CASE OF LOTAREV v. UKRAINE
(Application no. 29447/04)
8 April 2010
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 Lotarev v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Mykhaylo Buromenskiy, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 16 March 2010,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A Use of force by prison wardens on 9 June 2004 and subsequent investigation
B. The applicant's treatment for tuberculosis
C. Conditions of detention in Zhytomyr no. 8 Prison
1. Conditions as presented by the applicant
2. Conditions as presented by the Government
3. Related factual information
D. Alleged interferences with the applicant's correspondence
E. Introduction of the application and the applicant's representation
II. RELEVANT DOMESTIC LAW
A. Use of force in prisons
B. Investigation of a crime
C. Forced medical treatment
D. Some issues concerning conditions of life imprisonment
III. RELEVANT INTERNATIONAL MATERIAL
“94. In its report on the 2000 visit ..., the CPT stated that the treatment of prisoners serving life sentences was a major source of concern to the Committee, and it made a whole series of recommendations with a view to improving their situation.
The delegation's on-the-spot observations in 2002 in Zhytomyr Prison no. 8 ... confirmed that certain improvements have been made to material conditions and some aspects of the regime.
95. Material conditions of detention for these prisoners in Zhytomyr Prison No. 8 ... were acceptable. The cells were clean, properly lit and ventilated, equipped with beds with full bedding, a table, a stool and toilets that were partitioned off. The cells measured 6 to 10.2 m². They had all been originally designed for two prisoners, although sometimes they accommodated only one.
The CPT would stress that cells measuring 6 to 7 m² should, as a rule, be reserved for one prisoner (except in exceptional circumstances, where it is inadvisable to leave a prisoner alone). Cells measuring 10 m² could be considered acceptable for two people, provided the prisoners are able to spend a reasonable part of the day outside their cell. ...
96. The 2002 visit confirmed that life-sentenced prisoners may now receive two large parcels weighing 30 kg each a year and two small packets weighing 2 kg each a year; they may also buy supplies at the prison shop. It emerged, however, that the amount they could receive was much smaller than that which sentenced persons in the colonies could receive. In addition, for many of them, access to supplies from the prison shop was only theoretical since, because of lack of work, they did not earn any money. ...
105. In Prison No. 8, the delegation observed the practice of frequently moving life-sentenced prisoners ... to different cells. Life-sentenced prisoners changed cells within the section every week and changed floors every six months ....
The CPT has already dealt with this issue in ... its report on the 2000 visit, in which, while acknowledging that operational considerations might exceptionally require such measures, the Committee stressed that it was desirable to avoid, as far as possible, the needless uprooting of prisoners. The CPT recommends that the Ukrainian authorities review the policy of frequently moving prisoners to different cells in Prison No. 8 and, if necessary, in Ukraine's other penitentiary establishments, in the light of these considerations. ...
107. Prison No. 8 in Zhytomyr was built in 1914. With a capacity of 1,600 places, it was accommodating 1,199 prisoners at the time of the visit. ...
111. ... material conditions varied. Many of the cells visited, although modestly equipped, were properly maintained and clean. Others, however, had been damaged by damp and were dirtier, with toilets in relatively poor condition, rusty beds and very modest bedding infested with cockroaches and other vermin. ...
112. The prison administration made real efforts to provide those prisoners who needed them with basic essentials (hygiene and cleaning products and, if necessary, extra clothing/shoes). ...
118. In the establishments visited, the delegation received numerous complaints about restrictions on the number of parcels. The CPT notes that Section 41 of the Code on the Execution of Sentences provides for different entitlements in terms of the number of parcels per year, depending on the type of regime. ...
The CPT can understand that in certain penitentiary establishments there may be logistical, as well as security-related reasons for imposing a restriction on the number of parcels which can be received. However, this implies that the penitentiary administration is in a position to respond adequately to prisoners' fundamental needs (food, clothing, medication, etc.). The fact is that this is not yet the case, since economic problems are preventing it from meeting prisoners' basic needs. In the circumstances, the grounds for the restrictions should be reviewed. Indeed, some countries faced with a similar situation have granted prisoners the right to receive an unlimited number of parcels.
The CPT recommends that the Ukrainian authorities review the provisions of the Code on Execution of Sentences and of the law governing detention on remand in respect of the entitlement to receive parcels, in the light of the above remarks. ...
194. A number of improvements had been made to the material conditions of detention and some aspects of the regime applicable to life-sentenced prisoners. While welcoming this progress, the CPT stressed the need to give a high priority to the introduction of a proper prison management policy for these prisoners. ...
195. With regard to material conditions of detention, the CPT recommended that in Prison No. 8 the necessary repairs be carried out to building No. 1 so that the material conditions equalled those in building No. 2, reserved for women and minors, in all respects. ...
197. With regard to health care, the CPT welcomed the progress that had been made in combating tuberculosis, in terms of a decrease in the number of prisoners suffering from tuberculosis and the fall in the number of deaths due to the disease. Substantial efforts had also been made to ensure that penitentiary establishments were provided with sufficient quantities of appropriate medication for the treatment of the disease. Progress was, however, slower with regard to the standard of food for prisoners suffering from tuberculosis, because of the limited resources of the prison administration. The CPT recommended sparing no effort in ensuring that the measures adopted to combat tuberculosis were fully implemented and giving a high priority to the implementation of the nutritional programme for prisoners suffering from the disease. ...”
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT'S ALLEGED ILL-TREATMENT BY THE PRISON WARDENS ON 9 JUNE 2004
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Alleged ill-treatment
2. Alleged inadequacy of the investigation
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT'S DETENTION IN ZHYTOMYR NO. 8 PRISON
IV. THE REMAINDER OF THE APPLICATION
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousands euros) in respect of non-pecuniary damage plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable on 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 8 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen