FIFTH SECTION

CASE OF DAVYDOV AND OTHERS v. UKRAINE

(Applications nos. 17674/02 and 39081/02)

This version was rectified on 31 August 2010

u nder Rule 81 of the Rules of the Court

JUDGMENT

STRASBOURG

1 July 2010

FINAL

01/10 /2010

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Davydov and Others v. Ukraine ,

The European Court of Human Ri g hts (Fifth Section), sittin g as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Volodymyr Butkevych , Rait Maruste , Mark Villiger , Isabelle Berro-Lefèvre , judges, and Claudia Westerdiek, Section Registrar ,

Having deliberated in private on 18 May 2010 ,

Delivers the followin g jud g ment, which was adopted on that date:

PROCEDURE

1 . The case ori g inated in two applications (nos. 17674/02 and 39081/02) a g ainst Ukraine lod g ed with the Court under Article 34 of the Convention for the Protection of Human Ri g hts and Fundamental Freedoms (“the Convention”) [1] by 13 Ukrainian nationals , who were servin g their sentences at Zamkova Correctional Colony no. 58 (hereafter “Zamkova Prison” ; Замкова виправна колонія № 58 ) , situated in Iziaslav of the Khmelnytsky Re g ion, at the time of the events. The applicants are:

– Mr Ser g iy Viktorovych Davydov , the first applicant , born in 1963 , previously convicted on four occasions and currently servin g his sentence in Lychakivska Prison no. 30 ;

– Mr V italiy [2] Volodymyrovych Ilchenko , the second applicant , born in 1975 , convic ted on two occasions for murder and hooli g anism and servin g a fifteen year sentence in Yenakiyevo Prison no. 52 ;

– Mr Ser g iy Yakovych Gomenyuk , the third applicant , born in 1967 and released from servin g a twelve year sentence that was imposed on him for committin g various criminal acts ;

– Mr Gennadiy Yuriyovych Druzenko , the fourth applicant , born in 1962 and released from servin g his sentence in Zamkova Prison in November 2003 ;

– Mr N.N . Martov , the fifth applicant, born in 1949 , released from servin g his sentence in 2004 ;

– Mr Salov , the sixth applicant, born in 1940 , released from servin g his sentence in December 2001 and deceased in 2004 ;

– Mr Litvinov , the seventh applicant, born in 1962, servin g a twenty year sentence in Zamkova Prison ;

– Mr A.I. Mironov , the ei g hth applicant, born in 1962, servin g a seven year sentence in Zamkova Prison ;

– Mr V.V . Kulik , the ninth applicant, born in 1968, servin g a ten year sentence in Zamkova Prison ;

– Mr V.N. Kuzmenko , the tenth applicant, detained pendin g pre-trial investi g ation at the SIZO of Lu g ansk ;

– Mr O.A. Kiselev , the eleventh applicant, servin g his sentence in Berdychiv Prison no. 70 ;

– Mr Ole g Didenko , the twelfth applicant, servin g his sentence in Zamkova Prison;

– Mr Leonid Shvets , the thirteenth applicant, servin g his sentence in Zamkova Prison .

The first and the second applicants lod g ed their applications on 27 June 2001. The third and the fourth applicants lod g ed their applications on 24 March 2002. The remainin g nine applicants lod g ed their applications on various dates from 27 June 2001 to 24 March 2002 .

2 . All of the applicants were initially represented before the Court by Mr Gennadiy Zherdev, a human ri g hts activist from Kyiv. By their letters of authority of 17 January 2006 the first, the second and third applicants, who were g ranted le g al aid, authorised Mr Arkadiy Bushchenko , a lawyer practi s in g in Kharkiv, to represent them before the Court.

3 . The Ukrainian Government (“the Government”) were represented by their A g ent, Mr Yuri Zaytsev.

4 . The applicants alle g ed, under Articles 3 and 13 of the Convention, that they had been ill-treated by the “Berkut” special police force while they were servin g their respective sentences and that no effective investi g ation had been conducted into these alle g ations . They further complained that, throu g hout their detention, they had not been allowed to receive food parcels from their relatives or necessary medical treatment and assistance. Their cells had no heatin g , as coal was not supplied to Zamkova Prison . The food provided to the applicants and sold in the prison shops was of the lowest quality and was not suitable for consumption because it had been produced in the 1980s and 1990s. The penitentiary officers enjoyed considerable discretion in applyin g disciplinary sanctions to the prisoners , in particular with re g ard to placin g them in solitary confinement or punishment cells. The applicants further complained that some of them were placed in punishment cells in order to prevent them from complainin g to various national and international bodies about their torture and ill-treatment by the “Berkut” special police forces. They also alle g ed that they had no effective and accessible recourse a g ainst decisions to place them in solitary punishment cells. The applicants also complained of an interference with their correspondence and an unlawful infrin g ement of their ri g ht of individual application. In this connection they referred to Articles 8 and 34 of the Convention respectively.

5 . On 15 January 2007 the Court adopted a final admissibility decision in the case and declared the applicants ' complaints under Articles 3, 8, 13 and 34 admissible , under the name of Druzenko and Others v. Ukraine ((dec.), nos. 17674/02 and 39081/02 , 1 5 January 2007) . It also ordered the joinder of the applications nos . 17674/02 and 39081/02 (Rule 42 § 1) . T he Court also decided to join to the merits the Government ' s request to strike the complaints lod g ed by ten of the applicants out of the Court ' s list of cases and their objection as to the exhaustion of domestic remedies.

6 . Given the factual dispute between the parties over the circumstances surroundin g the trainin g of special police forces in Zamkova Prison and complaints about the ill-treatment of prisoners durin g that trainin g , the Court conducted an investi g ation pursuant to Article 38 § 1 (a) of the Convention. The Court appointed three of its J ud g es as Dele g ates, Mr R ait Maruste, Ms R enate Jaeger and Mr V olodymyr Butkevych , to take evidence from witnesses at hearin g s conducted in the premises of the Khmelnytsky Re g ional Court of Appeal, Khmelnytsky , between 25 and 27 June 2007 and to visit Zamkova Prison situated in Iziaslav on 27 June 2007 .

7 . The Dele g ates took evidence from three applicants and fifteen witnesses called by the parties and the Court. A verbatim record of the witnesses ' statements to the Dele g ates was produced by the Re g istry and is included in the case file. The Dele g ates also visited Zamkova Prison and inspected the site and relevant documentary evidence.

8 . In the course of takin g of evidence at the Khmelnytsky Re g ional Court of Appeal , Mr Zaytsev was assisted by Mr Oleksiy Gotsul, Mr Nazar Kulchytsky and Ms Lyudmyla Shevchuk of the Secretariat of the A g ent, all from the Ministry of Justice, Mr Oleksandr Kyslov and Mr Oleksiy Dvoynos from the State Department for the Enforcement of Sentences (hereafter - the “Prison Department”) and Mr Ruslan Pysarenko from the Khmelnytsky Re g ional Prosecutor ' s Office.

9 . The applicant ' s representative Mr Bushchenko , in the course of the takin g of evidence , was assisted by Mrs Ai g ul Mukanova, a lawyer practi s in g in Kharkiv.

10 . The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consultin g the parties, that no hearin g on the merits was required (Rule 59 § 3 in fine ). The parties replied in writin g to each other ' s observations and made comments on the verbatim record produced by the Re g istry. The applicants lod g ed claims for just satisfaction and the respondent Government commented on them ( Rule 60 §§ 1 and 4).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASES

11 . The majority of the applicants were detained in Zamkova P rison, durin g the events the applicants complained of (see para g raph 4 above).

A. General information as to the facts of the cases

12 . The facts surroundin g the applicants ' alle g ed ill-treatment by the special forces in the course of trainin g exercises conducted by the latter on two occasions, namely 30 May 2001 and 29 January 2002, while the applicants were held in Zamkova Prison in Iziaslav of the Khmelnytsky re g ion, the manner in which these trainin g exercises were conducted and the investi g ation into the circumstances of these events are disputed by the parties.

13 . The developments in the presentation of facts of the present case may be summarised as follows.

14 . The applicants ' alle g ations of the conduct of the special forces ' trainin g were denied by the Government , who in the ir submissions as to admissibility of applications lod g ed on 28 March 2006 relied on the summary presentation of the facts made by the Re g istry of the Court . Simultaneously they stated that special tactical trainin g s in Zamkova Prison on 30 May 2001 and 29 January 2002 were or g anised without involvement of the prisoners and did not involve the applicants (see para g raph 17 below ) . They further stated that there was no evidence of the applicants ' ill ‑ treatment. P resentation of facts , based on the applicants ' alle g ations and Government ' s reliance on these alle g ed facts, appeared in the admissibility decision of 15 January 2007.

15 . B efore the hearin g of witnesses in the case, the Government witnesses made written statements in which most of them admitted that re g ular searches and trainin g were or g anised in Zamkova Prison on 30 May 2001 and 29 January 2002. However, they cate g orically denied participation of special force s in searches of the residential premises of Zamkova Prison , which were conducted with involvement of Zamkova Prison staff only . The Government witnesses mainly underlined that tactical trainin g sessions in Zamkova Prison did not involve the prisoners and were or g anised a s strictly internal trainin g exercise s for the Prison Department staff and involve d staff only .

16 . A dditional facts were established by the Dele g ates in the course of the oral hearin g before the m, in the li g ht of the oral statements made by the applicants and witnesses who appeared at the hearin g . In particular, it was established that several rapid reaction units , amon g them Zhytomyr special rapid reaction unit of the Prison Department (hereafter – Zhytomyr special unit) , were involved in the trainin g s or g anised on 30 May 2001 and 29 January 2002. Complementary factual and le g al elements to the cases also came into view after the visit to Zamkova Prison on 27 June 2007 and from the post-hearin g submissions made by the parties.

17 . Followin g the oral hearin g , the Government a g ain maintained that , based on the evidence heard, special forces did not participate in the trainin g exercise as it was prohibited for police forces to participate in such exercises involvin g Prison Department and for Prison Department to use such police forces . They further maintained that no special forces ever entered the residential zone of Zamkova Prison . The applicant s maintained their position as to the facts.

18 . Based on the above, the Court is confronted with several different versions of the facts. In particular, additional factual elements were discovered in the course of examination of the present applications and the fact-findin g mission or g anised in the instant case . The Court will therefore describe these factual statements briefly , assess evidence g athered at each sta g e of the proceedin g s and reach its own final conclusion as to the factual circumstances of the case s .

19 . The facts , as initially presented by the applicants and not contested by the Government and thus described in the admissibility decision in the case , are referred to in Section B, subsection 1 below (see para g raphs 21 - 25 below) .

A short summary of the facts as presented by the Government is contained in Section B, subsection 2 (see parag raphs 26- 31 below) .

20 . The witness oral evidence taken by the Court ' s Dele g ates at hearin g s conducted in Khmelnytsky is summarised in Annex to the jud g ment (see attached below) , which is also referred to in Section C, subsection 1 (see paragraphs 32 - 33 below) . Parties ' comments as to the absence of particular witnesses and on the oral evidence are summarised in Section C, subsections 2 and 3 (see para g raphs 34 - 37 and 38 - 42, respectively, below) , respectively.

A description of Zamkova Prison and summary of the parties ' submissions as to the conditions of detention can be found in Section D , subsections 1 and 2- 3, respectively (see para g raphs 43 - 50 below) .

A summary of the documents submitted by the parties before the oral hearin g (see para g raphs 52 - 64 below) , the list of documents requested by the Court as a follow up to the oral hearin g (see para g raph 65 below) and material and documentary evidence provided as a follow-up to the hearin g of oral evidence (see para g raphs 66 -80 and 81- 83 below ) are to be found in Section E , subsections 1, 2 and 3 -4 , respectively .

The summar ies of investi g ations carried out by the General Prosecutor ' s Office (para g raphs 84- 97 below) , of the documentary evidence concernin g the investi g ation by the Prison Department (see para g raph 98 below) and of the review of the complaints lod g ed by Mr Zherdev ( see para g raphs 99- 100 below ) are contained in Section E, subsections 5 , 6 and 7 , respectively.

B. Facts as presented by the parties

1. Summary of the facts as established in the admissibility decision

21 . The relevant extracts from the facts of the case as alle g ed by the applicants and as set out in the admissibility decision (see Druzenko and Others v. Ukraine , nos. 17674/02 and 39081/02 , 15 January 2007) are as follows.

22 . The first trainin g exercise be g an at about 10 a.m. o n 30 May 2001. The cells of Zamkova Prison were attacked by the “Berkut” special police force that ill-treated the applicants . These forces were supervised by the Governor of Zamkova Prison Mr Sne g ir and prison officers Mr Mazurenko and Mr Mazepa. They attacked about 120 prisoners and searched them . At the end of this procedure the prisoners were asked whether they had any particular complaints about the police trainin g . I n the presence of the special forces nobody was willin g to complain about these actions to the Governor of Zamkova Prison .

23 . Followin g the trainin g exercise of 30 May 2001 several applicants sent unsuccessful complaints to the Supreme Court, the General Prosecutor ' s Office (the “GPO”), the Khmelnytsky Re g ional Prosecutor ' s Offices and the Prison Department about the aforementioned actions of the special forces and their alle g ed ill-treatment. They also raised various complaints about the conditions of their detention.

24 . As to the second trainin g exercise, t he admissibility decision mentioned that it be g an at 11 p.m. on 28 January 2002 , when fourteen cells of Zamkova Prison (cells 1-12, 19 and 29), with approximately 100 prisoners , had been attacked by the “Berkut” special police force.

25 . Followin g this trainin g , some of the applicants sent several unsuccessful complaints to various State authorities. In their further complaints to various authorities the applicants mentioned that heavy bodily injuries had been inflicted on them. They also complained that medical assistance had never been g iven to those injured, includin g the applicants, and that as a result of this attack the applicants Mr Litvinov, Mr Mironov, Mr Salov and Mr Kuzmenko had received injuries. The attack was supervised by a local prosecutor Mr Volkov, his assistant Mr Stasiuk and an unidentified person. In one of the replies sent to the applicants they were informed by the GPO that the Prison Department conducted a trainin g on 29 January 2002, which was aimed at further trainin g of staff and search for and seizure of prohibited items, such as weapons, dru g s, findin g escape routes, checkin g water, electricity and other en g ineerin g communications. The GPO stated that the applicants ' complaints about their ill-treatment by “Berkut” were wholly unfounded.

2. The Government ' s submissions as to the facts

( a ) The first and second trainin g exercises in Zamkova Prison and the applicants ' injuries

26 . In their observations of 28 March 2006 on the admissibility of the case and before the decision as to the admissibility of the case (see para g raph 14 above ) , the Government stated that they had relied on the facts as summarised by the Re g istry of the Court . However, they disputed a number of factual points referred to by the applicants. In particular, they contested the description of the manner in which the trainin g exercise was or g anised and submitted that none of the trainin g sessions involved the participation of prisoners and that both trainin g exercises were conducted outside the residential zone of Zamkova Prison .

27 . The Government maintained that force had never been used a g ainst prisoners and specifically a g ainst the applicants. Moreover, they insisted that none of the applicants detained in Zamkova Prison durin g the trainin g exercises and the subsequent searches on 30 May 2001 and 29 January 2002 had been injured, and that none of them had requested medical assistance or treatment.

28 . The Government stated that the applicants Mr Davydov, Mr Ilchenko and Mr Gomenyuk had received relevant and timely medical treatment for their medical conditions.

29 . The Government further maintained that the trainin g exercises had been or g anised as part of the State ' s action plan to secure the effective operation of the penitentiary system, to prevent escapes from prisons, riots, the commission of criminal acts a g ainst the administration or other prisoners , etc. Such trainin g exercises were lawful and the plans for them were approved in advance by the prosecution authorities responsible for supervisin g the lawfulness of the enforcement of sentences. They further upheld that a prosecutor had attended both trainin g exercises in order to prevent possible violations of the law and to review possible complaints on the spot. He had found no violations of the law in the course of the trainin g exercises or g anised on 30 May 2001 and 29 January 2002.

( b ) Investi g ation into the events surroundin g both trainin g exercises

30 . The Government stated that the applicants ' complaints about inhuman conditions of detention and the use of force by a special police force, alle g edly the “Berkut” unit, were duly examined by the prosecutor supervisin g the lawfulness of the enforcement of sentences. In particular, they stated that in 2001 there were 27 inspections conducted in Zamkova Prison , as a result of which 29 officials were subjected to different sanctions, in 2002 there were 29 inspections and 44 officials subjected to various sanctions. For instance on 13 March 2001 the Shepetivka prosecutor ordered the Governor of Zamkova Prison to review the nutritional, hy g ienic and other arran g ements in prison as they did not comply with the domestic law. Thus, lod g in g a complaint with the prosecutor ' s office, notwithstandin g the refusals to institute criminal proceedin g s upon the applicants ' alle g ations of ill-treatment, had been an effective remedy. As to the complaints raised, the Government stated that the second applicant unsuccessfully raised his complaints before the General Prosecutor ' s Service only on two occasions – on 10 July and 14 October 2001. As to the third applicant, he complained only to the re g ional prosecutor ' s office, but not the General Prosecutor ' s office. Moreover, the results of these investi g ations and examination of the applicants ' complaints led to a findin g that they were unsubstantiated. The Government further maintained that all their complaints had been adequately examined by the domestic authorities, who sent the applicants and their representative Mr Zherdev prompt and relevant replies.

31 . The Government insisted that, of the first three applicants, only Mr Davydov had been placed in disciplinary detention. He was placed in disciplinary detention on 14 July 2001, and the form of punishment was solitary confinement in a SHIZO punishment cell for 15 days. They maintained that the disciplinary measures (chan g e of severity in his re g ime of servin g sentence to a more severe one) were imposed on the applicant twice on 29 July 2001 and 30 January 2002 on account of his refusal to reside with other prisoners and his threats to commit criminal offences.

C . Oral evidence

1. Summary of oral evidence

32 . Since the facts of the case were disputed by the parties, the Court conducted an on-the-spot investi g ation with the assistance of the parties. In this respect, three Dele g ates from the Court took oral evidence between 25 and 27 June 2007 from twenty-two witnesses on the followin g issues :

(a) the circumstances of the applicants ' ill-treatment by the special forces of the Prison Department and operation of the special forces - the applicants, witnesses proposed by the applicants (Mr V. Didenko, Mr Mikhaylenko, Mr Tishalkov, Mr Getmansky) , the witness proposed by the Government (Mr Shedko) [3] , Mr Leventsov [4] (former First Deputy Head of the Re g ional Prison Department), Mr Sne g ir [5] (former Governor of Zamkova Prison) and Mr Iltiay [6] (First Deputy Head of the Prison Department) ;

(b) the investi g ation into the applicants ' alle g ations of ill-treatment and disciplinary sanctions applied to them - the applicants, Mr Bukher [7] (re g ional prosecutor), Mr Volkov [8] (local prosecutor) and Mr V. Didenko [9] ;

(c) medical treatment and assistance provided to the applicants - the applicants, Mr V. Didenko, Mr Mikhaylenko, Mr Tishalkov, Mr Shedko, Mr Getmansky [10] and Mr Bondar [11] (a head of Zamkova ' s Prison medical unit);

(d) the conditions of detention in Zamkova Prison – Mr Klipatsky, Mr Shatskiy, Mr Zlotenko, Mr Zaremskiy [12] (employees of Zamkova Prison at the time of the events ) , the applicants, Mr V . Didenko, Mr Mikhaylenko, Mr Tishalkov, Mr Shedko and Mr Getmansky [13] .

33 . A further six witnesses had been summoned but did not appear (see para g raphs 34- 37 below) . Four of these witnesses had previously been employed by the Prison Department . In respect of their absence the Government submitted, in the course of the hearin g , that since these absent witnesses had retired and were no lon g er employed by the State , the Government were unable to identify their whereabouts. All of the witnesses questioned by the Dele g ates g ave preliminary written witness statements, either personally or throu g h their representatives, and these statements were admitted to the case file. A summary of evidence g iven by the witnesses can be found in the Annex to the jud g ment .

2 . A bsent witnesses

( a ) Absence of Mr Druzenko (the fourth applicant)

34 . The Government stated that they had sent the summons to the address mentioned , which had been the address of the applicants ' representative , Mr Bushchenko. Accordin g to the information initially supplied by Mr Bushchenko this applicant was under Government control as he was held in SIZO no. 21 of Odessa . Mr Bushchenko stated that he had the last contacts with the applicant via the address of that detention facility. He had had no further contacts with the applicant and stated that he did not know the exact address of the applicant and had unsuccessfully tried to contact him by phone and by mail. The Government provided no information as to where the applicant was after his last contacts with Mr Bushchenko via SIZO no. 21, neither did they indicate any measures under taken by them in order to establish his whereabouts.

( b ) Absence of Mr Gaydamaka, Mr Mazepa, Mr Mazurenko, Mr Pylypenko and Mr Zakharov

35 . Mr Kyslov, Major from the Prison Department , assistin g to the Government ' s A g ent in the course of the hearin g , stated that Mr Gaydamaka ' s and Mr Mazurenko ' s whereabouts were unknown. Mr Kyslov also mentioned that these witnesses were former employees of the Prison Department and had all retired . He mentioned that he had spoken to Mr Gaydamaka and Mr Mazurenko in person before the hearin g . They had received the summons to appear and had si g ned these summons. One of them was somewhere in the Crimea . Mr Pylypenko ' s and Mr Mazepa ' s whereabouts were not known to the Government; they were both resident somewhere in Kyiv. Mr Pylypenko was privately employed somewhere in Kyiv. They also sent the summons to him. As to Mr Zakharov, Mr Kyslov mentioned that he could not be found.

( c ) The initial absence of Mr Getmansky

36 . M ajor Kyslov initially stated that the authorities could not find one of the former prisoners of Zamkova Prison , Mr Getmansky, as his whereabouts were unknown to the Government. Mr Getmansky , after additional information had been provided by Mr Bushchenko to the Government, subsequently appeared before the Dele g ates.

( d ) Absence of Mr Kostenko

37 . Mr Bushchenko, the applicants ' representative, stated that a copy of the summons had been sent to this witness , who was a former prisoner of Zamkova Prison , but the lawyer could not contact him, althou g h he had previously confirmed that he would appear before the Dele g ates .

3 . Parties ' comments on the oral evidence

( a ) The Government

38 . The Government considered that due to a number of contradictions and inconsistencies (both in principle and in detail) in the testimonies, g iven durin g the interro g ation by five former Zamkova Prison prisoners and by three applicants, the applicants failed to establish that they had been beaten in the Prison on 30 May 2001 and 2 9 January 2002 . Accordin g ly, the applicants could not claim to be victims in respect of any ill-treatment.

39 . In particular, in relation to the events of 30 May 2001, the Government maintained that:

– the first applicant ' s statements were inconsistent and false;

– the statements concernin g the description of the uniform of the so ‑ called special forces that conducted the search g iven by the first and second applicant, Mr Didenko, Mr Mikhaylenko, Mr Tishalkov and Mr Getmansky were also false and had numerous discrepancies;

– the first and the second applicants ' statements that the so-called “special forces” that held the search in the residential premises of Zamkova Prison had automatic g uns, contradicted the statements g iven by Mr Mikhaylenko and Mr Tishalkov, who remembered that the soldiers were unarmed ;

– Mr Getmansky ' s statements as to blank shots fired from automatic g un were also untru e as well as to other details of the trainin g s held ;

– Mr Getma n sky ' s statements as to the third applicant ' s injuries were untrue and self-contradictory;

– Mr Mikhaylenko statements about ill-treatment of prisoners in the course of the trainin g w ere untrue as he could not physically see anythin g as well as the corridor from behind the closed door to the cell ;

– the contradictions in statements g iven by the second applicant, Mr V . Didenko and Mr Getmansky in that they k new about the trainin g in advance a g ainst the statements g iven by the first applicant and Mr Tishalkov that they knew nothin g about the trainin g .

40 . In relation to the witness statements g iven as to the events of the trainin g held on 2 9 January 2002, the Government insisted that:

– the first applicant ' s statements as to the blank shots from automatic g un s were false;

– the investi g ation into the applicants ' complaints was conducted in compliance with the requirements of Article 3 of the Convention;

– the statements of Mr Didenko, Mr Getmansky , the first and the second applicants as to whether there were any prisoners who received injuries and their number as well as to whether medical aid was provided were also false, especially in view of the lack of medical evidence, includin g re g isters containin g medical records , and witness statements g iven by Mr Bondar.

41 . The Gove r n ment concluded that the inconsistent statements as to the presence of the special forces within the residential area, ill-treatment of the prisoners by these so-called special forces and their beatin g s by these forces and lack of medical treatment and assistance provided to the applicants and other prisoners , clearly show ed that all of these statements were false. In their view the only statements that were true, consistent and lo g ica l and therefore credible were those g iven by Mr Shedko , a witness proposed by the Government and a former prisoner of Zamkova Prison . They concluded that there was no evidence established in the case that would prove that there ha d been any violation of the provisions of the Convention.

( b ) The applicants

42 . The applicants disa g reed with the Government ' s comments and noted that the discrepancies, if there were any, in the statements g iven by the applicants and the witnesses- prisoners related only to minor details of the events and did not undermine the overall credibility of the applicants ' and their witnesses ' statements durin g the fact-findin g mis sion of the Court in June 2007.

D . Description and c onditions of detention in Zamkova Prison

1 . Description of Zamkova Prison no. 58

43 . Zamkova Prison , where the applicants were held, is a hi g h security prison ( максимального рівня безпеки ) mainly holdin g male prisoners sentenced to life imprisonment or lon g term sentences for g rave criminal acts . It comprised two main separated from one another g uarded areas – residential area and the industrial area. Residential area included inter alia the followin g main buildin g s:

– administrative area, includin g headquarters, medical and security units and laundry;

– hi g h security sector, containin g prison for prisoners sentenced to life and walkin g yards for those prisoners ;

– prison shop, canteen, boiler, mini-bakery and the recreation club for the prisoners ;

– historical buildin g of former Bernardine monastery built in 1610 ( former church of the Roman Catholic order ) , called by the prisoners the Monastyr ( Монастир ) or the Cloister, comprisin g hi g h level security win g and security, re-socialisation, quarantine, dia g nosis and allocation cells;

– disciplinary premises buildin g , containin g isolation wards of different re g imes of detention (which included isolation ward cells ( карцери ), DIZO ( ДІЗО ) or disciplinary cells and punishment cells or SHIZO (ШІЗО) ), and solitary confinement cells (OK ( одиночні камери ) or PKT ( приміщення камерного типу ) cells, so-called separated solitary confinement cells or cell-type premises).

Industrial area included inter alia the followin g main sites:

– checkpoint (KPP ; КПП або контрольно-пропускний пункт ) and auto transport g ates;

– four construction areas, carbon-dioxide station and industrial departments nos. 1 and 2;

– local household department and g reenhouse;

– wood and joinery workshops in workshop no. 1.

2 . The Government ' s submissions

44 . Accordin g to the Government ' s submissions, in 2001-2002 there were 600 prisoners in Zamkova Prison, for a total area of 1,845.7 m 2 of cell space (residential space, excludin g prisoners ' communal areas). Thus, the normal cell space per prisoner was 3.07 m 2 , which was not less than the 2.5 m 2 per prisoner provided for by law at the material time.

45 . In particular, there were 230 prisoners held in the severe prison detention re g ime ( TU unit of the Prison ; режим тюремн ого ув ' язнення ), which had 684.5 m 2 of cell space, thus 2.97 m 2 per prisoner.

46 . About 130 prisoners were held in cell-type unit of the Prison (KU unit or cell-type prison premises for multiple prisoners ; режим камерного утримання ), havin g 434.1 m 2 of cell space, thus 3.3 m 2 per person.

47 . There were also 240 persons held in prison dormitories, with a total space of 727.1 m 2 and thus 3.02 m 2 per prisoner .

48 . As to disciplinary and punishment cells, Zamkova Prison also had 12 SHIZO or punishment cells (havin g 55.2 m 2 of cell space for 12 prisoners ), OK cells or separated sin g le occupancy cells and PKT (havin g 285.7 m 2 of cell space for a total of 58 prisoners ).

3 . The applicants ' submissions

49 . The applicants maintained that they were held in overcrowded cells, with approximately 3 m 2 of space per prisoner . Accordin g to the applicants, their places of detention had no heatin g on account of shorta g e of coal, which was alle g edly not delivered to Zamkova Prison . The food provided to the applicants and sold in the shops was of the lowest quality and was no lon g er consumable, as it had been produced in the 1980s and 1990s.

50 . The applicants complained that throu g hout their detention they were not allowed to receive food parcels from their relatives or obtain medical treatment. The penitentiary officers enjoyed wide discretion in applyin g disciplinary sanctions to prisoners , in particular with re g ard to placin g them in solitary confinement.

E . Documents submitted by the parties

51 . The parties submitted various documents concernin g the trainin g exercises conducted on 30 May 2001 and 29 January 2002. The documents, re g ulations and extracts from them, submitted by the parties before and after the hearin g , which are relevant to the case, are briefly summarised below.

1. The Trainin g Plans Approved by the Re g ional Prison Department and by the Governor of Zamkova Prison

( a ) The trainin g plan adopted by the Re g ional Prison Department on 25 May 2001 (Plan no. 1)

52 . The Trainin g Plan “On the actions of Penitentiaries ' administrations, in cooperation with the special forces of the Prison Department and rapid reaction units from the re g ional penitentiary institutions, for the purpose of neutralisin g a situation in which criminals had taken hosta g es and conductin g a g eneral search of the premises occupied by the prisoners in the residential zone” (hereafter – “Plan no. 1”), related to the first trainin g exercise held on 30 May 2001 in Zamkova Prison , had been approved on 25 May 2001 by the Head of the Khmelnytsky Re g ional Prison Department and the Prosecutor in Khmelnytsky Re g ional Prosecutor ' s Office responsible for supervisin g the lawfulness of the enforcement of sentences.

53 . The followin g units were included in the g eneral trainin g exercise: personnel from Zamkova Prison , the Zhytomyr special unit and the rapid reaction units of Penitentiaries nos. 31, 58 and 98. One of the aims of the trainin g exercise, as set out in the plan, was to train the personnel of Zamkova Prison and the rapid reaction units to conduct searches in the premises occupied by the prisoners and to search the prisoners .

54 . The special equipment to be used included: weapons ( зброя ), special restrainin g equipment ( спеціальні засоби ), personal protection equipment ( засоби індивідуального захисту ), service do g s ( службові собаки ), motor transport, action plans for extraordinary circumstances and layout dia g rams.

55 . Plan no. 1 contained information on the operative circumstances ( оперативна обстановка ) in the Ukrainian penitentiary system as a whole and in the re g ion ' s penitentiaries; these were considered to be problematic. The information indicated that the penitentiaries in the re g ion were g enerally overcrowded, which impeded the effective enforcement of sentences. Additionally, it was stated that searches for prohibited items in these penitentiaries had become less effective.

The trainin g was to be conducted in four sta g es:

– from 5 a.m. to 8 a.m., a g eneral meetin g of the trainin g exercise participants in the Prison staff and prisoners ' club;

– from 8 a.m. to 10 a.m., entry of the joint detachment into the Prison ( зона охоронюваного об ' єкту ), blockin g of isolated sections within the Prison and conduct of a selective g eneral search in the isolated departments of the Prison;

– from 10 a.m. to 11.30 a.m., conduct of an operation to free “hosta g es”, by the special forces and rapid reaction g roups;

– from 11.30 a.m. to 12.30 a.m., a g eneral meetin g of all participants in the Prison staff and prisoners ' club, discussion of the trainin g exercise and g eneral conclusions as to its conduct.

( b ) The Trainin g Plan (Plan no. 2) adopted by the First Deputy Head of the Re g ional Prison Department (in relation to the first trainin g exercise)

56 . Accordin g to the Scenario “On the conduct of the practical exercise in Iziaslav Prison no. 31 and Zamkova Prison no. 58” (hereafter “Plan no. 2”), which was adopted on 30 May 2001, the main purpose of the search was to provide the special unit with a practical opportunity to mana g e the personnel of the penitentiary and the rapid reaction g roups in extraordinary circumstances. The trainin g exercise involved participation of g roups responsible for blockin g , documentation, medical assistance, convoy and searches, and special and reserve g roups. The total number of staff involved was 231, includin g 18 officers from the special unit. There were also officers from the rapid reaction units of Zamkova Prison , Iziaslav Prison no. 31 and Shepetivka Prison no. 98. The special unit used 4 automatic g uns, 4 hand g uns, firecrackers. Their equipment included helmets, flak jackets, rubber truncheons, tear g as ( черемуха ) and handcuffs. The officers from the other units wore helmets ( каски з забралом ) or motor helmets , flak jackets, and carried shields, rubber truncheons, tear g as and handcuffs. The units also had 3 special vehicles, 10 g uard do g s and 2 video cameras. After the trainin g exercise on liberatin g hosta g es, the special unit was to leave for its usual base.

( c ) The Trainin g Plan (Plan no. 3) adopted by the Governor of Zamkova Prison (in relation to the first trainin g exercise)

57 . Accordin g to the Plan for the conduct of the g eneral search in Zamkova Prison (hereinafter – “Plan no. 3”), to be held on 30 May 2001, the search was to start at 8 a.m. and finish at 12 noon. A total of 76 members of staff from Zamkova Prison were to be involved in the g eneral search. The personnel involved in the search were divided into nine mixed g roups, with different head officers who were conductin g a g eneral search in both the residential and industrial zones of Zamkova Prison . The majority of the staff in these g roups participated in searchin g both the residential and industrial zones.

58 . The premises subject to search were the followin g : workshop no. 1 ( g roup no. 1); departments nos. 1 and 2 ( g roups nos. 2 and 3); sections nos. 1, 4, 7, Monastyr cells nos. 1, 2, 3, 4 ( g roup no. 4); canteen, medical unit, boiler-house, sanitary section, buildin g premises ( g roup no. 5); cells belon g in g to the severe re g ime of detention - SHIZO (punishment cells), OK (separated solitary confinement cells), TU (severe re g ime of prison detention) ; prison detention in g eneral detention re g ime area ( g roup no. 7); departments nos. 2 and 3 ( g roup no. 8) and departments nos. 5, 6 and 8 ( g roup no. 9). The equipment mentioned in Plan no. 3 included 30 immobilisin g rods, 10 wooden hammers and 2 “Gamma” metal detectors.

( d ) The Trainin g Plan ( Plan no. 4), adopted by the Re g ional Prison Department on 26 January 2002 in relation to the second trainin g exercise

59 . The Trainin g Plan “On the conduct of tactical and specialised trainin g with the personnel of Penitentiaries nos. 31 and 58 and rapid reaction g roups from the penitentiaries in the re g ion for the simulated purpose of combatin g g roup disobedience and mass disturbance” (hereinafter – “Plan no. 4”), relatin g to the second trainin g exercise in Zamkova Prison on 29 January 2002, was approved on 26 January 2002 by the Head of the Khmelnytsky Re g ional Prison Department and the prosecutor in Khmelnytsky Re g ional Prosecutor ' s Office supervisin g the lawfulness of enforcement of sentences.

60 . The followin g units were involved in this trainin g simulatin g mass disobedience: personnel from Penitentiaries nos. 31 and 58, rapid reaction units from Penitentiaries nos. 31, 58, 78, 98 and SIZO-29 (all in the Khmelnytsky Re g ion). One of the aims of the trainin g was to train Zamkova Prison ' s personnel and the rapid reaction units to conduct searches of the premises occupied by prisoners and searchin g the prisoners themselves. In particular, the search of prisoners and of the residential area was mentioned as one of the major trainin g objectives .

61 . The special equipment to be used included: weapons, special restrainin g equipment, personal protection equipment and active protection equipment ( засоби активної оборони ), security do g s, vehicles, plans of action in extraordinary circumstances and layout dia g rams. The trainin g plans contained information on the operative circumstances in Zamkova Prison . This information indicated a substantial deterioration in the criminal propensities and socio-demo g raphic composition of the prisoners in Zamkova Prison , which necessitated adequate measures. In particular, the followin g information on the composition of the prisoners was g iven to the trainin g participants: many prisoners were convicted for serious crimes, includin g 65 prisoners who committed crimes while servin g their sentences; 15 prisoners were sentenced for banditry; 4 for premeditated murder; 2 persons were likely to attack penitentiary staff; 18 persons were likely to attempt to escape; 12 had been sentenced for dru g use, 60 persons were likely to en g a g e in sin g le-sex intercourse and equivalent activities and there were 22 persons with psycholo g ical disorders.

The trainin g was to be conducted in four sta g es:

– from 6 a.m. to 8.30 a.m., g eneral meetin g of the trainin g participants in the Penitentiary club;

– from 9 a.m. to 11 a.m., trainin g of the joint detachment within the territory of the Prison, for the purpose of terminatin g g roup disobedience and mass riots;

– from 11 a.m. to 3 p.m., entry of the joint detachment into the Prison, blockin g of isolated sections within the Penitentiary, a g eneral selective search in the isolated sections and cells of Zamkova Prison ;

– from 3 p.m. to 4 p.m., g eneral meetin g of the trainin g participants at the Prison staff and prisoners ' club, discussion of the trainin g and g eneral conclusions as to its conduct; instructions on further movement of the rapid reaction g roups.

( e ) The Trainin g Plan (Plan no. 5) adopted by the Head of the Re g ional Prison Department (in relation to the second trainin g exercise)

62 . Accordin g to this Plan (hereinafter, “Plan no. 5”) the trainin g exercise to be held on 29 January 2002 had the g eneral purpose of providin g for a g eneral search of the residential and industrial zones and of the prisoners , and applyin g measures to stren g then law and order in the penitentiary. The trainin g exercise involved participation of g roups responsible for blockin g , documentin g , medical assistance, convoy, search, and the special and reserve g roups. The total number of staff involved was 151. There were also officers from the rapid reaction units of Zamkova Prison , Iziaslav Prison no. 31, Shepetivka Prison no. 98, Prison no. 78 and SIZO (pre-trial detention centre) no. 29 of Khmelnytsky Re g ion. The special taskforce unit was to use 3 automatic g uns (AK-74), firecrackers, si g nal rockets. The equipment was to include helmets or motor helmets and shields, flak jackets, tear g as ( терен-4 ), rubber truncheons, handcuffs, etc. The units also had 1 special vehicle, 6 g uard do g s and 2 photo cameras. The blockin g g roup was equipped with steel helmets and weapons with blank ammunition; the breakin g -up g roup had shields, “Sphere” helmets, rubber truncheons and flak jackets; the protection g roup had “Sphere” helmets, shields and rubber truncheons; the patrol g roups were equipped with weapons without ammunition; the special measures g roup had rubber truncheons, g as masks and tear g as; the extraction g roup had rubber truncheons, flak jackets and helmets; the convoy g roup had flak jackets, “Sphere” helmets and rubber truncheons; the documentin g g roup was equipped with photo and video equipment and the reserve g roup had weapons, g as masks and steel helmets. Each g roup had specific tasks. All of the g roups would participate in the g eneral search in the Prison, and the blockin g g roup was to block the isolated areas of the Prison before the search be g an.

( f ) The T rainin g P lan (Plan no. 6) adopted by the Governor of Zamkova Prison (in relation to the second trainin g exercise)

63 . Accordin g to the Plan of conduct of the g eneral search in Zamkova Prison (hereafter – “Plan no. 6”), to be held on 29 January 2002, the search had to start at 9 a.m. and finish at 12 noon. A total of 29 members of staff of Zamkova Prison were to be involved in the g eneral search. The aim of the search was to find prohibited items and to identify preparations for escape, preparatory actions for the commission of criminal offences, etc. The personnel involved in the search were divided into three mixed g roups, with different commandin g officers who were to conduct a g eneral search in the residential zone of Zamkova Prison .

64 . The premises involved were: the SHIZO, PKT , OK , TU in the severe detention re g ime area ( g roup no. 1); cells nos. 19 and 29 in departments nos. 5 and 8 ( g roup no. 2); departments nos. 9 and 10 ( g roup no. 3) in the prison section of the g eneral detention re g ime area. The equip ment mentioned in Plan no. 6 included 10 wooden hammers and 2 “Gamma” metal detectors.

2. The Court ' s request for additional documentary evidence

65 . On 14 Au g ust 2007 the Court requested the Government to provide the followin g additional documentary evidence:

“... – copies of the relevant le g al re g ulations (re g ardless of the issuin g authority) g overnin g searches at prison, includin g rules of conduct for prison staff and documents settin g out the ri g hts and duties of the prisoners durin g searches;

– re g ulations concernin g the establishment, trainin g and operation of the special forces or so-called “rapid reaction units” of the State Department for Enforcement of Sentences (decree of 27 April 2000), referred to by M r V.S. Leventsov and Mr M.P. Iltiay in their statements g iven on 26 and 27 June 2007, respectively;

– a copy of the decree no. 193дск of the State Department for Enforcement of Sentences dated 30 Au g ust 2002 (re g istered in the Ministry of Justice on 20 September 2002 no. 771/7059) concernin g processin g of prisoners ' correspondence;

– re g ulations dealin g with the stora g e, archivin g and destruction of re g isters of medical records, re g isters of complaints lod g ed by the prisoners and re g isters of correspondence;

– a copy of the report of the internal investi g ation undertaken by the State Department for Enforcement of Sentences prepared by MM V.S. Leventsov and M.P. Iltiay for examination by the First Deputy Head of the State Department for Enforcement of Sentences Mr O.B. Ptashynsky, referred to on 27 June 2007 by Mr M.P. Iltiay;

– a copy of the reports as to the “operative situation” in Iziaslav Zamkova Prison from January 2001 to December 2002 (mentioned in their statements on 26 and 27 June 2007, respectively, by MM Leventsov and Sne g ir) and those reports that were provided to staff of the State Department for Enforcement of Sentences before the searches on 30 May 2001 and 29 January 2002 ;

– a list of the equipment and ammunition provided for use of the staff of the State Department for Enforcement of Sentences in the course of the trainin g exercises on 30 May 2001 and 2 9 January 2002, to g ether with copies of any internal decisions relatin g thereto;

– the 2003 report of the Human Ri g hts Ombudsman of the Parliament of Ukraine so far as it deals with special trainin g units in prisons;

– a video-recordin g of the trainin g s by the special forces held on 30 May 2001 and 2 9 January 2002, mentioned by witnesses M r O. Tishalkov, Mr V.S. Leventsov and Mr M.P. Iltiay, respectively on 25, 26 and 27 June 2007;

– copies of Mr Volkov ' s work records from December 2001 to February 2002, showin g dates of and reasons for absence.

Further to the on-site inspection of the prison, your Government are invited to provide written information as to the size of cells visited by the dele g ation (includin g a plan), to g ether with copies of the re g isters showin g the prisoners in those cells on 30 May 2001, 29 January 2002 and on 27 June 2007. ...”

3 . Material evidence submitted by the Government

66 . On 28 September 2007 the Government replied that it could provide the Court only with the followin g documents and further evidence , which may be summarised as follows.

( a ) Instruction “On or g anisin g supervision of prisoners servin g their sentences in correctional labour colonies”, approved by the Prison Department Order no. 70 on 27 April 2000 ( as submitted by the Government)

67 . The Instruction establishes, inter alia , the procedure for searchin g prisoners and premises and the territories of residential and industrial zones inside Correctional Labour Colonies (hereafter “CLC”).

68 . Accordin g to para g raph 74 of the Instruction, searches of prisoners and premises are to be conducted on the basis of a schedule approved by the Prison Governor. The search is to be conducted with the participation of the personnel of the CLC and, whe re necessary, the special units for action in extraordinary circumstances, additional forces from other penitentiaries and bodies in the system for the enforcement of sentences. Searches and inspections are to involve technical equipment and, if necessary, specially trained do g s. It is prohibited to dama g e clothes, property, prison equipment and other objects in the course of the searches or inspections (para g raph 75).

69 . Personal searches of the prisoners may be “full” (that is, with the removal of all clothin g ) or “partial” (without the removal of clothin g ). Personal searches are to be conducted by a person of the same sex as the prisoner . The staff members who conduct a search must act conscientiously and reasonably, comply with the security measures and prevent any kind of inhuman treatment of the searched prisoner (para g raph 76 of the Instruction).

70 . Accordin g to para g raph 77 of the Instruction , a full search of a prisoner is to be carried out when he or she arrives at the CLC and on his or her departure from it; on placement in a SHIZO, DIZO or PKT/OK, and on leavin g these premises. It is also to be conducted after the apprehension of a prisoner for attempted escape or other offences, before a lon g -term meetin g with third parties from outside the penitentiary or after the latter ' s completion, if necessary. Inmates who are subjected to a full search are asked to hand in any prohibited items for stora g e, and must then g radually remove their hat, clothes, shoes and under g arments. After these demands are complied with, the separate parts of the prisoner ' s body and his clothes and shoes are inspected a ccordin g to the standard procedure. Full searches are to be carried out in specialised premises or rooms near the Prison entry checkpoint ( K PP), and also in the SHIZO and PKT / OK separated cells for multiple and sin g le occupancy .

71 . Accordin g to para g raph 78, partial searches are to be conducted when prisoners leave for work and return from it, or in other specially desi g nated places.

72 . Under para g raph 79, a prisoner who violates the re g ime or commits an offence is to raise his hands above his head and stretch out his le g s. The person searchin g him is to stay behind him. In certain instances, where the prisoner is likely to possess weapons, he is to be invited to lean a g ainst the wall in front and stretch out his le g s. The search is to be conducted by at least two staff members for security reasons.

73 . P ara g raph 80 of the Instruction provides that a search of the premises and inspection of the territory of the residential and industrial zones is to be conducted in isolated sectors and workshops, a ccordin g to the timetable envisa g ed by the calendar of searches. Every section shall be searched a s required, but no t less than at least once a month. Searches are to be supervised by the first deputy head of the CLC with responsibility for supervision and security, or by the head of the supervision and security division, on the instructions of the first deputy.

74 . Accordin g to para g raph 81 of the Instruction , a g eneral search shall be conducted on the basis of a decision by the Prison Governor and under the latter ' s supervision, no less than once a month, and also in the event of complications in the “operative situation” in the CLC. Durin g a g eneral search all prisoners and the territory of the residential and industrial zone, and all premises and installations on their territory, are to be inspected. A search is conducted on the basis of the plan prepared jointly by the first deputy Governor with responsibility for supervision and security and the head of the supervision and security division.

75 . In the course of a g eneral search prisoners must be g athered in special separate premises and subjected to an individual search. The residential premises must also be searched, in the usual manner; they are searched with the participation of the head of the social and psycholo g ical department. Furniture and items contained in it, sleepin g places, includin g linen, pillows and mattresses, and various personal objects shall also be inspected. The walls, floor, windows and ceilin g are to be inspected for secret stora g e places and manhole hatches. The residential and administrative buildin g s, their interior and exterior, the cellars and g arrets, different communication channels, barriers, toilets, sports g rounds, under g round tunnels and other places where there could be possible secret stora g e areas are also to be inspected. Every cell in the premises where the SHIZO and cell-type premises are situated (i.e. PKT, (OK)) shall be inspected meticulously . All walls, ceilin g s and floors are to be knocked on for the purpose of findin g secret stora g e areas and passa g es. The g ratin g shall be inspected too , with special attention paid to cuts, score marks and other evidence of deterioration. The operational capacity of the doors, bolts and locks, and the reliability of the fixin g s of beds, tables and other furniture shall also be checked. Inmates held in those cells shall be subjected to a full personal search and their clothin g shall also be inspected. The heads of the search g roups are to report to the officer supervisin g the search, and g eneral statements are to be drawn upon the basis of the search, si g ned by the supervisin g officer and the heads of the search g roups. This statement is to be forward ed to the supervision and security division.

76 . Addendum no. 9 to the Instruction sets out the Action Plan for the personnel of a penitentiary institution in the event of extraordinary circumstances. In particular, it describes the actions to be taken by the special force s in the event of extraordinary circumstances, such as the takin g of hosta g es or mass disobedience. It further establishes the procedure for actin g in such circumstances and provides for the division of the special force s into g roups for reinforced supervision and security, blockin g g roups, extraction g roups, documentin g g roups, a g roup for the use of the special restrainin g equipment and a reserve team (in the event of mass disobedience, provision is also made for the participation of a medical assistance g roup and a patrol g roup). The addendum also envisa g ed the procedure for use of the special restrainin g equipment (for instance, it is prohibited to strike the head or face with a truncheon) and weapons (to be used only in exceptional circumstances, where it is impossible to fulfil the task by other means).

( b ) Order no. 75 of the Prison Department of 27 April 2000 “On the establishment of special units within the system for the enforcement of sentences, for action in extraordinary circumstances, approval of personnel and the Re g ulations on these units”

77 . The Order established the special units within the Prison Department . It remained in force until 8 September 2003, when a new Prison Department Order, no . 163, “On the establishment of special units within the system for the enforcement of criminal sentences, approval of their composition and re g ulations on them” was adopted (it was subsequently annulled on 10 October 2005 by Order no. 167). It envisa g ed the creation of an inter-re g ional special unit for action in extraordinary circumstances within the Zhytomyr Re g ional Department for the Enforcement of Sentences. This unit ' s scope of territorial jurisdiction extended to Khmelnytsky re g ion and the penitentiaries in this re g ion (para g raph 6 of the Order). The Order also provided for the creation of rapid reaction units, consistin g of 10-15 most qualified officers in the penitentiary institutions (para g raph 9 of the Order). The heads of the special units were ordered to cooperate with the rapid reaction units of the penitentiaries within their territorial jurisdiction.

78 . Accordin g to the Re g ulation “On the special units of the s ystem for the enforcement of sentences for action in extraordinary circumstances in the re g ional departments of the State Department for the Enforcement of Sentences” (Addendum no. 1), the purpose of these units was to react to extraordinary situations in penitentiaries, such as riots and mass disobediences, and to react appropriately to chan g es in the “operative circumstances” in the jurisdiction to which such units belon g ed (para g raph 1.1). The personnel of these units were to be selected from persons who possessed the required physical and psycholo g ical qualities and were able to act in extreme situations (para g raph 1.9). The special unit had a special uniform and shoes, special restrainin g equipment and other equipment (para g raph 1.14) for the exercise of their tasks and duties. One of the g roup ' s objectives was to take preventive measures in order to counteract mass disobedience and offences in prisons (para g raph 2.5).

79 . Accordin g to para g raphs 3.1-3.5 of the Re g ulation , the heads of the R e g ional Prison Departments were allowed to make proposals as to the use of these units in the penitentiary institutions ( планове відпрацювання установ ). In particular, the department head in the re g ion responsible for the unit was to establish the unit ' s calendar of activities on a six-monthly basis. The unit acts on the basis of specially developed plans approved by the head of the re g ional department and the respective prosecutor. The Re g ulation stipulated that the unit officers ' actions should comply with the law and should be based on humane treatment of prisoners .

80 . By virtue of Addendum no. 2 to the Order , Zhytomyr special unit was composed as follows: the commander of the unit (a major), four officers (two captains and a senior lieutenant), two heads of detachments (senior warrant officers) and ei g hteen warrant officers. The total number of unit officers was twenty five.

4 . Documentary evidence on the trainin g exercises, submitted by the Prison Department

81 . Accordin g to the report by Mr S.O. Zlotenko, head of the g uardin g , supervision and security division, submitted to the Head of the State Prison Department on 6 September 2007, there was no video recordin g of the trainin g exercises conducted on 30 May 2001 and 29 January 2002.

82 . Accordin g to the information note produced by the deputy Governor of Zamkova Prison , dated 27 June 2007, cells nos. 2, 8 and 29 in the Monastyr measured 30.8 m 2 , 22.8 m 2 and 35 m 2 , respectively.

83 . Accordin g to the information note prepared by the actin g head of the documentation service in Khmelnytsky Re g ional Prison Department, the documents relatin g to the “operative situation” in Zamkova Prison and files relatin g to these issues have been destroyed, a ccordin g to Order no. 21 of the State Prison Department of 4 February 2004 “On approval of the list of documents created in the course of the operation of penitentiary bodies and institutions of the State service for the enforcement of sentences, desi g natin g the terms of stora g e”.

5 . The investi g ation carried out by the General Prosecutor ' s Office

84 . The documentary evidence provided by the Government concernin g the investi g ation into the applicants ' complaints may be summarised as follows.

85 . On 17 Au g ust 2001 Prosecutor Volkov , in response to the complaints lod g ed by the applicants, replied that no violations of the law had been found on the basis of the alle g ations of ill-treatment .

86 . On 14, 20 and 26 September 2001 the head of the division within the General Prosecutor ' s Office responsible for supervisin g the enforcement of sentences in criminal cases, after examinin g the complaints lod g ed by Mr G . Zherdev alle g in g ill-treatment of the applicants by the “Berkut” special police force, requested the First Deputy Prosecutor of the Khmelnytsky Re g ion to conduct an investi g ation into them.

87 . On 24 September and 1 October 2001 an assistant to Khmelnytsky Re g ional Prosecutor supervisin g the enforcement of sentences in criminal cases, requested Mr Volkov, the Shepetivka Deputy Prosecutor supervisin g compliance with the law in the enforcement of criminal sentences, to conduct an investi g ation into the complaints lod g ed by Mr Zherdev.

88 . On 9 November 2001 Mr Volkov replied to Mr Ilchenko ' s complaints about the conditions of detention and stated that the conditions in question complied with the law.

89 . On 12 April and 13 May 2002 respectively the head of the division in the General Prosecutor ' s Office supervisin g the enforcement of sentences in criminal cases and the Deputy Prosecutor General requested the Khmelnytsky Re g ional Prosecutor ' s Office to conduct an investi g ation into the complaints lod g ed by Mr Zherdev. These complaints were transferred to Mr Bukher, the senior assistant prosecutor of Khmelnytsky Re g ional Prosecutor ' s Office, who was responsible for supervisin g the enforcement of sentences in criminal cases and had been ordered to investi g ate the matter.

90 . On 7 May 2002 Mr Stasiuk, assistant to the Shepetivka Prosecutor, actin g on orders from Mr Bukher, questioned the prisoners detained in cells nos. 8 and 29 (Mr Ilchenko, Mr Kulik and Mr Litvinov), who stated that they had been beaten by members of the special forces in the course of the search conducted at the Prison on 29 January 2002. The other prisoners who were questioned stated that no physical force had ever been applied to any prisoner in the course of the search and that nobody from cell no. 29 had ever been beaten. Mr Stasiuk also questioned Zamkova Prison personnel, includin g Mr Zakharov, Mr Mazurenko, Mr Chudyuk, Mr Gaydamaka, Mr Volkov and Mr Bondar. They all confirmed that no force had ever been used a g ainst the prisoners . Mr Bondar stated that no medical assistance had been requested by the prisoners after the second trainin g exercise and that no one had received any injuries. Mr Bondar ' s statement mentioned that Mr Kulik suffered from miositis of the spine muscles ( міозит м ' язів спини ) and osteochondrosis (остеохондроз) .

91 . On 10 May 2002 Mr Volkov, the Shepetivka Prosecutor , ordered the Governor of Zamkova Prison to appl y disciplinary measures to the prisoners Mr Kulyk, Mr Lytvynov and Mr Ilchenko for their failure to comply with the lawful procedure for submittin g complaints. In particular, he alle g ed that they had violated Article 44 of the Code for the Enforcement of Sentences, and Rules 17.2 and 33.1 of the Penitentiary Internal Rules.

92 . On 29 May 2002 Mr Bukher, the senior assistant prosecutor of the Khmelnytsky Re g ional Prosecutor ' s Office, questioned Mr Ilchenko in person. In his explanations, Mr Ilchenko a g ain asserted that he had been beaten by the special forces. He also alle g ed that his complaints had not been forwarded by the staff of Zamkova Prison and that Mr Gaydamaka and Mr Boyko had tried to force him to withdraw his complaints. Mr Ilchenko also stated that prosecutor Volkov and his assistant wanted him to withdraw the complaints lod g ed. Additionally, he thou g ht that they were in fact coverin g up for violations of the law in Zamkova Prison .

93 . On 11 June 2002 Mr Bukher issued a resolution, by which the Khmelnytsky Re g ional Prosecutor ' s Office refused to institute criminal proceedin g s, findin g no unlawfulness on the basis of the applicants ' complaints . In particular, it found that the applicants Mr Ilchenko and Mr Davydov had not been ill-treated by the “Berkut” special police forces , which had alle g edly trained in Zamkova Prison and conducted a search of the premises and prisoners . Accordin g to the text of this resolution:

“ ... Mr Zherdev, repeatedly, without verifyin g truthfulness of information, had sent complaints [on behalf of prisoners Mr Ilchenko, Mr Kulyk, Mr Druzenko, Mr Lytvynov and Mr Myronov] to various State and non- g overnmental or g anisations about violation of the prisoners ' ri g hts, ... includin g unlawful use of force by the prison ' s employees, the officers of the special forces , poor conditions of detention ... He received this information from these prisoners , contrary to the procedure established by law.

The followin g had been established i n the course of investi g ation , based on the personal files of the prisoners , materials of the previous inspections by the special prosecutor ' s office and other information .

... O n 29 January 2002 the employees of Zamkova Prison , and not “Berkut” effectuated previously planned ... measures aimed at findin g under g round tunnels, prohibited items, means for escape, [they] inspect ed technical and en g ineerin g security means , in presence of the Shepetivka prosecutor ... and no complaints were made.

Inmates, who at the same period of time stayed in the same cell with Mr Davydov and Mr Ilchenko have not confirmed infliction of physical injuries in their explanations , other unlawful acts on the part of [Prison] officials.

... the prisoners were provided with residential space of 2,5 square metres, everyone havin g an individual sleepin g place and linen, clothes and shoes accordin g to season.

... there were no complaints about poor medical treatment ...

... the re were no postal envelopes and pens available in the Prison shop ... ”

94 . On 15 June 2002 the Khmelnytsky Re g ional Prosecutor informed the Deputy Prosecutor General, who was reviewin g the complaints by Mr Zherdev, that an investi g ation into these complaints revealed no evidence of ill- treatment of the applicants. Mr Bukher sent letters to Mr Zherdev and prisoners Mr Ilchenko, Mr Druzenko, Mr Mironov, Mr Lytvynov and Mr Kulyk, informin g them of his resolution refusin g to initiate criminal proceedin g s.

95 . On 11 July 2002 the Deputy Prosecutor General a g ain instructed the Khmelnytsky Re g ional Prosecutor to conduct an investi g ation into these complaints. In particular, the instruction referred to a joint investi g ation into the complaints by the re g ional prosecution service, Prison Department officials, and medical staff from the re g ion and representatives of the Ombudsperson. The instruction also stated that it was necessary to investi g ate other matters, such as whether the applicants had applied for medical assistance and whether they received it, and whether they had complained to the prosecution service .

96 . On 24 July 2002 Mr Yantselovsky, a senior assistant to the Khmelnytsky Re g ional Prosecutor, questioned sixteen persons, includin g prisoners and personnel of Zamkova Prison , who all stated that no physical force had been applied to the prisoners in the course of the search conducted on 29 January 2002. Mr Ilchenko and a prisoner Mr Pavlysyk refused to g ive evidence concernin g the complaints.

97 . On 6 Au g ust 2002 the Actin g Prosecutor of the Khmelnytsky Re g ion informed the Deputy Prosecutor General that Mr Zherdev ' s complaints were unsubstantiated. The investi g ation file had been transferred to the General Prosecutor ' s Office for examination.

6 . Documentary evidence concernin g the investi g ation by the Prison Department

98 . On 15 October 2001 Mr S.I. Skokov, the head of the department for educational, social and psycholo g ical work with prisoners , informed the First Deputy Head of the State Prison Department that the applicants ' complaints were un g rounded. This information was provided in reply to request from the First Deputy Head of the State Prison Department and on the basis of the investi g ation report produced by Lieutenant Danovsky , an inspector from the department for educational, social and psycholo g ical work with prisoners , who inspected Zamkova Prison in person from 3 to 4 October 2001. The report contained no review of medical evidence and was lar g ely based on the fact that trainin g of 30 May 2001 was conducted lawfully as it was based on a lawful decision to conduct this trainin g and was supervised by the special prosecutor Volkov. The report also referred to the first and second applicants ' personal files. It mentioned that the first and second applicants , were dan g erous criminals and the first applicant ( Mr Davydov ) was complainin g frequently to the authorities.

7 . Review of the c omplaints lod g ed by Mr Zherdev with the Governor of Zamkova Prison

99 . From Au g ust 2002 to 4 May 2006 the applicants ' then representative Mr Zherdev unsuccessfully complained to various authorities, includin g the General Prosecutor ' s Office, about various interferences with the applicants ' correspondence. He also raised various issues concernin g the applicants ' poor conditions of detention, ill- treatment in 2002- 2005 and violations of their ri g hts.

100 . On 14 April 2003 the Governor of Zamkova Prison Mr Sne g ir, in reply to the letter of Mr Zherdev, stated that none of the prisoners concerned (includin g Mr Druzenko, Mr Gomenyuk and Mr Ilchenko) had ever requested an application form from him to institute proceedin g s before the European Court of Human Ri g hts. Furthermore, he stated that the prisoners were servin g their sentence a ccordin g to the relevant law provisions and no violations were found on the basis of his complaints. He attached to his letter standard letter s with statements from Mr Ilchenko, Mr Druzenko, Mr Kulyk, Mr Myronov, Mr Martov and Mr Kuzmenko, all dated 1- 5 April 2003, in which they mentioned that they no lon g er wished to correspond with Mr Zherdev and that they had no complaints about the two trainin g events, Zamkova Prison and its officers. He further mentioned that the prisoners Mr Ilchenko, Mr Druzenko and Mr Gomenyuk were held in sin g le occupancy cells.

II . RELEVANT DOCUMENTS ADOPTED BY THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE

A. Recommendation No. R (82) 17 of the Committee of Ministers to the Member States concernin g Custody and Treatment of Dan g erous Prisoners

“... Recommends the g overnments of member states:

1. to apply, as far as possible, ordinary prison re g ulations to dan g erous prisoners;

2. to apply security measures only to the extent to which they are necessarily required;

3. to apply security measures in a way respectful of human di g nity and ri g hts;

4. to ensure that security measures take into account the varyin g requirements of different kinds of dan g erousness;

5. to counteract, to the extent feasible, the possible adverse effects of reinforced security conditions;

6. to devote all necessary attention to the health problems which mi g ht result from reinforced security;

...

8. to have a system for re g ular review to ensure that time spent in reinforced security custody and level of security applied do not exceed what is required;

9. to ensure, when they exist, that reinforced security units have the appropriate number of places, staff and all necessary facilities;

10. to provide suitable trainin g and information for all staff concerned with the custody and treatment of dan g erous prisoners.”

B. The European Prison Rules (approved by Recommendation no. R(87)3 of the Committee of Ministers to the Member States)

102 . The relevant extracts from Recommendation no. R (87) 3, adopted by the Committee of Ministers on 12 February 1987, provide:

“ The basic principles

... 1. The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human di g nity and are in conformity with these rules.

... 3. The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the len g th of sentence permits, to develop their sense of responsibility and encoura g e those attitudes and skills that will assist them to return to society with the best chance of leadin g law-abidin g and self ‑ supporting lives after their release.

... 5. The protection of the individual ri g hts of prisoners with special re g ard to the le g ality of the execution of detention measures shall be secured by means of a control carried out, accordin g to national rules, by a judicial authority or other duly constituted body authorised to visit the prisoners and not belon g in g to the prison administration.

Accommodation

... 14.1. Prisoners shall normally be lod g ed durin g the ni g ht in individual cells except in cases where it is considered that there are advanta g es in sharin g accommodation with other prisoners.

2. Where accommodation is shared it shall be occupied by prisoners suitable to associate with others in those conditions. There shall be supervision by ni g ht, in keepin g with the nature of the institution.

15. The accommodation provided for prisoners, and in particular all sleepin g accommodation, shall meet the requirements of health and hy g iene, due re g ard bein g paid to climatic conditions and especially the cubic content of air, a reasonable amount of space, li g htin g , heatin g and ventilation. ..

Medical services

26.1. At every institution there shall be available the services of at least one qualified g eneral practitioner. The medical services should be or g anised in close relation with the g eneral health administration of the community or nation. They shall include a psychiatric service for the dia g nosis and, in proper cases, the treatment of states of mental abnormality.

2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishin g s and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be a staff of suitably trained officers.

... 29 . The medical officer shall see and examine every prisoner as soon as possible after admission and thereafter as necessary, with a particular view to the discovery of physical or mental illness and the takin g of all measures necessary for medical treatment; the se g re g ation of prisoners suspected of infectious or conta g ious conditions, the notin g of physical or mental defects which mi g ht impede resettlement after release; and the determination of the fitness of every prisoner to work.

30.1. The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.

2. The medical officer shall report to the director whenever it is considered that a prisoner ' s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment.

Discipline and punishment

33. Discipline and order shall be maintained in the interests of safe custody, ordered community life and the treatment objectives of the institution.

... 35. The followin g shall be provided for and determined by the law or by the re g ulation of the competent authority:

a. conduct constitutin g a disciplinary offence;

b. the types and duration of punishment which may be imposed;

c. the authority competent to impose such punishment;

d. access to and the authority of the appellate process.

36.1. No prisoner shall be punished except accordin g to the terms of such law or re g ulation, and never twice for the same act.

2. Reports of misconduct shall be presented promptly to the competent authority who shall decide on them without undue delay.

3. No prisoner shall be punished unless informed of the alle g ed offence and g iven a proper opportunity of presentin g a defence.

... 37. Collective punishments, corporal punishment, punishment by placin g in a dark cell, and all cruel, inhuman or de g radin g punishment shall be completely prohibited as punishments for disciplinary offences.

38.1. Punishment by disciplinary confinement and any other punishment which mi g ht have an adverse effect on the physical or mental health of the prisoner shall only be imposed if the medical officer after examination certifies in writin g that the prisoner is fit to sustain it.

2. In no case may such punishment be contrary to, or depart from, the principles stated in Rule 37.

3. The medical officer shall visit daily prisoners under g oin g such punishments and shall advise the director if the termination or alteration of the punishment is considered necessary on g rounds of physical or mental health.

Information to, and complaints by, prisoners

41.1. Every prisoner shall on admission be provided with written information about the re g ulations g overnin g the treatment of prisoners of the relevant cate g ory, the disciplinary requirements of the institution, the authorised methods of seekin g information and makin g complaints, and all such other matters as are necessary to understand the ri g hts and obli g ations of prisoners and to adapt to the life of the institution.

2. If a prisoner cannot understand the written information provided, this information shall be explained orally.

42.1. Every prisoner shall have the opportunity every day of makin g requests or complaints to the director of the institution or the officer authorised to act in that capacity.

2. A prisoner shall have the opportunity to talk to, or to make requests or complaints to, an inspector of prisons or to any other duly constituted authority entitled to visit the prison without the director or other members of the staff bein g present. However, appeals a g ainst formal decisions may be restricted to the authorised procedures.

3. Every prisoner shall be allowed to make a request or complaint, under confidential cover, to the central prison administration, the judicial authority or other proper authorities.

4. Every request or complaint addressed or referred to a prison authority shall be promptly dealt with and replied to by this authority without undue delay.

Personnel

... 63.1. Staff of the institutions shall not use force a g ainst prisoners except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or re g ulations. Staff who have recourse to force must use no more than is strictly necessary and must report the incident immediately to the director of the institution.

2. Staff shall as appropriate be g iven special technical trainin g to enable them to restrain a g g ressive prisoners.

3. Except in special circumstances, staff performin g duties which brin g them into direct contact with prisoners should not be armed. Furthermore, staff should in no circumstances be provided with arms unless they have been fully trained in their use.

... Treatment objectives and re g imes

64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison re g imes shall not, therefore, except as incidental to justifiable se g re g ation or the maintenance of discipline, a g g ravate the sufferin g inherent in this.

65. Every effort shall be made to ensure that the re g imes of the institutions are desi g ned and mana g ed so as:

a. to ensure that the conditions of life are compatible with human di g nity and acceptable standards in the community;

b. to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners; ...

... 71.1. Prison work should be seen as a positive element in treatment, trainin g and institutional mana g ement.

2. Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer.

... Additional rules for special cate g ories

90. Prison administrations should be g uided by the provisions of the rules as a whole so far as they can appropriately and in practice be applied for the benefit of those special cate g ories of prisoners for which additional rules are provided hereafter.”

C . Committee of Ministers Recommendation “Concernin g Prison Overcrowdin g and Prison Population Inflation” (Appendix to Recommendation no. R (99) 22)

“... II. Copin g with a shorta g e of prison places

... 7. Where conditions of overcrowdin g occur, special emphasis should be placed on the precepts of human di g nity, the commitment of prison administrations to apply humane and positive treatment, the full reco g nition of staff roles and effective modern mana g ement approaches. In conformity with the European Prison Rules, particular attention should be paid to the amount of space available to prisoners, to hy g iene and sanitation, to the provision of sufficient and suitably prepared and presented food, to prisoners ' health care and to the opportunity for outdoor exercise. ...”

I I I . REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT REPORTS)

A. CPT Report concernin g the 1999 visit to Ukraine

104 . The Report to the Government of Ukraine concernin g the visit undertaken from 15 to 23 July 1999 by the CPT states that the prisoners of the Kharkiv SIZO and Prison no. 85 complained to the members of the CPT about physical violence and the destruction of personal objects by hooded officers from a special detachment (the report referred to “Spetsnaz” or special force s ) which re g ularly intervened in Prison no. 85 ( §§ 25-26, with re g ard to “Ill-treatment”). Physical violence had been applied to the prisoners held in disciplinary detention. The report mentioned that the Ukrainian authorities reco g nised the existence of a special forces operatin g under the auspices of the Re g ional Prison Department. They claimed that this unit was involved in supervisory searches in the cells. The aim had been to prevent acts contrary to the law.

B. CPT Report concernin g the 2000 visit to Ukraine

105 . The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or De g radin g Treatment or Punishment (CPT) from 10 to 26 September 2000 read as follows:

“... 2. Ill-treatment

62. In Vinnytsia Prison No. 176 ... Alle g ations were also heard concernin g interventions of teams from the Re g ime and Protection Department; prisoners stated that they have been stripped to their underpants by members of such teams and, sometimes, dra g g ed out of their cell and beaten. On examination by a medical member of the dele g ation, one prisoner was found to have a healed whitened 6 cm lon g by 1 cm wide scar on his back, consistent with his alle g ation of havin g been beaten with rubber batons durin g the previous New Year period. Further, it was alle g ed that durin g the weekly searches, the cells were turned upside down and that, occasionally, especially at ni g ht, teams would use a Rottweiler do g to ensure that cells were rapidly cleared of their occupants.

63. The CPT recommends that the authorities at all levels (central, re g ional and local) deliver the clear messa g e that all forms of ill-treatment of prisoners are not acceptable and will, if they occur, be severely punished.

Further, the CPT recommends that the Ukrainian authorities carry out a thorou g h enquiry into the methods used at Vinnytsia Prison No. 176 by teams from the Re g ime and Protection Department, durin g their interventions in the establishment. It would also like to be informed of the results of the enquiries initiated by the Director of Simferopol SIZO No. 15 referred to in para g raph 62, as well as of any measures subsequently taken.”

C. CPT Report concernin g the 2002 visit to Ukraine

106 . The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or De g radin g Treatment or Punishment (CPT) from 24 November to 6 December 2002 read as follows:

“... 2. Ill-treatment

89. Durin g the 2002 visit, the dele g ation received no alle g ations of physical ill ‑ treatment by prison staff workin g in Prison No. 8 and SIZO No. 21.

90. However, in early April 2003, the CPT received alle g ations that, followin g its dele g ation ' s visit to SIZO No. 21, prisoners interviewed by the dele g ation had been intimidated by prison staff. It was also alle g ed that, between 5 February and 15 March 2003, hooded prison staff members had carried out searches in the prison, durin g which prisoners had been beaten because they had protested at the way in which the searches were bein g carried out (numerous objects, includin g documents concernin g proceedin g s underway, were seized).

The CPT recommends that the Ukrainian authorities carry out an independent and thorou g h investi g ation into these alle g ations, and that they inform the Committee, in due course, of the results of the investi g ation.

91. At Colony No. 14, the dele g ation received alle g ations accordin g to which, in April/May 2002, after an evenin g roll call, several hooded prison staff members, said to be drunk, had entered Sector No. 3 and had beaten prisoners from wards 11, 13 and 20 with truncheons, assisted by prisoners who were also hooded. By letter of 15 April 2003, the Ukrainian authorities submitted the conclusions of an official inquiry into these alle g ations, carried out by the local and re g ional prison administration. It emer g ed from the conclusions that the alle g ations had not been confirmed. The conclusions were based on: written declarations by prisoners in Sector No. 3 that there had been no such incidents and that they had no complaints about the prison administration; an interview with the officer responsible for Sector No. 3, a report by the head of the operational section and an examination of various re g isters kept in the prison, none of which made any mention of incidents durin g the period in question; and the absence of requests from the prosecutor ' s office for an inquiry into such incidents.

The CPT is far from convinced by this inquiry and the conclusions drawn from it. It is a wholly internal non-independent prison administration inquiry.

The CPT recommends that the Ukrainian authorities deliver to the staff of Colony No. 14 the clear messa g e that all forms of ill-treatment are unacceptable and will, if they occur, be the subject of severe sanctions.”

D. CPT Report concernin g the 2005 visit to Ukraine

107 . The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or De g radin g Treatment or Punishment (CPT) from 9 to 21 October 2005 read as follows:

“... The CPT also recommends that the Ukrainian authorities review as soon as possible the norms fixed by le g islation for livin g space per prisoner, ensurin g that these are at least 4 m² in all the establishments under the authority of the Department for the Enforcement of Sentences. .. . ”

I V . REPORT BY THE COMMISSIONER FOR HUMAN RIGHTS OF THE COUNCIL OF EUROPE

“ ... 43. Acts of torture constitute a criminal offence in Ukraine . In 2005 the Ukrainian Parliament (Verkhovna Rada), adopted laws which stren g thened the prosecution of perpetrators of torture, the respect of ri g hts of prisoners and arrested persons as well as a Law which ensured the ri g ht of prisoners to correspond with the ECtHR. This le g islative improvement is welcomed by the Commissioner but it has to be matched by proper and systematic implementation. Ukraine has ratified the European Convention for the Prevention of Torture and Inhuman or De g radin g Treatment or Punishment (CETS 126) in 1997 and its two additional protocols in 2002. The UN Convention a g ainst Torture and Other Cruel, Inhuman or De g radin g Treatment or Punishment entered into force for Ukraine in 1987.

44. Despite these achievements practically all the Commissioner ' s interlocutors, includin g heads of parliamentary political g roups, representatives of law enforcement and civil society confirmed that torture was widespread in Ukraine . ...

... 46. The penitentiary system has been removed from the competence of the Ministry of the Interior, but has never been transferred to the Ministry of Justice as required by the commitments of Ukraine taken durin g accession to the Council of Europe. The State Department for the execution of sentences was created in 1998 as the central body of the penitentiary system, with a special status subordinated to the Cabinet of Ministers. ... The penitentiary system is chronically under-funded. While appreciatin g that the State financin g has been increasin g steadily, the Commissioner ur g es the State to continue improvin g conditions of detention. ..

... 48. Overcrowdin g in the penitentiary institutions is one of the most troublesome issues. ( ... ) The Commissioner, however, did take into account and welcomed the fact that despite an important de g ree of overcrowdin g of prisons, the number of prisoners has considerably decreased. The leadership of the Department for the execution of sentences said that the number of prisoners was 209,000 in 1999 compared to 161,900 today. At the same time, the number of penitentiary institutions remained the same. ... The detention rate remains one of the hi g hest in the world and further effort is needed to cope with the serious level of overcrowdin g ...

... 49. The Commissioner noticed that many penitentiary institutions buildin g s were dilapidated and in a poor state of repair. Thus, they do not offer sanitary and other special international requirements. The prisoners the Commissioner met mostly complained about the lack of li g ht, bad ventilation systems, undernourishment, poor sanitary conditions, lack of beds and failure to separate prisoners with infectious conta g ious diseases. When visitin g detention centres in L ' viv, Odessa and Kyiv, the Commissioner was concerned that not a sin g le cell met European standards. One could see the traces of humidity on the walls. The latrines were in an appallin g state of repair spreadin g a stench throu g hout the whole cell. This environment is not only unhealthy for the prisoners , but also undermines their ri g ht to a certain de g ree of di g nity. The disciplinary cells were even worse ... ”

I V. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitution of Ukraine (28 June 1996)

109 . Under Article 8 §§ 2 and 3 of the Constitution, its provisions are directly applicable. There is a g uaranteed ri g ht to lod g e an action directly on the basis of the Constitution in defence of the constitutional ri g hts and freedoms of the individual and citizen.

110 . Under Article 55 §§ 2 and 4, everyone is g uaranteed the ri g ht to challen g e the decisions, actions or omissions of State authorities, bodies of local self- g overnment, officials and officers of a court of law. After exhaustin g all domestic le g al remedies everyone has the ri g ht to appeal for the protection of his ri g hts and freedoms to the relevant international judicial institutions or to the relevant authorities of international or g anisations of which Ukraine is a member or in which it participates.

111 . Article 63 § 3 provides that incarcerated persons enjoy all human and civil ri g hts, subject only to those restrictions determined by law and established by a court rulin g .

B. Code of Criminal Procedure

Article 4

The obli g ation to institute criminal proceedin g s and investi g ate a crime

“The court, prosecutor or investi g ator must, to the extent that it is within their power to do so, institute criminal proceedin g s in every case where evidence of a crime has been discovered, take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them.”

Article 25

Supervision by the prosecutor in criminal proceedin g s

“... The prosecutor shall carry out his or her functions in criminal proceedin g s in compliance with the laws and re g ulations ... and independently of an y state bodies and officials... ”

Article 94 Grounds for institutin g criminal proceedin g s

“Criminal proceedin g s shall be instituted on the followin g g rounds:

(1) applications or communications from enterprise s , institutions, or g anisations, officials, representatives of official bodies, public and individuals;

( 2) communications from the representative s of authorities, public or individual citizens, who have apprehended the suspect in the place where the crime was committed or cau g ht red handed ;

( 3) acknowled g ement of g uilt ;

( 4) information published in the media ;

(5) direct detection of si g ns of a crime by a body of inquiry or investi g ation, a prosecutor or a court.

A case may be instituted only when there is sufficient evidence that a crime has been committed.”

Article 97

Obli g ation to accept applications or communications with re g ard to crimes and the procedure of their examination

“ A p rosecutor, investi g ator, body of inquiry or a jud g e shall be obli g ed to accept applications or communications as to the committed or prepared crimes, includin g in cases that are outside their competence.

Followin g an application or communication about a crime the prosecutor, investi g ator, body of inquiry or a jud g e shall be obli g ed, within the three-day time limit, adopt one of the followin g decisions:

( 1) to institute criminal proceedin g s ;

( 2) to refuse to institut e criminal proceedin g s ;

( 3) to remit the application or communication for further examination accord in g to jurisdiction .

Simultaneously, all possible measures shall be applied to prevent further crime or to discontinue pendin g crime . ... Measures of protection shall be applied to ensure security of the person who informed about a crime ... a g ainst real dan g er to life ...

In the event there is necessity to examine the information or communication about crime, before initiatin g criminal proceedin g s , such an examination shall be conducted by a prosecutor, investi g ator or body of inquiry, within the time-limit of ten days, by means of g atherin g explanations from separate citizens or officials or by means of withholdin g necessary documents.

Application or communication with re g ard to crime, before the criminal proceedin g shall be initiated, shall be reviewed by means of search and seizure measures . Conduct of specific search and seizure acts , determined by le g islative acts of Ukraine , effectuated upon a g reement with the court, on the basis of approved by a prosecutor request of the head of the respective operative department or his deputy. Resolution of the court authorisin g [such acts] shall be adopted and can be appealed a g ainst accordin g to a procedure and in circumstances, specified in Articles 177 [ search in premises for documents or objects ] , 178 [seizure of documents or objects] and 190 [examination of locality , premises , objects and documents . ] of this Code.”

Article 99 -1

Challen g in g decisions on refusal to initiate criminal proceedin g s

“... A resolution by investi g ator or body of inquiry refusin g to initiate criminal proceedin g s can be appealed to the relevant prosecutor and if that rulin g was issued by the prosecutor to the hi g her prosecutor. An appeal shall be lod g ed by the person whose interests are infrin g ed or by his/her representative within seven days from the date of receipt of the rulin g .

A resolution by investi g ator or body of inquire refusin g to initiate criminal proceedin g s can be appealed by a person whose interests are infrin g ed or by his/her representative to court under procedure prescribed by Article 236-1 of this Code.

A resolution by a court on refusal to initiate criminal proceedin g s can be appealed by person whose interests are infrin g ed or by his/her representative to the hi g her court within seven days from the date of its receipt... ”

Article 236 - 1

Challen g in g resolution on refusal to initiate criminal proceedin g s in the court

“ Complaints a g ainst the resolution of the body of enquiry, investi g ator, prosecutor refusin g to initiate criminal proceedin g s shall be lod g ed with the district (city) court ... by the person whose interests are touched upon, or a representative of that person, ... within seven days from its receipt or information g iven by the prosecutor that he refused to quash the resolution. ”

Article 236 - 2

Judicial examination of the challen g e a g ainst the resolution refusin g to institute criminal proceedin g s

“ Complaints a g ainst the resolution of the prosecutor , investi g ator or body of inquiry refusin g to institute criminal proceedin g s shall be examined by a sole jud g e within a period of ten days from the moment the case-file arrives at the court.

The jud g e shall request relevant materials on which the refusal to initiate criminal proceedin g s was based , examine them and inform the prosecutor and the complainant about the date it will be examined. If necessary a jud g e shall hear explanations of a person who lod g ed the complaint. A verbatim record of a hearin g shall be concluded.

... a jud g e shall take one of the followin g decisions :

1) to quash the resolution refusin g to initiate criminal proceedin g s and return the case-file materials for additional examination ;

2) to reject the complaint .

The resolution of a jud g e shall be appealed a g ainst to the court of appeal within seven days from the moment it was adopted by a prosecutor or a complainant .

A copy of the jud g e ' s resolution shall be sent to a person , who adopted the contested resolution , prosecutor and a person, who lod g ed the complaint . ”

113 . Accordin g to the practice of the domestic courts, a review of a prosecutor ' s resolution to refus e to institute criminal proceedin g s was limited to a review of compliance with procedural and substantive g rounds for such a refusal ( приводи та п ідстави для порушення кримінальної справи ) . In particular, the procedural g rounds which would be reviewed were those enumerated in Article 9 4 of the Code of Criminal Procedure . The substantive g rounds were those set out in Article 4 of the Code ( see, amon g other sources , jud g ment 30 January 2003 g iven by the Constitutional Court in case no. N 1-12/2003 ; Plenary Supreme Court Resolution of 11 February 2005 , in force until 21 December 2007) . Inactivity of the body of enquiry, investi g ator or prosecutor resultin g in a decision not bein g taken under Article 97 § 2 of the Code of Criminal Procedure could be appealed accordin g to the procedure established in Chapter 31- А of the Code of Civil Procedure (Plenary Supreme Court Resolution of 11 February 2005 , cited above ) .

C. Correctional Labour Code of Ukraine ( Виправно-трудовий кодекс України ), in force until 1 January 2004

114 . Accordin g to Article 10 of the Code, the officials of penitentiary institutions and the prisoners held therein shall comply with the law.

115 . The correctional labour institutions enforcin g prison sentences were correctional labour colonies, prisons and educational labour colonies. Adults were to serve their sentences in a correctional labour colony or a prison (Article 12 of the Code). The types of correctional labour colony, classified accordin g to the de g ree of security of the re g ime, included: colony-settlements for persons who committed reckless criminal acts, and g eneral re g ime, reinforced re g ime, strict re g ime and special re g ime colonies (Article 13 of the Code). The type of penitentiary institution and the particular detention re g ime were to be determined by the Prison Department (Article 19 of the Code). A convict was to be transferred to the relevant correctional labour institution within ten days of the date on which the jud g ment in a criminal case became final (Article 20 of the Code). This provision indicated that every convicted person was to have a personal file.

116 . Under Article 28 of the Code, the principal characteristics of the re g ime in penal institutions were: compulsory isolation and permanent supervision, so as to avert any possibility of crimes or other acts a g ainst public order bein g committed by the prisoners ; strict and continuous observance of obli g ations by these persons; and various detention conditions dependent on the character and g ravity of the offence and the personality and behaviour of the prisoner . In particular, those servin g their sentences were obli g ed to wear a uniform. They were subjected to searches; body searches were to be conducted by persons of the same sex as the person searched. Correspondence was subjected to censorship, and parcels and packa g es we re subjected to openin g and verification. A strict internal routine and rules were to be observed in correctional labour institutions.

118 . Accordin g to Article 44 of the Code, prisoners had the ri g ht to submit proposals, make statements and lod g e complaints with State bodies, non- g overnmental or g anisations and officials. These had to be sent in accordance with the penitentiaries ' Internal Rules and were to be examined a ccordin g to the procedure established by law. Complaints addressed to the Ombudsperson and the prosecutor ' s office were to be dispatched within one day of their receipt. The prisoners were to be duly informed of the results of examination of their proposals, complaints and statements. ( Followin g introduction of a new Code on 11 July 2003 , which replaced Correctional Labour Code as from 1 January 2004, and further chan g es introduced to Article 113 of the Code on the Enforcement of Sentences on 1 December 2005 and O rder no. 275, adopted by the State Department for the Enforcement of Sentences on 25 December 2003, correspondence sent to the European Court of Human Ri g hts can no lon g er be reviewed. However, Article 113 § 3 of the Code establishes that as a g eneral rule all correspondence shall be subject to review ) .

119 . I n Article 47 of the Code, “malicious violation of the re g ime” was defined as a prisoner ' s failure to comply with the lawful demands of the administration; unsubstantiated refusal to work (more than three times durin g the year), bearin g in mind that work was mandatory for all prisoners as stipulated by Article 49 of the Code; the consumption of alcohol, dru g s or other substances; the production, stora g e, purchase and distribution of prohibited items; g amblin g ; minor hooli g anism; systematic avoidance of treatment for conta g ious diseases (active tuberculosis, venereal disease, etc.). The findin g that an prisoner was a “malicious violator of the re g ime” led to sanctions for infrin g ements of the detention re g ime, provided that such sanctions were imposed on the basis of a resolution or order of the respective superior and were not declared null and void by a court decision. Also, the work performed by the prisoners was to comply with the task of their rehabilitation and re-education (Article 49 of the Code).

120 . By virtue of Article 71 of the Code, the Governor of the Prison , his deputy, the head of the department for social-psycholo g ical work, the senior instructor and instructors in the correctional labour colony had the ri g ht to impose disciplinary sanctions on prisoners . Such sanctions were to correspond to the factual circumstances and g ravity of the offence. Previous disciplinary sanctions and the prisoner ' s explanations were to be taken into account. Sanctions were to be enforced immediately after bein g imposed and the prisoner had the ri g ht to appeal a g ainst them to the hierarchical superior, which did not prevent enforcement of the sanction (Article 68 of the Code). Disciplinary sanctions included: prohibition on receivin g parcels and, for the course of one month, on buyin g food in the prison shop; annulment of improved conditions of detention; placement in the SHIZO, with or without participation in work; or placement of the prisoner in solitary confinement isolation ward ( карцер ). A chan g e of the re g ime for servin g one ' s sentence was to be carried out on the basis of a substantiated decision of the Prison Governor, approved by the penitentiary ' s supervisory board. Other disciplinary sanctions were imposed on the basis of a written or verbal order by the Governor.

121 . Under Article 74 of the Code, prisoners had to be held in conditions that corresponded to basic sanitary and hy g iene standards. Inmates in correctional labour colonies had to be allowed at least 2 m 2 floor space per person. Penitentiary institutions had to ensure that le g al aid and necessary medical treatment were provided to prisoners (Article 76 of the Code).

122 . Accordin g to Article 81 of the Code, in the event of physical resistance to officers of correctional labour institutions, rampa g e or other violent acts, prisoners were to be subjected to means of restraint such as handcuffs, a restraint jacket ( гамівна сорочка ), rubber truncheons, tear g as and other special means of restraint, as provided for by Article 14 of the Police Act, in order to prevent injuries to themselves or others. Physical measures were to be applied only where it was impossible to use other means of restraint, could not exceed the measures necessary for execution of tasks by the administration and were to be imposed in such a way as to minimise the dama g e to the offender ' s health. The administration of the penitentiary was to provide victims with any necessary medical assistance without undue delay.

123 . Article 82 of the Code allowed the use of weapons in exceptional circumstances and if other means did not facilitate attainment of the desired result, if a prisoner attacked or inflicted another intentional life-threatenin g act on a penitentiary employee or other persons. Every instance of the use of weapons had to be communicated to the prosecutor.

124 . Accordin g to Article 128 of the Code, employees of the penitentiary institutions who acted brutally towards the prisoners or whose acts infrin g ed prisoners ' human di g nity were to be subjected to disciplinary or criminal liability. A penitentiary employee who committed a disciplinary offence for a second time was to be dismissed.

D . The Prosecution Service Act, 5 November 1991 (in force at the material time)

125 . Under section 12(1) of the Prosecution Service Act, the public prosecutor was to deal with petitions and complaints concernin g breaches of the ri g hts of citizens and le g al entities, with the exception of complaints that fell within the jurisdiction of the courts. Subsection 4 provided that an appeal a g ainst a prosecutor ' s decision was to be lod g ed with the hierarchically superior prosecutor or a court. Subsection 5 provided that the Prosecutor-General ' s decision was final.

126 . Under section 44(1), the matters subject to the public prosecutor ' s supervision were to extend to the followin g areas: adherence to the le g al rules on correctional labour or supervision of those establishments responsible for the enforcement of sentences or coercive measures ordered by a court; adherence to the procedures and conditions for holdin g or sanctionin g persons in such establishments; the ri g hts of such persons; the manner in which the relevant authorities carried out their duties under the criminal law; and compliance with the le g islation on the enforcement of sentences. The public prosecutor could at any time visit establishments where prisoners were servin g their sentences, in order to conduct interviews or consult documents; he or she could also examine the le g ality of orders, resolutions and decrees issued by the administrative authorities of such institutions, terminate the implementation of sanctions or measures imposed on prisoners , appeal a g ainst such sanctions or measures or annul them if they did not comply with the law, and request officials to g ive explanations concernin g breaches.

E . Orders of the State Prison Department

1. Internal Prison Rules for the Correctional Labour Colonies (in force at the material time)

127 . The Internal Prison Rules ( Правила внутрішнього розпорядку виправно-трудових установ ) were approved by Order no. 110 of the State Prison Department on 5 June 2000. The “Rules” were subsequently modified and remained in force until 25 December 2003. They may be summarised as follows.

128 . By Rule 1.1 of the Rules, they were to provide g uidance for the enforcement and servin g of sentences, Accordin g to the le g islation in force. The rules were to be bindin g on all correctional labour institutions or medical institutions attached to them (Rule 1.2).

129 . Accordin g to Rule 12.3, sin g le occupancy cells in the special-re g ime correctional labour colonies and solitary confinement cells were not to measure less than 3 m 2 . Windows in prisons and in PKT or cell-type premises in correctional labour colonies were to be 1.3 - 1 .4 m in width and 1.15–1.2 m in hei g ht, and those in SHIZO, DIZO and solitary confinement cells were to be 0.5 m by 0.9 m. Windows were to be equipped with external steel g ratin g or metal shutters and protected by internal g ratin g s. Floors were to be constructed from concrete and covered with wooden plankin g . Walls were also to be made out of concrete and covered with white paint (Rule 12.4). The doors to the cells were to be 6 cm thick, covered by sheet steel and reinforced by metal an g les around the entire perimeter. The centre of the doors was to have an openin g for supervision of the prisoners . The middle of the door was to have an openin g measurin g 18 x 22 cm and 95 cm from the floor, for the transfer of food, books, etc. Doors were to open into the corridor and be kept locked (Rule 12.5). Cells in correctional labour colonies with g eneral, reinforced, strict and special re g imes, and in the SHIZO and DIZO were to be equipped with additional internal doors made from round metal rods and transversal metal bars.

130 . Under Rule 12.10, cells in SHIZO , DIZO, solitary confinement cells and sin g le occupancy cells in special re g ime colonies were to be equipped with foldin g beds, which were to be lifted and locked in place from the wake-up bell until li g hts out, and other necessary furniture.

131 . Accordin g to Rule 16.1 the relationship between prisoners and employees of penitentiary institutions was to be based on strict compliance with the law. Under Rule 16.3, prisoners were to fully comply fully with the demands of the penitentiary staff.

132 . Accordin g to Rule 17.3, prisoners were prohibited from sendin g and receivin g correspondence in any manner contrary to the procedure established by these Rules.

133 . By Rule 20.1, the staff w ere to remain in the penitentiary in the event of complications in the operative circumstances in the correctional labour colony; a duty roster was to be or g anised for the staff.

134 . Under Rules 31.1-31.5, prisoners were entitled to send letters a ccordin g to the norms established by the Correctional Labour Code. Letters and complaints were to be sent only throu g h the correctional labour institution ' s administration . Special mailboxes were to be installed on the territory of the penitentiary and were to be opened on a daily basis by specially desi g nated persons. Prisoners incarcerated in prison re g ime and in cell-type premises were to forward their letters throu g h the representatives of the prison . Letters were to be dropped into the mailboxes or transferred to representatives of the administration unsealed. Inmates ' letters which used a secret lan g ua g e or script or other conventions, or those that were cynical in nature or contained information that was not be disseminated were not to be sent to the addressee, and the prisoner was to be duly informed.

135 . Accordin g to Rules 33.1.-33.9, prisoners were to submit their complaints orally or in writin g . Written complaints were to be addressed to the administration of the correctional labour colony. Inmates were to be provided with paper and a pen in order to set out their complaints in writin g . Complaints which could be examined by the prison administration immediately, without bein g sent to other institutions or or g anisations, were to be examined without delay. Complaints addressed to state institutions and NGOs and their officials were to be sent with an accompanyin g letter, settin g out the penitentiary ' s assessment of them. Complaints sent to the Ombudsperson or prosecutors were not subject to review and were to be sent to the addressees within a day of their receipt. In the event of the repeated submission of a complaint, the administration was to state in its cover letter which body had examined the previous complaint and to provide the results of their examination. Complaints which were referred to a body that was not competent to examine them were not to be sent, and the prisoner was to be g iven a recommendation to send his or her complaints to a competent body. If the prisoner insisted, however, the complaints were to be sent to the desi g nated institution. Complaints containin g obscene or prohibited expressions were not to be sent to the addressees and the persons who submitted them were to be discipline d . Complaints submitted in writin g were to be re g istered with the colony ' s secretariat sent to the addressees within three days. Oral complaints were also to be re g istered in a special re g ister. Replies to the complaints were to be announced to prisoners within three days and attached to the prisoners ' personal files. The prisoners were to bear the costs of sendin g complaints. If the prisoner was unable to pay, however, the expenditure for sendin g complaints was to be borne by the penitentiary.

136 . By virtue of Rules 44.1 - 44.4, the examination and search of the prisoners and of the premises and territories of residential and industrial zones of correctional labour colonies w ere to be conducted a ccordin g to the procedure established by the State Prison Department. It was prohibited to dama g e linen, clothes, belon g in g s and other objects without unless it was necess ary . Searches in the residential and industrial zones were to be conducted a ccordin g to the scheduled plan. A document was to be drawn up on the basis of the search results. The time frame for searches was to be established by the penitentiary ' s administration.

137 . Accordin g to the Rule 49, the Prison duty officer was to record every instance of use of the measures of special restraint, such as handcuffs, restraint jacket, special g ear and firearms in a special re g ister.

138 . Under Rule 69, the placement of a prisoner in the SHIZO, DIZO or solitary confinement cell of isolation ward (“sin g le occupancy cells”) was to be effectuated on the basis of a resolution of the Governor (in certain instances a duty officer), based on explanations by the prisoner and a medical report on the prisoner ' s ability to be held in such a cell. Inmates placed in the SHIZO, DIZO or solitary confinement cells were to be fully searched. They were allowed certain essential sanitary and personal hy g iene items and a chan g e of clothes. Inmates held in these cells were prohibited from meetin g relatives, could not receive parcels and were not allowed to buy food and essential items. They were not allowed to play table g ames, send letters or smoke. They were fully responsible for maintainin g order in the cells in which they were detained. The prisoners could not leave the SHIZO, DIZO or solitary confinement cells before expiry of the term of disciplinary punishment, except for medical reasons. After servin g the disciplinary punishment the prisoner was to be immediately released from the disciplinary cell by the duty officer or his deputy, in the presence of the head of the department.

139 . Accordin g to Rule 70, prisoners who were held in disciplinary cells were not entitled to wear warm outer clothin g , but could have them only when they le ft the premises. The bed linen was to be provided only at bedtime. Inmates held in DIZO cells were to be allowed a one-hour daily walk, while those held in SHIZO and sin g le occupancy cells were to have only a thirty-minute walk.

140 . Under Rule 74, Governors of penitentiary institutions, their deputies, heads of departments and services were periodically to visit the SHIZO, DIZO, and solitary confinement cells and the cell-type premises in the g eneral, enforced and strict re g ime colonies, and sin g le occupancy cells in the special re g ime colonies. They were to examine the conditions of detention in them and take measures to eliminate any shortcomin g s found.

141 . Accordin g to Rule 77, correctional labour facilities were to provide two types of medical assistance: clinical medical examinations and supervision of prisoners for the purpose of evaluatin g their health and, if an illness was discovered, applyin g therapy and restorin g their workin g capacity; and outpatient medical treatment and in-patient g eneral and specialised treatment, a ccordin g to the means and methods recommended by the Ministry of Health . I ndividuals arrivin g in correctional labour institutions were to under g o a mandatory medical examination, the results of which were recorded in the prisoners ' medical files.

2 . Order no. 167 of the State Prison Department of 10 October 2005 “On Approval of the Re g ulations on the Special Taskf orce Units”

142 . Order no. 167 provided, inter alia , that a special unit could participate in the search and inspection of penitentiary institutions and prisoners . It could also be involved in special actions relatin g to riots, mass disobedience, the takin g of hosta g es and other extraordinary circumstances. ( The Order and the Re g ulation were in force from 10 October 2005 to 26 December 2007, when the Order ' s re g istration was annulled by the Ministry of Justice of Ukraine with effect from 14 January 2008 . This Order and Re g ulation replaced the previous Order no. 163 of 8 September 2003 “On creation of special units of the system of enforcement of sentences , approval of staffin g needs and Re g ulations on these units”, which was not publicly accessible ). Accordin g to expert opinion no. 15/88 of the Ministry of Justice and the opinion of the Secretariat of the A g ent of the Government of Ukraine before the European Court of Human Ri g hts, Order no. 167 and the Re g ulations approved by it did not comply with the European Convention on Human Ri g hts and Fundamental Freedoms and the case-law of the European Court of Human Ri g hts.

F . The 2004 report of the Commissioner for Human Ri g hts of the Parliament of Ukraine

143 . The 2004 report notes, in g eneral, the use of the special force s by the Prison Department for actions within penitentiary institutions ( відпрацювання установ ) and for searches conducted in them. The Commissioner stated that the practice of usin g such units could be equated to torture. In particular, the report stated that prisoners were forced out of their cells, beaten with truncheons, had to lie on the floor, were put in the “ roztyazhka ” ( розтяжка ) position (i.e. “ spreadea g led ” or in a position whereas a person stood with his arms a g ainst the wall and le g s stretched wide apart ; s ee para g raph 13 of the Annex to the jud g ment ) durin g searches and were forced to sit ( навприсядки ) with their hands behind their heads while waitin g for their turn to be searched. Inmates were forced to remain stretched out for a couple of hours and to swear that they would not violate the re g ime and would cooperate with the penitentiary administration. The fact of use of such units was discovered in Prison no. 78 of the Khmelnytsky re g ion . The report g enerally notes that the main purpose of these searches was in reality to demonstrate force rather than to find prohibited items. It also referred to the problematic situation with re g ard to overcrowdin g in prisons and penitentiary institutions in Ukraine . However, the report provided no information as what actions were undertaken by the authorities on the basis of these findin g s .

THE LAW

I. PRELIMINARY CONSIDERATIONS

144 . The Court recalls that in its admissibility decision of 15 January 2007 , adopted in the present case, it declared the applicants ' complaints under Articles 3, 8, 13 and 34 admissible. It also decided that the Government ' s request to strike the complaints lod g ed by ten applicants out of the Court ' s list of cases and their objection as to the exhaustion of domestic remedies (see para g raph 5 above) should be joined to the merits.

145 . It further notes that, after declarin g the applications admissible, the Court decided to conduct and did conduct a fact-findin g mission in order to establish the facts of the case , which were in dispute between the parties. A fter the mission, the parties lod g ed additional submissions as to the admissibility and merits of the applicants ' complaints. In particular, in their written submissions, the Government asked the Court to find that the applicants ' alle g ations were unsubstantiated and that there had been no violation of the Convention. The applicant s disa g reed with the Government and asked the Court to find violations of Articles 3, 8, 13 and 34 of the Convention and to award them just satisfaction under Article 41.

146 . The Court considers that, takin g into account the procedural developments in the case, the matters raised above should be examined in the followin g order:

– firstly , it must decide on the scope of the case, where it shall rule on the Government ' s request to strike the applications out from the list of cases;

– secondly , it must establish the facts of the present case and assess evidence presented by the parties , obtained by it as a result of the fact-findin g mission;

– thirdly , it must examine the merits of the applicants ' complaints and rule on the Government ' s objection as to the exhaustion of domestic remedies, which was joined to the merits .

II. THE SCOPE OF THE CASE

A . The parties ' submissions

147 . The Government submitted that only the first, second and third applicants had standin g before the Court. In particular, they stated that the remainder of the applications should be struck out of the list of cases as the other ten applicants and/or their heirs had lost their interest in pursuin g them . In particular, they mentioned that the fourth and fifth applicants had been released from servin g their sentences and their whereabouts were not known. Also, Mr Kisel e v and Mr Kuzmenko had been transferred to other penitentiaries and apparently did not wish to maintain their applications. Furthermore, the sixth applicant had died in 2004 on account of illness, and he had no successor in respect of the claims submitted to the Court.

148 . The applicants ' representatives initially submitted that the fourth applicant ' s complaints should not be struck out of the Court ' s list of cases unless there was an unequivocal confirmation from him that he did not intend to pursue his application. They alle g ed that no such information was available and therefore strikin g the fourth applicant ' s complaints out of the list of cases would run contrary to “respect for human ri g hts as defined in the Convention and the Protocols thereto” (Article 37 § 1 of the Convention in fine ). As to the other nine applicants, they disa g reed with the Government and requested the Court not to strike their applications out unless the Court received full factual and le g al information on their complaints directly from the applicants or their relatives and heirs.

B . The Court ' s assessment

149 . The Court notes, takin g into account that the case was declared admissible on 15 January 2007 and the fact-findin g hearin g in Khmelnytsky or g anised in June 2007, that applicant Mr Druzenko was summoned on 30 May 2007 to appear before the Dele g ates and failed to respond to any of the written requests made by the Re g istry. The information requests included letters sent to applicants Mr Kulyk, Mr Mironov, Mr Litvinov, Mr Kuzmenko, Mr Kiselev and Mr O. Didenko on 13 April 2007, by which the Re g istry asked them to provide it with a name of their representative. As to Mr Salov, the Court notes that he had died and that his possible heirs, whose whereabouts were unknown to the Court and the parties, failed to express an interest in pursuin g the application.

150 . As to the applications lod g ed by Mr L. Shvets and Mr Martov, their whereabouts were unknown to the Court and the parties. These applicants had also failed to maintain their ori g inal applications lod g ed with the Court by Mr Zherdev on their behalf. In particular, Mr Martov had not corresponded with the Court or his ori g inal representative Mr Zherdev since 1 April 2003, when he had informed the latter in writin g that he had no complaints in relation to Zamkova Prison and the conditions in which he was servin g his sentence. Mr Shvets ' s whereabouts were unknown and he had lod g ed no complaints with the Court since the ori g inal submission by his representative Mr Zherdev.

151 . In these circumstances, takin g into account the lack of reaction of the applicants in respondin g to the Re g istry ' s requests and complyin g with the requests to appoint a representative, the summons of the Court to appear at a hearin g of oral evidence (see para g raph s 149 - 150 above) and the absence of a n indication that they themselves or their heirs wished to pursue their applications before it, the Court concludes that it is no lon g er justified to continue the examination of the ten applications lod g ed by the applicants Mr Druzenko, Mr Kulyk, Mr Mironov, Mr Litvinov, Mr Kuzmenko, Mr Kiselev, Mr O. Didenko, Mr Salov, Mr Shvets and Mr Martov, within the meanin g of Article 37 § 1 (c) of the Convention.

152 . T he Court is concerned that the complaints raised by the ten applicants above related to alle g ations of serious breaches of the obli g ations under the Convention. However, it notes that the issues arisin g from the complaints of these ten applicants lar g ely overlap with those of the first three applicants . It considers that there is therefore no risk that these issues w ill not be examined by the Court . Further, the Court notes that, in addition to their failure to respond to the Court ' s summonses and the other matters set out above (see para g raph 151 above ) , none of the se ten applicants has even completed an application form, thereby failin g to comply with even the minimum requirements of Rule 47 of the Rules of Court .

153 . T he Court finds no reasons of a g eneral character, as defined in Article 37 § 1 in fine , which would require the examination of these applications by virtue of that Article.

I I I . THE COURT ' S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS

A. Ar g uments of the parties

1. The applicants

154 . The applicant s ar g ued that the written and oral evidence before the Court proved that the y were ill-treated in the course of the trainin g exercises by the special force s and the searches which were held on 30 May 2001 and 29 January 2002. They further maintained that the authorities had failed to carry out an adequate investi g ation into these complaints. They asked the Court to find that the Government had violated Articles 3, 8, 13 and 34 of the Convention in respect of all of the complaints raised by them (see para g raph 4 above) .

2. The Government

155 . The Government refuted the applicants ' ar g uments and claimed that the evidence g iven in the fact-findin g hearin g in the Khmelnytsky Re g ional Court of Appeal had shown that the applicants ' alle g ations were ill-founded and that there had been no violation of any provision of the Convention. In particular, the Government stressed that there was no proof that the applicants had been subjected to ill-treatment or that the authorities breach ed Article 3 of the Convention. Moreover, the Government considered that the witness evidence , takin g into account a number of contradictions and inconsistencies in the testimonies g iven in the course of the fact-findin g hearin g , clearly showed the lack of a factual basis for a possible findin g that the prisoners had been beaten or ill-treated in Zamkova Prison on 30 May 2001 and 28 January 2002 .

3. The Court ' s considerations

156 . Since the facts of the case are in dispute between the parties, it is necessary for the Court to establish the facts by makin g its own assessment in the li g ht of all the material before it.

157 . The Court is sensitive to the subsidiary nature of its role and reco g nises that it must be cautious in takin g on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, it considers that where sufficiently stron g alle g ations are made in respect of Article 3 of the Convention, which ranks as one of the most fundamental provisions in the Convention and from which no dero g ation is permitted, it must conduct a particularly thorou g h scrutiny (see Ülkü Ekinci v. Turkey , no. 27602/95, § 13 6 , 16 July 2002), even if certain domestic proceedin g s and investi g ations have already taken place.

B. The Government ' s conduct

1 . General principles (issues under Article 38 § 1(a) of the Convention

159 . Article 38 § 1 (a) of the Convention provides:

“1. If the Court declares the application admissible, it shall

(a) pursue the examination of the case, to g ether with the representatives of the parties, and if need be, undertake an investi g ation, for the effective conduct of which the States concerned shall furnish all necessary facilities...”

160 . The Court reiterates that it is of utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Orhan, cited above, § 266, and Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV). It is inherent in proceedin g s relatin g to cases of this nature, where an individual applicant accuses State a g ents of violatin g his ri g hts under the Convention, that in certain instances solely the respondent Government have access to information capable of corroboratin g or refutin g these alle g ations. A failure on a Government ' s part to disclose such information which they possessed without a satisfactory explanation may not only g ive rise to the drawin g of inferences as to the well-foundedness of the applicants ' alle g ations, but may also reflect ne g atively on the level of compliance by a respondent State with its obli g ations under Article 38 § 1(a) of the Convention (see TimurtaÅŸ v. Turkey , no. 23531/94, §§ 66 and 70, ECHR 2000-VI). The same applies to a failure of the State to ensure the attendance of important witnesses at a fact-findin g hearin g , which prejudices the establishment of the facts in a case ( see Ä°pek v . Turkey , no. 25760/94, § 112 , ECHR 2004 ‑ II (extracts) ) .

2 . A bsent applicants and witnesses

161 . The Court notes that it has no powers to compel witnesses to appear. In the present case, of all the witnesses called, ten applicants and six witnesses did not appear before the Dele g ates . Consequently, the Court had to establish the facts in the absence of potentially important depositions, which could have rebutted some of the applicants ' alle g ations. In particular, the applicants who failed to appear before the Dele g ates included M r Druzenko, Mr Martov, Mr Salov, Mr Kuzmenko, Mr Kiselev, Mr Didenko, Mr Shvets, Mr Litvinov, Mr Mironov and Mr Kulik. The witnesses who failed to appear on behalf of the Government were Mr Gaydamaka, Mr Mazepa, Mr Mazurenko, Mr Pylypenko and Mr Zakharov . Mr Kostenko, a witness proposed by the applicants, also failed to appear.

163 . As to the absence of Mr Druzenko, it is to be noted that , accordin g to the information available to the Court as of 17 November 2006 ( letter of Mr Bushchenko statin g that he was unable to correspond with him ), this applicant was in the Government ' s custody as he was bein g held in SIZO no. 21 . A ccordin g to different information provided by Mr Bushchenko, after his release from SIZO no. 21 Mr Druzenko resided in Ode s sa (see para g raph 3 4 above) . As to the applicants Mr Kiselev, Mr Didenko, Mr Shvets, Mr Litvinov, Mr Mironov and Mr Kulik , accordin g to the information in the Court ' s possession, they were still detained or servin g their sentences and thus also remained in the Government ' s custody . However, the Government provided no further information or explanations as to the absence of these applicants. In particular, in relation to Mr Druzenko, the Court notes that he stayed in SIZO no. 21 as he was under criminal investi g ation and thus his whereabouts should have been known to the Government. Furthermore, the applicants Mr Didenko, Mr Litvinov and Mr Mironov were at Zamkova Prison. The applicant Mr Kuzmenko was held in Lu g ansk SIZO and the applican t Mr Kiselev was servin g his sentence in Berdychiv Prison no. 70. Thus , the Court considers , in relation to the witnesses who were in custody, that the Government had an opportunity to duly summon the m to appear before the Dele g ates . In contrast, Mr Kostenko ' s absence cannot be attributed to the failure of the State to summon this witness as he was a witness for the applicants and was not in the Government ' s custody .

164 . T he lack of timely explanations provided by the Government as to the absence of these witnesses is a matter of concern for the Court; it delayed the hearin g of oral evidence in the case and thus impeded the due processin g of the applications , which mi g ht be re g arded, to some extent, as a failure to comply with the State ' s obli g ation to furnish all necessary facilities to make possible a proper and effective examination of applications (see, mutatis mutandis , Nevmerzhitsky v. Ukraine , no. 54825/00, § 75, ECHR 2005 ‑ II (extracts) ). Furthe rmore , the Government ' s inability to provide adequate explanations as to why two of the witnesses (M r Pylypenko and Mr Mazepa) who initially g ave written statements to the Court with re g ard to the events , ultimately refused to appear before the Dele g ates , to g ether with the failure to provide plausible explanations as to the means used by the Government to ensure that other witnesses , who were under the authority of the State or had stron g affiliation with the State authorities, attend ed a hearin g or were compel led to appear, is also a matter of concern. Moreover, the Government had been invited, on 14 Au g ust 2007, “ possibly after consultin g the individuals concerned, to submit the reasons for their absences in writin g before 28 September 2007 ” . No reply was ever received by the Court.

165 . Moreover, on learnin g about Mr Pylypenko ' s and Mr Mazepa ' s unilateral decision not to appear before the Dele g ates , t he Government ' s role should have been to assist the Court in contactin g these witnesses, duly summonin g them and providin g relevant information from these witnesses to the Court explainin g the reasons for their absence. Then, i t should have been for the Dele g ates to decide on whether the se witness es had g ood reason for refusin g to testify (see , mutatis mutandis , İpek , cited above, § 120 ) .

166 . Notwithstandin g the above consideration in respect of the witnesses who failed to attend the hearin g before the Dele g ates , the Court notes that the witnesses Mr Pylypenko , Mr Mazepa and Mr Kostenko initially cooperated with it and produced written witness statements of relevance to the proceedin g s, which have not been subjected to cross-examination . In the circumstances, it will approach with caution the content of these statements . It will also c onfront this evidence with other evidence produced before the Dele g ates , takin g it into account to the extent it is consistent with or contradict other evidence (see, İpek , cited above, § 120 ). Thus, as it ensues from the preliminary written witness statements g iven by Mr Pylypenko and Mr Mazepa , they denied that the trainin g at Zamkova Prison involved the participation of prisoners , that force was used a g ainst them and that they were ill-treated in the course of these tactical trainin g s. In contrast to these statements, Mr Kostenko maintained that he stayed in Zamkova Prison from 2001 to 2003 and knew one of the applicants (Mr Davydov), who was incarcerated in the cell opposite to his cell. Mr Kostenko further stated that in the course of the trainin g on 30 May 2001 he was beaten by officers in masks, had to stay kneeled down and then on “ roztyazhka ” in the corridor. As a result of the trainin g his left knee and ribs were broken. He also mentioned that one of the officers stated that he had been sentenced to death and shot at him from the automatic g un. He requested medical assistance and received painkillers. His injuries were not re g istered and complaints not accepted. Durin g the second trainin g he was beaten a g ain and had injuries of internal or g ans, includin g liver. After these beatin g s he attempted to commit suicide by cuttin g his veins with the ed g e of a safety razor.

3 . C omplementary d ocumentary evidence

168 . In respect of the aforementioned request, o n 28 September 2007 the Government, providin g copies of certain documents and some of the replies mentioned in the letter of 14 Au g ust 2007 (see para g raph s 65 and 6 6 above) , informed the Re g istry that it could not provide the Court with the followin g documents and further evidence:

“ ... – Order of the State Department for Enforcement of Sentences no. 193дск of 30 Au g ust 2002 “ O n Monitorin g of Inmates ' Correspondence ” , since, in line with the Information Act , it was classified as confidential information and, as provided by the Resolution of the Cabinet of Ministers no. 1893 of 27 November 1998, could not be submitted to the Court. The Government mentioned in this respect that monitorin g of the prisoners ' correspondence was g overned by the Code on the Enforcement of Sentences;

– a copy of the report of the internal investi g ation undertaken by the State Department for the Enforcement of Sentences and a copy of the reports as to the operat iv e situation in Zamkova Prison from January 2001 to December 2002, as they were destroyed due to the expiry of the retention period;

– video-record in g s made durin g the trainin g exercises which took place on 30 May 2001 and 29 January 2002, as , a ccordin g to information received from the State Department for the Enforcement of Sentences no video recordin g s were made durin g the trainin g ;

– custody records listin g the prisoners detained in the cells which were visited by the Dele g ates on 27 June 2007 , for the dates of the trainin g exercises on 30 May 2001 and 29 January 2002. ...

169 . The Court, havin g examin ed the Government ' s reasons for not providin g the aforementioned information, concludes that it cannot accept the m . In this respect, it a g ain underlines that a failure on a Government ' s part to submit evidence which could be in their hands without a satisfactory and well-founded explanation may reflect ne g atively on the level of compliance by a respondent State with its obli g ations under Article 38 § 1 (a) of the Convention ( see Khashiyev and Akayeva v. Russia , nos. 57942/00 and 57945/00, § 120, 24 February 2005 ) . In particular, it notes that the Prison Department Order no. 193дск of 30 Au g ust 2002, the report on the investi g ation prepared by the Prison Department and the custody record s were important evidence in the present case, and essential for the fulfilment of the Court ' s functions. The e vidence not submitted by the Government had been specifically referred to in the witnesses ' oral submissions durin g the on-s ite hearin g , which , inter alia , related to the issue of how effective the investi g ation into the applicants ' complaints had been and whether the authorities had interfered with the applicants ' correspondence . T hus , it should have been made available to the Court.

170 . T he Court does not accept that Resolution no. 1893 of 17 November 1998 provided an obstacle to the disclos ure of instructions marked “ for service use only ” ( для службового користування ) . In particular, the Government have not stated why the instructions needed to be secret. Indeed, the Court notes that when Order no. 193дск of the Prison Department was replaced on 25 January 2006 , the new Order, no. 13 of 25 January 2006 “On approval of the Instruction on or g anisin g the review of correspondence of persons held in penitentiary institutions and SIZO”, was a le g al act which is a publicly accessible document . The Government have not provided any reasonin g which could indicate why Order no. 193дск needed to be secret if its successor did not. They also g ave no information or explanations as to why the Order no. 193 дск stayed secret after it was no lon g er in force .

172 . A s to the video-recordin g which was alle g edly not made , the Court finds it improbabl e that officers of the Prison Department , includin g those actin g within the “ documentin g g roup s ” whose task was to identify and “ document ” specific offenders or prisoners incitin g riots or mass disobedience for further prosecution , and who were provided with two video cameras on 30 May 2001 (see para g raph 56 above) and photo and video cameras on 29 January 2002 (see para g raph 6 2 above) , accordin g to written Plans nos. 2 and 5 o n the trainin g exercises and searches, had never used it, film ed no action or t ook no pictures on these dates.

173 . The Court also considers that the Government ' s explanations as to their failure to provide the investi g ation report of the State Prison Department , as “ it was destroyed due to expir y of the retention period ” , and their failure to list the prisoners detained on 30 May 2001 and 29 January 2002 in th e cells which were visited by the Dele g ates on 27 June 2007, unconvincin g and le g ally and factually unsubstantiated.

4 . Conclusions

175 . In the li g ht of the above principles, the Court has examined the Government ' s conduct in assistin g the Court in its task of establishin g the facts of this case and has come to the conclusion that Government have failed to dischar g e their obli g ations under Article 38 § 1 (a) of the Convention. The Court will rely on th is conclusion – makin g such inferences as appropriate – in establishin g the facts of the case.

C. The Court ' s evaluation of evidence

1. Parties submissions

176 . The applicants alle g ed that the y had been ill-treated durin g the trainin g exercises held on 30 May 2001 and 29 January 2002. They further alle g ed that they had not been provided with medical treatment and assistance and that there had been no investi g ation into their complaints. The applicant s further ar g ued that the conditions in which they were detained were poor.

177 . The Government denied this.

178 . The Court notes that t he applicants ' case turns essentially on whether the y can establish that they were ill-treated by the special forces and personnel in Zamkova Prison in the course of the trainin g exercises and g eneral search es of the premises and prisoners conducted on 30 May 2001 and 29 January 2002. The Government deny that any of the prisoners received injuries durin g these trainin g s and searches. In the absence of any medical forensic records , the Court must establish the facts on the basis of the parties ' submissions and the evidence, oral and documentary, it has obtained.

2. Oral evidence

( a ) General considerations

179 . The Court will verify and determine the facts by assessin g the wei g ht and effects of the evidence g athered by the Court ' s Dele g ates (see Tepe v. Turkey , no. 27244/95, § 136, 9 May 2003; Tekdağ v. Turkey , no. 27699/95, § 2, 15 January 2004; and Yöyler v. Turkey , no. 6973/95, § 53, 24 July 2003 ) .

180 . The Court, like its Dele g ates, must also have close re g ard to the fact that a lar g e number of witnesses g ave statements. In particular, the Dele g ates heard three applicants and seventeen other witnesses, includin g the parties ' representatives, who g ave statements in respect of the absentees, in the course of the oral hearin g of evidence. It is to be further observed that the applicants and their witnesses were testifyin g in respect of matters of personal concern , with the attendant risks that their interpretation of events mi g ht lack objectivity on their part . As to the Government ' s witnesses , the majority of whom were educated persons; some relatively hi g h-rankin g officials, with extensive experience of work in the penitentiary system and knowled g e of its functionin g , who mi g ht have already spoken or testified about the events at issue before various bodies on a number of occasions. The credibility of these witnesses must also be considered carefully as they risked professional or other sanctions, if the applicants ' alle g ations were made out and accepted.

181 . Moreover, the passa g e of time takes a toll on a witness ' s capacity to recall events in detail and with accuracy. In the instant case, the witnesses testifyin g before the Dele g ates were asked to recollect incidents which occurred five to six years previously. Nor can the Court overlook that some of the applicants and their witnesses mi g ht have had conflicts with the personnel of Zamkova Prison , where they were servin g their sentences, and thus mi g ht have tried to seize on opportunities to discredit the Government or its public servants by makin g unfounded alle g ations a g ainst them (see, mutatis mutandis , İpek , cited above , § 117 ). These factors have to be borne in mind when assessin g the wei g ht to be g iven to the evidence heard by the Dele g ates.

182 . The Court observes that oral evid e nce g iven to the Dele g ates by the first ( see Annex , para g raphs 2- 9 ) , the second (see Annex , para g raphs 10- 18) and the third applicants (see Annex , para g raphs 19 -23 ) , i.e. Mr Davydov, Mr Ilchenko and Mr Gomeniuk, respectively, broadly reiterated the written statements they had g iven both to the national authorities and to the Convention institutions. Their evidence on the whole was detailed and precise and consistent with the applications and statements they had made followin g the aforementioned trainin g exercises of 30 May 2001 and 29 January 2002 . The ir r ecollection of the events , various points and places from where they observed and witnessed the conduct of the trainin g , confirmed a number of facts presented to the Court by other witnesses such as the timin g and manner of the search es , the conduct of a trainin g exercise and presence of an outside special forces , the uniform s worn by the officers, their equipment, the lack of a possibility to complain to bodies other than the local prosecutor ' s office - whose representatives were present in the course of the trainin g - and deficiencies in the investi g ation .

183 . The Court notes that t he layout and use of the buildin g s has chan g e d from the time of the events at issue to the time when the Dele g ates inspected Zamkova Prison. However, the premises of Zamkova Prison , mentioned by the applicants and witnesses in their statements, which were inspected by the Dele g ates, were perfectly reco g nisable as bas ed on the oral descriptions of that prison and statements as to the conduct of the trainin g s g iven by the applicants and witnesses prisoners in the course of the oral hearin g . This lent support to the applicants ' description of the unfoldin g of the events durin g the two trainin g sessions (see Annex, para g raphs 2- 9 and 19- 23 ).

184 . The Court is satisfied on the basis of the evidence presented by the applicants that , in the particular circumstances of the present case, medical records or their absence cannot be relied upon to prove that a person had or had not been injured, as the injuries were not always recorded in the special medical re g isters of Zamkova Prison . In particular, it notes in this respect that the medical records disappeared when the applicant Mr Davydov was transferred from Zamkova Prison to Berdychiv Prison no. 70 (see Annex, para g raph 8). Additionally, g eneral medical records were already destroyed due to the expiry of their retention period (see para g raph 168 above) .

( b ) The Court ' s evaluation of oral evidence

185 . The account of the incidents on 30 May 2001 and 29 January 2002 by witnesses , all the prisoners , M r Va g if Didenko (see Annex , para g raphs 24- 30 ) , Mr Leonid Mikhaylenko (see Annex , para g raphs 31- 36 ) , Mr Ole g Tishalkov (see Annex , para g raphs 37 -40 ) and Mr Vadym Getmansky (see Annex , para g raphs 41- 45 ) were clear and g enerally consistent with the witness statements they made to the applicants ' representative , Mr Bushchenko , at the Court ' s request and in advance of the mission by the Dele g ates . The Court considers their statements to be credible , precise and reliable . In particular, in relation to the statements g iven by Mr Mikhaylenko (see Annex, para g raphs 31- 36), the Court notes that he had no direct contact with the applicants and was able to describe how the trainin g exercise had been conducted and what happened in the course of it . Also, the point of observation from where Mr Mikhaylenko witnessed the events was perfectly reco g nisable in the course of inspection of Zamkova Prison and reasonably suitable for observations this witness made. His statements were consistent with those g iven by the applicants and other witness es who were prisoners of Zamkova Prison , who were placed at different observation points and observed it at different times, so they could witness different aspects of the trainin g . These statements corroborated a number of similar key points in their evidence which related to the presence of special force s durin g both trainin g exercise s , their uniform s , the noise, explosions and shots that were heard, the time and manner of the search es , the complaints raised by the applicants, the investi g ation into these complaints, injuries sustained and the lack of medical treatment and assistance provided to the injured .

186 . The evidence g iven by Mr Ser g iy Shedko , a prisoner proposed as a witness by the Government (see Annex , para g raph s 46 - 49 ) , corroborated the main thrust of the previous evidence presented by witnesses M r Va g if Didenko (see Annex, para g raphs 24-30) , Mr Leonid Mykhaylenko (see Annex, para g raphs 31-36) and Mr Ole g Tishalkov (see Annex, para g raphs 37-40) . In particular, Mr Shedko confirmed that exercises and searches took place on the dates as alle g ed, but he was reluctant to confirm certain factual elements which were previously established . His memory was weak and he g enerally stated that there were no irre g ularities in the conduct of the trainin g exercises and searches and everythin g accorded to the re g ulations .

187 . In the Court ' s view, some of the statements g iven by Mr Shedko were not fully credible , neither convincin g nor consistent. In particular, he was reluctant to speak about the applicants ' alle g ations as he appeared to be obli g ed to deny the alle g ations, without g ivin g any further details requested from him by the Dele g ates or without providin g any explanations which would prove to the contrary . Thus, his statements could not be examined in detail in context of other evidence obtained and could not be contrasted to that evidence . The Court points out in this connection that the witness did not remember particular important details about the trainin g exercise which related to the applicants ' alle g ations of ill-treatment . Furthermore, with re g ard to the participation of special force s from outside the penitentiary , he stated that only the personnel of Zamkova Prison participated in the search , with staff from the g uard company. Nevertheless , he confirmed a number of facts presented by others , which related inter alia to the time and manner of the search es , the uniform worn by the penitentiary officers , etc .

188 . As to the witness statements g iven by Mr Vasyl Bondar, head of the medical unit of Zamkova Prison (see Annex , para g raphs 50- 58 ) , this witness confirmed a number of facts presented by other witnesses , includin g the approximate time of the search es , the participation of an outside “ rapid reaction g roup ( special unit) ” , the uniform s worn by the officers, their equipment, medical treatment, the procedure for re g isterin g complaints and the supervision of his activities. His statements also revealed that there was no adequate system for receivin g and re g isterin g medical complaints and that no reliable system for keepin g medical records and files existed in Zamkova Prison . The Court further notes certain inconsistencies in his statements with re g ard to the presence of the special units at the residential zone and where exactly he was durin g the searches (see Annex , para g raph s 51- 54 ) . In respect of the applicants ' complaints that they were not g iven adequate medical attention , the Court considers that it cannot draw any conclusions from th e evidence g iven by this witness with re g ard to the medical treatment provided to the applicants , as this witness ' s responses were g iven to prove that he acted in compliance with the law and in defence a g ainst the applicants ' accusations of his inadequate work . However, the Court would still take into account the evidence g iven by that witness as to how the medical unit operated and that its operation g enerally corresponded to the re g ulations at issue . Also, he was unable to respond credibly and clearly to the questions concernin g the re g istration of medical complaints , and in particular how he learned about medical complaint s from prisoners and the procedure for respondin g to such complaints. It further notes that there were only two employees in the medical unit , includin g Mr Bondar . Thus, this witness could not be present everywhere in the course of the search es in cells and trainin g exercises , could not have witnessed all of the trainin g , even thou g h he mentioned that the cells were searched one-by-one . For the Court this inconsistency means that Mr Bondar witnessed only a part of the search and trainin g , but not the whole trainin g and search exercise in its entirety. Also, Mr Bondar initially stated that he did not know which g roup or unit trained at Zamkova Prison , but eventually confirmed that t here were some “additional forces” from the outside . In this respect , the Court t akes into account this witness ' s dependency , from a hierarchical perspective, on the Governor of the Prison and the Prison Department and considers that inconsistency in some of his statements was a result of this dependency .

189 . As to the statements g iven by two prosecutors , Mr Ole g Bukher , the local prosecutor (see Annex , para g raphs 59-63 ) and Mr Yev h en Volkov , the special prosecutor who dealt with the supervision of lawfulness in Zamkova Prison, (see Annex , para g raphs 64-70 ) , the Court finds that these witnesses were evasive in their testimonies . This especially concerned confusin g witness statements g iven by Mr Volkov , who failed to g ive consistent description of the events . In particular, Mr Volkov answered the questions posed by the Dele g ates without providin g direct answers and without g ivin g exact factual details. In his statements he repeated on a number of occasions that the search and trainin g in May 2001 had been conducted in accordance with the law and he vi g orously denied any possible violation of internal prison re g ulations, re g ulations as to the conduct of trainin g exercises or searches. His statements were g eneral in that he g ave no details or explanations as to what exactly had occurred. The Court notes, with re g ard to the statements g iven by Mr Bukher, that althou g h he was willin g to help the Dele g ates, he had no direct information about the trainin g s and search es as he did not witness them and only supervised investi g ation into the events of the case . Nevertheless , he stated that Zhytomyr special unit had been involved in the trainin g in May 2001 (see Annex , para g raph 62) .

190 . The Court finds that the witness statements g iven by Mr Bukher , Mr Volkov and Mr Bondar , respectively, the local prosecutor, the special prosecutor and the head of the medical unit, can be used in relation to particular elements of the case in which these witnesses were involved. In particular, Mr Bukher ' s statements were useful from the point of view of examinin g how the investi g ation into the applicants ' complaints had been conducted. Mr Volkov ' s statements can be used in relation to the examination of the applicants ' complaints and the procedure for their submission by the complainants , as well as to certain g eneral factual details related to the conduct of the trainin g s . As to the statements g iven by Mr Bondar , they were useful for understandin g the operation of the medical unit and how the unit dealt with the incomin g medical complaints (see para g raph 188 above) . Thus, the events viewed b y these witnesses from that an g le, and important details added in the course of the cross-examination to the statements previously g iven , confirm the statements g iven by the applicants as to the manner in which investi g ation had been performed and the way in which medical assistance had been provided to them.

191 . Mr Bukher , a local prosecutor, also g ave important evidence as to the role of the special prosecutor ' s office in the investi g ation and its effective ness . In g eneral, his statements with re g ard to the manner of investi g ation were quite credible , as he tried to prove that he was ri g ht in refusin g to institute criminal proceedin g s a g ainst the Prison employees and the members of the rapid reaction g roup . He further tried to prove that the investi g ative acts undertaken by his g roup, him and the assistants who questioned the applicants and witnesses, were reasonable and correct in the circumstances of the complaints and that they examined all important evidence, performed all necessary investi g ative acts and concluded that it was unnecessary to institute criminal proceedin g s in the case.

192 . The Court further notes that the evidence g iven by Mr Yevhen Volkov , supervisin g prosecutor, indicated that the witness was an inexperienced prosecutor, who had just started to work in the specialised prosecutor ' s office dealin g with the prisons ' supervision and was not fully aware of the prison functionin g , le g al and practical issues involved in this job (see Annex , para g raphs 65-70 ) . H is statements in relation to the conduct of the trainin g s on both occasions were unreliable as they were not consistent throu g hout the questionin g . In particular, f irstly, he mentioned that he was new to his job and the trainin g exercises at issue were exceptional events, and that he therefore tried to understand, remember and see as much as possible. Nevertheless , althou g h he was new to the job and was fascinated by its importance , especially from the point of view of necessity to ensure that the law was complied with and properly enforced, he was not able to recall many si g nificant details related to the trainin g s and searches. In particular, he was unable to g ive clear and direct answers to a number of factual questions. For instance, he stated that the applicants and other prisoners were informed about the trainin g and search by radio well in advance and that it was a normal way of informin g them. However, notwithstandin g some unclear answers to the other questions raised, this witness was firm in his view that the rapid reaction unit was present in Zamkova Prison on 30 May 2001 and was, most possibly , in the “ residential zone ” (see Annex , para g raph 65 ) . For the Court h is testimony also confirmed the manner in which the investi g ation into the complaints had been or g anised . Furthermore, it was apparent from his statements that prisoners were prevented from complainin g to the prosecution or other State authorities directly and had to try to use “ ille g al ” channels for lod g in g their complaints. He confirmed in his statement the documentary evidence submitted by the Government that he requested sanctions on the prisoners for lod g in g these ille g al complaints.

193 . The Court finds, with re g ard to the witness statements g iven by Zamkova Prison officers Mr Pavlo Klip atsky , Mr Andriy Shatskiy, Mr Ser g iy Zlotenko and Mr Pavlo Zaremskiy (see Annex , parag raphs 71- 85 ) , that these statements in relation to the conduct of the trainin g were g eneral in nature, but still useful , in that they compl e mented the oral witness statements g iven by the applicants and former prisoners of Zamkova Prison . Particularly, these witnesses failed to g ive exact details of the trainin g s held and made more g eneral statements as to that law or internal prison re g ulations w ere never violated in the course of the trainin g s. In this respect the Court, as in the case of Mr Bondar, underlines the dependency of these witnesses o n the State and specifically those from the Prison Department . Nevertheless, on the whole their statements were consistent with the previous written statements submitted to the Court by the applicants on the manner in which the trainin g was or g anised and certain factual details of the trainin g , like the presence of rapid reaction units durin g both trainin g exercise s, their uniform s , the shots and noise that were heard and the time and manner of the trainin g .

194 . The Court also notes that the statements g iven by Mr Pavlo Klipatsky were not consistent with other statements g iven by the applicants and witnesses . In particular , first he did not want to admit the presence of special forces in the Prison, but then mentioned that they were present at the industrial zone durin g the trainin g (see Annex , para g raph 72) . Notwithstandin g that the Court considers that h e, indirectly, like the other officers from Zamkova Prison heard by the Dele g ates confirmed the presence of the rapid reaction units in Zamkova Prison , within the residential zone . They also provided additional details about the manner in which the investi g ation into the events was or g anised and how the complaints lod g ed by the prisoners , includin g those lod g ed by the applicants with the European Court of Human Ri g hts throu g h Mr Zherdev , were reviewed within the Penitentiary and how they were sent out from Zamkova Prison (see Annex , para g raph 81) .

195 . With re g ard to the statements made by Mr Ser g iy Sne g ir , the former Governor of Zamkova Prison (see Annex , para g raphs 94- 100 above ) , the Court considers that they confirmed the presence of the rapid reaction units in the residential zone durin g both trainin g exercises , provided important details about the investi g ation of the events and the review of the complaints by the prisoners . In particular, this related to the commissionary inspection of cells or g anised by the Governor in presence of the prosecutor and the persons present durin g the trainin g and search. He also g ave detailed statements as to how the complaints lod g ed by the applicants were reviewed and in particular as to the meetin g about the complaints he had with Mr Ilchenko , in response to his complaints lod g ed throu g h Mr Zherdev with the European Court of Human Ri g hts (see Annex , para g raph 100 ) . Also, Mr Sne g ir confirmed that Zamkova Prison staff were usin g special equipment and a special uniform , as they were described by the applicants in their submissions and testimonies, and the refore prisoners could not identify members of the special forces . Also, some of them were from Prison no. 31 (see Annex , para g raph 99 ).

196 . As to the statements g iven by Mr Vasyl Leventsov , the former First Deputy Head of the Re g ional Prison Department (see Annex , parag raphs 87- 93) , the Court finds that they confirmed the evidence previously g iven by other witnesses. On the basis of these statements and those of other witnesses, the Court concluded that the rapid reaction units had been present at Zamkova Prison durin g both trainin g exercises. In particular, the Zhytomyr special unit was present durin g the first trainin g exercise , held on 30 May 2001 , and the rapid reaction unit formed from the personnel of the Prison and nearby penitentiaries, includin g Prison no. 31 , was present at Zamkova Prison on 29 January 2002 . This witness did not respond directly to , and did not deny , the su g g estion that rapid reaction units had been present in the Prison ' s Monastyr durin g the search . I n spite of the fact that this witness tried to avoid g ivin g direct answers to the above question or claimed that he could not remember certain facts , for the Court his statements confirmed the manner of the search , already described by the applicants and other witnesses, and other important details about the or g anisation of trainin g and search, the description of which corresponded to the trainin g plans that were approved and elaborated by the Prison Department , where this witness was responsible for personnel trainin g .

197 . The Court notes that the statements produced by Mr Mykola Iltiay , the First Deputy Head of the Prison Department , (see Annex , paragraph s 101- 107 above) g ave important factual details concernin g the internal investi g ation conducted by the Prison Department and the review of the prisoners ' complaints within the Prison Department . In accordance with these witness statements, which the Court accepts as credible , notwithstandin g the failure of the Government to provide any records relatin g to the conduct of investi g ation (see para g raph 168 above) , the investi g at ors of the State Prison Department (Mr Irshko) questioned and received written explanations from one hundred persons in a sin g le day , without review in g the medical evidence and looked at the complainants ' personal files , notin g that the complainants were re g arded as “malicious violators of the law” (see Annex , para g raph 102 above) . These details, for the Court , are useful elements in examinin g the manner and nature of the investi g ation conducted by the domestic authorities into the applicants ' complaints. The Court also notes that Mr Iltiay g ave important factual details about the purpose of and g rounds for the use of the special force s and the equipment they carried and used durin g the trainin g exercises . In particular, he stated that the officers of the special and rapid reaction units actin g within the Prison Department had been required to know the premises of the penitentiaries, includin g the residential area , in case of unforeseen circumstances such as the takin g of hosta g es or mass riots . Thus, these statements le n d further support to the evidence that the searches were conducted with presence of the special forces , who had to be trained within the residential area of Zamkova Prison they were obli g ed to be acquainted with.

4 . M aterial and documentary evidence provided in the course of the inspection of Zamkova Prison

198 . After the oral hearin g of witnesses the Dele g ates decided to inspect the followin g premises and documentation, subject to its availability, at Zamkova Prison :

– (1) detention and isolation units (includin g the so-called “Monastyr” win g );

– (2) medical service units.

– ( 3 ) r e g isters of prisoners ;

– ( 4 ) r e g isters of complaints submitted by prisoners to the local and General Prosecutor ' s Offices;

– ( 5 ) r e g isters of the medical complaints relevant to the material time;

– ( 6 ) s olitary confinement unit re g isters;

– ( 7 ) r e g isters of disciplinary sanctions applied to the applicants.

199 . As to the inspection of Zamkova Prison , the Court notes that the Dele g ates visited the Monastyr cells, the former medical unit premises, the disciplinary detention premises and the solitary confinement premises of the Prison no. 58. They also visited the special equipment stora g e room, which was a temporary stora g e room for such equipment.

200 . T he re g isters and documents mentioned in points above 3, 4 , 5, 6 and 7 (above in para g raph 198 above ) relatin g to the period of the first and second trainin g exercises , were not made available to the Dele g ates , mainly on account of the fact that they had alle g edly been destroyed on the expiry of the period for their administrative use. The Dele g ates inspected the premises mentioned in points nos. 1 and 2 . The Dele g ates were shown fresh administrative re g isters, which contained no relevant information that mi g ht have been useful for the purposes of the fact-findin g mission. Thus, the Court cannot draw any conclusions from this documentary evidence.

201 . On the basis of the inspection conducted by the Dele g ates , the Court concludes that the conditions of detention at Zamkova Prison g enerally corresponded to the conditions described by the applicants in their submissions and the parties ' observations on the case . They also concluded that the description of premises of Zamkova Prison g enerally corresponded to the oral description thereof g iven by the prisoners -witnesses in the course of the hearin g .

5 . The Court ' s findin g s of fact and conclusions

( a ) General comments as to the facts

202 . The Court notes, as a g eneral remark, that the prisoners were never properly informed in advance that the trainin g exercises would be conducted ( see Annex, para g raphs 12, 16 , 18 , 26 , 32, 38, 42 and 70 ) . They only heard rumours that the trainin g s would be or g anised and received certain threats from the Prison officers ( see Annex, para g raph s 26 and 42 ) . The prisoners , includin g the applicants, never g ave their consent to participate in the trainin g exercises and were never asked whether they could be involved in it . The y were all in a vulnerable position , un able to defend themselves or to protect themselves from excessive use of force or humiliat in g searches. Furthermore, they were bein g treated as objects in the course of these trainin g s. The applicants were un able to complain a g ainst abuses in the course of the trainin g s essions as they could not identify masked perpetrators ( see Annex, para g raph s 12, 17 20, 27, 39, 45 , 48 and 52 ) or lod g e their complaints throu g h the le g ally available to them channels as these channels involved censorship of their correspondence by the alle g ed perpetrators and specific personal ne g ative consequences such as imposin g administrative sanctions on them for their complaints .

203 . Moreover, h avin g re g ard to the testimonies of the witnesses heard by the Court ' s Dele g ates (see Annex ) and the documentary evidence submitted by the parties (see para g raphs 5 1 - 100 above), the Court has reached the followin g factual conclusions specific to each of the trainin g exercises, conducted in Zamkova Prison on 30 May 2001 and 29 January 2002 (see , respectively, para g raphs 204- 220 and 221- 230 below ) . It has also reached factual conclusions as to the investi g ation into the applicants ' complaints, which are further summarised below (see para g raphs 231- 234 below ) .

( b ) Events of 30 May 2001 and the ensuin g events

204 . The first trainin g exercise, conducted on 30 May 2001, was to start early in the mornin g from 5 a.m. (accordin g to the trainin g plan ( Plan no. 1 ) ) and the search (accordin g to the Plan no. 3) was to be conducted from 8 a.m. to 12 noon (see para g raph 5 5 and 57 above). It started with the g atherin g of officers who participated in the trainin g exercise in the social room of Zamkova Prison . There they were informed of their tasks and the “operative circumstances” within Zamkova Prison .

205 . The trainin g itself started when an alarm sounded , followin g which the 231 officers involved in the trainin g entered the industrial zone throu g h the checkpoint of Zamkova Prison . This g roup included officers from Zamkova Prison , officers from the rapid reaction units of Prisons nos. 31, 58 and 98, and 18 officers from Zhytomyr special unit.

206 . Firstly, a trainin g exercise on liberatin g hosta g es was to take place in the carpentry workshop of the industrial zone, without the involvement of the prisoners . The trainin g focused on preparation of the rapid reaction unit which existed in Zamkova Prison and officers of the Prison Department on possible extraordinary events in prison. However , contrary to the timin g envisa g ed in Plan no. 1 of 25 May 2001 (see para g raphs 5 2- 5 5 above), at about 8 a.m., the Zhytomyr special unit, the rapid reaction units and the officers of Zamkova Prison, that were a part of the so-called “ joint detachment ” and were divided into g roups, entered the residential zone and participated in the g eneral search of the residential premises . T he forces conducted a g eneral search before the trainin g exercise on liberatin g hosta g es from 8 to 10 a.m. and then from 10 a.m. to 11.30 a.m. they trained in the industrial zone (see para g raph s 5 5 and 5 7 above and para g raphs 182 and 1 85 with further references above ) .

207 . The followin g g roups were involved in the g eneral search in the course of the first trainin g : the blockin g , documentation, medical assistance, convoy, search, special and reserve g roups (see para g raph 56 above). The special unit and the rapid reaction units participated in the search as a “reinforced presence g roup” or g roups participatin g in a “supervisory search” or selective g eneral search in the isolated departments of Zamkova Prison (see para g raph s 5 3 and 55 above). The trainin g exercise involved the use of special equipment (see para g raph 5 4 , 56 and 5 8 above) and a special camoufla g e uniform, which was g reen or other camoufla g e colours. This uniform had been distributed to the personnel of Zamkova Prison on the day of the trainin g . The Zhytomyr special unit had its own uniform and special equipment. The special equipment included helmets, shields, the automatic g uns used by the special unit, firecrackers, black flak jackets that were usually worn on the top of the uniform, thus creatin g the impression for certain applicants and witnesses that the uniform was black, rubber truncheons, handcuffs, immobilisin g pitchforks (see para g raphs 5 4 and 56 above). The prison officers participatin g in the search also used automatic g uns, firecrackers, truncheons and shields in the actions to search the premises where the prisoners were held (see para g raph 5 4 and 56 above ).

208 . T he role of the special unit was to g uide the search conducted after the trainin g exercise. There were 53 cells, containin g 750 prisoners , which had to be searched in the course of the g eneral search , which lasted for about 2-3 hours. The task of this unit was to demonstrate to the personnel of Zamkova Prison how to conduct a g eneral search in the most efficient way, within the g iven time-limit, and to provide a practical opportunity for the special unit to instruct the personnel of the penitentiary and the rapid reaction units (see para g raph 5 3 above). This included assumin g formation in the corridor, takin g the prisoners out of the cells, placin g them a g ainst the walls in the corridor and conductin g full personal searches.

209 . The Governor of Zamkova Prison , officers Mazepa and Mazurenko, prosecutor Volkov and medical officer (head of medical unit) Bondar were present durin g the first trainin g event. However, they were not present durin g the search of all of the cells.

210 . The events of the search were as described by the applicants (see Annex , para g raphs 3- 4 and 11- 14 ) and the prisoners witnesses in their submissions (see Annex , para g raphs 25-29, 32- 34, 38-40 and 42- 43 ).

211 . In particular, as re g ards the search in the cell no. 8 of the Monastyr in Zamkova Prison, where the first and second applicants were held, it started with the sounds of explosions and blank shots from the automatic g uns , apparently in the corridor leadin g from the entry to the Monastyr, in front of the cell no. 8 , and some noise and shoutin g . The applicants could hear people bein g dra g g ed out from the cells and beaten. The search forces also used firecrackers and ban g ed with truncheons on the shields. The officers lit a firecracker near the cell and shot near it.

212 . Shortly after, the door into the cell opened and t wo officers , apparently those who belon g ed to a special unit involved in the search, as they wore masks and flak jackets, ran into the cell , point in g their g uns inside the cell . They ordered the first and the second applicant s to lie on the floor face down . They were not allowed to move. The second applicant was kicked by an officer for findin g no place to lie down inside the cell. T he second applicant received multiple kicks . The officers were movin g inside the cell, steppin g on the prisoners .

213 . T he officers ordered the prisoners of cell no. 8, includin g the first and second applicant and other prisoners of the cell to run into the corridor of the Monastyr one-by-one where other soldiers who had truncheons and shields formed a “corridor” , throu g h whi ch the prisoners ran to the wall in front of the cell. They ran with their heads bent down to the level of their le g s. The first and second applicants were forced to stand up and to run. The second applicant had been dra g g ed out of the cell, with two soldiers holdin g his hands up behind his back so that he was bent down and could hardly walk.

214 . When the second applicant ran he received blows from truncheons to his fore head and back . Those officers formin g a “corridor” tried to strike the first and second applicant and other prisoners from cell no. 8 with truncheons or kick them with their feet . Other officers with shields were makin g a noise, knockin g on the shields with their batons. The first applicant was stopped by a member of a search team who ordered him to stand near the wall. Both the first and second applicant had to stand i n the “ rozt y azhka ” position (see , for explanations as to the position, para g raph 143 above) near it . The second applicant fell after he stayed in this position and was kicked, but was a g ain raised to stand near the wall in the same position. The officers started to search them and the first and second applicants were ordered to strip naked; their clothes were piled in the middle of the corridor and not inspected . Both applicants were asked to g ive their names, the re asons for their conviction and the duration of their sentences. They were asked to swear that they would not violate the detention re g ime and comply with the prison officers ' orders . Then the officers, after receivin g instructions from someone from Zamkova Prison , who knew that both applicants were “ malicious violators of the detention re g ime ” , started hittin g at parts of the first applicant ' s body as h is answer s were not loud enou g h.

215 . The second applicant was ordered to run back to the cell, and started to look for his clothes, which were muddled to g ether in the middle of the corridor , but was kicked for takin g too much time for it . When the second applicant ran back into the cell naked and holdin g clothes , he had to bend down as he was constantly struck. When he entered the cell, he was a g ain ordered to lie down. Then all prisoners were ordered to stand up and to restore order in the cell. Followin g return to the cell they saw all their belon g in g s scattered all over the floor , broken or in a heap in the middle of the cell .

216 . The procedure for conduct of searches and full personal searches of the applicants was re g ulated by the internal prison re g ulations of the Prison Department (see para g raphs 67- 76 , 122 and 136 above). The prisoners who violated the re g ime , in particular, “malicious violators of the re g ime”, were g iven most of the attention in the course of the search from the rapid reaction unit officers and the officers who participated in the search . The Court notes that the first and second applicants held in the Monastyr were identified by Zamkova Prison officers as “malicious violators of the re g ime” and dan g erous criminals who were unwillin g to reform and thus received particular attention from the g uards, bein g g uided by Zamkova Prison officers .

217 . The special forces left before lunchtime on the day of the trainin g . T en to fifteen minutes after the cell door had been closed after the search, on the prisoners ' return from the corridor to the cell no. 8 , they had a visit from Mr Zakharov , Mr Mazepa and Mr Mazurenko who asked the m , includin g the first and second applicants, whether they had any complaints. This was done in the presence of the soldiers from the special forces . Mr Volkov and Mr Stasiuk attended the trainin g exercise and visited cells . Officers from the Prison administration ( includin g Mr Gaydamaka and Mr Zakharov) were also present.

218 . The Court considers that the force used by the authorities a g ainst the applicants durin g the search was inherently likely to lead to injuries of those prisoners held in cell no. 8 of Monastyr . T he Court finds sufficient evidence ensuin g from oral statements g iven by the applicants and witnesses to establish that injuries were inflicted on the first and the second applicants ( see Annex, para g raph s 5 and 16 ) . Furthermore, i n the Court ' s view, the lack of material evidence, such as medical records or me dical examination certificates , substantiatin g specific injuries sustained by the applicants does not prevent the Court from makin g findin g s as to whether excessive force was applied as a result of which the applicants were injured. I n this respect the Court finds that the system for recordin g injuries enabled penitentiary officials not to record injuries and not to react to medical complaints, a s the Court considers happened in the case. The Court notes that, in view of lack of medical records in the instant case, there is no reliable written source of evidence for determinin g whether a particular applicant prisoner was or was not subjected to ill-treatment. Also, it is not for the Court to establish the kind or de g ree of injur y if it is satisfied that the treatment attained the level at which Article 3 applies . The Court also refers in support of these findin g s to others witness statements, which it found convincin g . In particular , it considers that the statements g iven by the second applicant (see Annex, para g raph 11) , who watched the search in the corridor throu g h a chink in the door , and the results of it seen by Mr Getmansky , who saw injured prisoners pass by to the medical unit (see Annex, para g raphs 43-44) , under g uard or with help of the other prisoners , were reliable and trustworthy. The Court further notes that the conduct of the trainin g lar g ely corresponded to the trainin g plans (see para g raphs 52- 64 above) and the internal domestic re g ulations (see para g raphs 66- 80 and 134 above) , a position which was on a number of occasions underlined by the witness statements g iven by the officials of Zamkova Prison, local and special prosecutors and the officials of the Prison Department. However, some of these re g ulations like the Order no . 75 of 27 April 2000 on the conduct and operation of the special units (see para g raphs 77- 80 above) were not publicly accessible and were provided by the Government only upon request of the Court (see paragraphs 142 above). Thus, the Court considers that there were no g rounds provided by law, within the meanin g of the Convention, for operation of the aforementioned special unit.

219 . The Court further accepts that the applicants asked for medical assistance immediately after the trainin g exercise and on the next day, but none was provided so they had to g ive medical aid to each other. The injuries inflicted on the prisoners in the course of the g eneral search were not recorded and there were no traces of any records of injuries inflicted on the applicants . No medical treatment and assistance was provided for the injuries which both the first and the second applicant sustained . Given the inadequacy of the recordin g of medical complaints (see para g raph 218 above) , the mere absence of records is not sufficient to counterbalance the evidence before the Court. The Court concludes that the first and second applicants received injuries which resulted from the events surroundin g search in cell no. 8 of Monastyr on 30 May 2001.

220 . The Court also notes that the applicants were unable to seek redress for alle g ed infrin g ements of their ri g hts, and by the first applicant , Mr Davydov , and the second applicant , Mr Gomeniuk , were punished for bypassin g the prison authorities and lod g in g their complaints directly with the respective prosecutor ' s office, i.e. by means other than those envisa g ed in domestic law for lod g in g such complaints, and thus in breach of the internal prison re g ulations (see , for particular events, para g raph s 9 1 and 93 and for relevant prison re g ulations on sendin g and censorship of correspondence, para g raphs 118 , 132 and 134- 135 above). Mr Ilchenko on several occasions had to explain why he had complained about the trainin g exercises to Prison authorities. The complaints g iven by the first and second applicants durin g the next day to Mr Gaydamaka, head of their prison detachment, and to Mr Mazurenko were not sent out . After these complaints were g iven to Mr Gaydamaka , who threatened the applicants and demanded them to withdraw their complaints, which they eventually did , a g ain, f ollowin g different threats.

© Events of 29 January 2002 and the ensuin g events

221 . The second trainin g exercise and search started at 6 a.m. and involved units from Prisons nos. 31 and 58, rapid reaction units from rapid reaction units of Zamkova Prison , Iziaslav Prison no. 31, Shepetivka Prison no. 98, Prison no. 78 and SIZO (pre-trial detention centre) no. 29 of the Khmelnytsky Re g ion. The g roups were trained near the checkpoint on the g rounds outside Zamkova Prison from 8.30 a.m. to 11 a.m.; at 11 a.m. they entered the residential area of Zamkova Prison and continued with the g eneral search of the isolated sections until 3 p.m. (see para g raph 6 1 above). Accordin g to the relevant plan of the trainin g (Plan no. 4) , the search started at 9 a.m. and finished at 12 a.m. (see para g raph 63 above).

222 . The trainin g exercise on how to combat mass disobedience was supervised by representatives of the Prison Department , officers from the aforementioned prisons and officers to whom the special units actin g within the Prison Department were subordinated. A substantial number of persons was involved in the trainin g , and there was noise from firecrackers and blank shots.

223 . The trainin g exercise involved participation by the g roups responsible for blockin g , documentin g , medical assistance, convoy, search, and the special and reserve g roups. Accordin g to the trainin g plan t he total number of staff to be involved was 151. The special unit was to use 3 automatic g uns, firecrackers, si g nal rockets, etc. A total of 29 members of staff of Zamkova Prison, out of 151 persons overall , were to be involved in the g eneral search (see para g raph 62 above). One of the aims of the trainin g was to train Zamkova Prison ' s personnel and the rapid reaction units in conductin g searches of the premises occupied by prisoners and searchin g the prisoners themselves. In particular, the search of prisoners and of the residential area was mentioned as one of the main trainin g aims. The stated aim of the search was to find prohibited items and to identify preparations for escape, preparatory actions for the commission of criminal offences. The s earch also had the aim of prevention of possible breaches of prison re g ulations as it mainly concerned “malicious violators of the re g ime” and focused on inspection of disciplinary cells and those cells where the operational circumstances had been troublesome . The personnel involved in the search w ere divided into three mixed g roups, with different commandin g officers who conduct ed a g eneral search in the residential zone of Zamkova Prison . The search had been conducted in the SHIZO, PKT , OK , TU in the severe detention re g ime area; cells nos. 19 and 29 in departments nos. 5 and 8; departments nos. 9 and 10 in the prison section of the g eneral detention re g ime area.

224 . T he results of the fact-findin g mission confirmed that t he events of the second trainin g exercise and search of 29 January 2002 were as described by the applicants (see Annex , para g raphs 6 -8, 16-17 and 20- 22 ) and the witnesses who were detained in their submissions (see Annex , para g raphs 35 and 44- 45 ) . The Court also observes that the assumptions of some prisoners , such as Mr Getmansky (see Annex , para g raph 44 ), that there was a substantial number of officers involved, were true, since the number of participants exceeded that of the first trainin g exercise.

225 . After the trainin g session the forces entered the residential zone, where they participated in g eneral searches; as noted above, this was as “reinforced presence g roups”. They blocked entrances to localised zones of Zamkova Prison and remained in the corridors to prevent prisoners ' “unexpected behaviour”. The rapid reaction units involved in the search wore g reen camoufla g e uniform, had special equipment, includin g “sphere” helmets , shields , black flak jackets ; some of them carried automatic g uns , rubber truncheons, handcuffs, immobilisin g pitchforks and firecrackers. The special forces involved in the search also wore camoufla g e and masks, with automatic g uns . T he officers from the search g roup were from the same type of military unit , differed from the Prison staff and wore bulletproof vests (flak jackets), khaki uniforms with rolled-up sleeves, and had weapons and shields (yellow or li g ht brown) . They also had immobilisin g pitchforks, masks and helmets.

226 . There was noise from automatic g unshots, explosions of “firecrackers” and smoke. The forces searched cells, openin g them one by one. The y searched the first floor ( the “ second ” floor in Ukraine ) of Monastyr and ordered the prisoners , includin g the first applicant who was incarcerated there, to lie down . Then they used force to dra g prisoners out to the corridor , where the prisoners would pass throu g h the “live corridor” of soldiers who kicked or struck at the prisoners with rubber truncheons. They were ordered to stay in the “ rozt y azhka ” position (see, for explanations as to description of this position, para g raph 143 above) and ordered to shout their names, swear that they would not violate the detention re g ime and cooperate with the administration. One of the Prison officers g ave instructions to the officers participatin g in the search . Then officers ordered the prisoners to run to the cell.

227 . In the course of the second trainin g exercise , the officers searched the solitary confinement cell , situated on the first floor of Monastyr , where the first applicant was held (see Annex , para g raph 6) . This applicant was dra g g ed out of the cell by two officers who threw him into a very narrow passa g eway between the cells, where he saw Mr Volkov, Mr Stasiuk and a third person standin g at a distance of 5-6 metres. He also saw some other prisoners who were dra g g ed out from solitary confinement cells. The first applicant was beaten as he refused to swear that they would comply with the administration ' s instructions. He was thrown back into the cell, where o ne of the soldiers, who wore solid military boots , kicked him and he fainted. The applicant was not examined by the prison doctors with re g ard to his medical complaints. Eventually, only a doctor from outside informed him that his ribs were broken and recorded this information in the medical re g ister (see Annex, para g raph 8) , which disappeared durin g his transfer to a different prison (see, facts in relation to the second trainin g exercise as shortly summarised in the admissibility decision in the present case , Druzenko and Others v. Ukraine (dec.), nos. 17674/02 and 39081/02, 15 January 2007 ) .

228 . T he second applicant ' s cell was not searched, as the officers only searched cells nos. 19 and 29 nearby , in the same corridor , while he was held on the first floor, after transfer from the “imprisonment re g ime” to a maximum security re g ime or re g ime of the hi g hest severity , in cell no. 23 of the Monastyr. However, h e was beaten and received injuries followin g the trainin g of the special forces, after the special forces left Zamkova Prison , by Mr Zaremsky and some junior prison inspectors from the 8 th detachment. He was never examined by the doctor in relation to these injuries and received no medical treatment in that respect.

229 . The third applicant ' s cell was in disarray . Also, he received injuries , which resulted from the acts of the officers who participated in search. The third applicant sustained rib and nose injuries, as well as did a number of other prisoners . However, he was neither examined nor provided with medical treatment for these injuries.

230 . A g ain, the a bsence of medical records is not conclusive for determinin g that n one of the applicants were able to complain about the ir injuries to the authorities outside Zamkova Prison, even thou g h the prison authorities were aware of the injuries and the complaints raised in that respect . The first applicant was unable to lod g e his complaints with authorities outside the prison as the penitentiary officers censored all correspondence, Mr Mazurenko and Mr Mazepa tore them up, but the complaints were eventually sent to Mr Zherdev. The first applicant was placed in the solitary confinement cell ( карцер ) as a sanction for sendin g correspondence by unauthorised means.

( d ) Investi g ation into the applicants ' complaints

231 . The Court notes that the applicants received several replies from the prosecution authorities upon their complaints concernin g the first trainin g exercise (see para g raphs 85- 88 above). Also, Mr Skokov conducted review of the complaints on behalf of the State Prison Department which concerned the first trainin g exercise (see para g raph 98 above). Furthermore, two investi g ations were conducted by the domestic prosecution authorities on the basis of the complaints lod g ed on behalf of the applicants by Mr Zherdev , however, after the second trainin g exercise (see, as to the facts of fir s t and second investi g ation, respectively, para g raphs 87-94 and 95- 97) .

232 . T he investi g ation s and review were or g anised in such a way that the persons who initially authorised the search and who were present durin g its conduct (Mr Volkov, Mr Yantselovsky and Mr Satsyuk), were the same persons who g ave le g itimacy to the investi g ation ' s findin g s , were present durin g questionin g of those who wished to complain or were responsible for reviewin g the applicants ' complaints (see para g raphs 90 and 98 above) . In particular, Mr Sne g ir accepted that he was present durin g the first applicant ' s questionin g by the prosecutor (see Annex , para g raph 100 above) , which was most probably conducted in the presence of the security g uards. The same applied to the prosecutor ' s and administration ' s visits to the cells immediately after the search and the questionin g with re g ard to complaints of injuries and ill-treatment, which were conducted in the presence of the possible or alle g ed perpetrators and g uards from the special unit or rapid reaction units (see Annex , para g raph s 4, 15, 67 and 93 ).

233 . Thus, takin g into account documentary and oral evidence, the investi g ation conducted by the prosecutors corresponded to the evidence presented to the Court. Furthermore, notwithstandin g the written submissions g iven by some of the applicants as to their ill-treatment they were not examined and no medical examinations were ever or g anised in the course of investi g ation conducted by the Khmelnytsky Re g ional Prosecutor ' s Office. Moreover, some complaints sent by the applicants were not sent out as out g oin g mail was censored and as well as all the correspondence dropped into a special mailbox desi g nated for complaints a g ainst Zamkova Prison authorities (see, for re g ulations concernin g the use of mailboxes, para g raph 134 above) , which had to be sent out within one day of receipt accordin g to the applicable re g ulations (see parag raph 118 above) .

234 . The investi g ation conducted by Mr Iltiay and his deputy, officers of the State Prison Department , which concerned complaints with re g ard to the second trainin g exercise, involved questionin g of about hundred witnesses by Mr Irshko within a day ( see Annex, para g raph 103 ) , involved no review of medical evidence, and no other medical examinations . The conduct and manner of this investi g ation was such as described by the relevant witness statements , even thou g h it was not supported by any records of this investi g ation. The Court also notes that this report was not provided to it for review as the time-period for its retention expired and it was destroyed (see para g raph 168 above). Thus, it was not possible to ascertain the factual details established by this review of the complaints , or even exact date on which questionin g of witnesses took place. Finally, the Court notes that a report was also prepared by Mr Skokov, on the basis of the report from officer Danyshevsky who had investi g ated the matter from 3 to 4 October 2001 , and on the basis of instructions g iven by the State Prison Department (see para g raph 98 above) . That report mi g ht have formed part of the investi g ation carried out under the authority of Mr Irshko, but a g ain no copy has been made available to the Court (see Annex, para g raph 103) .

235 . T he Court will proceed to examine the applicants ' complaints under the various Articles of the Convention on the basis of the findin g s made above (see para g raphs 202- 234 above) .

IV . ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

236 . The applicants , that is the first, second and third applicants (see, para g raphs 149- 153 above) , mainly complained under Articles 3 of the Convention that they were ill-treated by the special forces and were injured and humiliated in the course of the special trainin g exercises or g anised on 30 May 2001 and 29 January 2002. They also claimed that the conditions of their detention and the lack of adequate medical treatment and assistance were inhuman and amounted to de g radin g treatment. Article 3 of the Convention provides:

“No one shall be subjected to torture or to inhuman or de g radin g treatment or punishment.”

237 . The Government stated that the applicants were not disciplined for their attempts to complain about ill-treatment by the special police forces or prison administration. In particular, they stated that , accordin g to the r e g isters of prisoners kept in isolation units nos. 2688 (records for the period from 8 June 2000 to 16 July 2002) and 3914 (records for the period from 17 January 2002 to 30 December 2003) , only the first applicant (Mr Davydov) had been subjected to disciplinary sanctions. In particular, on 14 July 2001 he was disciplined by 15 days ' solitary confinement for his refusal to be detained with other prisoners . The Government further ar g ued that these disciplinary measures imposed on the first applicant pursued the le g itimate aims of maintain in g order and security in prison and avoid in g the commission of other offences in prison . Also, they stated that the len g th of his detention was reasonable.

238 . The applicants disa g reed with the Government and stated that disciplinary measures a g ainst the applicants were applied arbitrarily and as a punishment for their complaints about the prison authorities ' acts or omissions. They stated that, for instance, the second applicant had been subjected to disciplinary measures on twenty-seven occasions.

239 . The Court considers it in appropriate to review complaints concernin g interference with the applicants ' correspondence and impediments to their various complaints in conjunction with those under Article 3 of the Convention, as they are rather an element of proof for the complaints under Articles 8 § 1 and 34 of the Convention.

A . The Government ' s objection s as to exhaustion of domestic remedies

1. The p arties ' submissions

240 . The Government contended that the first, second and third applicants had failed to exhaust all the domestic remedies available to them under Ukrainian law. In particular, considered that the applicants could and should have made complaints to the prison or prosecution authorities and thereafter to the domestic courts.

241 . The Government stated that the second applicant never raised complaints that specifically concerned his alle g ed ill-treatment by special forces.

242 . As to the complaints lod g ed by the third applicant, the Government noted that he did not apply to the General Prosecutor ' s Office at all , althou g h he did complain to the local prosecutor ' s office , raisin g similar alle g ations to the first and second applicants .

243 . Furthermore, with respect to the conditions of the applicants ' detention and the alle g ed lack of medical treatment and assistance, the Government noted, referrin g to the relevant domestic case-law, that the acts or omissions of the State bodies and their officials could be appealed directly to courts under Article 55 of the Constitution and the relevant provisions of the Codes of Civil and Criminal Procedure. The Government stated that the applicants had provided no evidence in support of their complaints about the conditions of detention.

244 . The applicants submitte d that they had exhausted all the domestic remedies available to them under Ukrainian law. They further alle g ed that they ha d lod g ed complaints with the prosecutor ' s office about their ill-treatment by the special police forces, but that office had failed to or g anise and conduct an effective investi g ation upon their complaints. They also mentioned that the prosecutor ' s office failed to adopt a procedural decision on their complaints, thus makin g the possibility of a successful appeal a g ainst it theoretical. They also maintained that they had sent their complaints to various State authorities, but without success.

245 . The applicants submitted that there were no effective and accessible remedies to complain about the conditions of their detention.

2. The Court ' s assessment

( a ) Preliminary considerations

246 . In the Court ' s opinion, three issues aris e out of the Government ' s objection as to exhaustion of domestic remedies , joined to the merits of the applicant ' s complaints (see Druzenko and Others v. Ukraine (dec.), nos. 17674/02 and 39081/02, 15 January 2007) , which require further examination:

– firstly , whether there were any effective and accessible remedies available for the applicants to complain about their ill-treatment in the course of the trainin g exercises ;

– secondly , whether there were any effective and accessible remedies to complain about the lack of necessary medical treatment and assistance while they were incarcerated ;

– thirdly , whether there were any effective and accessible remedies to complain about the conditions of their detention and overcrowdin g in the cells.

( b ) Applicable principles

247 . The Court recalls that, accordin g to its established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contractin g States the opportunity of preventin g or puttin g ri g ht the violations alle g ed a g ainst them before those alle g ations are submitted to the Court. However, the only remedies to be exhausted are those that are effective. It is incumbent on the Government claimin g non-exhaustion to satisfy the Court that the remedy was an effective one , available in theory and in practice at the relevant time. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolvin g him or her from this requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003).

248 . The Court emphasises that the application of this rule must make due allowance for the context. Accordin g ly, it has reco g nised that Article 35 must be applied with some de g ree of flexibility and without excessive formalism. The Court has reco g nised that the rule of exhaustion of domestic remedies is neither absolute nor capable of bein g applied automatically; in reviewin g whether the rule has been observed, it is essential to have re g ard to the particular circumstances of the individual case. This means, amon g st other thin g s, that the Court must take realistic account not only of the existence of formal remedies in the le g al system of the Contractin g Party concerned , but also of the g eneral le g al context in which they operate , as well as the personal circumstances of the applicant (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Jud g ments and Decisions 1996-IV). It must examine whether, in all the circumstances of the case, the applicant s did everythin g that could reasonably be expected in order to exhaust domestic remedies.

249 . The Court further recalls that the decisive question in assessin g the effectiveness of a remedy concernin g a complaint about ill-treatment is whether the applicant can raise this complaint before domestic courts in order to obtain direct and timely redress, and not merely an indirect protection of the ri g hts g uaranteed in Article 3 of the Convention. The remedy can be both preventive and compensatory in instances where persons complain about their ill-treatment in detention or the conditions thereof (see Melnik v. Ukraine , no. 72286/01, § 68 , 28 March 2006 ) .

250 . The Government su g g ested the followin g remedies: complaints to the prison or prosecution authorities and complaints to the domestic courts , accordin g to the procedures provided by the national law. The Court , takin g into account its case-law as to the exhaustion of domestic remedies described above (see para g raphs 247 - 249 above), will examine the effectiveness and accessibility of these remedies in relation to each of the applicants ' complaints under Article 3 of the Convention.

( c ) The Court ' s assessment

( i ) The applicants ' ill-treatment

252 . T urnin g to the facts of the present case, the Court notes that the applicants sent a series of complaints to the authorities about both the first and the second trainin g exercises (see para g raphs 23, 25 and 99 above). On 17 Au g ust 2001 Prosecutor Volkov replied that there had been no violations of the law ( see para g raph 85 above). Followin g a prosecutor ' s investi g ation, on 1 1 June 2002 Mr Bukher refused to institute criminal proceedin g s as the applicants ' complaints did not disclose any unlawfulness ( see para g raph 93 above). After a further direction from the Deputy Prosecutor General, on 6 Au g ust 2002 the Actin g Re g ional Prosecutor informed the Deputy Prosecutor General that the complaints were unsubstantiated, and that the file had been transferred to the General Prosecutor ' s Office for examination ( see para g raph 97 above ). The applicants ' complaints also g ave rise to an investi g ation by the prison authorities which concluded on 15 October 2001 that the complaints about the first trainin g exercise were un g rounded as the trainin g had been based on a lawful decision and had been supervised by prosecutor Volkov ( see para g raph 98 above ).

The Court notes that it would have been open to the applicants to refer the decisions of 17 Au g ust 2001, 15 October 2001 and 11 June 2002 to the courts under Article 236-1 of the Criminal Code with reference to Articles 4 and 99 thereof , but that they did not. Such an application would have required the applicants to produce relevant medical evidence to the courts, which they were not in a position to do because no medical records were available in prison (see the findin g s at para g raphs 218 and 219 above ) and the Government do not su g g est that it would have been open to the applicants to be examined by an independent medical expert for the purposes of a court action whilst they were detained. Moreover, a court review would only have considered compliance with the substantive and procedural g rounds for institutin g proceedin g s, and in the absence of medical evidence (i . e . substantive g rounds) the applicants would have had to claim that the prosecutor had not complied with Article 97 of the Code of Criminal Procedure (see para g raph 112 above ). Such a review would have been limited to whether the prosecutor had respected the time-limits and taken a decision which was open to him, neither of which was the case.

253 . The Court concludes that the applicants were not required to pursue the complaints they made to the various prosecution authorities before the courts. Takin g into account the aforementioned considerations , the Court concludes that the Government ' s objection as to exhaustion of domestic remedies should be dismissed.

( i i) The applicants ' complaints about the lack of medical treatment and assistance

254 . As to the complaints about the lack of medical treatment and assistance, the Government contended g enerally that the applicants could have g one to the courts under Article 55 of the Constitution and the relevant provisions of the Codes of Civil and Criminal Procedure. The Court recalls that it has already found that Article 55 of the Constitution did not possess the necessary effectiveness for a complaint under Article 5 of the Convention, as it is of a very g eneral nature and did not provide specific redress for the alle g ations (see Nevmerzhitsky v. Ukraine (dec.), no. 54825/00, 25 November 2003). Those considerations apply also to the present circumstances, and as in that case, the Government have not shown how such an application could provide direct and speedy protection for breach of ri g hts under Article 3 of the Convention . As to other possible remedies , – complaints to the prison or prosecution authorities, or to the courts – the Court finds that the Government have failed to demonstrate how in , the absence of medical findin g s of injuries or any medical records (see para g raphs 218-220 and 227- 230 above) , the domestic courts or other competent State authorities could have remedied the apparent refusal of the sole available qualified medical officer to provide the applicants with adequate and necessary medical treatment for the injuries they sustained as a result of the trainin g exercises or how they could claim compensation or redress in the absence of such medical findin g s.

255 . The Court concludes therefore, as to the alle g ed complaints procedures open to the applicants re g ardin g the lack of adequate medical treatment and assistance, includin g complaints to the domestic courts , that the Government ' s objection must be dismissed .

( i ii ) The applicant ' s complaints about the conditions of detention

256 . As to the applicants ' complaints about the conditions of detention, the Court notes that while it is true that the applicants did not use the channels su g g ested by the Government, the Court finds that the problems arisin g from the conditions of detention are of a structural nature and concern not only the applicants ' personal situation (see Melnik v. Ukraine , no. 72286/01, § 70, 28 March 2006 ).

257 . In the instant case the Government have not demonstrated what redress the domestic courts or other State authorities could have afforded the applicants, g iven the accepted economic difficulties of the prison administration. Furthermore, they have not shown how the applicants ' complaints about poor conditions in the cells, includin g overcrowdin g , could have been remedied by complaints to the domestic prison authorities, prosecutor ' s office or the domestic courts, as the domestic minimal standard , accordin g to the domestic law applicable at the material time (see para g raph 121 above) for an prisoner ' s floor space was 2 m 2 (for correctional labour colonies) and 2.5 m 2 (for prisons and educational colonies) and in the instant case, on the domestic calculations that were based on overall residential prison space and a number of prisoners these standards were complied with (see para g raphs 44- 48 above). Nor have they shown how these complaints could brin g improvement to the applicants ' detention conditions (see Kucheruk v. Ukraine , no. 2570/04, § 117, ECHR 2007 ‑ X).

258 . The Court, takin g into account its previous case-law on the matter of exhaustion of domestic remedies in respect of conditions of detention in Ukrainian prisons, its findin g s in similar cases (see Melnik v. Ukraine , no. 72286/01 and Dvoynykh v. Ukraine , no. 72277/01, quoted above ), the specific circumstances of the present cases relatin g to acts undertaken by the domestic authorities to examine the applicants ' complaints (see para g raphs 85- 97 and 9 9 - 100 above) and its conclusions as to the factual circumstances of the case (see para g raphs 219- 220 and 227- 228 above), considers that the applicants had no effective and accessible remedies for their complaints about the conditions of detention, includin g overcrowdin g in the prison cells. Thus, the Court considers that the applicants complied with exhaustion requirements , and t he Government ' s objection in this respect must therefore be dismissed .

( iv ) The Court ' s conclusions

259 . In these circumstances and takin g into account the Court ' s conclusions as to the Government ' s objections raised above (see para g raph s 2 51 - 2 5 3 , 254 - 255 and 25 6 - 258 above), the Court finds that th e s e applicants ' complaints cannot be dismissed for failure to exhaust domestic remedies.

C . Merits of the remainder of the applicants ' complaints under Article 3 of the Convention

1. The applicants ' alle g ed ill-treatment

260 . In their initial submissions as to the admissibility and merits of the applications, the Government stated that no special police forces trained at Zamkova Prison, no ill-treatment of the applicants ever occurred and that there was no breach of Article 3 of the Convention . They maintained the same point of view before the fact-findin g mission and at its preliminary sta g es. In their submissions lod g ed after the fact-findin g mission, the Government accepted that it was established that special tactical trainin g exercises were held in Zamkova Prison on 30 May 2001 and 2 9 January 2002. These exercises, involvin g a search of the prison premises, were aimed at preparin g staff to suppress possible riots and resolve kidnappin g situations. The y further pointed out that those exercises did not involve the prisoners and that the applicants had not been subjected to any ill-treatment. They concluded that the applicants had failed to substantiate their complaints and did not provide any corroboratin g evidence (e. g . medical certificates, testimonies of independent eye-witnesses, etc.) in support of their alle g ations under Article 3 of the Convention . Thus, there had been no infrin g ement of that provision.

261 . The applicants disa g reed. They maintained , throu g hout the proceedin g s, that the very fact that the police forces “trained on them” and the lack of a le g al basis for such trainin g showed that it was aimed at intimidatin g the prisoners . Moreover, the or g anisation of the trainin g and the manner in which it was conducted proved that its purpose was to ill-treat and humiliate the prisoners .

262 . The Court recalls that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or de g radin g treatment or punishment. The obli g ation on Hi g h Contractin g Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the ri g hts and freedoms defined in the Convention, taken to g ether with Article 3, requires States to take measures desi g ned to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or de g radin g treatment (see Afanasyev v. Ukraine , no. 38722/02, § 59, 5 April 2005 ). Moreover, the State is directly responsible for the well-bein g of persons deprived of their liberty (see Stepuleac v. Moldova , no. 8207/06, § 55, 6 November 2007; and Kadiķis v. Latvia (no. 2) , no. 62393/00, § 55, 4 May 2006).

263 . The Court further re iterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, a g e and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human di g nity and is in principle an infrin g ement of the ri g ht set forth in Article 3 (see the jud g ment s in Ribitsch v. Austria , 4 December 1995, § 38, Series A no. 336 ; Assenov and Others v. Bul g aria , 28 October 1998, § 94 , Reports 1998-VIII; S elmouni v. France [GC], no. 25803/94, § 99 , ECHR 1999 ‑ V; BerliÅ„ski v. Poland , nos. 27715/95 and 30209/96, § 59, 20 June 2002; Kucheruk v. Ukraine , no. 2570/04, § 131, ECHR 2007 ‑ ... ; and Suptel v. Ukraine , no. 39188/04, § 46 , 19 February 2009 ).

264 . Turnin g to the facts of the present case in relation to each of the applicants , t he Court observes that the first applicant, Mr Davydov, was held in Zamkova Prison from 3 February 2001 to 19 May 2001, when he was transferred to Shepetivka Penitentiary no. 98 for medical treatment. He returned to Zamkova Prison on 25 May 2001 and he was held there until 20 April 2002. The second applicant, Mr Ilchenko, arrived at Zamkova Prison on 3 February 2001 and left it on 27 September 2004. The third applicant, Mr Gomenyuk , was held in Zamkova Prison from 3 November 2001 to 27 September 2002. Thus, the Court will examine the first and the second applicants ' complaints concernin g ill-treatment in respect of both special trainin g exercises and the third applicant ' s complaints in respect of the second trainin g exercise only.

265 . In relation to both trainin g exercises, the Court has already remarked on the lack of information provided to the prisoners as to the fact that such trainin g s would be conducted. Lack of such information as to the trainin g , from the Court ' s point of view, underlines proof ensurin g from various reports confirmin g the domestic practice of treatin g prisoners as objects of the trainin g and search exercises (see para g raphs 104 - 106 and 143 above) , who are not asked for their consent and are not informed about searches or trainin g s. This seemed to be a normal and unquestionable practice for the witnesses that appeared on the part of the Government (see para g raph s 195- 197 above) , partly correspondin g to the domestic re g ulations that allow requests for use of the special units to be used in problematic prisons upon requests of prison g overnors (see paragraph s 77 ‑ 80 above ) . Such an attitude on the part of the authorities su g g ests to the Court that the treatment to which the applicants were subjected was de g radin g and incompatible with their human di g nity. Additionally, i t finds that at least part of the aim of the trainin g was to fri g hten and humiliate prisoners , and to coerce those who frequently violated the re g ime (“malicious violators of the re g ime of detention”) to comply with the prison rules and re g ulations (see , for definitions of the malicious violators of the re g ime, para g raphs 119 , 202 and 214- 216 above). An example of such threatenin g , intimidatin g and uninformed use of special equipment was the use of the automatic g uns at the moment of enterin g the cells, without any prior notification or explanation ( see Annex, para g raphs 4 and 6 ). A lso , the use of special units was a normal practice in the State Prison Department , aimed at dealin g with prisons containin g dan g erous prisoners , as it ensued from various domestic and international human ri g hts reports (see para g raphs 104- 108 and 143 above) .

266 . The Court further finds that excessive force was used a g ainst the prisoners , without any justification or lawful g rounds. The force and special equipment were used without any reasonable g rounds and contrary to international standards for use of force and special equipment (see para g raphs 10 1- 10 2 and 10 8 above). It also is of the opinion that the manner in which these trainin g s were or g anised unavoidably led to the injury and humiliation of the prisoners . This resulted not only from the excessive use of force by the officers, who aimed to comply with short time-limits for inspections inside the cells, but also from dra g g in g the prisoners out of the cells, their “speedin g up” when they left their cells and enforcement of unjustified and humiliatin g orders by the officers participatin g in the trainin g . Humiliatin g orders included those to completely undress and to swear in front of others that the applicants would comply with the prison administration ' s demands and that they would not break the re g ime of detention. Injuries were inflicted on the applicants if they resisted, refused to comply or were not sufficiently fast, from the officers ' point of view, in complyin g with their orders or in reactin g to a sudden inspection of the cell (see para g raphs 2 12-214 and 226- 227 above).

267 . As to the circumstances of each of the searches, the Court would underline that the prisoners of the Monastyr block , where the applicants were held, suffered most (see para g raph s 2 1 0 and 223 above, with further references ) on both occasions . Furthermore, excessive force was used a g ainst particular prisoners , includin g the first and second applicants in the course of the first trainin g and the first, second and third applicant s in the course of the second trainin g exercise. Particular force and humiliation was used a g ainst them as they were considered “ malicious violators ” of the detention re g ime (see para g raph s 213-214, 218 and 226- 22 9 above) .

268 . T he Court finds that the first and the second applicants were injured in the course of the first trainin g exercise and that all three of them were injured as a result of the second exercise , in which officers from the State Department for the Enforcement of Sentences used excessive force a g ainst the applicants. The Court bears in mind the difficulties in policin g modern societies, the unpredictability of human conduct and the need to train and keep staff prepared for possible unexpected conduct of prisoners , includin g conduct related to mass riots or takin g of hosta g es , for which the special forces were bein g trained. It also notes that the applicants were convicted criminals, who were servin g their sentences for serious crimes. However, even in the most difficult circumstances, such as the fi g ht a g ainst terrorism , or g anised crime or dan g erous criminals , the Convention prohibits in absolute terms torture or inhuman or de g radin g treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no dero g ation from it is permissible under Article 15 § 2 even in the event of a public emer g ency threatenin g the life of the nation (see Dikme v. Turkey , no. 20869/92, § 89, ECHR 2000 ‑ VIII ). Furthermore, Article 3 of the Convention establishes, like Article 2 of the Convention, a positive obli g ation on the State to train its law enforcement officials in such a manner as to ensure their hi g h level of competence in their professional conduct so that no-one is subjected to torture or treatment that runs contrary to that provision (see, mutatis mutandis , Abdullah Yilmaz v. Turkey , no. 21899/02, § 57 , 17 June 2008 ). This also presupposes that the trainin g activities of law enforcement officials, includin g officials of the penitentiary institutions, are not only in line with that absolute prohibition , but also aim at prevention of any possible treatment or conduct of a State official, which mi g ht run contrary to the absolut e prohibition of torture, inhuman or de g radin g treatment or punishment .

269 . T he Court considers that the excessive force and equipment used , such as helmets and masks, so as to conceal identity of the officers who participated in the trainin g s and so that those involved in the trainin g could not be distin g uished or identified , makin g any further complaints practically im possible , coupled with injuries and the humiliatin g manner in which the search es were conducted (see para g raphs 207 - 220 and 222 - 230 ) , cause d physical and mental pain or sufferin g to the first and second applicants as a result of the first trainin g and to all three applicants as a result of the second trainin g .

270 . Furthermore, the Court finds that the applicants suffered not only from injuries and humiliation in the course of the trainin g , but from fear and an g uish as to what mi g ht happen to them when they awaited at least the second trainin g exercise; havin g experienced the first trainin g session, the applicants must have suffered distress from the rumours that another session was planned, and then , as the time approached, from noise comin g from outside . T he y also were ill-treated due to bein g subject ed to full body search es in the Monastyr ' s corridor in front of their cells , in the absence of any g rounds for such full body searches or any reasonable necessity to perform them in the manner they were performed (see para g raphs 213- 215 and 226 above) . Moreover, the Court underlines that the manner in which the searches and the full body searches were conducted surpassed the usual de g ree of indi g nity that is inherent in the so-called “ordinary searches” (see para g raphs 67- 76 above) that were conducted at Zamkova Prison .

271 . The Court finds that the first and the second applicants , in the course of the first trainin g , and all three applicants in the course of the second trainin g exercise were ill- treated in a way that was likely to arouse in them feelin g s of fear, anxiety and vulnerability and was likely to humiliate and debase them and break their resistance and will. The Court further considers that such treatment was intentionally meted out to the applicants by a g ents of the State in the performance of their duties, with the aim of breakin g the applicants ' will as they were difficult to deal with , and to ensure that t he y cooperate d with Zamkova Prison authorities. Nevertheless, it considers that the applicants ' ill-treatment, physical and mental violence a g ainst them , considered as a whole, did not reach such a level of “ severity ” to be characterised as torture, within the meanin g of Article 3 of the Convention . Thus, in view of the specific circumstances of the case, such as the duration of the treatment, its physical or mental effects, sex, a g e and state of health of the victims, the Court considers that the violence inflicted on the applicants was both inhuman and de g radin g (compare and contrast, Selmouni v. France [GC], cited abo ve, §§ 103- 105 ) .

272 . The Court therefore concludes that the State is responsible under Article 3 on account of the inhuman and de g radin g treatment to which the applicant s were subjected in the course of the trainin g exercises held on 30 May 2001 and 29 January 2002 . Accordin g ly, there has been a violation of Article 3 of the Convention with re g ard to the ill-treatment of the first and second applicants in the course of the trainin g held on 30 May 2001 and that there was a violation of Article 3 of t he Convention on account of ill ‑ treatment of the first, second and third applicants in the course of the trainin g exercise or g anised on 29 January 2002 .

2 . The alle g ed failure of the domestic authorities to conduct an effective investi g ation (procedural limb of Article 3 of the Convention)

( a ) Parties ' submissions

273 . The applicants stated that no effective investi g ation had been conducted. They further mentioned that the review conducted by the domestic authorities had had yielded no actual result s and was therefore useless.

274 . The Government stressed that they had complied with the positive obli g ation to investi g ate under Article 3 of the Convention and maintained that the investi g ation by the domestic authorities in the present case had complied with the requirements of this provision.

275 . The Court also notes that the Government raised a preliminary objection concernin g the applicants ' failure to exhaust domestic remedies in relation to failure of the authorities to conduct effective investi g ation into the circumstances of the case. It decided that these issues were closely linked to the merits of the applicant ' s complaints (see Druzenko and Others (dec.), nos. 17674/02 and 39081/02, 15 January 2007 ) and ruled that these matters fell to be examined under Articles 3 and 13 of the Convention invoked by the applicant. The Court will thus examine these issues accordin g ly. In particular, it considers that parallel issues under Article 13 of the Convention, the requirements of which are broader than the obli g ation to investi g ate imposed by Article 3 (see Cobzaru v. Romania , no. 48254/99, § 83, 26 July 2007 ), must be examined separately.

( b ) Principles enshrined in the a pplicable case-law

276 . W here an individual raises an ar g uable claim that he has been subjected to ill-treatment by a g ents of the State unlawfully and in breach of Article 3 of the Convention, that provision, read in conjunction with the State ' s g eneral duty under Article 1 to “secure to everyone within [its] jurisdiction the ri g hts and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investi g ation. Article 3 thus includes a procedural obli g ation to carry out an effective investi g ation into alle g ed breaches of the substantive limb of its requirements (see Å ilih v. Slovenia [GC], no. 71463/01, § 153 , 9 April 2009 ). As with an investi g ation under Article 2, such an investi g ation should be capable of leadin g to the identification and punishment of those responsible (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 3 2 4 - 3 2 5, ECHR 2007 ‑ ... ; Poltoratskiy v. Ukraine , no. 38812/97, § 125, ECHR 2003 ‑ V ). Otherwise, the g eneral le g al prohibition of torture and inhuman and de g radin g treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for a g ents of the State to abuse the ri g hts of those within their control with virtual impunity (see Dikme v. Turkey , no . 20869/92, § 101, ECHR 2000-VIII).

277 . The Court further notes that alle g ations of ill-treatment are extremely difficult for the victim to substantiate if he or she has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence (see Batı and Others v. Turkey , nos. 33097/96 and 57834/00, § 134 , ECHR 2004 ‑ IV (extracts) ). The State authorities must secure the evidence concernin g the incident , includin g , inter alia , a detailed statement concernin g the depositions from the alle g ed victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical certificates apt to provide a full and accurate record of the injuries and an objective analysis of the medical findin g s, in particular as re g ards the cause of the injuries (see, Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, §§ 104 et seq., and Gül v. Turkey , no. 22676/93, § 89, 14 December 2000). Any deficiency in the investi g ation which undermines its ability to establish the cause of injury or the person responsible will risk fallin g foul of this standard. Moreover, for an investi g ation into torture or ill-treatment by a g ents of the State to be re g arded as effective, the g eneral rule is that the persons responsible for the inquiries and those conductin g the investi g ation should be independent hierarchically and institutionally of anyone implicated in the events , i.e. the investi g ators should be independent in practice (see, Batı and Others , § 13 5 , cited above ).

278 . It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investi g atin g alle g ations of ill-treatment may g enerally be re g arded as critical for maintainin g public confidence in their adherence to the rule of law and in preventin g any appearance of collusion in or tolerance of unlawful acts (see, amon g other authorities, Indelicato v. Italy , no. 31143/96, § 37, 18 October 2001, and Öz g ür Kılıç v. Turkey (dec.), no. 42591/98, 24 September 2002). While there may be obstacles or difficulties which prevent pro g ress in an investi g ation in a particular situation, it may g enerally be re g arded as essential for the authorities to launch an investi g ation promptly (see, mutatis mutandis , Paul and Audrey Edwards v. the United Kin g dom , no. 46477/99, § 72, ECHR 2002-II). For the same reasons, there must be a sufficient element of public scrutiny of the investi g ation or its results to secure accountability in practice as well as in theory, which may well vary from case to case. In all cases, however, the complainant must be afforded effective access to the investi g atory procedure (see Aksoy v. Turkey , 18 December 1996, § 98 , Reports of Jud g ments and Decisions 1996-VI ).

279 . Whether it is appropriate or necessary to find a procedural breach of Article 3 will therefore depend on the circumstances of the particular case ( Caloc v. France , no. 33951/96, § 90 , ECHR 2000 ‑ IX ). Moreover, a findin g of a procedural breach of Article 3 of the Convention can also depend on such factors as authorities ' failure to reach any conclusive findin g s of fact, their failure to timely react to the complaints , question relevant possible witnesses or more g enerally their failure to reach any tan g ible results (see Assenov and Others v. Bul g aria , jud g me nt of 28 October 1998, §§ 102- 103, Reports 1998-VIII; Sadık Önder v. Turkey , no. 28520/95, § 44 , 8 January 2004 ; and Bekos and Koutropoulos v. Greece , no. 15250/02, § 54 , ECHR 2005 ‑ XIII (extracts) ).

( c ) Application of these principles in the present case

280 . As to the facts of the present case, in the Court ' s opinion, the comp laints made by the first and second applicants as to the first trainin g exercise and all three applicants as to the second g ave rise to an ar g uable claim that they were ill-treated in the course of the special units ' trainin g exercises and g eneral searches on 30 May 2001 and 29 January 2002 (see para g raph 27 2 above ). It is clear that the State authorities, includin g the Re g ional Prosecutor ' s Office and the State Department for the Enforcement of Sentences carried out certain inquiries into their alle g ations . Thus, the Court considers it necessary to assess conduct of these inquiries from the point of view of their compliance with the requirements of Article 3 of the Convention and the criteria referred to in the case-law above (see para g raphs 27 6 - 2 7 9 above) . It must examine, therefore, whether on the whole the authorities took all reasonable steps to secure evidence concernin g the incidents, whether they acted promptly, reachin g any tan g ible results and whether the investi g ation at issue was independent in practice.

282 . The Court observes that the inquirers from the Prison Department made no attempts to establish themselves whether the applicants were injured, did not conduct any search for medical evidence , failin g to review possibly available medical records , and made no attempts to or g anise independent medical examinations for the alle g ed injuries and instead, like the other prison officers questioned by the Court, looked at the complainants ' personal characteristics and the crimes for which they were convicted (see Annex, para g raphs 61 and 102 and parag raphs 89-90 and 208- 210 above) . This conclusion can be reached on the basis of the report produced by Lieutenant Dan o vsky concluded upon instructions received from the State Prison Department (see para g raph 98 above) . It can also be seen from the investi g ation conducted by the Colonel Irshko who accordin g to Mr Iltiay , established that the investi g ators questioned one hundred persons in a sin g le day (see Annex, para g raphs 103- 104) , althou g h the written investi g ation report from Mr Danovsky stated that he inspected Zamkova Prison for two days from 3 to 4 October 2001 ( see para g raph 98 above ) . Moreover, i t is not clear for the Court whether these were two separate inspections or a sin g le one as the report produced by Mr Skokov never mentioned Mr Iltiay or Colonel Irshko. Furthermore, the Government failed to provide any documentary records as to the investi g ation conducted by Colonel Irshko , purportedly due to the fact that these records were destroyed due to the expiry of the time-limit for their stora g e (see paragraph 168 above ). Thus, for the Court , the investi g ation conducted by Prison Department led to no real findin g s of fact or tan g ible factual conclusions.

283 . As to the investi g ation conducted by the prosecution authorities, the Court notes that Mr Volkov, the special prosecutor who conducted the initial review of the complaints, personally participated in the f irst trainin g exercise and approved the trainin g plans . He had stron g professional affiliation with Zamkova Prison officer s with whom he worked on day ‑ to ‑ day basis. As to his inquiry, the Court notes that he never verified the applicants ' alle g ations and reviewed no medical evidence whatsoever . F urthermore he imposed sanctions on the first applicant who complained about bein g ill-treat ed (see para g raph 91 above) . For the Court, Mr Volkov ' s acts and omissions showed his lack of objectivity and his bias in his review of the applicants ' complaints. His status of a prosecutor supervisin g the lawfulness of sentences bein g served vested him with wide discretionary powers , which he failed to exercise (see para g raph 192 above) . The Court concludes therefore that the review of the complaints conducted by the special prosecutor Volkov ' s could not be considered an effective and thorou g h investi g ation into the applicants ' ill-treatment alle g ations, compatible with the requirements of Article 3 .

284 . As to the investi g ation conducted by Mr Bukher, the prosecutor of the Re g ional Prosecutor ' s Office , the Court notes that the investi g ation he undertook had a number of deficiencies. In particular, a formal investi g ation by the prosecutor ' s office was initiated only after the second trainin g exercise, more than six months after the first trainin g exercise , which cannot be re g arded as complyin g with the requirement of promptness . T he individuals involved in the investi g ation on the part of the re g ional prosecutor ' s office were those who had approved the trainin g plan or participated in the trainin g itself (see paragraph s 2 3 2 - 23 3 above) or came from Zamkova Prison . In this respect the Court notes that Mr Bukher deemed it unnecessary to appoint different prosecutors to investi g ate the applicants ' complaints , from those prosecutors who had participated in and approved the trainin g exercises, even thou g h some of the complaints were made a g ainst these very prosecutors. Thus, the re g ional prosecutor ' s office could not act as hierarchically and institutionally independent from prison authorities ' external investi g atin g authority in the instant case, as maintained by the Government , insofar as the investi g ators participatin g in questionin g witnesses and g atherin g evidence for Mr Bukher had a stron g interest in a particular outcome of the investi g ation . He has not thou g ht that an independent medical examination of the applicants ' state of health should be conducted . Also, the possibility of independent or alternative medical expert opinion was not even looked into by the relevant investi g ators of the re g ional prosecutor ' s office (similarly to the inquiries conducted by Prison Department and special prosecutor Volkov) . Lack of medical evidence from the prison doctor and medical unit has not aroused his suspicion and he has never tried to verify credibility of statements as to the absence of injuries and medical complaints.

285 . Moreover, the Court notes that Mr Bukher paid no attention to the fact that certain witnesses sent complaints by means that ran contrary to the internal prison re g ulations on sendin g correspondence . It also notes that the investi g ation did not examine why these complaints were not sent by means specified in domestic re g ulations . Furthermore, the manner and speed with which the investi g ators g athered evidence rebuttin g the applicants ' alle g ations raised no suspicion in him. The Court concludes that the investi g ation at issue was conducted contrary to the spirit of efficient and independent investi g ation , which could establish factual details relevant to the case . Both investi g ations focused on complyin g with the formal requirements necessary for the completion of the investi g ation file, includin g g atherin g written statements on the basis of unknown criteria , and g ivin g a formal response that no violations of the law occurred . The majority of statements in the file confirmed that the applicants had not been subjected to any sort of ill-treatment, and the prisoners stated that they had no complaints about Zamkova Prison officers. The applicants ' statements were disre g arded and not taken into account (see para g raph 93 above) .

287 . In this respect the Court notes t hat it was difficult for the applicants to identif y their assailants as their faces were covered . However, certain witnesses were able to have an educated g uess as to who participated in the search and trainin g because they reco g nised those involved by the manner of walkin g , their behaviour or sound of their voices ( see Annex, para g raph s 13 and 45 ). Nevertheless , the se alle g ations were never verified and there were no reports about questionin g the officers involved in the search es and trainin g s . As it ensues from the materials in the Court ' s possession, the authorities have never made any serious attempts to verify the applicants ' alle g ations and to identify the alle g ed perpetrators. No attempt was ever made to identify and question officers who alle g edly inflicted injuries on the applicants or who commanded these units or who were identified by the applicants as those who possibly participated in the searches and trainin g s . In this respect, the Court a g ain underlines that it was not able to review the investi g ation files or relevant investi g ation records (see paragraph s 1 6 8 and 200 above ) and th erefore was not able to evaluate the reasons for which the authorities discontinued investi g ation into the applicants ' alle g ations. It reiterates that t here were no contemporaneous records which could demonstrate, step by step, the nature of the investi g ations carried out by the prosecutor ' s office and the State Prison Department.

288 . As to the objectivity of the investi g ation, t he Court considers that the imposition of disciplinary measures such as incarceration in a sin g le occupancy disciplinary cell on those who tried to complain manifested that the authorities were not willin g to inquire into the reasons of sendin g complaints by prohibited means, which once a g ain proves that the investi g ation lacked objectivity from the very be g innin g , was formal and superfluous , aimed at providin g a routine unfavourable reply to the applicants (see para g raph s 232- 23 4 above). The Court underlines that by such measures the authorities have shown that they had initial lack of trust in the submissions made by the prisoners , favoured Zamkova Prison authorities in their explanations as to the events, puttin g more emphasis on the complainants ' identity than on establishin g facts and investi g at in g their alle g ations of ill-treatment.

289 . Finally, t he Court remarks that, with re g ard to the investi g ations conducted by the domestic authorities, they were not hierarchically and institutionally independent of those implicated in the events . In particular, it notes that the investi g ators conductin g the on-spot inquiry were the same as those who participated in the trainin g s or supervised them . Moreover, they belon g ed to the same prosecutor ' s office as Mr Volkov, who si g ned the trainin g plans and supervised the trainin g and who also was supposed to conduct an investi g ation into the prisoners ' complaints a g ainst prison authorities (see para g raph s 232- 233 above). Also, the internal investi g ation or g anised by the Prison Department , led by Colonel Irshko and supervised by Mr Iltiay, and the inquiry conducted by Lieutenant Danyshevksy , concerned senior officers of th e Prison Department, includin g Prison Governor Mr Sne g ir and the Deputy Head of the Re g ional Prison Department Mr Leventsov, who planned the trainin g , participated in it and supervised its conduct (see paragraph s 98 and 197 above).

290 . Thus, for the Court , the investi g ations which were or g anised on the instructions of the Prison Department and the General Prosecutor ' s Office , were perfunctory and superficial and led to no tan g ible results, such as findin g s of fact which could lead to the identification or punishment of those responsible . The Court reiterates that due to numerous shortcomin g s mentioned above t hese investi g ations did not reflect any serious attempt to discover neither what had really occurred on 30 May 2001 and 29 January 2002 , nor who had ill-treated the applicants or g iven instructions to ill-treat them . It concludes, therefore, that the applicants ' ar g uable claim that they were ill-treated in the course of the trainin g exercises of the special units on 30 May 2001 and 29 January 2002 was not subject to a prompt, independent and effective investi g ation by the domestic authorities that c ould lead to any tan g ible results, as required by the procedural obli g ation under Article 3 of the Convention.

291 . There has therefore been a violation of that provision and the Government ' s objection must be dismissed.

3. The applicants ' complaints as to the lack of medical treatment and assistance provided to them in view of the injuries sustained

292 . The applicants claimed that they had not been provided with the necessary medical treatment for the injuries sustained by them as a result of the police trainin g exercises, and that the prison authorities had refused to record these injuries. They further alle g ed that they were not provided with adequate medical assistance while in detention.

293 . The Government submitted that there were no records in the Prison ' s Medical Re g isters of requests from the applicants for medical assistance. The Government maintained that the applicants received necessary medical treatment and were provided with any required prescription dru g s whilst servin g their sentences and therefore concluded that Article 3 of the Convention was not breached. They further stated that the applicants were provided with necessary medical treatment and assistance in g eneral.

294 . The Court reiterates that Article 3 of the Convention imposes an obli g ation on the State to protect the physical well-bein g of persons deprived of their liberty and to ensure that their health is adequately secured (see KudÅ‚a v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI), for example by provision of the requisite medical assistance to them (see Keenan v. the United Kin g dom , no. 27229/95, § 111 , ECHR 2001 ‑ III , and Koval v. Ukraine , no. 65550/01, § 79, 19 October 2006 ). The lack of appropriate medical care may amount to treatment contrary to Article 3 (see Ä°lhan v. Turkey [GC], no . 22277/93, § 87, ECHR 2000-VII, and Price v. the United Kin g dom , no. 33394/96, § 26 , ECHR 2001 ‑ VII ). In particular, in a situation where, exceptionally, impermissible conduct under Article 3 of the Convention had taken place and a prisoner had been ill-treated, which resulted in injuries, it is the duty of the State to ensure provision of timely and relevant treatment to the applicant ' s specific state of health and the injuries the prisoner suffers from. This positive obli g ation requires inter alia re g istration of medical complaints, timely identification and dia g nosis of injuries, development of comprehensive medical strate g y for injuries ' treatment, documentin g pro g ress in medical treatment, assessin g the state of health of the person after medical treatment and the possible need for post-injury treatment, which mi g ht include assessment of the psycholo g ical state of health (see, amon g many other authorities and in so far as relevant to the circumstances of the present case , Hummatov v. Azerbaijan , nos. 9852/03 and 13413/04, § 114 , 29 November 2007 ; Mathew v. the Netherlands , no. 24919/03, § 193 , ECHR 2005 ‑ IX ; Melnik v. Ukraine , § 106 , cited above; and Dvoynykh v. Ukraine , no. 72277/01, § 56 , 12 October 2006 ).

295 . The Court has already found, on the basis of the evidence before it, that it could not be established that the applicants were ever examined by a medical officer in relation to their medical complaints of injuries sustained in the course of the trainin g exercises and ill-treatment by officers of the special forces (see para g raphs 21 6 - 219 and 2 26 - 230 above). Furthermore, the Court notes that at the material time, only two medical officers, only one of whom was a doctor , worked in Zamkova Prison , where more than 750 prisoners were held.

296 . For the Court, th e lack of adequate medical treatment for the injuries the applicants received durin g the relevant trainin g exercises , the lack of proper re g istration and follow up for medical complaints , are sufficient to conclude that there was a violation of Article 3 of the Convention in that no adequate medical treatment for injuries sustained by the applicants was ever provided to them . There is no need to examine other elements of the applicants ' complaints in respect of lack of sufficient or adequate medical treatment and assistance.

4 . The conditions of detention

297 . The applicants complained that they were detained in poor conditions, and were kept in overpopulated and overcrowded cells.

298 . The Government stated that the conditions in which the applicants were detained corresponded to the standards required by domestic law.

299 . The Court observes that the Government constantly maintained that the standards established in the domestic law (see para g raphs 44- 48 and 129 above) had been respected and even sli g htly exceeded in Zamkova Prison (see para g raphs 44- 48 above). It notes in this respect that the domestic standards for cell space of a prisoner allowed not less than 2-2 . 5 m² (see paragraph s 121 and 129 above). Additionally, a minimum of 3 m² was allowed for sin g le occupancy cells (see para g raph 129 above). The Court notes that the established domestic standards were far below recommendatory standards established by the CPT for Ukraine , which set at least 4 m² of livin g space per prisoner as a desirable occupancy rate for the multiple occupancy prison cells or dormitories (see Nevmerzhitsky v . Ukraine , no. 54825/00, § 66 , ECHR 2005 ‑ II (extracts) ). They were also beyond minimum recommendatory standards established by the CPT sin g le and multiple occupancy cells, 4 m² of livin g space for a sin g le inmate in multi-occupancy cells (see Rodić and Others v. Bosnia and Herze g ovina , no. 22893/05, § 77, 27 May 2008 ), 7 m² per detainee in sin g le occupancy police cells (see Malechkov v. Bul g aria , no. 57830/00, § 137, 28 June 2007 ) and 9 m² of livin g space in sin g le prison cells ( Report to the UNMIK on the visit to Kosovo carried out by the CPT from 21 to 29 March 2007, Strasbour g , 20 January 2009, § 59 ).

300 . From the Court ' s point of view this in itself was not compatible with the standards established by the Convention and the Court ' s case-law , which has already established that a space of 1- 2.5 m² of space per prisoner amounts to continuous and severe overcrowdin g ( see Melnik v. Ukraine , no. 72286/01, § 103 , 28 March 2006 ; Yakovenko v. Ukraine , no. 15825/06, § 84, 25 October 2007; and Dvoynykh v. Ukraine , no. 72277/01, § 66, 12 October 2006 ) . Thus, in the Court ' s view, the cells in which the applicants were held and in which they were allowed about 3 m² in sin g le occupancy cells and 4.6 m² in sin g le occupancy punishment cells (SHIZO), were continuously overcrowded , a problem of a structural nature which in itself raises an issue under Article 3 of the Convention.

301 . The Court concludes that there has been a breach of Article 3 of the Convention in this re g ard.

5 . Conclusions of the Court

302 . The Court concludes that there has been a violation of Article 3 of the Convention in its substantive and procedural limbs in respect of the followin g :

– the applicants ' inhuman and de g radin g treatment by special forces in the course of the trainin g and search exercises on 30 May 2001 (first and second applicants) and 29 January 2002 (first, second and third applicants) that were held at the Zamkova Prison (see para g raph 272 above);

– the lack of prompt, independent and effective investi g ation by the domestic authorities into the applicants ' complaints about their ill-treatment by the special forces on 30 May 2001 and 28 January 2002 at the Zamkova Prison, which could lead to tan g ible results (see para g raphs 290- 291 above);

– the lack of adequate medical treatment and assistance provided to the applicants, failure to record their injuries and to follow up on the applicants ' complaints (see para g raph 296 above), and

– the poor conditions of their detention, which were incompatible with the standards established by the Convention and the Court ' s case-law (see paragraph s 300- 301 above).

V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

A. Parties ' submissions

303 . The applicants complained that they had no effective remedies in respect of their complaints about ill-treatment by the special units, the poor conditions of their detention, the lack of adequate medical treatment and assistance. They referred in this respect to Article 13 of the Convention, which provides:

“Everyone whose ri g hts and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstandin g that the violation has been committed by persons actin g in an official capacity.”

304 . T he Government restated the ar g uments set out above in their objection to the exhaustion of domestic remedies , and concluded that the applicants had had available effective domestic remedies which they did not pursue. In particular, they stated that Article 55 of the Constitution, Articles 248-1 to 248-9 of the Code of Civil Procedure of Ukraine and Article 99-1 of the Code of Criminal Procedure of Ukraine , allowed for submission of the complaints with the prison and prosecution authorities and directly or subsequently challen g in g their decisions to the domestic judicial authorities. They thus concluded that there had been no violation of Article 13 of the Convention in this respect.

305 . The applicants disa g reed.

306 . The Court finds that the applicants ' complaints about lack of effective remedies mainly concern whether they had an effective remed y to complain and seek redress for:

– their ill-treatment and injuries in the course of trainin g exercises and the lack of medical treatment and assistance for such injuries ;

– the poor conditions of detention.

307 . The Court considers that each of the aforementioned complaints under Article 13 of the Convention requires separate examination in the li g ht of the principles enshrined in its case-law. For practical reasons it will first jointly examine the complaints about the applicants ' ill-treatment and the lack of medical treatment and assistance.

B . The applicants ' ill-treatment and injuries in the course of trainin g exercises and lack of medical treatment and assistance

308 . The Court has already found that the State authorities were responsible for the inhuman and de g radin g treatment and injuries inflicted on the applicant s in the course of the trainin g exercises on 30 May 2001 and 29 January 2002 . The applicant s therefore had an “ar g uable claim” for the purposes of Article 13 and were entitled to an effective remedy in respect of it.

The Court considers that the effectiveness of this particular remedy or an a g g re g ate of remedies require separate examination from the point of view of Article 13 of the Convention , which is different from the examination of the specific deficiencies in the inquir i es conducted by the domestic authorities that were already examined more specifically from the point of view of compliance with procedural or positive obli g ation s under Article 3 of the Convention ( compare and contrast , Bekos and Koutropoulos v. Greece , no. 15250/02, § 57, ECHR 2005 ‑ ... (extracts ) ) . In particular, the Court considers it necessary to examine :

– whether investi g ative procedure under Article 97 of the Code of Criminal Procedure allowed for effective and thorou g h investi g ation compatible with the requirements of Article 13 of the Convention ;

– whether a refusal to institute criminal proceedin g s under Article 97 of the Code of Criminal Procedure le g ally barred access to a civil court on the basis of a possible claim for dama g es arisin g out of the same event (see Chember v. Russia , no. 7188/03, § 72, 3 July 2008 ) .

311 . Most importantly , victims of alle g ed ill-treatment ha ve no formal status in the inquiry until a formal criminal investi g ation h as been initiated (see para g raphs 112- 113 above) . These elements show that t he Court also sees no effectiveness in a possibility of lod g in g an appeal with the court a g ainst the refusal to institute criminal proceedin g s, as such a judicial review would only focus on the manner in which these le g al and factual findin g s were reached by the prosecutor, but would not g o into the substance of the ill-treatment alle g ations .

313 . The Court therefore finds that the applicant s have been denied an effective remedy in respect of their complaints that they were ill-treated in the course of the two trainin g exercises and that medical treatment was not available . Consequently, there has been a violation of Article 13 of the Convention.

C . Conditions of detention

314 . The Court notes that the Government su g g ested in their preliminary objections as to exhaustion of domestic remedies that there were remedies available for the applicants ' complaints about detention conditions. However, in respect of these objections the Court found that the possibility of lod g in g a complaint about the detention conditions with the public prosecutor responsible for supervisin g the g eneral lawfulness of detention, with the Governor of the relevant prison or the State Department for the Enforcement of Sentences could not be considered effective and accessible remedy (see para g raphs 2 5 6 - 258 above). Insofar as they rely on the same reasonin g by way of response to the Article 13 complaint, their ar g uments must, like their objections, be rejected.

315 . Thus , the Court finds that the State has failed in its obli g ation under Article 13 of the Convention in ensurin g that effective and accessible remedies exist to complain and seek redress for the poor conditions of detention.

D . The Court ' s conclusions

316 . T he Court therefore concludes that there has been a violation of Article 13 of the Convention on account of the lack of effective and accessible remedies under domestic law for the applicants ' complaints in respect of their ill-treatment and the injuries inflicted durin g the trainin g exercises , the lack of medical treatment and assistance for these injuries , and also the poor conditions of detention. These findin g s fall to be considered a g ainst the back g round of other cases a g ainst Ukraine in which violations of Articles 3 and 13 have been found concernin g :

(a) ill-treatment in prisons or detention facilities (see, amon g many other authorities, Afanasyev v. Ukraine , no. 38722/02, § 69 , 5 April 2005 , and Kucheruk v. Ukraine , no. 2570/04, §§ 132-133, ECHR 2007 ‑ X );

(b) lack of effective investi g ation into the detained applicants ' alle g ations of ill-treatment (see, Poltoratskiy v. Ukraine , no. 38812/97, §§ 127- 128, ECHR 2003 ‑ V; Kuznetsov v. Ukraine , no. 39042/97, §§ 107 ‑ 108 , 29 April 2003 );

(c) failure to provide proper medical treatment and assistance to detained applicants (see, Koval v. Ukraine , no. 65550/01, § 81 , 19 October 2006; Melnik , cited above, § 106; Mikhaniv v. Ukraine , no. 75522/01, § 74, 6 November 2008; and Nevmerzhitsky v. Ukraine , no. 54825/00, § 106 , ECHR 2005 ‑ II (extracts);

(d) conditions of detention ( (see, Poltoratskiy v. Ukraine , no. 38812/97, § 149, ECHR 2003 ‑ V; Aliev v. Ukraine , cited above, § 150 ; Kuznetsov v. Ukraine , cited above, § 128 ; Nazarenko v. Ukraine , cited above, § 144 ; Khokhlich v. Ukraine, cited above, 182 ; Dankevich v. Ukraine, cited above, § 145 ; Yakovenko v. Ukraine, no. 15825/06, § 89 , 25 October 2007 ; and Dvoynykh , cited above, § 69 ).

However, the Court does not find it appropriate to determine in the present case whether these issues disclose a systemic or structural problem.

317 . Consequently, there has been a violation of Article 13 , taken to g ether with Article 3 of the Convention.

V I . ALLEGED VIOLATION OF ARTICLES 8 § 1 ( SEPARATELY AND TAKEN TOGETHER WITH ARTICLE 13 ) AND 34 OF THE CONVENTION

318 . The applicants complained about an interference with their correspondence to the Court and an infrin g ement of their ri g ht of individual application. The applicants alle g ed that their correspondence and complaints did not reach the domestic authorities they complained to, as they were intercepted by the prison administration, referred to prosecutor ' s office and destroyed. Their attempts to communicate their complaints were punished . No effective investi g ation of these alle g ations had ever been conducted by the General Prosecutor ' s Office and the local prosecutor ' s office. In this connection they referred to Articles 8 § 1 and 34 of the Convention respectively, which, insofar as relevant, provide:

Article 8

“1. Everyone has the ri g ht to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this ri g ht except such as is Accordin g to the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-bein g of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the ri g hts and freedoms of others.”

Article 34

“The Court may receive applications from any person, non- g overnmental or g anisation or g roup of individuals claimin g to be the victim of a violation by one of the Hi g h Contractin g Parties of the ri g hts set forth in the Convention or the Protocols thereto. The Hi g h Contractin g Parties undertake not to hinder in any way the effective exercise of this ri g ht.”

319 . The applicants also complained that they had no effective remedies in respect of their complaints about interference with their correspondence. They referred in this respect to Article 13 of the Convention, which provides:

Article 13

“Everyone whose ri g hts and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstandin g that the violation has been committed by persons actin g in an official capacity.”

A . The p arties ' submissions

320 . The Government noted that the Ukrainian law in force at the material time allowed the authorities to review letters addressed to the European Court of Human Ri g hts. Followin g chan g es introduced to Article 113 of the Code on the Enforcement of Sentences and O rder no. 275 of the Prison Department (see para g raph 1 1 8 above) , correspondence sent to the European Court of Human Ri g hts can no lon g er be reviewed. Nevertheless, the Government stated that althou g h the procedure was not in conformity with the Convention and its case-law, there was no evidence of the authorities ' interference with the applicants ' correspondence.

321 . The Government further asserted, in relation to the complaints under Article 34, that no State body or official had restricted the applicants ' ri g ht to communicate freely with the Court; moreover the applicants were never punished or disciplined in any way for their communication with the Court. T he Government concluded that there were no g rounds to believe that the administration of the penitentiaries in which the applicants served their prison sentences had exerted pressure on the applicants or had in any other way hindered their ri g ht of individual application to the Court. With re g ard to the complaints about the problems encountered by the applicants in correspondin g with their representative, the Government noted that these alle g edly unlawful acts by the penitentiaries ' administration had not been challen g ed before any domestic court.

322 . The applicants did not a g ree with the Government and maintained that the prison authorities had interfered with their correspondence to the Court and tried to put pressure on them to discoura g e them from pursuin g their applications. The applicants alle g ed that their correspondence and complaints did not reach the domestic authorities they were sent to , as they were intercepted by the prison administration, forwarded to the prosecutor ' s office and eventually destroyed. No effective investi g ation into these alle g ations had ever been conducted by the General Prosecutor ' s Office and the local prosecutor ' s office.

B . Admissibility

323 . The Court notes at the outset that the applicants ' complaints under Articles 8 § 1 of the Convention were declared admissible and the Government ' s objections to their admissibility were joined to the merits (see Druzenko and Others v. Ukraine (dec.), nos. 17674/02 and 39081/02, 15 January 2007). Thus, it considers that these objections must be review ed in conjunction with examination of the merits of the applicants ' complaints now . Furthermore, the Court considers it necessary to examine separately the applicants ' alle g ations about interference with the ir complaints sent to the domestic authorities and the ir representative under Article 8 § 1 of the Convention , as well as jointly with alle g ations under Article 13, and those under Article 34 concernin g correspondence sent to the Court.

C. The Court ' s assessment

1. Complaints under Article 8 § 1 of the Convention ( with re g ard to interference with correspondence sent to the domestic authorities and the applicants ' representative)

324 . In so far as the applicants complain about interference with their correspondence sent to the domestic authorities and the applicants ' representative, the Court notes that the first, second and third applicants ' complaints were intercepted and not sent out by the prison authorities on several occasions (see para g raphs 220 and 230 above), which followed the trainin g s of 30 May 2001 and 29 January 2002. Furthermore, they were subjected to reprisals for tryin g to lod g e these complaints or to write to the relevant law enforcement or investi g ation authorities (see para g raph s 91 and 2 88 above). In this respect, the Court recalls that an “interference by a public authority” with the applicants ' exercise of their ri g ht to respect for their correspondence, as g uaranteed by Article 8, would contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the le g itimate aims referred to in para g raph 2 and, furthermore, is “necessary in a democratic society” in order to achieve them (see Labita v. Italy [GC], no . 26772/94, § 179, ECHR 2000-IV). It also notes that the Government ' s preliminary objection as to exhaustion of domestic remedies is closely linked to the issue of whether the alle g ed interference was “in accordance with the law”. The Court will examine these issu es in turn.

325 . The Court is able , based on witness statements g iven in the course of the oral hearin g (see Annex , para g raphs 9, 15, 18 and 23 ), which it found credible, to conclude that there was interference with the first, second and third applicants ' correspondence sent to the domestic authorities and their representative. As a result of this correspondence they were put under pressure from the authorities for maintainin g their complaints , even after the re g ulations mentioned by the Government above were amended. In particular, confirmation that correspondence and complaints to the domestic authorities , like any correspondence involvin g complaints to the domestic authorities, was controlled was g iven in the course of the proceedin g s before the Dele g ates (see Annex , para g raphs 63, 81, 85 and 100 ; paragraphs 134 ‑ 135 above ) and in certain documentary evidence (letter of Zamkova Prison Governor of 14 April 2003, see para g raph s 10 0 above ; decision of 10 May 2002 by the special prosecutor Volkov to subject the applicants Mr Kulyk, Mr Litvinov and Mr Ilchenko to disciplinary sanctions, see para g raph 9 1 above). Accordin g ly, the Court considers that all the correspondence sent by the applicants was checked and censored , and thus there has been interference with the applicants ' ri g ht to respect for their correspondence.

326 . It must therefore be examined whether the interference satisfied the conditions set out in § 2 of Article 8. In particular, the measure at issue must be “ in accordance with the law” , which requires in particular that the contested measure should have a basis in domestic law. It also refers to the quality of the law in question, requirin g that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and be compatible with the rule of law (see Kruslin v. France and Huvi g v. France , 24 April 1990, § 27 , Series A no. 176-A, and § 26, Series A no. 176-B, respectively).

327 . As to whether the interference was “ in accordance with the law”, the Court notes that the Government ar g ued that this interference had a le g al basis, as Article 113 of the Code on the Enforcement of Sentences and O rder no. 275 adopted by the State Department for the Enforcement of Sentences on 25 December 2003 did allow for the review of correspondence by a prisoner ( see para g raph 1 1 8 above ) . However, the Order referred to by the Government was not in force at the material time. They have neither referred to nor specified and provided any other le g al act in this respect.

328 . Consequently, the interference with the applicants ' correspondence had no le g al basis, as the Government have failed to show that the interference at issue had any le g al basis. Thus, such an interference was not “ in accordance with the law”, as required by Article 8 of the Convention . In the li g ht of the fore g oin g , the Court does not consider it necessary in the instant case to examine whether the other requirements of para g raph 2 of Article 8 were satisfied. It further considers that the Government ' s objection made in respect of exhaustion of domestic remedies (see para g raph 323 above) , made at the admissibility sta g e of the proceedin g s, should be rejected.

329 . There has therefore been a breach of Article 8 of the Convention.

2. Complaints under Article 13 of the Convention (lack of effective remedies for the first, second and third applicants ' complaints about interference with their correspondence)

330 . T he Government have su g g ested, in their preliminary objections, which were joined to the merits, that there were remedies available for the applicants ' complaints. The applicants have disa g reed.

331 . Article 13 requir es a remedy in domestic law in respect of g rievances which can be re g arded as “ar g uable” in terms of the Convention. In the present case, there has been a findin g of a violation of Article 8 , and the complaint under Article 13 therefore falls to be considered (see, mutatis mutandis , TysiÄ…c v. Poland , no. 5410/03, § 134, ECHR 2007 ‑ IV ). However, the Court observes that the applicants ' complaint about the State ' s failure to put in place an adequate le g al framework for complaints about undue interference with correspondence . This complaint essentially overlaps with the Court ' s rulin g that the interference with the applicants ' correspondence was not based on law and thus in breach of Article 8 of the Convention. It holds , therefore, that no separate issue arises under Article 13 of the Convention.

3. Complaints under Article 34 of the Convention

332 . With re g ard to the Government ' s objection concernin g the applicants ' failure to exhaust domestic remedies, the Court notes complaints lod g ed under the second sentence of Article 34 do not g ive rise to any issue of admissibility , includin g exhaustion of domestic remedies, under the Convention (see, mutatis mutandis , Er g i v. Turkey , 28 July 1998, § 105, Reports 1998-IV; Shamayev , cited above, § 507; and Mohammed Ali Hassan Al-Moayad v. Germany (dec.), no. 35865/03, 20 February 2007).

333 . The Court recalls that it is of the utmost importance for the effective operation of the system of individual petition g uaranteed under Article 34 of the Convention that applicants or potential applicants should be able to communicate freely with the Convention or g ans without bein g subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Akdivar and Others v. Turkey , 16 September 1996, § 105, Reports 1996-IV , and Kurt v. Turkey , 25 May 1998, § 159, Reports 1998-III). The Court considers that it is particularly important to respect the confidentiality of mail from the Convention or g ans to persons who are detained or their mail sent to the Convention or g ans, as it may concern alle g ations a g ainst prison authorities or prison officials. The openin g of letters to the Convention or g ans undoubtedly g ives rise to the possibility that they will be read and may also conceivably, on occasions, create the risk of reprisals by the prison staff a g ainst the prisoner concerned (see Campbell v. the United Kin g dom , 25 March 1992, § 62, Series A no. 233).

334 . The Court first observes that in the present case it has been alle g ed that the initial applications lod g ed by the first, second and third applicants and their subsequent letters were censored as they were torn up and the Court received them dama g ed and partly ille g ible (see Annex, paragraph 23 ) . In particular, the third applicant, Mr Ilchenko , maintained that after he lod g ed his application with the Court, he immediately encountered “various problems” in his daily prison life and in servin g his sentence as he was bein g transferred to different cells, where the prisoners were told that he “worked for the administration”. Also, the third applicant ' s complaints were torn apart by Mr Mazurenko and Mr Mazepa, so he had to transmit his application to the Court throu g h Mr Zherdev (see paragraph s 182, 202 , 220 and 230 above) . The Court is also aware of the applicants ' statements , which it considers credible, concernin g undue pressure from Zamkova Prison authorities and threats a g ainst the first, second, third applicants, other applicants and witnesses that have been alle g edly made in the present applications (see Annex , para g raph s 5, 9, 18, 23, 28- 29 and 36 b elow).

335 . As to the merits of the applicants ' complaints, the Court reiterates that observance of the provisions of Article 34 of the Convention by the States is an important g uarantee of effective exercise of the ri g ht of individual petition. In this respect any form of pressure from the authorities on applicants or potential applicants to withdraw or modify their complaints which results in a situation where they are unable to communicate freely with the Convention or g ans is a g rave interference with the very essence of the exercise of the ri g ht of individual petition enshrined in Article 34 of the Convention. Moreover, the expression “any form of pressure” must be taken to cover not only direct coercion and fla g rant acts of intimidation but also improper indirect acts or contact desi g ned to dissuade or discoura g e applicants from pursuin g a Convention remedy (see Kurt v. Turkey , 25 May 1998, § 160, Reports 1998-III). Furthermore, the question whether contact between the authorities and an applicant constitutes an unacceptable practice from the standpoint of Article 34 must be determined in the li g ht of the particular circumstances of the case. In that connection, the Court must assess the vulnerability of the complainant and the risk of his bein g influenced by the authorities (see Akdivar and Others , § 105, and Kurt , § 160, both cited above).

336 . In the present case, the first, second and third applicants have asserted that they were unable to apply to the Court from their place of custody, and that their application had in fact been lod g ed by Mr Zherdev, who was representin g them at the be g innin g of the proceedin g s. The other applicants, includin g Mr Druzenko , Mr Kulyk, Mr Myronov, Mr Martov and Mr Kuzmenko have si g ned standard response letters all dated 1- 4 April 2003, destined for Mr Zherdev, which were attached to a reply g iven by the Governor of Zamkova Prison Mr Sne g ir, statin g that they no lon g er wish ed to pursue their complaints and that th ey had no complaints about the prison authorities at all (see para g raph 10 0 above ). A pplicants such as Mr Druzenko, Mr Kulyk, Mr Myronov and Mr Kuzmenko, some of whom are or were servin g their sentences in Zamkova Prison when the complaints were lod g ed , subsequently chose not to pursue their applications , as accordin g to submissions g iven in the course of the hearin g , they foresaw complications arisin g from attempts to pursue their complaints or the se applicants were persuaded by whatever reasons not to pursue them . The Court has also had re g ard to the oral and written evidence of threats and pressure made a g ainst the applicants and the witnesses proposed on the part of the applicants to participate in the oral hearin g of evidence (see Annex , para g raphs 5, 9, 18, 23, 28- 29 and 36) . It takes the view that such acts constitute an improper and unacceptable form of pressure, which hindered the applicants ' exercise of the ri g ht of individual petition, and for which the Court has not been g iven any explanation.

337 . The Court also notes that the applicants ' questionin g and explanations g iven to the Governor Mr Sne g ir, which resulted in letters dated 1- 4 April 2003 about the application s (see para g raph 10 0 above) lod g ed with the Court were clearly essential to the meetin g s with prison authorities . T he subject of this was to make sure that all applicants made statements that they no lon g er wished to pursue their complaints. In particular, in their standard-response letters the applicants were requested to g ive details about why they decided not to pursue their complaints (see Dulaş v. Turkey , no. 25801/94, § 81, 30 January 2001). Th us, the Court considers that the aforementioned meetin g s and explanations g iven by the applicants confirm that they were put under pressure to withdraw their complaints. In such circumstances the Court concludes that there was an undue interference with the applicants ' ri g ht of petition.

338 . T he Court considers that such conduct on the part of the Government of Ukraine was capable of hinderin g its examination of the applications lod g ed in exercise of the ri g ht of individual petition and thereby interfered with the first, second and third applicants ' ri g hts g uaranteed by Article 34 of the Convention.

V I . APPLICATION OF ARTICLE 41 OF THE CONVENTION

339 . 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 Hi g h Contractin g Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ”

340 . The applicants claim 150,000 euros (EUR) each for the non ‑ pecuniary dama g e caused to them by the alle g ed beatin g and g ross humiliation in the cours e of the trainin g exercises and EUR 6,000 in total for their fees and expenses for representation .

341 . The Government disa g reed with these claims , statin g that they were unsubstantiated and exorbitant.

A . Non-pecuniary d ama g e

342 . The Government repeated their ar g uments that the applicants had not been subjected to ill-treatment in breach of Article 3 of the Convention and their respective complaints were manifestly ill-founded. Accordin g ly, their claims for the non-pecuniary dama g e should be rejected. Moreover, the Government, referrin g to the Court ' s case-law and the principles thereof , wished to emphasize that an applicant ' s claims should not serve as a basis for unjustified enrichment.

343 . The Court has found multiple and serious violations of Articles 3, 8 § 1, 13 and 34 of the Convention in the present case. D ecidin g on an equitable basis, the Court awards the first and the second applicant s EUR 20 , 0 00 each under this head and the third applicant EUR 15 ,000 for non-pecuniary dama g e .

B . Costs and expenses

344 . The Government noted that , pursuant to Rule 60 § 2 of the Rules of Court , “itemized particulars of all claims made, to g ether with the relevant supportin g documents or vouchers, shall be submitted, failin g which the Chamber may reject the claim in whole or in pa rt ”. As the applicants failed to present any supportin g document to confirm their fees and expenses for representation both before the Court and national bodies, their claims in this part should be rejected.

345 . As to the applicants ' claims for the fees and expenses , which amounted from their point of view to EUR 6,000 , the Court recalls that the applicants ' representative received in total EUR 1,350 in le g al aid. It further notes that , accordin g its case-law, the applicants are entitled to reimbursement of their 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, the applicants did not substantiate their claim under this head. The Court therefore makes no award.

C . Default interest

346 . The Court considers it appropriate that the default interest should be based on the mar g inal lendin g rate of the European Central Bank, to which three percenta g e points should be added.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government ' s preliminary request as to strikin g the first, second and third applications out from the list of cases;

2. De c ides to strik e out the applications lod g ed by Mr Druzenko, Mr Martov, Mr Salov, Mr Kuzmenko, Mr Kiselev, Mr Didenko, Mr Shvets, Mr Litvinov, Mr Mironov and Mr Kulik from the Court ' s list of cases ;

3 . Holds that the Government have failed to fulfil their obli g ation under Article 38 § 1 (a) of the Convention;

4 . Holds that there has been a violation of Article 3 of the Convention in its substantive limb in that the first applicant (Mr Davydov) was ill-treated in the course of the trainin g exercises on 30 May 2001 and 29 January 2002 , received no medical treatment and assistance for the injuries inflicted on him in the course of the trainin g s and was detained in poor conditions in Zamkova Prison, and dismisses the Government ' s objection as to exhaustion of domestic remedies ;

5 . Holds that there has been a violation of Article 3 of the Convention in its substantive limb in that the second applicant (Mr Ilchenko ) was ill-treated in the course of the trainin g exercises on 30 May 2001 and 29 January 2002 , received no medical treatment and assistance for the injuries inflicted on him in the course of the trainin g s and was detained in poor conditions in Zamkova Prison , and dismisses the Government ' s objection as to exhaustion of domestic remedies ;

6 . Holds that there has been a violation of Article 3 of the Convention in its substantive limb in that the third applicant (Mr Gomeniuk ) was ill ‑ treated in the course of the trainin g exercise on 30 May 2001, received no medical treatment and assistance for the injuries inflicted on him in the course of the trainin g s and was detained in poor conditions in Zamkova Prison , and dismisses the Government ' s objection as to exhaustion of domestic remedies ;

7 . Holds that there has been a violation of Article 3 of the Convention in its procedural limb in that the first, second and third applicants ' complaints of their ill-treatment in the course of the trainin g exercises were not duly investi g ated by the Ukrainian authorities , and dismisses the Government ' s objection as to exhaustion of domestic remedies ;

8 . Holds that there has been a violation of Article 13 of the Convention , taken to g ether with Article 3 of the Convention , on account of the lack of effective and accessible remedies under domestic law for the applicants ' complaints in respect of their ill-treatment and the injuries inflicted durin g the trainin g exercises, the lack of medical treatment and assistance for these injuries, and also the poor conditions of detention ;

9 . Holds that there has been a violation of Article 8 § 1 of the Convention in that interference with the first, second and third applicants ' correspondence was not lawful and that no separate issue arises under Article 13 of the Convention, taken to g ether with Article 8, in that they had no effective and accessible remedies for their complaints of interference with their correspondence ;

10 . Holds that there has been a hindrance of the first, second and third applicants ' exercise of the ri g ht of individual petition under Article 34 of the Convention ;

1 1 . Holds

(a) that the respondent State is to pay the first and the second applicants, within three months from the date on which the jud g ment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20 , 0 00 (twe nty thousand euros) each in respect of non-pecuniary dama g e, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be char g eable;

( b ) that the respondent State is to pay the third applicant , within three months from the date on which the jud g ment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15 , 0 00 ( fifteen thousand euros) in respect of non-pecuniary dama g e, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be char g eable;

( c ) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the mar g inal lendin g rate of the European Central Bank durin g the default period plus three percenta g e points ;

1 2 . Dismisses the remainder of the applicants ' claim s for just satisfaction.

Done in En g lish, and notified in writin g on 1 July 2010 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Peer Lorenzen Re g istrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurrin g opinion of Jud g e Villi g er is annexed to this judg ment.

P.L . C.W .

CONCURRING OPINION OF JUDGE VILLIGER

I agree with the operative provisions of the Section judgment, in particular §§ 4-6, according to which there has been a violation of Article 3 of the Convention. However, I disagree with the accompanying reasoning, namely that the applicants were “ill-treated in the course of the training exercise(s)” and that they “received no medical treatment and assistance for the injuries inflicted”.

Rather, I find that the treatment at issue went beyond ill-treatment and amounted to torture for the purposes of Article 3 of the Convention.

Introduction

At the outset I duly note that the establishment of the facts in this case proved to be exceptionally difficult. I can agree with the facts as they have been set out in the judgment.

I am further aware that the applicants were convicted criminals serving prison sentences for particularly serious criminal offences which they had committed. However, their punishment must be limited to the prison sentence as set out in the respective court judgment which convicted them and certainly cannot comprise unforeseen corporal punishment.

Furthermore, it goes without saying that a State is entitled to conduct whatever prison exercises it finds necessary. As the judgment points out in § 268, the Court bears in mind “the difficulties in policing modern societies, the unpredictability of human conduct and the need to train and keep prison staff prepared for possible unexpected conduct of prisoners, including conduct related to mass riots or taking of hostages”. The point is however precisely that such exercises must comply with the guarantees enshrined in the Convention.

As a final introductory remark, I would add that prisoners are placed in a particularly vulnerable situation as they cannot fend for themselves. They depend on the State and in particular the prison authorities for their health and well-being. The mere lack of care, for instance, can already amount to inhuman treatment. Any additional negative treatment weighs all the more severely in this context.

Facts

A review of the facts discloses, inter alia , the following elements of the prison exercises as experienced by the three applicants individually or collectively during the exercises of 30 May 2001 and/or 29 January 2002 (§§ 202 et seq .):

– the officers involved in the exercises wore masks and flak jackets during one exercise, during another they wore green camouflage uniform, helmets, shields, some carried automatic guns, rubber truncheons, handcuffs, immobilising pitchforks and fire-crackers;

– the search of the applicants ' cells started with sounds of explosions and blank shots from the automatic guns; the search forces used firecrackers and banged with truncheons on the shields;

– the officers ran into the cells, pointing their guns inside the cells. Two applicants were ordered to lie on the floor face down. They were not allowed to move;

– one applicant thereby received multiple kicks. T he officers stepped on him;

– the officers ordered two applican ts to run into the corridor one by one where other soldiers who had truncheons and shields formed a “corridor” through which the prisoners had to run. They did so with their heads bent down to the level of their legs. The officers forming a “corridor” tried to strike prisoners with truncheons or kick them with their feet. O ne applicant thereby received blows from trunc heons on his forehead and back;

– one applicant was dragged out of the cell, with two soldiers holding his hands behind his back , he was bent down and could hardly walk;

– two applicants were forced to stand spread - eagled ; when one applicant fell, he was kicked and again raised to stand near the wall in the same position;

– two applicants were ordered to strip naked, their clothes were piled in the middle of the corridor;

– the applicants had to swear that they would not violate the detention regime and comply with the prison officers ' orders. The officers hit one applicant as his answers were not loud enough;

– one applicant who refused to swear, was thrown back into the cell where one of the soldiers who wore heavy military boots kicked him , whereupon he fainted;

– one applicant was ordered to run back to the ce ll and started to look for his clothes which were muddled in the middle of the corridor. He was kicked for taking too much time over it;

– this applicant ran back into the cell naked and holding his clothes, he had to bend down as he was constantly struck;

– upon return to their cell the cell inmates saw that all their belongings had been scattered all over the floor, broken or in a heap in the middle of the cell;

– two applicants were injured as a result of the first training exercise, all three were injured as a result of the second exercise. A n external doctor informed one applicant that his ribs were broken;

– immediately after these events and on the next day the applicants asked for medical treatment and assistance, but none was provided, so they had to give medical aid to each other;

– th e medical injuries inflicted on the prisoners in the course of the general search were not recorded and there were no traces of any records of injuries inflicted on the applicants .

I have summarised these facts here, the full details and explanations as to how they were established can be found in the judgment.

Evolution of the Court ' s c ase-law on Article 3 of the Convention

In the interstate case of Ireland v. the United Kingdom , the Court was called upon to examine whether the so-called “five interrogation techniques” amounted to inhuman and degrading treatment, or even to torture, within the meaning of Article 3 of the Convention. In its judgment the Court held in 1978 (Series A no. 25, §§ 167 et seq .):

“ The Court considers in fact that, whilst there exists on the one hand violence which is to be condemned both on moral grounds and also in most cases under the domestic law of the Contracting States but which does not fall within Article 3 of the Convention, it appears on the other hand that it was the intention that the Convention , with its distinction between ' torture ' and ' inhuman or degrading treatment ' , should by the first of these terms attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.

Moreover, this seems to be the thinking lying behind Article 1 in fine of Resolution 3452 (XXX) adopted by the General Assembly of the United Nations on 9 December 1975, which declares: ' Torture constitutes an aggravated and deliberate form of cruel, inhuman or de grading treatment or punishment ' .

Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.

168. The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3” .

This case-law and in particular the thresholds of inhuman treatment and torture were reviewed in the Court ' s judgment of Selmouni v. France of 2001. There, the Court established the facts of that case as follows (ECHR 1999-V):

“102. The Court is satisfied that a large number of blows were inflicted on Mr Selmouni . Whatever a person ' s state of health, it can be presumed that such intensity of blows will cause substantial pain. Moreover, a blow does not automatically leave a visible mark on the body. However, it can be seen from Dr Garnier ' s medical report of 7 December 1991 ... that the marks of the violence Mr Selmouni had endured covered almost all of his body.

103 . The Court also notes that the applicant was dragged along by his hair; that he was made to run along a corridor with police officers positioned on either side to trip him up; that he was made to kneel down in front of a young woman to whom someone said “Look, you ' re going to hear somebody sing”; that one police officer then showed him his penis, saying “Here, suck this”, before urinating over him; and that he was threatened with a blowlamp and then a syringe ... Besides the violent nature of the above acts, the Court is bound to observe that they would be heinous and humiliating for anyone, irrespective of their condition .

104 . The Court notes, lastly, that the above events were not confined to any one period of police custody during which – without this in any way justifying them – heightened tension and emotions might have led to such excesses. It has been clearly established that Mr Selmouni endured repeated and sustained assaults over a number of days of questioning ... ”

In Selmouni the Court distinguished these facts from those in the case of Ireland v. United Kingdo m . The Court had no doubt that the treatment inflicted on that applicant constituted inhuman and degrading treatment contrary to Article 3 of the Convention (§ 99). The question arose, however, whether the treatment also amounted to torture. The Court held in Selmouni :

“100. [I]t remains to be established i n the instant case whether the ' pain or suffering ' inflicted on Mr Selmouni can be defined as ' severe ' within the meaning of Article 1 of the United Nations Convention. The Cour t considers that this ' severity ' is, like the ' minimum severity ' required for the application of Article 3, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.

101. The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture (see the Aksoy judgment cited above, p. 2279, § 64, and the Aydın judgment cited above, pp. 1891 ‑ 92, §§ 83-84 and 86). However, having regard to the fact that the Convention is a ' living instrument which must be interpreted in the light of present-day conditions ' (see, among other authorities, the following judgments: Tyrer v. the United Kingdom , 25 A pril 1978, Series A no. 26, pp. 15-16, § 31; Soering cited above, p. 40, § 102; and Loizidou v. Turkey , 23 Ma rch 1995, Series A no. 310, pp. 26-27, § 71), the Court considers that certain acts which were classif ied in the past as ' inhuman and degrading treatment ' as opposed to ' torture ' could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”

As a result, in view of the treatment which the applicant suffered, the Court concluded in Selmouni :

“105. Under these circumstances, the Court is satisfied that the physical and mental violence, considered as a whole, committed against the ap plicant ' s person caused ' severe ' pain and suffering and was particularly serious and cruel. Such conduct must be regarded as acts of torture for the purposes of Article 3 of the Convention.”

Appreciation of the facts of this case in the light of Article 3 and the Selmouni case-law

The Selmouni case is a – if not the – leading case of the Court as regards the thresholds in Article 3 of the Convention in respect of inhuman and degrading treatment and torture. Hence, the facts of the present case must be appreciated in the light of that case-law.

It is of course difficult to compare the facts of different cases. Still, some similarities between Selmouni and the present case may be highlighted.

Both in Selmouni and in the present case, the officers formed a “corridor” through which the applicants had to run. In both cases the applicants were severely beaten. It is true that in Selmouni a police officer exposed himself and urinated on the applicant; in the present case two applicants were forced to undress and run naked with their heads bent down to their knees and they were then hit. In Selmouni the applicant was threatened with a blow lamp and a syringe, here the applicants were terrified by armed officers with masks and in camouflage uniform shooting blank shots and firecrackers, banging truncheons on their shields and storming into the prison cells.

Some facts in the present case would appear more serious than in Selmouni . Thus, one applicant suffered broken ribs. Furthermore, one applicant was kicked by an officer wearing heavy military boots; he was so badly hurt that he then fainted.

Moreover, since Selmouni we know that all facts of the case have to be seen and assessed together. In my view, it does not correspond with this case-law if in the present judgment the lack of medical treatment and assistance is treated separately as leading to a further conclusion of ill ‑ treatment (§§ 292-296). Rather, these many facets have to be seen as part and parcel of the general treatment which the applicants suffered. If appreciated in this light, the lack of medical treatment and assistance further worsened the applicants ' plight.

Finally, and perhaps most seriously, this case raises the particularity that the exercises were twice planned in advance. The applicants were intended to be part of events which were from the beginning likely to, and eventually did, result in humiliating and painful treatment. The first exercise of 30 May 2001 was planned and approved by the superiors. Subsequently, in full knowledge of what had happened during the first exercise a further exercise was again planned and approved for 29 January 2001. This deliberateness is in my view a further serious aspect of the case.

Conclusion

In my view, the present judgment fails to apply the increasingly high standards which the Court set itself in Selmouni in particular as to the appropriate threshold for a finding of torture as in Article 3 of the Convention. In the present case, the same conclusion should be drawn as in that case.

Thus, bearing in mind the present applicants ' vulnerable situation, I consider that the physical and mental violence intentionally committed against them , considered as a whole, caused severe pain and suffering and was particularly serious and cruel.

In my view, such treatment must be regarded as acts of torture within the meaning of Article 3 of the Convention.

ANNEX

Summary of Oral Evidence

1 . The witness evidence taken by the Court ' s Dele g ates at hearin g s conducted in Khmelnytsky, between 25 and 27 June 2007 , may be summarised as follows.

A . The applicants

1 . The first applicant (Mr Sergiy Viktorovych Davydov)

2 . T he applicant told the Dele g ates that he was detained in the Zamkova Prison at the time of the events. He had known Mr Gomenyuk (the third applicant) since 1986. He was held in cell no. 8 at the time of the events, in front of the entrance to the Monastyr, with 10 other convicts (amon g whom he mentioned Mr Ilchenko, Mr Va g if Didenko, Mr Ole g Didenko). As they were all held in different cells, however, he did not know who was held in the other cells . H e learned that Mr Gomenyuk was in Zamkova Prison only in 2002.

3 . T he applicant stated that in the mornin g of 30 May 2001 prisoners heard drums (or possibly the knockin g of truncheons a g ainst shields) and other noise and understood that forces were inside the territory of the Prison . There had been rumours about the arrival of special units ten days in advance, so the inmates had been awaitin g these units every day since 18 ‑ 20 May. He could see the units enterin g the penitentiary g rounds from the window in his cell. In his opinion, they were not composed of officers from the Zamkova Prison . H e inmates heard explosions and blank shots from the automatic g uns, and some shoutin g . The officers were dressed in black uniforms and flak jackets, and somethin g was written on the back of these uniforms; they carried lon g truncheons and yellow shields. In his opinion, and on the basis of the rumours he had heard, they had been from the “Berkut” special unit. They also had automatic g uns with short stocks . T he applicant assumed that the noise was made by automatic g unshot.

4 . He described the events of 30 May 2001 inside the cell as follows. Two “fi g hters” (officers) ran into the cell wearin g masks and carryin g automatic g uns pointin g into the cell. They ordered the inmates to lie on the floor face down, and then ordered them to run into the corridor of the Monastyr, where other soldiers carryin g truncheons and shields were waitin g , formin g a corridor throu g h which the inmates ran to the wall. He was the first person to be forced to stand up and to run. All the soldiers formin g the “corridor”, who were carryin g shields and truncheons, tried to strike him. He was stopped by another soldier and told to stand near the wall. Near the applicant was Mr Va g if Didenko. The officers started to search them and they were ordered to strip naked; their clothes were piled in the middle of the corridor and were not inspected. Afterwards someone pointed to them and said “these ones” and officers then came up to him and Mr Didenko and asked them to g ive their names, the reasons for their conviction and the duration of their sentences. Then they stated that he did not answer loudly enou g h and started strikin g him in the le g muscles, liver, etc. Officers told them to stop infrin g in g the detention re g ime. Then they were ordered to run back one-by-one, but were still struck at with truncheons. Other soldiers with shields were makin g a noise, knockin g on the shields with their batons. He saw about 50 persons wearin g masks. Some people were lau g hin g , and others were tryin g to strike the runnin g inmates. Ten to fifteen minutes after the cell door had been closed on their return, they had a visit from Mr Zakharov and Mr Mazurenko who asked whether they had any complaints. This was done in presence of the soldiers from the special unit. He also knew that Mr Volkov ( who spoke to him about the events in September 2001, when he reviewed the complaints) and Mr Stasiuk attended the trainin g exercise.

5 . The applicant ' s submissions with re g ard to the medical complaints were as follows. As a result of the first exercise he sustained numerous injuries and felt “threatened”, deeply morally humiliated and scared. However, no medical treatment had been provided. He alle g ed that treatment was g iven “when you start dyin g ”. He mentioned that “e very one” complained to the General Prosecutor ' s Office. However, the complaints to the Supreme Court, the Prosecutor ' s Office in Khmelnytsky Re g ion, etc. were not dispatched. H e and Mr Ilchenko sent the complaints to the prosecutor ' s office, and then Major Boyko called him and Mr Ilchenko and told them that they had to cooperate with the administration and comply with the re g ime. They were further told that their complaints had no prospect of success.

6 . As to the second trainin g exercise of 29 January 2002, the applicant stated that it started at about 10-11 a.m. and that durin g the trainin g exercise he was held in solitary confinement cell no. 13 or no. 14. He saw the barrel of an automatic g un, and then heard blank shots. He immediately dropped on the floor on hearin g shots from the g un. He was lifted from the floor by two soldiers who threw him into a very narrow passa g eway between the cells, where he saw Mr Volkov, Mr Stasiuk and someone else standin g at a distance of 5-6 metres. He also saw that other cells had been opened. One of the inmates, Mr Kostenko, cut his wrists with a razor hidden on his person. The officers asked the inmates to swear that they would comply with the administration ' s instructions. He refused to swear and they started beatin g him in the kidneys and ribs. One of the soldiers, wearin g solid military boots, kicked him and he fainted. He was then thrown back into his cell.

7 . With re g ard to the presence of the special units, the applicant said that he had seen special units for the first time in 1994, while held in Bila Tserkva Prison . He a g ain stated that he believed these were special units, supposedly the “Berkut”, who had automatic g uns and flak jackets and wore black uniform s . He considered that the aim of these trainin g exercises was to “show force” and to train on real inmates in order to force the inmates to behave as the authorities wished.

8 . In the course of the second trainin g exercise, he sustained injuries (from the blows) and had pain in one side; an X-ray examination was conducted by an external doctor. He also told this doctor that he was worried that he had contracted pneumonia, as there was no heatin g in his cell and it was quite cold. The doctor stated that he had fractured ribs and noted his examination in the medical records, statin g that he would heal within a month. The medical doctor of the Prison did not want to help, as he was fully controlled by the Prison . Some other persons, includin g Mr Kostenko and an inmate who had epilepsy, were also seriously injured. The latter inmate eventually had a heart attack and was transferred to Klementovichi. While beatin g the person sufferin g from epilepsy, the soldiers did not believe that he had this illness and continued to beat him, thinkin g that he was pretendin g to suffer from epilepsy. The inmates a g ain made a number of complaints to different institutions (he also mentioned the CPT and a member of the CPT staff ). In December 2002 Mr Volkov replied to him, statin g that no violations of the law had been found. Upon his arrival at Berdychiv Prison no. 70 he discovered that his medical card was not transferred with him, as it had been lost. He did not try to record these fractures at a subsequent date, because “ there was no point ” and in any case it was impossible to prove that they had occurred as a result of the trainin g ex ercise rather than other events .

9 . He tried to send his complaints to the General Prosecutor ' s Office with a request for reli g ious literature, in violation of the established procedure for submittin g complaints, and was eventually sanctioned for sendin g them by unauthorised means. He a g ain mentioned that there was no point in complainin g to the prosecutor, as any correspondence was checked by the penitentiary staff anyway. In addition, these complaints were returned to the prosecutors who had been present durin g the search, so they had no prospect of success.

2 . The second applicant (Mr V italiy [14] Volodymyrovych Ilchenko)

10 . When g ivin g evidence to the Dele g ates, t his applicant was servin g his sentence in Iziaslav Prison no. 52. He kn ew other applicants, includin g Mr Druzenko, who m he met in Vinnitsa in 1998, when they shared a cell. Mr Druzenko was later transferred to Zamkova Prison . He met Mr Druzenko a g ain in Iziaslav and learned that he had already lod g ed his complaints to the Human Ri g hts Ombudsman about various aspects of his imprisonment before his arrival in the Zamkova Prison , for which he already received an additional one-year sentence. The second applicant met Mr Gomenyuk much later, when he was held in a sin g le occupancy cell and had inter-cell communication with Mr Gomenyuk , who was occupyin g a nearby cell. He also knew Mr Martov, Mr Kiselev and others, but not by surname.

11 . Durin g the events of 30 May 2001, the second applicant was held in cell no. 8, on the first floor, at the very end of the corridor. He described the events surroundin g the trainin g exercise on 30 May 2001 as follows. The day had started as usual with the wake-up bell and accordin g to the internal daily routine. Then he heard some sort of noise in the corridor, comin g from the entrance to the Monastyr. Throu g h the narrow 20 cm chink in the door he saw people wearin g flak jackets and carryin g shields; the noise was g ettin g closer. He could hear people bein g taken and beaten, and firecrackers explodin g . He heard the sound of truncheons ban g in g on the shields and explosions near his cell.

12 . The second applicant heard the first cell open, then a g ain the sound of a firecracker explodin g . Another 10-15 minutes passed. The first two cells to be opened were situated on the ri g ht side. The cellmates understood that somethin g w as g oin g to happen. Some people were takin g medicines, others were puttin g on additional clothes, and everybody was preparin g for somethin g . He had put on additional clothin g . Then he heard the noise of firecrackers a g ain, and the sounds of a shot near the cell. The door opened and persons in masks and flak jackets and carryin g machine- g uns ran into the cell. They started shoutin g out orders (i.e. to lie down on the floor), usin g obscene lan g ua g e. There were already two persons lyin g on the floor in the passa g eway and there was no room for him to lie down. A man in uniform ran to him and shouted: “the order was to lie down on the floor!” Then he kicked the applicant in the stomach, spine and nape, so that he w as lyin g on the floor with his hands behind his head and le g s spread apart. He tried to move his head, as he felt uncomfortable facin g the floor, but immediately received a kick. The soldiers were movin g inside the cell, steppin g on the inmates.

13 . The second applicant was then ordered to g o into the corridor; the cellmates were ordered to exit one-by-one into the corridor, their heads bent down to the level of their le g s. He had been dra g g ed out of the cell, with two soldiers holdin g his hands up behind his back so that he was bent down and could hardly walk. Then near the door he heard the order “forward, run”, followed by blows from truncheons to his head, so that he had to bend down, to the forehead and then to the back. People in military uniforms came and put him into the “ roztiazhka ” position ( розтяжка or “ spreadea g led ”) [15] . Officers from the Prison administration were also present. He received blows from different sides, when he fell he was raised into the same position and then a g ain beaten. Then everyone was ordered to turn around and undress. He was even asked to take off his underwear. He could see those persons (from the special forces) who were dressed in additional military camoufla g e khaki uniform; they had some sort of ro g achi (“ рогачі ” or immobilisin g forks), flak jackets, black masks, weapons. They also wore “bertsy” (“ берці ” , special military boots). While the inmates undressed they were constantly struck with truncheons on the body, muscles, liver, spine, etc. The soldiers were shoutin g “faster, faster” and the convicts had to g o into the roztiazhka position, naked, with their hands a g ainst the wall. He fell several times and was raised and beaten. He had to sit down. Then he was ordered to swear that he would not violate the detention re g ime and would comply with orders. He was ordered to run back to the cell, and started to look for his clothes, which were muddled to g ether in the middle of the corridor. The applicant heard the voice of the commander of their prison detachment, Mr Gaydamaka, who was lau g hin g . When he was runnin g back into the cell naked, he had to bend down as he was constantly struck. When he entered the cell, he was a g ain asked to lie down. Then someone ordered all of the convicts to stand up and to restore order in the cell. The state of the cell was not the result of a “ g eneral search”, as items were scattered around, certain items had been broken, some (food, clothes, personal belon g in g s, etc.) were in a heap in the middle of the floor. The forces left when the inmates were g oin g to have a meal. They asked for medical assistance immediately after the trainin g exercise and on the next day, but nobody arrived so they had to provide medical aid to each other. Their medical complaints were not examined and neither assistance nor treatment had been provided to the inmates. The inmates treated themselves. The applicant had pain in his kidneys and blood in his urine for several days. No medical treatment and assistance was provided to them after the trainin g exercise and the inmates treated themselves. The applicant stated that he had suffered from pain in his kidneys for a lon g time.

14 . As to the presence of the Prison ' s employees, the applicant stated that Mr Zakharov and that Mr Gaydamaka were in attendance durin g the trainin g exercise. He said that these individuals were directin g the soldiers to use more force on certain inmates, as he was beaten more than others. The inmates who had complained about detention conditions had been beaten more.

15 . As to hi s complaints about the trainin g exercise, the applicant stated that after the trainin g exercise a commission composed of Mr Zakharov, Mr Mazurenko, Mr Mazepa and one more person, apparently a prosecutor, entered his cell. The inmates were asked if they had any complaints. At that time they stated that they had no complains, but he and another applicant, Mr Davydov, started writin g complaints to the Supreme Court, as Mr Davydov had a number of complaints pendin g before the first-instance courts, re g ional courts and the Supreme Court. They g ave these complaints to Mr Gaydamaka, head of their prison detachment, and he handed these to the special department, that is, to Mr Mazurenko. This happened on the next day. Mr Gaydamaka called them and threatened them, demandin g that they withdraw their complaints. Followin g different threats they were obli g ed to withdraw these complaints. He started complainin g on 7 February. The applicant further concluded that nobody had investi g ated their complaints.

16 . Durin g the second trainin g exercise, the applicant was held on the second floor, as he had been transferred from the “imprisonment re g ime” (so-called “ТЗ” or “ тюремне ув ' язнення ”) to a maximum security re g ime. He stayed in cell no. 23 in the Monastyr. On 29 January 2002 he a g ain saw forces. T heir total number was more than 200 soldiers. Then he heard explosions, shouts, moanin g and military orders. The sounds were comin g mainly from cells nos. 19 and 29, which were situated not far from cell no. 23. Inmates were asked to shout their names and to state that they would cooperate with the administration. He himself was not beaten up in the course of the search, but after the military forces left the Zamkova Prison , he was called by Mr Zaremsky. Some junior prison inspectors from the 8 th detachment were also present. Mr Zaremsky asked him to stop complainin g since, if he did not stop, he would be “wiped out” and that “it would be worse for him than for the others”. He was beaten for between an hour and an hour and a half by the inspectors present.

17 . With re g ard to the presence of the special units, the applicant mentioned that the soldiers used were from the same type of military unit. They differed from the Prison staff and wore bulletproof vests (flak jackets), khaki uniforms with rolled-up sleeves, and had weapons and shields (yellow or li g ht brown). They also carried immobilisin g pitchforks, masks and helmets. He further stated that some of the officers mi g ht have had automatic g uns.

18 . The second applicant maintained that only three applicants were left from those who lod g ed their applications with the Court . He had been put under pressur e to withdraw his application and the other prisoners mi g ht have also been in a similar situation. The applicant complained about problems he had, in particular that he was forced to leave his cell no. 23 and placed in a cell no. 53, with notorious criminals ( кримінальні авторитети ), and they too subjected him to pressure at the request of the Zamkova Prison administration. Eventually, h e was to stay with other persons, the so-called “socially unadapted” ( соціально неадаптовані ). He said that a special show had been sta g ed to su g g est that he was a representative of the penitentiary administration, which he was not. Similarly, he mentioned that Mr Gomenyuk and Mr Davydov “had problems”, as someone had tried to kill Mr Davydov.

3 . The third applicant (Mr Ser g iy Yakovych Gomenyuk)

19 . T his applicant stated that he was detained in the Zamkova Prison at the time of the second event with some of the other applicants, includin g Mr Druzenko, Mr Martov and Mr Ivanov. Amon g the officers, he noticed the presence of Mr Stetsiuk, Mr Satsiuk, Mr Mazurenko and Mr Mazepa. The head of their Prison detachment was also present ( загін Виправно-Трудової Установи ).

20 . The third applicant explained that on the mornin g of 29 January 2002 the inmates woke up as usual at about 6 a.m. with the wake-up bell. Then they saw special forces in camoufla g e and masks, with automatic g uns (probably AKSU automatic g uns, “ Автомат Калашникова ствол укороченный” or “АКСУ-74”), heard automatic g unshots, heard the explosions of “firecrackers” ( вибухових пакетів ) and saw smoke. He was not sure whether the special forces officers were prison g uards. The applicant mentioned that some kind of special units actually searched the Zamkova Prison . He thou g ht that the aim of these trainin g exercises was to “show force”, threaten them and to train on real inmates.

21 . He saw the forces g oin g up to the first floor (known as the second floor in Ukraine ), where they ordered everyone to lie down, started to beat everyone and dra g g ed the inmates out to the corridor. The cells were opened one by one. Inmates were passed throu g h the “live corridor” of soldiers and were kicked or struck by rubber truncheons. They were ordered to stay in the “ roztiazhka ” position, humiliated and ordered to swear that they would not violate the detention re g ime. The operative officer ( оперативник ), apparently someone from the Prison , was g ivin g instructions as to who should be beaten more. Then officers ordered the inmates to run to the cell. Mr Druzenko, the fourth applicant, was ordered to stay in the corridor with others and was then was thrown in to the cell. Everythin g was upside down, thin g s were torn apart, su g ar, tobacco and ci g arettes were piled up in the middle of the cell.

22 . The applicant stated that it was also possible to see from the cell how inmates had been beaten on the first floor. He had sustained rib and nose injuries, and for five or six days his urine had contained blood. He further maintained that Mr Druzenko had been taken to the medical department as he had problems with the spine and intervertebral disk, but received no medical treatment. The third applicant also stated that Mr Martov ' s kidneys and le g s were badly injured.

23 . When he wrote complaints, Mr Mazurenko and Mr Mazepa tore them up . Some complaints were sent with the use of a reli g ious coded text known to Mr Zherdev, with reference to the Bible. He was placed in the solitary confinement cell ( карцер ). In order to be released from solitary confinement, he had inflicted injuries to his stomach and feet and was still feelin g their consequences, as he was unable to work at the construction works where he was employed .

B . Witnesses proposed by the applicants

1 . Mr Va g if Nurzali Didenko

24 . This witness was a former inmate of the Zamkova Prison . He was an eyewitness to the events of 30 May 2001 and alle g edly a witness to the consequences of the events of 29 January 2002.

25 . This witness stated that durin g the first trainin g exercise he was forced out from cell no. 8, where he was held with applicant Ilchenko and with seven other inmates. He had to bend down while passin g the row of special force officers and could not see who was around him, as the officers kicked him alon g to “speed him up”. He objected to the officers who searched and ordered him to strip naked, and was badly beaten. Then they helped him to take off his underpants and he dropped all of his clothes on a g eneral pile of clothes. These officers struck him with their truncheons, feet and hands, and he had to stay in the “ roztiazhka ” position in the corridor in front of his cell. He stated that he was asked to state his name, the article of the Criminal Code under which he had been convicted and the sentence imposed. He g ave this information and, when he refused to repeat it ten times, was beaten a g ain. The search and beatin g of those in his cell lasted for about 40 minutes. Then someone came to the cell and asked them whether they wanted to complain, addin g that they should be happy that “it was easy on them”.

26 . He also confirmed that he had heard a si g nal before the trainin g started, explosions, and blank g unshots from automatic weapons. He saw about 30 soldiers from the special forces. The inmates prepared for the trainin g exercise , had tried to prepare in advance , as there were rumours of the soldiers ' arrival. Some of them were puttin g on additional clothin g , others took tranquilisers, so that the blows would not be felt so much. He mentioned that a number of persons, includin g Mr Ilchenko and Mr Mikhaylenko, had injuries as a result of the trainin g . Many persons showed him their injuries. In the course of the trainin g exercise they saw two soldiers carryin g an unconscious person.

27 . This witness confirmed the presence of prosecutor Volkov durin g the first search, and also that the corridor was filled with 30 officers. He also stated that the special forces stayed in the Zamkova Prison from early mornin g until evenin g . The witness was not sure which special forces had participated in the trainin g , but mentioned that they were either “Berkut” or OMON, as these were common names for special forces. The officers had special equipment, includin g motorcycle helmets - some of which had visors coverin g the face - and shields; the special helmets they wore looked like motorcycle helmets. S ome of them wore masks. After several minutes ' search there was disorder inside the cell: everythin g had been turned upside down, there was tea and su g ar on the floor, bed linen had been ripped apart, and personal belon g in g s scattered around.

28 . The witness stated that the trainin g exercises had been used to suppress and punish the inmates. Nobody had explained to them their ri g hts and duties in the course of such a “search” and nobody had told them when these forces would train, as they were brou g ht in secretly and unexpectedly. He remembered that someone wanted to speak to him about his complaints, but he refused as the person concerned did not really wish to investi g ate them. He then lod g ed complaints about ill-treatment durin g the trainin g with Mr Ilchenko, via Mr Zherdev.

29 . Mr Mazurenko and Mr Shatskiy had tried to influence him so that he would not complain about the ill-treatment suffered in the course of the trainin g . He claimed that inmates could not complain about the ill-treatment, as they were threatened by the officers present durin g the trainin g exercise. Afterwards they had nothin g to complain about, as no medical records were kept of his injuries and the injuries of others. The doctor told him that he would try to provide medical assistance, but that he would not include anythin g in his records. Eventually, however, he had to under g o additional medical treatment and sur g ery in Kherson and L ' viv, as his medical condition had a g g ravated. He could walk only with a stick.

30 . He confirmed that he had been absent from the Zamkova Prison at the time of the second trainin g exercise, under g oin g medical treatment in Prison no. 98. Upon his return to the penitentiary on 2 February 2002, he had been transferred to solitary confinement. He was called in by Mr Mazurenko, who told him that he could not avoid the injuries and beatin g s experienced by the others. He had ultimately been beaten by Mr Mazurenko and Mr Shatskiy; the officers had also tried to stran g le him. He was taken back to the cell, where he was told that other inmates were also injured.

2 . Mr Leonid Volodymyrovych Mikhaylenko

31 . This witness was a former inmate of the Zamkova Prison and a direct witness of the events of 30 May 2001. He was detained in the same cell as some of the applicants in the course of the events of 30 May 2001. He left Zamkova Prison on 12 June 2001.

32 . This witness was initially kept in cell no. 13 and was then transferred to cell no. 16. He stated that he knew the convicts Mr Litvinov and Mr Didenko. In his opinion, the cell was not suitable for detention, as it was cold and there had been no bed linen. He had been dia g nosed as sufferin g from tuberculosis while in prison, as the inmates suffered from hun g er, and was transferred to a sin g le occupancy cell, no. 17. On the day in question he heard some noise (explosions and shots), the door to his cell was opened and he saw people standin g in the corridor, and inmates in the “ roztiazhka ” position who were bein g beaten on their feet. They were searched and stripped. Orders were g iven, such as “stand still”, “say that you are g oin g to cooperate with the administration”, “on your knees”.

33 . The witness stated that he saw people in special uniform, which was the same for all officers. They carried truncheons, but not automatic g uns. He considered that they were from outside the Prison . He also saw Mr Mazepa, Mr Mazurenko, Mr Shatskiy and Mr Bondarchuk, who were actively participatin g in the trainin g exercise. They were standin g to the side and possibly pointin g at those inmates who should be beaten further. Mr Davydov, Mr Gomenyuk , Mr Druzenko and Mr Didenko were badly beaten. Some inmates fell and were made to stand up with kicks and beaten a g ain. They were ordered to g ive an oath of obedience to the prison administration and swear to comply with the detention re g ime. Some of the inmates were ordered to g ive an oath on their knees. This lasted for about 10-15 minutes. He saw undressed inmates from cells nos. 15 and 16.

34 . In his opinion, Mr Didenko from cell no. 8 was beaten most badly. He saw the injuries later and spoke to the other inmates durin g walks in the yard with cellmates from nos. 8, 14 and 16, as there were only 3 yards for daily walks. He stated that, notwithstandin g the fact that he was already dia g nosed with the open form of tuberculosis, he still took daily walks with other inmates. They submitted their complaints about the incidents durin g the trainin g exercise to the Prison officer. However, these were not forwarded any further. As he understood it, these complaints and injuries were not re g istered.

35 . As to the incident on 29 January 2002, the witness mentioned that a couple of inmates in the cells had been heavily beaten. He was told that Mr Druzenko and Mr Gomenyuk were beaten so badly that they could not walk or even use the toilet without assistance. As a tuberculosis patient, he was transferred to Prison no. 61 in Kherson Re g ion and returned to the Zamkova Prison only on 12 June 2002. He was held in that Prison until 2006.

36 . The witness referred to threats made a g ainst him on account of his testifyin g as a witness before the Court. In particular, he said that he had been threatened by Major Kyslov and Colonel Polevoy , who promised that he would suffer from ne g ative consequences if he would g ive statements in the course of the hearin g before the Court .

3 . Mr Ole g Tishalkov

37 . The witness was a former inmate of the Zamkova Prison and an eyewitness of the events of 30 May 2001. He stated that he had been in cell no. 2 durin g the events in question. He said that he knew the applicants, althou g h he could not remember all of them by their surnames. He knew nothin g about the second incident, as he had been transferred from the Zamkova Prison in September 2001. But other inmates had told him that the second trainin g exercise was even more brutal than the first.

38 . He stated that the search started after 6 a.m., about an hour after the wake-up bell. They had heard that such a search would be conducted one to one-and-a-half weeks beforehand. However, they were never instructed on how to behave and what to do.

39 . The officers, who wore identical black uniforms, masks and helmets, and carried truncheons and firecrackers, ran into the cell, orderin g everyone to lie down on the floor. They exerted a sort of psycholo g ical pressure as everythin g was done chaotically and very quickly. He noticed about 30 officers. The witness said that he saw that the search was bein g video-recorded and that some persons were takin g notes. Then the inmates were taken to the corridor one by one. Five or six officers who came into the cell were shoutin g and did not let the inmates look up, and struck them at random with the truncheons. The inmates had to strip naked and were ordered to stand in the “ roztiazhka ” position, and were ordered to swear that they would cooperate with the administration and comply with the detention re g ime. When they were runnin g back to the cell, the officers a g ain hit them with truncheons. In the cell everythin g was turned upside down: linen, mattresses, personal belon g in g s, etc. The penitentiary officers were indicatin g who was to be beaten more severely. This concerned those inmates who complained a lot and demanded improvements in the detention conditions. The unit involved was from the Khmelnytsky re g ion, and was some kind of special unit. The prosecutors were present in the course of the search. Representatives of the administration visited the cell, g uarded by officers with automatic g uns.

40 . He stated that he had not been kept in the same cell as the applicants and could not say anythin g about their injuries, as he saw only those who were outside the cells. Everyone had some sort of injury: blows, haematomas, etc. He personally received some injuries; his eardrum had been badly dama g ed. He never received adequate medical treatment for this injury, as there was no “ ear, nose and throat specialist ” (“otolaryn g olo g ist”).

4 . Mr Vadym Getmansky

41 . This witness was a former inmate of the Zamkova Prison and an eyewitness of the events of 30 May 2001 and 29 January 2002. At the time of the events he was held in cell no. 4, with 10 other inmates; this was not in the Monastyr, but in the residential area of the Prison . This was a resi dential sector. Inmates held there could leave their cells from 6 a.m. to 10 p.m., so he could see the events and people passin g by these premises, but not from his cell. There was a staircase to the first floor from where he could see over the fence surroundin g the detention premises where he was held.

42 . The witness found out about the forthcomin g first trainin g exercise from a Major Kroshka, who said that somethin g “interestin g would occur”. The witness stated that on the day of the first trainin g exercise, namely 30 May 2001, many soldiers entered the premises. They threw firecrackers at the volleyball g round near the buildin g where he was held and in which inmates were takin g walks at that moment, then they entered the residential premises, fired inside and entered the cells suddenly. They entered his cell on the second floor throu g h the staircase . Everyone was ordered to lie on the floor and then they started throwin g firecrackers. All the inmates were on the floor and a lot of soldiers were involved. Everyone was taken out of the premises. They were ordered to run from the cell, and soldiers in the corridor struck them with truncheons. Truncheons were used sporadically, so that some inmates received blows. Certain inmates were placed alon g the wall with their hands a g ainst it . Others, includin g this witness, had to kneel in the centre of the courtyard. He had to stay on his knees with his hands behind his head for 20 minutes. The soldiers took everybody out of the residential premises where he stayed, so that almost everyone was outside near the volleyball g round, on their knees and standin g alon g the fence. Inmates were taken out of the premises one by one with their hands behind their backs, were told to bend down, etc. The whole procedure lasted about 20 minutes. The soldiers beat the inmates on their feet so they would stand in the “roztyazhka” position. Those who could not stand for a lon g time were taken to the medical unit. The soldiers entered the next premises. Major Kroshka came with two tall soldiers. They demanded to know where inmate Roman O g ly was, took him with them and went in the direction of the Monastyr. Then everyone was taken back to the first and second floor of the residential premises. The witness mentioned that Mr Zakharov, Mr Mazepa and a representative of the prosecutor ' s office were present durin g the trainin g exercise of May 2001. He complained about these incidents to Colonel Zakharov, the deputy Governor of the Prison , who told him that it did not matter. He further stated that no investi g ation had ever been conducted into these events.

43 . The witness mentioned that he had not sustained serious injuries, but the inmates who were standin g near the fence received blows to their le g s. Those who could not stand and fell down were lifted and taken in the direction of the medical unit. The soldiers left for the Monastyr and he subsequently heard that the soldiers had beat en other inmates held in the Monastyr. He could see people bein g taken to the medical unit, because they were passin g by the premises in which he was held. In particular, he saw five or six persons; some of whom were left in the medical unit and others were not, i.e. two persons returned to the cells in the Monastyr. It was evident that some inmates had been beaten, as they were carried by two warrant officers ( praporschiki - прапорщики ) or helped by other injured inmates. Some were limpin g and others were clutchin g their injur ies . Accordin g to this witness, Mr Gomenyuk was badly beaten either durin g the first or the second trainin g exercise. Those most badly beaten were those who were held on the g round or first floor of the Monastyr. The units that participated in the search stayed at the Monastyr for about an hour, then the inmates started g oin g to the medical unit. He mentioned that Mr Litvinov, whom he knew and who was held in the Monastyr, passed him and told him that his entire cell, made up of 6-7 inmates, had been beaten up.

44 . As to the second trainin g , he stated that the soldiers were beatin g up inmates in solitary confinement cells and isolation wards. The soldiers came into the Prison , threatened the inmates and then went to the Monastyr, where they beat severely those held in cells. He stated that about 300 persons were involved durin g the second trainin g . Durin g the second event, he saw Mr Litvinov walkin g from the Monastyr to the medical unit, accompanied by a praporschik - kontroler from the Zamkova Prison . They also beat a man named Vova Kievsky. The beatin g s occurred on the basis of the instructions of the officers from the Prison administration; those who were pointed out by the administration were taken to the Monastyr and beaten there (this happened on both occasions). The inmates in the Monastyr were severely beaten.

45 . As to the special units and their equipment, he stated that about 20 participants in the trainin g exercise wore masks fully coverin g their faces, carried automatic g uns and helme ts, wore camoufla g e uniform . Some soldiers had the visors of their helmets open, but he could not see their faces as he had to bend down; had he lifted his head he would have received a blow, and everythin g was done in haste. He reco g nised the head of the prison detachment, who wore camoufla g e, by his g ait. The superior officers were wearin g re g ular military uniform s . There were people from outside the Zamkova Prison ; they behaved a g g ressively, were all tall, close to 2 metres in hei g ht. It looked as thou g h if they had been specially chosen.

C . Witnesses proposed by the Government

1 . Mr Ser g iy Shedko

46 . This witness has been an inmate of the Zamkova Prison since May 1999 and was a direct witness of the events of 30 May 2001 and 29 January 2002. He knew Mr Gomenyuk as he became acquainted with him durin g medical treatment from December 2002 to February 2003. He also saw and heard about two other applicants - Mr Ilchenko and Mr Salov. He was held in cell no. 20 in the course of the events of 30 May 2001 with 13 other inmates, whom he was able to enumerate by surname. However, he knew nothin g about the second event as he was not in the Zamkova Prison . He knew the applicants, but was not personally acquainted with them.

47 . He said that searches were conducted re g ularly, at least once a month, by employees of the Zamkova Prison and the security unit. On 30 May 2001 there had been an ordinary search of personal belon g in g s. He indicated that when a search was held the officers normally ordered the inmates to provide their personal belon g in g s for search and to await their turn durin g the search in front of the wall. The inmates did not have to remove their clothes. The cells were usually searched one-by-one. The search started at 8 a.m. and lasted until 9 a.m.

48 . The witness said that only the personnel of the Zamkova Prison participated in the g eneral search, and then only its security unit. He said that there were certain officers present who wore camoufla g e and masks, but in his opinion they were not from a special unit.

49 . When asked what w ould happen if someone disobeyed orders in the course of a search, the witness stated that the Governor and a commission review the incident and then apply sanctions – namely a reprimand, serious reprimand, DIZO, etc. He himself had not heard anyone complainin g , but he had learned afterwards that some inmates had lod g ed complaints. He did not know about any injuries, but was sure that they were normally recorded in the re g ister of inmates ' complaints, because he himself had once had a problem with an eye injury and dermatitis and these injuries were recorded in the re g ister of requests for medical aid.

2 . Mr Vasyl Bondar

50 . This witness was the Head of the medical department of the Zamkova Prison and captain of the internal service ( капітан внутрішньої служби) . He is currently continuin g to work on the same position. He is a g raduate of L ' viv Medical University, specialisin g in pharmaceutics. He previously worked as an occupational patholo g ist and as a doctor in an emer g ency unit. Then he be g an workin g at the Zamkova Prison . He stated that t he medical unit consists of a therapist ( g eneral practitioner), dentist, radio g rapher, three medical assistants (paramedics) and a nurse. At the time of the events the medical unit was composed of this witness and an assistant medical officer.

51 . The witness stated that there were no trainin g exercises as such in the Prison . There were unscheduled searches and daily searches. With re g ard to trainin g exercises, he stated that there were trainin g exercises by the “rapid reaction unit”, which had been trainin g accordin g to a plan. He and his collea g ues had participated in the trainin g in order to provide medical assistance, since someone , such as prison staff , could have received injuries. The trainin g exercise s were last held in 2001–2002. He received no complaints after the searches in 2001–2002.

52 . In 2001 a special unit (of unknown subordination that he knew nothin g about ) was deployed. It was trained in how to rescue captured hosta g es . Some of the staff members of the Prison impersonated the seizure of hosta g es and others imitated hosta g es, and the special unit was tryin g to liberate the hosta g es . The special unit had flak jackets, special uniforms, helmets, shields and rubber truncheons. The employees involved in the trainin g were carryin g shields and rubber truncheons and wore flak jackets. The rapid reaction unit officers wore camoufla g e and had black masks. The staff of the Prison also wore masks, so as not to injure themselves. He could nevertheless distin g uish those who worked in the Zamkova Prison and those from the outside.

53 . Initially he stated that it was possible that such a trainin g exercise had been held on 30 May 2001 and started between 10 a.m. and 11 a.m. The exercise to free hosta g es was held in the industrial zone, woodworkin g workshop, on the second floor, and in the joiner ' s shop, where some of the Prison ' s employees had played the role of criminals and barricaded the entrance. Other officers were tryin g to remove the barricades and break down the doors. About 30-40 persons participated in the trainin g exercise, of whom 25 persons participated in the role-playin g and assault and others were surroundin g the trainin g g round. Some of the external forces stayed outside the Prison in the course of the trainin g . There were no inmates inside the industrial zone, as the trainin g involved only employees of the Zamkova Prison . However, he then underlined that some “additional forces” from outside were present when the “hosta g es were taken”. He was not sure whether they were in the residential zone, since durin g the search he was on the first floor of the Monastyr. He thou g ht that the special forces left the residential zone, for the time of the search, but he was unsure. He saw no soldiers enterin g the “residential zone” . The trainin g was conducted and t hen there was a g eneral search.

54 . Durin g the search of the premises, all of the special unit employees who participated in the trainin g exercise had left the territory of the Prison . This search included: the g round floor, first floor, DIZO cells (disciplinary detention), PKT cells (cell-type premises) and О K cells (solitary confinement cells). He was present durin g the search of the g round floor and in the DIZO, OK, PKT and punishment cells. Later he was present on the first floor. Medical staff had to be present durin g the search. Then he stated that he saw all the premises. If a search was bein g or g anised, there was normally a plan and the personnel was divided into g roups. There were usually three g roups participatin g in the search. The witness was not sure whether the prosecutor Mr Volkov was also present, but he said that representatives of the prosecutor ' s office were supposed to be present durin g this kind of search.

55 . In reply to a question re g ardin g the medical aid provided to the applicants, the witness first stated that he had read the accusations. He mentioned that everythin g was done in the presence of a doctor; every inmate had a medical record, journal of attendance and journal of injuries. He was preparin g copies of the medical files for the persons who had applied to the European Court . In particular, Mr Martov underwent a full medical inspection and it had been established that he had no broken ribs. He mentioned that medical assistance was always provided to the inmates and no medical complaints were received as a result of the search and trainin g exercise. T here were some medical complaints before the trainin g exercises, but not after.

56 . He further stated that Mr Martov was re g istered with the medical unit and received medical treatment in Prison no. 98 for tuberculosis and hypertension. Mr Druzenko suffered from problems with his spine muscles. Mr Ilchenko had requested medical assistance while he was held in solitary confinement, and did not wish to work. His medical complaints had no g rounds. Mr Mykhaylenko had tuberculosis and Mr Gomenyuk was re g istered as a person who frequently injured himself ; he swallowed nails and had under g one in-patient treatment in Prison no. 98.

57 . His activity was frequently checked, and he prepared documents in response. His work was supervised by inspectors from the State Prison Department. These inspectors conducted scheduled and unscheduled checks. Additionally, the prosecutors ' office and representatives of hospitals and medical stations monitored his work. The prosecutor ' s office had investi g ated the incidents of which the applicants complained, reviewed his records and spoken to inmates. Normally, he checked the inmates ' health accordin g to the plan. If someone was sick or needed medical aid, the “controller” ( контролер ) of the detention unit was obli g ed to inform him. He knew nothin g about a refusal by the controller to inform him of the need to provide medical aid. Re g ular medical checks were scheduled, but an inmate could also make an appointment to see him. In g eneral, he concluded that it was impossible for medical aid not to be provided.

58 . As to the events of January 2002, the witness mentioned that this had been a normal search, which was usually held once a month. The forces involved in the search were searchin g cells one-by-one. Thus, the g roups were divided accordin g to the sectors for which they were responsible. The search was first conducted on the first floor, then the second floor, then in the special premises, punishment cells, DIZO (disciplinary isolation cells), PKT (cell-type premises) and OK (solitary confinement cells). The witness mentioned that special forces from outside were not deployed durin g this search. The Prison itself had a “rapid reaction g roup”, consistin g of 10-15 specially selected officers.

3 . Mr Ole g Bukher

59 . This witness , at the time of a hearin g , wa s employed as head of the investi g ative division in the prosecutor ' s office in the Khmelnytsky Re g ion. He was a senior assistant to the Prosecutor of the Khmelnitsky Re g ion from 10 January 2001 and personally took part in the investi g ations into the events in Prison no. 58 in January 2001 - 2002. He supervised the work of the Shepetivka special prosecutor ' s office, which had responsibility for supervisin g Prison no. 58. That investi g ation resulted in a resolution of 11 June 2002, refusin g to initiate criminal proceedin g s a g ainst the police officers who had participated in the trainin g exercises, due to a lack of corpus delicti in the inmates ' complaints.

60 . This witness had personally investi g ated the events on the basis of an order from the deputy re g ional prosecutor , and had g one to Iziaslav in person. He had examined the work of Mr Stasiuk and Mr Yantselovsky, the prosecutors who were directly responsible for supervisin g the Zamkova Prison and who had participated in trainin g exercises. He asked them to seize documents from the penitentiary administration and to adopt a decision under Article 97 of the Code of Criminal Procedure as to whether to initiate criminal proceedin g s. Eventually, a resolution ( постанова ) was adopted on termination of the criminal proceedin g s in the case. He investi g ated the events for 10 days; he had only three days to decide whether to institute criminal proceedin g s. He prepared an internal report and then a prosecutor ' s resolution on that basis.

61 . As a result of the investi g ation he came to the conclusion that the inmates had not been beaten. He mentioned that a special prosecutor (Mr Volkov and perhaps also Mr Manzyuk or Mr Yantselovsky) was present durin g the trainin g . He also based the decision on the findin g s of the investi g ation, materials from the medical unit, the lack of records as to physical injuries; in g eneral there was no evidence in this respect. The medical unit provided information on the provision of medical assistance and medicines to the inmates. He himself did not question witnesses and inmates, as he had two assistants, Mr Stasiuk and Mr Manzyuk, in the local prosecutor ' s office. For instance, Mr Stasyuk, actin g as his assistant, questioned 10-20 witnesses and then he (Mr Bukher) had to analyse this information. He had no g rounds not to trust the assistants and, in any case, he was not entitled to include someone else from the local prosecutor ' s office in the investi g ation g roup. The assistants were much closer to the penitentiary and had to spend less time travellin g to it, and he had seen no g rounds for questionin g the inmates in person. He also saw no g rounds to invit e prosecutors different from those who were present in the penitentiary at the time of the trainin g exercise to investi g ate the events. He analysed everythin g , includin g the inmates ' personality, and came to the conclusion that there was no evidence to institute criminal proceedin g s on the basis of the inmates ' alle g ations as presented by Mr Zherdev. In g eneral, when analysin g the complaints lod g ed by Mr Druzenko, Mr Davydov and Mr Gomenyuk , he thou g ht that the complaints were somewhat “artificial”, that the inmates had a g reed on what they would say. He took into account their criminal records and personal files in assessin g their complaints and investi g atin g the alle g ations of ill-treatment. He further informed the Dele g ates that the investi g ation was conducted in June 2002, that is, after the second trainin g exercise (January 2002), since no complaints had been received or lod g ed after the first trainin g exercise. Special prosecutor Mr Volkov had informed him that everythin g was acceptable durin g the first trainin g exercise.

62 . As to the presence of the special units, he said that the trainin g exercises normally conducted in penitentiary institutions involved role-playin g of takin g hosta g es and disorder, in order that the special units or penitentiary staff would know their way around the penitentiary, be aware of where the various premises were situated, etc. There was a g eneral plan; it mi g ht have been related to a worsenin g of the g eneral criminal situation in the Penitentiary, and approved by Prosecutor Mr Volkov or Mr Yantselovsky, Mr Mandzyuk and Mr Stasyuk, in other words, by one of the prosecutors responsible for supervisin g the Zamkova Prison . He did not remember which unit was involved in the trainin g , or whether it belon g ed to the Zamkova Prison . However, there was a g eneral search conducted in the course of the trainin g exercise and the Zhytomyr rapid reaction unit was involved in this. Initially there was a trainin g exercise, and then a g eneral search. It was “absolutely prohibited” to use police forces for this kind of trainin g . He knew that these kind of special units operated, and had seen the documents on the basis of which they operated, but had never seen the units themselves.

63 . As to the complaints lod g ed, he did not know whether any complaints had been lod g ed locally; however, he considered that the inmates should be sanctioned for violatin g the normal procedure. The “ille g al” submission of a complaint did not arouse any suspicions on his part. He had not really looked into it. The explanations were in the investi g ation file, includin g the information on the possible use of force. Furthermore, he had found no evidence of threats a g ainst the applicants on account of their complaints.

4 . Mr Yevhen Volkov

64 . This witness was the Head of the Novoushytskyy District Justice Department of the Ministry of Justice. He was a former Prosecutor of Shepetivka, responsible for supervisin g the lawfulness of the enforcement of sentences in criminal cases. He retired from this post in September 2002. He was present durin g the trainin g exercise on 30 May 2001 and absent from the second on account of annual leave.

65 . The witness stated that on 30 May 2001 a trainin g exercise was held in the industrial zone, which involved trainin g the units in how to act in a situation where the inmates took hosta g es. The exercise was or g anised because hosta g es had been taken in another penitentiary and the staff had been unprepared. Prison staff played the role of hosta g es. The g roups which participated in the trainin g included Prison staff and a small unit of 10-15 persons. The special unit was not involved in the search, but only in the trainin g exercise. The penitentiary employees outnumbered them. He was not sure whether the unit remained in the Prison after the exercise, and indicated that they mi g ht have remained. He was present durin g the trainin g exercise and countersi g ned its plan. Senior officers from the Prison Department were also present inter alia Mr Leventsov, Mr Yakymchuk. Mr Satsyuk, from the Prosecutor ' s Office, was present at the second trainin g exercise.

66 . H e stated that not only were personnel from the Zamkova Prison involved in the trainin g exercise, but also a unit from the Zhytomyr re g ion (a g roup of 10-15 persons). They had special equipment: helmets ( шоломи / каски ), flak jackets ( бронежилети ), automatic g uns, rubber truncheons, special g ear ( спеціальні засоби ). “Special effects” were used, such as firecrackers, empty shots from automatic g uns, etc. About 5-6 persons were liberatin g hosta g es and the remainder, nine to ten men from the unit and another 75-80 persons, stayed aside watchin g how the special unit trained.

67 . A search was held later on the same day. He was present durin g the search and saw no violations of the law or beatin g s of inmates. The penitentiary g uards went into the cells and no special unit officers searched the cells. He and Mr Stasyuk had meetin g s with the inmates after the trainin g and heard no complaints. He went around the penitentiary, escorted by the g uards and a representative of the penitentiary administration, visitin g cells and askin g inmates whether they had any injuries and whether they wanted to complain. He also had a separate room at the penitentiary for meetin g s with inmates.

68 . He was asked to investi g ate the complaints and informed Mr Bukher, senior assistant to the Re g ional Prosecutor, of the results. He remembered Mr Ilchenko and how he questioned him with re g ard to the complaints. He read his file, saw that he had been sentenced for three murders and eventually formed the opinion that he could not be rehabilitated. He saw that he refused to work and always had unreasonable demands, and that the penitentiary administration did not want to pressure him, as he was constantly complainin g . He also stated that he could have intervened, if necessary, throu g h the “prosecutor ' s response” ( заходи прокурорського реагування ), but it was unnecessary as there had been no violations of the law. If a complaint remained uninvesti g ated then he would sanction the person who had failed to investi g ate it. If he did not react, he would be prosecuted by the hi g her law-enforcement authorities.

69 . Mr Volkov imposed sanctions on those inmates who had sent their complaints “other than throu g h the le g ally allowed channels”. He did not think that inmates were prevented from complainin g directly and h e did not react to the applicants ' alle g ations as to the injuries inflicted on them , as he thou g ht that they were unfounded . The inmates had the possibility of si g nin g up for a meetin g with him.

70 . Mr Volkov said that information about such trainin g exercises was usually disseminated amon g the inmates by means of lectures. The inmates were informed of their ri g hts before the trainin g was held, they have access to the Constitution of Ukraine and the “daily routine” ( розпорядок дня ) was available to them in writin g . He visited cells and spoke to the inmates. He also mentioned that the administration informed the inmates about the trainin g by radio. The Governor of the Zamkova Prison informed the convicts by radio about the future trainin g exercise, a couple of days before it was held.

5 . Mr Pavlo Klipatsky

71 . Mr Pavlo Klipatsky was the senior inspector of the ITZO and communications g roup in the Zamkova Prison . As one of the heads of g roups, he searched the inmates durin g the first trainin g exercise. He also took part in the second trainin g exercise. He supervised the inmates who worked as technicians and ensured electricity and water supplies for the Zamkova Prison . Mr Klipatsky participated in the search of the workshop, laundry, bath-house and other buildin g s.

72 . The witness initially did not want to admit that special forces were present in Prison. He mentioned that only the personnel of Prison were participatin g in a search and not special forces that were involved in some sort of trainin g at the industrial zone.

73 . Mr Klipatsky had heard of Mr Ilchenko, but probably in a private conversation. The witnesses stated that the employees of the Prosecutor ' s Office and the State Prison Department were usually present durin g searches. Prosecutor Volkov attended the first trainin g exercise, as did Mr Bekh, Mr Leventsov and Mr Zlotenko. No medical assistance was requested after the first trainin g exercise.

6. Mr Andriy Shatskiy

74 . Mr Andriy Shatskiy was head of the sector for the or g anisation of operative work and a major in the Internal Ministry. He was the senior Ministry of the Interior investi g ation officer at the Zamkova Prison in 2000 ‑ 2002.

75 . Durin g the first trainin g exercise, Mr Shatskiy was present durin g the search as a member of one of the g roups, and then durin g the “administration ' s visit” ( комісійний обхід ), when they visited cells and spoke to inmates. This was accordin g to the established procedure for tourin g the premises by representatives of the State Prison Department and the prosecutor, who was also present durin g the trainin g exercise. He spoke to Mr Didenko and other inmates.

76 . The witness mentioned that on 30 May 2001 all the staff of the Zamkova Prison had participated in the g eneral search for prohibited items, or g anised in the residential zone. It was conducted accordin g to the internal re g ulations of the State Prison Department. These searches were held once a month. Only the personnel of the Zamkova Prison had been involved in the searches, and no one else. The first trainin g exercise started at 7 a.m. in the industrial zone. The personnel took up position and were read the plan of action, the content of the trainin g exercise, the “operational circumstances” ( оперативна обстановка ), includin g what they had to pay attention to (particular cells and dan g erous persons), the composition of the g roups, their tasks, and the aims of the trainin g .

77 . The witness explain ed that there we re different types of searches: scheduled, unscheduled and additional searches. The scheduled searches were known in advance; the individuals responsible were also identified, a s were the means to be used. They were intended to locate the stora g e of prohibited items. He stated that such searches were usually held in the followin g way. The g roup, composed of the head of the detachment (like himself) and its members, went to the cell and told the inmates about the search, asked them to dress and to stay near their beds. The staff members then went to the personal belon g in g s and searched throu g h them.

78 . The witness said that there had been many investi g ations into these trainin g events, includin g those by the General Prosecutor ' s Office, the State Prison Department. They had not been informed of any results from these investi g ations.

7. Mr Ser g iy Zlotenko

79 . Mr Ser g iy Zlotenko ha d been head of the g uardin g , supervision and security division in the Khmelnytsky Re g ional P rison Department since 2001. He was subordinated to the First Deputy Head and the Head of the Re g ional Prison Department.

80 . He mentioned that the approximate number of persons , who participated in the first trainin g , was 80, plus 10-15 from the rapid reaction unit, which included those staff whose tasks were related to the trainin g objectives. Four penitentiary institutions took part in the trainin g exercise, namely Iziaslav Correctional Colony (Iziaslav Prison ) no. 31, Raykovetska Correctional Colony (Raykovetska Prison ) no. 78, Shepetivka Correctional Colony (Shepetivka Prison ) no. 98 and the Zamkova Prison ( Zamkova Prison no. 58). The trainin g was based on a decision of the State Prison Department and the relevant plan prepared in advance. The trainin g was held at the industrial zone and finished at approximately 11 a.m. It started at 10 a.m. in the same zone.

81 . Witness Mr Zlotenko stated in relation to applicants Mr Gomenyuk and Mr Ilchenko that he had heard about them, as he had reviewed complaints by them, but not in relation to this specific trainin g and search . They belon g ed to the cate g ory of “malicious violators of the re g ime” (he referred to Article 133 of the Code on the Enforcement of Sentences). Mr Gomenyuk refused to work (in violation of Article 107 of the same Code) and had to be transferred to a stricter re g ime for servin g his sentence. Mr Ilchenko submitted his complaints; however, they appeared to be unsubstantiated. In addition, the complaints had been sent by prohibited means, as they were supposed to be sent “exclusively” throu g h the administration of the penitentiary institution. Mr Ilchenko was seen sendin g complaints by prohibited means.

82 . A special Zhytomyr rapid reaction unit ( група швидкого реагування ) was present durin g the first search. It trained the personnel, and the exercises included trainin g in how to free hosta g es. This unit was made up of about 10- 15 persons; they wore flak jackets and helmets, and carried rubber truncheons and weapons. One could hear the shots. They were tall, stron g and physically fit personnel. They wore special dark g reen field camoufla g e uniforms ( формений польовий одяг ) (but there mi g ht have been other colours, khaki and li g ht g reen), and special shoes, trousers and caps. One of the aims of the trainin g was to demonstrate how to act and how to use the “special restrainin g equipment ” ( спецзасоби ). This was used durin g trainin g exercises, but only in exceptional circumstances. The units had the obli g atory equipment with them ( обов ' язкове спорядження ). They also had explosives; they used weapons, firecrackers and ammunition rounds. All of this equipment had to be returned to the special equipment stora g e room after its use in the search. Durin g the search, a “reinforced supervision” g roup ( група посиленого нагляду ) was created, made up of those individuals who had special equipment. This “reinforced supervision g roup” was not normally involved in searches, but was used for blockin g the entrances and exits to Prison departments. The rapid reaction unit did not remain with the rest of the staff, as they trained only in the industrial zone. After the trainin g exercise, which lasted one and a half to two hours, the rapid reaction unit left the territory of the Zamkova Prison and the search continued.

8. Mr Pavlo Zaremskiy

83 . Mr Pavlo Zaremskiy wa s a senior operative officer in the operative department at the Zamkova Prison . He was the Head of the Division on Social and Psycholo g ical Work with the Inmates in the Zamkova Prison , was and responsible for supervisin g Mr Ilchenko at the relevant time. From December 2001 he was an operative officer in the Zamkova Prison .

84 . As to the second search, the witnesses stated that special units had also been involved in it. There were a number of different g roups, with different tasks. Some of them were waitin g . The g roups were standin g outside the Prison , near the checkpoint entrance and close to the perimeter fence. The trainin g started at about 7 a.m. and lasted about 1.5 hours. First, the participants received information from the commanders.

85 . A planned search was also held. They arrived at the administration buildin g , which was outside the penitentiary ' s territory, and received instructions on the areas to which g reater attention should be paid. After the trainin g exercise the g roups searched specific cells and the officers documented the search. The second trainin g exercise took place “outside the territory of the g uarded object” ( поза зоною охоронюваного об ' єкту ). The trainin g exercises , involvin g the personnel of the Zamkova Prison, were intended to provide trainin g in combatin g possible mass disobedience. Special equipment and firecrackers were used. Weapons may have been used in the course of the second trainin g exercise. Mr Zaremsky was a member of the “documentin g g roup”, which trained how to prepare reports on the participants in the sta g ed mass disobedience, identify the perpetrators and persons incitin g mass disobedience, and to take photo g raphs and videos of those participatin g in a riot, so that they could be sanctioned afterwards.

86 . The witness stated that t here was a “blockin g g roup” ( группа блокування ), made up of penitentiary employees, usually one or two junior inspectors, who carried and used special equipment (shields, “PR-73” rubber truncheons ). If a cell was small, the inmates had to g o into the corridor, but one person from the cell could remain and watch how the search was bein g conducted. There is a “blockin g g roup” in the corridor, or usually one or two junior inspectors. The inmates had to stay near the wall or windows, but not near the doors to the other cells. Full searches were not usually conducted in the corridor, but the staff normally searched inmates throu g h their clothes. If necessary, a full body search was conducted in separate warm premises by persons of the same sex. Also, there was usually somethin g on the floor to stand on and a place to put clothes. The witness stated that he had never seen a full body search bein g conducted in the corridor.

87 . As to the complaints by Mr Ilchenko and Mr Davydov, witness Zaremsky mentioned, in relation to the personality of the complainants, that Mr Ilchenko was bein g used by Mr Davydov and Mr Gomenyuk . They all wished to become renowned criminals ( авторитети) . Mr Ilchenko wished to become a preacher in the colony, and constantly complained about the lack of possibilities to profess his reli g ion. He had become acquainted with Mr Zherdev. Many documents were available to inmates with re g ard to complaints and he had g iven a lot of le g al information to Mr Ilchenko, who had read it. However, he was punished for sendin g the complaints throu g h ille g al channels, and sanctioned accordin g to the instructions ( припис ) of the prosecutor. Mr Ilchenko did not work particularly well and had problems with his work. At some point he had become a “militant Christian”, had no tolerance and was a g g ressive towards other inmates who had different reli g ious beliefs.

9 . Mr Vasyl Leventsov

88 . This witness was the first deputy head of the Re g ional Prison Department in 2001-2005 and ha d since retired from the civil service. He was the commandin g officer durin g the second trainin g exercise. He worked at the Shepetivka Re g ional Prison Department and became responsible for the Zamkova Prison from 25 June 2001, that is, after the first trainin g exercise. At the time of the first exercise he worked in Prison no. 98, situated in the same re g ion and close to the Zamkova Prison .

89 . He stated that the situation in the Zamkova Prison remained stable. The staff needed to know the operative situation so as to be ready to deal with the dan g erous inmates. However, accordin g to the g eneral information received by the staff before the trainin g , the number of murders had increased and the “operational environment” ( оперативна обстановка ) in the Penitentiary had seriously worsened. The task was to train staff in how to react to mass disobedience in the Prison .

90 . The witness mentioned that trainin g for staff of the Zamkova Prison was conducted on a re g ular basis, at least once every six months. He was responsible for staff trainin g and thus mana g ed the trainin g exercise. It was held with the staff of the Zamkova Prison and no officers from the outside were involved . On the occasion in question there had also been a g eneral search. The purpose of the trainin g exercise had been to prepare personnel for extraordinary circumstances. Dependin g on the event, different forces could be employed, includin g the special taskforce units. The special unit was not involved in trainin g from June 2001 to 2005. However, he stated that the special rapid reaction unit was probably involved in the trainin g prior to June 2001. He never saw the rapid reactions units, or had maybe seen them but only durin g parades. Mr Yant s elovsky, but not Mr Volkov, was present durin g the search in the Zamkova Prison and countersi g ned the trainin g plan. A special prosecutor had the ri g ht , which he exercised, to enter into any of the premises .

91 . As to the manner in which the trainin g exercise was or g anised, the witness mentioned that the personnel had first to take up position. Then the action was explained to them. No special equipment had ever been used. A rapid reaction g roup is usually made up of personnel trained within a penitentiary. This g roup usually included 10-12 persons. Their task in the course of the search was to ensure security for the personnel inspectin g the cells. They usually wore ordinary camoufla g e, flak jackets and helmets. They also had weapons and rubber truncheons, which was the only special equipment used. “Firecrackers” and “active defence equipment” ( засоби активної оборони ) were also used. It was impossible for him to state the exact number of persons wearin g special equipment; in addition, this information was not kept in the archives for more than a year. The equipment was used to ensure that the personnel received no injuries.

92 . Scheduled searches were also conducted by the staff of the Zamkova Prison , wearin g the same uniform. He confirmed that the rapid reaction units of penitentiaries nos. 31, 58, 78, 98 and SIZO no. 29 were present in the course of the trainin g . After the trainin g exercise there was a ten-minute break, then the staff of the penitentiary returned to the penitentiary. There they entered the residential zone for a g eneral search. A video recordin g was usually made, but it was normally secret information. However, no video-recordin g was made on this occasion, as one could film this kind of film only outside the penitentiary institutions.

93 . The witness stated that the search was or g anised in the followin g way. The g roup took up position in the corridor of the premises where the inmates were held. The inmates also had to take up position in the corridor. The inmates were then ordered- “belon g in g s for inspection!” ( “ речі до впізнання !” ). They were not asked to take off their clothes. It was prohibited to order them to remove their clothes in the presence of other inmates. He could not remember whether the rapid reaction unit went into the residential area.

94 . The witness mentioned that Mr Yantselovsky, a prosecutor from the Shepetivka prosecutor ' s office, was present in the course of the trainin g . The commissionary round or “ administration ' s visit ” ( комісійний огляд камер ) was held; the heads of the prison detachments were present, as were the heads of the social and medical services, and inmates were asked if they had problems and questions. He learned about the events when speakin g to the Governor and Deputy Governor of the Zamkova Prison by telephone. N o complaints were received. If he received complaints, he would immediately have ordered an investi g ation into them. No medical complaints were received by the medical unit. He could not remember whether he was questioned with re g ard to the trainin g and could not g ive any further details as to the investi g ation.

10 . Mr S.V. Sne g ir

95 . Mr S.V. Sne g ir was the Governor of the Zamkova Prison from 1999 ‑ 2004. He has meanwhile retired from the civil service .

96 . This witness stated that the first trainin g exercise held in the Zamkova Prison took place in the industrial zone. It included the rapid reaction unit and involved the takin g of hosta g es. The personnel of the Zamkova Prison were also involved. The rapid reaction unit was later in the residential zone, but remained separate from the staff. Trainin g of this kind was normally held twice a year and included g eneral searches. The plans were approved by superiors from the SDES. In his opinion, such trainin g was important for the psycholo g ical and physical preparation of the personnel, who worked with inmates with complicated back g rounds and who were mainly servin g life sentences or had committed serious crimes. Mr Volkov, Mr Zlotenko and Mr Bekh attended the trainin g .

97 . The special exercise started at about 6 or 7 a.m. A g eneral plan had been approved by the Head of Department of the Zamkova Prison . An alarm went off and the personnel took up position in front of the Prison , near the entrance g ates. The plan involved entry to the Prison throu g h the checkpoint (KPP – control and entry checkpoint ) to the industrial zone. The persons involved included ab o ut 50 persons from the Prison and 5-6 persons from the rapid reaction unit. Other persons present were those from Prison no. 31, most possibly the Governor and Vice-Governor of that Prison . About 8-10 persons from the supervision and security department who participated in the trainin g were playin g the role of hosta g es. A person from the rapid reaction unit was mana g in g the exercise to free the hosta g es. The special equipment involved camoufla g e uniform, “sphere” helmets, handcuffs and rubber truncheons. The usual uniform of the SDES was a military uniform, worn on a daily basis. The rapid reaction unit came to the residential zone after they had finished the exercise in the industrial area, but did not participate in the search. Only penitentiary staff were involved in the search, which included more than 2-3 g roups searchin g different cells in the residential area. No complaints as to excessive use of force were received and nobody complained about a lack of medical treatment and assistance.

98 . He stated that the search had been conducted in the followin g way. It started at about 8 a.m. There were about 53 cells and it took 2-3 hours to complete the search of the entire residential area. The cells were searched one by one, as a simultaneous search of all the cells was impossible on account of the low number of staff involved in searchin g the cells, which had a total population of about 750 inmates. T he inmates were instructed to come out of their cells. One of the inmates remained in the cell and the officers inspected the bedside tables, beds, clothes, everythin g , includin g the ceilin g , walls, floor, potential hideouts in them . After completion of the search the staff drew up a written document statin g whether any items had been found. Inmates w ere required to obey and there were no instances where they did not obey the orders in the course of a search. The sanctions if someone did not obey would depend on the circumstances and could involve disciplinary or other sanctions, accordin g to the instructions. The head of the penitentiary detachment was the person responsible for informin g the personnel about the requirements of the le g islation in force, the Code on the Enforcement of Sentences, internal re g ulations, etc.

99 . Sometimes staff conducted a full search of an inmate. He stated that this was done in the followin g way: the officer asked the inmate to take everythin g out of his pockets and to remove his jacket, shoes. The inmates were obli g ed to comply and if necessary they could be accompanied to a separate room for the inspection. Normally, the full search was carried out in a corridor, where a couple of staff members could check inmates one by one. In response to the query he explained that t he “roztiazhka” position was one where a person had to put his hands a g ainst the wall and keep his feet apart at shoulder width. An immobilisin g pitchfork (рогач) could be used in the course of a search in order to extract an inmate from the cell so that he would be isolated from others, without inflictin g any injuries on other inmates or the personnel. No weapons, such as firecrackers, automatic g uns and ammunition, were g iven to the staff. Staff had only the special equipment, which included rubber truncheons, shields and helmets.

100 . With re g ard to the second trainin g exercise, the kontrolery, who were penitentiary officers, chan g ed into special camoufla g e uniforms. The trainin g was aimed at eliminatin g mass disobedience and was held outside the “protected zone” ( зони, яка охороняється ). The forces participatin g in the trainin g belon g ed to the Zamkova Prison and Prison no. 31. They were divided into different g roups. Some were playin g the role of rioters and others were suppressin g the riot. They had special equipment, shields, helmets, rubber truncheons, uniform with kneepads and elbow pads, and were wearin g camoufla g e uniform in different colours, mainly darker or li g hter camoufla g e. The equipment also included tear g as. A fire-fi g htin g vehicle with water canon had been made available to divide the rioters, but was ultimately not used. The rapid reaction units were not involved. Representatives of the SDES, Mr Leventsov and Mr Zlotenko, were present.

101 . With re g ard to Mr Ilchenko and his complaints, he stated that he remembered him as rather problematic person. For instance, he wanted to exercise his reli g ious ri g hts but did not know what he wanted. Also, he refused to work. Talks had been held with Mr Ilchenko about these issues. As to the investi g ation of the complaints, mainly from Mr Davydov and Mr Ilchenko, they had been investi g ated by different authorities, includin g the Prosecutor ' s Office and the Prison Department. He had personally attended the questionin g of Mr Druzenko by the prosecutor. Furthermore, he confirmed that disciplinary sanctions were applied to Mr Davydov for violations of the detention re g ime. He had violated the procedure for sendin g his correspondence. The witness further confirmed that no pressure had been exerted on the applicants with re g ard to their applications to the European Court of Human Ri g hts. He indicated that they were questioned normally about their complaints.

11 . Mr Mykola Iltiay

102 . This witness was the Head of the Security and Supervision Department of the State Prison Department . He is a General Major of the Interior and is currently the First Deputy Head of the State Prison Department.

103 . This witness reviewed the complaints lod g ed by Mr G. Zherdev, complainin g that the Zamkova Prison had infrin g ed the ri g hts of the inmates and used force a g ainst the inmates. The Prison Department had sent Colonel Irshko, his former Deputy, to investi g ate the matter. Colonel Irshko informed him of the results of the inspection of the Zamkova Prison . He had examined the materials submitted to him, includin g the report on the investi g ation ( службова записка ), the Departments ' conclusions and information from the inmates who complained about the excessive use of force a g ainst them. He had also reviewed witness statements from the inmates. About 100 statements were provided to him and the staff of the Prison , includin g reports from the medical unit. There were no reports confirmin g the injuries of the inmates and no complaints by them to the medical unit. He also reviewed the personal files of the inmates who complained. He discovered that the complainants were “ malicious violators of the law ” . They informed the First Deputy Head of the SDES O.B. Ptashynsky of the results of the investi g ation. He reviewed the materials and a g reed to send a reply to Mr Zherdev, statin g that no infrin g ements of the law had been found. They had two meetin g s with Mr Zherdev concernin g these complaints, includin g one meetin g with Mr Koshynets, the Head of the SDES.

104 . Mr Illtiay stated that he understood from the investi g ation report that there had been a trainin g exercise in freein g hosta g es for the Zhytomyr special unit ( Житомирський підрозділ особливого призначення ) and the rapid reaction unit ( загін швидкого реагування ), held in the industrial zone of the Zamkova Prison . About 15 persons from the special unit had been present in the Zamkova Prison . They were trainin g at the same time as the search, and could not therefore participate in the search and train simultaneously. A g eneral search had been or g anised in the residential area, in compliance with the law and internal re g ulations, and the prosecutor attended it. He and Colonel Irshko had had enou g h time to investi g ate all of this and to g ather sufficient information. Colonel Irshko had questioned about hundred persons within a day.

105 . As to the investi g ation into the second trainin g exercise, the investi g ation was conducted in a similar manner as the first investi g ation. An inquiry had been or g anised, witnesses were questioned, a report had been drafted and a reply sent to Mr Zherdev. There was no trainin g exercise on that occasion, but only a g eneral search or g anised by the Khmelnytsky Re g ional Prison Department. The g eneral search complied with the law and with the approved plan. The prosecutor ' s office was also informed.

106 . As to the use of the special units in January 2002, he stated that the special unit was not used on the second occasion. In g eneral, trainin g of units was aimed at preparin g them and preventin g unnecessary losses of staff. Until 1999 these forces had operated within the Ministry of the Interior. In 2000 they were reformed within the SDES system.

107 . The special units normally wore special camoufla g e uniform, flak jackets and “Sphere” or normal helmets. They had special equipment, rubber truncheons, handcuffs and automatic weapons. But they were prohibited from carryin g weapons into the penitentiary institutions, as this is a very serious violation of security in any penitentiary. This unit was different from “Berkut”, so it could not be the “Berkut” unit. He further stated that “Berkut” units had not been used by the Prison Department since 1992. A special decree had been issued by the Department in 2000, re g ulatin g the existence of special units, and was a public document.

108 . The witness stated that the rapid reaction units from four penitentiaries had been present durin g the second trainin g exercise; it was useful for them to be trained by the special unit. He admitted that the special units also participated in the g eneral searches. In particular, they had been employed on 47 occasions in g eneral searches or so-called “supervisory searches” ( контрольні обшуки ), where the special units supervised searches conducted by the ordinary penitentiary staff.

[1] . The case was initially known as Druzenko and Others v. Ukraine ( (dec.), nos. 17674/02 and 39081/02 , 15 January 2007) . However, its name was chan g ed as the first applicant, Mr Druzenko, failed to pursue his application.

[2] . Rectified on 31 August 2010: the former text referred to “Vasyl.”

[3] See para g raphs 24-49 of the Annex to the jud g ment for each of the summaries of oral evidence g iven by these witnesses.

[4] See para g raphs 88-94 of the Annex.

[5] See para g raphs 95-101 of the Annex.

[6] See para g raphs 102-108 of the Annex.

[7] See para g raphs 59-63 of the Annex.

[8] See para g raphs 64-70 of the Annex.

[9] See para g raphs 24-30 of the Annex.

[10] See para g raphs 24-49 of the Annex.

[11] See para g raphs 50-58 of the Annex.

[12] See para g raphs 71-87 for each of the summaries.

[13] See para g raphs 24-49 of the Annex to the jud g ment for each of the summaries of oral evidence g iven by these witnesses.

[14] . Rectified on 31 August 2010: the former text referred to “Vasyl.”

[15] . T he applicant explained that this was a position in which a person stood with his arms a g ainst the wall and le g s stretched wide apart.