2 of Section 45 [of the Custody Act]..., that is as it was required in the situation at hand, which was of a complicated nature since the actions of the detainees from cell no. 81 had been supported by detainees from other cells and other preventive measures of a non-violent nature had appeared to be ineffective.” 27 .     The Government submitted a record of the applicant’s medical examination drawn up on 22 June 2001 by the prison dermatologist. The record stated that the applicant had had bruises on his legs and four linear bruises on the back and the left side of the small of his back. The bruises measured 3.5 centimetres in width and 4 to 10 centimetres in length. 28 .     The Government, relying on an extract from the applicant’s medical record, further stated that on the evening of 22 June 2001 the applicant had been taken to the surgical division of the prison hospital and had been diagnosed with “a blunt chest injury, a splenic rupture, hemoperitoneum, first-degree shock, and an injury to the small of the back”. Doctors discovered signs of internal bleeding and decided to remove the spleen. Later in the evening the applicant underwent surgery. He remained in the hospital until 16 July 2001 and was transferred to the medical department of detention facility no. IZ-37/1 in “a satisfactory state of health”. 2.     Investigation of the events of 22 June 2001 29 .     On 25 June 2001 the facility administration informed the Ivanovo regional prosecutor’s office that on 22 June 2001 force had been used against inmates, including the applicant. 30 .     An assistant of the Ivanovo Regional Prosecutor carried out an inquiry. On 3 July 2001 he issued a report, refusing to institute criminal proceedings as there had been nothing criminal in the warders’ actions. The relevant part of the report read as follows: “On 22 June 2001, at 7.45 a.m., before placement in a punishment cell, warders of the detention facility searched a detainee, Mr D. [He] resisted and as a result, force was used against him and forbidden correspondence was seized. Mr D. shouted loudly that the warders were beating him up, urging inmates to knock on their cell doors and protest. Detainees supported him, thus violating the detention rules, and [inmates] in cell no. 81, in particular, started banging hard on the cell door. At 8.05 a.m. a junior inspector of the task and guard unit, Mr P., sounded the general alarm in the facility. As follows from statements of staff members of the detention facility, ... on 22   June 2001, after the general alarm signal at 8.10 a.m. they arrived in cell no. 81, whose inmates were banging hard on the door. The detainees did not comply with repeated orders to stop their unlawful actions. The same orders and warnings of the possible use of special measures made by Mr P. through the door grille also had no result. On an order of the director of the detention facility, Mr Lu., the cell door was opened at 8.15 a.m. and the detainees were requested to go into the corridor. That order was lawful, taking into account the aggressive state of the inmates, the possibility of their attacking the warders, taking possession of cell keys and weapons, and taking hostages. Furthermore, the detention regime required a morning roll-call of the detainees. The inmates refused to comply with the order. In that situation [the warders] decided to force the inmates into the corridor. Four inmates, including Mr Romanov, urged their fellow detainees not to leave the cell, [he] actively disobeyed, swinging his arms and pushing warders Mr Ye. and Mr Zh., away, and did not respond to repeated orders to stop those unlawful actions. Following Mr Ye.’s repeated warnings about the possible use of special measures, [Mr Romanov] continued his actions. Mr Ye. hit Mr Romanov with a rubber truncheon three to four times on the back and legs, after which Mr Romanov was taken out of the cell into the corridor. The fact that the special measures were used is confirmed by statements of facility warders and their reports, as well as an official record of the use of special measures and an official record of the medical examination of Mr Romanov by a medical committee consisting of three persons. According to that record, Mr Romanov had injuries to his knees and feet and four red linear bruises on the back and the left side of the small of the back. The head of the medical department of the detention facility, Mr M., and a dermatologist, Mr Bo., stated that at about 3.00 p.m. on 22 June 2001 Mr Romanov had asked for medical assistance, complaining of pain in the left subcostal area. After a consultation with a surgeon from the prison hospital Mr Romanov was transferred to the hospital. According to statements by the head of the surgical division of the prison hospital Mr Ti. and the medical record, on the same day, at 8.10 p.m., Mr Romanov underwent surgery and his injured spleen was removed. In an interview Mr Romanov stated that on 22 June 2001 he had been woken up at 8.00 a.m. before the morning roll-call... He heard his inmates banging on the cell door. Soon afterwards warders entered the cell and forced everyone into the corridor. At that time he was near his sleeping place. A warder hit him several times with a rubber truncheon on the back and forced him into the corridor, where other warders also hit him numerous times on his back with rubber truncheons. He did not resist in any way and did not urge [inmates] to resist the warders. As a result of the investigation, Mr Romanov’s statements were not confirmed and they are of a contradictory nature. In particular, Mr Romanov could not explain the discrepancies between his arguments about the numerous blows and the results of the medical examination. Moreover, he was examined in the course of the prosecutor’s investigation on 27 June 2001, and no other injuries, save for those recorded in the report of the medical examination, were discovered. The detainees, Mr Bl., Mr Ve.... and Mr Y. did not see how the special measures were applied to Mr Romanov, stating that on 22 June 2001, before the morning roll-call, they had knocked at the cell door. [They] did not comply with the warders’ orders [and] did not stop their actions. [They] were warned about the possible use of special measures. Thus, taking into account the facts and the results of the investigation, it is necessary to note that a special measure, namely a rubber truncheon, was applied by Mr Ye. to Mr Romanov lawfully and in accordance with the requirements of Section 45 [of the Custody Act]...” 3.     Proceedings for compensation 31.     Following the prosecutor’s refusal to institute criminal proceedings, the applicant lodged an action against the Ministry of Justice and the Ministry of Finance seeking compensation for damage caused by the use of force on 22 June 2001. He also argued that the prosecutor’s office had unlawfully refused to institute criminal proceedings against the warders. 32 .     On 11 June 2002 the Oktyabrskiy District Court of Ivanovo accepted the applicant’s action in part and awarded him 10,000 Russian roubles (RUB, approximately 330 euros). The District Court cited the assistant prosecutor’s decision of 3 July 2001 in support of its finding that the use of force against the applicant had been lawful. The District Court further noted that the applicant had sustained serious damage which threatened his life. It observed that while using special measures such as rubber truncheons and physical force, warders should have ensured that the applicant sustained minimal damage. The District Court concluded that the detention facility, as a legal person, did not have sufficient control over whether the staff members performed their work safely. The applicant had sustained physical and moral suffering and compensation should therefore be paid. 33 .     On 14 October 2002 the Ivanovo Regional Court confirmed the District Court’s findings. However, it increased the amount of compensation to RUB 30,000 (960 euros). II.     RELEVANT DOMESTIC LAW A.     Use of force and special measures in detention facilities 1.     Code on Execution of Punishments (no.   1-FZ of 8 January 1997) (Уголовно-исполнительный кодекс РФ) 34.     Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6). 35.     Physical force, special means or weapons may be used against detainees if they offer resistance to the officers, persistently disobey lawful demands of the officers, engage in riotous conduct, take part in mass disorders, take hostages, attack individuals or commit other publicly dangerous acts, escape from the penitentiary institution or attempt to harm themselves or others (Article 86 § 1). The procedure for application of these security measures is determined in Russian legislation (Article 86 § 2). 2.     Penitentiary Institutions Act (no. 5473-I of 21 July 1993) (Закон РФ «Об учреждениях и органах, исполняющих уголовные наказания в виде лишения свободы») 36.     When using physical force, special means or weapons, the penitentiary officers must: (1)     state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees; (2)     ensure the least possible harm to detainees and provide medical assistance; (3)     report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28). 37 .     Rubber truncheons may be used to (1)     stop assaults on officers, detainees or civilians; (2)     repress mass disorder or group violations of public order by detainees, as well as to apprehend ( задержание ) offenders who persistently disobey or resist the officers (section 30). 3.   Custody Act (no. 103-FZ of 15 July 1995) (Федеральный закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений») 38 .     Rubber truncheons may be used in the following cases:   - to repel an attack on a staff member of a detention facility or on other persons;   - to repress mass disorder or put an end to collective violations of the detention regime;   - to put an end to a refusal to comply with lawful orders of facility administration and warders;   - to release hostages and liberate buildings, rooms and vehicles taken over by a detainee;   - to prevent an escape;   - to prevent a detainee from hurting himself (section 45). B.     Civil law remedies against illegal acts by public officials 39.     Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor.   Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage. C.     Criminal law remedies against illegal acts by public officials 40.     Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years’ imprisonment. Pursuant to Article 286 § 3 (a) and (в) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment. D.     Investigation of criminal offences 41 .     The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113). E.     Confession as a basis for conviction 42 .     Article 77 of the RSFSR Code of Criminal Procedure provided that a conviction could not rest solely on the admission of the accused. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 43.     The applicant complained that on 22 June 2001 he had been subjected to treatment incompatible with Article 3 of the Convention and that the authorities had not carried out an effective investigation of that incident, which amounted to a breach of Article 13 of the Convention. The Court will examine this complaint from the standpoint of the State’s negative and positive obligations flowing from Article 3, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Submissions by the parties 44.     The Government argued that the applicant had not exhausted the available domestic remedies as he had not appealed against the decision of 3   July 2001 to a higher-ranking prosecutor or a court. At the same time the Government noted that the applicant had made use of his right to judicial protection as he had successfully lodged an action before the Oktyabrskiy District Court of Ivanovo and obtained compensation for damage caused. They further submitted that the applicant had not been subjected to torture or to inhuman or degrading treatment in June 2001. The lawful use of force had been a response to his unlawful actions. In the situation of the possible prison riot and the detainees’, including the applicant’s, refusal to comply with lawful orders of the facility administration, warders had no choice but to resort to the use of force. The Ivanovo Regional prosecutor’s office carried out a thorough investigation of his complaints and found them to be unsubstantiated. 45.     The applicant maintained his complaints. B.     The Court’s assessment 1.     Admissibility (a)     Non-exhaustion issue 46.     The Court notes the Government’s argument that the applicant had failed to exhaust domestic remedies by failing to appeal against the assistant’s prosecutor’s decision of 3 July 2001 to a higher-ranking prosecutor or a court. In this connection, the Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article   35   § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance, and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v.   Turkey , judgment of 18   December 1996, Reports 1996-VI, pp. 2275-76, §§   51-52, and Akdıvar and Others v.   Turkey , judgment of 16   September   1996, Reports 1996-IV, p. 1210, §§   65-67). 47.     The applicant’s allegations of ill-treatment were examined by the investigator, who in a decision of 3 July 2001 decided not to institute criminal proceedings. Under Article 113 of the RSFSR Code of Criminal Procedure, which was in force at the material time, that decision was amenable to an appeal to a higher prosecutor or a court of general jurisdiction (see paragraph 41 above). The parties did not dispute that the applicant, after learning about the decision of 3 July 2001, had not appealed to a higher-ranking prosecutor. However, the applicant argued that he had made use of the judicial avenue of exhaustion by lodging an action for damages before the Oktyabrskiy District Court. The Government somewhat supported that assertion, noting that the applicant had availed himself of judicial protection against ill-treatment by lodging a tort action. 48.     As regards an appeal to a higher prosecutor, the Court has already held on several occasions that an appeal to a higher prosecutor does not give the person employing it a personal right to the exercise by the State of its supervisory powers, and that such an appeal does not therefore constitute an effective remedy within the meaning of Article 35 of the Convention (see Slyusarev v. Russia (dec.), no. 60333/00, 9 November 2006). 49.     The position is, however, different with regard to the possibility of challenging before a court of general jurisdiction a prosecutor’s decision not to investigate complaints of ill-treatment. The Court has already found that in the Russian legal system the power of a court to reverse a decision not to institute criminal proceedings is a substantial safeguard against the arbitrary exercise of powers by the investigating authorities (see Trubnikov v. Russia (dec.), no.   49790/99, 14   October 2003). 50.     The applicant did not use the formal procedure to challenge the decision of 3 July 2001 before a court as was required by the RSFSR Code of Criminal Procedure (see paragraph 41 above). Instead, he lodged an action against the Ministry of Justice, alleging that the assistant prosecutor had erred in his findings. He sought compensation for damage caused by the alleged ill-treatment and the refusal to punish the perpetrators. In this connection, the Court observes that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. The Court has already held on a number of occasions that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Akdivar and Others , cited above, p.   1211, §   69, and Aksoy , cited above, p.   2276, §§ 53-54). 51.     The Court observes that the domestic courts accepted the applicant’s complaint of alleged ill-treatment and inadequacy of the prosecutor’s investigation of the events in question. Both the District and Regional Courts took cognisance of the merits of the applicant’s claims, examined the reasonableness of the prosecutor’s decision of 3 July 2001 and based their conclusions on the findings made in that decision, considering that the assistant prosecutor’s views could not be said to be wrong. The courts’ reasoning was not confined to the compatibility of the applicant’s complaint with the formal requirements (see paragraph   32   above). 52.     The Court reiterates that non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of the latter’s failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the claim (see Dzhavadov v. Russia , no.   30160/04, §   27, 27   September 2007; Skałka v. Poland (dec.), no.   43425/98, 3   October 2002; Metropolitan Church of Bessarabia and Others   v. Moldova (dec.), no.   45701/99, 7 June 2001; and Edelmayer   v.   Austria (dec.), no.   33979/96, 21   March 2000). The Court finds that since the domestic courts have examined the substance of the applicant’s complaint by which he challenged the decision of the assistant prosecutor, he cannot be said to have failed to exhaust domestic remedies. The Court also notes that the Government did not argue that, in pursuing this avenue of judicial review, the applicant had removed from the courts the option of examining the relevant issues. On the contrary, the Government stressed that the applicant had availed himself of judicial protection. It is also not apparent that a challenge to the assistant prosecutor’s decision through the avenue of a separate criminal procedure would have been any more successful, or would have been decided on the basis of any other issues. By raising, alongside the tort action, a complaint about the decision not to institute criminal proceedings, the applicant provided the domestic authorities with the opportunity to put right the alleged violation. It follows that the application cannot be declared inadmissible for non-exhaustion of domestic remedies. (b)     Victim status 53 .     The Court considers that the question whether the applicant may still claim to be a victim of a violation of Article 3 of the Convention in respect of his alleged ill-treatment in detention facility no. IZ-37/1 is closely linked to the questions as to whether the investigation of the events in question was effective and whether the compensation which the applicants received was also effective. However, these issues link to the merits of the applicant’s complaints under Article 3 of the Convention. The Court therefore decides to join this issue to the merits. (c)     The Court’s decision on the admissibility of the complaint 54.     The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits   (a)     General principles 55.     As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see Labita v. Italy [GC], no.   26772/95, §   119, ECHR 2000 ‑ IV, and Chahal v.   the United Kingdom , judgment of 15 November 1996, Reports 1996-V, p.   1855, § 79). Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 of the Convention even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR   1999-V, and Assenov and Others v. Bulgaria , judgment of 28   October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, §   93). 56.     The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudla v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). 57.     In the context of detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Tarariyeva v. Russia , no.   4353/03, §   73, ECHR 2006 ‑ ... (extracts); Sarban v. Moldova , no.   3456/05, §   77, 4   October 2005; and Mouisel v. France , no.   67263/01, §   40, ECHR 2002 ‑ IX). In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Sheydayev v. Russia , no.   65859/01, §   59, 7 December 2006; Ribitsch v.   Austria , judgment of 4   December 1995, Series   A no.   336, § 38; and Krastanov v. Bulgaria , no.   50222/99, §   53, 30 September 2004). (b)     Application of the above principles in the present case i.     Establishment of facts and assessment of the severity of ill-treatment 58.     The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 59.     Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see Klaas v. Germany , judgment of 22 September 1993, Series   A no. 269, p. 17, § 29). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Matko v.   Slovenia , no. 43393/98, §   100, 2 November 2006). Where allegations are made under Article 3 of the Convention, however, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis , Ribitsch , cited above, p. 24, § 32). 60.     It was not disputed between the parties that