Постановление Европейского суда по правам человека от 14.05.2009 «Дело Алибеков (Alibekov) против России» [англ.]

nt's transfer

38. On an unspecified date the colony administration applied for a court order subjecting the applicant to a different detention regime, inter alia, because he had disturbed the order in the colony, disobeyed the lawful orders of warders, refused to work, and consumed alcohol and drugs.
39. On 12 November 2002 the Kalininskiy District Court of Tyumen ordered that the applicant should serve the remaining term of his sentence in a prison. The applicant was not present or represented at the hearing.
40. The applicant appealed against that decision. He also asked for Mr R.M. (who, at the time, was detained in colony No. IU-2) to be appointed as his representative.
41. On an unspecified date in November 2002 the applicant was transferred from the colony to a temporary detention facility pending a further transfer to a prison.
42. On 17 December 2002 the Tyumen Regional Court quashed the decision of 12 November 2002 and remitted the matter for fresh examination by the first-instance court.
43. The outcome of the proceedings remains unclear. However, it appears that the applicant was returned to colony No. IU-4 where he remained until his release on 7 November 2003.

II. Relevant domestic law

A. Code on Execution of Punishments
(No. 1-FZ of 8 January 1997)

44. Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6).
45. Physical force, special means or weapons may be used against detainees if they offer resistance to the officers, persistently disobey lawful demands of the officers, engage in riotous conduct, take part in mass disorders, take hostages, attack individuals or commit other publicly dangerous acts, escape from the penitentiary institution or attempt to harm themselves or others (Article 86 § 1). The procedure for application of these security measures is determined in Russian legislation (Article 86 § 2).

B. Penitentiary Institutions Act
(No. 5473-I of 21 July 1993)

46. When using physical force, special means or weapons, the penitentiary officers must:
(1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees;
(2) ensure the least possible harm to detainees and provide medical assistance;
(3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28).
47. Penitentiary officers may use physical force, including combat manoeuvres, for apprehension of detainees, repressing crimes or administrative offences by detainees; if nonviolent means are insufficient (section 29).
48. Rubber truncheons may be used for putting an end to assaults on officers, detainees or civilians and repressing mass disorders or group violations of public order by detainees, as well as for apprehension (задержание) of offenders who persistently disobey or resist the officers (section 30).

THE LAW

I. Alleged violation of Article 3 of the Convention

49. The applicant complained that in August 2002 he had been subjected to ill-treatment and that the investigation into the incident had not been effective. He relied on Article 3 of the Convention, which provides as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. The parties' submissions

50. The Government denied any violation of the Convention in the present case. They pointed out that the criminal proceedings for the alleged ill-treatment had been reopened and were pending, so that the applicant's complaint should be dismissed for failure to exha

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