I correctly predicted that there was a violation of human rights in TKACHEV v. UKRAINE (NO. 2).
Information
- Judgment date: 2018-04-19
- Communication date: 2012-11-19
- Application number(s): 11773/08
- Country: UKR
- Relevant ECHR article(s): 3
- Conclusion:
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.889211
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
The applicant, Mr Kirill Aleksandrovich Tkachev, is a Ukrainian national, who was born in 1977.
He is currently serving a sentence in the Yenakiyevo Correctional Colony.
A.
The circumstances of the case In December 1999 the applicant was arrested on suspicion of participating in a murder and other crimes and remanded in custody pending criminal investigation against him.
On 25 December 2001 the Cherkassy Regional Court of Appeal sentenced the applicant to life imprisonment for murder and other crimes.
This judgment was upheld by the Supreme Court of Ukraine (on 16 July 2002) and became final.
Until September 2004 the applicant was detained in the Cherkassy pre‐trial detention centre (SIZO).
According to him, the SIZO administration treated the detainees in a degrading manner; the cells were overpopulated and lacked basic amenities.
In October 2004 the applicant was transferred to the Sokalska no.
47 Correctional Colony in Zhvyrka.
During his stay in the Colony, the applicant was held in a cell, which, according to him, lacked basic amenities.
In particular, there were no shelves or other furniture for storage.
Personal belongings, including food, had to be left on the floor.
The table was designed for two persons and, since there were four to five inmates in the cell, some of them waited for the others to finish up their meals and consumed cold food or had to take their meals on their beds.
There was no container for garbage disposal and the detainees had to buy garbage bags out of their personal funds.
They also had to pay for other basic necessities, such as toilet sanitizers and water filters.
Unfiltered tap water was not healthy to consume.
It was yellow, rusty and had a rotten smell.
Heating in winter was virtually non-existent; air was damp and cold; drops of water regularly fell from the ceiling, and the walls were covered with fungi.
The washing unit had no changing facilities.
The detainees undressed in their cells and walked to the washing unit across an unheated corridor.
A fully dressed guard watched the prisoners during their bathing and kept insisting that they hurry up, which felt intimidating to the applicant.
The detainees shaved with razors, which were otherwise stored in damp linen bags, covered with fungi and rust.
Detainees, suffering from infectious diseases, in particular, tuberculosis, washed themselves in the same facilities as the healthy inmates, no disinfection measures being taken by the administration.
The sick and the healthy inmates took their daily walks in the same courtyards.
Fresh blood clots, spat out by the infected inmates, were a common sight during the applicant’s daily walks.
The courtyards were also small, damp, and barely letting in daylight.
The prisoners were constantly subjected to physical and psychological ill-treatment by the administration.
Upon his arrival and until April 2005, the applicant was regularly beaten by the guards, apparently to induce him to behave respectfully.
In the morning, the prisoners were required to roll up their mattresses.
During the daytime they could not lie down and had to either stand or sit on the steel mesh of their beds.
At all times, when the guards opened the door for food distribution or other purposes, the prisoners were expected to retreat to a far corner of the cell, squat, and put their arms behind their heads.
When taken out of the cell for a walk, a visit, a bath or other purposes, the applicant was always handcuffed, his arms twisted painfully.
He was also usually required to walk in a squat or other unnatural position and his head and face were covered with a dark hood.
The handcuffs were never disinfected, which provoked further spread of infectious diseases among the inmates.
The administration carried out regular searches of personal belongings, leaving them in complete disorder on the floor, and often damaged.
On an unspecified date the applicant’s watch was stolen by an unidentified guard during the search.
Prisoners were also not provided with adequate medical assistance and complaints about poor health were often ignored.
Until 2006 family visits were authorised on Sundays only.
In 2006 it also became possible to have visits on Saturdays.
However, the facilities were insufficient to meet the demand.
As a result, on 14 November 2004 the applicant’s father was denied a possibility to visit with the applicant, while on 28 November 2004 he received a two-hour visit only, instead of a four‐hour one, authorised by applicable law.
On another occasion, namely, on 25 December 2005, the applicant was afforded only forty-five minutes of visiting time with his parents.
The applicant’s correspondence was regularly reviewed by the prison authorities and a number of his letters disappeared.
On numerous occasions the applicant complained to numerous authorities, including the prosecutors’ office, the National ombudsman and the courts that the conditions of his detention were inhuman and degrading.
His complaints generated no or formalistic answers.
B.
Relevant domestic law 1.
Constitution of Ukraine of 1996 The relevant provisions of the Constitution read as follows: Article 28 “Everyone has the right to respect for his or her dignity.
No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity...” 2.
Code on the Execution of Sentences of 2003 (in force from 1 January 2004) Article 150 provides that detainees sentenced to life imprisonment are to serve their sentences in correctional colonies of the highest level of security.
Pursuant to Article 151, they are, as a rule, placed in cells for two persons.
Under certain circumstances, they may be placed in solitary confinement.
They are allowed to have a one-hour daily walk and a short meeting (up to four hours) with relatives or other persons once every six months.
3.
Internal Regulations of the Penitentiary Institutions, approved by the State Department for the Execution of Sentences on 25 December 2003 (Order No.
275) The rules governing the detention of persons sentenced to life imprisonment subject them to special restrictions as regards material conditions, activities and possibilities for human contact, which include permanent separation from the rest of the prison population, limited visit entitlements, prohibition of communication with other prisoners and being escorted by three officers with a guard dog and handcuffed with their arms behind their back whenever they are taken out of their cell (Regulations 23‐25).
C. Relevant Council of Europe documents 1.
Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006 (Appendix) The relevant extracts from the Appendix to the Recommendation, adopted at the 952nd meeting of the Committee of Ministers, read as follows: “Instruments of restraint 68.1 The use of chains and irons shall be prohibited.
68.2 Handcuffs, restraint jackets and other body restraints shall not be used except: a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; or b. by order of the director, if other methods of control fail, in order to protect a prisoner from self‐injury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority.
68.3 Instruments of restraint shall not be applied for any longer time than is strictly necessary.
68.4 The manner of use of instruments of restraint shall be specified in national law... 2.
2005 Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) The visit by the CPT delegation to Ukraine took place from 9 to 21 October 2005, in the course of which the delegation inspected, inter alia, Temnivka Colony No.
100 for men, including the unit for men sentenced to life imprisonment, and the temporary unit for women sentenced to life imprisonment at Kharkiv Colony No.
54.
The CPT made the following findings concerning certain aspects of the conditions of detention of persons sentenced to life imprisonment (emphasis added by the CPT): “...112.
As regards men sentenced to life imprisonment whose situation was examined in Colony No.
100, the findings were unsatisfactory, with no action having been taken on numerous long-standing CPT recommendations.
In terms of material conditions, they were certainly accommodated in a modern unit, in well-lit cells (with both natural and artificial light) and properly or even very well-equipped.
However, the cells were relatively cramped (two prisoners in cells measuring a little over 9 m2 and four in cells of slightly more than 15 m2), particularly as the prisoners spent 23 hours a day in their cell and their living space was further eroded by sewing machines installed in the cells so that they could work.
The detention regime had not changed since the 2002 visit; neither had the rules for visits from outside and for the receiving of parcels (cf.
paragraphs 96 and 97 of the report on the 2002 visit).
113.
Further, whereas the unacceptable practice of systematic handcuffing whenever a prisoner was taken out of a cell has at last been abolished for women, the Ukrainian authorities have still not ceased this practice for men.
More generally, the attitude towards this category of prisoners at Colony No.
100 was extremely security-oriented, with staff constantly stressing their “dangerousness”.
In addition, the delegation noticed a wire cage in the staff office, in which the prisoners said they were systematically locked when interviewed by members of staff.
114.
In short, the prisoner management policy recommended by the Committee for over five years for this category of male prisoners is still not in place, despite the adoption of the new Code on the Execution of Sentences.
The Ukrainian authorities’ failure to act in this respect is no longer acceptable.
The Committee calls upon the Ukrainian authorities to act now on the Committee’s recommendations in this field, taking account of all the guidelines set out in paragraph 75 of its report on the 2000 visit as well as in Recommendation (2003) 23 of the Council of Europe Committee of Ministers on the management by prison administrations of life-sentence and other long-term prisoners.
It further recommends that: - the practice of systematically handcuffing men whenever they are taken out of their cell cease with immediate effect; - the use of the wire cage for holding prisoners during interviews with staff at Colony No.
100 be prohibited; - more purposeful out-of-cell communal activities (educative, leisure) be made available to prisoners sentenced to life imprisonment; - the entitlement to visits be substantially increased, with the final objective of bringing this entitlement on a par with that of other prisoners.
...The exercise yards, which are too small (less than 13 m2), should also be enlarged.
115.
Access to medical care in specialised facilities remains problematic for this category of prisoner, both male and female.
At Colony No.
54, three women had major psychiatric disorders (dementia, serious depression with suicidal ideation, paranoid psychosis), requiring care in a specialised facility.
In one case, the prisoner refused any kind of treatment for cancer, her refusal obviously being a result of her psychiatric disorder.
Further, the transfer of life-sentenced prisoners suffering from tuberculosis to specialised medical penitentiary facilities was still not possible.
Such persons were kept in their detention units, isolated in their cells, sometimes for many months.
The CPT recalls that obliging prisoners to stay in an establishment where they cannot receive appropriate treatment due to a lack of suitable facilities or because such facilities refuse to admit them, is an unacceptable state of affairs which could amount to inhuman and degrading treatment.
The CPT recommends that the Ukrainian authorities ensure that life sentenced prisoners – men and women – who require treatment in a specialised hospital facility can be transferred to such a facility without undue delay.” COMPLAINTS In his initial correspondence on 21 March 2006 the applicant complained about the conditions of his detention in the Cherkassy SIZO.
On 27 June 2006 he additionally complained about the physical and sanitary conditions of his detention in the Sokalska no.
47 Correctional Colony, regular beating by the guards in October 2004-April 2005 and numerous elements of the daily prison regime (i.e.
organisation of washing‐up, searches, food distribution, out-of-cell escorts, lack of measures to prevent spreading of infectious diseases and the prohibition to use mattresses and bedding during the daytime).
On 29 May 2008 the applicant completed a formal application form, in which he reiterated his complaints about the Sokalska no.
47 Correctional Colony and additionally complained about inadequate organisation of family visits in the Sokalska no.
47 Correctional Colony.
The applicant invokes Article 3 of the Convention in respect of the above complaints.
Judgment
FIFTH SECTIONCASE OF TKACHEV v. UKRAINE
(Application no. 11773/08)
JUDGMENT
STRASBOURG
19 April 2018
This judgment is final but it may be subject to editorial revision. In the case of Tkachev v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
André Potocki, President,Mārtiņš Mits,Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 27 March 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 11773/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Kirill Aleksandrovich Tkachev (“the applicant”), on 21 March 2006. 2. The applicant, who had been granted legal aid, was represented by Mr A. Bushchenko, a lawyer practising in Kyiv. In December 2017 Mr Bushchenko informed the Court that his work on this case had been completed and that due to a change of post, he could no longer represent the applicant. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice. 3. On 19 November 2012 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1977. He is currently serving a life sentence in Dnipro. A. The applicant’s conviction
5. By the final domestic judgment of 16 July 2002, the applicant was sentenced to life imprisonment for murder and other crimes. B. The applicant’s detention in the Cherkassy SIZO
6. Until September 2004 the applicant was detained in the Cherkassy pre-trial detention centre (“the Cherkassy SIZO”) in which, he stated, cells had been overcrowded and had lacked basic amenities. C. The applicant’s detention in the Sokalska Colony
7. In October 2004 the applicant was transferred to Sokalska Correctional Colony no. 47 in Zhvyrka (“the Sokalska Colony”), where he remained until 15 November 2007. 8. The applicant stated that during his detention in the above Colony, one of his cellmates had been Mr V.M. Guk, a former applicant to the Court, with whom he had shared the cell for three years. Mr Guk’s application has already been examined by the Court, which found, in particular, a violation of Article 3 of the Convention on account of the conditions of his detention in the above Colony (see Guk v. Ukraine [Committee], no. 16995/05, §§ 83-86, 8 December 2016). 1. Conditions of the applicant’s detention in the Sokalska Colony
(a) Submissions by the applicant
9. According to the applicant, during his stay in the Colony he was held in a cell, in which the living space was “extremely insufficient”. As confirmation thereof, he referred to a written statement signed by Mr Guk, which he had submitted to the Court. According to that statement, the cell measured 3.7 by 3.4 metres (12.58 square metres) including a sanitary facility measuring 1.35 by 1.3 metres (1.76 square metres). 10. The cell lacked basic amenities: no furniture for storage of personal belongings and food; a very small table; no rubbish container; and no toilet cleaners. The tap water was of a poor quality and water filters were not provided. Heating in the cell was inadequate; the air was damp and cold; the walls were covered with mould. (b) Submissions by the Government
11. According to the Government, the equipment in the applicant’s cell corresponded to the domestic standards. Prisoners were provided with all necessary amenities. The quality of the tap water corresponded to the standards. The temperature in the cell was not less than 18 degrees Celsius and the air in the cell was neither damp nor cold. 2. Various aspects of the regime in the Sokalska Colony
(a) Submissions by the applicant
12. According to the applicant, the washing unit in the Colony had no changing facilities, so the prisoners had first to undress in their cells. A guard watched them wash and hurried them up. The prisoners had to shave with poor-quality razors. Prisoners with tuberculosis washed in the same unit as healthy prisoners; no disinfection measures were taken. Sick and healthy prisoners took their daily walks in the same courtyards, which were also small, damp and dark. 13. Whenever the guards opened the cell, the prisoners had to retreat to its far corner, squat and put their arms behind their heads. When taken out of the cell, the applicant was handcuffed; he was required to walk in a squat or some other unnatural position; his head was covered with a black bag; handcuffs were not disinfected. 14. Until April 2005 the prisoners had been required to roll up their mattresses in the morning. During the daytime they had been prohibited from lying down on the beds. 15. In support of the above submissions, the applicant referred to the written statement of Mr Guk, which confirmed the procedure the prisoners had had to follow when the guards had opened the cell. It also stated that, when taken out of the cell, the prisoners had been handcuffed and escorted in a crouched position; a bag had often been put over a prisoner’s head. Sick and healthy prisoners washed in the same unit and walked in the same courtyard. Mattresses on the beds had to be rolled up during the daytime. 16. The applicant also stated that the administration had carried out searches of personal belongings, leaving them in disorder and often damaged; his watch had been stolen by an unidentified guard. Prisoners had not been provided with adequate medical assistance; they had been constantly ill-treated by the administration. In 2004-2005 the applicant had been regularly beaten by the guards. In 2004-2006 family visits had not been adequately organised. The applicant’s correspondence with relatives had been reviewed and a number of his letters had disappeared. (b) Submissions by the Government
17. The Government stated that the washing unit had a changing room. Disinfection measures in the Colony had fully complied with the domestic standards. Prisoners with tuberculosis were detained in a separate cell; they washed after others, and the washing unit was disinfected afterwards. 18. Whenever the cell was opened, the prisoners were required to retreat to its far end, but not to squat. When escorted out of the cell, they were handcuffed, but not required to walk in a squat or with the head covered with a bag; handcuffs were in a proper condition and their disinfection was not required. 19. Searches were conducted pursuant to the relevant regulations, and there were no situations alleged by the applicant. Prisoners were not prohibited to use mattresses during the daytime. II. RELEVANT DOMESTIC LAW
20. The Internal Regulations of Penal Institutions (approved by Order No. 275 of the State Department for the Execution of Sentences on 25 December 2003 and repealed on 23 January 2015, as worded at the material time) governed, inter alia, the detention of life prisoners. They imposed special restrictions on such prisoners. In particular, they provided that male prisoners must be handcuffed with their arms behind their back whenever they were taken out of their cell (rule 25). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
21. The applicant complained about the conditions of his detention in the Sokalska Colony and about various aspects of the regime in it: the procedure followed whenever the cell was opened and when he had been escorted outside the cell, the organisation of washing, searches, the prohibition on using mattresses and bedding during the daytime, and the lack of disinfection measures. He invoked Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
22. The Government contested the applicant’s allegations. A. Admissibility
1. Complaints about the regime in the Sokalska Colony
23. As to the applicant’s complaints about various aspects of the regime in the Colony, the Court notes the following. 24. Concerning the complaint about the use of handcuffs, the Court considers that this measure did not subject the applicant to distress or hardship exceeding the unavoidable level of suffering inherent in detention. Even though the prison regulations appeared to allow the use of the impugned measure on all male life prisoners, without giving consideration to their personal situation and the individual risk that measure might or might not present, the applicant did not specify the nature and extent of the suffering and humiliation caused to him by the restriction complained of, and failed to substantiate whether that suffering went beyond that inevitably connected with his lawful detention (see similarly Guk, cited above, § 74). 25. In so far as the applicant complained that he had had to squat whenever the cell had been opened or when escorted outside the cell, and that he had had to wear a bag during such escorting, the Court notes that this allegation is indirectly supported by Mr Guk’s statement and disputed by the Government. It further notes that in the case of Guk it found that Mr Guk’s allegation about a use of a bag over a prisoner’s head had not been supported by any evidence (ibid., § 73). In addition, it observes that there is no evidence that the applicant ever raised the above complaints before the domestic authorities. Lacking any evidence that these complaints were raised before the domestic authorities and not having the benefit of their findings in relation thereto, the Court, mindful of its subsidiary role under the Convention, cannot determine the reliability of the applicant’s contentions. Similar considerations apply to the allegations about the prohibition on using mattresses and bedding during the daytime. Therefore, these aspects of the case are manifestly ill-founded (see similarly Andrey Yakovenko v. Ukraine, no. 63727/11, §§ 85-86, 13 March 2014). 26. As to the applicant’s allegations relating to the washing and searches, they are not supported by any evidence. The written statement of Mr Guk does not support these particular allegations. 27. Lastly, the complaint about the risk of contracting tuberculosis and the lack of disinfection measures is not sufficiently substantiated. The applicant did not mention any incidents of healthy prisoners having been infected from sick prisoners (see similarly Solovyev v. Russia (dec.), no. 76114/01, 27 September 2007), either generally or due to the alleged lack of disinfection measures. 28. In the light of the foregoing, the Court finds that this part of the applicant’s complaints is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 2. Complaints concerning conditions of detention
29. The Government submitted that the applicant’s complaints about the conditions of detention in the Sokalska Colony did not correspond to reality. 30. The Court notes that these complaints are sufficiently detailed and are not, therefore, manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits
31. The Court reiterates that Article 3 of the Convention requires States to ensure that a person is detained in conditions compatible with respect for his human dignity, and that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). A serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 136-39, 20 October 2016). 32. In the present case, the Court takes into account the applicant’s statement that for three years of his detention in the Sokalska Colony he had shared a cell with three or four other detainees, including Mr Guk. The Court further notes that in respect of Mr Guk it found a violation of Article 3 on account of the fact that he and his cellmates had clearly had less than 3 square metres of floor space each and had also been confined to their cells for most of the day during the same period as in the present case (see Guk, cited above, §§ 83-86). The Court does not see any reason to come to a different conclusion in the present case. It therefore concludes that there has been a violation of Article 3 of the Convention on the same account. 33. Having regard to the above finding, the Court does not consider it necessary to address the applicant’s other allegations relating to conditions of his detention, including his allegations about the lack of furniture and other amenities in his cell, poor quality of water and insufficient heating. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34. Lastly, the applicant complained about the conditions of detention in the Cherkassy SIZO, and of regular beatings, inadequate organisation of family visits, inadequate medical assistance and interference with his correspondence rights in the Sokalska Colony. He invoked Article 3 and in substance Article 8 of the Convention. 35. The Court has examined the above complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, it rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. Article 41 of the Convention provides:
“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
37. The applicant claimed 50,000 euros (EUR) in respect of non‐pecuniary damage. 38. The Government considered that there had been no violation in the present case. In the alternative, they considered the above sum to be excessive and invited the Court to reject it. 39. Deciding on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage. B. Costs and expenses
40. The applicant did not submit any claims under this head; the Court therefore makes no award in this respect. C. Default interest
41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the applicant’s complaints under Article 3 of the Convention about the conditions of his detention in the Sokalska Colony admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAndré PotockiDeputy RegistrarPresident