CASE OF DVOYNYKH v. UKRAINE
Preliminary objections dismissed (six-month period, non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
5. The applicant was born in 1947 and lives in Simferopol. 6. On 19 June 1999 the applicant was arrested on suspicion of theft and abuse of power. 7. On 23 June 1999 the applicant was placed in the Simferopol Temporary Detention Centre No. 15 (the “Simferopol SIZO”). 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. On 1 December 2000 the applicant was released from the Simferopol SIZO. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. The Government further maintained that the applicant had had daily walks for one hour and an eight hours' non-stop sleep a day. 23. 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. 24. On 29 August 2000 the Supreme Court of the Autonomous Republic Crimea upheld the decision of 14 July 2000. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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. 35. 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. 36. 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. 37. 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. 38. 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. 39. 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). 40. 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.” 41. 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. 42. 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.”