Last Updated on April 20, 2021 by LawEuro
FOURTH SECTION
CASE OF LUKASHOV v. UKRAINE
(Application no. 35761/07)
JUDGMENT
STRASBOURG
20 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of Lukashov v. Ukraine,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Faris Vehabović, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Ilse Freiwirth Deputy Section Registrar,
Having deliberated in private on 23 March 2021,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 35761/07) 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 Aleksandr Aleksandrovich Lukashov (“the applicant”), on 26 July 2007.
2. The applicant, who had been granted legal aid, was represented by Mr Andrey Kadochnikov, a lawyer practicing in Vinnytsia. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.
3. On 11 March 2013 notice of the application was given to the Government and they were invited to comment on the complaints concerningthe applicant ill-treatment in police custody and in prisons and the ineffectiveness of the ensuing investigations, poor conditions of the applicant’s detention and inadequacy of his medical treatment, arbitrary detention in solitary confinement and placement under preventive monitoring in detention, and the alleged lack of an effective domestic remedy in respect of his complaints of poor detention conditions and lack of adequate medical treatment.
4. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.
THE FACTS
5. The applicant was born in 1962 and lives in Pervomaisk, Luhansk Region. He has a long history of criminal convictions. In March 2017 his prison term under the latest conviction came to an end.
A. Alleged ill-treatment of the applicant
1. The applicant’s arrest and alleged ill-treatment by the police
6. The official records provided by the Government suggest that on 23 October 2001 the applicant committed a robbery near Velyka Krynytsia village in Zaporizhia Region,but escaped from the crime scene. Several hours later he was seen by traffic police in a nearby village. Having noticed a police car approaching him, he tried to run away. He was chased by traffic-police officers and was caught when he got stuck in a marsh.
7. According to the Government, the applicant actively resisted the arrest and one of the police officers used “hand-to-hand combat techniques” and handcuffs to overcome his resistance.
8. The applicant submitted that he had shown no resistance to the police and no force, and that only handcuffs had been used on him during his arrest. According to him, from 5 p.m. on 23 October 2001 to 1 a.m. on 24 October 2001 he had been tortured by the police officers at the main police station in Zaporizhia with the aim of extracting his confession to the crimes of which he had been suspected. The police officers had allegedly beaten him on his head, back and chest, administered electric shocks to his penis, suffocated him using a gas mask and a plastic bag and hung him over a bar, changing his position from time to time (подвесили на палке, периодически меняя положение). Unable to withstand the ill-treatment, the applicant had made self-incriminating statements and signed some blank pieces of paper. Following that, he had been taken to the Ordzhonekidzivskyy district police station where he had been left bleeding in a cell. His requests for an ambulance had been allegedly ignored.
9. On 25 October 2001 the applicant was taken to the Zaporizhia Town Hospital for a medical examination. He was found to be suffering from a chest abrasion (забій грудної клітини) and had several scratch marks on his head.
10. On an unspecified date after completion of the pre-trial investigation in his criminal case, which, according to the Government, was more than a year after the applicant’s arrest, the applicant complained to the Zaporizhia regional prosecutor’s office in respect of his purported ill-treatment by the police in October 2001. He described the ill-treatment in a similar way to how he did before the Court (see paragraph 8 above) and stated that his injuries had been documented in the Zhaporizhia Town Hospital.
11. On 1 November 2002 the Tokmak Town Court convicted the applicant of several counts of aggravated robbery and other crimes and sentenced him to thirteen years’ imprisonment, having dismissed his allegations of ill-treatment by the police as unsubstantiated.
12. On 11 December 2002 the Zaporizhia regional prosecutor’s office notified the applicant that there was no call for instituting criminal proceedings into ill-treatment allegations as it had been established following an investigation into his complaint that his injuries had resulted from application of proportionate force by the police to overcome the applicant’s resistance during his arrest.
13. On 1 September 2003 and 9 November 2004, the Zaporizhia Regional Court of Appeal and the Supreme Court of Ukraine respectively rejected appeals by the applicant against his conviction and dismissed allegations by the applicant of ill-treatment by the police, referring to the prosecutor’s office’s findings.
14. On 12 March 2007 the applicant again complained to the prosecutor’s office in respect of his alleged torture in police custody in October 2001.
15. On 31 August 2007 the Zaporizhia regional prosecutor’s office refused to institute criminal proceedings following the applicant’s complaint, finding no evidence that the police officers had committed any crime during the applicant’s arrest or during the police interviews. The prosecutor established, on the basis of statements made by the police officers who had arrested the applicant and those who had witnessed the arrest, that the applicant had actively resisted arrest and that physical force and handcuffs had therefore been used to overcome his resistance which had caused the injuries reported later at the Zaporizhia Town Hospital (see paragraph 9 above). The prosecutor further referred to the fact that neither during questioning nor at some other point during the pre-trial investigation had the applicant complained of having been beaten by the police. He also noted in this connection that the first complaints by the applicant against various actions of the police dated back to 14 February 2002 and January 2003 and that in neither of them had the applicant raised the issue of his ill‑treatment by the police on 23 October 2001.
16. On 22 October 2007 the Ordzhonekidzivskiy District Court of Zaporizhia rejected an appeal by the applicant against the decision of 31 August 2007 and found that the investigation conducted by the prosecutor had been thorough and comprehensive. According to the applicant, no copy of the mentioned decision was served on him.
2. Alleged ill-treatment of the applicant in post-conviction detention
(a) Incidents in the Zhytomyr prison no. 8 and the ensuing investigation
(i) Incidents of 21 and 28 February 2008
17. On 21 February 2008 the applicant arrived at the Zhytomyr prison no.8 (“the Zhytomyr prison”).
18. According to the applicant, upon his arrival he was searched and beaten by two officers, who threatened him that he would be killed if he continued his practice of complaining about the prison authorities. Thereafter he was placed in cell no. 102, a so-called “pressure cell” (прес‑хата – a cell where detainees who had been illicitly contracted by the prison authorities to harass rebellious inmates were detained). These detainees engaged in a groundless conflict with the applicant and, having pulled his jumper over his head, hit him in his stomach with a hard object. He was released from the “pressure cell”, but on 28 February 2008 he was again placed to that cell and was immediately beaten by his cellmates. During the fight, they allegedly inserted a foreign object into his abdomen.
19. According to the Government and the relevant official reports submitted by them, upon the applicant’s arrival on 21 February 2008 he was searched and a saw blade was seized from him. The applicant actively resisted his search, waved his walking stick in front of himself attempting to hit a prison guard, swore, and, eventually, deliberately hit himself on the head with his walking stick. Later, in his cell, the applicant behaved aggressively and provoked a conflict between him and inmates T. and Po. The applicant threw his affairs at the other inmates and hit the cell door with his head and foot, all the while using abusive language. When the guards arrived, he did not comply with their demands and continued behaving aggressively. He was then taken out of the cell to the reception unit. On his way, the applicant behaved violently and tried to hit the escorting officers. After a number of warnings, a sambo (a martial art) technique was used by one of the officers to calm the applicant’s down. In particular, the officer screwed the applicant’s left hand behind the back while securing the applicant’s chest with the right hand. The applicant was then examined by the prison doctor and was found to be suffering from abrasions on his forehead and on the left part of the cranial area (забій тім’яної ділянки ліворуч). Until the return of the prison governor the applicant was placed in solitary confinement for twenty-four hours; the next day seven days’ disciplinary detention were ordered for his misbehaviour. Upon his release from the disciplinary cell on 28 February 2009, he was returned to cell no. 102 and again provoked a conflict with the inmates held there, Pa. and Zhy. He was placed in solitary confinement for three months thereafter.
20. On 27 February 2008 the applicant’s forensic medical examination took place. The applicant complained to the doctor that he had been kicked by two prison officers in his abdominal area and left hand and afterwards by his cellmates in his head, chest and abdomen. He also admitted that he had hit himself in the head with a walking stick. A number of bruises and abrasions as well as an infected abdominal injury in a form of a triangle were discovered on the applicant and he was sent to a surgeon and neuropathologist for further examination.
21. On 28 February 2008 the applicant was examined by the Zhytomyr prison surgeon who diagnosed him with an infected abdominal wound and a post-traumatic arthrosis of the left knee.
22. On 29 February 2008 acting Zhytomyr prison governor refused to institute criminal proceedings into the circumstances leading to the applicant’s injuries recorded on 21 February 2008, having found that the applicant himself had been at fault for them. The decision was based on the Zhytomyr prison officers’ reports and those of the prison medical staff as well as on evidence given by the applicant’s cellmates. It is apparent from the prison governor’s decision that the applicant had refused to give any evidence regarding the incident.
23. On 11 March 2008 the applicant was seen by a neuropathologist and was diagnosed with osteochondrosis and the after-effects of a head injury accompanied by headaches.
24. On 14 March 2008 the forensic medical examination which commenced on 27 February 2008 (see paragraph 20 above) was completed. The applicant was diagnosed with an abrasion on his forehead, a bruise on the cranial part of his head and two abrasions on his chest. Those injuries, according to the expert, had been inflicted with blunt firm objects, possibly in the dates and circumstances specified by the applicant. As regards the abdominal wound, the expert found that it had been caused by an object with limited contact surface and that it was impossible to establish the date of infliction because the wound had become infected.
25. On 21 March 2008 the prison doctor examined the applicant and found no bodily injuries.
26. On unspecified dates the applicant and his representative complained to the prosecutor’s office of ill-treatment of the applicant by inmates and the prison staff on 21 and 28 February 2008.
27. On 21 March 2008 the prosecutor’s office refused to institute criminal proceedings against the prison officers and the applicant’s cellmates. On the basis of the statements made by the prison officers and prisoners from cell no. 102, as well as the applicant’s file, the prosecutor concluded that the abrasion on the applicant’s forehead, the bruise on the cranial part of his head and the abdominal injury recorded by the forensic medical expert on 14 March 2008 (see paragraph 24 above) had been self-inflicted and two abrasions on his chest had resulted from lawful and reasonable use of a sambo technique by the prison guard.
28. On 24 April 2008 the supervising prosecutor annulled the above‑mentioned decision, pointing to a number of deficiencies in the investigation and finding it impossible on the basis of the prosecutor’s submissions to establish the real picture of what happened on 21 February 2008. It was noted, inter alia, that the questioning of the participants in the incident and the witnesses had been superficial and that a number of important details were missing: details that had to be obtained from the applicant included which injuries had been caused by the prison offices and which by his cellmates, and in which way. A forensic medical examination was required in order to establish whether some of the injuries could have resulted from the alleged use of sambo techniques. Moreover, no legal assessment had been made in respect of the conclusion of the forensic expert that the applicant’s injuries could have been inflicted at the time and in the circumstances indicated by the applicant. It had also not been established whether the applicant had been examined by the prison medical staff straight after his arrival at the prison (and, if so, whether he had had any injuries) and why the applicant’s cellmates, who had not been newcomers, had been in the quarantine cell.
29. On 19 May 2008 the prosecutor’s office took a fresh decision not to institute criminal proceedings against the Zhytomyr prison officers and the applicant’s cellmates because of the absence of the elements of a crime in their actions. In addition to his earlier reasoning, the prosecutor relied on the statements of prison officers who had been present during the applicant’s search on 21 February 2008 and had denied any ill-treatment on the part of their colleagues. It was further noted that the applicant had been the only newcomer to the prison and, as soon as it had been prohibited to leave him without supervision given that he had been a person inclined to self-mutilate, he had been placed together with two other prisoners.
30. The applicant appealed challenging, inter alia, the prosecutor’s explanation of the cause of his injuries, claiming that no necessary measures, such as a confrontation between him and the relevant individuals and forensic medical experts, had been carried out to resolve inconsistencies between the two versions of the events.
31. On 22 October 2008 the Korolyovskiy District Court of Zhytomyr, in the absence of the applicant and his representative, dismissed the applicant’s complaint, having found the prosecutor’s conclusions to have been objective, comprehensive and substantiated. It further noted in this connection that the circumstances raised in the applicant’s complaint before the court had been duly addressed in the course of the prosecutor’s investigation.
32. On 12 January and 17 November 2009, the Zhytomyr Court of Appeal and the Supreme Court of Ukraine upheld the decision of the lower court. The Supreme Court stated, in particular, thatthe prosecutor’s assessment of the results of the applicant’s forensic medical examination was supported by the testimonies of the Zhytomyr prison staff and prisoners.
(ii) Incidents in November 2008
33. On 8 November 2008 the applicant arrived at the Zhytomyr prison from the Bucha prison hospital following a surgery performed with a view to extracting a foreign body from his abdominal wall and post-operative treatment. His medical examination upon arrival revealed a new cut on his abdomen and no other injuries.
34. According to the documents submitted by the Government, the applicant informed the Zhytomyr prison authorities that he had inserted a metal wire into his abdominal wall on his way to the Zhytomyr prison. The applicant stated before the Court that he had committed an act of self-harm and placed a foreign object into his abdominal wall on 10 November 2008, after having been attacked by other inmates (see paragraph 42 below).
35. The applicant further suggested that, immediately upon his arrival he had been searched in an inhuman and degrading manner. In particular, officers had stripped him of his clothes and had forced him to do sit-ups (apparently to push down objects hidden in the anal orifice, if any). He had protested, referring to his recent surgical operation and problems with his knee joints. Following the search, he had been ordered to follow the guards to cell no. 101. He had protested again, knowing that cell no. 101 had been a “pressure cell” (see paragraph 18 above). In response to his protests, the guards had beaten him severely, including hitting his jaw and chest, and dragged him into cell no. 101. Soon afterwards, two inmates, who had been there, had started harassing him verbally, promising to “teach him” how to stop complaining. Eventually, they had started pushing him around, avoiding, however, application of stronger force given that he had already been in a bad physical condition. Later, the guards arrived and moved him to a disciplinary cell.
36. The Government, relying on reports by the Zhytomyr prison guards and the applicant’s cellmates’ statements, submitted that once placed in cell no. 101 the applicant had started screaming that he had been having a conflict with his cellmates, using abusive language towards them, and threatening to harm himself by placing a pen in his abdomen if he had been left in the cell. The guards had intervened but the applicant had continued to behave aggressively and had not complied with the guards’ demands. He had insisted that he should be held in a cell only with those persons whose names he would be able to provide to the authorities. He had then been placed in a disciplinary cell following the incident.
37. On 9 November 2008 the applicant was returned to cell no. 101, where two different inmates were being held by that time.
38. According to the applicant, those inmates started harassing him and threatened him with physical violence. As soon as his demands to fix bodily injuries inflicted by the guards the day earlier and to call for a prosecutor were not complied with, the applicant, as alleged by him, cut his veins and was taken to Zhytomyr City Hospital.
39. According to the Government’s submissions, in particular the reports made by the prison guards to the prison governor after the incident of 9 November 2010, the applicant again sought to create a conflict with his cellmates, behaving aggressively and threatening to commit suicide. However, following warnings from guards, he calmed down. Similar statements were also made on that day by the applicant’s cellmates who, submitted, in addition, that they had not been acquainted with the applicant before and had had no conflict with him. The Government’s submissions suggest that the applicant refused to give any explanation following the incident.
40. Having found the applicant responsible for breaching the prison rules and causing the conflict with inmates, the prison governor ordered his placement in a disciplinary cell for another day.
41. On 10 November 2008 the applicant was returned to cell no. 101.
42. According to the applicant, his inmates hit him in his face and chest and tried to suffocate him with a small chain he was wearing around his neck.
43. According to the Government’s submissions, at about 6.30 a.m. on 10 November 2008 the applicant engaged in a groundless conflict with other inmates: he threw his belongings at them; he used abusive language; he tried to hit his forearms and tore a thin chain from his neck and threw it to the ground. The duty guards called the “emergency unit” to intervene. The applicant was asked to cease this unlawful behaviour. However, he cut his left forearm with a metal staple. The applicant was taken to the duty station and then to the medical unit where he complained that he had been beaten by inmates and asked that his injuries be recorded.
44. His medical examination at 6.35 a.m. on 10 November 2008 by the on-duty paramedic revealed a scratch mark on his left forearm and no other injuries. Two hours later, he was examined by a panel made up of staff and officials from the Zhytomyr prison. He was found to be suffering from bruises and abrasions on both his forearms, a line-form abrasion on his neck, a surface cut on the left elbow and an abdominal cut. An abdominal X-ray further revealed a metal-density foreign body in his abdominal cavity measuring about 6 cm. On the same date, the applicant refused an operation to extract this body in the prison medical unit and demanded to be placed in the surgical unit of a clinic of the State Prison Service.
45. From 10.05 to 10.28 a.m. on 10 November 2008 cell no. 101 was inspected by a prison inspections officer in the presence of two attesting witnesses. The inspection report suggests that some belongings were laying in disorder next to the applicant’s bed; a staple, one side of which was covered with a brown liquid, was discovered next to the washstand; and a broken neck chain was found next to the table.
46. On the same day the applicant and his cellmates were interviewed by the prison inspections officer. The applicant refused to give any explanations in respect of the incident. His cellmates denied any ill‑treatment and provided their version of the events, which was concordant with that of the guards in their reports to the prison governor following the incident. One of the cellmates further submitted that in the morning the applicant had been rubbing his neck with his neck chain and had hit the toilet door with his left shoulder and hand several times.
47. On 11 November 2008 the applicant’s disciplinary detention for fifteen days was ordered for his misconduct the day before. The chief of the Zhytomyr prison medical unit examined the applicant and confirmed that his injuries were compatible with his disciplinary detention.
48. On 12 November 2008 the applicant was examined by a forensic medical expert following an order made by the prison governor on 11 November 2008. The relevant report suggests that during the examination the applicant submitted that on 9 and 10 November 2008 his cellmates had beaten him with their hands and feet on his face and chest and that they had suffocated him with his neck chain. He further stated that on 10 November 2008 he had tried to cut his veins and had inserted a metal wire in his body. A number of bruises and abrasions, mostly on the applicant’s chest and forearms, as well as an abdominal surface wound were recorded by the expert. An X-ray examination of his jaw and chest was prescribed in order to complete the assessment.
49. According to the applicant, he also complained to the expert of his beating on 8 November 2008 by the prison officers but these allegations remained unrecorded.
50. On 15 November 2008 the applicant’s cellmates were again interviewed by the prison authorities. In their “explanations”, they re-stated their accounts of events on 8 November 2008 and stated that they had not used force on the applicant. In addition to their earlier statements concerning the events of 9 November 2008 they stated that after the guards had opened the door the applicant had gone out of the cell and refused to return. The duty officer had taken the applicant’s hand and brought him back to the cell. They further stated that they had not seen whether the applicant had had bodily injuries as he had been dressed, but attested that on 10 November 2008 they had seen the applicant squeezing his left forearm with his right hand and hitting himself with the right hand “in the area of the left elbow curve”. He also hit himself in the chest with his left hand and tore a thin chain from his neck and threw it to the ground. According to them, he was shouting that after all he would attain his goal and would be transferred to another detention facility. Lastly, they stated that no force had been used towards the applicant on their part or by prison guards at any date.
51. On 17 November 2008 one of the guards on duty on 9 November 2008 was questioned again. In addition to statements made in his report to the prison governor following the incident, he submitted that the applicant had left his cell without authorisation and refused to return. The officer therefore took the applicant’s right hand and brought him back to the cell.
52. On the same date the applicant underwent an X-ray examination in the Zhytomyr Regional Hospital as prescribed by the forensic expert. No pathologies were revealed in his jaw or ribs.
53. Later on the same date the forensic medical examination was completed. According to the expert conclusion (a) a bruise on his chest was caused by contact with a hard, blunt object, which could have been a hand, on 10 November 2008; (b) three bruises on the right forearm were caused by hard, blunt objects, which could have been the fingers of another person, on 9 November 2008; (c) a bruise on the left forearm was caused by a hard blunt object, which could have been the fingers of another person, on 10 November 2008; (d) an abrasion on the back part of his neck was inflicted on 10 November 2008 by means of friction or squeezing, or both, and could have been caused with a thin chain, even by the applicant himself; (e) an abrasion on his left elbow was caused on 10 November 2008 by means of cutting with a sharp object and could have been self-inflicted; and (f) an abdominal cut was inflicted with a sharp object in the two months prior to the examination.
54. On 20 November 2008 the acting governor of the prison refused to institute criminal proceedings against the applicant’s cellmates. On the basis of evidence obtained during the internal investigation, he found it established that the bruises on the applicant’s chest and left forearm, and the abrasions on his neck and elbow had been self-inflicted in the cell on 10 November 2008; three abrasions on his right forearm had been caused by the guard when grabbing the applicant’s hand on 9 November 2008 to calm him down; and the abdominal cut had been inflicted before the applicant’s arrival at the prison. He further concluded that the applicant had intentionally instigated the conflict with his cellmates in order to obtain a transfer to another prison.
55. According to the applicant, on the same day Deputy Prison Governor M., in the presence of his colleagues, hit the applicant on his body with a firm object covered with a soft material so that no marks from the beating would be visible. On an unspecified date shortly after the incident the applicant complained in respect of this to the prosecutor’s office.
56. The Government denied any ill-treatment of the applicant on 20 November 2008.
57. On 25 November 2008 the applicant was released from the disciplinary cell and ordered to return to cell no. 101. According to the Government, the applicant refused to enter the cell, attempted to hit the escorting officer with his walking stick and threatened him and his family with physical violence. No force or measures of restraint were administered on him on that day, but three months’ disciplinary detention were ordered.
58. On 1 December 2008, following the applicant’s complaint about his beating by M. on 20 November 2008, he was examined by a forensic medical expert. No copy of the report has been provided to the Court. The available documents suggest that two bruises on the applicant’s right chin, which had been inflicted with a hard blunt object, were found by the forensic expert. It is not clear from the case file whether the expert came to any conclusions as regards the date of infliction of the injuries and their compatibility with the applicant’s account of the events.
59. On unspecified dates the applicant’s representative lodged complaints with the prosecutor’s office in which she alleged, inter alia, that the applicant had been beaten in the Zhytomyr prison by prison officers and his cellmates.
60. On 5 December 2008, in reply to the above-mentioned complaints, the Zhytomyr prosecutor’s office issued a decision not to institute criminal proceedings against the Zhytomyr prison officers owing to the absence of elements of a crime in their actions. The decision was based on the results of the internal investigation conducted by the prison governor; the applicant’s alleged denial of his ill-treatment by the prison staff during the prosecutor’s investigation; statements made by the prison officers and those who had escorted the applicant to the prison; statements of the applicant’s cellmates supported by other prisoners; results of the applicant’s forensic psychiatric examination conducted at some point during criminal proceedings against him, according to which he had been diagnosed with psychopathy and personality disorder and had, inter alia, an explosive temper and inclination for writing unfounded complaints; and on his negative characteristics reported by others. The prosecutor found it sufficiently and objectively established that the applicant’s injuries recorded by the forensic expert on 12 November 2008 (see paragraphs 48 and 53 above) had been self-inflicted. He also stated that the applicant’s allegations of his beating by M. on 20 November 2008 (see paragraph 55 above) were not supported by the results of his forensic medical examination. He noted that two bruises recorded by the forensic expert had been self-inflicted.
61. On 22 December 2008 the Zhytomyr regional prosecutor’s office annulled the decision of 5 December 2008 as unsubstantiated, noting the prosecutor’s failure to take necessary measures to duly establish all relevant circumstances related to the applicant’s alleged beating on 20 November 2008 (see paragraph 55 above). It instructed the prosecutor to question the applicant in detail as to this incident and to also interview the persons to whom the applicant referred.
62. On 31 December 2008, following additional enquiries, the Zhytomyr prosecutor’s office issued a fresh decision not to institute criminal proceedings. In addition to the reasoning given in the decision of 5 December 2008 (see paragraph 60 above), the prosecutor noted that during additional questioning the applicant had refused to lodge a criminal complaint or make any formal statement with respect to his alleged beating of 20 November 2008, but during his conversation with the prosecutor he had informed the latter that he had been beaten by Officer M. The officer, supported by his colleague, had denied any contact with the applicant on the date referred to.
63. The applicant’s representative appealed against the above‑mentioned decision to a court, asserting, inter alia, that the circumstances in which the applicant had sustained injuries in November 2008 had not been properly established.
64. Following a round of court proceedings, on 11 May 2010 the Supreme Court of Ukraine quashed the above-mentioned decision and remitted the case for fresh examination to the first-instance court. Having referred to the findings of the forensic medical examination of 12 November 2008 (see paragraphs 48 and 53 above), it noted, in particular, that it had not been excluded that some of the applicant’s injuries had been caused by other persons and that hard, blunt objects had been used to inflict them. The court therefore found that the prosecutor’s findings about the self-inflicted nature of the applicant’s injuries had been premature, not supported by evidence and unsubstantiated. The court noted that it was necessary to conduct a comprehensive examination to establish the possibility or impossibility of those injuries having been caused by the applicant or other persons. Lastly, the court pointed to the lower courts’ failure to examine the applicant’s allegations that he had been beaten by his cellmates with the consent of the prison authorities and to the prosecutor’s failure to refer to any evidence which would have refuted the applicant’s allegation. It noted in this connection that the statements given by the prison staff and the applicant’s cellmates could not be considered as strong evidence as all of them had been interested persons.
65. On 9 July 2010 the Korolyovskiy District Court of Zhytomyr annulled the prosecutor’s decision of 31 December 2008 (see paragraph 62 above) for the reasons set out by the Supreme Court and ordered the prosecutor’s office to eliminate the relevant shortcomings.
66. On 19 January 2011, following an order by the prosecutor, a panel of experts conducted a forensic study of the applicant’s medical file. No copy of the expert’s conclusion has been made available to the Court.
67. On 21 January 2011 the prosecutor decided not to institute criminal proceeding against the prison officers. In addition to his earlier reasoning, he referred to the above-mentioned forensic study of the applicant’s medical file. According to the prosecutor’s findings, the injuries recorded by the forensic medical examination of 12 November 2008 (see paragraphs 48 and 53 above) had been self-inflicted, with the applicant using his own fingers and hard objects to cause them, and they had been caused on dates other than 9 and 10 November 2008. As regards the bruises recorded on 1 December 2008 (see paragraph 58 above), the prosecutor found it established that they had been caused by the applicant’s own hand on 29 or 30 November 2008. The decision further stated, without providing any details, that “it appear[ed] impossible to establish whether other persons [had] inflicted bodily injuries on the applicant”. This decision was approved by the Zhytomyr regional prosecutor’s office.
68. The case file suggests that the applicant was informed of this decision belatedly. A number of documents suggest that he and his representative made a number of enquiries in this connection to the domestic authorities.
(b) Other instances of the alleged ill-treatment
69. The applicant also stated that he had been ill-treated during his imprisonment on a number of other occasions, namely, at the Donetsk prison no. 124 hospital on 24 January 2008, 11 February 2008 and 16 November 2010; at the Luhansk Pre-trial Detention Centre on 15 June and 13 July 2008 as well as at the Yenakieve prison no. 52 on 15 November 2010. He further submitted that there had been no effective investigation into his ill-treatment complaints related to these incidents.
70. The Government denied any ill-treatment and submitted that the investigations into the applicant’s complaints had been effective.
B. Material conditions of the applicant’s detention
1. Donetsk prison hospital
71. From 17 December 2007 until 11 February 2008 the applicant underwent medical treatment in the Donetsk prison no. 124 hospital (“the Donetsk prison hospital”) for his lower back pain. He was detained in the ward no. 22.
(a) Conditions as presented by the applicant
72. The ward allowed very little space per prisoner. It was equipped with six bunk beds. The applicant, who had been assigned the upper bunk, had serious difficulties climbing up and down to his berth on account of his medical condition. The hospital facilities were in an unsanitary state and the premises were infested with rodents, bedbugs and flees. The belongings of the patients were not disinfected upon arrival. The hospital had no outside courtyard for fresh-air exercise and most of the time the patients were locked in their rooms. Nutrition was very poor. In particular, the patients were fed with low-quality cereal most of the time, while such products as butter, meat, eggs and fresh produce were available irregularly or could be acquired through illegal cash payments.
73. On various occasions the applicant and some other patients complained to the hospital management and to various outside authorities about the conditions there; no response was forthcoming. The applicant and two other prisoners attempted suicide, inserting metal objects into their abdominal walls. Following this, the Donetsk prison hospital was inspected by a number of State authorities and some violations relating to the conditions of detention were found.
(b) Conditions as presented by the Government
74. The Donetsk prison hospital was designed to accommodate 200 prisoners, but in the autumn and winter the overall sickness rate increased and therefore bunk beds had to be set up in some hospital wards in order to provide places for all patients. Prisoners with minor somatic diseases were given places on upper bunks. Having referred to a certificate issued by the State Prison Service, the Government submitted that the applicant had never been given an upper bunk.
75. Following a suicide attempt by the applicant and two other prisoners on 24 January 2008 (see paragraph 73 above) the hospital was inspected by the Donetsk Sanitary Service and by the prosecutor’s office. On 28 January 2008 the Sanitary Service concluded that the applicant’s allegations concerning poor detention conditions were unsubstantiated. In particular, no traces of rodents, flees, or other pests had been found during the inspection; the hospital staff disinfected the patients’ belongings upon arrival at the hospital and carried out routine disinfection measures on a regular basis; the cells were equipped with individual sleeping berths and were in a satisfactory sanitary state. Patients received three meals a day, the quality of which was regularly checked by the staff and recorded in a special registry. The food had the necessary quality certificates.
76. On 29 January 2008 the Donetsk regional prosecutor’s office acknowledged that the hospital had no courtyard for fresh-air exercise in breach of applicable standards and that the available living space per patient in the applicant’s cell was less than the minimum standard of 4 sq. m allowed by domestic law. The cell was equipped with bunk beds and accommodated six patients, while there should not have been more than four. The prosecutor’s office instructed the hospital authorities to address these breaches of the applicable standards. On 14 February 2008 the overcrowding problem was resolved as two prisoners were transferred from ward no. 22 to another ward. On an unspecified date in February 2008 a walking yard was also built at the Donetsk prison hospital. In the meantime, the prisoners had been given opportunity to walk in the hospital’s area.
2. Zhytomyr prison
77. The applicant served his sentence from 21 February 2008 till 4 April 2009 in the Zhytomyr prison, with some interruptions for medical treatment in different detention facilities.
(a) Conditions as presented by the applicant
78. The cells were poorly heated, if at all. During the daytime the bed was fastened to the wall and the applicant was not allowed to use it, notwithstanding his health problems. He had therefore to lie on a cold concrete floor which caused him mental and physical suffering. In addition, the disciplinary cell, in which he had been held for three month, was infested with huge rats with which he had to fight all the time during the day and also at night, instead of sleeping, as the rats jumped all over him. He was living in a permanent state of fear and inferiority.
79. To support his allegations, the applicant submitted photos which he claimed had been taken with a mobile phone by a compassionate guard during the applicant’s solitary confinement between November 2008 and March 2009. The photos show a heavy man – the applicant claimed it was him – holding big rats in his hands in a small cell.
80. On numerous occasions the applicant and his representative unsuccessfully complained to various authorities about the material conditions of his detention in the Zhytomyr prison.
(b) Conditions as presented by the Government
81. During his stay in the Zhytomyr prison the applicant was held in cells nos. 102, 213, 214, 212, 332, 101, 107 and 209, which included multi‑occupancy cells, single occupancy cells, disciplinary cells or isolation wards.
82. The Government submitted that the conditions of the applicant’s detention in the prison had been adequate. In doing so they mainly referred to the statutory regulations on detention. Their submissions may be summarised as follows.
83. The cells allowed at least 4 sq. m. of personal space per prisoner. The walls were unplastered cement and painted in light colours. The toilets were separated from the living area by a solid barrier. The concrete floor of the cells was covered with wooden planks. The cells were equipped with collapsible bunk beds, a table, narrow benches without backs, a wash basin, a lavatory pan and a shelf or a cupboard. The temperature in the cells was between 18 and 20˚C in autumn and winter and between 21 and 24˚C in spring and summer.
84. Beds in disciplinary cells were fastened to the wall during daytime but prisoners were able to sit on the benches installed in the cells.
85. The Government denied that there had been rats in the cells, having alleged that once a month thorough measures against rats were implemented and the entire facility was disinfected. The sanitary unit also disinfected the cells on a weekly basis.
86. The applicant’s numerous complaints in respect of poor detention conditions had been carefully examined by the prosecutor’s office and no violation of the relevant domestic standards had been established.
C. Other events
87. Between 2003 and 2007, while serving his prison sentence in Slavyanoserbsk prison no. 60 and the Slavyanoserbsk SIZO, the applicant self-mutilated on a number of occasions by inserting metal objects into his abdominal wall, allegedly to protest against his ill-treatment in prisons and poor conditions of detention. No criminal proceedings were instituted following the applicant’s allegations as his complaints were found to be unsubstantiated.
88. The applicant also unsuccessfully complained to the prosecutor’s office that in 2005 and 2007 he had been ill-treated while in transit between detention facilities.
89. On 22 July 2005 the Slavyanoserbsk Court convicted the applicant of malicious insubordination to the lawful demands of the management of the prison and sentenced him to three years’ imprisonment for this offence. That decision was upheld by the Lugansk Regional Court of Appeal on 5 December 2006.
90. On 30 March 2007 the Supreme Court of Ukraine refused to consider an appeal on points of law by the applicant against his conviction of 22 July 2005, finding that he had failed to include properly certified copies of the court decisions appealed against. Subsequently the applicant unsuccessfully attempted to challenge this ruling and to have the proceedings re-opened.
91. According to the applicant, the management of detention facilities sometimes secretly threw out his letters addressed to the Court and lied to him about having posted them. This happened, in particular, with his first application to the Court, drafted in March 2004 and his follow-ups prepared in 2005 and 2006 in various detention facilities.
92. On various dates numerous authorities rejected the applicant’s and his representative’s requests to provide them with copies of various documents for submission to the Court. Eventually (by 2010) the applicant received copies of most of the documents from his file and submitted a file of several thousand pages to the Court.
93. According to the applicant, in 2009 the management of Romny prison no. 56 illicitly hired a detainee to have him killed; the psychiatrist in the same prison also attempted to kill the applicant by way of giving him sedative injections with an unknown substance; and the management of all the detention facilities routinely interfered with the applicant’s correspondence.
94. On a number of occasions throughout his imprisonment the applicant was placed in solitary confinement as a disciplinary measure or in order to ensure his own safety, including following requests by him. The duration of his confinement varied from several days to three month at a time. On several occasions the applicant was also placed under preventive monitoring as a person at risk of absconding, provoking conflicts with cellmates, attacking prison officers, taking hostages, self-mutilating and with suicidal tendencies.
THE LAW
I. SCOPE OF THE CASE
95. The Court notes that, after notification of the present application to the respondent Government, the applicant, who was serving his prison sentence at the time, lodged new complaints concerning further inadequate medical assistance and poor conditions of detention in different facilities.
96. The Court notes that these new complaints are not an elaboration of the applicant’s original complaints on which the parties have commented. The Court considers, therefore, that it is not appropriate to take these matters up separately now (see, mutatis mutandis, Kondratyev v. Ukraine, no. 5203/09, § 62, 15 December 2011). The new complaints will be dealt with under application no. 11570/13.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ILL-TREATMENT
97. The applicant complained that on 23 and 24 October 2001 he had been tortured by the police view a view to extracting his confession to the crimes he had been suspected of. He further complained that he had been ill‑treated in the Zhytomyr prison in February and November 2008. He relied on Articles 3 and 13 of the Convention.
98. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), the Court will examine these complaints from the standpoint of Article 3 of the Convention alone, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Alleged ill-treatment in police custody
99. The Court notes that, according to the applicant’s version of events, on 23 and 24 October 2001 he was tortured for hours by police officers. In particular, he was punched numerous times in his head, back and chest, suspended from a bar and suffocated with a gas mask and a plastic bag. As further alleged by him, electric shocks were administered to his penis (see paragraph 8 above).
100. The applicant described his alleged ill-treatment in the same manner in his complaint to that effect raised at the domestic level (see paragraph 10 above).
101. The Court next observes that the only medical evidence he presented as proof concerning the injuries sustained following the torture was the results of his medical examination conducted a day after the impugned events at Zaporizhia Town Hospital (see paragraph 9 above).
102. The Court notes in this respect that the relevant documents suggest that his injuries were limited to a chest abrasion and several scratch marks on his head. Those injuries can hardly be regarded as matching the applicant’s description of his alleged ill-treatment, namely, long severe beatings by the officers on different parts of his body, administration of electric shocks and hanging him from a metal bar (see, mutatis mutandis, Vitruk v. Ukraine, no. 26127/03, § 54, 16 September 2010). It appears however quite plausible that they could have resulted from his resistance to the police officer who had chased him and eventually apprehended him while he had been trying to escape (see paragraphs 6 and 7 above).
103. It does not appear that the applicant questioned the credibility of the conclusions reached by the medical practitioners of the Zaporizhia Town Hospital. On the contrary, he unreservedly relied on its findings in substantiation of his allegation of ill-treatment in police custody (see paragraph 10 above). At the same time, in his submissions before the Court, the applicant alleged that he had been severely injured in police custody in October 2001. However, he has neither mentioned any such injuries nor presented any medical proof in this connection.
104. Lastly, the Court cannot but note the delay with which the applicant raised his ill-treatment complaint (see paragraph 10 above). In the absence of evidence to the contrary, the Court finds that he did not do this shortly after the alleged events but about a year later with no valid explanation given to justify the delay.
105. Having regard to the above circumstances, the Court considers that the applicant has failed to lay the basis of an arguable complaint that he was ill-treated as alleged (see, mutatis mutandis, Kravchenko v. Ukraine (dec.), no. 23275/06, § 51, 24 June 2014). Furthermore, it is not open to him to contest the effectiveness of the domestic investigation, since he has failed to provide the authorities with any serious and reasonably credible information about his alleged ill-treatment (compare with Igars v. Latvia (dec.), no. 11682/03, § 72, 5 February 2013, and Gavula v. Ukraine, no. 52652/07, §§ 61-63, 16 May 2013).
106. Accordingly, the Court rejects the applicant’s complaint under both the substantive and procedural limbs of Article 3 of the Convention as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Alleged ill-treatment in the Zhytomyr prison in February and November 2008
1. Admissibility
107. The Government submitted that the applicant’s complaints were unsubstantiated and not supported by evidence. In so stating, they admitted that force had been used against the applicant by a prison guard on 21 February 2008. They submitted in this connection that it had been a legitimate and non-excessive reaction to his unruly behaviour.
108. Having referred to their factual submissions, the Government further stated that the applicant’s ill-treatment complaints had been carefully examined by the prosecuting authorities and found to be unsubstantiated. They noted, in particular, that the applicant’s injuries had for the most part been self-inflicted. The Government refered in this connection to the fact that the applicant had been suffering from an emotionally unstable personality disorder and, according to his psychological profile, had had an inclination to self-mutilate as a way of avoiding prison regulations and opposing the prison regime.
109. The applicant contested the Government’s arguments and maintained his complaints, stating, inter alia, that his allegations had been supported by his bodily injuries for which the Government had failed to advance an adequate explanation.
110. The Court notes that the applicant’s complaints were supported by medical evidence (see paragraphs 24 and 44 above). Accordingly, these complaints were prima facie arguable and, given the Court’s settled case-law on the matter, the authorities were required to conduct an effective official investigation (see, for instance, Kaverzin v. Ukraine, no. 23893/03, § 106, 15 May 2012).
111. The Court therefore finds that the applicant’s complaints about his ill-treatment in the Zhytomyr prison are not 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.
2. Merits
(a) The parties’ submissions
112. Having referred to his factual submissions, the applicant complained that he had been subjected to ill‑treatment by prison guards and his cellmates.
113. He further alleged that there had been no effective investigation into the incidents. He noted, in particular, that there had been no full-scale investigation into his complaints but pre-investigation inquiries only. Under that procedure, an investigator could only collect “explanations” from the persons concerned, for the veracity of which the latter bore no responsibility under criminal law. The applicant observed that the prosecutor’s decisions had been mainly based on the statements of the persons involved into his ill‑treatment or those who had had an obvious interest in denying the fact of ill‑treatment.
114. The applicant further drew the Court’s attention to the fact that not all his injuries had been duly fixed and assessed in the course of the prosecutor’s enquiries and that the prosecutor’s decisions had been repeatedly reversed by the domestic courts because of the superficiality of the pre-investigation inquiries.
115. The Government did not comment on the merits of the applicant’s allegations of ill-treatment, contending, on the basis of the findings of the domestic investigations on the matter, that the applicant’s complaints were not supported by evidence.
116. As regards their procedural obligation under Article 3 of the Convention, the Government argued, with reference to their factual submissions, that the investigations into the applicant’s ill-treatment allegations had been prompt, accurate and comprehensive. They noted, in particular, that all circumstances of the impugned events had been correctly established and that the domestic authorities had come up with convincing explanations as to the origin of the applicant’s injuries.
117. Having admitted that on a number of occasions the prosecutor’s decisions had been reversed because of the shortcomings in the pre-investigation inquiries, the Government submitted that those shortcomings had been remedied in full and without delay.
118. Lastly, they submitted that the fact that the applicant had not challenged the outcome of the prosecutor’s investigation as regards the incidents in November 2008 was evidencing that the applicant agreed with the prosecutor’s findings.
(b) The Court’s assessment
119. The Court recalls its relevant case-law principles which are summarised in the Court’s judgment in the case of Borodin v. Russia (no. 41867/04, §§ 76-83, 6 November 2012).
120. Turning to the circumstances of the present case, the Court observes that the applicant’s complaints under consideration concern both the substantive and the procedural aspects of Article 3 of the Convention. As regards the former aspect, the Court notes that it is not in dispute between the parties that the injuries referred to by the applicant were inflicted in custody. The parties however disagreed as to whether they had been the result of ill-treatment as alleged by the applicant.
121. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nevertheless, where allegations are made under Article 3 of the Convention, the Court must conduct a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see inter alia, Kulyk v. Ukraine, no. 30760/06, § 75, 30 January 2017, with further references, and Matyar v. Turkey, no. 23423/94, § 108, 21 February 2002). The Court thus considers it appropriate to examine firstly whether the applicant’s complaints were adequately investigated by the authorities and will do so on the basis of all the evidential material submitted by the parties (see, for example and mutatis mutandis, Baklanov v. Ukraine, no. 44425/08, §§ 70 and 71, 24 October 2013, and Sadkov v. Ukraine, no. 21987/05, § 90, 6 July 2017). It will then turn to the question of whether the alleged ill-treatment took place, bearing in mind the relevant domestic findings.
(i) Procedural aspect of Article 3
122. The Court observes that the applicant’s complaints before the domestic authorities concerned both his cellmates and prison officers. The applicant’s allegations were subjected to examination by the governor of the Zhytomyr prison and the prosecutor’s office. It was concluded that the information gathered did not disclose elements of a criminal offence and that the applicant’s injuries had been self-inflicted with the exception of those caused by application of lawful force by a prison guard on 21 February 2008 (see paragraphs 29, 53, 54 and 67 above).
123. Admittedly, the authorities took certain steps to verify the applicant’s accusations. They questioned the applicant, other inmates and prison staff. The reports written up by the prison staff, the results of the applicant’s medical examinations and the applicant’s file were also studied. However, as pointed out by the applicant, there had never been a full-scale investigation into his complaints and they had been examined by means of pre-investigation inquiries only. The Court has previously held in various contexts that this investigative procedure did not comply with the principles of an effective remedy, in particular because the officer conducting the pre‑investigation inquiry can take only a limited number of steps within that procedure and the victim had no formal status, meaning his or her effective participation in the procedure was excluded (see, for example, Savitskyy v. Ukraine, no. 38773/05, § 105, 26 July 2012).
124. Furthermore, in dismissing the applicant’s complaints, the prosecutor mainly relied on the statements of the prisoners and the prison officers whom the applicant had been accusing of ill-treatment, supported by the account of their colleagues. He did not, however, take into account the fact that they obviously had an interest in the outcome of the case and in exonerating themselves. Although the applicant had given a different account of the events, no efforts were taken by the prosecutor to resolve the contradictions, for example, by way of a confrontation between those concerned and a reconstruction of the events. In any event, such a measure would have been impossible without instituting criminal proceedings.
125. The Court also cannot but note that the reports made by the prison officers and the “explanations” of the applicant’s cellmates, relied upon by the authorities, were couched in almost identical terms, which, in the Court’s opinion, raises further doubts as to their reliability. It also observes that those statements appear to have been made during internal investigation undertaken by the prison governor, that is to say in respect of persons under his control. There is no evidence before the Court, apart from the Government’s statement, that the prosecutor did interview those concerned and not just rely on their testimonies given to the prison governor.
126. The Court further finds it of outmost importance that the prosecutor’s versions of events did not appear to be corroborated by objective evidence such as, for example, results of forensic medical examinations.
127. Thus, as far as the events of February 2008 are concerned, the forensic expert’s conclusion of 14 March 2008 appear to support the applicant’s assertion in respect of the time and circumstances in which the injuries had been sustained (see paragraph 24 above). No assessment of this fact was made by the prosecutor.
128. Likewise, even assuming that abrasions on the applicant’s chest were caused by the prison guard when he tried to stop the applicant’s violent behaviour, as suggested by the prosecutor, no attempt was made by the latter to look into the question of the proportionality of the force used against the applicant, in particular given the fact that the applicant was in a poor state of health and had to use a walking stick to move.
129. As regards the injuries discovered on the applicant in November 2008, the Court notes that on 12 November 2008, that is to say days after the alleged ill-treatment, the forensic medical expert examined the applicant and concluded that his injuries could have been sustained on the dates referred to by him and that some of them could have been inflicted by other persons (see paragraphs 48 and 64 above). On 11 May 2010, when returning the case for further examination, the Supreme Court particularly noted the prosecutor’s failure to duly address these findings of the expert and to support the prosecutor’s version with the relevant evidence (see paragraph 64 above).
130. The latest prosecutor’s decision regarding the November episodes suggests that in 2011, that is to say three years after the alleged events, the applicant’s medical file was studied by a group of forensic experts (see paragraphs 66 and 67 above). However, it is not clear from the wording of the decision what conclusion was reached by the experts and the reasons underlying it. The Court finds it striking that no reference at all to this investigative step has been made by the Government and no copy of the experts’ conclusions has been made available to the Court. The reason for this omission is unclear. This failure to provide records of the investigation has deprived the Court of a full opportunity to review steps taken by the authorities to investigate the applicants’ allegations (see, mutatis mutandis, Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, § 281, 1 July 2010).
131. The Court further notes that, in any event, having stated that the applicant’s injuries had been self-inflicted on dates other than those referred to by the applicant (see paragraph 67 above), the prosecutor provided no details as to the circumstances in which the injuries had been sustained. Likewise, no explanation whatsoever was provided as to why it appeared impossible to establish whether the applicant’s injuries had been inflicted by other persons.
132. The Court also observes that the prosecutor’s decisions not to institute criminal proceedings upon the applicant’s complaints were repeatedly annulled by the higher prosecutor or the courts because of a number of shortcomings and omissions in the pre‑investigation inquiries, including some of those mentioned above (see paragraphs 28, 61, and 64-65 above). The Court has already expressed its opinion in a number of similar cases that repeated returns of a case file for further investigation disclose a serious deficiency in the actions of the prosecutor (see, for example, Aleksandr Smirnov v. Ukraine, no. 38683/06, § 61, 15 July 2010). Furthermore, it does not appear from the latest prosecutor’s decision of 19 May 2008 (see paragraph 29 above) that the numerous shortcomings listed in the decision of the supervising prosecutor of 24 April 2008 by which the case concerning the February 2008 incidents was returned for further investigation (see paragraph 28 above) had been eliminated. While it is true that the judicial authorities reviewed the material of the prosecutor’s investigation, they merely upheld the prosecutor’s findings. The courts did not summon the applicant or the alleged perpetrators to question them in person and to present the applicant with an opportunity to confront the alleged offenders. Furthermore, no assessment was made of the fact that the shortcomings identified in the prosecutor’s decision had not been remedied.
133. Lastly, but not less importantly, the evidence before the Court does not suggest that any decision was taken by the prosecutor with respect to the applicant’s allegations of ill-treatment by his cellmates in November 2008. The Court further observes that the applicant’s allegations that those prisoners had been in collaboration with the prison authorities likewise remained unaddressed despite the precise instruction given in this connection by the Supreme Court (see paragraph 64 above).
134. The foregoing considerations are sufficient to enable the Court to conclude that the investigations into the applicant’s complaints of his ill‑treatment within the Zhytomyr prison walls cannot be considered “effective”. There has therefore been a violation of Article 3 of the Convention under its procedural limb.
(ii) Substantive aspect of Article 3
135. The Court observes that the parties presented different versions of the events that had occurred on the dates referred to by the applicant. The Court does not find it necessary under the circumstances to verify the parties’ accounts and to embark on the establishment of the facts on its own, for the following reasons.
136. It finds it sufficiently established, having regard to the parties’ submissions and the relevant medical evidence, that shortly after the alleged events injuries were discovered on the applicant’s body (see paragraphs 24 and 44 above). It is also uncontested that the applicant sustained those injuries during his imprisonment, that is to say when under the control of the State authorities. That being so, it is incumbent on the State to provide a satisfactory and convincing explanation as to how those injuries were causedby producing evidence establishing facts which cast doubt on the account of events given by the applicant (see Bouyid v. Belgium[GC], no. 23380/09, § 83, 28 September 2015). Any recourse to physical force which has not been made strictly necessary by the applicant’s own conduct is an infringement of the right set forth in Article 3 (ibid., §§ 100 and 101).
137. On the basis of the material before it, and in particular in view of the shortcomings in the domestic investigations (see paragraphs 123 to 133 above), the Court concludes that the Government have not satisfactorily established that the applicant’s injuries were caused otherwise than alleged by him (see, mutatis mutandis, Sadkov, cited above, § 101).
138. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb.
C. Other instances of the alleged ill-treatment
139. The conclusions in paragraphs 134 and 138 above, finding a violation of Article 3 of the Convention on both its procedural and substantive limbs, dispense the Court from examining whether similar violations of the same provision also occurred in respect of the ill-treatment allegedly inflicted on the other dates indicated by the applicant, notably on 24 January, 11 February, 15 June and 13 July 2008, as well as on 15 and 16 November 2010 (see paragraphs 69 and 70 above).
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION
140. The applicant complained under Articles 3 of the Convention that the conditions of his detention in the Zhytomyr prison and the Donetsk prison hospital had been poor.
A. Admissibility
(a) Exhaustion of domestic remedies
141. The Government submitted that, with respect to the part of the applicant’s complaint concerning overcrowding and the lack of a walking yard at the Donetsk prison hospital, the applicant had failed to exhaust the domestic remedies available to him. In particular, he could have claimed compensation before the domestic courts as those violations had been acknowledged by the authorities.
142. As regards the remainder of the applicant’s complaint they argued, having referred to their factual submissions, that both facilities had offered conditions compatible with Article 3 of the Convention and that the applicant had failed to provide evidence to the contrary. They therefore stated that the applicant’s complaint was unsubstantiated.
143. The applicant disagreed and reiterated his complaints. He noted, inter alia, that he had submitted photos showing him with huge rats in a solitary-confinement cell in the Zhytomyr prison (see paragraph 79 above), which was irrefutable evidence in his favour.
144. The Court reiterates that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. 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, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, amongst many other authorities, Menteş and Others v. Turkey, 28 November 1997, § 57, Reports of Judgments and Decisions 1997-VIII).
145. The Court observes that in the present case the Government did not submit any court decisions demonstrating examples of the use of the remedy identified by them (see, mutatis mutandis, Soldatenko v. Ukraine, no. 2440/07, § 49, 23 October 2008, and M. v. Ukraine, no. 2452/04, § 85, 19 April 2012). It therefore dismisses the Government’s preliminary objection of non-exhaustion of domestic remedies.
(b) Conditions of detention in the Zhytomyr prison
146. The Court observes that in his submissions the applicant did not specify of which cells the conditions of which he was complaining of had pertained, and for how long he had been held there. He also provided no evidence to confirm his description of the detention conditions, such as, for example, statements of his cellmates or other detainees (compare Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010, with further references; Korneykova and Korneykovv. Ukraine, no. 56660/12, §§ 26, 48 and 50, 24 March 2016; and Gavula v. Ukraine, no. 52652/07, § 73, 16 May 2013).
The only exception was the applicant’s allegations about his confinement between November 2008 and March 2009 in a solitary cell infested with rats (see paragraph 79 above). However, the Court observes in this respect that it is not established that the photos submitted by the applicant in support to his complaint had been taken between November 2008 and March 2009 in his solitary confinement cell in the Zhytomyr prison. Even if that were the case, there is no evidence whatsoever that during the whole period the cell “was infested with huge rats with which he had to fight all the time during the day and also at night, instead of sleeping, as the rats jumped all over him”, as alleged by the applicant (see paragraph 78 above). The Government unequivocally denied that the prison cells had been infested with rats and alleged that once a month thorough measures were implemented and the entire facility was disinfected, and in addition the sanitary unit also disinfected the cells on a weekly basis (see paragraph 85 above).
147. In view of the foregoing, the Court finds that the applicants submissions concerning conditions of his detention the Zhytomyr prison cannot be considered proved “beyond a reasonable doubt”.
148. This aspect of the case is therefore rejected as manifestly ill‑founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.
(c) Conditions of detention in the Donetsk prison hospital
149. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
150. The relevant elements of the parties’ submissions are set out in paragraphs 72 to 76 above.
2. The Court’s assessment
151. The Court reiterates that 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” from the point of view of Article 3 and may disclose a violation, either on its own or when taken together with other shortcomings (see Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101 and 136-41, ECHR 2016).
152. In the present case the parties have disputed certain circumstances pertaining to the detention conditions at the Donetsk prison hospital. However, the Court does not consider it necessary to establish the truthfulness of each allegation of the parties, because a violation of Article 3 can be found on the basis of the facts which have not been disputed by the respondent Government, for the following reasons.
153. Neither the applicant nor the Government provided information about the size of the cell and the exact figures concerning the personal space afforded to the applicant. At the same time, it is not disputed by the Government and is confirmed by the results of the prosecutor’s inspection of the Donetsk prison hospital that during two months of the applicant’s stay there he was detained in an overcrowded cell in which personal space per prisoner was less than the minimum standard allowed by domestic legislation, that is to say less than 4 sq. m (see paragraph 76 above).
154. In these circumstances, in the absence of any allegation or evidence on the applicant’s part that the personal space available to him fell below 3 sq. m. no strong presumption of a violation of Article 3 arises (see Muršić, cited above, § 137). The Court must be satisfied that in the present case the lack of space was coupled with other aspects of inappropriate physical conditions of detention in order to find a violation of the said provision of the Convention (ibid., § 139).
155. The Government admitted in this respect that no outdoor activity had been available to the applicant as there had been no walking yard equipped for prisoners but, at the same time, denied the applicant’s allegation that he had been locked up to his cell for the most of the day (see paragraph 76 above). However, their allegation that the applicant had been given opportunity to walk somewhere within the hospital’s territory is unsubstantiated and not supported by evidence. In these circumstances, the Court is inclined to give weigh to the applicant’s submissions.
156. Having regard to the above considerations and in the light of its case-law (see, for example, Zakshevskiy v. Ukraine, no. 7193/04, § 68, 17 March 2016; and Kleutin v. Ukraine, no. 5911/05, §88, 23 June 2016), the Court finds that the lack of personal space afforded to the applicant in the Donetsk prison hospital, combined with the lack of access to outdoor activities, are sufficient elements to conclude that the applicant’s conditions of detention in that facility amounted to degrading treatment in breach of Article 3 of the Convention.
157. In view of those findings, the Court does not find it necessary to address the applicant’s allegation concerning aspects of the material conditions of his detention other than those linked to the overcrowding.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
158. The applicant complained under Article 13 of the Convention that there were no effective remedies for his complaint under Article 3 of the Convention regarding his conditions of detention.
Article 13 reads as follows:
“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. Admissibility
159. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
160. The Government submitted that the applicant had had an effective remedy in respect of his complaint, specifically a complaint to the prosecutor’s office, and that he had availed himself of this remedy. They argued in this connection that the fact that the prosecutor had found no evidence in support of the applicant’s allegations did not imply that the remedy had been ineffective. They further submitted that the problems which had been acknowledged by the prosecutor, specifically the overcrowding in the ward at the Donetsk prison hospital and the lack of a walking yard there, had been remedied following the prosecutor’s orders.
161. The Court observes that it has rejected arguments similar to those raised by the Government in the present case in a number of other cases where the complaints concerned problems of a structural nature in the domestic penal system in question (see, among other authorities, Rodzevillo v. Ukraine, no. 38771/05, §§ 70-71, 14 January 14/01/2016, and Ukhan v. Ukraine, no. 30628/02, §§ 91-92, 18 December 2008). Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion. Having regard to its case-law on the subject, the Court finds that the Government have not proved that the applicant had an opportunity in practice to secure effective remedies for his complaints – that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.
162. As regards the Government’s reference to the fact that the problem of overcrowding in the applicant’s cell and the absence of a walking yard for prisoners had been resolved following the prosecutor’s order, it appears from the case file that this was done after the applicant’s discharge from the Donetsk prison hospital and thus had no effect on him.
163. It follows that there has been a violation of Article 13 of the Convention in respect of the lack of an effective and accessible remedy under domestic law for the applicant’s complaint concerning the conditions of his detention.
164. The above conclusion dispenses the Court from examining whether there had been a violation of Article 13 of the Convention also by reason of the alleged absence of domestic remedies in respect of the applicant’s complaint about the lack of medical assistance.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
165. In addition to the above complaints, in his application form and ensuing correspondence, the applicant also complained, under Article 3 of the Convention, of poor conditions of detention in some other detention facilities and his ill-treatment there by cellmates and prison guards; allegedly unjustified placement in solitary confinement and under preventive monitoring in detention, and inadequate and delayed medical assistance; under Article 5, of his unlawful arrest and detention; under Article 6, of the unfairness of the criminal proceedings against him; and, under Articles 8 and 34, of monitoring and withholding of his correspondence by the authorities and their failure to provide him with copies of documents at his request as well as about their inappropriate attitude to the his representative before the Court.
166. 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, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
167. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
168. 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
169. The applicant claimed 700,000 euros (EUR) in respect of non‑pecuniary damage.
170. The Government contested that claim.
171. Having regard to all the circumstances of the present case and the nature of the violations found, the Court considers it appropriate to award the applicant EUR 10,000 in respect of non-pecuniary damage.
B. Costs and expenses
172. The applicant also claimed EUR 1,422 for postal expenses incurred in the proceedings at the domestic level and EUR 4,800 for legal and translation costs for the proceedings before the Court.
173. The Government considered the claim to be unsubstantiated.
174. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,650 (which is equal to EUR 4,500 less EUR 850, the sum paid by way of legal aid – see paragraph 2 above) for the proceedings before the Court. This award is to be paid directly into the bank account of the applicant’s lawyer, Mr Kadochnikov, as indicated by the applicant (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288 and point 12 (a) of the operative part, ECHR 2016 (extracts)). It further awards EUR 1,422 to cover other costs and expenses referred to by the applicant to be paid, following the applicant’s request, to the account of his representative in the domestic proceedings, Ms Korytna.
C. Default interest
175. 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 admissible the complaints under Article 3 that the applicant was ill-treated in the Zhytomyr prison in February and November 2008; that the domestic authorities failed to conduct an effective investigations in that respect; and that the conditions of his detention in the Donetsk prison hospital were poor; and the complaint under Article 13 that he had no effective remedies for his complaints concerning conditions of his detention;
2. Declares the complaints concerning conditions of the applicant’s detention in the Zhytomyr prison and the complaints listed in paragraph 165 above inadmissible;
3. Holdsthat there has been a violation of Article 3 of the Convention, under its procedural limb, in that the authorities failed to carry out an effective investigation into the applicant’s complaints of ill-treatment in the Zhytomyr prison;
4. Holdsthat there has been a violation of Article 3 of the Convention, under its substantive limb, in that the applicant was subjected to ill‑treatment in the Zhytomyr prison;
5. Holdsthat there has been a violation of Article 3 of the Convention on account of poor conditions of the applicant’s detention during his stay in the Donetsk prison hospital between December 2007 and February 2008;
6. Holdsthat there has been a violation of Article 13 of the Convention in respect of the applicant’s complaint under Article 3 regarding poor conditions of his detention;
7. Holds
(a) that the respondent State is to pay, within three months, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant;
(ii) EUR 3,650 (three thousand six hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of legal costs before the Court, to be paid into the bank account of the applicant’s lawyer, Mr Andrey Kadochnikov;
(iii) EUR 1,422 (one thousand four hundred and twenty-two euros), plus any tax that may be chargeable to the applicant, in respect of other costs and expenses, to be paid into the bank account of the applicant’s representative in the domestic proceedings, Mrs Ludmyla Korytna;
(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;
8. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Faris Vehabović
Deputy Registrar President
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