Постановление Европейского суда по правам человека от 15.01.2009 «Дело Шаромов (Sharomov) против России» [англ.]

001 during the search of his cell the applicant had refused to comply with orders (to stay in the corridor against the wall), and had threatened the officers with reprisals, insulting them and pushing them away. Therefore, on an order from the colony chief officer the applicant was immobilised. During another cell search on 21 September 2001 the applicant behaved in the same way and also incited other detainees to riot. In order to put a stop to his actions he was immobilised. Special means and weapons were not used. The assistant prosecutor interrogated the complainants and other detainees, some of whom however had stated that special means or weapons had been used against detainees.
17. On 28 February 2002, on a complaint by the applicant, an official of the Irkutsk Regional Department for Execution of Sentences informed him as follows. On 21 September 2001 five officers of the special-purpose squad had arrived in the colony. The applicant prevented the wardens from carrying out searches and assaulted them verbally and physically. Following the searches, the doctor visited the detainees to find out if they had sustained any injuries. The detainees did not make any complaints or requests.

II. Relevant domestic law

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

18. Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6).
19. 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)

20. 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).
21. Rubber truncheons may be used to
(1) stop assaults on officers, detainees or civilians;
(2) repress mass disorders or group violations of public order by detainees, as well as to apprehend (задержание) offenders who persistently disobey or resist the officers (section 30).

C. Supervisory review

22. Under Article 377 § 3 of the 1960 Code of Criminal Procedure, in force at the material time, a prosecutor took part in a hearing before a supervisory review court. A convict and his or her counsel could be summoned if the court found it necessary. If summoned, they were to be afforded an opportunity to take cognisance of the application for supervisory review and to make oral submissions at the hearing. By its ruling of 14 February 2000, the Constitutional Court declared Article 377 § 3 of the Code unconstitutional in so far as it allowed a supervisory-instance court to examine the case without providing the convicted or acquitted person and their counsel with an opportunity to know the contents of the request for supervisory review lodged by the prosecutor, if the latter sought annulment of the final judgment on grounds unfavourable to that person. The Constitutional Court made the same findings in respect of the lack of a legal requirement to notify the convicted or acquitted person and t

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