FIFTH SECTION

Application no. 11773/08 Kirill Aleksandrovich TKACHEV against Ukraine lodged on 21 March 2006

STATEMENT OF FACTS

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 crim inal 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 gener ated 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 (Regu lations 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 regim e (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 r espect of the above complaints.

QUESTIONS TO THE PARTIES

1. Were the physical and sanitary arrangements in the Sokalska Correctional Colony no. 47 compatible with the requirements of Article 3 of the Convention?

2 . Was the prison regime, as implemented by the Colony administration in the applicant ’ s case, compatible with the requirements of Article 3 of the Convention? (see mutatis mutandis Horych v. Poland , no. 13621/08 , § 99, 17 April 2012; Piechowicz v. Poland , no. 20071/07 , § § 161-163 and 168, 17 April 2012 and by contrast Iorgov v. Bulgaria (no. 2) , no. 36295/02 , § 65, 2 September 2010).

The Parties are invited, in particular, to provide detailed description of practices concerning the organisation of searches, washing-up, food distribution, use of mattresses and bedding during the daytime, prevention of dissemination of infectious diseases and escorting the prisoners out of their cells.