CASE OF NAZARENKO v. UKRAINE
Preliminary objection rejected (non-exhaustion);Violation of Art. 3;Violation of Art. 8 with regard to initial period;No violation of Art. 8 with regard to later period;Non-pecuniary damage - financial award
Nicolas Bratza
10. On 23 October 1995 the applicant was arrested by the militia and detained on remand in the Isolation Block of the Central Department of the Ministry of the Interior of the Autonomous Republic of Crimea (слідчui ізолятор Головного Управління міністерства внутрішніх справ Автономної Республіки Крим). 11. On 26 April 1996 the Criminal Division of the Supreme Court of the Autonomous Republic of Crimea (судoва колегія з кримінальних справ Верховного суду Автономної Республіки Крим) convicted the applicant of the murder of two persons and sentenced him to death. 12. On the same day the Administration of the Isolation Block of the Central Department of the Ministry of the Interior of the Autonomous Republic of Crimea (адміністрація слідчого ізолятору Головного Управління Міністерства внутрішніх справ Автономної Республіки Крим) decided to move the applicant to a separate cell to await his execution, in accordance with the 1993 Pre-trial Detention Act (hereinafter “the Act”). 13. On 25 July 1996 the Criminal Division of the Supreme Court of Ukraine (судoва колегія з кримінальних справ Верховного суду Украïни) upheld the judgment of the first-instance court. 14. On 20 February, 27 March, 15 May, 26 June and 23 July 1997 the applicant's mother was permitted to visit her son. On 7 October 1997 she was again allowed to visit the applicant, together with the latter's brother. 15. On 24 October 1997 the Vice-President of the Supreme Court of Ukraine rejected an application for leave to lodge an extraordinary appeal, introduced by the applicant's lawyer. 16. On 23 December 1997 the applicant's mother visited her son again. Her next visit took place on 30 January 1998, when she was accompanied by the applicant's brother. 17. A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11рп/99 of 29 December 1999 the Constitutional Court held that the provisions of the Criminal Code concerning the death penalty were contrary to the Constitution of Ukraine. The death penalty was abolished and replaced by life imprisonment by Act no. 1483-III of 22 February 2000. 18. On 26 June 2000 the Supreme Court of the Autonomous Republic of Crimea commuted the applicant's death sentence to life imprisonment. 19. Evidence from the applicant was taken by a Court Delegation in Simferopol Prison on 4 October 1999. The Delegation was composed of Judges M. Pellonpää, J. Makarczyk and R. Maruste. The evidence taken may be summarised as follows: 20. The applicant was admitted to Simferopol Prison on 26 October 1995. On the day of the Court Delegates' visit, he confirmed that he had been informed about his rights and obligations. Actually, three or four days earlier, he signed a sheet of paper containing these rights and obligations. 21. He stated that he had been allowed to have a hot shower every Tuesday and could shave with an individual razor blade. At the same time, his hair was cut. Until autumn 1998, he could wash himself only once every ten days. Since the same date he could use an individual razor. According to him, the death row inmates started having soap and cold water in their cells in 1998. Previously, there had been water taps, but the inmates could not switch them on or off, this being done by a guard for all the prisoners. Small windows had been installed in the cells which the inmates could open to let fresh air in. 22. According to the applicant, an iron sheet covered the window in his cell until summer 1998. He confirmed that, at present, the light was enough to read or write, his cell being equipped by two lamps - a normal one and a dimmed one. He said that as far as his cell was concerned, the installation of the lamps, water taps, mirrors, new iron beds and windows had started two weeks before the Delegates' visit. 23. The applicant did not have any contacts with other prisoners. When he shared his cell with another inmate, they were taken together to the shower or for a walk. To the Court Delegates' question: “What was the longest period for which you did not have any contacts with other prisoners?”, he answered: “That was during the investigation, for about three months.” He also said that during the investigation, which had lasted six months, he had been kept in solitary confinement following a Prosecutor's decision, based on a written complaint about his allegedly inappropriate behaviour towards another inmate. According to him, the prisoners had a choice between being detained in double or single cells. He confirmed that, until the present day, he had been in the double cell. 24. He confirmed that since 1996 inmates could buy books in the prison shop and since 1999 they were allowed to get about ten newspapers. In prison there was a public radio - a loudspeaker, which was switched off at ten p.m. 25. To the Court Delegates' question: “Do you have any complaints about the food?”, the applicant answered: “How can we complain about the food when people who work do not get their salaries?” 26. According to the applicant, inmates had been examined by a medical assistant (фельдшеp) on a daily basis, and once a week by the prison doctor who could also be called in case of emergency. 27. The applicant confirmed that when he broke the rules, he was punished by being barred from having visits and receiving parcels. Since the investigation period, he had not broken any rules. As regards the general situation, he had not heard about other inmates being subjected to such treatment. 28. He also confirmed that he saw the prison governor on Thursdays. If he had some questions or complaints, he could lodge an application. 29. When the applicant wished to see his lawyer, he sent an application to the lawyer through the prison governor. Prison guards were present during the visits of the applicant's lawyer. The applicant did not write any detailed complaints or requests, discussing all those issues with his lawyer during their meetings in prison. 30. The applicant was allowed to send and receive letters at the end of 1998. During his stay in Simferopol Prison, he had received four or five letters. He had written to his mother almost every month. He did not receive his mother's letter sent in September 1999, but he did not know whether it was due to the prison censorship control. 31. The applicant started to receive packages in approximately September 1998. He stated that he had been allowed to get six parcels (посилка, передaча) and three small packets (бандероль) per year. He considered this number satisfactory even though he would have preferred to receive one parcel every month. He confirmed that his relatives were permitted to send him food. 32. The applicant was not allowed to wear any other type of clothes than those provided by the prison officials, except for underwear and socks. In summer the prisoners had to wear jackets and in winter they were given a warm coat and fur hats. According to him, the winter clothes were sufficient for that season. 33. The applicant confirmed that he had started having daily one-hour outdoor walks in summer 1998. The prison guards had not required the wearing of handcuffs since August or September 1999. 34. The witness was the governor of Simferopol Prison during the time of the applicant's detention there. 35. The witness said that on the day of the Court Delegation's visit, about 3,000 prisoners were serving a sentence in the prison, of whom 30 were on death row. 36. According to him, every death row prisoner was aware of his rights and duties. A copy of the list of rights and duties was posted in every cell. He confirmed that there was no secrecy as to the rights and obligations of prisoners and that after the decree about rights and obligations had been published, the prisoners were fully aware of them. 37. He also confirmed that he saw the applicant once a week which was, according to him, regular practice. He said that the applicant had never complained of the conditions of his detention, but disagreed with his sentence to death. He also said that the applicant had been informed about the new instructions and about the new decree concerning the rights and duties of death row inmates. 38. The witness considered the heating conditions sufficient. The prison had its own boiler and there was a fresh-air ventilation system in the cells. According to him, the prisoners had a hot shower once every seven days, when the bed linen was also changed. He denied the applicant's allegation that all death row prisoners were using the same razor, which would have created health problems on account of the risk of infection. He said that the prisoners shaved separately with blades given to them by the prison administration. 39. He stated that in the daytime there were two lamps lit plus natural light from windows in the cells, which he considered sufficient. At night, they had only one lamp lit. He said that every death row inmate had a cell of not less than 12 square metres. There was a possibility of reading books and literature using both natural and artificial light. 40. The witness said that the inmates underwent an X-ray examination twice a year. Once a week the head of the medical division visited them, and every day a medical assistant conducted an inspection. 41. The witness said that death row prisoners had the right to communicate with the outside world without any limitation, both to send and receive letters. He further said that this situation had improved since May 1999. He admitted that under the existing procedure, inmates' correspondence was censored, but he did not remember any case when an incoming letter had been stopped without being given to its addressee, including letters from the European Commission of Human Rights. He confirmed that the applicant's correspondence had been registered in the journal. Moreover, any death row prisoner could complain of any violation of the right to exchange letters to the governor, to the Prosecutor who supervised the prison, or to any other official in this department. 42. According to the witness, the possibilities for receiving parcels improved in May 1999. Since then, the prisoners were allowed to receive six food parcels (посилка, передача) and two small packets (бандероль) per year. Previously, they had not been allowed to receive any parcel until the judgment in their criminal case had become final. Moreover, the prisoners could buy food in the prison shop. They could spend Ukrainian hryvnas 55 (UAH) per month at prices which were the same as in state-owned shops from which the prison bought the food. 43. According to the witness, prior to May 1998 the inmates had not been not allowed to go for daily outdoor walks. Since then, they had been taken out for one hour without handcuffs. 44. The witness was the doctor in Simferopol Prison, where he had been working since 1992. 45. He said that the prison medical staff included six doctors (four general practitioners, one psychiatrist and one radiologist), medical assistants (фельдшер), an X-ray laboratory assistant, a pharmacist and a clinical assistant. According to him, medical services were provided 24 hours a day. Any inmate could apply at any time and get urgent medical assistance. The death row prisoners were seen by a medical assistant every day during their daily walk. They could ask him for any medical assistance and, if his help was not sufficient, they could request to see the doctor. Besides, they could apply directly to the doctor. Every inmate had a medical file compiled upon his arrival where all details and results of medical examinations were recorded and which was kept during the period of his imprisonment. 46. The witness said that on 26 October 1995 the applicant, upon his arrival at the prison, had complained about having been beaten. In March 1997 he had requested help because he suffered from a respiratory virus infection. 47. He also said that HIV testing of inmates was not obligatory and was only conducted upon individual request. The test was preceded by a confidential interview between the doctor and the prisoner. The witness did not confirm whether there were inmates infected with the HIV virus, claiming that this was confidential information. The only other person who knew about inmates infected by HIV was the doctor responsible for the testing and the preceding consultations. 48. As far as complaints about hygienic conditions in the prison were concerned, the witness had received no such complaints. He considered that the changes in regime for the death row prisoners, especially the possibility of having outdoor walks and natural light in their cells, had improved their health conditions. 49. The witness was a medical assistant having been working in Simferopol Prison for two and a half years. He was responsible for the daily control of the inmates' health conditions, while the doctor made visits and attended emergency situations. He considered that there were particular problems with death row inmates and, in fact, he worked mostly with them. He accompanied these prisoners during their daily outdoor walks. 50. He confirmed that the improvement of living conditions in the death row prisoners' cells had had a positive influence on their health. Since then he had not received any further complaints from them regarding health and hygiene. 51. The witness stated that he had never seen any signs of guards' brutality against the death row inmates or any bodily injuries. He had never heard about such complaints made to other staff in the prison. He examined the inmates on a weekly basis and he reported to his superiors. According to him, the applicant had not complained more than other inmates. He confirmed that he had been observing the applicant for two and a half years without noticing any changes in his mental state. He had not witnessed any strong symptoms of depression of the applicant. 52. The witness was the applicant's mother. In her letter of 29 May 1998 to the Court she complained that her son had been beaten. She confirmed that during his detention in custody, the applicant had been beaten and had not been provided with any medical assistance. He had been interrogated for two hours and, after another two hours, he had been taken to hospital. She could still see traces of the beatings on his face during her meeting with him six months later. She had been allowed to meet her son for the first time six months after the sentence had been pronounced. In this meeting, she had asked her son about the beatings and he confirmed that he had been beaten. 53. She did not have any complaints about the administration regarding receiving and sending letters. She rather complained generally about the prison system. She started to correspond with her son in 1998. However, she was unable to give any details in this regard. She had written her last letter to her son in mid-September 1999 but to date, he had not received it. On the other hand, she confirmed that letters had never been lost. 54. To the Government representative's questions: “During the last two or three months, how often did you send letters to your son? Can you send them every week?”, the witness answered: “If there is a need, I write him a letter.” To the Government representative's questions: “And how often do you get letters from him? Can he write to you more than once a month?”, the witness answered: “A year ago we were allowed to send one letter a month, and now there are no limitations, we can write letters as often as we want.” 55. The witness confirmed that she started to send parcels (посилка) to her son in 1998. Since then, she had had no complaints against the prison administration in this regard. 56. The witness saw the applicant once a month during a visit lasting for about 15-20 minutes or 30 minutes at the most. She had not complained about the duration of her visits or that they had been suddenly interrupted by a prison guard who was always present, being happy to have even these short visits. She spoke with her son over the telephone, seeing him through the glass. She could not see whether he was handcuffed. 57. To the Government representative's question: “And what do you think about the duration of the meetings? Could you tell, judging by the atmosphere, whether if you had asked for the meeting to be extended to one hour or longer, you would have been allowed?”, the witness answered: “I have never asked to prolong the meetings. I think if the administration says it is over, then it is over.” To the Government representative's information: “You have the right to two-hour meetings now”, the witness answered: “It is difficult to talk through glass for two hours.” 58. The witness said that the applicant had never complained in his letters about ill-treatment, beatings or about the prison administration. He had complained about parcels, letters and visits. She admitted that the situation was improving, and that the prison administration understood that inmates sentenced to the death penalty were like other inmates. 59. On 4 October 1999 the Delegates visited the prison. The size of the applicant's cell area was about 12 square metres. The cell was in order and clean. There was an open toilet, a washbasin with one tap with cold water only, two beds fixed on the floor, central heating and a window with bars. There were some books, a newspaper, a stock of soap and toilet paper. The cell was sufficiently heated and ventilated. 60. The Delegates were shown the prison shower area, which was reasonably clean. They also visited an exercise yard. 61. According to the prison shop records, the applicant bought goods on the following occasions: On 25 September 1997 he bought foodstuffs for 5.47 (UAH), on 6 October 1997 he purchased foodstuffs and matches for UAH 9.34, on 23 October 1997 he bought foodstuffs for UAH 5.61, on 5 November 1997 he purchased foodstuffs paying UAH 5.43, on 20 November 1997 the applicant bought toiletries and foodstuffs UAH 6.40, and on 3 December 1997 he bought foodstuffs for UAH 7.36, on 18 December 1997 the applicant purchased different items for UAH 8.41. On 9 January 1998 the applicant purchased foodstuffs and matches spending UAH 9.7, on 22 January 1998 he bought foodstuffs for UAH 6.06, and on 4 February 1998 he bought foodstuffs and matches paying UAH 15.59. 62. From the applicant's medical file which was created on 26 October 1995 it appears inter alia that the applicant underwent an X-ray examination on 26 October 1995, on 18 May and 12 November 1996, on 23 May and 3 November 1997 and on 30 May and 14 November 1998. 63. 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. 64. Article 9 § 1 provides that international treaties, which are in force and agreed on as binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine. 65. Article 15 § 3 prohibits censorship. 66. Under Article 19 the legal order in Ukraine is based on the principles according to which no one may be forced to do what is not envisaged by the legislation. State authorities and local self-government bodies and their officials are obliged to act only according to these principles, within the limits of their authority, and in the manner envisaged by the Constitution and the laws of Ukraine. 67. Article 22 provides that human and citizens' rights and freedoms are guaranteed and may not be diminished by the adoption of new laws or the amendment of laws that are in force. 68. Under Article 29 §§ 2 and 4 no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law. Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention, apprised of his rights, and from the moment of detention must be given the opportunity to defend himself in person, or to have the assistance of a defence lawyer. 69. Under Article 55 §§ 2 and 4 everyone is guaranteed the right to challenge the decisions, actions or omissions of 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 or her 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. 70. Under Article 59 everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his rights. In Ukraine the Bar (адвокатура) ensures the right to a defence against charges and the provision of legal assistance in deciding cases in courts and before other State authorities. 71. 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. 72. Under Article 64 human and citizens' rights and freedoms guaranteed by the Constitution may not be restricted, except in cases envisaged by the Constitution of Ukraine. 73. Conditions on death row in the Ukrainian prison system were successively governed by an Instruction of 20 April 1998 on conditions of detention of persons sentenced to capital punishment (hereinafter “the Instruction”) and by Temporary Provisions of 25 June 1999 on the conditions of detention of persons sentenced to capital punishment in the isolation blocks (hereinafter “the Temporary Provisions”). 74. The Instruction provided that after the sentence had become final, persons sentenced to death had to be kept in isolation from other prisoners in specially designed cells. Save in exceptional cases, no more than two such prisoners were to be detained in one cell. The cell area allocated to one prisoner in a single cell had to be not less than 4 square metres, and in a double cell not less than 3 square metres. They were provided with an individual sleeping-place and with bed linen. The inmates wore a uniform designed for the category of especially dangerous recidivists. Reference was also made to their legal status and obligations. This determined the frequency of meetings with relatives and the number of letters inmates could send and receive: they were allowed one visit per month and could send one letter per month. There was no limitation on the mail they could receive. The inmates could receive two small packets a year. They were allowed to have a daily one-hour walk in the fresh air. Outside their cells, inmates were handcuffed. They were not allowed to work. Prisoners were also allowed to read books, magazines and newspapers borrowed from the prison library and/or bought through the prison distribution network; they could receive money transfers; they could keep personal objects and food in their cells, and buy food and toiletries in the prison shop twice a month (up to the value of the statutory minimum wage), and play board games. They could meet lawyers. The inmates were also allowed to have visits from lawyers. Medical treatment was provided in accordance with national legislation. The prisoners could lodge complaints with state authorities. Such complaints had to be dispatched within three days. Complaints to the Public Prosecutor were not censored. 75. The Temporary Provisions extended the rights of persons sentenced to capital punishment in comparison with the Instruction. In particular, prisoners were allowed to have eight hours of sleep during the night, they could receive six parcels and three small packets per year, buy food and toiletries in the prison shop (up to the value of 70% of the statutory minimum wage), pray and read religious literature and have visits from a priest, and write complaints to State authorities. They were allowed to send and receive letters without any limits and to have monthly visits of up to two hours from their relatives. A prison official had to be present during visits. 76. According to the Code of Criminal Procedure, 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 been enforced. 77. In accordance with section 8(4) of the Act, persons sentenced to capital punishment whose sentence had not become final were held separately from all other detained persons. 78. Section 9(1) of the Act provides inter alia that detainees have the right (a) to be defended in accordance with the rules of criminal law, (b) to be acquainted with the rules of detention, (c) to take a one-hour daily walk, (d) 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, (e) 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 in prison shops, (f) to use their own clothing and footwear and to have with them documents and notes related to their criminal case, (g) to use TV sets received from relatives or other persons and board games, newspapers and books borrowed from the library in their previous place of imprisonment or bought at shops, (h) individually to perform religious rituals and use religious literature and objects made of semi-precious materials pertaining to their beliefs, provided that this does not lead to a breach of the rules applicable to places of pre-trial detention or restrict the rights of other persons, (i) to sleep eight hours a night, during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency and (j) to lodge complaints and petitions and send letters to State authorities and officials in accordance with the procedure prescribed by section 13 of the Act. 79. Under section 11, detainees are required to 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, an individual sleeping-place, bedclothes and other types of materials and everyday provisions free of charge and according to the norms laid down by the Government. In case of need, they are to be supplied with clothes and footwear of a standard form. 80. In accordance with section 12(1), permission for relatives or other persons to visit a detainee (in principle, once a month for one to two hours) can be given by the administrative authorities of the place of detention, but only with the written approval of an investigator, an investigative authority or a court dealing with the case. Under paragraph 4, detainees have the right to be visited by defence counsel, whom they may see alone with no restrictions on the number of visits or their length, from the moment the lawyer in question is authorised to act on their behalf, such authorisation being confirmed in writing by the person or body dealing with the case. 81. Pursuant to section 13(1), detainees can exchange letters with their relatives and other persons and enterprises, establishments and organisations with the written permission of an authority dealing with the case. Once a sentence starts to run, correspondence is no longer subject to any limitations. 82. According to Article 28 of the Code (Main requirements of the regime in detention institutions), the main features of the regime in detention establishments are: the compulsory isolation and permanent supervision of sentenced persons, so as to exclude any possibility of the commission of new crimes or other acts against public order; strict and continuous observance of obligations by these persons; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person. Sentenced persons must wear a uniform. They must also be searched; body searches must be conducted by persons of the same sex as the person searched. Correspondence is subject to censorship, and parcels and packages subject to opening and checking. A strict internal routine and rules must be established in corrective labour establishments. Sentenced persons are prohibited from keeping money and valuables, or other specified objects, in corrective labour establishments. Any money and valuables found are to be confiscated and, as a rule, transferred to the State in accordance with a reasoned decision of the governor of the institution, sanctioned by a prosecutor. A list of objects which sentenced persons are allowed to possess, showing the number or quantity of each item and the procedure for confiscating objects whose use is prohibited in corrective labour establishments, must be established by the internal regulations of such establishments. Under the procedure established by the Code, sentenced persons are allowed to buy food and toiletries, paying by written order, to be visited, to receive parcels, postal parcels, packages and money by remittance, to correspond and to send money to relatives by remittance. 83. Article 37 § 1 (Purchase of food and toiletries by sentenced persons) provides that sentenced persons are allowed to buy food and toiletries, paying by written order, from the money received by remittance. 84. Article 40 provides inter alia that a lawyer may be given permission to meet his client on presentation of his licence and identity card. Visits are not limited as to their number and length and, at the lawyer's request, may be carried out without a prison warder being present. 85. Under Article 41 (Receipt of parcels and small packets by persons sentenced to imprisonment) sentenced persons held in corrective labour colonies (виправнo-тpудова колонія) are allowed to receive, per year: seven parcels in colonies subject to the general regime (колонія загального режиму), six parcels in colonies subject to the strengthened regime (колонія посиленого режиму) and five parcels in colonies subject to the strict and special regime (колонія суворого режиму). Sentenced persons held in educational labour colonies (колонія виховно-трудова) are allowed to receive per year: ten parcels in colonies subject to the general regime and nine parcels in colonies subject to the strengthened regime. Convicted offenders serving their sentence in a prison are not allowed to receive parcels. Irrespective of the type of regime under which they are held, sentenced persons are allowed to receive not more than two small packets per year, and to buy literature through the sales distribution network without any restrictions. The quantity of parcels and small packets of all types is not restricted for sentenced persons held in corrective labour colony camps (виправнo-тpудова колонія-поселення). A list of foodstuffs and toiletries which sentenced persons are allowed to receive in postal parcels and small packets, as well as the procedure for their receipt by and delivery to the sentenced persons, is to be established in the internal regulations of corrective labour establishments. 86. Under Article 42 (Receipt and sending of money by sentenced persons by remittance) sentenced persons are allowed to receive unlimited amounts of money by remittance, as well as to send money to their relatives and, if this is permitted by the authorities of the corrective labour establishments, to other persons. The money received by remittance is transferred to the personal account of the sentenced person. 87. Article 43 § 2 (Correspondence of persons sentenced to imprisonment) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows: one letter per month for those held under the general regime and one letter every two months for those held under the strengthened regime. 88. According to section 12(1) the public prosecutor deals with petitions and complaints concerning breaches of the rights of citizens and legal entities, except complaints that are within the jurisdiction of the courts. Paragraph 4 provides that an appeal lies from the prosecutor's decision to the supervising prosecutor and, in certain cases, to the court. Paragraph 5 provides that the decision of the Prosecutor General is final. 89. Under section 38 the prosecutor or his deputy has the power to make a request to a court for any materials in a case where a judgment or another decision has come into force. If there are any grounds for reopening the proceedings, the prosecutor challenges the court judgment or any other decision. 90. Under section 44(1) the matters subject to the public prosecutor's supervision are: adherence to the legal rules on pre-trial detention, and corrective labour or other establishments for the execution of sentences or coercive measures ordered by a court, adherence to the procedures and conditions for holding or punishing persons in such establishments; the rights of such persons and the manner of carrying out by the relevant authorities of their duties under the criminal law and legislation on the enforcement of sentences. The public prosecutor may at any time visit places of pre-trial detention, establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform, in order to conduct interviews or peruse documents on the basis of which persons have been detained, arrested or sentenced or subject to compulsory measures; he may also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such establishments, terminate the implementation of such acts, appeal against them or annul them where they do not comply with the law, and request officials to give explanations concerning breaches which have occurred. 91. In its Resolution, the Assembly deplored the executions which, reportedly, had been carried out recently in Latvia, Lithuania and Ukraine. In particular, it condemned Ukraine for apparently violating its commitments to introduce a moratorium on executions of the death penalty upon its accession to the Council of Europe. It called upon this country to honour its commitments regarding the introduction of a moratorium on executions and the immediate abolition of capital punishment warning it that further violation of its commitments, especially the carrying out of executions, would have consequences under Order No. 508 (1995). 92. The Assembly confirmed in this Resolution that it had received official information that, in the first half of 1996, eighty-nine executions had been carried out in Ukraine, and regretted that the Ukrainian authorities had failed to inform it of the number of executions carried out in the second half of the year. The Assembly was particularly shocked that executions in Ukraine had been shrouded in secrecy, with apparently not even the families of the prisoners having been informed, and that the executed had been reportedly buried in unmarked graves. It condemned Ukraine for having violated its commitment to put into place a moratorium on executions, deplored the executions that had taken place, and demanded that it immediately honour its commitments and halt any executions still pending. 93. In these texts, the Assembly noted that Ukraine had clearly failed to honour its commitments (212 persons had been executed between 9 November 1995 and 11 March 1997, according to official sources). At the same time, it noted that since 11 March 1997 a de facto moratorium on executions had been in effect in Ukraine. The Assembly insisted that the moratorium be reconfirmed de jure and that the Verkhovna Rada ratify Protocol No. 6 to the Convention. It stressed the importance of the de facto moratorium on executions and firmly declared that, if any further executions took place, the credentials of the Ukrainian parliamentary delegation would be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure. 94. Delegates of the CPT visited places of detention in Ukraine in the years 1998, 1999, and 2000. Reports on each of the visits were published on 9 October 2002, together with the Responses to the Reports of the Ukrainian Government. 95. The visit of the delegation, which took place from 8 to 24 February 1998, was the CPT's first periodic visit to Ukraine. In the course of the visit the delegation inspected, inter alia, the pre-trial prison (SIZO) (“investigation isolation” establishment) No. 313/203 in Kharkiv. On the ground floor of building No. 2 of SIZO No. 203 were housed at the time of the visit fifteen prisoners who had been sentenced to death, although as was recorded in a footnote to the Report, the delegation had received assurances that since 11 March 1997 a de facto moratorium on executions had been observed. 96. In its Report (paragraph 131), the CPT expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them. It was noted that prisoners sentenced to death were usually accommodated two to a cell, the cell measuring 6.5-7m². The cells had no access to natural light, the windows being obscured by metal plates. The artificial lighting, which was permanently on, was not always sufficiently strong with the result that some cells were dim. To ventilate the cells, prisoners could pull a cord that opened a flap; despite this the cells were very humid and quite cold (paragraph 132). The equipment in the cells was described in the Report as being rudimentary, consisting of a metal bed and/or sloping platform (equipped with a thin mattress, sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold), a shelf and two narrow stools. Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell, but it had been reported to the delegation that the radio only functioned sporadically (ibid.). All the cells had un-partitioned toilets which faced the living-area; as a result, a prisoner using the toilet had to do so in full view of his cellmate. As regards toiletries, prisoners sentenced to death were in a similarly difficult situation as many of the other inmates; items such as soap and toothpaste were rarities (ibid.). It was further recorded that prisoners sentenced to death had no form of activity outside their cells, not even an hour of outdoor exercise. At best they could leave their cells once a week to use the shower in the cell-block, and for an hour a month, if they were authorised to receive family visits. In-cell activities consisted of reading and listening to the radio when it worked. Apart from the monthly visits which some inmates received, human contact was limited essentially to the occasional visit by an Orthodox priest or a member of the health-care staff, who spoke to the prisoners through a grill in the cell-door (paragraph 133). 97. The CPT summarised its findings in this regard as follows: “In short, prisoners sentenced to death were locked up for 24 hours a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting, with virtually no activities to occupy their time and very little opportunity for human contact. Most of them had been kept in such deleterious conditions for considerable periods of time (ranging from 10 months to over two years). Such a situation may be fully consistent with the legal provisions in force in Ukraine concerning the treatment of prisoners sentenced to death. However, this does not alter the fact that, in the CPT's opinion, it amounts to inhuman and degrading treatment.” (paragraph 134). It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation, the progress of their cases, follow-up to applications for cases to be reviewed, examination of their complaints etc. (paragraph 138). 98. In its Response to the 1998 Report, the Ukrainian Government recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the CPT. In particular, the Temporary Regulations had been introduced to guarantee to prisoners sentenced to death the right to be visited once a month by relatives, to be visited by a lawyer to get legal assistance, to be visited by a priest and to receive and send correspondence without limitation. It was further noted (i) that prisoners sentenced to death would have daily walks in the open air and that for this purpose 196 yards of the pre-trial prisons had been rebuilt or re-equipped; (ii) that, in order to improve natural lighting and air of all cells, the blinds and metal peakes over cell windows had been removed; and (iii) that, for the purposes of informing inmates sentenced to death of their rights and legal status, extracts from the Temporary Regulations had been placed on the walls of each cell. 99. A CPT delegation visited Ukraine from 15 to 23 July 1999 in the course of which they again inspected SIZO No. 313/203 in Kharkiv where, at the time of the visit, there were detained 23 prisoners who had been sentenced to death. The Report noted that certain changes had occurred since the previous visit. In particular, the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air, although it was observed that there was insufficient space for real physical exercise (paragraphs 34-35). The Report further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond (paragraph 36). However, the CPT noted certain unacceptable conditions of detention including the fact that prisoners continued to spend 23 out of 24 hours a day in their cells and that opportunities for human contact remained very limited (paragraph 37). 100. A third visit to Ukraine took place from 10 to 21 September 2000, in the course of which the delegation inspected, inter alia, the pre-trial prison (SIZO No.15) in Simferopol. The CPT welcomed the decision of the Ukrainian authorities to abolish the death penalty and noted that most of the approximately 500 prisoners subject to the death sentence had had their sentences commuted to life imprisonment. 101. Despite these welcome steps, the CPT recorded that the treatment of this category of prisoner was a major source of concern to the Committee (paragraph 67). It was noted that, further to a provisional instruction issued in July 2000 and pending the establishment of two high-security units specifically intended for life prisoners, such prisoners were subjected to a strict confinement regime (paragraph 68). While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited, there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation (paragraph 69). Moreover, life-sentence prisoners were confined in their cells for 23 ½ hours a day with no form of organized activities and, by way of activities outside their cells, were entitled to only half an hour outdoor exercise, which took place in unacceptable conditions. There was virtually no human contact: since the entry into force of the July 2000 instruction, visits from relatives had been forbidden and prisoners were only allowed to send one letter every two months, although there were no restrictions on receiving letters (paragraph 70). 102. In their Response to the Report the Ukrainian Government noted further legal amendments which ensured that life prisoners had one hour of exercise per day and two family visits of up to four hours per month. Further, to ensure adequate access to light, metal shutters had been removed from windows in all cells.