FIFTH SECTION

CASE OF TARARIYEVA v. RUSSIA

(Application no. 4353/03)

JUDGMENT

STRASBOURG

14 December 2006

FINAL

14/03/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Tarariyeva v. Russia ,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr R. Maruste , Mr A. Kovler , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having deliberated in private on 20 November 2006 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 4353/03) 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, Ms Nadezhda Dmitriyevna Tarariyeva (“the applicant”) , on 4 December 2002 .

2 . The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights .

3 . The applicant alleged, in particular, a violation of Mr Tarariyev ' s right to life as a result of defective medical assistance and the absence of effective remedies in that connection . She also alleged a violation of the guarantee against inhuman and degrading treat ment in respect of Mr Tarariyev .

4 . By a decision of 11 October 2005 , the Court declared the application partly admissible.

5 . The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1946 and lives in the Krasnodar Region . She is the mother of Mr Nikolay Ivanovich Tarariyev, a Russian national who was born in 1976 and died on 4 September 2002 .

A . Criminal proceedings against Mr Tarariyev

1. First conviction

7 . On 5 October 1996 Mr Tarariyev was involved in a fist fight in which he hit his former girlfriend ' s boyfriend . The injured man died three days later.

8 . On 8 October 1996 criminal proceedings were instituted against Mr Tarariyev on suspicion of having caused grievous bodily injury that resulted in the victim ' s death, an offence under Article 108 § 2 of the RSFSR Criminal Code.

9 . On 6 April 2000 Mr Tarariyev was convicted as charged and sentenced to six years ' imprisonment in a correctional colony. On the same day he was taken in to custody .

10 . On 17 May 2000 the Krasnodar Regional Court upheld the conviction.

2. Medical conditions in the Khadyzhensk colony

11 . Mr Tarariyev was sent to serve his sentence at c orrectional f acility no. UO-68/9 in the town of Khadyzhensk in the Krasnodar Region ( “the Khady zhensk colony” ).

12 . On 10 January 2001 Mr Tarariyev , who was in a serious condition, was taken into hospital for in - patient treatment. He was diagnosed with Morgagni -Adams-Stokes syndrome and an acute ulcer condition. Doctors prescribed strict bed rest and medicines. On 16 January 2001 Mr Tarariyev ' s state of health improved slightly.

13 . On 22 January 2001 he was escorted to Treatment and P revention I nstitution no. 5 (14) ( lechebno-profilakticheskoye uchrezhdenie no. 5 (14) – “prison hospital” ) where he received treatment from 1 to 12 February 2001.

14 . On 1 or 2 March 2001 Mr Tarariyev was brought back from the prison hospital to the Khadyzhensk colony with acute gastroduodenitis .

15 . On 6 March 2001 he was examined and diagnosed with chronic gastroduodenitis . Certain medicines and vitamins were prescribed.

3. Quashing of the conviction and a new trial

16 . On 2 August 2001 the Presidium of the Krasnodar Regional Court quashed the judgments of 6 April and 17 May 2000 under the supervisory review procedure and remitted the case for a new trial.

17 . On 22 September 2001 Mr Tarariyev was transferred to the Krasnodar detention centre ( “the Krasnodar SIZO ”) .

18 . On 20 February 2002 Mr Tarariyev fainted in the court room . The court ordered a medical examination of Mr Tarariyev by doctors from the Krasnodar SIZO and Afinskiy D is trict H ospital . It put questions to them about Mr Tarariyev ' s illnesses and asked whether he needed in - patient treatment and whether he could remain in detention.

19 . On 22 February 2002 Afinskiy District H ospital sent the following report to the court , signed by the deputy head doctor, the head of department and the doctor in charge:

“ Afinskiy D istrict H ospital no. 3 replies that Mr Tarariyev is undergoing treatment in the department of digestive illnesses in connection with a hea rt illness ( myocarditis ) and an acute condition of duodenal ulcer.

For treatment and differential diagnosis the patient is to remain in the department for no less than two weeks. [He] cannot be held in an investigations ward or detention facility.”

20 . On 1 March 2002 Mr Tarariyev was discharged from the hospital to the Krasnodar SIZO. On 6 March 2002 he sought medical assistance and received out -patient treatment. He was diagnosed with stomach and duodenal ulcer s , cardioneurosis and chronic gastroduodenitis .

21 . On 19 April 2002 the Severskiy District Court pronounced a new conviction against Mr Tarariyev and sentenced him to six years ' imprisonment in a correctional colony. On 10 July 2002 the Krasnodar Regional Court upheld the conviction on appeal .

B . Mr Tarariyev ' s death

22 . On 31 July 2002 Mr Tarariyev was transferred to the Khadyzhensk colony . According to the applicant, upon his arrival all his medicines were taken away from him and no medical assistance was provided.

1. Worsening of Mr Tarariyev ' s condition and first surgical operation

23 . A t 8.30 a.m. o n 20 August 2002 Mr Tarariyev contacted the medical department of the colony, complaining of severe pain. He was diagnosed with a perforated duodenal ulcer and peritonitis. In view of his serious condition, a decision was made to transfer him to a civilian hospital.

24 . A t 1 p.m. o n the same day surgery was performed on Mr Tarariyev at Apsheronsk Central D istrict H ospital ( “ Apsheronsk H ospital ” or “ the civilian hospital” ) .

25 . The applicant maintained that she had visited her son on 21 and 22 August and seen him shackled with handcuffs by his left hand to the hospital bed. In support of her allegation she produced a statement signed by a friend of hers, Ms T. , who had also come to visit on 21 August. With the permission of the head of the resuscitation department, the applicant had stayed overnight on a spare bed. Her son had given her a signed form authorising her to collect his personal belongings.

26 . On 21 and 22 August the applicant complained to the Apsheronsk prosecutor, the Krasnodar Regional Prosecutor ' s Office, the President of the Krasnodar Regional Court and the deputy head of the Khadyzhensk colony about the handcuffing of her son and asked that he not be sent to the prison hospital in view of his condition.

2. Mr Tarariyev ' s discharge and transport to the prison hospital

27 . On 22 August 2002 Mr Tarariyev was diagnosed with a breakdown of sutures in the duodenum and duodenal fistula and peritonitis. He was discharged from Apsheronsk H ospital and transported to the prison hospital , 120 km from Apsheronsk .

28 . According to the Government, Mr Tarariyev was transported in a “special car” accompanied by an experienced medical nurse who carried a set of necessary medical equipment on her. They produced a written statement by the nurse. She indicated that during the journey she had talked to Mr Tarariyev about his health and taken his blood pressure , which had been stable. The patient had had no complaints. The journey had lasted two hours.

29 . According to the applicant , she had objected to her son ' s discharge and transfer but the head of the resuscitation department , Mr K. , had told her that the transfer was mandatory because Mr Tarariyev was a convict. She had helped the medical staff to put the applicant, wrapped in a blanket, onto a wheel stretcher and then into the prison van ( avtozak ) onto a layer of padded cotton mattresses.

3. Mr Tarariyev ' s s econd surg ical operation and death

30 . On 24 August 2002 further surgery on Mr Tarariyev ' s abdominal organs was performed in the prison hospital .

31 . On 4 September 2002 the applicant came to see her son and learnt that he had died at 7.35 a.m. that day.

32 . According to the death certificate of 5 September 2002 , the autopsy established that the death had been caused by acute anaemia (blood loss) provoked by massive gastrointestinal haemorrhag ing . A perforated duodenal ulcer was noted as a concomitant illness .

C . Investigation into Mr Tarariyev ' s death

33 . On 7 September 200 2 an assistant to the Teuchezh I nter - District P rosecutor info rmed the applicant of the decision not to initiate criminal proceedings in connection with Mr Tarariyev ' s death.

34 . On 8 February 2003 the Apsheronsk district prosecutor told the applicant that the medical specialists at the Khadyzhensk colony had done all they could to save Mr Tarariyev ' s life , as they had sent him to Apsheronsk H ospital , which possessed the necessary surgical equipment.

35 . On 19 February 2003 the Apsheronsk district prosecutor issued a decision to initiate criminal investigation no. 366214 into the actions of the medical specialists at Apsheronsk H ospital . The Apsheronsk D istrict P olice D epartment was requested to carry out an inquiry under Article 118 § 2 of the Criminal Code (negligent infliction of a grievous bodily injury resulting from incompetent performance of professional duties).

36 . Between 3 and 26 March 2003 the investigators interviewed D octors Du. , Da. and K. from Apsheronsk H ospital , the psychologist from the Khadyzhensk colony and Mr D., the surgeon from the prison hospital . Mr D. testified as follows:

“... on the day of arrival Mr Tarariyev was in a serious state, unfit for transport ... Conservative therapy was recommended ... In the night of 23 August 2002 he began to haemorrhage and we started discussing surgery ... On 4 September 2002 he had another bout of intestinal haemorrhaging from the ulcer defect ... [The hospital] has no facilities for blood transfusion because it has no contract with the blood-transfusion service . For that reason Mr Tarariyev received blood substitutes which could not stabilise h a emodynamics adequately ...”

37 . On 27 March 2003 a police investigator ordered a medical inquiry into the circumstances of Mr Tarariyev ' s treatment and death.

38 . By a decision of 1 April 2003 , the applicant was granted victim status in criminal case no. 366214.

39 . On 29 April 2003 a panel of three medical specialists returned the following unanimous findings :

“ ...6. Given the duodenal ulcer complicated by perforation (defect of the wall of a hollow organ), the transfer of Mr Tarariyev from the [ Khadyzhensk ] colony to Apsheronsk H ospital for surgery was vital ...

4.5. The e xamination and treatment of Mr Tarariyev in Apsheronsk H ospital at the time of his arrival was timely as his condition required emergency surgery. Owing to a short and inadequate report on the operation at Apsheronsk H ospital (the state of the stomach and organs of the abdominal cavity is not described , there is no indication of the method of suturing the ulcer defect or disinfecting and draining the abdominal cavity), it is impossible to determine whether the surgical technique was correct. Two days later a breakdown of the sutures applied to the ulcer defect was observe d, which gives rise to doubts about the quality of ... the surgery performed ...

7.8. On 22 August 2002 the patient Tarariyev was unreasonably transferred to [the prison hospital] with the diagnosis ' Sutures breakdown in the duodenum. Duodenal fistula in formation, peritonitis ' . The patient was in an extremely serious condition, not fit for transport and required further emergency surgery – further laparotomy , revision and sanation of organs of the abdominal cavity and removal of the duodenal fistula, which was not done by either the doctors at Apsheronsk H ospital or the doctors at the [prison hospital] . His transportation to the [prison hospital] aggravated the patient ' s condition and delayed emergency medical assistance. For unspecified reasons the surgery in the [prison hospital] was performed too late, two days after [the patient ' s] arrival ...

9. The experts ' panel considers that there is no causal link between the actions of the doctors at the [ Khadyzhensk ] colony and Mr Tarariyev ' s death ... Defects in the medical assistance administered to Mr Tarariyev at Apsheronsk H ospital and the [prison hospital] cumulatively resulted in the patient ' s death and there is a causal link between these events.”

40 . On 21 May 2003 charges were brought under Article 109 § 2 of the Criminal Code (negligent manslaughter resulting from incompetent performance of professional duties) against the doctors from Apsheronsk H ospital and the prison hospital .

41 . On 3 June 2003 the case against the doctors from the prison hospital was severed and referred for investigation to the Krasnodar Regional P rosecutor.

42 . On 4 June 2003 the applicant asked the Apsheronsk district prosecutor to put additional questions to medical experts. In particular, she disagree d with the experts ' findings in the part exculpating the medical staff at the Khadyzhensk colony . She submitted that they were to blame for the acute condition of her son ' s ulcer and its ultimate perforation because all medicines had been taken away from him and he had had to pick plantain and dandelions for self-treatment. The applicant did not receive any re ply to her request.

43 . On 6 June 2003 an investigator from the Apsheronsk district prosecutor ' s office commissioned a supplementary medical expert examination, asking the experts to determine what medical instructions the doctors at Apsheronsk H ospital had failed to comply with.

44 . On 19 June 2003 the experts reported as follows:

“The experts ' panel considers that the nurse O., the internist Kh ., the anaesthetist s -resuscitators K. and Shch . and the head of the resuscitation and anaesthology department K. did not violate any provisions of their Code of Practice ... when providing medical assistance to Mr Tarariyev.

The s urgeon Du. did not arrange for a consultation by an internist before the surgery; the surgery was performed with technical defects that resulted in the breakdown of sutures; he did not call for the head of the surgery department in good time (on 22 August 2002, i.e. two days later); together with the head of department, he decided to discharge the patient , who was unfit for transport ation, to another institution; he fill ed in the medical documents approximately ... whereby he violated the rules governing provision of medical assistance in the field of general surgery and [certain provisions] of the Code of Practice of s urgeon s .

The h ead of the surgery department , Da . , failed to monitor the surgeon Du. ' s actions; he did not examine the patient Tarariyev daily; it was his duty to control the discharge of a seriously ill patient unfit for transport (the surgical methods were chosen incorrectly, further emergency surgery was required, a consultation with an expert in resuscitation and an internist was not organised before the discharge), which was in violation of [certain provisions] of the Code of Practice binding on head s of surgery department s .

Having regard to the above, the panel considers that the unjustified discharge of the seriously ill patient Tarariyev , who was unfit for transportation , from Apsheronsk H ospital led to the belated provision of medical assistance, the development of complications , and death, for which the head of the surgery department is to be held liable pursuant to the Code of Practice .”

45 . B y a decision of 21 June 2003 the senior assistant to the A d ygheya Republic prosecutor refused to initiate criminal proceedings against the doctors from the prison hospital on the ground that the alleged offence had not been committed ( otsutstvie sobytiya prestupleniya ) . On the basis of statements by D octor D. and the deputy head of the therapy department, it was established that the medical records provided by Apsheronsk H ospital had contained no info rmation on the surgery performed or post-operative complications, such as the breakdown of sutures. Mr Tarariyev ' s condition had been further aggravated by the conditions of his transfer in a prison van. Further surgery had not been performed immediately because an examination of the patient had been required. According to the decision, the very length of the post-operative period showed that the further surgery had been performed correctly and that the ulcer ative defect which had ultimately caused the death had not been a consequence of it . On 25 August 2003 the applicant received a copy of th e decision.

46 . On 10 July 2003 the investigator closed the criminal case against all the other doctors from Apsheronsk H ospital and preferred criminal charges against the head of the surgery department Mr Da. On 22 August 2003 the case was set down for trial, and the applicant joined the proceedings as a civil party.

47 . On 30 September 2003 the Apsheronsk District Court of the Kransodar Region acquitted Mr Da. on the ground that no evidence produced by the prosecution established his guilt. In particular, the report of the medical experts of 29 April 2003 had only established a causal link between the actions of the doctors at both hospitals and Mr Tarariyev ' s death, but had not directly implicated Mr Da. The second report of 19 June 2003 could not be relied upon because the Code of Practice was regarded as inadmissible evidence (for unspecified reasons) . O n the basis of Mr K. ' s testimony, the court found that Mr Da. could not reasonably have foresee n the patient ' s death because Mr Tarariyev ' s condition at the time of his discharge “was improving” and “permitted his transport to [the prison hospital] ”. The judgment was silent on the outcome of the applicant ' s civil claim.

48 . Both the applicant and the prosecution appealed. The applicant claimed, in particular, that Mr Da. had sent her son to certain death because he had authorised his discharge in a serious condition and a journey of more than 1 0 0 km in a vehicle unfit for the transportation of patients . T he court did not determine her civil claim against Mr Da . A request by the applicant for a ten-day adjournment on the ground that her lawyer was engaged in the regional court was refused . The prosecution challenged the court ' s decisions on admissibility and assessment of evidence.

49 . On 10 December 2003 the Krasnodar Regional Court examined the appeals and uph e ld the acquittal, endorsing the arguments of the first-instance court.

50 . On 5 November 2003 the senior assistant to the A d ygheya Republic prosecutor reported to the applicant that an additional inquiry into the actions of the staff of the prison hospital had been carried out further to her complaint to the Prosecutor General ' s O ffice. It was found that Mr Tarariyev had been kept in intensive care and had received intensive infusion and antibacterial treatment in preparation for the surgery. Therefore, no negligence could be established.

51 . On 27 January and 2 March 2004 the Prosecutor General ' s O ffice told the applicant that all inquiries had been carried out in a comprehensive and objective manner and there were no grounds to quash the decisions made.

D. Relevant medical documents

52 . Medical in-patient record no. 53, opened for Mr Tarariyev on 1 February 2001 at the prison hospital states :

“Preliminary diagnosis: duodenal ulcer, recrudescence of chronic gastritis ...

12 February 2001 : discharged to the colony after improvement. Recommendations have been made ...”

53 . A d uplicate of an unnumbered out - patient record from the Khadyzhensk colony states :

“Arrived from the [ Kransodar SIZO ] without a medical record. 31 July 2002 : healthy, no complaints. Stomach ulcer in the patient ' s medical history. Tuberculosis specialist: healthy. Internist: healthy.

20 August 2002 , 8.30 a.m. ... Diagnosis: perforated duodenal ulcer. General peritonitis. Hypovolemic shock, 2nd degree. Needs urgent surgery. Medicines: ...”

54 . Medical in-patient record no. 7377/1362, opened for Mr Tarariyev on 20 August 2002 at 11.30 a.m. at the surgery unit of Apsheronsk H ospital states :

“... 20 August 2002 , 1 -2.35 p.m. Surgery: laparotomy . Suture ligation of ulcer. Drainage of the abdominal cavity ...

22 August 2002 , 8 a.m.- 2 p.m. Examination by the head of the department. The patient is in a serious condition due to the early post-surgery period and breakdown of sutures in the ulcer area ...

23 [ sic ] August 2002: discharged for transfer to a special hospital.”

55 . Medical record no. 419, opened for Mr Tarariyev on 22 August 2002 at 5.30 p.m. in the surgery unit of the prison hospital states :

“... 24 August 2002, 3 a.m., doctor on duty. Urgent call to the resuscitation room... The patient is in a very serious condition ... haemorrhagic shock. Resuscitation measures taken. Treatment within the hospital capacity: there is an insufficient quantity of menadione or aminocaproic acid ...

24 August 2002 , 7.35 a.m.-12.35 p.m. Surgery no. 225: further laparotomy ...

29 August 2002 . The patient ' s state is stable, with a tendency to improve ...

4 September 2002 , 5.50 a.m. Urgent call to the room. Intense chest pain ... At 7.35 a.m. death is confirmed.”

E. The questioning of the witness Ms T.

56 . On 5 December 2005 the applicant complained to the Court that on 1 and 2 December 2005 the Regional P rosecutor ' s O ffice had formally questioned Ms T. about the events described in her statement (see paragraph 25 above). In the applicant ' s view, such conduct of the domestic authorities had clearly been intimidating for her witness.

57 . On 19 December 2005 the Government submitted their observations on the merits. The y claimed, in particular, that

“ ... the applicant ' s allegation that she visited Mr Tarariyev in the resuscitation unit of Apsheronsk C entral H ospital ... and supposedly saw that he was handcuffed to the bed, does not correspond with the reality and misleads the Court. According to the Russian Federation Prosecutor General ' s Office ... repeated check s have established that neither the applicant nor other persons, except for medical staff and guards, had been admitted to see Mr Tarariyev ... Thus, referring to the information of the Federal Service of Execution of Sentences and the Prosecutor General ' s Office, the Russian Federation authorities insist that during Mr Tarariyev ' s stay at Apsheronsk C entr al H ospital for treatment he was not handcuffed.”

58 . On 19 December 2005 the Court asked the Government whether Ms T. had been interviewed and, if so, what the purpose and legal basis of that interview had been . The Government were also requested to produce copies of the interview records.

59 . On 13 January 2006 the Government submitted their reply. They acknowledged that on 30 November and 1 December 2005, further to a request by the Government ' s Representative before the European Court dated 12 November 2005, Ms T. had been summoned to the Severskiy district prosecutor ' s office for the purpose of verif ying the applicant ' s complaint to the Court. The Government claimed that Ms T. had not been “questioned” within the meaning of the domestic law but merely asked to “ provide an explanation ” in accordance with section 22 of the Public Prosecutors Act. No pressure had been exerted on Ms T. and the constitutional guarantee against self-incrimination had been explained to her. The Government claimed that there had been no hindrance of the applicant ' s right of individual petition under Article 34 of the Convention.

60 . The Government produced copies of two printed statements signed by the deputy prosecutor of the Severskiy district and by Ms T . The statement of 30 November 2005 reads as follows:

“I have know n Mrs Tarariyeva since 1993 because I then date d her son ... I know that Mrs Tarariyeva applied to the European Court and I know the subject matter of her application ... Mrs Tarariyeva did not ask me to confirm any facts which did not actually happen.

On 21 August 2002 I went to Apsheronsk H ospital to see Mr Tarariyev at the request of his mother. He was in a separate room in the resuscitation department... There was a uniformed police officer with a submachine gun in the same room, and two police officers stood guard outside the room. We were let into the room in the presence of the head of department. Mr Tarariyev was in a serious condition... He could speak , but with great difficulty. His left hand was attached with handcuffs to the metal rail of the bed ... I remained in the room for five to fifteen minutes. Several drip s were connected to Mr Tarariyev, to his right arm ... I went only once to Apsheronsk H ospital and have not seen Mr Tarariyev since.”

61 . The statement of 1 December 2005 reads as follows:

“In reply to additional questions, I confirm that I visited Mr Tarariyev at Apsheronsk H ospital on 21 August 2002 ... Mrs Tarariyeva and I had come to Apsheronsk in the night of 20 August 2002 but they had not let us in because Mr Tarariyev had just undergone surgery ... I cannot say whether Mr Tarariyev was guarded by police . T hey might have been convoy officers ; I do not know their insignia. All three of them wore green camouflage uniform s . The officer with a submachine gun , who was in Mr Tarariyev ' s room , sometimes sat on the bed or folding bed and sometimes got up and walked about. I do not remember the appearance of the officers who stood guard outside the room but I can describe the officer who was in the room ...”

II. RELEVANT DOMESTIC LAW

A. Civil Code

62 . The general provisions on liability for damage read as follows:

Article 1064. General grounds givi ng rise to liability for damage

“1. D amage inflicted on the person or property of an individual... shall be reimbursed in full by the person who inflicted th e damage ...

2. The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his own ...”

B. Code of Criminal Procedure

63 . If criminal proceedings are discontinued at the stage of the investigation, an aggrieved person who join ed the proceedings as a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that (a) the alleged offence had not been committed ( otsutstvie sobytiya prestupleniya ) or (b) the suspect had not been involved in its commission (Article 213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)).

64 . If the defendant is acquitted by the trial court on the ground that (a) the alleged offence was not committed or (b) the defendant was not involved in its commission, the trial court will dismiss the civil claim. I f the defendant is acquitted on the ground that one or more constituent elements of a criminal offence are missing (Article 24 § 1 (2)), the trial court will disallow the civil claim but it may be lodged again in civil proceedings (Article 306 § 2).

C. Public Prosecutors Act

65 . Section 22 provides that a public prosecutor may summon officials or private persons and ask them for explanations about violations of laws.

D. Penitentiary Act

66 . The Penitentiary Act (the Federal Law on Institutions and Authorities Executing Custodial Criminal Sentences, no. 5473-I of 21 July 1993) provides that handcuffs may be used on detainees with a view to putting an end to mass disorder or during the convoy of detainees whose conduct gives reason to believe that they might escape or harm themselves or others (s ection 30 (2) and (4)).

III. RELEVANT COUNCIL OF EUROPE DOCUMENTS

67 . The relevant extracts from the 3rd General Report [CPT/ Inf (93) 12] by the European Committee for the P revention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:

“ a. Access to a doctor

... 35. A prison ' s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the service s of specialists. ...

Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.

36. The direct support of a fully-equipped hospital service should be available, in eit her a civil or prison hospital. ...

37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health. ”

b. Equivalence of care

38. A prison health care service should be able to provide medical treatment and nursing care ... in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical , nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.

There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).

39. A medical file should be compiled for each patient, containing diagnostic info rmation as well as an ongoing record of the patient ' s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE S 2 AND 13 OF THE CONVENTION

“Everyone ' s right to life shall be protected by law.”

A. The Government ' s preliminary objection as to the non-exhaustion of domestic remedies

69 . In their submissions following the Court ' s decision as to admissibility of the application, the Government pointed out that the applicant had not challenged the prosecutor ' s decision of 21 June 2003 refusing to institut e c riminal proceedings against the medical staff at the prison hospital, before a court of general jurisdiction.

70 . The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see , for example, Prokopovich v. Russia , no. 58255/00, § 29 , 18 November 2004, with further references ). The Government ' s submissions referred to the events that had occurred before the application was lodged with the Court and there had been no relevant legal developments thereafter. There are no exceptional circumstances which would have absolved the Government from the obligation to raise their preliminary objection before the Court ' s decision as to the admissibility of the application. Consequently, the Government are estopped from raising a preliminary objection of non-exhaustion of domestic remedies at the pr esent stage of the proceedings.

B . Submissions by the parties on the merits

71 . The Government claimed that there had been no violation of Mr Tarariyev ' s right to life. His death had not been a consequence of inadequate conditions of detention or medical assistance, but the outcome of an unpredictable development of the illness he had acquired prior to his placement in custody. The investigators and domestic courts had thoroughly examined the circumstances of Mr Tarariyev ' s death, assessed a substantial body of evidence, commissioned a medical examination, interviewed witnesses and found no fault on the part of the medical staff or other persons. The Government further submitted that the applicant ' s civil claim for non-pecuniary damages had been dismissed because Mr Da. had been acquitted and because the Russian law of tort did not provide for liability without fault in such a situation.

72 . The applicant maintained that the appalling conditions of her son ' s detention at the State penitentiary institutions, exacerbated by the lack of appropriate treatment, had led to a recrudescence of his ulcer on 14 August 2002 , its perforation and other complications on 20 August and his death on 4 September. The direct cause of Mr Tarariyev ' s death had been blood loss caused by internal haemorrhag ing . Both medical record no. 419 and Mr D. ' s testimony indicated that the prison hospital did not possess a sufficient quantity of haemostatics and no investigation into that matter had been carried out. The applicant considered that the investigation had been neither comprehensive nor adequate. After her civil action in the criminal proceedings had been refused she had no prospects of obtaining redress in civil proceedings.

C . The Court ' s assessment

1. General principles applicable to the protection of the right to life

2. Application of the general principles in the present case

(a) Alleged failure of the Russian authorities to protect Mr Tarariyev ' s right to life

i . State responsibility

76 . The Court notes that since 6 April 2000 and until his death on 4 September 2002 Mr Tarariyev was in custody and, accordingly, under the control of the Russian authorities. It is not disputed that Mr Tarariyev suffered from various chronic illnesses , such as ulcer, gastritis and gastroduodenitis . The Government did not deny that the authorities had been well aware of th o se ailments (see, in particular, paragraphs 12 - 15 , 19 and 20 above) , which had required constant medical supervision and appropriate treatment. In these circumstances, the Court considers that the authorities should have kept a n ongoing record of Mr Tarariyev ' s state of health and the treatment he underwent while in detention (see the CPT ' s General Report on the standards of health care in prisons, cited in paragraph 67 above).

ii. Adequacy of medical care at the Khadyzhensk colony

78 . Relying on the identically worded statements given in 2005 by the acting director of the Khadyzhensk colony and the head of its medical unit, the Government claimed that after his return from the prison hospital in March 2001, Mr Tarariyev had been given regular medical check-ups. The details of the treatment could not be provided. The info rmation about check-ups had been entered into the original medical record that had remained in the Krasnodar detention centre and was no longer available, and also in the check-up registers that had been destroyed in 2005. For that reason, entering the same info rmation in the duplicate medical record had been unnecessary .

79 . The Court notes that w hen Mr Tarariyev arrived at the Khadyzhensk colony on 31 July 2002 , he was not new to the establishment . He had previously stayed there in 2000 - 2001 and from there he had been taken to a prison hospital with an acute ulcer condition. As the medical record from the prison hospital indicated, on his discharge “recommendations [about his treatment] ha [ d ] been given” (see paragraph 52 above) . It is not clear what these recommendations were, where they were recorded, and whether they were implemented following Mr Tarariyev ' s return to the Khadyzhensk colony by the colony officials responsible for the health and well-being of detainees .

iii. Adequacy of medical care at Apsheronsk H ospital

81 . On 20 August 2002 Mr Tarariyev underwent surgical intervention for a perforated ulcer at Apsheronsk H ospital . The Court notes that a panel of three medical specialists unanimously formed the view that the quality of the surgery was at least open to doubt because of a subsequent breakdown of sutures. Furthermore, a summary and inadequate description of surgery in the medical records made more precise factual findings impossible (see point 4.5 of the report of 29 April 2003). A supplementary experts ' report found fault with the practising surgeon , Mr Du. , who had not arranged for a consultation by an internist before the surgery and had performed the operation with technical defects, and his supervisor, Mr Da. , who had not checked the patient ' s condition (see the report of 19 June 2003, cited in paragraph 44 above). As the Government did not put forward any argument casting doubt on the findings of the domestic medical experts, the Court finds that the quality of surg ical care administered to Mr Tarariyev at Apsheronsk H ospital was inadequate .

82 . The Court pays particular attention to the subsequent decisions taken by the doctors from Apsheronsk H ospital . It appears from Mr Tarariyev ' s in-patient record that in the morning of 22 August 2002 the head of the department , Mr Da . , examined him and established that he was “in a serious condition due to ... breakdown of sutures in the ulcer are a ” (see paragraph 54 above). The panel of medical experts later determined that the state of the patient had called for immediate further surgery (see point 7.8 of the report of 29 April 2003, and the report of 19 June 2003). However, no such surgery was arranged.

83 . Instead, the surgeon and the head of the department took the decision to discharge Mr Tarariyev for transfer to the prison hospital. As the medical experts found, Mr Tarariyev had been “unfit for transport” and the decision to discharge him had been taken without appropriate consultation by specialists and had been “unreasonable” and “unjustified” (see the a bove-cited expe rts ' reports). The Government did not produce any element contradicting th o se findings. The Court cannot , moreover , overlook the fact that the state hospital doctors provided their colleagues in the prison hospital with an incomplete medical record for Mr Tarariyev. The info rmation crucial for the proper assessment of the patient ' s condition was missing: the record contained no mention o f the surgery performed or the post-operative complications, such as the breakdown of sutures (see paragraph 45 above).

84 . The domestic medical experts found that the decision to discharge had been the main cause of aggravation of Mr Tarariyev ' s condition because it had led to “belated provision of medical assistance and the development of complications and death” (see the above-cited report of 19 June 2003 ). As these findings were not refuted by the Government, the Court considers that the medical care administered to Mr Tarariyev at Apsheronsk Hospital was inadequate .

iv. Adequacy of medical care at the prison hospital (Institution no. 5)

86 . Upon his discharge, Mr Tarariyev was transported to the prison hospital where he underwent further surgery on 24 August 2002 . The medical experts established that the surgery had been performed “too late” (see point 7.8 of the above-cited report of 29 April 2003 ). It appears, however, that the absence of a reliable and complete medical record from Apsheronsk H ospital complicated and delayed the assessment of the patient ' s condition. It is unclear why the prison hospital staff did not contact their colleagues from the state hospital in that situation of urgen cy . The experts ' panel found that belated further surgery was one of the causes of Mr Tarariyev ' s death (see point 9 of the above-cited report of 29 April 2003 ).

v. Summary of the Court ' s findings and conclusion

88 . In sum, the Court has made the following findings in respect of the applicant ' s contention that the Russian authorities failed in their duty to protect Mr Tarariyev ' s right to life.

For more than two years preceding his death Mr Tarariyev had been in detention and the custodial authorities had been fully aware of his health problems. There was no consistency in his medical records, most of which were either mislaid or incomplete. At the Khadyzhensk colony he was not properly examined and did not receive any medical treatment. Although he was promptly transfer red to a state hospital, the surgery performed was defective. The doctors at Apsheronsk H ospital authorised his discharge to the prison hospital in full knowledge of the post-operative complications requiring immediate further surgery. They also withheld crucial details of Mr Tarariyev ' s surgery and developing complications. The prison hospital staff treated him as an ordinary post-operative patient rather than an emergency case with the consequence that surgery was performed too late. Furthermore, the prison hospital was not adequately equipped for dealing with massive blood loss.

The existence of a causal link between the defective medical assistance administered to Mr Tarariyev and his death has been confirmed by the domestic medical experts and not disputed by the respondent Government.

(b) Adequacy of the investigation

90 . The Court also has to examine whether the respondent Government discharged their obligation under Article 2 to put at the applicant ' s disposal an effective judicial system, enabling liability for the loss of life to be established and any appropriate redress to be obtained (see the general principles cited in paragraph 75 above).

i . The criminal investigation

91 . The Court observes, firstly, that the competent prosecutors were particularly slow in institut ing a criminal investigation into the circumstances that had led to Mr Tarariyev ' s death. The district prosecutor opened a criminal case only on 19 February 2003, that is , five months after Mr Tarariyev ' s death. It also appears that the scope of the case was originally limited to the acts of the Apsheronsk H ospital doctors and that it was only later extended to the medical staff at the prison hospital . It follows that the beginning of the investigation was belated.

92 . Secondly, the Court is not satisfied that the investigation was comprehensive. Certain crucial circumstances were left outside the scope of the official inquiries. As regards the actions of the Khadyzhensk colony ' s officers, the prosecutors found that they had arranged for Mr Tarariyev ' s transfer to a civilian hospital in a diligent manner, but the adequacy of medical assistance in the preceding period was never examined, despite the applicant ' s express request to that effect (see paragraph 42 above). The prosecutor ' s decision of 21 June 2003 – concerning the staff of the prison hospital – mentioned that Mr Tarariyev ' s state of health had deteriorated as a consequence of the conditions of his transfer in a prison van (see paragraph 45 above), but no attempts appear to have been made to identify those responsible for such conditions of transfer. The issue of responsibility for having discharged a serious ly ill patient without appropriate medical documentation was not examined and that flagrant omission did not form part of the charges brought against the head of the surgery department Mr Da. Finally, the prosecutors did not consider why the prison hospital had had no capacity for blood transfusion and whether there had been a causal link between the absence of haemostatic med icines and Mr Tarariyev ' s death, notwithstanding the info rmation contained in the death certificate and the surgeon ' s testimony to that effect.

94 . Fourthly, the Court considers that the prosecution failed to prepare a solid evidentiary basis for the trial. The case against the head of the surgery department , Mr Da . , collapsed in court because the Code of Practice regulating his professional duties had been excluded as inadmissible evidence with the consequence that the experts ' report of 19 June 2003 based on that Code was rejected by the trial court . T he judgment itself is silent as to why that piece of evidence was inadmissible and the Government did not clarif y this matter. In any event, in the final reckoning , Mr Da. could no longer be held responsible for his failure to comply with the Code of Practice, whereas the prosecution ' s case was precisely that of “manslaughter resulting from incompetent performance of professional duties”.

95 . Finally, the Court observes that the case against the prison hospital staff never went to trial, despite the medical experts ' unanimous finding that there had been a causal link between their failings and Mr Tarariyev ' s death (see point 9 of the report of 29 April 2003 , cited above ).

ii. Civil claim for compensation

98 . The Court further notes that the head of the surgery department of Apsheronsk Hospital, Mr Da., was acquitted on the ground that his acts had not been criminal because guilt had not been made out. The applicant ' s civil claim was disallowed but the domestic law permitted her to lodge it again in separate civil proceedings. She has not re-introduced it, evidently on the assumption that it would fail.

99 . The Court recalls that it has already examined a complaint by an applicant that t he prosecutors ' decision not to bring criminal proceedings against the perpetrators had had the effect of deny ing him access to a court in respect of his civil claim for damages arising out of the same incident. Having regard to case-law authority to the effect that a civil court was not bound by the decision of the prosecuting authorities terminating a criminal investigation and to the fact that the applicant did not attempt to bring civil proceedings, the Court found no violation of the applicant ' s rights under Article 6 § 1 of the Convention (see Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, pp. 3291-92, §§ 107- 13).

100 . In the Court ' s view, the present case is different and the crucial distinction lies in the thrust of the applicant ' s complaint: in the Assenov case the applicant complained about a breach of his right of access to a court in that he would not be able to introduce a civil action for damages; in the present case the applicant contended that such an action could be introduced but had no chances of success. T he Government ' s position echoed the applicant ' s contention. They submitted, in essence, that the criminal court had reasonably dismissed the applicant ' s civil claim following Mr Da. ' s acquittal and that there had existed no other grounds of liability permitting the applicant to recover compensation for non-pecuniary damage. It follows that a civil action against Mr Da. would have failed.

iii. Summary of the Court ' s findings and conclusion

102 . The Court has made the following findings in respect of the applicant ' s complaint that the Russian authorities did not establish the cause of Mr Tarariyev ' s death and made those responsible accountable.

The criminal investigation was slow and its scope was restricted, leaving out many crucial aspects of the events. The applicant ' s right to effective participation in the investigation was not secured. The prosecution had poorly prepared the evidentiary basis for the trial which ended in the acquittal of the suspect. Following the failure of the criminal proceedings the applicant did not have at her disposal an accessible and effective civil-law remedy, either because a civil claim was barred by operation of law or because it had no chances of success in the light of the existing judicial practice.

II . ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

104 . The applicant complained that the lack of medicines during her son ' s detention at the Khadyzhensk colony, his handcuffing at Apsheronsk H ospital and the conditions of his transport from Apsheronsk H ospital to the prison hospital violated the Convention guarantee against inhuman and degrading treatment , which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

105 . The Court has already examined the complaint about the medical conditions of detention at the Khadyzhensk colony from the standpoint of Article 2 of the Convention. It considers that it is not necessary to examine it separately under Article 3 of the Convention. It will therefore proceed to an examination of the complaints concerning Mr Tarariyev ' s handcuffing at the state hospital and the conditions of his transport to the prison hospital.

A. Mr Tarariyev ' s handcuffing at Apsheronsk H ospital

107 . The Government denied that the applicant had been allowed to enter Mr Tarariyev ' s room at Apsheronsk H ospital and that handcuffs had been used on him. Referring to the findings of a supplementary inquest carried out by the Prosecutor General ' s Office and to the info rmation obtained from the Federal Service for Execution of Sentences , they pointed out that, in accordance with the Penitentiary Act, handcuffs could only be used on detainees whose conduct gave reason to believe that they would escape or harm themselves or others (see paragraph 66 above). Mr Tarariyev ' s state of health rendered such conduct impossible and the use of handcuffs unnecessary. Besides, additionally security was provided by an armed mobile guard of several police officers.

110 . In the instant case it was not in disp ute between the parties that Mr Tarariyev had not presented any danger of absconding or causing self-harm or injury to others. He was attached to the bed on the day after complex internal surgery. He was on a drip and could not stand up unaided. It also appears from Ms T. ' s detailed deposition that a police officer armed with a submachine gun was present in Mr Tarariyev ' s room and two other officers remained on guard outside the room. In these circumstances, the Court considers that the use of handcuffs was disproportionate to the needs of security ( compare Hénaf and Mouisel , both cited above).

111 . Having regard to Mr Tarariyev ' s state of health, to the absence of any cause to fear that he represented a security risk and to the constant supervision by armed police officers, the Court finds that the use of restraints in these conditions amounted to inhuman treatment.

There has been therefore a violation of Article 3 of the Convention on account of Mr Tarariyev ' s handcuffing at the civilian hospital.

B. Conditions of Mr Tarariyev ' s transport to the prison hospital

113 . The Government claimed that Mr Tarariyev had been transported in a “vehicle ... designed for transport of convicts and ... equipped with a stretcher, two mattresses, sheets and a pillow”. Mr Tarariyev had been accompanied by an experienced nurse who had carried the necessary medical equipment and continued the intravenous injection of drugs. The medical staff of Apsheronsk H ospital had had no objections to the proposed conditions of transport. The Government referred to the written depositions by the nurse and by the head of the medical department of the Khadyzhensk colony.

114 . The Court reiterates that the assessment of the level of severity which ill-treatment must attain to fall within the scope of Article 3 is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, KudÅ‚a v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece , no. 28524/95, § 67, ECHR 2001-III). The Court has previously found a violation of Article 3 of the Convention in a Russian case where the applicant was transported in an overcrowded prison van (see Khudoyorov v. Russia , no. 6847/02, § § 116-20, ECHR 2005 ‑ X ).

115 . It transpires from the parties ' submissions, despite the difference in terms they used in their descriptions, that the vehicle at issue was designed for the transport of detainees rather than post-operative patients (see the prosecutor ' s decision of 21 June 2003, cited in paragraph 45 above) . It was not an ambulance or any other type of hospital vehicle . A wheel stretcher was used to bring Mr Tarariyev to the vehicle, and inside the vehicle he was placed on the padded mattresses. The distance between the civilian and prison hospitals being more than one hundred kilometres, Mr Tarariyev was transported for more than two hours in these conditions.

116 . The Court further notes that Mr Tarariyev ' s state of health was extremely worrying. He had had internal surgery merely two days before hand and on the day of transport he was diagnosed with a breakdown of sutures, a condition requiring further surgical intervention. As the medical experts subsequently found, Mr Tarariyev had been “unfit for transport” (see paragraph 45 above). In these circumstances, the presence of a medical nurse could not compensate for the inadequate conditions of transport.

There has therefore been a violation of Article 3 of the Convention on account of the conditions of Mr Tarariyev ' s transport.

III . ALLEG ATION OF HINDRANCE OF THE RIGHT OF INDIVIDUAL PETITION GUARANTEED BY ARTICLE 34 OF THE CONVENTION

“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

119 . T he Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. The expression “any form of pressure” must be taken to cover not only direct coercion and flagrant acts of intimidation of applicants or their legal representatives but also other improper indirect acts or contacts designed to dissuade or discourage them from pursuing a Convention remedy . In a number of cases in which the authorities had questioned applicants about their applications, the Court has found them to be in breach of their obligations under Article 34 (or former Article 25 § 1) of the Convention (see Kurt v. Turkey , judgment of 25 May 1998 , Reports 1998 ‑ III, § 160; Tanrıkulu v. Turkey [GC], no. 23763/94, § 130 , ECHR 1999 ‑ IV ; Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports 1996 ‑ IV, § 105; and Orhan v. Turkey , no. 25656/94, § 407 , 18 June 2002 ; see also Bilgin v. Turkey , no. 23819/94, § 133 , 16 November 2000 ; DulaÅŸ v. Turkey , no. 25801/94, § 79 , 30 January 2001 ; and Akdeniz and Others v. Turkey , no. 23954/94, § 118 , 31 May 2001 ).

120 . In the instant case it was not the applicant herself but her witness, Ms T. , who had twice been asked to appear before a prosecutor and to answer a number of questions relating to one of the applicant ' s complaints to the Court. It is not necessary to examine whether the questioning constituted a formal “interview” within the meaning of that term in domestic law. The Government submitted records of the questioning and their accuracy was not disputed.

Consequently, the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

I V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

123 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

124 . The applicant asked the Court to determine the amount of compensation for the suffering and distress caused by the death of her son.

125 . The Government considered the applicant ' s claim to be unsubstantiated.

126 . The Court accepts that the applicant suffered distress and frustration because the State authorities did not take reasonable measures to protect the life of her son and failed to secure the identification and punishment of those responsible for his death . Making its assessment on an equitable basis, the Court awards the applicant 25,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

127 . The applicant claimed 20,000 US dollars for costs and expenses relating to her son ' s representation in the criminal proceedings and his funeral.

128 . The Government pointed out that the amount was excessive and that the applicant had only submitted postal receipts to a total of 3,050 Russian roubles (RUR).

129 . According to the Court ' s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1 00 for the proceedings before it.

C. Default interest

130 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been a violation of Article 2 of the Convention on account of the Russian authorities ' failure to protect the applicant ' s son ' s right to life ;

2 . Holds unanimously that there has been a violation of Article 2 of the Convention on account of the Russian authorities ' failure to determine the cause of death of the applicant ' s son and to bring those responsible to account ;

3 . Holds unanimously that no separate examination of Article 13 of the Convention is necessary ;

4 . Holds unanimously that there has been a violation of Article 3 of the Convention on account of the applicant ' s son ' s handcuffing ;

5 . Holds unanimously that there has been a violation of Article 3 of the Convention on account of the conditions of transport of the applicant ' s son from the civilian to the prison hospital ;

6 . Holds , by six votes to one, that the allegation of hindrance of the right of individual petition has not been made out ;

7 . Holds unanimously

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts , to be converted into Russian roubles at the rate applicable at the date of settlement :

( i ) EUR 25,000 ( twenty-five thousand euros) in respect of non-pecuniary damage;

(ii) EUR 1 00 ( one hundred euros) in respect of costs and expenses;

(i ii ) any tax that may be chargeable;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount s at a rate equal to the marginal lending rate of the European Central Bank during the default peri od plus three percentage points;

8 . Dismisses unanimously the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 14 December 2006 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Mr J. Borrego Borrego is annexed to this judgment.

P.L. C.W.

PARTLY DISSENTING OPINION OF JUDGE BORREGO BORREGO

This opinion is not only the expression of my disagreement with the majority regarding Article 34, but also a token of my recognition and my gratitude to Ms T., this brave Russian woman and friend of the applicant.

The European Convention on Human Rights is an international treaty and as such it “ ... is binding upon the parties to it and mu st be performed by them in good faith” ( Vienna Convention on the Law of Treaties, 23 May 1969, Article 26). The European Convention states that “the High Contracting Parties undertake not to hinder in any way the effective exercise of this right” (Article 34). The case ‑ law regarding this issue “ ... of the utmost importance for the effective operation of the system ... ” is reflect ed in paragraph 119 of the judg ment.

“Not to hinder in any way the effective exercise of this right” means, firstly and obviously, that the applicants and their relatives must not be subjected to any form of pressure – direct or indirect – from the authorities to withdraw or modify their complaints.

Secondly, and again obviously, effective exercise of the right of individual petition entitles High Contracting Parties to argue freely about the case, not to lie freely about the facts. It is very difficult to ensure effective operation of the system if the Contracting Party involved does not play its part fairly.

Much to my regret, I cannot agree with the majority ' s conclusion that there has been no violation of Article 34 in the present case.

Firstly, Ms T., who witnessed the conditions in which Mr Tarariyev was treated at the hospital, was subjected to pressure by the Russian authorities. Following a request by the Government ' s Representative before the European Court after the admissibility decision, Ms T. was summoned to the Severskiy district prosecutor ' s office, where she was asked “about violations of laws” (section 22 of the Public Prosecutors Act). Ms T. was summoned as an accused or suspect and therefore “the constitutional guarantee against self-incrimination had been explained to her” (paragraph 59). She was questioned on two consecutive days. Ms T. considered that she had clearly been intimidated.

As to the assessment of this questioning, the majority states that “the Court forms the view that the interviewers attempted to obtain information which could be used for investigation of the treatment applied to Mr Tarariyev and for identification of those responsible” (paragraph 121). Although I respect this point of view, it seems unduly generous to me, more appropriate to a fairy tale than to the present case, as the Government have consistently and strongly denied any ill-treatment of Ms T.

In my opinion, the respondent State has failed to comply with its obligations under Article 34 of the Convention.

Secondly, lying is contrary to good faith and hinders the effective operation of the system. In their observations of 30 December 2004, the Government replied to the question whether the applicant ' s son had been handcuffed to the hospital bed by saying that “according to the Russian Federation Ministry of Justice and the Russian Federation General Prosecutor ' s Office, [these] allegations ... do not comport with reality”. Consequently, the decision on admissibility of 11 October 2005 states that “the Government challenged as untrue the applicant ' s allegation that Mr Tarariyev had been shackled to the hospital bed”.

Following this decision Ms T., the witness, was summoned to the prosecutor ' s office on two consecutive days (30 November and 1 December 2005). She repeated her statement and said “Mrs Tarariyeva did not ask me to confirm any facts which did not happen in reality”.

On 19 December 2005, in spite of what Ms T. had stated in the prosecutor ' s office, the Government said “[this] applicant ' s allegation ... does not meet the reality and misleads the Court. According to the Russian Federation General Prosecutor ' s Office, on the results of a repeated ly conducted check , it has been e stablished that neither the applicant nor other persons ... had been admitted to Mr Tarariyev ... ”.

It seems obvious to me who made allegations that “do not meet with the reality and mislead the Court”. I consider this behaviour by a High Contracting Party as evidence that it failed to comply with its obligations under Article 34 of the Convention.

Finally, I would like to thank Ms T., as well as Ms Tarariyeva. At difficult moments in life, as the present case shows, exemplary behaviour comes mostly from women. It is an honour for me, as a judge of this Court, to work to ensure that people like Ms T. and Ms Tarariyeva have their fundamental rights and freedoms guaranteed by the enforcement of the Convention.