CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 1 juillet 2010

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7BE5FA78 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:11pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .s491F5244 { font-family:Arial; font-style:italic; color:#ff0000 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sB9D5CABB { width:28.35pt; display:inline-block } .s1E1F2C20 { margin-top:0pt; margin-bottom:0pt; text-indent:28.5pt } .s312CD472 { margin-top:0pt; margin-bottom:0pt; text-indent:28.5pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s96FD6997 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-after:avoid; font-size:10pt } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8C0F06CF { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s8DE5776C { margin-top:0pt; margin-left:25.65pt; margin-bottom:0pt; text-indent:-11.4pt; text-align:justify } .sBAC33653 { margin-top:0pt; margin-left:14.25pt; margin-bottom:0pt; text-indent:0.05pt; text-align:justify } .s516AA85D { margin-top:0pt; margin-left:25.65pt; margin-bottom:0pt; text-indent:-11.35pt; text-align:justify } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD551674B { margin-top:0pt; margin-bottom:0pt; text-indent:18pt; text-align:justify } .s394C7864 { font-family:Arial; background-color:#ffff00 } .s91F6AE57 { font-family:Arial; font-size:10pt; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sA0B6763 { margin-top:0pt; margin-left:17.1pt; margin-bottom:0pt; text-indent:-17.1pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sDB6B63EE { width:176.94pt; display:inline-block } .s482114CD { width:34.88pt; display:inline-block } .s9A17C8B0 { width:211.44pt; display:inline-block } .s70D626C0 { margin-top:36pt; margin-bottom:12pt; text-align:right; font-size:14pt } .s23A41E03 { width:36pt; display:inline-block } .s4B4B41EE { font-family:Arial; font-size:12pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s775766C3 { margin-top:12pt; margin-left:31.75pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9CB19847 { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sF5299C86 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s99C28F9F { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sE9E4B253 { font-family:Arial; font-size:8pt; font-style:italic; vertical-align:super; color:#0069d6 } .s2A91C753 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .sC36A6361 { font-family:Arial; color:#000000 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       FIFTH SECTION             CASE OF DAVYDOV AND OTHERS v. UKRAINE   (Applications nos. 17674/02 and 39081/02)     This version was rectified on 31 August 2010 under Rule 81 of the Rules of the Court             JUDGMENT     STRASBOURG   1 July 2010   FINAL   01/10/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Davydov and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Peer Lorenzen, President,   Renate Jaeger,   Karel Jungwiert,   Volodymyr Butkevych,   Rait Maruste,   Mark Villiger,   Isabelle Berro-Lefèvre, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 18 May 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 17674/02 and 39081/02) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the   Convention”) [1] by 13 Ukrainian nationals, who were serving their sentences at Zamkova Correctional Colony no. 58 (hereafter “Zamkova Prison”; Замкова виправна колонія № 58 ), situated in Iziaslav of the Khmelnytsky Region, at the time of the events. The applicants are: –     Mr Sergiy Viktorovych Davydov, the first applicant, born in 1963, previously convicted on four occasions and currently serving his sentence in Lychakivska Prison no. 30; –     Mr Vitaliy [2] Volodymyrovych Ilchenko, the second applicant, born in 1975, convicted on two occasions for murder and hooliganism and serving a fifteen year sentence in Yenakiyevo Prison no. 52; –     Mr Sergiy Yakovych Gomenyuk, the third applicant, born in 1967 and released from serving a twelve year sentence that was imposed on him for committing various criminal acts; –     Mr Gennadiy Yuriyovych Druzenko, the fourth applicant, born in 1962 and released from serving his sentence in Zamkova Prison in November 2003; –     Mr N.N. Martov, the fifth applicant, born in 1949, released from serving his sentence in 2004; –     Mr Salov, the sixth applicant, born in 1940, released from serving his sentence in December 2001 and deceased in 2004; –     Mr Litvinov, the seventh applicant, born in 1962, serving a twenty year sentence in Zamkova Prison; –     Mr A.I. Mironov, the eighth applicant, born in 1962, serving a seven year sentence in Zamkova Prison; –     Mr V.V. Kulik, the ninth applicant, born in 1968, serving a ten year sentence in Zamkova Prison; –     Mr V.N. Kuzmenko, the tenth applicant, detained pending pre-trial investigation at the SIZO of Lugansk; –     Mr O.A. Kiselev, the eleventh applicant, serving his sentence in Berdychiv Prison no. 70; –     Mr Oleg Didenko, the twelfth applicant, serving his sentence in Zamkova Prison; –     Mr Leonid Shvets, the thirteenth applicant, serving his sentence in Zamkova Prison. The first and the second applicants lodged their applications on 27 June 2001. The third and the fourth applicants lodged their applications on 24   March 2002. The remaining nine applicants lodged their applications on various dates from 27 June 2001 to 24 March 2002. 2.     All of the applicants were initially represented before the Court by Mr   Gennadiy Zherdev, a human rights activist from Kyiv. By their letters of authority of 17 January 2006 the first, the second and third applicants, who were granted legal aid, authorised Mr Arkadiy Bushchenko, a lawyer practising in Kharkiv, to represent them before the Court. 3.     The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuri Zaytsev. 4.     The applicants alleged, under Articles 3 and 13 of the Convention, that they had been ill-treated by the “Berkut” special police force while they were serving their respective sentences and that no effective investigation had been conducted into these allegations. They further complained that, throughout their detention, they had not been allowed to receive food parcels from their relatives or necessary medical treatment and assistance. Their cells had no heating, as coal was not supplied to Zamkova Prison. The food provided to the applicants and sold in the prison shops was of the lowest quality and was not suitable for consumption because it had been produced in the 1980s and 1990s. The penitentiary officers enjoyed considerable discretion in applying disciplinary sanctions to the prisoners, in particular with regard to placing them in solitary confinement or punishment cells. The applicants further complained that some of them were placed in punishment cells in order to prevent them from complaining to various national and international bodies about their torture and ill-treatment by the “Berkut” special police forces. They also alleged that they had no effective and accessible recourse against decisions to place them in solitary punishment cells. The applicants also complained of an interference with their correspondence and an unlawful infringement of their right of individual application. In this connection they referred to Articles 8 and 34 of the Convention respectively. 5.     On 15 January 2007 the Court adopted a final admissibility decision in the case and declared the applicants' complaints under Articles 3, 8, 13 and 34 admissible, under the name of Druzenko and Others v. Ukraine ((dec.), nos. 17674/02 and 39081/02, 15 January 2007). It also ordered the joinder of the applications nos. 17674/02 and 39081/02 (Rule 42 § 1). The Court also decided to join to the merits the Government's request to strike the complaints lodged by ten of the applicants out of the Court's list of cases and their objection as to the exhaustion of domestic remedies. 6.     Given the factual dispute between the parties over the circumstances surrounding the training of special police forces in Zamkova Prison and complaints about the ill-treatment of prisoners during that training, the Court conducted an investigation pursuant to Article 38 § 1 (a) of the Convention. The Court appointed three of its Judges as Delegates, Mr Rait Maruste, Ms Renate Jaeger and Mr Volodymyr Butkevych, to take evidence from witnesses at hearings conducted in the premises of the Khmelnytsky Regional Court of Appeal, Khmelnytsky, between 25 and 27 June 2007 and to visit Zamkova Prison situated in Iziaslav on 27 June 2007. 7.     The Delegates took evidence from three applicants and fifteen witnesses called by the parties and the Court. A verbatim record of the witnesses' statements to the Delegates was produced by the Registry and is included in the case file. The Delegates also visited Zamkova Prison and inspected the site and relevant documentary evidence. 8.     In the course of taking of evidence at the Khmelnytsky Regional Court of Appeal, Mr Zaytsev was assisted by Mr Oleksiy Gotsul, Mr Nazar Kulchytsky and Ms Lyudmyla Shevchuk of the Secretariat of the Agent, all from the Ministry of Justice, Mr Oleksandr Kyslov and Mr Oleksiy Dvoynos from the State Department for the Enforcement of Sentences (hereafter - the “Prison Department”) and Mr Ruslan Pysarenko from the Khmelnytsky Regional Prosecutor's Office. 9.     The applicant's representative Mr Bushchenko, in the course of the taking of evidence, was assisted by Mrs Aigul Mukanova, a lawyer practising in Kharkiv. 10.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ). The parties replied in writing to each other's observations and made comments on the verbatim record produced by the Registry. The applicants lodged claims for just satisfaction and the respondent Government commented on them (Rule   60 §§ 1 and 4). THE FACTS I.     THE CIRCUMSTANCES OF THE CASES 11.     The majority of the applicants were detained in Zamkova Prison, during the events the applicants complained of (see paragraph 4 above). A.     General information as to the facts of the cases 12.     The facts surrounding the applicants' alleged ill-treatment by the special forces in the course of training exercises conducted by the latter on two occasions, namely 30 May 2001 and 29 January 2002, while the applicants were held in Zamkova Prison in Iziaslav of the Khmelnytsky region, the manner in which these training exercises were conducted and the investigation into the circumstances of these events are disputed by the parties. 13.     The developments in the presentation of facts of the present case may be summarised as follows. 14.     The applicants' allegations of the conduct of the special forces' training were denied by the Government, who in their submissions as to admissibility of applications lodged on 28 March 2006 relied on the summary presentation of the facts made by the Registry of the Court. Simultaneously they stated that special tactical trainings in Zamkova Prison on 30 May 2001 and 29 January 2002 were organised without involvement of the prisoners and did not involve the applicants (see paragraph 17 below). They further stated that there was no evidence of the applicants' ill ‑ treatment. Presentation of facts, based on the applicants' allegations and Government's reliance on these alleged facts, appeared in the admissibility decision of 15 January 2007. 15.     Before the hearing of witnesses in the case, the Government witnesses made written statements in which most of them admitted that regular searches and training were organised in Zamkova Prison on 30 May 2001 and 29 January 2002. However, they categorically denied participation of special forces in searches of the residential premises of Zamkova Prison, which were conducted with involvement of Zamkova Prison staff only. The Government witnesses mainly underlined that tactical training sessions in Zamkova Prison did not involve the prisoners and were organised as strictly internal training exercises for the Prison Department staff and involved staff only. 16.     Additional facts were established by the Delegates in the course of the oral hearing before them, in the light of the oral statements made by the applicants and witnesses who appeared at the hearing. In particular, it was established that several rapid reaction units, among them Zhytomyr special rapid reaction unit of the Prison Department (hereafter – Zhytomyr special unit), were involved in the trainings organised on 30 May 2001 and 29   January 2002. Complementary factual and legal elements to the cases also came into view after the visit to Zamkova Prison on 27 June 2007 and from the post-hearing submissions made by the parties. 17.     Following the oral hearing, the Government again maintained that, based on the evidence heard, special forces did not participate in the training exercise as it was prohibited for police forces to participate in such exercises involving Prison Department and for Prison Department to use such police forces. They further maintained that no special forces ever entered the residential zone of Zamkova Prison. The applicants maintained their position as to the facts. 18.     Based on the above, the Court is confronted with several different versions of the facts. In particular, additional factual elements were discovered in the course of examination of the present applications and the fact-finding mission organised in the instant case. The Court will therefore describe these factual statements briefly, assess evidence gathered at each stage of the proceedings and reach its own final conclusion as to the factual circumstances of the cases. 19.     The facts, as initially presented by the applicants and not contested by the Government and thus described in the admissibility decision in the case, are referred to in Section B, subsection 1 below (see paragraphs 21-25 below). A short summary of the facts as presented by the Government is contained in Section B, subsection 2 (see paragraphs 26-31 below). 20.     The witness oral evidence taken by the Court's Delegates at hearings conducted in Khmelnytsky is summarised in Annex to the judgment (see attached below), which is also referred to in Section C, subsection 1 (see paragraphs 32-33 below). Parties' comments as to the absence of particular witnesses and on the oral evidence are summarised in Section C, subsections 2 and 3 (see paragraphs 34-37 and 38-42, respectively, below), respectively. A description of Zamkova Prison and summary of the parties' submissions as to the conditions of detention can be found in Section D, subsections 1 and 2-3, respectively (see paragraphs 43-50 below). A summary of the documents submitted by the parties before the oral hearing (see paragraphs 52-64 below), the list of documents requested by the Court as a follow up to the oral hearing (see paragraph 65 below) and material and documentary evidence provided as a follow-up to the hearing of oral evidence (see paragraphs 66-80 and 81-83 below) are to be found in Section E, subsections 1, 2 and 3-4, respectively. The summaries of investigations carried out by the General Prosecutor's Office (paragraphs 84-97 below), of the documentary evidence concerning the investigation by the Prison Department (see paragraph 98 below) and of the review of the complaints lodged by Mr Zherdev (see paragraphs 99-100 below) are contained in Section E, subsections 5, 6 and 7, respectively. B.     Facts as presented by the parties 1.     Summary of the facts as established in the admissibility decision 21.     The relevant extracts from the facts of the case as alleged by the applicants and as set out in the admissibility decision (see Druzenko and Others v. Ukraine , nos. 17674/02 and 39081/02, 15 January 2007) are as follows. 22.     The first training exercise began at about 10 a.m. on 30 May 2001. The cells of Zamkova Prison were attacked by the “Berkut” special police force that ill-treated the applicants. These forces were supervised by the Governor of Zamkova Prison Mr Snegir and prison officers Mr Mazurenko and Mr Mazepa. They attacked about 120 prisoners and searched them. At the end of this procedure the prisoners were asked whether they had any particular complaints about the police training. In the presence of the special forces nobody was willing to complain about these actions to the Governor of Zamkova Prison. 23.     Following the training exercise of 30 May 2001 several applicants sent unsuccessful complaints to the Supreme Court, the General Prosecutor's Office (the “GPO”), the Khmelnytsky Regional Prosecutor's Offices and the Prison Department about the aforementioned actions of the special forces and their alleged ill-treatment. They also raised various complaints about the conditions of their detention. 24.     As to the second training exercise, the admissibility decision mentioned that it began at 11 p.m. on 28 January 2002, when fourteen cells of Zamkova Prison (cells 1-12, 19 and 29), with approximately 100   prisoners, had been attacked by the “Berkut” special police force. 25.     Following this training, some of the applicants sent several unsuccessful complaints to various State authorities. In their further complaints to various authorities the applicants mentioned that heavy bodily injuries had been inflicted on them. They also complained that medical assistance had never been given to those injured, including the applicants, and that as a result of this attack the applicants Mr Litvinov, Mr Mironov, Mr   Salov and Mr Kuzmenko had received injuries. The attack was supervised by a local prosecutor Mr Volkov, his assistant Mr Stasiuk and an unidentified person. In one of the replies sent to the applicants they were informed by the GPO that the Prison Department conducted a training on 29   January 2002, which was aimed at further training of staff and search for and seizure of prohibited items, such as weapons, drugs, finding escape routes, checking water, electricity and other engineering communications. The GPO stated that the applicants' complaints about their ill-treatment by “Berkut” were wholly unfounded. 2.     The Government's submissions as to the facts (a)     The first and second training exercises in Zamkova Prison and the applicants' injuries 26.     In their observations of 28 March 2006 on the admissibility of the case and before the decision as to the admissibility of the case (see paragraph 14 above), the Government stated that they had relied on the facts as summarised by the Registry of the Court. However, they disputed a number of factual points referred to by the applicants. In particular, they contested the description of the manner in which the training exercise was organised and submitted that none of the training sessions involved the participation of prisoners and that both training exercises were conducted outside the residential zone of Zamkova Prison. 27.     The Government maintained that force had never been used against prisoners and specifically against the applicants. Moreover, they insisted that none of the applicants detained in Zamkova Prison during the training exercises and the subsequent searches on 30 May 2001 and 29 January 2002 had been injured, and that none of them had requested medical assistance or treatment. 28.     The Government stated that the applicants Mr Davydov, Mr   Ilchenko and Mr Gomenyuk had received relevant and timely medical treatment for their medical conditions. 29.     The Government further maintained that the training exercises had been organised as part of the State's action plan to secure the effective operation of the penitentiary system, to prevent escapes from prisons, riots, the commission of criminal acts against the administration or other prisoners, etc. Such training exercises were lawful and the plans for them were approved in advance by the prosecution authorities responsible for supervising the lawfulness of the enforcement of sentences. They further upheld that a prosecutor had attended both training exercises in order to prevent possible violations of the law and to review possible complaints on the spot. He had found no violations of the law in the course of the training exercises organised on 30 May 2001 and 29 January 2002. (b)     Investigation into the events surrounding both training exercises 30.     The Government stated that the applicants' complaints about inhuman conditions of detention and the use of force by a special police force, allegedly the “Berkut” unit, were duly examined by the prosecutor supervising the lawfulness of the enforcement of sentences. In particular, they stated that in 2001 there were 27 inspections conducted in Zamkova Prison, as a result of which 29 officials were subjected to different sanctions, in 2002 there were 29 inspections and 44 officials subjected to various sanctions. For instance on 13 March 2001 the Shepetivka prosecutor ordered the Governor of Zamkova Prison to review the nutritional, hygienic and other arrangements in prison as they did not comply with the domestic law. Thus, lodging a complaint with the prosecutor's office, notwithstanding the refusals to institute criminal proceedings upon the applicants' allegations of ill-treatment, had been an effective remedy. As to the complaints raised, the Government stated that the second applicant unsuccessfully raised his complaints before the General Prosecutor's Service only on two occasions – on 10 July and 14 October 2001. As to the third applicant, he complained only to the regional prosecutor's office, but not the General Prosecutor's office. Moreover, the results of these investigations and examination of the applicants' complaints led to a finding that they were unsubstantiated. The Government further maintained that all their complaints had been adequately examined by the domestic authorities, who sent the applicants and their representative Mr Zherdev prompt and relevant replies. 31.     The Government insisted that, of the first three applicants, only Mr   Davydov had been placed in disciplinary detention. He was placed in disciplinary detention on 14 July 2001, and the form of punishment was solitary confinement in a SHIZO punishment cell for 15 days. They maintained that the disciplinary measures (change of severity in his regime of serving sentence to a more severe one) were imposed on the applicant twice on 29 July 2001 and 30 January 2002 on account of his refusal to reside with other prisoners and his threats to commit criminal offences. C.     Oral evidence 1.     Summary of oral evidence 32.     Since the facts of the case were disputed by the parties, the Court conducted an on-the-spot investigation with the assistance of the parties. In this respect, three Delegates from the Court took oral evidence between 25   and 27 June 2007 from twenty-two witnesses on the following issues: (a)     the circumstances of the applicants' ill-treatment by the special forces of the Prison Department and operation of the special forces - the applicants, witnesses proposed by the applicants (Mr V. Didenko, Mr   Mikhaylenko, Mr Tishalkov, Mr Getmansky), the witness proposed by the Government (Mr Shedko) [3] , Mr Leventsov [4] (former First Deputy Head of the Regional Prison Department), Mr Snegir [5] (former Governor of Zamkova Prison) and Mr Iltiay [6] (First Deputy Head of the Prison Department); (b)     the investigation into the applicants' allegations of ill-treatment and disciplinary sanctions applied to them - the applicants, Mr Bukher [7] (regional prosecutor), Mr Volkov [8] (local prosecutor) and Mr V. Didenko [9] ; (c)     medical treatment and assistance provided to the applicants - the applicants, Mr V. Didenko, Mr Mikhaylenko, Mr Tishalkov, Mr Shedko, Mr Getmansky [10] and Mr Bondar [11] (a head of Zamkova's Prison medical unit); (d)     the conditions of detention in Zamkova Prison – Mr Klipatsky, Mr   Shatskiy, Mr Zlotenko, Mr Zaremskiy [12] (employees of Zamkova Prison at the time of the events), the applicants, Mr V. Didenko, Mr Mikhaylenko, Mr   Tishalkov, Mr Shedko and Mr Getmansky [13] . 33.     A further six witnesses had been summoned but did not appear (see paragraphs 34-37 below). Four of these witnesses had previously been employed by the Prison Department. In respect of their absence the Government submitted, in the course of the hearing, that since these absent witnesses had retired and were no longer employed by the State, the Government were unable to identify their whereabouts. All of the witnesses questioned by the Delegates gave preliminary written witness statements, either personally or through their representatives, and these statements were admitted to the case file. A summary of evidence given by the witnesses can be found in the Annex to the judgment. 2.     Absent witnesses (a)     Absence of Mr Druzenko (the fourth applicant) 34.     The Government stated that they had sent the summons to the address mentioned, which had been the address of the applicants' representative, Mr Bushchenko. According to the information initially supplied by Mr Bushchenko this applicant was under Government control as he was held in SIZO no. 21 of Odessa. Mr Bushchenko stated that he had the last contacts with the applicant via the address of that detention facility. He had had no further contacts with the applicant and stated that he did not know the exact address of the applicant and had unsuccessfully tried to contact him by phone and by mail. The Government provided no information as to where the applicant was after his last contacts with Mr   Bushchenko via SIZO no. 21, neither did they indicate any measures undertaken by them in order to establish his whereabouts. (b)     Absence of Mr Gaydamaka, Mr Mazepa, Mr Mazurenko, Mr Pylypenko and Mr Zakharov 35.     Mr Kyslov, Major from the Prison Department, assisting to the Government's Agent in the course of the hearing, stated that Mr   Gaydamaka's and Mr Mazurenko's whereabouts were unknown. Mr   Kyslov also mentioned that these witnesses were former employees of the Prison Department and had all retired. He mentioned that he had spoken to Mr Gaydamaka and Mr Mazurenko in person before the hearing. They had received the summons to appear and had signed these summons. One of them was somewhere in the Crimea. Mr Pylypenko's and Mr Mazepa's whereabouts were not known to the Government; they were both resident somewhere in Kyiv. Mr Pylypenko was privately employed somewhere in Kyiv. They also sent the summons to him. As to Mr Zakharov, Mr Kyslov mentioned that he could not be found. (c)     The initial absence of Mr Getmansky 36.     Major Kyslov initially stated that the authorities could not find one of the former prisoners of Zamkova Prison, Mr Getmansky, as his whereabouts were unknown to the Government. Mr Getmansky, after additional information had been provided by Mr Bushchenko to the Government, subsequently appeared before the Delegates. (d)     Absence of Mr Kostenko 37.     Mr Bushchenko, the applicants' representative, stated that a copy of the summons had been sent to this witness, who was a former prisoner of Zamkova Prison, but the lawyer could not contact him, although he had previously confirmed that he would appear before the Delegates. 3.     Parties' comments on the oral evidence (a)     The Government 38.     The Government considered that due to a number of contradictions and inconsistencies (both in principle and in detail) in the testimonies, given during the interrogation by five former Zamkova Prison prisoners and by three applicants, the applicants failed to establish that they had been beaten in the Prison on 30 May 2001 and 29 January 2002. Accordingly, the applicants could not claim to be victims in respect of any ill-treatment. 39.     In particular, in relation to the events of 30 May 2001, the Government maintained that: –     the first applicant's statements were inconsistent and false; –     the statements concerning the description of the uniform of the so ‑ called special forces that conducted the search given by the first and second applicant, Mr Didenko, Mr Mikhaylenko, Mr Tishalkov and Mr   Getmansky were also false and had numerous discrepancies; –     the first and the second applicants' statements that the so-called “special forces” that held the search in the residential premises of Zamkova Prison had automatic guns, contradicted the statements given by Mr   Mikhaylenko and Mr Tishalkov, who remembered that the soldiers were unarmed; –     Mr Getmansky's statements as to blank shots fired from automatic gun were also untrue as well as to other details of the trainings held; –     Mr Getmansky's statements as to the third applicant's injuries were untrue and self-contradictory; –     Mr Mikhaylenko statements about ill-treatment of prisoners in the course of the training were untrue as he could not physically see anything as well as the corridor from behind the closed door to the cell; –     the contradictions in statements given by the second applicant, Mr   V.   Didenko and Mr Getmansky in that they knew about the training in advance against the statements given by the first applicant and Mr   Tishalkov that they knew nothing about the training. 40.     In relation to the witness statements given as to the events of the training held on 29 January 2002, the Government insisted that: –     the first applicant's statements as to the blank shots from automatic guns were false; –     the investigation into the applicants' complaints was conducted in compliance with the requirements of Article 3 of the Convention; –     the statements of Mr Didenko, Mr Getmansky, the first and the second applicants as to whether there were any prisoners who received injuries and their number as well as to whether medical aid was provided were also false, especially in view of the lack of medical evidence, including registers containing medical records, and witness statements given by Mr Bondar. 41.     The Government concluded that the inconsistent statements as to the presence of the special forces within the residential area, ill-treatment of the prisoners by these so-called special forces and their beatings by these forces and lack of medical treatment and assistance provided to the applicants and other prisoners, clearly showed that all of these statements were false. In their view the only statements that were true, consistent and logical and therefore credible were those given by Mr Shedko, a witness proposed by the Government and a former prisoner of Zamkova Prison. They concluded that there was no evidence established in the case that would prove that there had been any violation of the provisions of the Convention. (b)     The applicants 42.     The applicants disagreed with the Government's comments and noted that the discrepancies, if there were any, in the statements given by the applicants and the witnesses-prisoners related only to minor details of the events and did not undermine the overall credibility of the applicants' and their witnesses' statements during the fact-finding mission of the Court in June 2007. D.     Description and conditions of detention in Zamkova Prison 1.     Description of Zamkova Prison no. 58 43.     Zamkova Prison, where the applicants were held, is a high security prison ( максимального рівня безпеки ) mainly holding male prisoners sentenced to life imprisonment or long term sentences for grave criminal acts. It comprised two main separated from one another guarded areas – residential area and the industrial area. Residential area included inter alia the following main buildings: –     administrative area, including headquarters, medical and security units and laundry; –     high security sector, containing prison for prisoners sentenced to life and walking yards for those prisoners; –     prison shop, canteen, boiler, mini-bakery and the recreation club for the prisoners; –     historical building of former Bernardine monastery built in 1610 (former church of the Roman Catholic order), called by the prisoners the Monastyr ( Монастир ) or the Cloister, comprising high level security wing and security, re-socialisation, quarantine, diagnosis and allocation cells; –     disciplinary premises building, containing isolation wards of different regimes of detention (which included isolation ward cells ( карцери ), DIZO (ДІЗО) or disciplinary cells and punishment cells or SHIZO (ШІЗО)), and solitary confinement cells (OK ( одиночні камери ) or PKT ( приміщення камерного типу ) cells, so-called separated solitary confinement cells or cell-type premises). Industrial area included inter alia the following main sites: –     checkpoint (KPP; КПП або контрольно-пропускний пункт ) and auto transport gates; –     four construction areas, carbon-dioxide station and industrial departments nos. 1 and 2; –     local household department and greenhouse; –     wood and joinery workshops in workshop no. 1. 2.     The Government's submissions 44.     According to the Government's submissions, in 2001-2002 there were 600 prisoners in Zamkova Prison, for a total area of 1,845.7   m 2 of cell space (residential space, excluding prisoners' communal areas). Thus, the normal cell space per prisoner was 3.07 m 2 , which was not less than the 2.5   m 2 per prisoner provided for by law at the material time. 45.     In particular, there were 230 prisoners held in the severe prison detention regime (TU unit of the Prison; режим тюремного ув'язнення ), which had 684.5 m 2 of cell space, thus 2.97 m 2 per prisoner. 46.     About 130 prisoners were held in cell-type unit of the Prison (KU unit or cell-type prison premises for multiple prisoners; режим камерного утримання ), having 434.1 m 2 of cell space, thus 3.3 m 2 per person. 47.     There were also 240 persons held in prison dormitories, with a total space of 727.1 m 2 and thus 3.02 m 2 per prisoner. 48.     As to disciplinary and punishment cells, Zamkova Prison also had 12   SHIZO or punishment cells (having 55.2 m 2 of cell space for 12   prisoners), OK cells or separated single occupancy cells and PKT (having 285.7 m 2 of cell space for a total of 58 prisoners). 3.     The applicants' submissions 49.     The applicants maintained that they were held in overcrowded cells, with approximately 3 m 2 of space per prisoner. According to the applicants, their places of detention had no heating on account of shortage of coal, which was allegedly not delivered to Zamkova Prison. The food provided to the applicants and sold in the shops was of the lowest quality and was no longer consumable, as it had been produced in the 1980s and 1990s. 50.     The applicants complained that throughout their detention they were not allowed to receive food parcels from their relatives or obtain medical treatment. The penitentiary officers enjoyed wide discretion in applying disciplinary sanctions to prisoners, in particular with regard to placing them in solitary confinement. E.     Documents submitted by the parties 51.     The parties submitted various documents concerning the training exercises conducted on 30 May 2001 and 29 January 2002. The documents, regulations and extracts from them, submitted by the parties before and after the hearing, which are relevant to the case, are briefly summarised below. 1.     The Training Plans Approved by the Regional Prison Department and by the Governor of Zamkova Prison (a)     The training plan adopted by the Regional Prison Department on 25 May 2001 (Plan no. 1) 52.     The Training Plan “On the actions of Penitentiaries' administrations, in cooperation with the special forces of the Prison Department and rapid reaction units from the regional penitentiary institutions, for the purpose of neutralising a situation in which criminals had taken hostages and conducting a general search of the premises occupied by the prisoners in the residential zone” (hereafter – “Plan no. 1”), related to the first training exercise held on 30 May 2001 in Zamkova Prison, had been approved on 25   May 2001 by the Head of the Khmelnytsky Regional Prison Department and the Prosecutor in Khmelnytsky Regional Prosecutor's Office responsible for supervising the lawfulness of the enforcement of sentences. 53.     The following units were included in the general training exercise: personnel from Zamkova Prison, the Zhytomyr special unit and the rapid reaction units of Penitentiaries nos. 31, 58 and 98. One of the aims of the training exercise, as set out in the plan, was to train the personnel of Zamkova Prison and the rapid reaction units to conduct searches in the premises occupied by the prisoners and to search the prisoners. 54.     The special equipment to be used included: weapons ( зброя ), special restraining equipment ( спеціальні засоби ), personal protection equipment ( засоби індивідуального захисту ), service dogs ( службові собаки ), motor transport, action plans for extraordinary circumstances and layout diagrams. 55.     Plan no. 1 contained information on the operative circumstances ( оперативна обстановка ) in the Ukrainian penitentiary system as a whole and in the region's penitentiaries; these were considered to be problematic. The information indicated that the penitentiaries in the region were generally overcrowded, which impeded the effective enforcement of sentences. Additionally, it was stated that searches for prohibited items in these penitentiaries had become less effective. The training was to be conducted in four stages: –     from 5 a.m. to 8 a.m., a general meeting of the training exercise participants in the Prison staff and prisoners' club; –     from 8 a.m. to 10 a.m., entry of the joint detachment into the Prison ( зона охоронюваного об'єкту ), blocking of isolated sections within the Prison and conduct of a selective general search in the isolated departments of the Prison; –     from 10 a.m. to 11.30 a.m., conduct of an operation to free “hostages”, by the special forces and rapid reaction groups; –     from 11.30 a.m. to 12.30 a.m., a general meeting of all participants in the Prison staff and prisoners' club, discussion of the training exercise and general conclusions as to its conduct. (b)     The Training Plan (Plan no. 2) adopted by the First Deputy Head of the Regional Prison Department (in relation to the first training exercise) 56.     According to the Scenario “On the conduct of the practical exercise in Iziaslav Prison no. 31 and Zamkova Prison no. 58” (hereafter “Plan   no.   2”), which was adopted on 30 May 2001, the main purpose of the search was to provide the special unit with a practical opportunity to manage the personnel of the penitentiary and the rapid reaction groups in extraordinary circumstances. The training exercise involved participation of groups responsible for blocking, documentation, medical assistance, convoy and searches, and special and reserve groups. The total number of staff involved was 231, including 18 officers from the special unit. There were also officers from the rapid reaction units of Zamkova Prison, Iziaslav Prison no. 31 and Shepetivka Prison no. 98. The special unit used 4   automatic guns, 4   handguns, firecrackers. Their equipment included helmets, flak jackets, rubber truncheons, teargas ( черемуха ) and handcuffs. The officers from the other units wore helmets ( каски з забралом ) or motor helmets, flak jackets, and carried shields, rubber truncheons, teargas and handcuffs. The units also had 3 special vehicles, 10 guard dogs and 2 video cameras. After the training exercise on liberating hostages, the special unit was to leave for its usual base. (c)     The Training Plan (Plan no. 3) adopted by the Governor of Zamkova Prison (in relation to the first training exercise) 57.     According to the Plan for the conduct of the general search in Zamkova Prison (hereinafter – “Plan no. 3”), to be held on 30 May 2001, the search was to start at 8 a.m. and finish at 12 noon. A total of 76   members of staff from Zamkova Prison were to be involved in the general search. The personnel involved in the search were divided into nine mixed groups, with different head officers who were conducting a general search in both the residential and industrial zones of Zamkova Prison. The majority of the staff in these groups participated in searching both the residential and industrial zones. 58.     The premises subject to search were the following: workshop no. 1 (group no. 1); departments nos. 1 and 2 (groups nos. 2 and 3); sections nos.   1, 4, 7, Monastyr cells nos. 1, 2, 3, 4 (group no. 4); canteen, medical unit, boiler-house, sanitary section, building premises (group no. 5); cells belonging to the severe regime of detention - SHIZO (punishment cells), OK (separated solitary confinement cells), TU (severe regime of prison detention); prison detention in general detention regime area (group no. 7); departments nos. 2 and 3 (group no. 8) and departments nos. 5, 6 and 8 (group no. 9). The equipment mentioned in Plan no. 3 included 30   immobilising rods, 10 wooden hammers and 2 “Gamma” metal detectors. (d)     The Training Plan (Plan no. 4), adopted by the Regional Prison Department on 26 January 2002 in relation to the second training exercise 59.     The Training Plan “On the conduct of tactical and specialised training with the personnel of Penitentiaries nos. 31 and 58 and rapid reaction groups from the penitentiaries in the region for the simulated purpose of combating group disobedience and mass disturbance” (hereinafter – “Plan no. 4”), relating to the second training exercise in Zamkova Prison on 29   January 2002, was approved on 26 January 2002 by the Head of the Khmelnytsky Regional Prison Department and the prosecutor in Khmelnytsky Regional Prosecutor's Office supervising the lawfulness of enforcement of sentences. 60.     The following units were involved in this training simulating mass disobedience: personnel from Penitentiaries nos. 31 and 58, rapid reaction units from Penitentiaries nos. 31, 58, 78, 98 and SIZO-29 (all in the Khmelnytsky Region). One of the aims of the training was to train Zamkova Prison's personnel and the rapid reaction units to conduct searches of the premises occupied by prisoners and searching the prisoners themselves. In particular, the search of prisoners and of the residential area was mentioned as one of the major training objectives. 61.     The special equipment to be used included: weapons, special restraining equipment, personal protection equipment and active protection equipment ( засоби активної оборони ), security dogs, vehicles, plans of action in extraordinary circumstances and layout diagrams. The training plans contained information on the operative circumstances in Zamkova Prison. This information indicated a substantial deterioration in the criminal propensities and socio-demographic composition of the prisoners in Zamkova Prison, which necessitated adequate measures. In particular, the following information on the composition of the prisoners was given to the training participants: many prisoners were convicted for serious crimes, including 65 prisoners who committed crimes while serving their sentences; 15 prisoners were sentenced for banditry; 4 for premeditated murder; 2   persons were likely to attack penitentiary staff; 18 persons were likely to attempt to escape; 12 had been sentenced for drug use, 60 persons were likely to engage in single-sex intercourse and equivalent activities and there were 22 persons with psychological disorders. The training was to be conducted in four stages: –     from 6 a.m. to 8.30 a.m., general meeting of the training participants in the Penitentiary club; –     from 9 a.m. to 11 a.m., training of the joint detachment within the territory of the Prison, for the purpose of terminating group disobedience and mass riots; –     from 11 a.m. to 3 p.m., entry of the joint detachment into the Prison, blocking of isolated sections within the Penitentiary, a general selective search in the isolated sections and cells of Zamkova Prison; –     from 3 p.m. to 4 p.m., general meeting of the training participants at the Prison staff and prisoners' club, discussion of the training and general conclusions as to its conduct; instructions on further movement of the rapid reaction groups. (e)     The Training Plan (Plan no. 5) adopted by the Head of the