FIFTH SECTION

CASE OF MALENKO v. UKRAINE

(Application no. 18660/03)

JUDGMENT

STRASBOURG

19 February 2009

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 ,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

and ClaudiaWesterdiekSection Registrar,
Having deliberated in private on 27 January 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 18660/03) 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 Valeriy Vladimirovich Malenko (“the applicant”), on 22 May 2003.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  The applicant complained under Article 3 of the Convention that the conditions of his detention amounted to inhuman and degrading treatment.
4.  On 22 May 2007 the Court declared the application partly inadmissible and decided to communicate the above complaint to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1961. Before his detention he lived in Mariupol. In May 1997 the applicant was recognised as falling into the second category of invalidity (the medium level) because of a spine disease. In November 1998 his invalidity was reclassified as being of the third category (mildest level).
6.  On 16 April 1999 the applicant was detained on suspicion of murder. He was placed in the Mariupol Pre-trial Detention Centre (hereinafter “the Mariupol SIZO”).
7.  In the period between 16 May and 5 June 1999 the applicant was kept in the Donetsk Pre-trial Detention Centre. On 5 June 1999 the applicant was returned to the Mariupol SIZO.
8.  On 17 June 2000, after the applicant's conviction, he was transferred to the Donetsk prison no. 124.
9.  On 22 July 2000 he was transferred to the Gdanovsk prison no. 3.
10.  On 15 December 2000 the applicant was returned to the Mariupol SIZO.
11.  On 21 February 2003, after the retrial of the applicant's case, upon which he was sentenced to imprisonment for a longer period, he was transferred to the Sokiryanska prison no. 67.
12.  On 6 January 2005 the applicant was transferred to the Dykanivska prison no. 12 where he is still serving his sentence.
A.  The applicant's submissions on the facts
13.  to the applicant, when he was held in the Mariupol SIZO the cell was constantly overcrowded, so that three persons occupied one bunk and had to take turns to sleep. The cell was not properly ventilated with fresh air and he did not have access to . The nutrition was insufficient. The medical care was inadequate in particular in view of the fact that in April 2000, in addition to his poor health, he contracted tuberculosis. He had not been provided with any medical treatment as regards his spine disease.
14.  The applicant alleged that during his detention in the Sokiryanska prison no. 67 he suffered from the poor medical care and food supply which was inappropriate in view of his health problems. The cell was always damp which had an additional negative impact on his health.
15.  As regards the Dykanivska prison no. 12, where the applicant is currently held, he states that the cell is lit by a wan electric lamp and dim daylight, restricted by glass blocks. This has led to the deterioration of his sight. However, despite his request to this effect, the applicant has not been examined by an ophthalmologist or provided with the necessary medical treatment. Moreover, despite the tuberculosis which he contracted in the Mariupol SIZO, for a year and a half he has not been provided with any medical care for this disease. In addition, his requests to receive the necessary medical treatment in respect of his spine disease have been ignored.
16.  The mandatory ventilation in his cell is not available and the window does not open because of metal bars attached to it. The lack of adequate ventilation is further aggravated by a general tolerance of  in the cells and outside during walks.
17.  The applicant is employed at the factory at the Dykanivska prison no. 12. He alleges that on his way to his working place and back he is strip searched in the presence of other inmates and in any season. He states that these searches are conducted in premises that are unequipped for this purpose.
18.  The applicant complained about the conditions of his detention to various State authorities. In particular the applicant complained to the State Department for Execution of Sentences claiming that the material conditions of his detention had been inappropriate and that due to his tuberculosis and spine diseases he required medical treatment and support. In his letter to the Commissioner for Human Rights of the Parliament of Ukraine the applicant complained, inter alia, that his requests to provide him with medical treatment had been constantly ignored by the relevant authorities. He further specified that due to his spine problem his right leg became less and less functional.
B.  The Government's submissions on the facts
1.  Conditions of detention
19.  The Government submitted that during the applicant's stay in the Mariupol SIZO he was kept in various cells with an average surface area of 19 m2 and usually equipped with 10 bunks. The Government did not specify the number of detainees kept there at the relevant time.
20.  According to the Government the cells of the pre-trial detention centres and the prisons, where the applicant stayed, were equipped with a sufficient number of bunks, tables and chairs. The windows of the cells were large enough to provide access to fresh air and daylight. The applicant has always been able to take a one-hour walk per day.
21.  The Government further maintained that when held in the prisons, the applicant was provided with at least 3 m2 of living space in the cell, an individual bunk and bedclothes. The nutrition was sufficient and complied with the domestic regulations.
2.  Medical treatment
22.  The Government submitted that during the applicant's time in the Mariupol SIZO and the prisons he was always offered adequate medical treatment in respect of his tuberculosis disease.
23.  In particular, on 9 December 1999 the applicant had been x-rayed for preventive purposes. In June 2000 the applicant was placed in the hospital of the Donetsk prison no. 124 where he was provided with a non-specific antibacterial pathogenesis therapy. However, in July 2000 the applicant was diagnosed with tuberculosis and transferred to the special tuberculosis hospital in the Gdanovsk prison no. 3.
24.  In December 2000 the applicant was released from the prison hospital with a diagnosis of tuberculosis and transferred to the Mariupol SIZO where he was provided with further anti-tuberculosis treatment. Since then the applicant has been regularly x-rayed and provided with adequate anti-tuberculosis treatment.
25.  In June 2007 the applicant was examined by the ophthalmologist and proper treatment was prescribed for him.
3.  Strip searches
26.  The Government did not submit any factual details in respect of the applicant's allegations about the strip search practice at the prison factory where he works.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  Constitution of 28 June 1996 and the Pre‑Trial Detention Act of 30 June 1993
27.  The relevant provisions of the Constitution of Ukraine and the Pre‑Trial Detention Act can be found in the judgment of October 2006 in the case of Dvoynykh v. Ukraine(no. 72277/01, §§ 28-31, 33-35 and 37).
B.  Combating Tuberculosis Act of 5 July 2001
28.  Section 17 of the Act provides that persons suffering from tuberculosis detained in pre-trial detention centres (SIZOs) must receive appropriate treatment in the medical units of these detention centres. Persons detained in prisonsshould be treated in specialist prison hospitals.
C.  Observance of human rights in preliminary detention facilities. Extracts from the reports of the Commissioner for Human Rights of the Parliament of Ukraine of 2001 (the first annual report) and 2002 (the second annual report)
29.  The relevant extracts from Chapters 4.4-4.5 of the first annual report provide as follows:
“...  The situation in investigation wards is perhaps the worst, [owing to] their overcrowding and abnormal conditions of custody. number of suspects in the cells of investigation wards far exceeds normal sanitary standards. By late December 1999 Ukraine's investigation wards had available space for 32,800 detainees, but in reality held 44,700.
The gravest situation was registered in the Autonomous Republic of Crimea where 1,439 detainees were in custody without sufficient space; in Donetsk and Kharkiv the same circumstances affected 1,300 detainees (in each city), 1,135 in Kryviy Rig, 1,000 in Luhansk, and 714 in Kyiv and Odessa (each). Thousands of detainees do not have personal bunks and are forced to take it in turns to sleep. This has been causing conflicts that are accompanied by injuries, physical reprisals, violence and other illegal actions. ...
The unsanitary conditions in pre-trial detention facilities contribute to the spread of epidemic and parasitic diseases, such as tuberculosis, pediculosis and dysentery. In 1999 they caused the death of detainees, or twice as many as in 1998. Inadequate nutrition is the cause of chronic gastro-intestinal disturbances and dystrophy.
In the pre-trial detention facilities the regime of detention for suspects whose guilt has yet to be established is much more severe than in prisons. In most cases the suspects are denied the opportunity to meet with relatives, to work and provide assistance to families; they are actually isolated from the outside world and have no access to the daily press and other mass media...”
30.  The second annual report of 2002 confirmed the first as regards the gross violations of the human rights of the detainees because of their conditions of detention, severe overcrowding, lack of adequate medical treatment and assistance, inadequate nourishment, and the inadequate financing of the needs of the pre-trial detention facilities. The poor hygienic and sanitary conditions of detention led to the spread of infectious diseases and in particular skin diseases. It mentioned for instance that in 1999 only 19.7% of the necessary food supplies were financed from the State budget (12.7% in 2000), and 6.7% of the medical supplies (12.7% in 2000). The average medical expenditure per person was UAH 18.7 in 2000 (compared to the required amount of UAH 220) and UAH 20.7 in 2001 (compared to the required amount of UAH 245.2).
III.  RELEVANT INTERNATIONAL MATERIAL
31.  The relevant extracts of the reports of the Committee for the Prevention of Torture can be found in the judgment in the case of Melnik v. Ukraine, (no. 72286/01, §§ 47-49).
32.  The relevant international reports and other materials concerning the treatment of tuberculosis in Ukraine are summarised in paragraphs 50-53 of the Melnik judgment, cited above.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
33.  The applicant complained that the conditions of his detention in the Mariupol SIZO, the Sokiryanska prison no. 67 and the Dykanivska prison no. 12 amounted to inhuman and degrading treatment and punishment. In particular, the applicant complained of overcrowding in cells and a lack of proper nutrition, ventilation and daylight. He further claimed that despite his serious diseases he had not been provided with appropriate medical treatment and assistance. The applicant lastly argued that the regular practice of strip searches in the factory at the Dykanivska prison no. 12, conducted in the presence of other detainees, degraded his dignity. The applicant relied on 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 parties' submissions
34.  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 that he had not raised the issue of the conditions of his detention with the prosecutor responsible for supervising prisons. They further maintained 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.
35.  The applicant disagreed.
2.  The Court's assessment
36.  As to the Government's objection to the admissibility of the application on account of the applicant's failure to complain to the competent prosecutor about the conditions of his detention, the Court finds that this remedy cannot be considered as effective and accessible for the purpose of Article 35 § 1 of the Convention (see Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004).
37.  As to the Government's reference to the fact that the applicant had not applied to the domestic courts in order to complain about the conditions of his detention, the Court observes that in several previous cases it has dismissed similar arguments, finding this remedy ineffective on the ground that the Government had not shown how recourse to such proceedings could have brought about an improvement in those conditions (see, for example, Khokhlich v. Ukraine, no. 41707/98, § 153, 29 April 2003; Melnik v. Ukraine, no. 72286/01, §§ 70-71, 28 March 2006; Dvoynykh v. Ukraine, no. 72277/01, § 50, 12 October 2006; and Yakovenko v. Ukraine, no. 15825/06, § 76, 25 October 2007). The Court can find no reason to hold otherwise in the present case.
38.  Moreover, the Court notes that it is not disputed that the doctors and administration of the Mariupol SIZO and the prisons were sufficiently aware of the applicant's conditions of detention. Besides, the applicant complained to the State authorities on this account (see paragraph 18 above). The authorities were thereby made sufficiently aware of the applicant's situation and had an opportunity to examine the conditions of his detention and, if appropriate, to offer redress (see Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001, and Melnik, cited above, § 70). Accordingly, the Court rejects the Government's objections.
39.  As regards the complaint about the practice of strip searches, the Court notes that the Government did not submit any specific objections in this respect (see Yordanov v. Bulgaria, no. 56856/00, § 76 10 August 2006, with further references).
40.  The Court further notes that the applicant's complaint about conditions of his detention in the Mariupol SIZO refers to three different periods which were interrupted by his detention in the other facilities (see paragraphs 6 – 11 above). Given that the applicant's detention in the Mariupol SIZO between 16 April and 16 May 1999 and between 5 June 1999 and 17 June 2000 was followed by post-conviction detention from 17 June 2000, and that more than six months elapsed from the end of the pre-trial detention on 17 June 2000 and the introduction of the application on 22 May 2003, this part of the complaint should be rejected for non-compliance with the six-month rule pursuant to Article 35 §§ 1 and 4 of the Convention.
41.  The Court notes that the remainder of the applicant's complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The parties' submissions
42.  The applicant argued that the material conditions of his detention were unsatisfactory. He further insisted that he had contracted tuberculosis while being detained in the Mariupol SIZO and had not been provided with the necessary medical treatment in respect of this serious disease. He also claimed that despite the fact that he had been recognised as an invalid on account of his spine disease, he had not been provided with any medical assistance in this regard. He also submitted that his eye disease had been ignored by the medical services at the prisons.
43.  The Government maintained that the applicant's conditions of detention could not be regarded as inhuman or degrading treatment and punishment. They emphasized that the material conditions were adequate and that the applicant had been provided with appropriate medical treatment on a regular basis.
2.  The Court's assessment
(a)  Preliminary considerations
44.  The Court notes that the applicant's complaint consists of three elements raising questions under Article 3 of the Convention:
(i) alleged inadequacy of material conditions of detention (overcrowding in prison cells, and lack of ventilation, daylight and proper nutrition);
(ii) alleged lack of medical treatment and assistance; and
(iii) alleged practice of strip searches in the prison factory.
45.  Accordingly, the Court will examine those elements in turn.
(b)  Material conditions of detention
(i)  General principles
46.  The Court observes 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,18 January 1978, § 162, eries A no. 25). 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 has 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).
47.  The Court has consistently stressed the suffering and humiliation involved must in any event go beyond that   of  or   with a   of   or . 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 in 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 distress or hardship of an intensity 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 Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002‑VI).
(ii)  Application in the present case
48.  The Court considers that in the present case the respondent Government alone had access to information capable of disproving the applicant's allegations. A failure on the Government's part to submit such information which is in their hands without a satisfactory explanation may give rise to the drawing of inferences as to the well-foundedness of the applicant's allegations (see, mutatis mutandis, Ahmet Özkanet and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).
49.  The Court observes that the Government submitted information as regards the total surface area of the cells in the Mariupol SIZO and the number of bunks in each one. They further asserted that the cells in pre-trial detention centres and prisons were equipped with a sufficient number of bunks, tables and chairs and that the applicant had been provided with at least 3 m2 of living space in the prisons.
50.  As regards the Mariupol SIZO, the Court notes that the Government did not provide any information as to the number of persons detained together with the applicant in the relevant cells, thus precluding an estimate of the living space per detainee.
51.  The Court further notes that the Government did not adduce before it any evidence in support of their assertion that the cells in the prisons were equipped with sufficient bunks and chairs and that the applicant did in fact have at least 3 m2 of living space. In any event, this area was clearly insufficient in view of the standards developed by the CPT (see paragraph 31 above). Neither did they prove in any manner that the ventilation, access to daylight and nutrition were adequate.
52.  Given such a considerable lack of information and evidence on the part of the Government, without any valid reason, the Court is inclined to give weight to the applicant's account of the facts as regards the applicant's material conditions of detention in the Mariupol SIZO, the Sokiryanska prison no. 67 and the Dykanivska prison no. 12. The Court further notes that the applicant's submissions in this connection are consistent and correspond in general to the relevant annual reports of the Commissioner of Human Rights of the Ukrainian Parliament (see paragraphs 29-30 above). Accordingly, considering the applicant's submissions on the whole, the Court concludes that the material conditions of his detention were unacceptable as regards the overcrowding in cells, lack of ventilation, access to daylight and nutrition. It further holds that such poor material conditions amounted to degrading treatment in breach of Article 3 of the Convention.
(c)  Medical treatment and assistance
(i)  General principles
53.  The Court notes that Article 3 imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty. The Court accepts that the medical assistance available in prison hospitals may not always be at the same level as in the best medical institutions for the general public. Nevertheless, the State must ensure that the health and well-being of detainees are adequately secured by, among other things, providing them with the requisite medical assistance (see [GC], no. 30210/96, § 94, ECHR 2000-XI; , 28 January 1994, Series A no. 280-A). Where the authorities decide to place and maintain in detention a person who is seriously ill, they should demonstrate special care in guaranteeing such  as correspond to his special needs resulting from his disability (see Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001‑VII, and Farbtuhs v. Latvia, cited above, § 56).
54.  The mere fact that a detainee was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept concerning the detainee's state of health and the treatment he underwent while in detention (see, for example, Khudobin v. Russia, no. 59696/00, § 83, ECHR 2006‑... (extracts)), that the diagnoses and care are prompt and accurate (see Hummatov v. Azerbaijan, cited above, § 115; Melnik v. Ukraine, no. 72286/01, §§ 104-106, 28 March 2006; and, mutatis mutandis, Holomiov v. Moldova, no. 30649/05, § 121, 7 November 2006), and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee's diseases or preventing their aggravation, rather than addressing them on a symptomatic basis (see Hummatov, cited above, §§ 109, 114; Sarban v. Moldova, no. 3456/05, § 79,4 October 2005; and Popov v. Russia, no. 26853/04, § 211, 13 July 2006). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Hummatov, cited above, § 116, and Holomiov, cited above, § 117).
(ii)  Application in the present case
55.  The Court notes that the applicant's poor health, in particular his suffering from tuberculosis and spine disease, called for a special medical care on a regular, systematic and comprehensive basis.
56.  The Government submitted that the applicant had been diagnosed on a number of occasions and that he had been adequately treated for the tuberculosis and eye disease. The Government, however, did not provide any medical documentation in support of their assertion and did not explain how the alleged treatment had improved the applicant's health.
57.  The Court further observes that the Government did not provide any information as to whether the applicant had in fact been treated in any way for his spine disease, about which the administrations of the pre-trial detention centres and prisons were well informed since the applicant had earlier been assigned a category of invalidity on that account.
58.  In the light of the above considerations, the Court is of the opinion that the medical care dispensed to the applicant during his stay in the Mariupol SIZO and the prisons was clearly insufficient and amounted in itself to a violation of Article 3 of the Convention.
(d)  Strip searches
59.  As regards this part of the complaint, the Court accepts the applicant's account of the facts in the absence of any comments from the Government in that regard and takes as established that the applicant has been subject to a practice of strip searches when entering and leaving the factory at the Dykanivska prison no. 12.
60.  The Court has previously found that though strip-searches may be necessary on occasion to ensure prison security or to prevent disorder or crime, they must, however, be conducted in an appropriate manner (see Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII, and Iwańczuk v. Poland, no. 25196/94, § 59, 15 November 2001).
61.  In the instant case, however, it appears that the prisoners including the applicant were strip searched on entering the prison factory and leaving it. The Court has not been provided with any peculiarities of the production process at the factory or any other information which could possibly justify such a practice. Further, it appears that the strip searching was carried out in front of the other detainees and no requisite facilities for that purpose existed. In these circumstances the Court concludes that the practice of strip searching the applicant diminished his human dignity and amounted to degrading treatment in violation of Article 3 of the Convention.
(e)  The Court's conclusion
62.  The Court concludes that the material conditions of the applicant's detention (overcrowding in cells, and lack of ventilation, daylight and nutrition), the inappropriate medical care during his detention, and the regular practice of strip searching him in the prison factory, constituted degrading treatment of the applicant. There has therefore been a violation of Article 3 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
63.  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
64.  The applicant claimed compensation for non-pecuniary damage, but did not specify an amount, leaving its determination to the Court's discretion.
65.  The Government maintained that no award should be made since the applicant had failed to submit any documents supporting his claim.
66.  The Court considers that the applicant clearly suffered non-pecuniary damage as a result of the violation found.Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable to award the applicant 8,000 euros (EUR) respect of non-pecuniary damage.
B.  Costs and expenses
67.  The applicant did not make any claim under this head; the Court therefore makes no award.
C.  Default interest
68.  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
1.  Declares the complaint under Article 3 of the Convention concerning the conditions of the applicant's detention the Mariupol SIZO relating to the periods between 16 April and 16 May 1999 and between 5 June 1999 and 17 June 2000 inadmissible and the remainder of the complaint under Article 3 of the Convention admissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros), plus any tax that may be chargeable on that amount, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 19 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President