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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), 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 material
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. Under 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.
D. Correctional Labour Code ("the Code")
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, packages, postal packages and
money by remittance, to correspond and to send money to relatives
by remittance.
83. Article 37 з 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 колонiя) are allowed
to receive, per year: seven parcels in colonies subject to the
general regime (колонiя загального режиму), six parcels in
colonies subject to the strengthened regime (колонiя посиленого
режиму) and five parcels in colonies subject to the strict and
special regime (колонiя суворого режиму). Sentenced persons held
in educational labour colonies (колонiя 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 колонiя-поселення).
A list of foodstuffs and toiletries which sentenced persons are
allowed to receive in 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 з 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.
E. Public Prosecutor's Office Act
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 material 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 subjected 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
cancel them where they do not comply with the law, and request
officials to give explanations concerning breaches which have
occurred.
III. Relevant documents of the Council of Europe
Resolution 1097 (1996) of the Parliamentary Assembly
on the abolition of the death penalty in Europe
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).
Resolution 1112 (1997) on the honouring
of the commitment entered into by Ukraine upon accession
to the Council of Europe to put into place a moratorium
on executions
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 prisoners 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.
Resolution 1179 (1999) and Recommendation 1395 (1999)
on the honouring of obligations and commitments by Ukraine
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.
IV. Reports of the European Committee
for the prevention of torture and inhuman and degrading
treatment and punishment (CPT)
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.
1998 Report
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 - 7 m2. 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 grille 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.
1999 Report
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).
2000 Report
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 1/2 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.
THE LAW
I. The Government's preliminary objection
103. The Government reiterated the objection they had made at
the admissibility stage of the proceedings. They submitted that
the applicant, who had been held on death row for four years, had
not once applied to the executive or the judicial authorities at
any level regarding the alleged violations of his rights.
Therefore, he had not granted the Government an opportunity to
react properly to the alleged violations of his rights and to
remedy them through the national machinery for the protection of
the rights in question.
104. The Government underlined that the existing national legal
system (primarily the Constitution and other legislative Acts)
afforded a real possibility of effective judicial protection of
human rights. They relied on Article 55 з 1 of the Constitution,
according to which "everyone is guaranteed the right to challenge
before a court decisions, actions or omissions of State
authorities, local self-government bodies, officials and
officers". The Government referred in this regard to the
Constitutional Court's decision of 25 December 1997, in which the
court had stated: "Article 55 з 1 of the Constitution should be
construed to mean that everyone is guaranteed the protection of
his rights and freedoms before a court. The latter cannot refuse
justice if the rights and freedoms of a citizen of Ukraine, a
foreigner or a person without citizenship are violated or their
realisation is obstructed or limited in any other way."
105. The Government further reiterated that according to
section 248(1) of the Code of Civil Procedure, "a citizen has a
right of access to a court if he or she considers that his or her
rights have been violated by actions or omissions of a State
authority, a legal entity or officials acting in an official
capacity. Among entities whose actions or omissions may be
challenged before the competent court listed in the first
paragraph of this provision are the bodies of State executive
power and their officials".
106. The applicant disputed the Government's submissions,
alleging that he had exhausted all domestic remedies at his
disposal. In particular, he contended that his wife and mother had
successively filed complaints about the applicant's prison
conditions to the Zaporozhie Regional Prosecutor (on 15 August
1997), to the President of Ukraine (on 15 December 1998 and 19
February 1999) and to the Ombudsdman (on 9 October 1998). In
addition, his wife had complained to the prison administration
about aspects of his conditions of detention, including lack of
visits and outdoor exercise.
107. The Court recalls that, according to its established case-
law, the purpose of the domestic remedies rule in Article 35 з 1
of the Convention is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court.
However, the only remedies to be exhausted are those which are
effective. It is incumbent on the Government claiming non-
exhaustion to satisfy the Court that the remedy was an effective
one available in theory and in practice at the relevant time.
Once this burden of proof has been satisfied, it falls to the
applicant to establish that the remedy advanced by the Government
was in fact exhausted, or was for some reason inadequate and
ineffective in the particular circumstances of the case, or that
there existed special circumstances absolving him or her from this
requirement. One such reason may be the national authorities'
remaining totally passive in the face of serious allegations of
misconduct or infliction of harm by State agents, for example
where they have failed to execute a court order. In such
circumstances, the burden of proof shifts once again, so that it
becomes incumbent on the respondent Government to show what they
have done in response to the scale and seriousness of the matters
complained of (see e.g. the Court's judgment of 28 July 1999 in
the case Selmouni v. France (No. 25803/94, зз 74 - 77, ECHR 1999-
V).
108. The Court emphasises that the application of this rule
must make due allowance for the context. Accordingly, it has
recognised that Article 35 must be applied with some degree of
flexibility and without excessive formalism. The Court has
recognised that the rule of exhaustion of domestic remedies is
neither absolute nor capable of being applied automatically; in
reviewing whether the rule has been observed, it is essential to
have regard to the particular circumstances of the individual
case. This means, amongst other things, that the Court must take
realistic account not only of the existence of formal remedies in
the legal system of the Contracting Party concerned, but also of
the general legal and political context in which they operate, as
well as the personal circumstances of the applicant (see Akdivar
and Others v. Turkey, judgment of 16 September 1996, Reports of
Judgments and Decisions 1996-IV, p. 1211, з 69).
109. In the present case, the Court finds on the evidence that
the applicant complained to the prison administration about
certain aspects of his detention, in particular visits from
relatives and outdoor walks (see paragraphs 24, 29 and 45 above).
However, he was always given the answer that the situation could
not be improved, since it was directly dependent on the financial
and logistical resources of the prison which were insufficient
(see paragraphs 24 and 45 above). In this regard, the Court does
not consider reliable the evidence of the governor of Zaporozhie
Prison No. 2 that he had met the applicant's wife when she had
requested a visit to her husband, but that he had never heard any
complaints from her regarding the applicant's conditions of
detention (see paragraph 48 above).
110. Insofar as it is suggested that the applicant failed to
lodge a formal complaint to the prison authorities concerning his
conditions of detention, the Court accepts the evidence of the
applicant that, although he had a general knowledge of his rights
and obligations as a prisoner, the document containing the prison
rules was only occasionally posted in his cell in Zaporozhie
Prison No. 2 (see paragraph 19 above). The Government have adduced
no evidence to show that the applicant was otherwise made aware of
his rights or of the appropriate means by which he might seek
redress for his complaints. In these circumstances, it cannot be
held against the applicant that he did not lodge a formal
complaint about his conditions of detention through the correct
channels.
111. As to the possibility of lodging a civil action in the
courts, the Court reiterates that Article 35 з 1 requires not only
that a domestic remedy is available, but that it is effective to
redress the alleged breach of an individual's Convention rights.
While it is true that the present applicant did not bring civil
proceedings to complain of his conditions of detention, the Court
notes that the Government have not shown how recourse to such
proceedings could have brought about an improvement in those
conditions. Nor have they supplied any example from domestic case-
law to show that such proceedings by a prisoner would have stood
any prospect of success.
112. In these circumstances, the Court considers that it has
not been sufficiently established that recourse to the remedies
suggested by the Government would have been capable of affording
redress to the applicant in relation to his complaints concerning
his conditions of detention. Accordingly, the Court decides that
the Government's objection on grounds of a failure to exhaust
domestic remedies cannot be upheld.
II. Alleged violation of Article 3 of the Convention
113. The applicant complained about the conditions of detention
on death row in Zaporozhie Prison No. 2, alleging that these
conditions subjected him to treatment falling within the scope of
Article 3 of the Convention, which reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
He claimed that he was held in solitary confinement, that he
was prevented from taking outdoor walks and that he was allowed to
receive only one parcel of food and toiletries every two months.
He further claimed that he was prevented from receiving parcels of
warm clothes from his relatives, despite the fact that he had only
light clothing to wear in temperatures of -20 -C.
1. The submissions of the parties
114. The Government submitted that all the relevant detention
rules applied in the case of the applicant, including those
relating to cell facilities, medical treatment, visits and
correspondence, were laid down in sections 1, 8, 9, 11, 12 and 13
of the Act, in certain provisions of the Code of Criminal
Procedure, in Articles 28, 37, 40, 41, 42 and 43 of the
Correctional Labour Code, in the Instruction of 20 April 1998 and
in the Temporary Provisions of 25 June 1999. They pointed out
that, according to section 8(4) of the Act, a person sentenced to
capital punishment was kept in custody, separated from other
prisoners. The applicant shared his cell with another inmate. The
cell facilities in his case had complied with the relevant
sanitary and hygiene standards: it measured 7.1 square metres, it
had a sleeping area, a radio, a bed, a chair, adequate natural and
electric lighting, heating, running water and a toilet, as
provided in section 11(2) of the Act. The applicant had been
provided with three meals a day, and with clothing, footwear and
bedclothes.
115. The Government further submitted that medical assistance
and treatment and prophylactic and anti-epidemic measures for
inmates sentenced to capital punishment were carried out pursuant
to the national legislation on health protection. Moreover, the
applicant had been able to buy food in the prison shop.
116. The Government noted that, after the Supreme Court had
upheld the judgment of the court of first instance, the
applicant's relatives had applied to visit him on 19 August, 23
September, 7 October, 6 November and 6 December 1997, and on 20
January, 18 February, 19 March, 14 April and 21 May 1998. They had
visited the applicant on 23 September, 23 October, 21 November and
23 December 1997, on 23 January, 25 February, 25 March, 24 April,
26 May, 25 September, 27 October and 25 December 1998, and on 26
January and 26 February 1999. In November 1998 the applicant's
relatives had not asked for a visit.
117. The Government further noted that between 11 April 1997
and 24 April 1998 the applicant had received fourteen parcels from
his relatives and that on 28 November 1998 he had received a
parcel from his mother. On 18 May, 15 June, 19 August, 28
September and 29 October 1998 the applicant had sent letters. The
applicant had also been entitled to a daily one-hour outdoor walk,
during which he had been able to have physical exercise in the
fresh air.
118. In their additional observations, the Government stressed
that in accordance with the Instruction, the applicant had been
entitled to receive two small packets a year and money transfers.
He had been able to read books, magazines and newspapers borrowed
from the library of Zaporozhie Prison No. 2. He had had at his
disposal personal belongings and foodstuffs, and had been able to
buy foodstuffs and toiletries from the prison shop twice a month,
the value of which could amount to one month's statutory minimum
wage, to play board games, to have a daily one-hour outdoor walk,
to send twelve letters a year and receive letters without
limitation, and to have meetings with his defence lawyer without
any restrictions.
119. The applicant disputed the Government's arguments. He said
that the area of his cell was not 7.1 square metres as the
Government had claimed but only 3 square metres and that the
window was covered. Moreover, although between 1 April and 11
August 1997 he had received parcels weighing up to eight kilograms
twice a month, since 26 August 1997 he had received only a small
packet of two kilograms brought by his relatives once every two
months, and since 24 April 1998 he had received small packets of
two kilograms once every six months. His daily walks were limited
to 30 minutes. The prison administration had told him that it
could not provide him with proper medical services, as they had no
special facilities. He also submitted that visits from his
relatives were limited to 20 minutes, during which time he was
handcuffed. He could send twelve letters per year. He had not had
an opportunity to use a TV set or simple board games. He confirmed
that in October 1998 he had received a warm jacket and shoes from
his relatives.
120. In his further observations of January 1999 the applicant
stated that certain changes had taken place, but that his
relatives' visits continued to last only 20 or 30 minutes at the
most. He also submitted that between 3 April 1997 and 18 May 1998
he had not been entitled to have daily walks. In addition, on 1
March 1999 the governor of Zaporozhie Prison No. 2 had extended
the length of his relatives' visits to one hour. He concluded that
the conditions to which he was subjected at that time could be
regarded as satisfactory and as complying with national
legislation.
1. The Court's assessment
121. As the Court has held on many occasions, Article 3 of the
Convention enshrines one of the most fundamental values of
democratic society. It prohibits in absolute terms torture or
inhuman or degrading treatment or punishment, irrespective of the
circumstances and the victim's behaviour (see Labita v. Italy
[GC], No. 26772/95, з 119, ECHR 2000-IV).
122. According to the Court's case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the
scope of Article 3 of the Convention. The assessment of this
minimum level of severity is relative; it depends on all the
circumstances of the case, such as the duration of the treatment,
its physical and mental effects and, in some cases, the sex, age
and state of health of the victim (see, among other authorities,
Ireland v. the United Kingdom, judgment of 18 January 1978, Series
A No. 25, p. 65, з 162). Furthermore, in considering whether
treatment is "degrading" within the meaning of Article 3, the
Court will have regard to whether its object is to humiliate and
debase the person concerned and whether, as far as the
consequences are concerned, it adversely affected his or her
personality in a manner incompatible with Article 3. However, 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, зз 67 - 68, 74, ECHR 2001-III; {Valasinas} v. Lithuania,
No. 22558/98, з 101, ECHR 2001-VIII).
123. The Court has consistently stressed that the suffering and
humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment. Measures depriving a person of
his liberty may often involve such an element. In accordance with
this provision the State must ensure that a person is detained
under conditions which are compatible with respect for his human
dignity, that the manner and method of the execution of the
measure do not subject him to such distress or hardship exceeding
the unavoidable level of suffering inherent in detention and that,
given the practical demands of imprisonment, his health and well-
being are adequately secured (see {Kudla} v. Poland [GC], No.
30210/96, зз 92 - 94, ECHR 2000-XI).
124. In addition, as underlined by the Court in the Soering v.
the United Kingdom judgment, present-day attitudes in the
Contracting States to capital punishment are relevant for the
assessment whether the acceptable threshold of suffering or
degradation has been exceeded (see Soering v. the United Kingdom,
judgment of 7 July 1989, Series A No. 161, p. 41, з 104). Where
the death penalty is imposed, the personal circumstances of the
condemned person, the conditions of detention awaiting execution
and the length of detention prior to execution are examples of
factors capable of bringing the treatment or punishment received
by the condemned person within the proscription under Article 3
(ibid.). When assessing conditions of detention, account has to be
taken of the cumulative effects of those conditions, as well as
the specific allegations made by the applicant (see Dougoz v.
Greece, No. 40907/98, з 46, ECHR 2001-II; Kalashnikov v. Russia,
No. 47095/99, з 95, ECHR 2002-VI).
125. The Court notes that the applicant complained of certain
aspects of the conditions to which he had been subjected in
Zaporozhie Prison No. 2 where he was detained until mid-September
1999. It reiterates in this regard that the Convention only
governs, for each Contracting Party, facts subsequent to its entry
into force in respect of that Party. The Court therefore has
jurisdiction to examine the applicant's complaints in so far as
they relate to the period after 11 September 1997, when the
Convention came into force in respect of Ukraine. However, in
assessing the effect on the applicant of the conditions of his
detention, the Court may also have regard to the overall period
during which he was detained as a prisoner, including the period
prior to 11 September 1997, as well as to the conditions of
detention to which he was subjected during that period (see
Kalashnikov, cited above, з 96).
126. The Court further observes that the applicant was detained
under a sentence of death until his sentence was commuted to one
of life imprisonment in June 2000. As is noted above (see
paragraphs 91 - 93 above), the use of capital punishment in
Ukraine was the subject of strong and repeated criticism in
Resolutions of the Parliamentary Assembly of the Council of
Europe, in which it was recorded that between 9 November 1995 and
11 March 1997 a total of 212 executions had been carried out in
the State. However, on the latter date a de facto moratorium on
executions was declared by the President of Ukraine; on 29
December 1999 the Constitutional Court held the provisions of the
Criminal Code governing the use of the death penalty to be
unconstitutional; and on 22 February 2000 the death penalty was
abolished by law and replaced by a sentence of life imprisonment
(see paragraph 16 above). The applicant was sentenced to death in
April 1997, after the moratorium had come into effect. The Court
accepts that, until the formal abolition of the death penalty and
the commutation of his sentence, the applicant must have been in a
state of some uncertainty, fear and anxiety as to his future.
However, it considers that the risk that the sentence would be
carried out, and the accompanying feelings of fear and anxiety on
the part of those sentenced to death, must have diminished as time
went on and as the de facto moratorium continued in force.
127. The applicant's original complaints, as submitted to the
former Commission, concerned the conditions of detention in
Zaporozhie Prison No. 2. The Court will therefore focus on
examining the detention conditions in that prison, taking as a
point of comparison the situation in Zaporozhie Prison No. 1
where, at the time of the Court Delegates' visit on 5 and 6
October 1999, the applicant had been imprisoned for a few days. It
will take into account its Delegates' findings, the parties'
written observations and documents submitted by them, as well as
the Reports of the CPT covering the period in question, so far as
relevant.
128. At the time of his conviction, the applicant was twenty-
nine or thirty years old. He was taken to Zaporozhie Prison No. 2
on an unspecified date at the end of 1996 or at the beginning of
1997 (see paragraph 19 above). He remained in this prison until
mid-September 1999, when he was transferred to Zaporozhie Prison
No. 1 (see paragraph 44 above).
129. The Court notes the applicant's statement that he was
informed about his rights and obligations in Zaporozhie Prison No.
1 by means of a documents in his cell which he had read. His
evidence was corroborated by the prison governor of this
establishment (see paragraph 35 above). It also considers reliable
his statement that in Zaporozhie Prison No. 2, where he had
previously been detained, the piece of paper with prisoners'
rights and obligations was posted in his cell when a commission
from Kiev visited the prison, and was removed after its departure.
Nevertheless, the Court considers that the applicant had a general
knowledge of his rights and obligations (see paragraph 19 above).
130. The Court notes that in Zaporozhie Prison No. 2 the
applicant changed cells every week and later every month. His
evidence in this regard was partly corroborated by the governor of
this prison, who said that he had been moved from one cell to
another every ten days (see paragraph 47 above). The window in the
cells which he had successively occupied had been covered, the
strong electric lamp being switched on all the time (see paragraph
28 above). The cell had had no water tap. The area of the cell in
which he had been detained alone in Zaporozhie Prison No. 2 had
been, according to the applicant, at least half of the size of the
cell in Zaporozhie Prison No. 1 in which he was detained on the
day of the Court Delegates' visit (see paragraph 20 above). In his
written observations, he said that his cell had been 3 square
metres (see paragraph 114 above). The Court notes that the
applicant's testimony was in contradiction with the Government who
said in their written observations that the size of the cell was
7.1 square metres (see paragraph 114 above), but also with the
governor of Zaporozhie Prison No. 2 who said that the prison had
four death row double cells which were the same size (see
paragraph 47 above). Taking into account that the Delegates were
allowed to visit only two empty cells in this prison which were
allegedly intended for death row inmates (see paragraphs 47, 54
and 56 above), the Court considers the applicant's evidence
reliable and finds that the single cells in which he was held in
Zaporozhie Prison No. 2 were much smaller than the cell he
occupied in Zaporozhie Prison No. 1.
131. The Court observes that the applicant had originally
complained that he had been held in a separate cell. During the
interview with the Delegates' he said that he had generally been
alone at his own request (see paragraph 20 above) and that he had
agreed to share the cell with another inmate when the prison
administration had asked him to do so (ibid.).
132. Concerning the equipment of the applicant's cells, the
Court notes that its Delegates established during their visit that
the applicant's cell in Zaporozhie Prison No. 1 was renovated, in
order and clean. There was an open toilet, a wash basin with a
cold water tap, two beds and a table fixed to the floor, central
heating and a window with bars. There were some books, a
newspaper, and a stock of soap and toilet paper. The cell was
sufficiently ventilated.
The Delegates further established that two cells which they saw
in Zaporozhie Prison No. 2 were equipped with an open toilet, a
washbasin with a cold water tap, two beds fixed to the floor,
central heating and a window with bars. They were properly
ventilated.
133. The prison shower room in Zaporozhie Prison No. 2,
consisting of two rooms without windows, was very humid and dirty,
unlike the corresponding facilities in Zaporozhie Prison No. 1
(see paragraphs 55 above).
134. The Court accepts the applicant's evidence that he was not
allowed to watch TV, but that his relatives brought him books and
newspapers.
135. The Court notes that the applicant suffered from stomach
aches and high acidity, but on the basis of the evidence given by
the prison doctor it considers that the medical and dental care
provided by the prison's medical unit was adequate, although
certainly not of the same standard as the treatment provided
outside the prison environment. The Court refers to the prison
doctor's evidence given before its Delegates according to which
after June 1999, when she started to work in Zaporozhie Prison No.
2, the applicant had not requested any medical assistance from her
(see paragraphs 49 - 51 above). It cannot, on the other hand,
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