CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 novembre 2012

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text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s31E56244 { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s299839C6 { width:212.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid }       FIRST SECTION             CASE OF BORODIN v. RUSSIA   (Application no. 41867/04)           JUDGMENT     STRASBOURG   6   November 2012     FINAL   06/02/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Borodin v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Nina Vajić, President,   Anatoly Kovler,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 16   October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 41867/04) 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 Pavel Aleksandrovich Borodin (“the applicant”), on 23 September 2004. 2.     The Russian Government (“the Government”) were represented by Mr G.   Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant alleged, in particular, that he had been subjected to ill ‑ treatment in custody, that the ensuing investigation had been ineffective, that he had been detained in solitary confinement in the absence of medical assistance; that the length of the first set of criminal proceedings against him had been unreasonable and that the domestic courts had failed to ensure his attendance at a detention hearing. 4.     On 30 January 2009 notice of the application was given to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1978 and is serving a prison sentence in Norilsk, Krasnoyarsk Region. A.     Criminal proceedings against the applicant 1.     Manslaughter charges 6.     On 13 September 1999 the Angarsk Town Prosecutor opened a criminal investigation into K.’s death. According to the prosecution, K. had died after having been severely beaten by the applicant, M. and S. On the same day the alleged perpetrators were arrested and taken to the police station for questioning. 7 .     According to the applicant, he was taken to the police station at approximately 8 a.m. The police officers punched and kicked him and hit him with the butt of a gun in the face in order to make him confess to beating K. The applicant refused to answer questions, invoking his constitutional right to remain silent. 8.     On 14   September 1999 a forensic medical expert examined the applicant, finding that he had a lip injury which could have been caused by a firm blunt object, such as a fist. No other injuries were detected. 9.     Three days after the arrest the applicant was allowed to have a meeting with counsel. 10.     On 23 September 1999 the town prosecutor authorised the applicant’s detention pending trial relying on the seriousness of the charges against him. The applicant remained in custody until 21   November 2003 when he was released on his own recognisance. 11.     On 29   June 2000 the Town Court received the case file. On 13   July 2000 it was assigned to the trial judge, who fixed the first trial hearing for 21   November 2000. According to the Government, the judge’s schedule had been full before that date. 12.     As regards the course of the trial proceedings, the Government provided the following information: Date of hearing/event Reasons for adjournment 21-23 November 2000 M.’s counsel asked for forensic psychiatric evaluation of his client. The trial was adjourned pending such evaluation, which was completed on 29   August 2001. From August 2001 to 29   September 2001 The trial judge was on leave. From September to 10   December 2001 The trial judge was waiting for the extension of her appointment. 29   January 2002 The applicant’s counsel failed to appear. He was unable to take part in the trial until 9   July 2002. 9-12   July 2002 The case file was returned to the prosecutor’s office in order to obtain a translation of the bill of indictment into S.’s mother tongue. 26   September 2002 The Regional Court quashed the trial court’s decision of 12   July 2002 and remitted the matter to the trial court. 3   December 2002 M.’s counsel could not attend the hearing due to his participation in another set of criminal proceedings. 24   December 2002 and 28   January 2003 The applicant’s counsel did not appear due to participation in another set of criminal proceedings. 29   January 2003 The applicant’s counsel failed to appear. 6-7   February 2003 The applicant asked for an adjournment for health reasons. 12 and 13   February 2003 The applicant’s counsel failed to appear. 1   April 2003 The applicant’s counsel asked for the questioning of two forensic experts. 3   April 2003 Forensic expert S. failed to appear for health reasons. 7-8, 13 and 15   May 2003 Regular court hearings. 20, 27   May and 3   June 2003 The applicant’s counsel failed to appear. 4   June 2003 The applicant’s counsel asked for additional forensic biological research. 26   May – 4   August 2003 The judge was on leave. 6   October 2003 The applicant retained a new lawyer. 9   December 2003 The trial court received the forensic biological research results and fixed the hearing for 6   January 2004. 6   January 2004 One of the witnesses failed to appear. 15   January 2004 One of the defence counsel failed to appear. 20   January 2004 The court appointed a new lawyer to represent S. and granted the latter’s request for an adjournment for case-file study. 29   January 2004 The applicant’s counsel asked for questioning of new witnesses. 3   February 2004 The court interpreter failed to appear. 17   February 2004 Regular court hearing. 20   February 2004 The applicant’s mother failed to appear. 13.     On 17 March 2004 the Town Court found the applicant guilty of manslaughter and sentenced him to ten years’ imprisonment. The applicant was taken into custody on the same day. 14.     On 27 December 2004 the Irkutsk Regional Court upheld the conviction on appeal, but reduced the applicant’s sentence to seven years. 2.     Murder charges 15.     On 9 June 2004 G., an inmate detained in the same cell as the applicant, was found dead in the cell. According to the official version of the events, the applicant gave a note to the guard Lig., when she was making a prison round, asking her to take him out of the cell where he had strangled G. 16.     On the same date the district prosecutor’s office instituted criminal proceedings against the applicant in this connection. The investigator in charge commissioned a forensic autopsy of G.’s body. On 10   June 2004 the investigator informed the applicant accordingly. The autopsy was completed on the same day. According to the forensic expert, G. had died of strangulation at least ten hours prior to the time of the autopsy (3.30 p.m., 10   June 2004). 17.     On 11   June 2004 the Kuibyshevskiy District Court authorised the applicant’s pre-trial detention. On 6 July 2004 the detention order was upheld by the Irkutsk Regional Court. The applicant’s pre-trial detention was subsequently extended several times. 18.     On 3   September 2004 the investigator commissioned a forensic examination of the note the applicant had allegedly given to Lig. The applicant was informed of the investigator’s decision on 9   September 2004. The examination took place from 15 to 27   September 2004. The expert confirmed that the note had been written by the applicant. 19.     On 14 April 2005 the District Court again extended the applicant’s pre-trial detention until 21 July 2005. Both the applicant’s counsel and his mother, acting as his representative, appealed. 20 .     On 19 May 2005, having heard a representative of the prosecutor’s office, the Regional Court varied the decision of 14 April 2005 and extended the detention until 12 July 2005. Neither the applicant’s lawyer nor the applicant or his mother were present. 21.     On 29 June 2005 the District Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. During the trial the applicant refused to testify, maintaining his innocence. The court based its findings on witness testimony and forensic evidence. The two inmates who had been detained with the applicant submitted that he had had prior altercations with G. and that they had been asleep at the time of the murder so had not witnessed it. The court further questioned Lig. and other officers who had been present in the remand prison on the night of G.’s murder. Three of them testified that the applicant had confessed to them that he had strangled G. 22.     On 10 March 2006 the Irkutsk Regional Court upheld the applicant’s conviction on appeal, reducing his sentence to eleven years’ imprisonment. B.     Alleged ill-treatment in custody 1.     Investigation into the incident of 13   September 1999 23 .     On 20   January 2000 the applicant’s mother filed a complaint alleging that the applicant had been beaten up by police officers on 13   September 1999. 24.     On 17 February 2000 the Angarsk Town assistant prosecutor dismissed the complaint, finding no prima facie case of ill-treatment. The assistant prosecutor concluded that the applicant had already had injuries prior to his arrest and that those injuries had resulted from his fight with K. The assistant prosecutor based his decision on the applicant’s forensic medical examination of 14   September 1999, the statements by two police officers who had discovered K.’s body and had arrested the applicant, and those of several police officers and prosecution investigators who had seen the applicant after the arrest. The police officers denied having used force and insisted that the applicant could have sustained a lip injury during the fight with K. In his decision to dismiss the ill-treatment complaint the assistant prosecutor also relied on the record of M.’s questioning during which the latter had admitted having a fight with K. and had acknowledged the applicant’s participation in it. 25.     On 2 October 2003 the Town Court quashed the decision of 17   February 2000 and ordered a further investigation into the applicant’s allegations of ill-treatment. The court noted that the investigator had failed to question the applicant and certain witnesses, including the employees of the shop where the applicant had met K. and a number of policemen who could have testified as to whether the applicant had injuries prior to the arrest. 26.     On 2 December 2003 the town prosecutor’s office received the case file from the Town Court. On 12   December 2003 the prosecutor’s office again dismissed the applicant’s allegations of ill-treatment as unsubstantiated and refused to institute criminal proceedings against the police officers. 27.     On 31 March 2005 the decision of 12 December 2003 was quashed and a new round of enquiries into the ill-treatment complaints was ordered. 28.     On 9 April 2005 an investigator with the town prosecutor’s office issued a decision, finding no evidence of criminal conduct. The relevant part of the decision read as follows: “Policeman Kul. explained that on the morning of 13 September 1999 the South ‑ Western police department received information that [a man] had been beaten up near a ‘Laguna’ bar. He and police officer Ts. ran from the police station and examined the area near the bar. They saw a man lying [on the ground] and showing no signs of life. A police officer Z. notified [them] that the murdered person had been drinking in the square near the bar in the company of three men. They arrested M., S. and [the applicant] ... He saw blood on the [applicant’s] hands ... . He had seen [the applicant] before; [the latter] had been a regular in the ‘Laguna’ bar and had been known for his aggressive behaviour. He took [the applicant] to the police station. In his view, [the applicant] was moderately drunk. [He] behaved aggressively. After the arrestees had been taken [to the police station], they were placed in a cell. M. and [the applicant] had scratches and swellings on their faces. ... Police officer Z. explained that in the morning of 13 September 1999 police officers Kul. and Ts. had approached the ‘Laguna’ bar, which was some 200 metres away from the police station. They examined the area near the bar [and] discovered a man with no sign of life. Three men were arrested near the bar because they had been drinking alcohol with the deceased. The [applicant’s] clothes were covered with blood stains. An officer on duty ... B. stated that on 13   September 1999, at 7.30 a.m., M., S. and [the applicant] had been taken to the police station on suspicion of having committed a murder. The arrestees had traces of beatings on them. [They] were aggressive and used obscene language. In his presence no force was used against them in the police station. Officer Ts. explained that he had worked ... at the South-Western police department from 1990 to 2001. He did not recall the circumstances of [the applicant’s] arrest. He had trouble remembering the discovery of a body near the ‘Laguna’ bar and could not provide any details. He did not exert physical or psychological pressure on the arrestees, including [the applicant]. In general, none of the policemen from his unit used physical force against arrestees in his presence, ... . It was impossible to find and question police officer M. Police officers of the South-Western police department, who work in a group for investigation of serious offences, Kh., Kyc., and G. submitted the following. G. had been on annual leave from 28 July to 27 September 1999; Kh. had been on duty, and had been present when persons suspected of murdering K. had been brought in. He remembered that M. had injuries on his face. He worked with a suspect, S. He did not work with the other suspects. Kyc. talked to all three [suspects]. One of them, either [the applicant] or M., explained that he had hit ... K., several times. He could not indicate who exactly had said that because a lot of time had passed. He did not collect written statements [from the arrestees], because an investigator had already started working [with them]. He did not use physical force against the arrestees. He remembered that one of the arrestees had a bruise and a swollen cheek... ... A senior investigator of the town prosecutor’s office, B. stated that on 13   September 1999 he had instituted criminal proceedings in connection with K.’s murder. S., M. and [the applicant] were arrested on suspicion of having committed that murder. Neither during the arrest nor after it had [the applicant] complained orally or in writing that physical force had been used against him ... A senior investigator of the town prosecutor’s office ... N., submitted that on 14   September 1999 a case concerning K.’s murder had been assigned to him. On the same day he questioned M. in the presence of a lawyer. M. stated that he had participated in a fight with K., S. and [the applicant]. During the fight K. had kicked him in the face. [The applicant] refused to give a statement during the investigation; [he] did not give any explanations and did not make any written statements. [The applicant] did not complain to him that he had been beaten up in the police station ... ... According to report no. 2594 issued on 14 September 1999 by a forensic medical expert, [the applicant] had bloodletting into the mucous membrane accompanied by an injury to the lower lip, which was caused by a blunt firm object, such as a fist or a foot in a boot. [It] appeared approximately twenty-four hours before and did not cause health damage. When M. was examined (expert report no. 2599 of 14 September 1999), he had a haematoma and an abrasion on his face, and injuries to the soft tissue of his face and to his right hand. Those injuries could have been caused by blunt firm objects, such as a fist or a foot in a boot. [They] were caused no later than twenty-four hours before and did not cause any health damage. The case file contains a report of M.’s questioning during which he stated that on the night of 13 September 1999 he, K., S. and [the applicant] had a fight in the course of which they had hit each other several times. He also said that [the applicant] had hit K. several times. M. was questioned in the presence of a lawyer. He was advised of the provisions of Article 51 of the Constitution of the Russian Federation, namely that he had a right not to incriminate himself. However, M. made a handwritten note in the record that he wanted to give a statement. As to his injuries, he said that he had sustained them during the fight. During the interrogation he did not complain that police officers had used physical force against him or that he had [confessed] under duress. It was established in the course of the investigation that M. and [the applicant] had already had injuries prior to their arrival at the police station. The injuries recorded in the forensic medical expert reports were not caused by the police officers of the South-Western police department. In view of the above, the complaint lodged by the [applicant’s] mother that the police officers ... had abused their official powers was not corroborated by the results of the investigation.” 29.     On 21 April 2005 the decision of 9 April 2005 was quashed and an additional investigation was ordered. 30.     On 2 May 2005 the same investigator of the town prosecutor’s office, who had issued the decision of 9 April 2005, dismissed the complaint, refusing to institute criminal proceedings. The text of the decision of 2 May 2005 was practically identical to that of 9 April 2005. 31.     It appears that the decision of 2 May 2005 was annulled by a higher ‑ ranking prosecutor and a new round of enquiries commenced. 32.     On 24 March 2006 the senior investigator of the town prosecutor’s office refused to institute criminal proceedings against the police officers. The decision reproduced in part the text of the decision of 9 April 2005. The senior investigator also questioned the applicant and Mar. and Iv., the two   women who had worked in the ‘Laguna’ bar in 1999. M. could not recollect whether the applicant had had injuries on 13   September 1999 and Iv. stated that she had seen blood on the hand of one of the suspects. 33.     On 23 June 2006 the Town Court dismissed the complaint lodged by the applicant’s mother in respect of the incident of 13   September 1999. The court noted that the applicant’s allegations of ill-treatment in police custody had been examined and assessed in the course of his trial. According to the verdict, the applicant had sustained the injuries as a result of the fight with K. 34.     On 24   July 2006 the town prosecutor’s office again dismissed the applicant’s allegations of ill-treatment for the same reasons as before. 35 .     On 13 October 2006 the Irkutsk Regional Court quashed the decision of 23 June 2006 and discontinued the proceedings. The court noted that the applicant’s allegations of ill-treatment had been subject to review in the course of the criminal proceedings against him and that the Town Court had not been competent to address this issue anew. 2.     Incident of 12 April 2002 and the ensuing investigation 36 .     The applicant provided the following account of an incident that occurred on 12   April 2002 while he was detained on remand on the manslaughter charge. A group of guards headed by captain Al. and major Mak. entered cell no. 40 where the applicant was held. The guards, kicking the inmates and hitting them with rubber truncheons, forced them to leave the cell. In the hallway the applicant saw two rows of some twenty to twenty-five guards. The inmates were told to run between them down the hallway. While the applicant was running, he received several blows to his back and head with rubber truncheons. The inmates then had to walk up the stairs where guards continued to hit them with truncheons. On the next floor the applicant again saw rows of guards between which he was forced to run. At the end of the corridor the inmates were told to squat down and remain in that position, with their faces turned to the wall. The beatings continued. The guards also searched the inmates one by one. They searched the cell and seized the inmates’ personal belongings, documents related to criminal proceedings, letters, photos and money. On 14 April 2002 a prison doctor allegedly visited cell no. 40, but refused to record the inmates’ injuries. 37.     On 18 April 2002 a prison doctor examined the applicant and did not detect any injuries. Prosecutor Sh. was present during the examination. 38.     On 24 May 2002 a prosecutor refused to institute criminal proceedings against the guards, finding no prima facie evidence of ill ‑ treatment. The relevant part of the decision read as follows: “[The applicant] and other inmates detained in cell no. 40 (Mal., Kuz., Sm., and Ag.) confirmed that on 12 April 2002 the guards had beaten them up with rubber truncheons and that S. had blood coming out of his throat. [According to them], after the search of the cell, certain personal belongings had disappeared. The medical personnel had refused to record injuries; the complaints had gone unanswered. It was established during the investigation that on 10 April 2002 twelve inmates, including [the applicant], had been placed in cell no. 40 after [the cell] had been refurbished. On 11 April 2002, during a survey of the cell, a hole, leading to cell no. 41, was discovered in the wall. On 12 April 2002, during the search in cell no. 40, forbidden objects were found and seized. According to a certificate issued by the remand prison administration [rubber truncheons] were not used against [the applicant] and other inmates on 12   April 2002. The remand prison officers Mak., Al., L., whom [the applicant] had identified as individuals who had used [the rubber truncheons], explained that on 12 April 2002 they had not used [rubber truncheons] against [the applicant] or other persons. ... Mak. explained that on 11 April 2002 during a survey of cell no. 40 a hole leading to cell no. 41 was discovered in the wall. Enquiries were made ... and it was established that the hole in the wall had been made by Kuz. On 12   April 2002, during his visit to the cell, he explained to the inmates the procedure for obtaining compensation for damage. [Rubber truncheons] were not used in the remand prison on that day. ... Al. submitted that on 12 April 2002 during the inspection of the cells, [he] together with Mak. had entered cell no. 40, where, in violation of the internal regulations, bed sheets and blankets had been hung over sleeping places and on the walls. On [their] order the sheets were removed, and Mak., [having discovered] a hole in the wall, explained that an inmate on duty would be held responsible for damaging the property. During that day, when he was passing through the main building, [he] saw that officers of the detention unit were performing searches in the cells, including cell no. 40. The inmates detained in that cell were asked to go out ... , and they were subjected to a partial bodily search. [Rubber truncheons] were not used against anyone. Personal belongings allowed by the internal regulations were not seized. ... L. noted that neither he nor other guards had used [rubber truncheons] against the inmates on 12 April 2002. ... G. explained that on 12 April 2002 he, together with a group [of officers], had performed a search in cell no. 40. The inmate on duty was present in the cell during the search. Prohibited items, listed in the report, were seized during the search. Personal belongings were not seized. According to the report on the seizure of prohibited items issued on 12 April 2002, a sharpened metal piece, cards, and other illegal objects were seized from cell no. 40. The inmate on duty Mal. refused to sign the report. ... Doctor Zh., who had been on duty from 4 p.m. on 12 April 2002 to 8 a.m. on 13   April 2002, explained that, at the request of the remand prison administration, she had examined three inmates, who had asked for an examination pertaining to possible injuries. In the absence of any injuries, she did not make an entry in the ... register; she does not remember those inmates’ last names ... No medical assistance was provided to inmate S. ... As shown by an extract from the ... register, no entries were made in the register between 12 and 14 April 2004. ... Doctor Sp. and paramedic Sid. submitted that ... from 14 to 15 April 2002, no requests had been received from the inmates detained in cell no. 40, and they had not talked to [the inmates]. The above statements do not corroborate [the applicant’s] assertion that on 14 April 2002 .... a doctor on duty had come to their cell and had seen the injuries, but had refused to record them. Following the order of the supervising prosecutor, on 18   April 2002 [the applicant] was examined at the medical unit of the remand prison. No injuries were discovered...” 39.     On 4 December 2003 the Kirovskiy District Court of Irkutsk found that the initial investigation into the applicant’s ill-treatment complaints had been incomplete, quashed the decision of 24 May 2002 and authorised further investigation. In particular, the District Court pointed out that the prosecution authorities had failed to question all inmates detained in cell no. 40 and all guards who had been present during the search. On 24   March 2004 the Regional Court upheld the decision of 4   December 2003 on appeal. 40.     On 6 May 2004 a deputy regional prosecutor dismissed the applicant’s ill-treatment complaints again. The decision of the deputy prosecutor was based on the same evidence as the decision of 24 May 2002. In addition the deputy prosecutor referred to the statements made by two   inmates, one of whom had confirmed that the beatings had taken place, whilst the other had not been present during the search. He also noted that it was impossible to establish the identity of all the inmates who had been held on 12   April 2002 in cells nos.   40 and 41. 41 .     On 2 August 2004 the Kirovskiy District Court upheld the decision of 6   May 2004, finding that the prosecution authorities had conducted a comprehensive investigation in response to the applicant’s allegations, had eliminated the errors which the District Court had pointed out in its decision of 4 December 2003 and had correctly assessed the evidence collected. Both the applicant and his mother, acting as his representative, attended the hearing. On 29 December 2004 the Irkutsk Regional Court upheld the decision of 2 August 2004 on appeal. 3.     Incident of 14 October 2002 and the ensuing investigation 42 .     On 14 October 2002 officer V. was to escort the applicant to a meeting with his lawyer. According to the report subsequently prepared by V., when he wanted to search the applicant, the latter refused and “started swinging his arms and shouting”. V. warned the applicant that he would use a rubber truncheon to subdue him. The applicant ignored V.’s warning and continued “swinging his arms and shouting”. V. hit the applicant once on the back. The applicant consented to the search. V. summoned the doctor, who examined the applicant and noted a bruise near his left shoulder-blade. 43.     On 16 October 2002 the applicant was examined by a prison doctor, who found him in good health. 44.     On 21   October 2002 the warden ordered the applicant’s confinement for five days in a disciplinary cell for failure to comply with the prison guard’s order to undergo a personal search on 14 October 2002. 45.     The applicant and his mother complained to a supervising prosecutor about the beatings. 46.     On 19 November 2002 the supervising prosecutor sent a letter to the applicant, informing him that his complaints had been looked into and had been dismissed as unsubstantiated. 47.     On 22 November 2002 the applicant was examined by a doctor, Sl., a coordinator with Medecins Sans Frontières in Russia, a private international humanitarian organisation, in the presence of the applicant’s mother and remand prison doctor Mak. The applicant’s preliminary diagnosis comprised, inter alia , a fracture of the fifth and six cervical vertebrae, osteochondrosis of the cervical spine, and an injury of the lumbar spine with a possible injury of organs of the retroperitoneal space. The expert noted that additional medical procedures, including X-ray examinations and examinations by other specialists, were necessary to confirm the preliminary diagnosis. The expert also recommended that the applicant remain in bed and wear a corset and an orthopaedic collar. 48.     On 25, 26 and 28   November 2002 the remand prison’s general practitioners examined the applicant. On 28   November 2002 the applicant consulted a surgeon, a neurologist and an X-ray specialist at the remand prison. The neurologist diagnosed him as having vertebrogenic cervicalgia. According to the X-ray, no disorder was discovered in the cervical spine and osteochondrosis of an incipient character was found in the lumbar spine. The applicant was not allowed to see the X-rays. 49.     On 3 December 2002 an emergency doctor was called to see the applicant during a trial hearing, in response to his complaints about severe back and neck pain. The emergency doctor diagnosed the applicant as having “a closed fracture of the fifth and six cervical vertebrae [and] a closed injury of the lumbar spine ([caused] in 1999, 2000, 2002)” and gave him a painkilling injection. 50.     On 4   December 2002 the applicant was admitted to the remand prison hospital where he underwent examination and treatment. The preliminary diagnosis of the vertebrae fracture was not confirmed. The surgeon diagnosed him with osteochondrosis, and the neurologist confirmed the diagnosis of vertebrogenic cervicalgia. The applicant was also suffering from bronchitis and caries. He was released from hospital on an unspecified date and prescribed outpatient treatment. 51.     On the same day the Kirovskiy District Court found that the prosecutor had failed to issue a formal decision summarising his findings in response to the applicant’s complaint and ordered an official investigation into the ill-treatment complaints. 52.     On 16 January 2003 a private doctor examined the applicant and issued a certificate, noting that the applicant needed to be treated by a chiropractor in relation to “a suspicion [the he had] a healed fracture of a spinous process”. The doctor concluded that the applicant was suffering from a post-traumatic pain in the cervical spine. 53.     From 21 to 24   January 2003 the applicant underwent further examination in a neurological department of the municipal hospital, where he was diagnosed with osteochondrosis in the cervical and lumbar areas. 54.     On 6 May 2004 a deputy regional prosecutor refused to institute criminal proceedings against V., finding that the use of force against the applicant had been lawful. The relevant part of the deputy prosecutor’s decision read as follows: “On 14 October 2002, at approximately 11.50 a.m., in compliance with paragraph 2 of section 29 of the Internal Regulations, officer V. asked [the applicant] to submit his personal belongings for a search before he was taken to a meeting with his counsel ... [The applicant] refused to comply with the officer’s lawful orders [and] started shouting and swinging his arms to prevent the search. [The applicant] did not respond to V.’s repeated orders to stop unlawful actions and warnings that [a rubber truncheon] would be used if [the applicant] refused to be searched. In order to put an end to the refusal to comply with the lawful orders, officer V. used a rubber truncheon against [the applicant] in accordance with paragraph 3 of Article 45 of the Federal Law... - [he] hit [the applicant] once on the back. Subsequently [the applicant] stopped his unlawful actions; he was examined by a prison doctor, K., who recorded that [the applicant] had a pale pink bruise 5 centimetres long, in the left shoulder-blade area, which did not cause any health damage. The remand prison administration conducted an official investigation in response to that incident; the use of the [rubber truncheon] by officer V. was found to be lawful. ... [V’s superior] Mok. explained that... on 14 October 2002 ... V. had reported to him about the use of [the rubber truncheon] against [the applicant] for his refusal to comply with the lawful orders ... An official investigation was conducted into the incident ... ... V. explained that when he had been on duty on 14 October 2002, in the first half of the day, [the applicant] had been brought ... for a meeting with counsel; he asked [the applicant] to submit his personal belongings for a search, which the latter had refused to do and had started at the same to swing his arms. [The applicant] had not responded to repeated warnings that a rubber truncheon would be used. After having given [the applicant] sufficient time to comply with lawful orders, V. had hit him once in the back with a rubber truncheon to stop his unruly actions, in accordance with paragraph 5 of section 45 of the Federal Law; ... [the applicant] had been examined by a doctor and taken to meet counsel. During the examination doctor K. had recorded a bruise on [the applicant’s] shoulder-blade area, and had issued a certificate to that effect. According to ... K.’s report, on 14 October 2002, at approximately 12.30 p.m. he had examined [the applicant] after [the rubber truncheon] had been used against him and recorded a pale pink bruise, measuring 5 centimetres, on the left side of the shoulder-blade area, which had not led to health damage. As shown by a medical report prepared by a medical coordinator of Medecins Sans Frontières, S., following an examination of [the applicant] on 22   November 2002, and submitted by [the applicant’s mother], [the applicant] had a fracture of the spinous processes of the fifth and six cervical vertebrae, and an injury of the lumbar spine. Referring to those [injuries], [the applicant and his mother] claimed that [the applicant] had been beaten by the prison guards. However, according to a report issued by a forensic medical expert on 29 April 2004 on the basis of documents submitted [for the expert examination] (the certificate and report issued by doctor K., [the applicant’s] medical record, the report by [the medical coordinator] S., a medical certificate of 3 December 2002 and a certificate of 24 December 2002 issued by the traumatological department of the Angarsk Town hospital), [the applicant] had a bruise on the left shoulder-blade. The injury was caused by a firm blunt object, possibly on 14 October 2002 and did not cause damage to the health. The medical documents submitted [for the expert examination] did not contain any information confirming that [the applicant had sustained] an injury to the cervical spine ([the applicant] refused to undergo an additional X-ray examination), which is in conformity with the conclusions of the investigation.” 55.     On 2 August 2004 the Kirovskiy District Court upheld the decision of 6   May 2004, holding as follows: “The arguments put forward by [the applicant and his mother] were refuted by materials gathered in the course of the investigation. While it is true that the conclusions ... were based on the statements by remand prison guards, it transpires from the decision [of 6   May 2004] and the materials of the investigation that those statements were corroborated by records, reports, acts and other documents. The court finds accordingly that [the applicant’s] allegations about the ineffectiveness of the investigation are unsubstantiated.” 56 .     The Regional Court upheld the decision of 2   August 2004 on appeal. 4     Incident of 5 August 2003 and the ensuing investigation 57 .     On 5 August 2003 the applicant had an altercation with guard L. According to the applicant, L. beat him up in retaliation for his complaints against prison guards. Guard St. allegedly witnessed the beatings. 58.     In response to the applicant’s complaint about the beatings, the regional prosecutor conducted an investigation. On 8   August 2003 he refused to institute criminal proceedings against L. noting that there was no prima facie evidence of ill-treatment. The relevant part of the decision read as follows: “According to the [applicant’s] complaint, on 5   August 2003, after his meeting with [his mother], a prison officer had taken him to a temporary detention cell where he was to wait for his transfer to his own cell. At about 11 a.m. ... L. came and took [the applicant] to an office ... L. criticised [the applicant] for his complaints against the prison guards saying that he could do anything ... He punched [the applicant] three times in the chest and kicked him ... At that time officer St. came into the office and saw L. beating [the applicant]. ... L. said that he would find a reason to hold [the applicant] responsible [for the incident] and started drafting the report alleging that he had to use force against [the applicant] for the latter’s refusal to comply with lawful orders of the prison administration. The report was attested to by officers St. and T. After that [the applicant] was taken to his cell. He was examined by a doctor at 3 p.m. ... The investigation conducted did not confirm the applicant’s allegations. ... Officer I. submitted that, on 5   August 2003 ... after the [applicant’s] meeting with [his mother], he had taken [the applicant] to a temporary detention cell in order to search him to ensure his safe transfer to his own cell. However, [the applicant] refused to be searched claiming that the search should be conducted in front of his cell ... When I. was talking to [the applicant] another prison officer showed up. I. did not know his name. The officer wanted to know the reason for their dispute. Then he told I. to take the applicant to an office. I. did so and left... ... L. submitted that ... I. had told him about the [applicant’s] refusal to be searched ... Together with I. he took [the applicant] to an office where he asked [the applicant] to undergo the search. [The applicant] refused ... He advised [the applicant] that, in accordance with the order of the Ministry of Justice, all detainees were to be searched after a meeting with a representative. After that L. asked [the applicant] to undo his jacket and prepare himself for the search. The applicant refused to do so. Then L. came closer to [the applicant] and started unbuttoning his jacket ... [The applicant] grabbed L.’s right arm, ripping off one of the buttons on L.’s shirt in order to prevent the search. L. ... held [the applicant] by the arm, twisted it behind his back and pinned [the applicant] to the floor. Then he searched [the applicant] and found [some] letters on him in a plastic bag. Immediately after that a doctor was invited into the office to examine [the applicant] ... However, upon the doctor’s arrival, [the applicant] refused to be examined, claiming that everything was fine and that he had no complaints against the remand prison administration. At approximately 3.20 p.m. [the applicant] was examined by [a paramedic]. L. was not present. Officers St. and T. m