Mass hunger strikes and use of force by the authorities
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine 1996 196. The relevant provisions read as follows: Article 3 “An individual, his life and health, honour and dignity, inviolability and security shall be recognised in Ukraine as the highest social value. Human rights and freedoms, and the guarantees thereof shall determine the nature and course of the State’s activities. The State shall be responsible to the individual for its activities. Affirming and ensuring human rights and freedoms shall be the main duty of the State. ...” Article 28 “Everyone shall have the right to have his dignity respected. No one shall be subjected to torture, cruel, inhumane, or degrading treatment or punishment that violates his dignity. ...” Article 63 “A person shall not bear responsibility for refusing to testify or to provide explanations about himself/herself .... ... A convicted person shall enjoy all human and civil rights, with the exception of restrictions determined by law and established by a court verdict.” B. Code on the Enforcement of Sentences 2003 197. Article 18 lists the types of penal institution in operation. Those convicted for the first time for negligent, minor or medium-severity crimes serve their sentences in minimum security institutions. 198. Article 106 sets out the rules governing the use of force in prisons. Prison officers are entitled to use force with a view to putting an end to physical resistance, violence, rowdiness ( буйство ) and opposition to lawful orders of the prison administration, or with a view to preventing prisoners from inflicting harm on themselves or on those around them. The use of force should be preceded by a warning if the circumstances so allow. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties, should be carried out so as to inflict as little injury as possible and should be followed by immediate medical assistance if necessary. Any use of force must be immediately reported to the prison governor. C. Code of Criminal Procedure 1960 199. The relevant provisions concerning the obligation to investigate crimes can be found in the judgment concerning the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010). D. The Internal Regulations of Penal Institutions ( Правила внутрішнього розпорядку установ виконання покарань ) approved by Order no. 275 of the State Prisons Department of 25 December 2003 200. Paragraph 58 of the Internal Regulations provides for the possibility of the Prisons Department’s special forces units and human resources from other penal institutions being involved in the conduct of search and security operations. Prior notification of and monitoring by the prosecutor in charge of supervision of compliance with the law in penal institutions are required. 201. Section XII “Grounds for the use of measures of physical coercion, means of special restraint and arms” reads as follows in the relevant part: 59. Use of physical force and means of special restraint “The personnel of a penal institution shall be entitled to resort to measures of physical coercion, including martial arts techniques, with a view to putting an end to offences by prisoners or overcoming their resistance to legitimate requirements of the prison administration, if other methods have failed to ensure compliance with their duties. The type of special restraint [used], the time of the commencement and the intensity of its application shall be defined with regard to the situation, the nature of the offence and the personality of the perpetrator. The application of force or of a means of special restraint shall be preceded by a warning about the intention [to use it], if the circumstances so allow. This does not apply to situations in which it is necessary to counter a sudden attack against the institution’s personnel or to free hostages. The warning should be announced verbally. Where there is a significant distance [involved] or where the warning is addressed to a large group it should be given with the help of a loudspeaker. In any case it is desirable that it be given in the mother tongue of the persons against whom the measures in question would apply. Every case of handcuffing, resort to a straitjacket or application of other measures of restraint or arms shall be reported in the change of shift logbook.” 60. Procedure of and grounds for handcuffing “Handcuffing may be applied to prisoners upon an order of the institution’s governor, his/her deputies or assistants on duty. Handcuffing may be applied to prisoners in the following cases: (a) physical resistance to the administration personnel on duty or guards, or manifestations of rowdiness; (b) refusals to be taken to a disciplinary or solitary confinement cell or [an ordinary] cell; (c) an attempt to commit suicide, self-harm or assault of others; (d) return of a prisoner apprehended following an escape. Handcuffing is applied to prisoners in the position “hands behind the back”. The state of health of a handcuffed prisoner should be checked every two hours. Handcuffing shall be ceased following an order of those who gave a direction about its application or following an order of a higher-ranked official. A report shall be drawn up about [the use of] handcuffing. Persons who have applied handcuffing without grounds [to do so] shall be held responsible.” 61. Procedure of and grounds for the use of teargas, rubber truncheons and physical force “The personnel of a penal institution shall have the right to use teargas, rubber truncheons or physical force at their discretion in the following cases: (a) defence of the institution’s personnel, or self-defence from attacks or other actions jeopardising their lives or health; (b) putting an end to a mass riot or grouped disobedience by prisoners; (c) countering an attack on premises or transport vehicles, or their liberation in case of occupation; (d) apprehension or taking of prisoners who have committed gross violations of the prison rules to a disciplinary or solitary confinement cell or [an ordinary] cell, if they resist the guards on duty or if there are reasons to believe that they might cause harm to themselves or others; (e) putting an end to resistance to personnel on duty or guards or the prison administration; (f) apprehension of prisoners following an escape from prison; (and) (g) liberation of hostages. A special report shall be drawn up about the application of teargas, rubber truncheons or physical force. The institution’s governor or his replacement shall study the report and register it in a special logbook. A copy shall be kept in the prisoner’s personal file. ... Blows with rubber truncheons to the head, the neck, the collarbone, the stomach and the genitals are prohibited. Blows with a side-handle (tonfa) plastic truncheon to the head, the neck, the solar plexus, the collarbone, the lower part of the stomach, the genitals, the kidneys, and the coccyx are prohibited. These prohibitions are not however applicable to situations in which there is a real danger to the life or health of the institution’s personnel or prisoners. Application of these means of restraint in excess of the power [granted] shall call for the legally envisaged liability.” E. Instruction “On supervision of prisoners serving sentences in penal institutions” ( Інструкція з організації нагляду за засудженими, які відбувають покарання у кримінально-виконавчих установах ), approved by Order no. 205 of the State Prisons Department of 22 October 2004 (restricted document, submitted by the Government at the Court’s request) 202. Pursuant to paragraph 27.4 of the Instruction, physical force, means of special restraint, a straitjacket or arms may be used on prisoners under the Code on the Enforcement of Sentences, the Police Act and the Internal Regulations of Penal Institutions in the event of physical resistance to prison personnel, malicious disobedience to their lawful orders, rowdiness ( буйство ), participation in rioting, hostage-taking or other violent actions, or with a view to preventing prisoners from inflicting harm on themselves or on those around them. A report in that regard should be drawn up. 203. The Instruction also establishes a procedure for searching prisoners, the residential wings and workshop premises inside penal institutions. 204. According to paragraph 35 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 institution’s personnel, special forces units of the Prisons Department, and additional forces from other penal institutions. 205. Searches and inspections are to involve technical equipment and, if necessary, specially trained dogs. It is prohibited to damage clothes, property, prison equipment and other objects in the course of the searches or inspections (paragraph 36). 206. Personal searches of the prisoners may be “full” (that is, with the removal of all clothing) or “partial” (without the removal of clothing). Personal searches are to be conducted by a person of the same sex as the prisoner. The staff members who conduct a search must be careful and rigorous and must act properly. They must also comply with security measures and not allow any kind of inhuman or degrading treatment of the searched prisoner (paragraph 37). 207. According to paragraph 38 of the Instruction, a full search of a prisoner is to be carried out upon his or her arrival at or departure from the prison, upon placement in a disciplinary or isolation cell, upon transfer to a solitary confinement cell or to the high security wing and upon release from there. Such a search is also to be conducted after the apprehension of a prisoner following an attempted escape or other offence, before and after a long-term meeting with third parties from outside the institution, and in other cases when it might be necessary. Inmates who are subjected to a full search are asked to hand in any prohibited items, and must then remove their hat, clothes, shoes and undergarments. After these demands are complied with, separate parts of the prisoner’s body and his clothes and shoes are inspected according to the standard procedure. Full searches are to be carried out in specialised premises or rooms near the prison’s entry checkpoint or in other separate premises. Partial searches are to be conducted when prisoners leave for work and return from it, or in other specially designated places. 208. Under paragraph 40, a prisoner who violates the prison rules or commits an offence is to raise his hands above his head and stretch out his legs. The searching person is to stay behind him. In certain instances, if the prisoner is likely to possess weapons he is to be invited to lean against the wall facing forward and stretch out his legs. The search is to be conducted by at least two staff members for security reasons. 209. Paragraph 41 of the Instruction provides that a search of the premises and inspection of the residential wings and workshop is to be conducted when they are empty, according to the timetable envisaged by the calendar of searches. Every section shall be searched as required, but not less than at least once a month. Searches are to be supervised by the first deputy prison governor or by the head of the supervision and security division on the instructions of the first deputy. 210. According to paragraph 43 of the Instruction, a general search shall be conducted on the basis of a decision by and under the leadership of the prison governor and under the supervision of the territorial office of the Prisons Department at least once per month or in response to a complication in the operational situation. During a general search, all prisoners, the residential wings and the workshop, and all premises and installations on their grounds, are to be inspected. A search is to be conducted on the basis of the plan prepared jointly by the first deputy governor and the head of the supervision and security division. If additional forces and resources are involved, the plan must be approved by the Head of the relevant Regional Office of the Prisons Department and the prosecutor responsible for supervision of the legality of enforcement of sentences must be notified. 211. As specified in paragraph 50, in the course of a general search prisoners must be gathered in special separate premises and subjected to an individual search. The residential premises must also be searched, in the usual manner, and with the participation of the head of the department of social and psychological services. Furniture and items contained in the wing, sleeping places, including linen, pillows and mattresses, and various personal objects shall also be inspected. The walls, floor, windows and ceiling are to be inspected for secret storage places and manhole hatches. All the utility rooms ( підсобні приміщення ) in the residential wing shall be searched, with mandatory replacement and inspection of all the items there. Unnecessary everyday clothes or other items that should not be there shall be seized and stored in premises designated for that purpose. 212. The residential and administrative buildings, their interior and exterior, the cellars and garrets, different communication channels, barriers, toilets, sports grounds, underground tunnels and other places where there could possibly be secret storage areas are also to be inspected (also paragraph 50). 213. Every disciplinary or solitary confinement cell shall be inspected meticulously. All walls, ceilings and floors are to be knocked on for the purpose of finding secret storage areas and passages. The grating 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 fixings 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 clothing shall also be inspected (still paragraph 50). 214. The heads of the search groups are to report to the officer supervising the search, and general statements are to be drawn up noting the basis of the search and signed by the supervising officer and the heads of the search groups. Such statements are to be forwarded to the supervision and security division (paragraph 50.1). 215. Pursuant to paragraph 50.2, representatives of the territorial office of the Prisons Department together with the prison management shall make a tour of the residential wings and the workshop after the search and shall question the prisoners in respect of any complaints or statements. The results are to be reflected in the general search report. 216. The prison administration must take measures aimed at establishing the owners and traffickers of any prohibited items identified by the search and punishing them accordingly. Official inquiries should be carried out in respect of the seized items (paragraph 50.3). F. The Special Forces Units Regulations ( Положення про підрозділ спеціального призначення ) approved by Order no. 167 of the State Prisons Department of 10 October 2005 (in force until 14 January 2008) 217. The Regulations replaced the previous Regulations established by Order no. 163 of 8 September 2003 “On the creation of special units of the Prisons Department, approval of staffing needs and Regulations governing these units” (not publicly accessible). 218. Section 1.1 of the Regulations of 2005 defined a special forces unit as follows: “A special forces unit ... is a paramilitary formation created under a territorial office of the State Prisons Department.” 219. Section 2 defined the tasks of a special forces unit as follows: “2.1. Prevention of, and putting an end to, terroristic criminal offences in penal institutions; and 2.2. prevention of, and putting an end to, actions disrupting the work of prisons and pre-trial detention centres.” 220. Section 3 listed, inter alia, the following functions of a special forces unit: “3.4. Ensuring law and order [through the] introduction of a special regime in [a prison] ... in case of ... manifestation of mass disobedience by prisoners ..., or in case of a real danger of armed attack on [a prison’s] property, with a view to termination of illegal activities of a group of prisoners ... and elimination of their consequences. 3.5. Conduct of inspections and searches of prisoners ... and their belongings ..., of transport vehicles on the grounds of [a prison] ..., as well seizure of prohibited items and documents. A personal search shall be carried out by persons of the same sex as the person searched.” 221. The provisions regulating the organisation of a special forces unit’s activities (section 4) read as follows in the relevant part: “4.4. The unit’s personnel shall carry out their professional duties wearing everyday clothes or a special uniform with distinctive signs or symbols. ... 4.6. During the fulfilment of their duties the unit’s personnel shall have the right to resort to physical coercion, to keep and wear special means of restraint and arms, to use and apply them independently or within the unit, in compliance with the procedure and in the cases envisaged by the Code on the Enforcement of Sentences, the Police Act, and other laws of Ukraine. ... 4.8. Actions of the unit’s personnel during special operations must be based on strict compliance with the laws of Ukraine, respect for the norms of professional ethics, and a humane attitude towards prisoners and detainees.” 222. On 26 December 2007 the Ministry of Justice of Ukraine repealed the Order of 2005 with effect from 14 January 2008, making reference to Expert Opinion no. 15/88 of the Ministry of Justice, relying, in turn, on the Opinion of the Secretariat of the Agent of the Government of Ukraine before the European Court of Human Rights of 21 November 2007 (not available in the case file before the Court), according to which those Regulations did not comply with the European Convention on Human Rights and Fundamental Freedoms and the Court’s case-law. G. Extracts from the Report of the Parliamentary Commissioner for Human Rights of Ukraine (“the Ombudsman”) for 2006 and 2007 (presented to Parliament on 24 June 2009) 223. The relevant extracts provide as follows (emphasis in the original): “The Ombudsman assessed the situation in Izyaslav Prison (no. 31), where in January 2007 there had been an extraordinary event, namely a mass refusal [to eat] food by prisoners. In such a manner they protested against their degrading treatment and humiliation by the prison administration. Having visited the prison, the Ombudsman’s representatives discovered numerous violations of the prisoners’ rights. In particular, only one in six prisoners could exercise his right to work, the predominant majority of the prisoners did not have any funds on their personal accounts, [and] there were inadequate living conditions because of the dormitories’ overcrowding. Entitlement to any incentives was preconditioned on at least three purchases in the prison shop with money earned in the prison. At the same time, any prisoner risked heavy punishment if he failed to bare his head upon encountering a staff member, regardless of the season or weather conditions. All this greatly struck the Ombudsman’s representatives. The Ombudsman is investigating the matter. At the same time, the Ombudsman would state that, as compared with the earlier visit to that prison, the material conditions of detention have been improved. Namely, the baths have been repaired, three additional long-distance pay telephones have been installed, the stock of essential commodities and foodstuffs on sale in the shop has been increased, the sanitary conditions in the dormitories’ premises have been improved, and so on. ... Carrying out regular monitoring of the respect for prisoners’ rights, the Ombudsman has reached the conclusion that the practice of the use of special forces units in prisons and detention centres calls for fundamental revision. The primary task of these units is to take measures for the prevention of or putting an end to terrorist crimes or actions disrupting the work of penal institutions and to conduct related training. Given that these measures imply the application of special means of restraint and arms, as well as the use of force, an issue arises as regards the [authorities’] strict adherence to human rights. As transpires from the numerous applications to the Ombudsman from prisoners and their relatives and the ensuing investigations, human rights are not always respected during operations [involving such units]. Furthermore, there is no official information about the tasks and the real practical activities of these units. Therefore, the Ombudsman emphasised in her 2005 Annual Human Rights Report that the practice of the use of special forces units is in fact systematic resort to torture. Presently, the situation has somewhat changed, albeit not drastically, as envisaged by laws and regulations. In spite of the Ombudsman’s numerous statements about the prohibition of prisoners’ ill-treatment, this negative phenomenon took place in Izyaslav Prison (no. 31) ... and in some other penal institutions. It is the [Prisons Department] that bears the responsibility for this .... The modus operandi of antiterrorist units in penal institutions also raised the concerns of the UN Committee against Torture .... In particular, this concerned the wearing of masks by antiterrorist units inside prisons, which was considered as resulting in intimidation and ill-treatment of inmates. It is noteworthy that the Ministry of Justice of Ukraine repealed the Regulations establishing such units as running counter to the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms.” H. Written Submission of the Ukrainian Helsinki Human Rights Union (NGO) for the OSCE Human Dimension Implementation Meeting on Freedom from Torture and Ill-treatment (HDIM.NGO/327/07, September 2007) 224. The relevant extract reads as follows: “On 14 January 2007 all prisoners at the Izyaslav Penal Colony No. 31 (more than 1,200 men, first time offenders, and in the main young men from 18 to 22) declared a hunger strike. They were protesting against beatings and degrading treatment by staff, arbitrary punishments (each prisoner who wrote a statement gave glaring examples), infringements of working conditions (only a small percentage of those working, not more than 10%, had wages paid, the others received nothing), bad conditions and medical care (one telephone for everybody, and you had to earn the right to a call; food and medicines beyond their sell by date – there were even some cans of food from 1979), as well as the complete lack of any chance of sending complaints against administration behaviour. One of the prisoners’ demands was the removal of the head of the colony. On the same day a commission from the State Department for the Execution of Sentences arrived at the colony. It was led by the Deputy Head of the Department ... who listened to the prisoners’ grievances and promised to rectify the situation. That evening already the prisoners went to supper. The Department explains the events at No. 31 differently. They say that the young head of the institution ... was unable to cope with the problems of the colony, and “the informal management of the colony” got out of hand and wanted to determine themselves who would manage the institution and what the rules of behaviour would be. They therefore organized the protest action. Supposedly it was no hunger strike since none of the prisoners wrote a personal statement refusing to eat. The prisoners had received very good parcels from home coming up to New Year, and could afford to put such pressure on the administration. Such behaviour was a threat to order in the colony and the organizers of the action needed to be punished. The punishment was not long in coming. On 22 January 2007 a special anti-terrorist unit was brought into the colony, with men in masks and military gear. They brutally beat more than 40 prisoners and took them away, half-dressed, some of them without even house shoes (all their things were left in the colony), beaten and covered in blood, with broken noses, ribs and bones, and with teeth knocked out, to the Rivne and Khmelnytskyy SIZO where they were again brutally beaten. In the SIZO they used torture to extract signed statements that they didn’t have any grievances against the administration of Penal Colony No. 31, against the SIZO, the convoy, and also a statement backdated to 21 January asking to be moved to another colony to serve out their sentence. The prisoners say that they were urinating blood for some time, and for more than a month, they couldn’t move their wrists properly because of the handcuffs used on them. Try as the Department did to hush the story up, publicly asserting that there’d been no hunger strike, no special forces nor beatings, the mass media reported both the events of 14 and 22 January and later. The parents of the prisoners approached human rights organizations, journalists from TV Channels 5 and “1 + 1”, and other media outlets. The human rights organizations and parents wrote statements to various bodies demanding that a criminal investigation be instigated in connection with the unlawful actions of the Department. The State Department for the Execution of Sentences has still not admitted that the prisoners were beaten and that their belongings disappeared. The Secretariat of the parliamentary Human Rights Ombudsperson sent the complaints received from parents and the prisoners themselves to the prosecutor’s office and to the selfsame Department (!), although personnel from the Secretariat had themselves been in Colony No. 31. All prosecutor’s offices at different levels have refused to launch a criminal investigation and have maintained that the behaviour of Department staff was lawful. With regard to the loss of belongings, the prosecutor’s office in the Khmelnytskyy region claimed that the belongings had been moved together with the prisoners, that the money in their personal accounts had been handed over and used for the needs of Izyaslav Penal Colony No. 31 on the written authorization of the prisoners themselves. The Prosecutor General, in contrast, has acknowledged that on 22 January methods of physical influence were applied to prisoners – but says this was as the result of resistance from the prisoners to a search. It also maintains that since not one of the prisoners has made a complaint alleging unlawful behaviour, there are no grounds for launching a criminal investigation. The events of 22 January were subjected to scrutiny by the UN Committee against Torture which reviewed Ukraine’s Fifth Periodic Report at its 38th session on 8 and 9 May. When asked by one of the Committee’s experts what had happened at Izyaslav, the Government Delegation responded that a special purpose unit had been brought in to quell a riot. Nonetheless, in their “Conclusions and Recommendations” on 18 May, the Committee directly stated that: “The State party should also ensure that the anti-terrorist unit is not used inside prisons and hence to prevent mistreat and intimidation of inmates.” The Head of the Department ... often repeats that the Department is a law enforcement body which is in the frontline of the fight against crime. Yet throughout the world the penal system is a civilian service. In Ukraine this system requires radical reform. Conditions must really be created which ensure respect for prisoners’ dignity, minimize the adverse effects of imprisonment, eliminate the enormous divide between life in penal institutions and at liberty, and support and consolidate those ties with relatives and with the outside world which best serve the interests of the prisoners and their families. In our view, a shocking crime was committed. It remains however unpunished since there is effectively no system of investigating allegations of torture. After all the prosecutor’s office on the one hand only agrees to launch a criminal investigation where there are statements from victims of torture, while on the other, fails to take any effort to ensure those people’s safety. They are thus under the total control of their torturers which simply leaves no chance for complaints. Other mechanisms are therefore needed to prevent torture and to investigate these crimes.” III. RELEVANT INTERNATIONAL MATERIALS 225. Relevant provisions of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 10 December 1984, read as follows: Article 1 “1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. ... ...” Article 16 “1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. ... ...” 226. In its “Conclusions and Recommendations on Ukraine”, issued on 3 August 2007, the UN Committee against Torture (CAT/C/UKR/CO/5), expressed its concern regarding the events of January 2007 in Izyaslav Prison: “13. ... The Committee is ... concerned at the reported use of masks by the anti ‑ terrorist unit inside prisons (e.g. in the Izyaslav Correctional Colony, in January 2007), resulting in the intimidation and ill-treatment of inmates.” It made the following recommendation in that connection: “The State party should also ensure that the anti-terrorist unit is not used inside prisons so as to prevent the mistreatment and intimidation of inmates.” 227. The 2007 US Department of State Country Report on Human Rights Practices in Ukraine, released on 11 March 2008, touched upon the matter too: “Media and human rights organizations reported on January 14 that over 1,000 inmates at the Izyaslav correctional facility No. 31 in Khmelnytskyy Oblast went on a hunger strike to protest unsatisfactory conditions, including poor food and medical care, and mistreatment by prison personnel. According to human rights groups, a [State Prisons Department] commission inspected the facility and found expired medicine and canned food dating back to 1979. A day after the commission’s visit, the facility’s chief ... denied there was a protest in a televised interview, which was followed by another wave of protests. On January 22, antiriot personnel entered the prison to conduct searches and proceeded to beat the inmates. According to the [KHRPG], guards forced inmates to sign backdated statements that they had no complaints. Several prisoners were later transferred to eight facilities across the country, the [State Prisons Department] threatened to extend their prison sentences, and family members of protest leaders received threats. Human rights groups have appealed to the GPO for an investigation, but there were no reports of action taken at year’s end. On December 17, inmates announced a hunger strike to protest against unsatisfactory detention conditions including wet, cold, and poorly ventilated cells, limited running water, and vermin infestation.” 228. The 2008 US Department of State Country Report on Human Rights Practices in Ukraine, released on 25 February 2009, briefly continued the subject: “During the year the [State Penal Department] denied allegations by human rights groups that it had improperly transferred 40 inmates out of Izyaslav correctional facility no. 1 in Khmelnytskyy Oblast, following hunger strikes and the beating of prisoners at the facility in January 2007. Human rights groups called for an investigation of these incidents.” THE LAW I. JOINDER OF THE APPLICATIONS 229. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. II. LOCUS STANDI OF THE FIRST APPLICANT’S MOTHER 230. The Court notes that the first applicant died after having lodged his application under Article 34 of the Convention (see paragraph 5 above). It is not disputed that his mother is entitled to pursue the application on his behalf and the Court sees no reason to hold otherwise (see Toteva v. Bulgaria, no. 42027/98, § 45, 19 May 2004, and Yakovenko v. Ukraine, no. 15825/06, § 65, 25 October 2007). However, reference will still be made to the first applicant throughout the ensuing text. III. THE SEVENTEENTH APPLICANT’S VICTIM STATUS 231. The Court considers it necessary to decide on the victim status of the seventeenth applicant. It reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see, among other authorities, Vatan v. Russia, no. 47978/99, § 48, 7 October 2004). 232. In the present case, it appears that the ill-treatment complained of, as well as the alleged loss of property, concerned forty-one inmates of Izyaslav Prison who were transferred to Khmelnytskyy and Rivne SIZOs (see paragraphs 25-112 above). 233. The Court notes that the seventeenth applicant was not among those prisoners. Neither did he make any submissions elucidating the facts pertaining to his personal situation. 234. The Court therefore considers that the application, in so far as it concerns the seventeenth applicant, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention. 235. The Court will therefore limit its examination of the complaints raised in the application to those which concern the remaining seventeen applicants, whom – for the sake of simplicity – it will henceforth refer to as “the applicants”, without specifying every time that they do not include the seventeenth applicant. IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 236. The applicants complained under Article 3 of the Convention of ill ‑ treatment during and after the search and security operation conducted in Izyaslav Prison on 22 January 2007. They also complained, relying on Article 13 of the Convention, that there had been no effective domestic investigation into the matter. 237. The Court considers it appropriate to examine both these complaints under Article 3 of the Convention which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The Government’s objection 238. The Government submitted that none of the applicants could be regarded as having exhausted the domestic remedies available to them under domestic law as required by Article 35 § 1 of the Convention. 239. They contended, in particular, that the sixth applicant had erroneously sought to challenge before the domestic courts the ruling of the prosecution authorities of 7 February 2007, which had not concerned him personally. According to the Government, it would have been more appropriate for him to challenge the prosecutorial decision of 10 September 2007 delivered in reply to his individual complaint of ill ‑ treatment. 240. After the sixth applicant subsequently did so (see paragraph 189 above), the Government considered his complaint before the Court premature given the ongoing domestic investigation (see paragraphs 190 ‑ 195 above). 241. The Government further argued that, although the fifth and the seventh applicants had mentioned to the prosecutor in passing that they had been beaten on 22 January 2007 (the fifth applicant did so on 11 and 31 July 2007 – see paragraphs 166 and 169 above, and the seventh applicant on 2 February 2007 – see paragraph 133 above), they had failed to show sufficient interest in the investigation into those allegations. The Government referred in this connection to the seventh and the fifth applicants’ failure to challenge the prosecutor’s rulings of 7 February and 10 September 2007, respectively. 242. Once both these rulings were quashed, the Government maintained their non-exhaustion objection on the grounds that, like in the case of the sixth applicant, the domestic investigation was not yet completed (see paragraphs 190-195 above). 243. Similarly, in respect of the remaining fifteen applicants, the Government first argued that they should have challenged the prosecutor’s ruling of 7 February 2007 and later referred to the ongoing domestic investigation into the matter. 2. The applicants’ reply 244. The applicants maintained that they had done everything that could reasonably be expected of them to exhaust domestic remedies. 245. They noted that the prosecutor’s ruling of 7 February 2007 had been delivered following the investigation of the information disseminated in the media regarding the alleged mass beating in Izyaslav Prison on 22 January 2007 (see paragraph 146 above). Accordingly, it had concerned all the applicants equally. The sixth applicant’s later individual complaint had been rejected on 2 August 2011 primarily on the grounds that similar allegations had already been investigated and dismissed by the aforementioned ruling of 7 February 2007. The applicants therefore found the differentiation by the Government between the situation of the sixth applicant and that of the other applicants inexplicable. 246. They contended that, from the procedural point of view, the legal effect of a single complaint against the ruling in question was the same as the effect of complaints from each of the eighteen applicants. At the same time, the existence of several complaints concerning the same subject ‑ matter would have caused complications and delays. 247. The applicants further submitted that the domestic investigation of their alleged ill-treatment had been ongoing for years without any meaningful attempt to establish the truth and to punish those responsible. Referring to their complaint concerning the ineffectiveness of that investigation, they argued that they were under no obligation to await its completion. In any event, the Government’s objection as to the admissibility of their complaint under the substantive limb of Article 3 of the Convention could only be examined together with the examination of the merits of their complaint under its procedural limb. 3. The Court’s assessment 248. The Court notes certain factual developments in the case posterior to the Government’s initial observations of 20 June 2011 (see paragraphs 190-195 above). It further observes that the Government maintained their objection as to the admissibility of this complaint on the grounds that the domestic investigation was ongoing and therefore the State could still respond to the applicants’ complaints at the national level. 249. The Court considers that the questions of whether the applicants’ complaint of ill-treatment is premature in view of the pending investigation and whether they have exhausted domestic remedies in respect of this complaint are closely linked to the question of whether the investigation into their allegations of ill-treatment was effective. This issue should therefore be joined to the merits of the applicants’ complaint under Article 3 of the Convention (see, for example, Yaremenko v. Ukraine (dec.), no. 32092/02, 13 November 2007, and Muradova v. Azerbaijan, no. 22684/05, § 87, 2 April 2009). 250. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 §§ 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 251. The Court notes from the outset that the Government did not submit any observations on the merits of the case. As regards the factual account of the events under consideration, they relied on the findings of the domestic investigation in their objection regarding the admissibility of the applications (see paragraphs 238-243 above). The applicants, from their side, criticised the domestic investigation, contested its findings and advanced their own version of what had happened to them on 22 January 2007 in Izyaslav Prison and subsequently in the SIZOs to which most of them had been transferred (for a more detailed summary of their arguments see paragraphs 254-257, 312 and 323 below). 252. The Court is mindful of the necessity of establishing the facts of the case as an indispensable element of its examination of the applicants’ complaint of ill-treatment under the substantive limb of Article 3 of the Convention. Before embarking on this exercise, it appears important for the Court to reach an opinion about the genuineness and thoroughness of the domestic authorities’ efforts to establish the truth in this case. Only having made an assessment of the domestic investigation will the Court know whether it can rely on its findings. 253. Accordingly, the Court will first deal with the applicants’ complaint under the procedural limb of Article 3 of the Convention and then with their complaint under its substantive limb. 1. Alleged inadequacy of the investigation (a) The parties’ submissions 254. The applicants contended that the domestic investigation into their allegations of ill-treatment could not be considered independent as it had been entrusted to the Shepetivka Prosecutor, who had been supposed to supervise the legality of the search and security operation in Izyaslav Prison. They also noted in this connection that the prosecution authorities had relied on the inquiry undertaken by the Prisons Department, whose officials had been directly involved in the events complained of. Moreover, some of the documents dismissing the applicants’ complaints of ill-treatment had been signed by officials who had participated in that ill-treatment. 255. The applicants further submitted that the investigation had failed to ensure their and the witnesses’ security. Fearing reprisals by the prison administration, inmates of Izyaslav Prison had preferred to keep silent or to deny having witnessed any ill-treatment. So had the prisoners, including the applicants, who had been transferred to SIZOs, as their ill-treatment and intimidation had continued. 256. The applicants next criticised the domestic investigation for its superficiality. They referred, in particular, to the following shortcomings: the lack of comprehensive questioning of both the prisoners moved from Izyaslav Prison and those staying there after the events in question; the absence of thorough forensic medical examinations of the applicants, including an examination of their internal organs and X-raying; and the failure to carry out any on-site examination in Izyaslav Prison. 257. Lastly, the applicants contended that the investigation had not been open to any public scrutiny. 258. As noted in paragraph 251 above, the Government did not submit any observations on the merits of this complaint. (b) The Court’s assessment (i) General principles 259. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This obligation “is not an obligation of result, but of means”: not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant’s account of events; however, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible. Thus, the investigation of serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill ‑ founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see, among many authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports of Judgments and Decisions 1998 ‑ VIII, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II, and Mikheyev v. Russia, no. 77617/01, § 107 et seq., 26 January 2006). 260. The Court further notes that, for an investigation into torture or ill ‑ treatment by agents of the State to be regarded as effective, the general rule is that the persons responsible for making inquiries and those conducting the investigation should be independent hierarchically and institutionally of anyone implicated in the events, in other words that the investigators should be independent in practice (see Batı and Others v. Turkey, nos 33097/96 and 57834/00, § 135, ECHR 2004 ‑ IV (extracts)). 261. A requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as critical for maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr v. the United Kingdom, no. 28883/95, § 114, ECHR 2001 ‑ III). While there may be obstacles or difficulties which prevent progress in an investigation of a particular situation, it may generally be regarded as essential for the authorities to launch an investigation promptly (see Batı and Others, cited above, § 136). 262. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to ensure 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 investigatory procedure (see Aksoy v. Turkey, 18 December 1996, § 98, Reports 1996-VI). (ii) Application of these principles to the present case 263. Having regard to the magnitude of the events complained of and the fact that these events unfolded under the control of the authorities and with their full knowledge, the several acknowledged instances of the use of force against the prisoners, the seriousness of the allegations raised and the public attention involved, the Court finds that all the applicants had an arguable claim that they had been ill-treated and that the State officials were under an obligation to carry out an effective investigation into the matter. (α) Thoroughness 264. The Court emphasises that whenever a number of detainees have been injured as a consequence of a special forces operation in a prison, the State authorities are under a positive obligation under Article 3 to conduct a medical examination of inmates in a prompt and comprehensive manner (see Mironov v. Russia, no. 22625/02, §§ 57-64, 8 November 2007, and Dedovskiy and Others v. Russia, no. 7178/03, § 90, ECHR 2008 (extracts)). As the Court has held on many occasions, proper medical examinations are an essential safeguard against ill-treatment. A forensic medical examiner must enjoy formal and de facto independence, have been provided with specialised training and have a mandate which is broad in scope (see Akkoç v. Turkey, nos 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000 ‑ X). 265. The Court notes that in the present case a forensic medical examination was only arranged for the group of former Izyaslav Prison inmates who were transferred to Khmelnytskyy SIZO (including seven applicants), while those in Rivne SIZO (including ten applicants) did not undergo any such examination (see paragraphs 130 and 136-139 above). 266. As to the examination of the seven applicants, it is true that it was undertaken by a forensic expert. However, his reports in respect of all these applicants (with the exception of the fourth and the eighteenth applicants) were worded identically and were confined to a mere statement that “no external injuries” had been discovered. Apparently, only a visual examination took place, without any serious attempt to establish all the injuries and determine their cause using forensic methods (see, mutatis mutandis, Rizvanov v. Azerbaijan, no. 31805/06, § 47, 17 April 2012). 267. The Court further notes that, when a doctor writes a report after a medical examination of a person who alleges having been ill-treated, it is extremely important that he states the degree of consistency with the allegations of ill-treatment. A conclusion indicating the degree of support for the allegations of ill ‑ treatment should be based on a discussion of possible differential diagnoses (see Barabanshchikov v. Russia, no. 36220/02, § 59, 8 January 2009). 268. In the present case, the expert who examined the applicants in Khmelnytskyy SIZO was not informed of the nature of the investigation in the course of which the examinations had been ordered, and made no efforts to establish the circumstances of the case (see paragraphs 130 and 136 above). This, at least, transpires from the examination reports in respect of five applicants on whom no injuries were discovered (see paragraph 136 above). Such lack of awareness, or indifference, on the part of the expert is even more striking given that the use of force was acknowledged in respect of two applicants (the fourth and the eighteenth). Accordingly, the expert could hardly have been unaware of the comparable circumstances of the other applicants. 269. As regards the forensic medical examination of the fourth and the eighteenth applicants, the Court observes that the expert report of 2 February 2007 documented fewer injuries than those reported a week before. Namely, in so far as the fourth applicant was concerned, it did not mention the bruise of 3 x 7 cm on his right buttock and the bruise of 3 x 6 cm on his left hip. Neither did it indicate the bruise of 4 x 8 cm on the eighteenth applicant’s left shoulder blade (see paragraphs 137-138 above). 270. While it appears unlikely that the aforementioned bruises had disappeared over the course of a week without any trace, the Court cannot rule out such a possibility altogether. 271. The Court emphasises that the applicants, being imprisoned, were entirely reliant on the prosecution authorities to assemble the evidence necessary for corroborating their complaints. The prosecutor had the legal powers to interview the officers involved, summon witnesses, visit the scene of the events, collect forensic evidence and take all other steps crucial for establishing the truth of the applicants’ account. 272. According to the applicants, in the present case the prosecutorial authorities not only failed to make those efforts, but also turned a blind eye to their visible injuries and continuous intimidation. 273. While the Court has no means of verifying the circumstances of the applicants’ questioning by the Khmelnytskyy and Rivne Prosecutors on 30 January and 2 February 2007, it discerns certain indications in the facts of the case in favour of the applicants’ account. Namely, there is no evidence showing that the questioning sessions took place in private, without the presence of SIZO administration officers. Furthermore, the Court finds it striking that the prosecutor accepted the waiver by some of the applicants of a medical examination, on which he should have insisted as an essential element of the investigation (see paragraph 133 above). The Court is also struck by the prosecutor’s indifference and passivity as regards the confirmed injuries of the fourth applicant and his denial of any ill ‑ treatment, combined with a refusal to give any explanations (ibid.). 274. The Court next observes that, although the Shepetivka Prosecutor initiated disciplinary proceedings against the governor of Izyaslav Prison for failure to ensure the prosecutorial supervision of the search and security operation of 22 January 2007 as required by law, no further action apparently followed (see paragraph 145 above). 275. The Court further notes that the investigation was reopened on several occasions and was criticised by the authorities as being incomplete (see paragraphs 172, 190 and 192 above). The Court has no reasons to consider it otherwise. 276. Overall, the Court discerns the following significant omissions undermining the reliability and effectiveness of the domestic investigation: (a) incompleteness and superficiality of the applicants’ medical examination; (b) failure to ensure the applicants’ and witnesses’ safety as regards any fears of retaliation or intimidation; and (c) a formalistic and passive attitude on the part of the prosecution authorities. It therefore cannot consider the investigation to be thorough. (β) Independence 277. The Court notes that both the applicants’ relatives and domestic NGOs insisted on an independent investigation of the matter (see paragraphs 127 and 158 above). 278. The investigation was, however, entrusted to the Shepetivka Prosecutor, who was in charge of supervision of compliance with the law in penal institutions located in the Khmelnytskyy region (where Izyaslav Prison was located). While the Khmelnytskyy and Rivne Prosecutors, as well as the Lviv Regional Prosecutor, were involved in separate investigation activities, it was the Shepetivka Prosecutor who took decisions concerning the applicants’ allegations (see, in particular, paragraphs 129 ‑ 132, 145-146, 165-166, 171-173 and 191-192 above). 279. As the Court held in Melnik v. Ukraine (no. 72286/01, § 69, 28 March 2006) and further reiterated in Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 251, 1 July 2010), the status of such a prosecutor under domestic law, his proximity to prison officials with whom he supervised the relevant prisons on a daily basis, and his integration into that prison system did not offer adequate safeguards such as to ensure an independent and impartial review of prisoners’ allegations of ill-treatment on the part of prison officials. 280. The fact that the Shepetivka Prosecutor did not monitor the particular operation in Izyaslav Prison complained of, even though the prison administration was required by law to inform him in advance but failed to do so (see paragraphs 145 and 200 above), does not change the above considerations as to the lack of his independence in practice. 281. The Court also observes that on many occasions the applicants’ (or their relatives’) complaints were dismissed by officials of the Prisons Department who had been directly involved in the events complained of. 282. In sum, there was no independent investigation into the applicants’ allegations of ill-treatment. (γ) Promptness 283. The Court notes that the General Prosecutor’s Office became aware of the grave allegations of mass beating of Izyaslav Prison inmates on 26 January 2007 at the latest (see paragraphs 127 above). 284. The Court observes that within the following week, on 30 January and 2 February 2007, the applicants were questioned by local prosecutors in Khmelnytskyy and Rivne SIZOs (see paragraphs 129 and 131-133 above). In addition, the group of applicants in Khmelnytskyy SIZO were examined by a forensic medical expert, who completed his report on 2 February 2007 (see paragraphs 136-138 above). Also, at about the same time, the investigator questioned the officers from the administration of Izyaslav Prison, the special forces unit and the rapid reaction groups involved in the operation of 22 January 2007. 285. As a result, on 7 February 2007, two weeks after the events complained of, the prosecutor delivered a decision dismissing the applicants’ complaints as unfounded. 286. The above-mentioned investigative steps might give an impression of a prompt response to the complaints in question, which consisted of medical examinations and questioning of the supposed victims and the alleged perpetrators. However, where examinations are incomplete and superficial, the victims are intimidated and the alleged perpetrators’ denial of any wrongdoing is taken at face value, as it was in the present case (see paragraphs 266, 268 and 273-276 above), these steps cannot be considered as a prompt and serious attempt to find out what happened, but rather as a hasty search for any reasons for discontinuing the investigation. 287. The Court further notes that, following several remittals of the case for additional investigation, four years and nine months after the events complained of, the authorities acknowledged that the investigation undertaken had been incomplete (see, in particular, paragraph 192 above). 288. In such circumstances the Court is bound to conclude that the authorities failed to comply with the requirement of promptness (see Kişmir v. Turkey, no. 27306/95, § 117, 31 May 2005, and Angelova and Iliev v. Bulgaria, no. 55523/00, § 103, ECHR 2007). (δ) Public scrutiny 289. The Court notes that, according to the applicants’ lawyer, he only received a copy of the prosecutor’s ruling of 7 February 2007 refusing to open a criminal case in respect of the ill-treatment allegations on 11 July 2008 (see paragraph 176 above). In the absence of any evidence to the contrary, the Court has no reason to question the veracity of this submission. The authorities’ earlier references to the existence of this ruling in their correspondence with the applicants’ relatives (see paragraphs 164 and 175 above) were not enough to enable the applicants to effectively challenge its findings and reasoning. 290. In fact, there is no evidence in the case file showing that any of the decisions taken in respect of the applicants’ alleged ill-treatment were duly served on them. While some judicial rulings were sent to the governor of Derzhiv Prison, where the sixth applicant was serving his sentence at the time, it remains unclear whether they were eventually passed on to him (see paragraphs 186 and 188 above). 291. Accordingly, the Court considers that the applicants’ right to participate effectively in the investigation was not ensured. 292. It notes that the Ombudsman was apparently involved. According to the documents, however, her representatives visited the Izyaslav Prison before the events complained of, namely on 17 January 2007 (see paragraph 11 above). Although the issue of the alleged mass beating there was brought to the Ombudsman’s attention, it appears that she remained passive and only condemned, doing so in general terms in her report to Parliament, any use of special forces units in prisons as amounting to acts of torture more than two years later (see paragraphs 126, 150, 153 and 223 above). 293. Lastly, the Court notes the formalistic replies from the authorities to the NGOs’ enquiries about the investigation (see paragraphs 123-124, 127 and 148 above). 294. In the light of the foregoing, the Court concludes that the domestic investigation lacked the requisite public scrutiny. (ε) Conclusions 295. Having regard to the above failings of the Ukrainian authorities, the Court finds that the investigation carried out into the applicants’ allegations of ill-treatment was not thorough or independent, failed to comply with the requirement of promptness and lacked public scrutiny. It was therefore far from an adequate investigation. 296. The Court therefore dismisses the Government’s objection as to the exhaustion of domestic remedies previously joined to the merits (see paragraph 249 above), and finds that there has been a violation of Article 3 of the Convention under its procedural limb. 2. Alleged ill-treatment of the applicants (a) Scope of the Article 3 prohibition 297. As the Court has stated on many occasions, Article 3 enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and Saadi v. Italy [GC], no. 37201/06, § 127, ECHR 2008). 298. The Court has also consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). 299. In respect of detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Vladimir Romanov v. Russia, no. 41461/02, § 57, 24 July 2008, with further references). In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336, and Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006). (b) Establishment of the facts 300. The applicants insisted on their account of the events as outlined in paragraphs 25-108 above. They maintained that, during and/or following the search and security operation conducted in Izyaslav Prison on 22 January 2007, they had suffered: extensive and cruel beatings; humiliation and degrading treatment, including but not limited to being ordered to strip naked and adopt humiliating poses; application of special means of restraint, including handcuffs, unnecessarily and in a particularly painful manner; being deprived of access to water or food for a long period of time during their transfer to the SIZOs; exposure to low temperatures without adequate clothing upon their arrival at the SIZOs; a lack of adequate medical examinations and assistance. They insisted that the ill-treatment complained of had amounted to torture. 301. The Government did not submit any observations on the merits of the case. (i) General case-law principles concerning evidence and the burden of proof 302. According to the Court’s case-law, allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 303. The Court understands that allegations 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, cited above, § 134). (ii) Undisputed facts 304. In the present case it is common ground between the domestic authorities and the applicants that on 22 January 2007 an operation was carried out in Izyaslav Prison, where the applicants were serving sentences at the time. That operation included, in particular, searches of the premises within the prison, body searches of a group of forty-one detainees, unspecified “preventive security measures for enhancing order” and training drills (see, in particular, paragraph 15 above). 305. As acknowledged by the authorities, the aforementioned operation took place without the legally envisaged monitoring by the regional prosecutor in charge of supervision of compliance with the law in penal institutions (see paragraph 145 above). 306. The Court next observes that the applicants’ account and the official reports are concordant in terms of the human resources involved in the operation in question. Namely, one hundred and thirty-seven officers were involved, twenty-two of whom were from rapid reaction groups deployed from two other prisons and nineteen of whom belonged to the Prisons Department’s interregional special forces unit (see paragraph 18 above). 307. Furthermore, as admitted by the Ukrainian authorities, the involvement of the special forces unit was based on a regulatory framework running contrary to the Convention and the Court’s case-law principles (see paragraphs 217-222 above). 308. The Court also observes that, while prior to the operation complained of, nearly one hundred percent of the prison population went on hunger strike to convey their complaints to higher authorities, not a single complaint was reported from prisoners during the final stage of the operation, which was stated to be dedicated to recording the prisoners’ complaints and resolving the issues raised (see paragraphs 8, 10, 16 and 20 above). 309. As to the use of force against prisoners, it is undisputed that several blows with rubber truncheons were inflicted on and handcuffing was applied to the fourth and the eighteenth applicants, along with six other prisoners (see paragraphs 20-24 and 137-138 above). 310. Another established fact is that forty-one prisoners (including seventeen of the eighteen applicants), whom the administration regarded as the organisers of the hunger strike, were transferred to different detention facilities in a rushed manner immediately after the search, without having been given the opportunity to get prepared or to collect their personal belongings. (iii) Disputed facts and their assessment by the Court 311. The Court notes that the major point of argument between the applicants and the domestic authorities concerned the use of force by the officers conducting the search and security operation in Izyaslav Prison on 22 January 2007, its nature and scope. 312. The applicants alleged indiscriminate and large-scale brutality against them. Ten of them gave a detailed account of the events of 22 January 2007, describing the chain of events, indicating the time, location and duration of the beatings, and explaining the methods used by officers (see paragraphs 25-108 above). While the seventh, the eighth, the ninth, the eleventh, the twelfth, the thirteenth and the fourteenth applicants did not provide separate accounts of the events, they relied on those submitted by the aforementioned applicants. Given that they were all in the same group of prisoners separated from the others by the special forces unit’s officers, subjected to a body search and immediately transferred to the SIZOs, the Court accepts that all seventeen applicants were subjected to comparable treatment in the same factual setting. 313. The authorities, however, only acknowledged two incidents involving the fourth and the eighteenth applicants (see paragraphs 20-24 and 137-138 above). 314. The Court notes that the medical records in the case file confirm some injuries of those two applicants, the absence of any injuries to five other applicants (the second, the seventh, the eighth, the thirteenth and the fourteenth applicants) and are non-existent in respect of the remaining ten applicants. 315. The Court notes that although medical evidence plays a decisive role in establishing the facts for the purpose of Convention proceedings, the absence of such evidence cannot immediately lead to the conclusion that the allegations of ill-treatment are false or cannot be proven. Were it otherwise, the authorities would be able to avoid responsibility for ill-treatment by not conducting medical examinations and not recording the use of physical force or special means of restraint (see Artyomov v. Russia, no. 14146/02, § 153, 27 May 2010). 316. The Court is not convinced by the medical records noting the absence of any injuries to five of the applicants for the following reasons. It notes that their initial examination took place in Khmelnytskyy SIZO, whose staff had been directly involved in the search and security operation complained of (see paragraphs 18, 129 and 134 above). Furthermore, the applicants alleged that they had been subjected to continuous ill-treatment in that SIZO and their complaints in that regard were never investigated. As to the forensic medical examination of 30 January 2007, the Court has already concluded that it was superficial and cannot be fully relied on (see paragraphs 266-270 and 276 above). Even assuming that those five applicants indeed had no visible injuries on 30 January 2007, as stated in their forensic medical examination reports (see paragraph 136 above), more than a week had elapsed since the impugned operation, meaning that, depending on their severity, the injuries could have healed in the interval. In any event, the Court is well aware that there are methods of applying force which do not leave any traces on a victim’s body (see Boicenco v. Moldova, no. 41088/05, § 109, 11 July 2006). For example, blows with truncheons do not automatically leave visible marks on the body, even though they do cause substantial pain (see Selmouni v. France [GC], no. 25803/94, § 102, ECHR 1999 ‑ V). And, of course, the consequences of any intimidation, or indeed any other form of non-physical abuse, would in any event have left no visible trace (see Hajnal v. Serbia, no. 36937/06, § 80, 19 June 2012). 317. Thus, the Court concludes that it does not have complete or conclusive medical evidence before it that would either support or detract from the reliability of the applicants’ allegations. That being so, it must establish the facts on the basis of all the other materials in the case file. 318. First of all, the Court takes note of the difference between the declared and the real purpose of the operation complained of in Izyaslav Prison. It observes that it was planned and reported as comprising a general search and some unspecified preventive security measures, together with practical drills, without any reference being made to the ongoing protests by the prisoners. However, as was later acknowledged by the authorities, it was the prisoners’ mass hunger strike in protest at the conditions of their detention and the administration’s wrongdoing that prompted this operation (see paragraphs 115, 122, 149 and 157 above). 319. Secondly, the Court has regard to the involvement of the special forces unit in the operation complained of. It considers credible the applicants’ submission that its officers had been wearing masks. The Court notes that it was a paramilitary formation equipped and trained for carrying out, in particular, antiterrorist operations. The Court has already established, including through a fact-finding mission, in the case of Davydov and Others, cited above, that a similar security operation had earlier been carried out in Zamkova Prison (neighbouring Izyaslav Prison) with the involvement of officers from special forces units wearing masks. There is no indication, be it in the legislative framework in place or in administrative developments, of a change in that practice. Moreover, the legal provisions providing a basis for the existence of such a special forces unit were eventually repealed as running contrary to the Convention and the Court’s case-law (see paragraph 222 above). In addition, the Court attaches weight to the categorical statement of the Ukrainian Ombudsman that “the practice of the use of special forces units [was] in fact systematic resort to torture” (see paragraph 223 above). 320. Thirdly, the Court notes that, while before the impugned operation nearly one hundred percent of prisoners in the jail had united in expressing their quite specific complaints against the administration, not a single complaint was recorded after this operation took place. It is noteworthy that the search did not result in the discovery of any major breaches of the rules on the prisoners’ part (the prohibited items discovered and seized, such as razor blades, medicines, water boilers, etc., could not have suggested that preparations for a riot or anything of the kind were under way). In the Court’s opinion, such a drastic change, in a matter of hours, from explicitly manifested unanimous dissent to complete acceptance could only be explained by indiscriminate brutality towards the prisoners having taken place. 321. Lastly, the Court does not lose sight of the circumstances in which the applicants were transferred to Khmelnytskyy and Rivnenskyy SIZOs following the operation. They were not given any chance to prepare for those transfers, to collect their personal belongings or even to dress appropriately for the weather conditions (the events taking place in January). Such a course of events is conceivable against a background of violence and intimidation rather than following a well-organised and orderly search and security operation which, as noted above, failed to reveal any serious breaches. 322. In the light of all the foregoing inferences and having regard to the Government’s silence as to the applicants’ factual submissions, the Court finds it established to the standard of proof required in Convention proceedings that the applicants were subjected to the treatment of which they complained. (c) Assessment of the severity of the ill-treatment 323. The applicants insisted that they had suffered ill-treatment amounting to torture. 324. The Government did not comment. 325. The Court is mindful of the potential for violence that exists in penal institutions and of the fact that disobedience by detainees may quickly degenerate into a riot (see Gömi and Others v. Turkey, no. 35962/97, § 77, 21 December 2006). The Court has previously accepted that the use of force may be necessary to ensure prison security, to maintain order or to prevent crime in penal facilities. Nevertheless, as noted above, such force may be used only if indispensable and must not be excessive (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007). 326. Turning to the present case, the Court notes that the prison authorities resorted to large-scale violent measures under the pretext of a general search and security operation, which was in fact targeted against the most active organisers of the prisoners’ mass hunger strike (see paragraphs 115, 122, 149 and 157 above). Furthermore, the operation in question took place without the legally obliged prosecutorial supervision (see paragraph 145 above). 327. It was a commonly accepted fact that the aforementioned protests by the prisoners were confined to peaceful refusals to eat prison food, without a single violent incident having been reported (see paragraphs 8-11 above). As eventually acknowledged by the Prisons Department, the prisoners’ claims were not without basis as regards both the conditions of their detention and the unbalanced and arbitrary resort of the prison administration to various penalties and sanctions (see paragraphs 117 and 119 above). The Court next observes that the prisoners demonstrated willingness to cooperate with and trust towards the Prisons Department’s officials, having terminated the hunger strike immediately after the creation of the special commission tasked with the investigation of their allegations (see paragraph 9 above). It is also noteworthy that the events took place in a minimum security level prison, where all the inmates were serving a first sentence in respect of minor or medium-severity criminal offences (see paragraphs 7 and 197 above). 328. The Court notes that the operation in question took place following prior preparations, with the involvement of specially trained personnel. The officers involved outnumbered the prisoners by more than three times (forty-one prisoners versus almost 140 officers). Furthermore, the prisoners did not receive the slightest warning of what was about to happen to them, having complied with the administration’s order to come to certain premises. Having regard to the presence of the Prisons Department’s officials who had previously started a dialogue with prisoners regarding their complaints, the inmates apparently expected the continuation of that dialogue (see paragraphs 9, 11 and 26 above). Instead, a group of masked paramilitaries stormed into the premises and “convinced” the prisoners to waive any complaints altogether. As to the manner in which this was likely achieved, the Court has already held that it considers the applicants’ account credible (see paragraph 322 above). 329. As regards the only two instances of the use of force – against the fourth and the eighteenth applicants – acknowledged by the domestic authorities, the Court notes that no efforts were taken by the officials concerned to show that it had been necessary in the circumstances. Thus, all eight reports (in addition to the two applicants, force was reported to have been used against six other prisoners) had an absolutely identical formalistic wording and referred to unspecified “physical resistance [by the prisoners] to the officers [conducting] the search” (see paragraph 21 above). Furthermore, it can be seen from the medical reports that all the prisoners in question (save one) were beaten on their buttocks (see paragraph 22 above). The Court considers that beating of this kind appears to be demeaning and retaliatory, rather than aiming at overcoming any physical resistance. 330. It is impossible for the Court to establish the seriousness of all the bodily injuries and the level of the shock, distress and humiliation suffered by every single applicant. However, it has no doubt that this unexpected and brutal action by the authorities was grossly disproportionate in the absence of any transgressions by the applicants and manifestly inconsistent with even those artificial goals they declared they were seeking to achieve. As suggested by all the facts of the case, violence and intimidation were used against the applicants, along with some other prisoners, simply in retaliation for their legitimate and peaceful complaints. 331. In so far as the seriousness of the acts of ill-treatment is concerned, the Court reiterates that in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see Shishkin v. Russia, no. 18280/04, § 87, 7 July 2011, with further references). 332. As noted above, the gratuitous violence resorted to by the authorities was intended to crush the protest movement, to punish the prisoners for their peaceful hunger strike and to nip in the bud any intention of raising complaints. In the Court’s opinion, the treatment the applicants were subjected to must have caused them severe pain and suffering, within the meaning of Article 1, paragraph 1, of the United Nations Convention again Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see paragraph 225 above), even though it did not apparently result in any long-term damage to their health. In these circumstances, the Court finds that the applicants were subjected to treatment which can only be described as torture (compare with Selmouni v. France, cited above, §§ 100-105 ). 333. There has therefore been a violation of Article 3 of the Convention, in that the Ukrainian authorities subjected the applicants to torture. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 334. The applicants complained that the investigation into their allegations of ill-treatment had been ineffective and thus contrary to Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 335. The Court observes that this complaint concerns the same issues as those examined in paragraphs 254 to 296 above under the procedural limb of Article 3 of the Convention. Therefore, the complaint should be declared admissible. However, having regard to its conclusion above under Article 3 of the Convention, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention (see, for example, Polonskiy v. Russia, no. 30033/05, §§ 126-127, 19 March 2009, and Teslenko v. Ukraine, no. 55528/08, §§ 120-121, 20 December 2011). VI. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 336. The applicants complained that the administration of Izyaslav Prison had failed to return all their personal belongings to them following their hasty transfer to different detention facilities on 22 January 2007. They relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows in the relevant part: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...” A. Admissibility 337. The Government submitted that the seventeenth applicant had not been transferred from Izyaslav Prison. Accordingly, he could not claim to be a victim of the alleged loss of property associated with such a transfer. 338. The applicants’ lawyer did not comment on this submission. 339. The Court notes that it has already declared inadmissible the entire application, in so far as it concerns the seventeenth applicant, as being incompatible ratione personae with the provisions of the Convention (see paragraph 234 above). 340. The present objection of the Government has therefore already been responded to. 341. The Court further notes that the remaining applicants’ complaint under Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 §§ 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 342. The applicants contended that they had not received in full their property from Izyaslav Prison. 343. The Government did not comment. 344. The Court accepts that prisoners are bound by certain restrictions on their right to the enjoyment of their possessions. 345. In the present case, however, it considers that the applicants’ right to property was infringed, even if taken within those boundaries. Thus, the chaotic and hasty manner in which they were transferred from Izyaslav Prison to Khmelnytskyy and Rivne SIZOs is corroborated by sufficient evidence. The applicants were deprived of any chance to collect their personal belongings and to prepare for the transfer. 346. It was therefore for the Government to prove that they did eventually receive their property which they had rightfully possessed in Izyaslav Prison. In the absence of any conclusive evidence in that regard, the Court concludes that at least some of the applicants’ property must have indeed been lost or misplaced. 347. The Court notes that this interference with the applicants’ rights was not lawful and did not pursue any legitimate aim. 348. That being so, the Court holds that there has been a violation of Article 1 of Protocol No. 1. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 349. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 350. The applicants claimed 50,000 euros (EUR) each in respect of non-pecuniary damage. 351. The Government contested this claim as unsubstantiated and exorbitant. 352. The Court observes that it has found particularly grievous violations in the present case. It accepts that the applicants suffered pain and distress which cannot be compensated by a finding of a violation. Nevertheless, the particular amounts claimed appear excessive. Making its assessment on an equitable basis, the Court awards each applicant (with the exception of the seventeenth applicant) 25,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 353. The applicants’ lawyer claimed, on behalf of his clients, EUR 15,390 for costs and expenses incurred before the domestic courts and in the proceedings before the Court. In substantiation, he submitted two legal assistance contracts signed by him and the sixth applicant on 18 June 2009 and 29 March 2011. The first contract empowered Mr Bushchenko to represent the sixth applicant in the domestic proceedings challenging the prosecutorial decision of 7 February 2007 in respect of the events in Izyaslav Prison at the end of January 2007. It stipulated an hourly charge-out rate of EUR 100. Under the second contract, Mr Bushchenko was to represent the sixth applicant’s interests in the proceedings before the Court at a rate of EUR 130 per hour. Both contracts stipulated that payment would be made after completion of the proceedings in Strasbourg and within the limits of the sum awarded by the Court in costs and expenses. 354. Mr Bushchenko also submitted four time-sheets and expense reports completed by him in respect of work done under the aforementioned contracts over the period of June 2009 – August 2011. According to him, he spent 69.5 hours asserting the applicants’ rights before the domestic courts and 68 hours in the proceedings before the Court. 355. The Government contested the claim as unsubstantiated and excessive. 356. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that only the sixth applicant is contractually bound to pay fees vis-à-vis Mr Bushchenko. Having regard to the documents submitted, the Court considers those fees to have been “actually incurred” (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 106, ECHR 2009). However, the Court considers that the claim is excessive and awards it – to the sixth applicant – partially, in the amount of EUR 10,000, plus any tax that may be chargeable to this applicant on that amount. C. Default interest 357. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 3 (prohibition of torture) of the Convention under its substantial limb, on account of the ill-treatment the applicants had been subjected to. It was a commonly accepted fact that the protests by the prisoners had been confined to peaceful refusals to eat prison food, without a single violent incident being reported. They had further demonstrated a willingness to cooperate with prison department officials. While it had been impossible for the Court to establish the seriousness of all the bodily injuries and the level of the shock, distress and humiliation suffered by every single applicant, there had been no doubt that the authorities’ unexpected and brutal action had been grossly disproportionate and gratuitous, taken with the aim of crushing the protest movement, punishing the prisoners for their peaceful hunger strike and nipping in the bud any intention of their raising complaints. It must have caused severe pain and suffering and, even though it had not apparently resulted in any long-term damage to their health, could only be described as torture. The Court also held that there had been a violation of Article 3 of the Convention under its procedural limb, as the investigation into the applicants’ allegations of ill-treatment had not been thorough or independent, had failed to comply with the requirement of promptness and had lacked public scrutiny. Lastly, the Court found a violation of Article 1 (protection of property) of Protocol No. 1 to the Convention on account of a failure by the prison administration to return the applicants’ personal belongings.