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DVOYNYKH v. UKRAINE - 72277/01 [2006] ECHR 858 (12 October 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/858.html
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[2006] ECHR 858
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FIFTH SECTION
CASE OF DVOYNYKH v. UKRAINE
(Application no. 72277/01)
JUDGMENT
STRASBOURG
12 October 2006
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Dvoynykh v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Mr P. Lorenzen,
President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R.
Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having deliberated in private on 18 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 72277/01)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Ukrainian national, Mr
Nikolay Aleksandrovich Dvoynykh (“the applicant”), on 25
January 2001.
The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Y. Zaytsev.
On 3 May 2005 the Court declared the application
partly inadmissible and decided to communicate the applicant's
complaints under Articles 3 and 13 of the Convention to the
Government. Under the provisions of Article 29 § 3
of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
On 1 April 2006 this case was assigned to the newly
constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
The applicant was born in 1947 and lives in Simferopol.
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's detention from 19 June 1999
until 9 February 2000
On 19 June 1999 the applicant was arrested on
suspicion of theft and abuse of power.
On 23 June 1999 the applicant was placed in the
Simferopol Temporary Detention Centre No. 15 (the “Simferopol
SIZO”).
On 9 February 2000 the applicant was released
on bail subject to an undertaking not to abscond. According to the
applicant, he was released because of his poor state of health.
On 21 February 2000 the applicant was
hospitalised. He was found to suffer from second degree hypertension,
hyperpiesia, and other vascular diseases, and underwent medical
treatment until 3 March 2000.
B. The applicant's detention from 23 March until
1 December 2000, his state of health and medical treatment
On 23 March 2000 the prosecutors decided to
arrest the applicant on the same charges of theft and abuse of power.
On 24 March 2000 the applicant was placed in the Simferopol
SIZO.
On the latter day the applicant was examined by a
paramedic, a general practitioner and a dermatologist, who all noted
in the medical records, submitted by the Government, that the
applicant did not have complaints about his state of health. The
paramedic noted that the applicant suffered from coronary heart
disease and that he had to be further examined by a doctor. The
general practitioner noted that the applicant suffered from coronary
heart disease and angina of effort. The dermatologist noted that the
applicant was healthy.
According to the same records, on 20 September 2000
the applicant was further examined by a general practitioner and a
dermatologist. They both noted that the applicant did not have
complaints about his state of health. On 24 March, 24 September,
and 27 November 2000 the applicant underwent three X-ray
examinations, none of which revealed any pathological changes in his
heart or lungs.
In his letter of 29 March 2000, the applicant
requested the President of the Zaliznodorozhnyy District Court of
Simferopol to release him on bail, alleging unlawfulness of his
detention. The applicant maintained that he suffered from vascular
diseases, stomach ulcer, and adenoma of
the prostate, and that he required urgent medical treatment, which he
could not receive in the Simferopol SIZO. On 17 April, 15 May
2000 the applicant made similar submissions to the General Prosecutor
of Ukraine and the President of the Tsentralnyy District Court of
Simferopol, respectively.
On 30 March 2000 the applicant's lawyer
challenged before the Zaliznodorozhnyy District Court the decision of
23 March 2000. On 28 April 2000 the court refused to
consider the lawyer's complaint on the ground that the criminal case
against the applicant had been submitted to the Tsentralnyy District
Court for consideration. The Zaliznodorozhnyy District Court further
held that its decision was final and was not subject to appeal.
According to the Government, on 27 November 2000
the applicant requested medical aid and was immediately examined by a
doctor, who found that the applicant suffered from a severe
respiratory tract infection. The applicant received the necessary
treatment, so that on 29 November 2000 the medical
examination did not reveal any symptoms of such illness.
On 1 December 2000 the applicant was
released from the Simferopol SIZO.
On 13 February 2002 the applicant was placed in a
hospital, where he underwent an abdominal surgery. According to
the medical records of 2003, submitted by the applicant, he
suffered from several vascular and stomach diseases.
C. The conditions of the applicant's detention from
23 March until 1 December 2000
1. The applicant's submissions on the facts
The applicant stated that he had been detained in the
cells of around 14 square metres, which had been occupied by
16-17 inmates at the same time, some of whom had suffered from
tuberculosis and AIDS. The applicant had had to take turns to sleep
because there had been not enough beds. The natural light or fresh
air virtually did not go through because of the shutters on the
windows and the windows' size, while the electric light was very poor
and it was on all the time. The cells were dirty and infested with
pests, cockroaches and bedbugs. There was no access to hot water in
the cells and cold water did not reach the cells higher than those on
the forth floor. There was no heating in the cells.
The applicant maintained that he had had daily walks
which were limited to 35-40 minutes outside in an area not larger
than a cell. The area was not protected from direct sunlight. The
applicant also stated that he had not been able to purchase medicines
or enough food from outside of the SIZO, while the quality of food
provided in the SIZO had been unsatisfactory.
The applicant
further maintained that he had spent several hours in the special
cells for detainees in transit, which measured 12 square meters,
together with around 54 other persons, the majority of whom had been
smoking. These cells were deprived of natural light and fresh
air.
2. The Government's submissions on the facts
The Government submitted that from 24 March until
6 April 2000 the applicant was detained together with 7-9
other detainees in the cell no. 78, which measured 12
square metres; from 6 April until 5 May 2000 –
in the cell no. 159 of 18.1 square meters together with 8-12 other
detainees; and from 10 July until 29 August 2000 – in
the cell no. 79 of 44 square meters occupied by 20 persons. The
Government acknowledged the problem of overcrowding in the Simferopol
SIZO at the material time. They however maintained that the cells
were equipped with the necessary number of beds, lavatories, tables,
chairs, electric light, etc. There were windows which allowed access
of daylight and fresh air. In general, the conditions of the
applicant's detention corresponded to the relevant hygiene and
sanitation standards. The Government submitted photographs of several
cells in the Simferopol SIZO which had been taken in July 2004.
The Government further maintained that the applicant
had had daily walks for one hour and an eight hours' non-stop sleep a
day.
D. The applicant's trial and conviction
On 14 July 2000 the Tsentralnyy District Court of
Simferopol found the applicant guilty of aggravated theft and abuse
of power, and sentenced him to four years' imprisonment under a
special high security regime (“посиленого
режиму”). The court
also ordered confiscation of the applicant's property and deprived
him of the right to occupy positions involving administrative
functions for three years.
On 29 August 2000 the Supreme Court of the
Autonomous Republic Crimea upheld the decision of 14 July 2000.
On the same day the Governor of the Simferopol SIZO,
upon the applicant's motion, allowed him to work as an employee at
the maintenance department of the Simferopol SIZO, while serving his
sentence. According to the records submitted by the Government, the
applicant's entire remuneration for his work at the Simferopol SIZO
had been used to cover his expenses for food and other everyday
necessities.
On an unspecified date the President of the Supreme
Court of the Autonomous Republic Crimea lodged a request with the
Presidium of that court, seeking initiation of supervisory review of
the case.
On 1 December 2000 the Presidium allowed the
request and partly changed the decisions of 14 July and
29 August 2000. It found the applicant guilty of abuse of power
and sentenced him to three years' imprisonment. The Presidium also
deprived him of the right to occupy positions involving
administrative functions for three years. It further released the
applicant from serving his prison sentence on the ground that he
suffered from vascular diseases and that he was not dangerous to the
society.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
Under Article 8 §§ 2 and 3, the Constitution
is directly applicable. There is a guaranteed right to lodge an
action in defence of the constitutional rights and freedoms of the
individual and of the citizen directly on the basis of the
Constitution of Ukraine.
Under Article 55 §§ 2 and 4, everyone is
guaranteed the right to challenge the decisions, actions or omissions
of the State authorities, local self-government bodies,
officials and officers of a court of law. After exhausting all
domestic legal remedies everyone has the right to appeal for the
protection of his rights and freedoms to the relevant international
judicial institutions or to the relevant authorities of international
organisations of which Ukraine is a member or participant.
Article 63 § 3 provides that a convicted person
enjoys all human and citizens' rights, subject only to
restrictions determined by law and established by a court ruling.
B. Pre-Trial Detention Act 1993 (“the Act”)
(as worded at the material time
(from 19 June 1999 until 1 December 2000))
According to Article 1 of the Act, pre-trial detention
is a preventive measure in respect of an accused, a defendant or a
person suspected of having committed a crime punishable with
imprisonment, or a convicted person whose sentence has not yet become
final. Such detention shall be in compliance with the Constitution,
Universal Declaration of Human Rights, other international norms and
standards of treatment of detainees.
Under Article 4, convicted persons, upon their written
motion, may be granted leave to stay in a temporary detention centre
in order to carry out logistics related work.
Article 7 provides inter alia that persons
placed in detention shall be searched, medically checked, and
photographed. Their fingerprints must be taken. They shall be
informed about their rights and obligations, as well as about the
requirements of the detention regime. Detainees' personal belongings
and correspondence must be checked. They are not allowed to keep
money or valuables. The money shall be transferred to their bank
accounts, while their valuables shall be deposited in the detention
centre.
Pursuant to Article 9, detainees have the
following rights:
to be
defended in accordance with the rules of criminal procedure law;
to
familiarize themselves with the rules of detention;
to take
a one-hour daily walk;
to
receive twice a month a parcel weighing up to eight kilograms and to
receive unlimited money transfers and amounts of money by way
of remittance or personal delivery;
to buy
foodstuffs and toiletries to the value of one month's statutory
minimum wage, paying by written order, as well as unlimited amounts
of stationery, newspapers and books;
to use
their own clothing and footwear and to keep documents and notes
related to their criminal cases;
to use
TV sets received from relatives or other persons and board games,
newspapers and books borrowed from the library of the detention
centre and bought at shops;
to
perform individually religious rituals and use religious literature
and objects made of semi-precious materials pertaining to their
beliefs, provided that this neither leads to a breach of the
internal rules of the detention centre nor restricts the rights of
other persons;
to
sleep eight hours a night, during which they shall not be required
to participate in proceedings or to do anything else, except in
cases of extreme emergency;
to
lodge complaints and petitions and send letters to the State
authorities and officials in accordance with the procedure
prescribed by section 13 of the Act.
Under Article 11, detainees shall be provided with
everyday conditions that meet sanitary and hygiene requirements. The
cell area for one person may not be less than 2.5 square
metres. Detainees are to be supplied with meals, individual
sleeping-places, bedclothes and other types of everyday provisions
free of charge and according to the norms laid down by the Cabinet of
Ministers of Ukraine. In case of need, detainees shall be supplied
with clothes and footwear of a standard form. There shall be medical
assistance and preventive treatment organised in accordance with the
health care legislation and the rules developed by the State
Department of Penitentiary, the Security Service, and the Ministry of
Health.
Article 17 provides that detainees, upon their
consent, may be engaged in work, which shall be remunerated in
accordance with the wages existing in public economy. There may be
contributions made in respect of writs of execution out of the
detainees' earnings. Detainees may also be engaged, for no longer
than two hours a day and when they do not take part in the
investigative proceedings, in a non-remunerated work necessary for
maintaining proper conditions of their detention.
Under Article 22, the prosecutors shall supervise
observance of laws in detention facilities. The administration of the
detention centres must comply with the resolutions and instructions
issued by the prosecutors in respect of conditions of detention.
C. Correctional Labour Code of 1970 (“the Code”)
(as worded at the material time
(from 19 June 1999 until 1 December 2000))
According to Article 24, persons sentenced to up to
five years' imprisonment may, in exceptional cases and upon their
written motion, stay in a temporary detention centre in order to
carry out logistics related work.
III. 2000 REPORT OF THE EUROPEAN COMMITTEE FOR THE
PREVENTION OF TORTURE AND INHUMAN AND DEGRADING TREATMENT AND
PUNISHMENT (“THE CPT”)
The visit of the CPT delegation to Ukraine took place
from 10 to 26 September 2000, in the course of which the
delegation inspected inter alia the Temporary Detention Centre
No. 15 in Simferopol. The CPT recorded “situations of
grave concern in terms of conditions of detention” and those at
the Simferopol SIZO were “particularly telling”. It was
noted that substantial overcrowding was one of the major deficiencies
at the SIZOs. The CPT stressed that the Ukrainian authorities should
“increase the current standard of 2.5 m² of living space
per prisoner to at least 4 m²” (paragraph 59).
The relevant parts of the CPT report read as follows
(emphasis added by the CPT):
“86. Simferopol SIZO No. 15, located
within the town, was built at the beginning of the 19th
century, and had a capacity of 2,200 persons in 210 cells. At the
time of the visit, it accommodated some 2,500 persons, of which 177
women and 155 minors. While the majority of the prison population was
on remand, there were some 600 sentenced prisoners, including 30
sentenced to life imprisonment.
Prisoners were held in two blocks, one dating back to
the early 19th century and the other of more recent design, built in
1973.
87. The detention areas reserved for women
and juveniles (both male and female) offered the best material
conditions, in terms of natural light, artificial lighting,
cleanliness and furniture. In particular, the CPT welcomes the
fact that the shutters covering the cell windows had been removed
shortly before the visit, thereby providing not only adequate access
to natural light, but also much better ventilation.
Major deficiencies nevertheless remained. In
particular, the occupancy rate was excessive in many cells (for
example, up to 9 women in an area of 16 m², 24 in an area of
about 35 m²) and, in addition, not all women had their own beds.
88. The remainder of the prison population
(adult men, most of them on remand) were subjected to appalling
material conditions. These inmates were crammed into severely
overcrowded dormitories (for example, up to 22 prisoners in an area
of 18 m² and up to 32 in an area of 26 m²), with
virtually no natural light, often poor artificial lighting and
inefficient ventilation. The air was so stifling that most of
the inmates remained in their underclothes. Furthermore, the
establishment was unable to provide each prisoner with a bed;
consequently, in many dormitories, inmates had to take turns to
sleep.
While some dormitories had been freshly painted, many
others were dirty and infested with cockroaches and other vermin.
In-cell toilets (as a rule only partially partitioned) were in an
extremely poor state.
89. The adult men had also greater difficulty
maintaining satisfactory personal hygiene, since basic products were
severely rationed (for example, only 80 g of soap per month as
against 200 g for women and 400 g for minors). Further, they
were not issued with toilet paper, which was restricted to women and
minors. In practice, they were largely dependent on their
families in this respect.
In addition, as at Boutcha, arrangements for cleaning
clothes were unsatisfactory: all prisoners were compelled to wash
them in cold water in their cells.
90. As regards activities, efforts
were made to offer minors some educational activities (secondary
education), particularly with the aid of local authorities, which
provided school textbooks and volunteer teachers who visited the SIZO
in their free time. Further, the staff assigned to minors
performed work of a social nature with them, which included teaching
them behavioural norms and the rules of day-to-day living.
Apart from this, minors had no other form of organised purposeful
activities (such as sporting and cultural activities).
The rest of the prison population had no real form of
organised activities. Apart from a hundred or so inmates
assigned to prison chores, prisoners had no work or sporting or
recreational activities. In practice, the only time they spent
out of their cells was for an hour's open air exercise per day, taken
under conditions which did not allow real exercise (the exercise
areas ranged from 10 m² to a maximum of 25 m²).
91. To sum up, the majority of prisoners were
locked up for almost the whole of the day in severely overcrowded and
insalubrious cells, without being offered any activities worthy of
the name. Under such conditions, to be incarcerated in Simferopol
SIZO No. 15 could only be a stultifying experience.
92. Lasting improvements to the situation at
SIZO No. 15 will inevitably take time. This will very largely depend
on a substantial reduction of overcrowding. Once more, the
delegation's findings demonstrate the importance and urgency of
implementing the recommendation made in paragraph 59 above.
Nevertheless, measures can and must be taken without
delay to palliate certain of the most serious deficiencies observed.
93. As regards material conditions, the CPT
recommends that steps be taken:
- to provide all inmates (men and women) with
adequate amounts of personal hygiene products and cleaning products
for their dormitories, and adequate facilities for cleaning their
clothes;
- to ensure that each inmate has a bed or
sleeping place;
- to ensure that material conditions
throughout both detention blocks reach the standards prevailing in
the women's and minors' sections as soon as possible, in terms of
natural light (by removing the shutters on the windows), artificial
lighting, ventilation and cleanliness.
As regards activities, the CPT recommends that high
priority be given to the development of activity programmes for
minors to enable them to enjoy a full programme of educational,
recreational and other purposeful activities designed to bring out
their potential for social (re)integration; physical education should
constitute an important part of that programme.
As regards adult inmates, the CPT recommends that ways
of providing them with a minimum of recreational and sporting
activities be explored as of now. It is axiomatic that as
overcrowding is reduced, fuller programmes of activities must be
introduced. In this regard, the CPT draws attention to the
long-term objectives for activities set out in paragraphs 130 and 33
respectively of the reports on the 1998 and 1999 visits, which apply
to all the SIZO's in the country.
Lastly, the CPT recommends that the design of the
exercise yards be reviewed with a view to enlarging them.”
As regards medical assistance offered to detainees at
the Simferopol SIZO, the CPT found as follows:
“104. The 2000 visit again highlighted
the extreme inadequacy of the arrangements for the supply of
appropriate medicines (for example, Colony No. 52 had no
medicines in stock at the time of the visit, while SIZO No. 15 did
not have a sufficient amount or variety of medicines and none for the
treatment of tuberculosis). Despite the contributions made by
the Department for the Execution of Sentences out of its own budget,
prisons depended mainly on the humanitarian aid they could secure and
on prisoners' families.
As the CPT has repeatedly emphasised, this solution is
not satisfactory, and is intolerable where the treatment of certain
diseases such as tuberculosis is concerned. The Committee must
point out yet again that it is the responsibility of the State to
ensure that, irrespective of the prevailing economic circumstances,
persons in its custody have access to basic elements of health-care,
including the medicines required by their state of health...
106. Simferopol SIZO No. 15 had
provision for 10 full-time medical doctors (general practitioners and
specialists in pneumology, psychiatry, gynaecology and dermatology,
as well as a dentist). However, one general practitioner post was
vacant. Moreover, the gynaecologist was an outside consultant and
many women had no access to this specialist because they were unable
to pay for the consultations. Such a situation is not
acceptable. As regards feldshers, there were 12 posts, of which
only 8 were filled.
Such a team can hardly be deemed sufficient to provide
adequate health-care to 2500 prisoners, in particular as regards the
number of feldshers. The CPT recommends that the vacant doctor's
and feldshers' posts be filled as soon as possible, and that the
question of women's access to gynaecological care be immediately
reviewed.
The examination/consultation rooms were modestly
equipped, but clean. As regards the supply of medicines, reference
should be made to the recommendation in paragraph 104...
108. Medical screening of newly arrived
prisoners was inadequate in several of the establishments visited.
It was a perfunctory medical check confined, at best, to weighing the
prisoner and measuring his blood pressure; moreover, at the
Simferopol SIZO, this task was left to the feldsher alone, who
consulted a doctor only if this was expressly requested by the
prisoner.
Every newly-arrived prisoner should be properly
interviewed and physically examined by a medical doctor as soon as
possible after his/her arrival; save for in exceptional circumstances
that interview/examination should be carried out on the day of
admission, especially in so far as remand establishments are
concerned. Such medical screening on admission could also be
performed by a feldsher reporting to the doctor. The CPT
recommends that steps be taken to ensure that this is the case in all
penitentiary establishments.
109. As regards the recording of injuries
observed on prisoners, reference should be made to the
recommendations made in paragraph 26 above and in paragraph 151 of
the report on its 1998 visit.
110. In at least two of the establishments
visited (Simferopol SIZO and Colony No. 52), neither the
medical examinations on arrival nor those performed during detention
were confidential, since prison staff attended the consultations.
The CPT recommends that all medical examinations of prisoners
(whether on arrival or at a later stage and irrespective of the
category of prisoner) be conducted out of hearing and - unless the
doctor concerned requests otherwise in a particular case - out
of the sight of prison officers; the same rule should apply during
treatment provided to prisoners.
The 2000 Report also contains the findings of the CPT
concerning the conditions in which detainees were being transferred
from one place of detention to another:
“129. Concerning road transport
of prisoners, the delegation inspected two Internal Affairs Ministry
vans in Simferopol SIZO. Each vehicle had collective compartments and
an individual compartment. The individual compartments were as
small as 0.5 m²; in paragraph 189 of the report on its 1998
visit, the CPT has already recommended that the practice of placing
prisoners in compartments of this size cease. Conditions in the
vehicle were also similar in other respects to those described in the
aforementioned paragraph of the report on the 1998 visit (poor
artificial lighting, inadequate ventilation).
130. Concerning rail transport, the
delegation examined the facilities in one of the special carriages
used for transporting prisoners. It had compartments measuring
2 and 3.5 m², with folding benches. The authorised
capacity in the smaller compartments was six persons for journeys
lasting not more than four hours, and four persons for longer
journeys. In the larger 3.5 m² compartments, up to sixteen
persons could be accommodated for short distances and twelve for long
distances. The compartments had some access to natural light;
however, ventilation was poor. The toilets for prisoners were in a
disgusting state, clogged with excrement, despite the fact that
prisoners were due to board a few minutes later for a long journey.
There were no arrangements to provide prisoners with
food, even over long distances; as for drinking water, only a small
container was provided to supply the prisoners throughout the
journey.
131. The manner in which prisoners are
transported, particularly by train, is unacceptable, having regard
inter alia to the material conditions and possible duration of
travel.
The CPT recommends that conditions of prisoners'
transport in Ukraine be reviewed in the light of the foregoing
remarks. As an immediate measure, it recommends that the Ukrainian
authorities take steps to:
- significantly reduce
the maximum number of prisoners per compartment in a railway
carriage: 3.5 m² compartments should never contain more than six
persons, and 2 m² compartments never more than three persons;
- ensure that during
rail transport, prisoners are supplied with drinking water and that
for long journeys, the necessary arrangements are made for them to be
properly fed;
- no longer use 0.5 m²
compartments in vans for transporting prisoners.”
THE LAW
I. ADMISSIBILITY
The applicant complained that he had been subjected to
inhuman and degrading treatment while he had been detained. In
particular, he alleged that the conditions of his detention in the
Simferopol SIZO had been debasing with regard to the
size of the cell in which he had been detained, the number of
persons in the cell, the bedding and conditions of hygiene,
sanitation and ventilation, nutrition, outdoor daily walks, and
access to natural light and air. He
further alleged that he had not received the necessary medical
treatment and assistance for his diseases, and that he had been
forced to work for more than 12 hours a day, for which he had not
been paid. The applicant finally
alleged that he did not have at his disposal an effective
domestic remedy for his Convention complaint about his conditions of
detention, as required by Article 13 of the Convention. He invoked in
substance Articles 3 and 13 of the Convention, which provide as
follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“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.”
The Court notes that the above complaints concern two
periods of time, during which the applicant was detained. The first
period commenced on 19 June 1999 and ended on
9 February 2000, while the second took place from 23 March
until 1 December 2000. Thus, the complaints concerning the
above periods of detention should be examined separately.
A. The applicant's detention from 19 June 1999
until 9 February 2000
The Government submitted that the applicant's
complaint about the first period of his detention had been introduced
too late. They therefore proposed that this part of the application
be declared inadmissible.
The Court recalls that, in cases where there is a
continuing situation and it is clear from the outset that no
effective remedy is available to the applicant, the six-month period
runs from the cessation of the situation (see Antonenkov and
Others v. Ukraine, no. 14183/02, § 32, 22 November 2005
and Koval v. Ukraine (dec.), no. 65550/01, 30 March
2004). The Court observes that the first period of the applicant's
detention ended on 9 February 2000 and thus more than six
months before the date on which the application was submitted to the
Court (25 January 2001). The Court further observes that the parties
did not suggest that there was an effective remedy available to the
applicant in respect of this part of the application. Accordingly, it
has been submitted too late and must be rejected pursuant to Article
35 §§ 1 and 4 of the Convention.
B. The applicant's detention from 23 March until
1 December 2000, his state of health and medical treatment
The Court notes that there are three distinguishable
aspects of this part of the application, the admissibility of which
should be examined separately. The first part concerns the conditions
of the applicant's detention and the alleged absence of effective
domestic remedies, the second concerns the allegations of inadequate
medical care, while the third relates to the conditions of his labour
in detention.
(a) Conditions of the applicant's
detention
The Government considered that the applicant had
failed to exhaust the domestic remedies available to him under
Ukrainian law before lodging his application with the Court. In
particular, they noted that the applicant had not applied to the
domestic courts in order to challenge the conditions of his detention
and to receive compensation for pecuniary or non-pecuniary damage.
The applicant disagreed.
The Court considers that, in the light of its findings
in similar cases, the applicant's complaint under Article 3 of
the Convention about the conditions of his detention cannot be
rejected for failure to exhaust domestic remedies (see, for instance,
Melnik v. Ukraine, no. 72286/01, §§ 70-71,
28 March 2006). No other ground for declaring this complaint
inadmissible has been established. Therefore, it raises serious
issues of fact and law under the Convention, the determination of
which requires an examination of the merits.
In these circumstances, the applicant's complaints
under Article 13 of the Convention about the absence of
effective domestic remedies in this respect must likewise be examined
on the merits.
(b) Medical treatment and assistance to
the applicant and conditions of his labour in detention
As regards the applicant's complaint that he had not
received adequate medical assistance in detention, the Government
contended that this complaint was groundless. In particular, the
Government submitted that the applicant's state of health had been
satisfactory. He was examined by doctors on the day of his arrival at
the SIZO, his original diagnose, coronary heart disease,
was confirmed, and the applicant was recommended to undergo a
preventive treatment course in case his health declined. The
applicant requested medical assistance only once. He was immediately
examined by a doctor and received appropriate medical treatment,
following which he recovered (see paragraph 15 above). There was no
other request or complaint from the applicant about his state of
health during his detention.
The Government further maintained that the applicant
had not been subjected to twelve hours' forced labour, as he had been
allowed to work upon his own request.
The applicant contested
the Government's submissions. In particular, he contended that
the medical records provided by the Government had been forged. He
also noted that he had not suffered from coronary heart disease
when he had been admitted to the Simferopol SIZO.
The Court observes that the applicant does not contest
that he was examined by two doctors and a paramedic on the day of his
admission to the Simferopol SIZO. Six months later he was further
examined by a general practitioner and a dermatologist. The
applicant did not complain to the doctors, examining him, about his
state of health, while the latter did not find that the applicant was
required to undergo any medical treatment. The Court also observes
that when the applicant contracted a respiratory tract infection he
was successfully treated by a doctor.
Furthermore, the Court notes that the applicant did
not request any medical assistance upon his release in December 2000.
The fact that he underwent an abdominal surgery more than a year
after his release cannot of itself lead to the conclusion that the
applicant had suffered from stomach ulcer or that he had required
medical treatment in this respect in detention. In the absence of
proof to the contrary, the Court assumes that the applicant received
adequate and timely medical treatment and assistance in the
Simferopol SIZO, and that there is no appearance of a violation of
Article 3.
The Court further notes that the applicant provided
insufficient substantiation in respect of his allegations that he had
been forced to work 12 hours a day in detention without
remuneration.
The Court therefore concludes that the applicant's
complaints concerning inadequate medical care and conditions of his
labour in detention must be rejected as manifestly ill-founded
pursuant to Article 35 §§ 3 and 4 of the
Convention.
II. MERITS
A. Alleged violation of Article 3 of the
Convention
The Government noted that, after the applicant's
conviction had become final (see paragraph 24 above), he had had to
be transferred to a corrective labour colony with a special high
security regime to serve his sentence there. However, the Governor of
the Simferopol SIZO allowed the applicant's request to stay in the
SIZO and to work as an employee at the maintenance department, while
serving his sentence. The Government therefore suggested that the
conditions of the applicant's detention in the Simferopol SIZO could
not have been humiliating or degrading, as he had voluntarily agreed
to stay there.
The applicant disagreed. In particular, he stated that
he had requested the Governor of the Simferopol SIZO not to transfer
him to the place where he had had to serve his sentence, as he had
feared that he would have been subjected to the above conditions of
transfer of detainees. Furthermore, the applicant preferred to remain
detained in his native town where he was closer to his relatives.
The applicant
complained that due to the conditions of his detention he suffered
from stomach ulcer, adenoma of
the prostate, haemorrhoid, vascular diseases, sight impairment, and
insomnia. He maintained that he had had to undergo an
abdominal surgery in 2002.
The Court recalls that, according to its case-law,
ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3 of the Convention. The
assessment of this minimum level of severity is relative; it depends
on all the circumstances of the case, such as the duration of the
treatment, its physical and mental effects and, in some cases, the
sex, age and state of health of the victim (see, among other
authorities, Ireland v. the United Kingdom, judgment of
18 January 1978, Series A no. 25, p. 65, § 162).
Furthermore, in considering whether treatment is “degrading”
within the meaning of Article 3, the Court will have regard to
whether its object is to humiliate and debase the person concerned
and whether, as far as the consequences are concerned, it adversely
affected his or her personality in a manner incompatible with
Article 3. Even the absence of such a purpose cannot conclusively
rule out a finding of a violation of this provision (see Peers
v. Greece, no. 28524/95, §§ 67-68 and 74,
ECHR 2001-III; and Valašinas v. Lithuania,
no. 44558/98, § 101, ECHR 2001-VIII).
The Court has 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
this provision the State must ensure that a person is detained under
conditions which are compatible with respect for his human dignity,
that the manner and method of the execution of the measure do not
subject him to such distress or hardship exceeding the unavoidable
level of suffering inherent in detention and that, given the
practical demands of imprisonment, his health and well-being are
adequately secured (see Kudła v. Poland [GC], no.
30210/96, §§ 92-94, ECHR 2000-XI).
Turning to the facts of the present case, the Court
notes that some of the applicant's allegations concerning the
conditions of his detention, in particular, those about overcrowded
cells, the bedding and conditions of hygiene, sanitation and
ventilation, outdoor daily walks, access to natural light and air,
are supported by the findings made by the CPT following its visit to
the Simferopol SIZO in September 2000, when the applicant was serving
his sentence there. The Court further notes that the Government's
observations, apart from those which concern the size of cells and
the applicant's daily walks, are expressed in general terms and are
not supported by any evidence. In these circumstances, the Court
considers that the findings of the CPT provide at least to some
degree a reliable basis for the assessment of the conditions of the
applicant's detention between March and December 2000 (see Iovchev
v. Bulgaria, no. 41211/98, § 130, 2 February
2006).
The Court further notes that the Government submitted
photographs of some of the cells in the Simferopol SIZO, which had
been taken some four years after the applicant's release. The Court
therefore considers that these photographs have no relevance to the
present case and that it is not necessary to examine them.
Although the Government contested the applicant's
submissions with regard to the size of the cells, the figures
provided by the Government suggest that that any given time there was
1.3-2.25 square meters of space per inmate in the applicant's cells.
Thus, in the Court's view, the cells were continuously, severely
overcrowded. This state of affairs in itself raises an issue under
Article 3 of the Convention (see Kalashnikov v. Russia,
no. 47095/99, § 97, ECHR 2002 VI).
This situation was aggravated by the fact that the
applicant was confined to overcrowded cells for around 23 hours a day
in the absence of adequate ventilation and natural light. The Court
also notes that the applicant had to take turns to sleep and was not
provided with adequate amounts of personal hygiene products and
cleaning products. Taking the aforementioned factors into account,
the Court considers that the applicant's conditions of detention for
more than eight months must have caused him considerable mental and
physical suffering, diminishing his human dignity and arousing in him
such feelings as to cause humiliation and debasement.
The Court does not share the Government's view that
the applicant's choice to remain in the Simferopol SIZO could witness
that he was detained in satisfactory conditions. The Court considers
that, having regard to the findings of the CPT concerning the
conditions in which detainees were being transferred from one place
of detention to another, the applicant's deliberate request to stay
in the Simferopol SIZO may be reasonably explained by his fears that
he could have been subjected to worse conditions of detention during
his transfer to another detention facility. Furthermore, the SIZO was
in the same city, in which the applicant's relatives resided.
Thus, in the light of the Court's findings as to
overcrowding, unsatisfactory conditions of hygiene and sanitation,
and lack of natural light and air (see paragraphs 66-67 above), the
Court concludes that the conditions of the applicant's detention in
the Simferopol SIZO amounted to degrading treatment. Accordingly,
there has been a violation of Article 3 of the Convention.
B. Alleged violation of Article 13 of the Convention
The Government contended that the applicant had had
effective channels of complaint on the same basis that they had
argued that the applicant had not exhausted domestic remedies in
respect of his complaints under Article 3 of the Convention.
The applicant objected to this view.
The Court refers to its findings (at paragraph 50
above) in the present case concerning the Government's argument
regarding domestic remedies. For the same reasons, the Court
concludes that the applicant did not have an effective domestic
remedy, as required by Article 13 of the Convention, to redress the
damage caused by the conditions of his detention. Accordingly, there
has been a breach of this provision.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed EUR 109,000 in respect of
pecuniary damage, based on the cost of his medical expenses and loss
of salary. He also claimed EUR 75,000 in compensation for
non-pecuniary damage.
The Government disagreed, stating that the claims were
unsubstantiated and exorbitant. The Government further requested the
Court to determine the amount of compensation in respect of
non-pecuniary damage on an equitable basis.
The Court, having regard to its findings concerning
the applicant's complaints under Articles 3 and 13 of the Convention,
considers that no causal link has been established between the damage
alleged and the violations it has found (see Kalashnikov,
cited above, § 139). It therefore rejects the applicant's claim
for pecuniary damage.
As to non-pecuniary damage, having regard to its
case-law in comparable cases and making its assessment on an
equitable basis, the Court awards the applicant EUR 2,000 under
this head.
B. Costs and expenses
The applicant also claimed EUR 1,000, which
included the cost of correspondence, translations, and legal advice.
The Government contested this claim.
According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of
EUR 100 for costs and expenses in the proceedings before the
Court.
C. Default interest
The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the applicant's complaints about the
conditions of his detention from 23 March until 1 December 2000 and
the absence of effective domestic remedies admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
3 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention,
the following sums, to be converted into the national currency of the
respondent State at the rate applicable on the date of payment:
(i) EUR 2,000 (two thousand euros) in respect of
non-pecuniary damage;
(ii) EUR 100 (one hundred euros) for costs and expenses;
(iii) plus any tax that may be chargeable on the above
amounts;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 October 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
