Communicated on 19 December 2017

FOURTH SECTION

Application no. 14057/17 Viktor Valeryevich SUKACHOV against Ukraine lodged on 10 February 2017

STATEMENT OF FACTS

The applicant, Mr Viktor Valeryevich Sukachov , is a Ukrainian national who was born in 1978 and lives in Dnipro . He is represented before the Court by Ms Y.N. Ashchenko , a lawyer practising in Kharkiv .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Conditions of the applicant’s pre-trial detention

On 31 May 2012 the applicant was arrested on suspicion of involvement in terrorism and the production and storage of explosives. He has since then been held in pre-trial detention in the Dnipropetrovsk (now Dnipro ) SIZO no. 3 , which in March 2016 was recategorised as a prison (“the Dnipro SIZO (prison)”).

According to the applicant, from October 2012 to May 2014 he was held in cells nos. 661 and 655 located in unit 6. They measured 7.2 and 7.5 square metres, respectively, of which the toilet facilities measured approximately 0.63 and 0.65 square metres, respectively. The applicant did not specify exact periods during which he was held in each of the above cells and the number of detainees held with him in each cell.

Since May 2014 the applicant has been held in cells nos. 931 and 911. They measure 13.75 and 13.95 square metres, respectively, of which the toilet facilities measure approximately 1 square metre. Usually five detainees, and more rarely four, are held in cells nos. 931 and 911.

The applicant states that the cells are not equipped with any artificial ventilation system. In the winter the windows are locked shut so that they cannot be opened and no fresh air can enter the cells. From May to October the window frames are removed and the air inside the cells becomes cleaner. However, due to the partial absence of glass panes in the windows, mosquitos which are attracted by the artificial light from the cells, which is never switched off, fly into the cells.

Toilet facilities in the cells are separated from the living area by a partial wall and are not equipped with a siphon drainage system, as a result of which an unpleasant odour always remains in the cells.

Detainees have the opportunity to take a shower only once a week. Shower cabins nos. 7, 9 and 11 are equipped with only four taps, of which only two or three are usually in working order. It is often impossible to set an acceptable water temperature.

Centralised laundry of detainees’ clothes and bedding is not organised by the administration. Detainees have to do and dry their laundry in their cells, as a result of which increased humidity always occurs in the cells.

In support of his statements the applicant submitted five photos of, he claims, cell no. 911 taken by him and other detainees; he also referred to other detainees’ written statements submitted by him.

In particular, detainees A.B., R.Sh . and A.Y., who apparently shared cell no. 911 with the applicant for an unspecified period, confirmed the dimensions of that cell and its toilet facility, as well as the number of detainees held in the cell. They stated that there are always five persons in the cell, except for short periods when one of the detainees is being convoyed somewhere (for example, to a court). They also stated that there are five beds in the cell (two two-tier beds and one one-tier bed), measuring 2.05 x 0.8 metres and a table and a bench measuring 1.1 x 0.8 x 0.7 metres; the latter can be used simultaneously by a maximum of two persons. There is also a wash stand measuring 0.6 x 0.6 metres. As a result, the only free space in the cell is the 0.9 metre wide passage between the beds. Therefore, there is insufficient free space for a minimum amount of physical activity or for reading case files.

The above-mentioned detainees also stated that the toilet in cell no. 911 is separated by the 0.53 metre high wall, which does not hide anything. Detainees therefore conceal the toilet with a “curtain” made from bed sheets. The toilet hole is blocked with a plug (“ grusha ”) made by the detainees, as there is a smell from the sewage pipe. Detainees clean the toilet with detergents or cleansers which they receive from their relatives, as they are not provided with those by the administration. A chlorine solution for disinfection purposes is provided once every 1-2 months.

A.B., R.Sh . and A.Y. confirmed the applicant’s statements about inadequate ventilation in the cell and stated that the cell window measures 1.3 x 1.3 metres; it is closed with a two-section frame (one section is around 1 metre long and another one around 0.3 metre long). There are a lot of cracks in the frame. The cell is prepared for winter by detainees themselves with the help of improvised materials (pieces of fabric, cotton wool). Detainees have no chemicals to eliminate mosquitos flying inside the cell in huge quantities (given that in the summer the window frame is removed). The administration does not allow such chemicals to be sent to detainees by their relatives.

The applicant also referred to the written statements of the above ‑ mentioned and two other detainees (S.K and K.Z.) about the general situation in the SIZO (prison). In particular, all of them confirmed that detainees may take a shower only once a week and stated that the showers are dirty and some taps are out of order. They also confirmed the situation with the laundry as described by the applicant and pointed out that bedding is not provided or changed by the administration.

S.K. and K.Z. also referred to overcrowding, poor lighting and ventilation in their own cells, their unsanitary condition, the lack of separation of the toilet from the living area, no provision of personal hygiene materials, necessities or cleansers, daily walks lasting less than one hour in a small, dirty and dusty exercise yard, unsatisfactory food, etc.

2. Conditions of the applicant’s transportation on hearing days

Since April 2014, the applicant has periodically been transported to the Industrialnyy District Court of Dnipro (“the District Court”) in special prison vans in order to participate in court hearings on his criminal case.

According to him, a one-way journey to the court lasts 1.5 hours on average. One prison van is used for transporting detainees to several courts or for their simultaneous delivery to the prosecutor’s office and police.

Most frequently, the following vans are used for transporting detainees:

- a van based on a “ Gazel ” minibus. Detainees are held in two van cells designed for 3-4 persons and 2-3 persons (the second cell is usually used for sick detainees);

- a van based on a “ Gazel ” minibus with an insulated interior. Detainees are held in three cells, two of which are designed for 1-2 persons and one for 4-5 persons;

- a van based on a “GAZ” vehicle. Detainees are held in two cells measuring 2.1-2.2 square metres (designed for 6-10 persons) and 0.4 square metres (for one person);

- a van based on a “GAZ” vehicle with an insulated interior. Detainees are held in four cells.

The vans have insufficient lighting and ventilation. It is cold inside them during the winter, whilst in the summer the temperature inside them rises to 35-40 degrees Celsius. The vans have no special space for smokers and non ‑ smokers therefore have to inhale tobacco smoke.

In support of his statements the applicant submitted eight photos of the prison vans showing that some of them have no windows. Moreover, according to a written statement made by S.K., to which the applicant generally referred, during transportation to the court detainees are held in “boxes” and other cells for more than two hours (sometimes more than 12 hours); those cells are very small and there is only room to stand in them; they are not equipped with toilet facilities and there is no ventilation or lighting; no food is provided on hearing days.

3. Conditions of the applicant’s detention on hearing days

The applicant also stated that on arrival at the court detainees are held in cells located in the holding area. There are three cells measuring, according to him, 2.6 x 1.2 metres, 2.6 x 1 metre and 2.1 x 1 metre; 5-7 persons are usually held in two bigger cells designed for 6 persons, and 3-4 persons are held in a smaller cell designed for 4 persons. According to a letter from the State Judicial Administration of Ukraine sent in May 2015 to other detainees and included in the applicant’s case file, the holding area accommodating the cells measures 22 square metres; each of the three cells measures 6 square metres; there is also a toilet facility measuring 4 square metres and a water dispenser in a larger room in which the holding area is located.

The cells have only a small window in the door, which is shut off by metal plates; there is no access to natural light or fresh air and no artificial ventilation. Cells are equipped only with benches; there are no tables on which detainees could place a case file and prepare for a hearing. Detainees are allowed to go to the toilet only with the permission of a convoy officer when there are 2-3 convoy officers present in the holding room.

In support of his statements the applicant submitted four photos of, he claims, the cells in the holding area of the District Court and also referred to the aforementioned letter from the State Judicial Administration, which confirmed that there is no artificial ventilation in the cells.

On a hearing day the applicant has to remain in the court for the whole day, since the convoy van collects detainees from the SIZO (prison) at 8.30 a.m., but the court hearings begin at 2.20-2.30 p.m. and finish at 5.30 p.m., after which the convoy van goes back to the SIZO (prison).

In support of his statements about the conditions of transportation and detention on hearing days the applicant also relied on relevant reports compiled by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) and the National Preventive Mechanism (“the NPM”) of Ukraine.

B. Relevant domestic and international reports

1. Reports of the Parliamentary Commissioner for Human Rights (Ombudsman) of Ukraine

The question of the observance of detainees’ rights in Ukraine has been addressed in the Ombudsman’s annual reports since 2000 . Additionally, since November 2012 the Ombudsman has exercised the NPM functions provided for by the 2002 Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , which was ratified by Ukraine on 21 July 2006.

A number of issues h ave been noted by the Ombudsman/NPM in that respect. For example, t he NPM special report for 2015 refers, among other things, to the absence in Ukraine’s legislation of unified standards ensuring prisoners’ and detainees’ rights during their transportation (“convoying”) by rail and road transport; to the absence of unified equipment standards for special transportation vehicles which would take account of the Court’s case-law and the CPT recommendations; and to insufficient lighting in courts’ holding cells, their unsanitary condition and the presence of tobacco smoke. [1]

The NPM special report for 2016 states that, despite the ongoing reform of the p r i so n system in Ukraine, systemic violations of human rights continue to tak e place in the majority of pen al institutions and detention facilities. Overcrowding remains one of the main issues. D espite a significant reduction in the number of persons held in Ukra inian penal institutions , non-compliance with living space requirements continue s to persist . Other problems i nclude unsatisfactory sanitary, hygienic and material conditions in cells, inadequate temperature reg ulation , lack of lighting, fresh air and drinking water , and inadequate toilet facilities that provide no privacy . Cells are often dirty and have an unpleasant odour; their walls are da mp and covered with fungi. Pr isoners are not always provided with sleeping places or bed ding , and sometimes not even with mat t r e sses and pillows. Prisoners repeatedly complain about vermin in their cells and the absence of clean ing material s. In the majority of institutions the food given to detainees is insufficient in quantity, provided at inappropriate times, and of low quality . The report also highlighted the overcrowding of the courts’ cells in which detainees have to wait on hearing days, the penitentiary authorities’ failure to provide detainees with food on those days, and the insufficient number of technically equipped convoy vehicles. [2]

The NPM special reports for previous years as well as the Ombudsman’s own annual reports all refer to similar problems generally common in Ukraine’s detention facilities and penal institutions.

2. Re port s by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

Since 1 September 1997, the date of the entry into force of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in respect of Ukraine, delegates from the CPT have visited various detention facilities in Ukraine, including the then Dnipropetrovsk SIZO ( in 2009 and 2013) .

Thus, in its report of 23 November 2011 (prepared following the 2009 visit to Ukraine), the CPT recommended to the Ukrainian authorities that efforts be made to decrease overcrowding in that SIZO, to consider the possibility of increasing the frequency of prisoners’ access to a shower, and to make strenuous efforts to offer to prisoners organised out-of-cell activities. It also recommended that the Ukrainian authorities take steps to review the arrangements for transporting detainees . [3]

In its report of 29 April 2014 (prepared following the 2013 visit to Ukraine, which included a follow-up visit to the above SIZO), the CPT observed that “ most of the accommodation areas in that SIZO were indeed in a poor state of rep air, badly ventilated and dirty” and that “i n-cell toilets were only partially partitioned ”. With reference to all the detention facilities visited, the CPT further observed, among other things, that inmates were as a rule entitled to take a shower only once a week, that they had access to one hour of daily outdoor exercise, and that most remand prisoners were locked up in their cells for 23 hours per day, with little to occupy themselves. The adoption of the new Code of Criminal Procedure on 13 April 2012 and its entry into force on 20 November 2012 and other recent measures had contributed to the eradication of massive, severe overcrowding in the establishments visited. However, overcrowding remained an issue for many inmates who still enjoyed an “extremely limited amount of living space ... in cells which were often found to be in a poor condition.” The CPT concluded that the cumulative effect of these conditions and restrictions “could well be considered, for many inmates, as a form of inhuman and degrading treatment.” The CPT thus recommended that the Ukrainian authorities redouble their efforts in the SIZOs visited in order to increase living space for detainees, that they pursue their refurbishment and reconstruction programmes in the older accommodation blocks of the Dnipro petrovsk SIZO , that they ensure, when implementing refurbishment and construction (reconstruction) p rogrammes, that in-cell toilets and sanitary annexes are fully partitioned ( that is to say, up to the ceiling) , that they consider the possibility of increasing the frequency of prisoners ’ access to a shower in the establishments visited , and that they ensure that prisoners have the possibility of genuine physical exer cise every day , which will require enlarg ement of the exercise yards . [4]

The CPT has also repeatedly acknowledged general problems regarding conditions of detention in Ukraine. In particular, its most recent report of 17 June 2017 ( prepared following its ad hoc visit to Ukraine in November 2016 ) stated that the CPT delegation had been informed by the Ukrainian authorities about the ongoing re-organisation of the prison system and of measures taken to reduce the prison population, especially as regards sentenced prisoners in correctional colonies. The CPT welcomed these developments and urge d the Ukrainian authorities to pursue their efforts to further reduce the remand prisoner population . However, it observed that:

“...u nfortunately, the above-mentioned reforms have not yet impacted upon the situation of remand prisoners. In particular, the old inadequate norm of living space per inmate in SIZOs (2.5 m²) was still in force at the time of the visit, complex rules on separation of different categories of remand prisoners continued to r esult in localised overcrowding in the pre-trial facilities visited...”

The CPT thus called upon the Ukrainian authorities to take decisive steps to revise the legislation and the regime for remand prisoners . It also observed that:

“ ...t he most striking feature of the SIZOs visited were the appalling material conditions, in particular at Odesa , Khmelnytskiy and Kyiv SIZOs (with the notable positive exception of the juvenile units at Khmelnytskiy and Kyiv SIZOs). Those in Kyiv and Odesa had further deteriorated since the CPT ’ s last visits in, respectively, September 2014 and October 2013 and could now easily be considered inhuman and degrading. The above-mentioned situation was made even worse by the fact that the heating was either completely switched off or barely working.

Conditions were somewhat better at Kharkiv SIZO although they remained quite poor due to the age and infrastructure of the buildings. The Committee recommend s that the ongoing renovation of Kharkiv SIZO be continued and that, to the extent possible with the existing infrastructure, it comprise the transformation of large-capacity cells into smaller living units. Such transformation should also be the objective for all the other SIZOs (and, as applicable, all the other penitentiary establishments) in Ukraine.

Further, it is a matter of serious concern for the CPT that, in all the SIZOs visited, remand prisoners were usually not offered any out-of-cell activities other than outdoor exercise for one hour per day ” . [5]

The CPT has also acknowledged the problems regarding the conditions of transportation of detainees and prisoners in Ukraine. Its findings in this respect were summarised by the Court in the cases of Andrey Yakovenko v. Ukraine , no. 63727/11, §§ 71-73 , 13 March 2014 , and Yaroshovets and Others v. Ukraine , nos. 74820/10 and 4 others, § 65 , 3 December 2015 .

C. Decisions of the Committee of Ministers pursuant to Article 46 § 2 of the Convention

At a number of its meetings the Committee of Ministers has considered, pursuant to Article 46 § 2 of the Convention, measures adopted by the Government of Ukraine with a view to complying with the Court ’ s judgments concerning conditions of detention in Ukraine .

For instance, during the 1288 th meeting held on 6-7 June 2017 , Ministers ’ Deputies examined the Nevmerzhitsky , Yakovenko , Logvinenko , Isayev and Melnik group of cases (concerning conditions of detention and medical assistance in pre-trial detention facilities) and adopted the following decision:

“The Deputies

...

As regards general measures

...

4. noted the authorities ’ commitment to adopting comprehensive measures to resolve the complex issues raised by these judgments and the important legislative and institutional reforms underway;

...

6. with regard to conditions of detention in pre-trial detention facilities and prisons, noted the introduction of the probation system and strongly encouraged the authorities to explore further the use of alternatives to detention to reduce overcrowding;

7. strongly encouraged the authorities to focus on elaborating a coherent strategy to fight overcrowding and remedy the broader shortcomings in detention conditions, drawing inspiration from the relevant recommendations of the European Committee for the Prevention of Torture (CPT) and the Committee of Ministers;

...

9. urged the authorities to submit information on the measures taken to improve conditions of detainees ’ transportation in line with CPT and Committee of Ministers ’ recommendations;

10. noted the elaboration of a draft law aimed at introducing both preventive and compensatory remedies and strongly encouraged the authorities to continue their efforts, in the context of the on-going cooperation activities with the Council of Europe, to put in place an effective remedy or combination of remedies;

...

Future examination

12. decided to change the classification indicator for all of these groups from complex problem to structural problem, given that it is increasingly clear from the Court ’ s judgments that the issues raised are structural in nature;

13. decided to examine these groups as follows:

- December 2017 (DH): the establishment of effective remedies and conditions of detention in pre-trial detention centres;

- March 2018 (DH): conditions of detention in prisons and access to medical care in detention;

- June 2018 (DH): conditions of detention in police establishments and during transportation.” [6]

COMPLAINTS

The applicant complains under Article 3 of the Convention that the conditions of his detention in the Dnipro SIZO (prison) and the conditions of his transportation and detention on hearing days have been inhuman and degrading .

He also states that there are no effective remedies in Ukraine in respect of the above complaints.

REQUEST FOR FACTUAL INFORMATION AND QUESTIONS TO THE PARTIES

1. The Government are requested to provide the following information:

(a) periods during which the applicant was held in cell no. 655 and cell no. 661; number of detainees held together with him in each of those cells (if that number was different in different periods, to indicate each period and a number of detainees corresponding to each period and cell);

(b) periods during which the applicant was held in cell no. 911 and in cell no. 931; periods during which four and during which five detainees were held in cell no. 911 and in cell no. 931;

(c) overall dimensions and material condition of the above four cells (in particular, the dimensions and condition of the in-cell sanitary facilities, availability of natural light and air, artificial ventilation, adequacy of t emperature regulation , type and sizes of windows in those cells and of shutters/bars installed on windows, possibility of using the toilet in private, and compliance of the cells with basic sanitary and hygienic requirements );

(d) nature and frequency of movement outside the cell s (access to outdoor exercise) and of out-of-cell activities ; area and condition of the exercise yard;

(e) frequency, dates and duration of transportation of the applicant to a trial court on hearing days; types of prison vans used for his transportation; dimensions and material condition of cells in the vans in which the applicant was held during the transportation; number of detainees held together with him in those cells; dimensions and material condition of cells in the trial court in which the applicant was held on hearing days; number of detainees held together with him in those cells.

2. In the light of the above clarifications, did the conditions of the applicant’s detention in the Dnipro SIZO (prison) and the conditions of his transport ation and detention on hearing days amount to treatment prohibited by Article 3 of the Convention (see, in particular, Muršić v. Croatia [GC], no. 7334/13 , §§ 91-141 , ECHR 2016 , as regards principles and standards for the assessment of the minimum personal space per detainee in prisons) ?

3 . Has the applicant had at his disposal any effective domestic remed y for his complaints under Article 3 of the Convention about the conditions of his detention in the Dnipro SIZO (prison) and the conditions of his transport ation and detention on hearing days, as required by Article 13 of the Convention ? In particular, has he had at his disposal any preventive and compensatory remedies for his Article 3 complaints? If so, the Government are invited to provide information about the relevant domestic case-law and administrative practice.

4. Is the present case suitable for a pilot judgment procedure? In particular, do the facts pertinent to the applicant’s complaints under Articles 3 and 13 of the Convention disclose the existence of a “systemic” or “structural” problem or other similar dysfunction which gives rise or may give rise to other similar applications ? If so, the Government are invited to provide information as regards any measures put in place in order to resolve the problem or dysfunction at national level.

In their replies to the above questions, the parties are invited to make their comments in the light of the Court ’ s case-law (see, in particular, Ananyev and Others v. Russia , nos. 42525/07 and 60800/08 , §§ 1 79 -234, 10 January 2012 ; and Neshkov and Others v. Bulgaria , nos. 36925/10 and 5 others, §§ 267-289 , 27 January 2015 ) .

[1] . Monitoring of Places of Detention in Ukraine: State of Implementation of National Preventive Mechanism. Report for 2015; pp. 47 and 103.

[2] . Monitoring of Places of Detention in Ukraine: State of Implementation of National Preventive Mechanism. Report for 2016; pp. 17, 19 , 20, 24 , 31, 44-48 and 83-86 .

[3] . CPT/ Inf (2011) 29 , pp. 25, 84 and 94.

[4] . CPT/ Inf (2014) 15, pp. 58 -61 and 95.

[5] . CPT/ Inf (2017) 15, pp. 5-7 .

[6] . CM/Del/ Dec( 2017)1288/H46-35.