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You are here: BAILII >> Databases >> European Court of Human Rights >> DVOYNYKH v. UKRAINE - 72277/01 [2006] ECHR 858 (12 October 2006) URL: http://www.bailii.org/eu/cases/ECHR/2006/858.html Cite as: [2006] ECHR 858

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FIFTH SECTION

CASE OF DVOYNYKH v. UKRAINE

(Application no. 72277/01)

JUDGMENT

STRASBOURG

12 October 2006

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Dvoynykh v. Ukraine,

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

Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having deliberated in private on 18 September 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  The applicant's detention from 19 June 1999 until 9 February 2000

B.  The applicant's detention from 23 March until 1 December 2000, his state of health and medical treatment

C.  The conditions of the applicant's detention from 23 March until 1 December 2000

1.  The applicant's submissions on the facts

2.  The Government's submissions on the facts

D.  The applicant's trial and conviction

II.  RELEVANT DOMESTIC LAW

A.  Constitution of Ukraine

B.  Pre-Trial Detention Act 1993 (“the Act”) (as worded at the material time (from 19 June 1999 until 1 December 2000))

1. to be defended in accordance with the rules of criminal procedure law;

2. to familiarize themselves with the rules of detention;

3. to take a one-hour daily walk;

4. 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;

5. 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;

6. to use their own clothing and footwear and to keep documents and notes related to their criminal cases;

7. 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;

8. 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;

9. 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;

10. 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.

C.  Correctional Labour Code of 1970 (“the Code”) (as worded at the material time (from 19 June 1999 until 1 December 2000))

III.  2000 REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT (“THE CPT”)

“86.  Simferopol SIZO No. 15, located within the town, was built at the beginning of the 19^th 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.”

“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.

“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.”

THE LAW

I.  ADMISSIBILITY

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  The applicant's detention from 19 June 1999 until 9 February 2000

B.  The applicant's detention from 23 March until 1 December 2000, his state of health and medical treatment

(a)  Conditions of the applicant's detention

(b)  Medical treatment and assistance to the applicant and conditions of his labour in detention

II.  MERITS

A.  Alleged violation of Article 3 of the Convention

B.  Alleged violation of Article 13 of the Convention

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

B.  Costs and expenses

C.  Default interest

FOR THESE REASONS, THE COURT UNANIMOUSLY

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following sums, to be converted into the national currency of the respondent State at the rate applicable on the date of payment:

(i)  EUR 2,000 (two thousand euros) in respect of non-pecuniary damage;

(ii)  EUR 100 (one hundred euros) for costs and expenses;

(iii)  plus any tax that may be chargeable on the above amounts;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 12 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Peer Lorenzen
Registrar President