CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 septembre 2008

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }       FIRST SECTION         CASE OF POLUFAKIN AND CHERNYSHEV v. RUSSIA   (Application no. 30997/02)                 JUDGMENT     STRASBOURG   25 September 2008     FINAL     26/01/2009     This judgment may be subject to editorial revision. In the case of Polufakin and Chernyshev v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 4 September 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 30997/02) 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 the Russian nationals, Mr Sergey Anatolyevich Polufakin and Mr Ivan Vladimirovich Chernyshev (“the applicants”), on 24   June 2002. 2.     The applicants, who had been granted legal aid, were represented by Ms O. Belyachkova, a lawyer practising in Kazan. The Russian Government (“the Government”) were initially represented by Mr   P.   Laptev, the Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk. 3.     On 20 January 2006 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. 4.     The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1966 and 1977 respectively and live in Naberezhnye Chelny, Tatarstan. They are currently serving their respective sentences in correctional facility UE-148/5 in Sviyazhsk, Tatarstan. 1.     Pre-trial proceedings 6.     On 6 December 2000 Mr D.E., Mr Yu.D. and Mr R.I. were transporting a travel bag with a large sum of money belonging to their employer, Ms S.S., in a car owned by Mr V.G. At about midnight the car was stopped by four armed persons disguised as policemen. Two of them had portable radios. They robbed Mr D.E., Mr Yu.D. and Mr R.I. and beat them up before stealing the travel bag and some other items from the car and leaving. (a)     The applicants’ account 7.     In the evening of 7 December 2000 the applicants were in Mr   R.’s flat together with Mr Sh. At around 10 p.m. the police entered and searched the flat. They found a travel bag with money and two portable radios. 8.     At 11 p.m. on 7 December 2000 the applicants, Mr Sh. and Mr R. were arrested on suspicion of robbery. The arrest was ordered by a prosecutor. The report on the applicants’ arrest was drawn up at 4 p.m. on 8   December 2000. 9.     Following his arrest, the first applicant was searched in the absence of a lawyer. The police found a wallet in his pocket with a list of towns and traffic police posts located near the road where the crime had been committed. 10.     On 8 December 2000 the second applicant was questioned by investigators in the absence of a lawyer. 11.     On 9 December 2000 the investigator ordered the first applicant’s placement in custody as a measure of restraint. On an unspecified date the same measure was applied to the second applicant. Later, the respective terms of the applicants’ pre-trial detention were extended several times by the prosecutor. 12 .     When asked where he had got the money found in Mr R.’s flat, the first applicant explained that he had borrowed it from an acquaintance of his, Mr L. The second applicant said that he had borrowed the money from three persons: his sister, Mr M.A. and Mr I.P. 13 .     The investigator questioned Mr L. The printed version of Mr L.’s statement read “I did not give [the first applicant] any money”. 14.     The second applicant’s sister confirmed her brother’s account of events when questioned by the investigator. Mr M.A. and Mr   I.P. were not questioned. 15.     The first applicant told the investigator that at about 1 a.m. on 7   December 2000 he had bought some food in a night shop “M.” and requested that sales assistants from the shop be questioned. On 5 May 2001 the request was refused. 16.     The first applicant further requested the investigators to question Mr   Yu.I., an employee of a petrol station who had allegedly seen him on the night of the crime. 17.     On unspecified dates Mr D.E., Mr Yu.D., Mr R.I., Mr V.G. and Ms   S.S. were granted victim status and were questioned by the investigator. 18.     The applicants did not participate in any identification parade before the victims and did not confront them. 19.     The first applicant told the investigators that the list of towns seized from him during the search had been put into his pocket by a police officer, Mr T. The investigator ordered a graphology examination of the document. The expert report stated that one set of handwriting was identical to that of the first applicant. The first applicant insisted that the expert report had not attributed the handwriting to him. 20.     Two other witnesses, Mr G. and Mr Tr., apparently police officers, were questioned by the investigator. 21.     While in pre-trial detention, the first applicant received a handwritten note allegedly containing threats. He believed that the note had been written by one of his co-accused, Mr Sh. 22.     Upon completion of the investigation the applicants were allowed to study the case file. 23.     On 5 July 2001 the prosecutor drew up a bill of indictment charging Mr   R., Mr Sh. and the applicants with aggravated robbery with violence, destruction of property, illegal possession of arms, possession of drugs and theft of official documents. The case file was transmitted to the court. (b)     Information submitted by the Government 24.     Following their arrest, the first and second applicants were questioned as suspects on 8 and 9 December 2000 respectively. Neither of them confessed to any crimes. 25.     On 14 December 2000 criminal charges were brought against the second applicant; on the same date he had been questioned as an accused in the presence of counsel, Mr V.T. The second applicant made no statements referring to his right to remain silent. 26.     On 14 or 15 December 2000 the first applicant was officially charged and questioned as an accused in the presence of officially assigned counsel, Mr O.P. The first applicant informed the investigators that he wanted to retain Mr   M.; the latter was notified of the first applicant’s request. 27.     On 21 December 2000 the investigators questioned Mr Yu.I. He said that he could not remember which cars had been refuelled at the station on the night of 6 to 7 December 2000. 28.     At some point the second applicant informed the investigators that he wanted to retain Mr A. as counsel. Mr A was then notified of the request. 29.     On 23 March 2001 the applicants were visited by their relatives and asked them to retain Mr M. and Mr. A. as counsel. 30.     At some point the first applicant informed the investigators that, since Mr M. had not visited him, he wanted to retain Mr A. He rejected assistance offered by other lawyers. On 24 March 2001 the first applicant’s mother, Mr M. and Mr A. were notified of his intention. On an unspecified date the head of the Advocates Office informed the investigators that the first applicant had signed no contracts for legal representation with either Mr M. or Mr A. On 3 April 2001 the investigator dismissed the first applicant’s request to retain Mr M. and Mr A. on the ground that he had not registered their appointment with the Advocates Office. 31.     On 2 April 2001 both applicants were charged with another offence in the presence of Mr O.P., Mr V.T. and Mr A. They refused to make any statements and stated that they did not need the lawyers’ assistance. The applicants studied the case file separately from Mr P. and Mr V.T. 32.     On 5 May 2001 the investigator refused a request for additional questioning of Mr   Yu.I. 2.     Court proceedings (a)     First-instance proceedings 33.     On 17 July 2001 the trial against the applicants and their two co-accused commenced in the Leninskiy District Court of the Republic of Chuvashiya (“the trial court”). 34.     According to the first applicant, on 17 July 2001 he challenged Mr   O.P. as counsel because he had seen the lawyer’s last name appear as the name of a police officer in a search report drawn up in respect of one of the first applicant’s co-accused. On 24 July 2001 Mr O.P. was not present at the hearing. 35.     According to the Government, on an unspecified date the second applicant stated that he did not wish to have Mr V.T. as counsel and asked to retain Mr A. Between 18 October and 8 December 2001 he was represented by Mr V.T. The trial court asked the first applicant whether he wished to appoint another lawyer, Mr I., as his counsel; the first applicant submitted that he did not need any assistance from lawyers. On 19   September and 21 October 2001 the first applicant again submitted that he needed no lawyers; he did not allege that his decision to defend himself had been motivated by any financial difficulties. i.     Victims’ and witnesses’ statements 36.     On 17 July 2001 the first applicant requested the trial court to summon Mr Yu.I. and the sales assistants from the night shop “M.” who could confirm his alibi. The trial court agreed to summon Mr Yu.I. but refused to summon the sales assistants because their personal particulars were unknown. 37.     On 17 July 2001 the trial court summoned the five victims to attend the hearing scheduled on 24 July 2001. 38.     By letter of 18 September 2001 the victims informed the trial court that they refused to attend the hearing. Mr D.E., Mr Yu.D., Mr V.G. and Ms   S.S. explained that they did so in the interests of their own security and that of their families. Mr R.I. said that he could not be absent from work as there was no one to replace him. All the victims also confirmed their pre-trial depositions and requested them to be read out at the trial in their absence. 39.     On 24 September 2001 the trial court summoned the five victims of the crime to attend the hearing scheduled on 8 October 2001. 40.     On 5 October 2001 Mr D.E., Mr Yu.D., Mr R.I., Mr V.G. and Ms   S.S. sent the trial court a letter identical to that of 18 September 2001. 41.     On 26 October 2001 the trial court asked the parties if they had any objections to the reading out of the victims’ pre-trial statements. The defence objected, while the prosecution proposed to grant the victims’ request. The trial court found that the victims had not appeared at the hearing for a valid reason; that measures to ensure their attendance had been repeatedly taken; and that the victims had notified the trial court of their absence in advance. The victims’ pre-trial statements were read out. 42 .     On 11 October 2001 the first applicant requested the trial court to summon Mr L. in order to clarify one point in his statement. The record of Mr L.’s pre-trial statement had been visibly corrected in pencil to the effect that the printed words “I did not give him any money” were replaced by “I have already given him the money”, which reversed the sense of the statement. The trial court granted the request. Mr L. failed to attend the hearing. According to the applicants, the trial court noted that the latter had been busy at work and asked each co-accused and their lawyers whether there were any objections to the reading out of Mr L.’s pre-trial statement. The first applicant objected. The court did not read out the statement but noted that the applicants themselves had made the correction while studying the case file. 43.     On an unspecified date the court granted a request by the first applicant to summon Mr Yu.I. The latter’s mother informed the trial court by telephone that her son had left home and that his whereabouts were unknown. 44 .     Mr R.’s lawyer requested the trial court to summon Mr K., a prosecution witness who had been in Mr R.’s flat on the night of the events and who had stated that he had seen two unknown persons. The trial court noted that it was impossible to establish Mr K.’s whereabouts. 45 .     On 26 October 2001 the trial court ruled on whether the statements of the absent witnesses should be read out. According to the Government, the defence raised no objections to the reading out of the pre-trial statements of Mr   Yu.I., Mr K. and Mr L. According to the applicants, the defence objected to the reading out of the statements of Mr K. and Mr L. The record of the trial contained a note “No objections”. The printed wording of Mr   L.’s statement and the statements by Mr Yu.I and Mr K. were read out. 46.     The trial court questioned the investigator who had dealt with the applicants’ case. He said that he had heard Mr L. saying that he had not given any money to the first applicant. 47.     The first applicant requested to summon Mr T., the police officer who had allegedly put the seized list of towns in his pocket. The court refused the request on the ground that Mr T. was on a business trip. Later, Mr T. appeared before the court and stated that an unidentified police officer had found the list of towns in the first applicant’s pocket. 48.     Mr R. testified against the second applicant in court in respect of the charge of illegal possession of arms. 49.     The second applicant requested to summon Mr I.P., who had allegedly lent him part of the money that the police had found in Mr   R.’s flat. According to the second applicant, the court refused to do so because Mr I.P. had left Chuvashiya; the second applicant submitted that the investigators and the court had been aware of Mr I.P.’s whereabouts. The Government submitted that the court had summoned Mr I.P. but he had failed to appear at the hearing. 50.     The trial court granted a request by the second applicant to summon another defence witness, Mr M.A. The latter did not attend the hearing. 51 .     On an unspecified date the court dismissed the first applicant’s request to summon the sales assistants who could allegedly confirm his alibi on the ground that they could not remember the first applicant because almost a year had elapsed between December 2000 and October 2001. 52 .     The second applicant requested to summon officers of the traffic police squad who had been on duty at the police post near the crime scene on 6 December 2000. He submitted that the squad should have registered all cars passing by the police post and the fact that his car had not been seen by the police could have confirmed his alibi. On an unspecified date the court dismissed the request on the ground that the policemen could not remember all the cars they had seen that night. 53.     The court read out the pre-trial statement by the second applicant’s sister confirming that she had given her brother the money. 54.     The statements of two prosecution witnesses, Mr G. and Mr Tr., were not read out at the hearing; the trial court did not take them into consideration. ii.     The applicants’ statements 55.     On 18 October 2001 the first applicant requested the trial court to declare the record of his pre-trial questioning inadmissible evidence on the ground that he had been questioned in the absence of a lawyer. He alleged that he had made a self-incriminating statement under police pressure. According to the first applicant, the trial court delivered no ruling in this respect and read out the pre-trial statement. 56.     The second applicant testified at the trial. As his testimony differed from his pre-trial statement, the court decided to read out the latter. iii.     The applicants’ interlocutory applications and requests 57.     The first applicant challenged the stipendiary judge and the lay judges. He submitted that the bill of indictment had been based on inadmissible evidence. On 11   October 2001 the trial court dismissed the challenge as unsubstantiated. 58.     Requests by the first applicant to order an additional graphology examination of the list of towns seized from him and a graphology examination of the threatening note presumably written by Mr Sh. were dismissed. 59.     Both applicants challenged the court’s secretary, claiming that she had erred when drafting the record of the trial. The challenge was dismissed on 29   October 2001 as unsubstantiated. 60.     The trial court dismissed a request by the applicants to organise a reconstruction of the events. 61.     Certain items of physical evidence collected by the investigation were not presented at the trial. The trial court read out the expert’s report of his examination of the said items drawn up at the pre-trial stage. The first applicant requested to summon the expert who had drawn up the report. The request was dismissed. iv.     The applicants’ conviction 62.     On 8 November 2001 the trial court found the first applicant guilty of robbery with violence and the second applicant of robbery with violence and illegal possession of firearms and sentenced each of them to nine years’ imprisonment. The applicants were acquitted of the other charges. 63.     The trial court found that the applicants’ guilt was confirmed by the statements of all the victims, the prosecution witnesses – that is, the investigator, Mr T., Mr K. and Mr L. – and in particular by the statement of Mr L. that he had not given any money to the first applicant, and other items of evidence, including the list of towns seized from the first applicant and two portable radios belonging to the applicants. The trial court further found that no credit could be given to the statement of the second applicant’s sister because she had only been trying to help her brother. 64 .     When enumerating the pieces of evidence in the judgment, the trial court summarised the second applicant’s pre-trial statement as follows: “[the second applicant] had 100,000 roubles’ worth of money. They had no portable radio transmitters. Mr Polufakin and [the second applicant] each kept the money in their plastic bags.” It did not expressly rely on that statement to prove the second applicant’s guilt. 65 .     On 17 November 2001 the second applicant sent his comments on the record of the trial to the trial court. He noted, in particular, that it was recorded on page 71 that there had been no objections to reading out the witnesses’ pre-trial statements despite the fact that he had objected and had requested that the witnesses’ reasons for their absence be stated. 66.     On 21 November 2001 the trial court agreed to amend the record of trial in accordance with some of the second applicant’s comments. Numerous comments, including the one concerning page 71, were rejected. (b)     The second-instance proceedings 67.     The applicants appealed to the Supreme Court of the Republic of Chuvashiya (“the appeal court”) against the first-instance judgment on the grounds, inter alia , that the victims and the prosecution witnesses had not been questioned at the trial and that certain points of the victims’ and witnesses’ pre-trial statements had not been clarified. They further alleged that the trial court had relied on inadmissible evidence and that the expert examination report of the physical evidence had been expressed with a certain degree of probability. The first applicant complained about the trial court’s refusal to conduct an additional graphology examination of the list of towns but did not expressly raise an issue of inadmissibility as evidence with regard to this item. 68.     The second applicant’s lawyer, Mr A.T., was absent at the appeal hearing. According to the second applicant, his request to adjourn the hearing due to the lawyer’s absence was dismissed by the court. According to the Government, Mr A.T. was duly informed of the date of the appeal hearing but failed to attend it. The second applicant did not request to postpone the hearing due to his lawyer’s absence. The appeal court studied Mr A.T.’s points of appeal. The first applicant defended himself before the appeal court. 69.     On 8 January 2002 the appeal court upheld the judgment of 8   November 2001. It stated, inter alia , that the applicants’ guilt had been proven by the victims’ pre-trial statements and other evidence, and that the guilt of the first applicant had also been proven by the list of towns found in his wallet. The appeal court further noted that the trial court had taken measures to secure the victims’ and witnesses’ presence and that their statements had been read out in accordance with domestic law. (c)     The applicants’ further requests 70.     The trial court dismissed requests by the applicants for access to the case file on 15 and 21 November 2001. 71.     Requests by the applicants for supervisory review were dismissed by the Supreme Court of the Republic of Chuvashiya on 3 and 14 March 2003 and by the Supreme Court of Russia on 14 November 2003 and 15 March 2004. 72.     The applicants also complained to the Ombudsman of the Russian Federation, but to no avail. 3.     Conditions of detention (a)     The applicants’ account 73 .     Between 8 and 18 December 2000 the applicants were kept in the temporary detention centre of Cheboksary. The conditions of detention there were poor. In particular, the first applicant’s cell, located in the basement, was not equipped with a lavatory pan; there was no running water; and the temperature was below 10º Celsius. 74.     Between 18 December 2000 and 24 January 2002 the applicants were kept in the remand prison of Cheboksary. The first applicant’s cell was overcrowded and scantily equipped. On his arrival at the remand prison the first applicant underwent blood tests that revealed no infection with hepatitis   C. 75.     Between 24 January and 16 February and 19 May and 4 June 2002, the first applicant was kept in remand prison IZ-16/2, Kazan. The second applicant was kept there between 24 January and 22 February 2002. Their cells were overcrowded. 76.     Between 17 and 23 February and 17 and 18 May 2002, the first applicant was kept in remand prison IZ-66/1, Ekaterinburg. At some point he shared a cell with some eighty inmates. 77.     Between 26 February and 4 March 2002 the first applicant was kept in remand prison IZ-24/1, Krasnoyarsk. His cell was overcrowded. On 28   February 2002 the first applicant complained in writing to the head of the Federal Penitentiary Service ( Федеральная служба исполнения наказаний, ФСИН – hereinafter “the FSIN”) of the Krasnoyarsk Region of the poor conditions of his detention; of the fact of his transfer to Siberia; and of unlawful acts by the convoying officers that had escorted him. He also requested that he be placed in an infirmary and provided with an inhalator. He received no reply to his complaint. 78.     Between 5 and 7 March and 14 and 26 April 2002, the first applicant was kept in the transit area of detention facility U-235/15, the Krasnoyarsk Region. On 5 March 2002 he complained to the head of the FSIN of the Krasnoyarsk Region of the poor conditions of detention. He received no formal reply, but was interviewed by the head of the transit area. 79.     Between 7 March and 14 April 2002 the first applicant was kept in Central Hospital No. 2, the Krasnoyarsk Region, in satisfactory conditions. While in hospital, he underwent blood tests that revealed no infection with hepatitis C. 80.     Between 27 April and 16 May 2002 the first applicant was kept in remand prison IZ-55/1, Omsk. He shared a cell with eighteen inmates. The windows in the cell were covered with iron sheets. (b)     The Government’s account 81.     Between 24 January and 16 February and 19 May and 4 June 2002, the first applicant was kept in remand prison IZ-16/2, Kazan. The cells were properly equipped. Inmates had an opportunity to use sanitary installations when necessary and could wash in a bath-house once a week. 82.     The first applicant was detained in remand prison IZ-66/1, Ekaterinburg, between 18 and 23 February 2002. His cell measured 35   sq.   m and held nine inmates together with the first applicant. He was also kept in that facility from 17 to 18 May 2002 in a cell which measured 17   sq.   m and held thirteen inmates. 83.     Between 26 February and 4 March 2002 the first applicant was detained in remand prison IZ-24/1, Krasnoyarsk. His cell measured 45 sq. m and was equipped with twenty-six beds. At the material time it held twenty-two inmates. The first applicant made no complaints concerning the conditions of his detention to employees of the prosecutor’s office of the Krasnoyarsk Region who regularly visited IZ-24/1. 84.     Between 5 and 7 March and 14 and 26 April 2002, the first applicant was kept in the transit area of correctional facility U-235/15, the Krasnoyarsk Region. He was kept in a cell measuring 50 sq. m. No more than fourteen other inmates were kept there at the same time as the first applicant. 85.     Between 7 March and 14 April 2002 the first applicant was kept in Central Hospital No.   2 of the Main Department of the FSIN of the Krasnoyarsk Region. He underwent a medical check-up. As a result, he was diagnosed with post-traumatic arthritis of the left knee and considered unfit to serve the sentence in the penitentiaries of the Krasnoyarsk Region. 86.     Between 27 April and 16 May 2002 the first applicant was detained in remand prison IZ-55/1, Omsk. He shared a cell, which was designed for four persons, with three inmates. 4.     Conditions of transportation of the first applicant (a)     The first applicant’s account 87.     On an unspecified date it was decided that the first applicant should be transferred from Kazan to the Krasnoyarsk Region to serve his sentence. 88.     At the Kazan railway station the first applicant and twelve to fifteen other detainees were placed in a special carriage for detainees in a compartment designed for eight persons. As there was not enough space, the convoying officers used force when placing the detainees in the compartments. 89.     The conditions of transportation were extremely poor: the first applicant and other detainees were underfed during the journey; before leaving remand prison IZ-66/1, Ekaterinburg, the first applicant had received three loaves of bread from the authorities and was not given any other food for the next three days of transportation by rail. 90.     At various railway stations detainees were escorted by different groups of convoying officers. When loading detainees onto trains at railway stations, members of each convoying group used similar practices. In particular, once at a railway station detainees were forced to squat with their heads down. Then the convoying officers ordered them to rise, with their heads still down, and to run forward in the direction of their carriages. Detainees carried their heavy bags in their outstretched arms. Each detainee had to link arms with another. The convoying officers beat those who did not obey. (b)     The Government’s account 91.     On 16 February 2002 the first applicant was convoyed to Kazan railway station and put on a train to Ekaterinburg. He shared a compartment with five other detainees. On 17 February 2002 the train arrived at Ekaterinburg railway station. The first applicant did not complain to servicemen of the FSIN of the Sverdlovsk Region of the conditions of his transportation. 92.     On 23 February 2002 the administration of remand prison IZ-66/1 provided the first applicant with a seventy-two hour ration. Then the first applicant was put on a train to Krasnoyarsk. He was placed in a big compartment together with eleven other detainees; the convoying officers did not use force against him. The journey lasted fifty-five hours and fifty-one minutes. On 26 February 2002 the first applicant arrived in Krasnoyarsk. He made no complaints concerning the conditions of his transportation. 93.     On 4 March 2002 the administration of remand prison IZ-24/1 provided the first applicant with a twenty-four hour ration and sent him to Krasnoyarsk railway station. The first applicant was put on a train and placed in a big compartment that he shared with nine other detainees. The convoying officers respected the detainees and did not use force against them. On 5 March 2002 the train arrived at Reshoty railway station, the Krasnoyarsk Region. The first applicant did not complain of the conditions of transportation or of ill-treatment to the convoying officers. 94.     On 26 April 2002 at Reshoty railway station the first applicant was put on a train to Omsk. He shared a big compartment with ten other detainees. The carriage was properly equipped. 95.     On 16 May 2002 in Omsk the first applicant was placed on a train to Ekaterinburg. He shared a compartment with ten other detainees. No force was used against him. He did not complain of the convoying officers’s actions. 96.     On 18 May 2002 in Ekaterinburg the first applicant was put on a train and placed in a compartment together with five other detainees. On 19   May 2002 the first applicant arrived in Kazan. He did not complain of the convoying officers’ actions. 5.     Conditions of detention in correctional facility UE-148/5 97.     On 4 June 2002 the first applicant was transferred to correctional facility UE-148/5 in Sviyazhsk, the Tatarstan Republic. (a)     The first applicant’s account 98 .     The correctional facility was overcrowded as 2,300 inmates were detained in premises built for 1,000 persons. In summer there was no hot water. Once a week inmates, who were divided into groups of 250, were allowed to wash in a bath-house equipped with only six working showers. Each group was limited to two hours in the bath-house. 99.     The UE-148/5 infirmary lacked the medicines that the first applicant needed because of his asthma; the catering was very poor; and the food lacked vitamins. 100.     The prison authorities occasionally lost the detainees’ documents and did not allow the inmates to make copies of their respective case files, thus precluding them from complaining to the competent authorities. 101.     On 6 December 2002 the acting head of UE-148/5 punished the first applicant by placing him in a disciplinary cell. The first applicant complained to the court of unlawful actions by an official. His complaint was dismissed by a final decision of 18 December 2003. 102.     In March 2006 the first applicant learned that on 10 June 2002 he had been diagnosed with hepatitis C. 103 .     In his observations of 10 November 2006 the first applicant submitted that 1,700 detainees had been in UE-148/5 at that time. (b)     The Government’s account 104.     Detainees kept in UE-148/5, the strict-regime correctional facility, lived in residence halls. They could stay inside the halls during certain hours and spent the rest of their time in other premises, such as production units. 105.     On 9 June 2002 the first applicant was allocated an individual sleeping place in the residential hall of brigade no. 7. His cell measured 90   sq.m and accommodated forty-four inmates, which allowed 2.04 sq.m of space per person. 106.     On 7 April 2003 the first applicant was transferred to the residential hall of brigade no. 16 and allocated an individual sleeping place. His cell measured 35 sq.m and accommodated seventeen inmates, which allowed 2.06 sq.m of space per person. 107.     On 5 September 2003 the first applicant was returned to the residence hall of brigade no. 7 and allocated an individual sleeping place. He shared a cell measuring 90 sq.m with forty-one inmates. Each inmate was allocated 2.14 sq.m of space. 108.     On 15 April 2004 the first applicant was transferred to the residential hall of brigade no. 8 and allocated an individual sleeping place. His cell measured 90 sq.m and accommodated forty inmates. Each inmate was allocated 2.25 sq.m of space. 109.     The sanitary facilities of the three residence halls were properly equipped as required by domestic law. In particular, the residence hall of brigade no. 8 comprised three dormitories, with 130 beds in total. It was equipped with a washroom measuring 25 sq.m, in which there were five showers, a mirror, a shelf, a urinal and a foot bath. 110.     There was a properly equipped bath house in UE-148/5 where detainees could wash once a week in accordance with a schedule. 111.     There were five wash basins with cold and hot water taps in every residence hall. While inside the residence halls, detainees could use the wash-basins and lavatory pans when necessary. The production units were equipped with sanitary facilities and wash basins. 112.     The nutrition that detainees received in UE-148/5 corresponded to the norms established by law. UE-148/5 had been fully supplied with food while the first applicant was detained there. The UE-148/5 administration duly controlled the quality of the food. 113.     While in UE-148/5 the first applicant was under constant medical supervision. He underwent regular medical check-ups and received the requisite treatment when necessary. 114.     The first applicant was not detained with those suffering from tuberculosis and hepatitis. Detainees who had earlier suffered from tuberculosis and carriers of the hepatitis virus were under preventive monitoring, but were not contagious. 115.     On 10 June 2002 the first applicant underwent blood tests that revealed that he had been a carrier of the hepatitis C virus. The first applicant showed no clinical signs of hepatitis. 4.     Alleged lack of adequate medical assistance as regards the second applicant (a)     The second applicant’s account 116.     The second applicant suffered from chronic hepatitis B and C. According to the medical certificate issued by the Town Outpatient Polyclinic of Naberezhnye Chelny on 24 April 2003, the second applicant needed a specific diet, vitamins and hepatoprotective medicines. He was also recommended constant medical supervision. 117.     On 13 October 2003 the second applicant received two NO-SPA tablets in the UE-148/2 infirmary. 118.     On 15 January 2006 the second applicant was transferred to the prison hospital of the FSIN of Tatarstan. While being transported by rail he lost consciousness. The convoying officers had no medicines to help him to recover his senses. On the same date he was admitted to the prison hospital. 119.     Between 15 January and 14 February 2006 the second applicant was kept in ward no.   2 of the prison hospital. The ward had only one small window measuring 20 x 20 cm and lacked fresh air and natural light. During that period the second applicant was treated with a glucose solution and Carsil, a hepatoptotective medicine. 120 .     While in the hospital, the second applicant complained in writing to a district prosecutor’s office of a lack of medicines and qualified medical assistance in the prison hospital. 121.     On 15 February 2006 the second applicant was transferred to ward no. 4, which had bigger windows. He learned that his inmates were HIV-positive. 122.     The second applicant was treated with medicines which his brother had bought on the doctors’ recommendation, including hepatoprotective medications Heptral and Essenciale. He was losing weight despite keeping to the prescribed diet. 123 .     By letter of 24 August 2006 the doctor of the prison hospital informed the second applicant’s lawyer that some medicines administered to the second applicant had been purchased by his relatives. She also said that it could not be established whether the second applicant needed anti-viral therapy as he had been discharged from the prison hospital and noted, further, that such therapy was to be administered only after a complex examination that could not be carried out in penitentiary institutions. (b)     The Government’s account 124.     In 1995 the second applicant was registered at the Outpatient Polyclinic no.   4 of Naberezhnye Chelny, Tatarstan, as suffering from chronic viral hepatitis B and C with a high degree of replication activity. 125.     While in detention, the second applicant regularly underwent medical check-ups and chest X-rays that revealed no clinical evidence of tuberculosis. There was no clinical evidence confirming that he suffered from cirrhosis. 126.     On 21 February 2001 the second applicant received treatment for a respiratory viral infection. In August and November 2001 he was treated for neurodermatitis. He had no traumas or bodily injuries. 127.     On 19 December 2005 the second applicant was placed in the UE-148/5 infirmary and diagnosed with advanced chronic viral hepatitis C. He was treated, in particular, with Heptral and Essenciale. On 13 January 2006 he was discharged from the UE-148/5 infirmary. 128.     On 15 January 2006 the second applicant was admitted to the prison hospital of the FSIN of Tatarstan and diagnosed with active chronic viral hepatitis C with cholestatic syndrome and impaired cytolic   response, and with moderate liver dysfunction. He received adequate treatment, but did not keep to the prescribed diet. 129.     On 21 March 2006 the second applicant’s state of health was described as stable. 130.     On 29 March 2006 the second applicant was discharged from the hospital and transferred to UE-148/5. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION on account of the first applicant’s conditions of detention and transportation 131.     The first applicant complained under Article 3 of the Convention of the material conditions of his pre-trial detention; his transportation and detention in various remand prisons during transportation; and of the conditions of his detention in UE-148/5. In particular, he submitted that the facilities in which he had been detained had been overcrowded. He also alleged that during the transportation he had been ill-treated by the convoying officers. The first applicant further vaguely complained that in UE-148/5 inmates had run the risk of infection with tuberculosis and hepatitis, that the infirmary had not had certain medicines and that the catering had been poor. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     The parties’ submissions 132.     The Government contested the first applicant’s allegations. They noted that the first applicant had not brought his grievances to the attention of the prosecutors or courts. Therefore, in the Government’s view, his complaints under Article 3 of the Convention should be dismissed for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention. 133.     Further, they insisted that the conditions of his pre-trial detention and transportation had been compatible with Article 3 of the Convention. As to the conditions of the detention in UE-148/5, the Government submitted that in a correctional facility inmates were kept not in cells, but in residence halls. They could stay in their dormitories in the residence hall at night and spent the day in other premises of the correctional facility. The statutory occupancy rate of 2 sq. m of space per person had been complied with in UE-148/5. Due to the lack of clinical evidence of hepatitis, there was no causal link between the first applicant’s detention in the Russian penitentiaries and his illness. Furthermore, the applicant himself admitted that he had suffered from hepatitis C in 1998. The Government submitted that, according to the Rules on Internal Order in the Penitentiary, the copying of case materials was a service payable by a detainee. The first applicant had made no complaints to the UE-148/5 administration or other supervising bodies about a lack of access to his case file. 134 .     In support of their submissions the Government produced photographs of the dormitories of UE-148/5. The date on which the photographs had been taken was not communicated. 135 .     The Government submitted that on 22 March 2006 the first applicant had confirmed in writing that the situation in the penitentiary system had improved in comparison with that of 2001–2002 and that “at present conditions of detention are compatible with the law, I have no claims as regards the fact