Communicated on 14 November 2018<\/p>\n
FIFTH SECTION<\/p>\n
Applications nos. 7983\/10 and 35627\/10
\nAleksandr Viktorovich TOKAREV against Ukraine
\nand Andrey Aleksandrovich TYURYUKOV against Ukraine
\nlodged on 6 May 2010 and 11 June 2010 respectively<\/p>\n
STATEMENT OF FACTS<\/p>\n
The applicants are Ukrainian nationals who are serving their life\u2011imprisonment sentence in Vinnytsya prison no. 1. The applicant in the first case, Mr\u00a0AleksandrViktorovichTokarev, was born in 1976. The applicant in the second case, Mr Andrey AleksandrovichTyuryukov, was born in 1975. Both applicants are represented before the Court by Ms\u00a0N.I.\u00a0Tyuryukova, MrTyuryukov\u2019s mother, residing in the Vinnytsya region. In addition, starting from 28 March 2014, Mr\u00a0Tyuryukov has been represented by Mr Y.O. Lukashenko, a lawyer practising in Vinnytsya.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n The facts of the case, as submitted by the applicants and, to a certain extent by the Government (in reply to the Court\u2019s factual request), may be summarised as follows.<\/p>\n Mr\u00a0Tokarev has been detained in the Vinnytsya prison since 9\u00a0February 2002. MrTyuryukov has been detained there since 14\u00a0September 2004.<\/p>\n 1.\u00a0\u00a0Material conditions of detention<\/em><\/p>\n According to the applicants, they are held in small, unheated and damp cells, with no ventilation, poor lighting and in appalling sanitary conditions. There are concrete floors in the cells. Often the toilet is a mere hole, with no flush, in close vicinity of the living area, and permanently smelling of excrement. The permanent artificial light in the cell prevents sleep, but is too poor for reading. There is no shower or washstand in all the cells. The applicants are often obliged to wash dishes and hands over the toilet hole. No soap, toothpaste or shaving accessories are provided. The applicants enjoy no activities or leisure other than one-hour walk in an extremely small and dirty yard.<\/p>\n The applicants sent to the Court statements by their two fellow prisoners: P. of 12 May and 20 November 2010 and N. of 8\u00a0June 2011 generally supporting their description of the material conditions of detention in the Vinnytsya prison.<\/p>\n MrTyuryukov also sent to the Court a video filmed in December 2012 and January 2013, on which one could see extremely poor sanitary facilities in his cell. The video shows a small and dilapidated yard for outdoor walks.\u00a0MrTyuryukov also filmed the food distribution routine, including on 31\u00a0December 2012 and 1 January 2013. As seen on the video, he complained to the guard that there was no meat and no fruit or vegetables. The guard replied that there were extremely scarce quantities of onions and carrots and no other vegetables or fruit. On each occasion MrTyuryukov was given some bread, a spoonful of sugar and some porridge. Sometimes a soup was also served.<\/p>\n The mother of MrTyuryukov brought the above-mentioned video to the knowledge of the Vinnytsya City Prosecutor\u2019s Office. On 26 July 2013 the prosecutor issued a report in that regard, which stated in particular that on 27\u00a0September 2010 the prison administration had declared that the walking yards, which were shown on Mr\u00a0Tyuryukov\u2019s video, were not suitable for outdoor activities by detainees. Accordingly, they were no longer in use. It was also noted in the prosecutor\u2019s report that during the period of 2012\u20112013 ninety-seven cells had been renovated.<\/p>\n On 18 July 2013 an official of the Vinnytsya City Prosecutor\u2019s Office collected written statements from four detainees of the prison in respect of the allegations made by Mr\u00a0Tyuryukov in his video regarding, in particular the food. All the four statements were virtually identical and asserted that on 30 and 31 December 2012 and on 1 January 2013 there had been \u201ca festive menu\u201d in the prison including meat and salad. The detainees submitted that they were regularly served meat and fish and that they had no complaints against the prison administration. It was noted in all the four statements that Mr\u00a0Tyuryukov was a troublemaker whose allegations had no basis.<\/p>\n According to the information provided by the Government to the Court on 16 February 2012, in reply to a factual request, life prisoners are detained in maximum security cells designated for two to three inmates. The cells are equipped with metal beds, one or two benches or chairs, one wardrobe or cabinet, one clothes hanger, one loudspeaker. The equipment and furniture are fixed to the floor and the wall. There is a toilet separated from the living area and a washstand in each cell. The cells are equipped with a water supply system, a shower, sewage, central heating, ventilation, electric and natural lighting. Each prisoner is provided with individual bed and bedding and soap. Table cloths and bedding are changed four times a month. Prisoners regularly receive meat and fish of good quality. The quality of food is verified daily by the medical staff. Lastly, life prisoners are entitled to one-hour outdoor walk per day.<\/p>\n 2.\u00a0\u00a0Restrictions on long-term family visits<\/em><\/p>\n In early 2011 MrTyuryukov complained to the prosecution authorities that he had not been allowed to have long-term visits from his mother. On 9\u00a0February 2011 the Vinnytsya Regional Prosecutor\u2019s Office replied to him that he had had five short-term meetings with his mother in 2010, which was all permitted by law.<\/p>\n Life prisoners became entitled to long-term family visits starting from 6\u00a0May 2014 (for further details see \u201cRelevant domestic law\u201d below).<\/p>\n 3.\u00a0\u00a0Alleged ill-treatment of MrTyuryukov on 25 September 2007 and the investigation of the incident<\/em><\/p>\n According to MrTyuryukov, on 25 September 2007 he was beaten up by the convoy officers who subsequently drew up an untruthful report that he had attempted escaping. MrTyuryukov submitted that he was always blindfolded and had his wrists and legs shackled during his transportation to and from the court.<\/p>\n MrTyuryukov complained about the incident to various authorities, including to the Zamostyanskyy Court. The judge dealing with his case enquired with the police what had happened.<\/p>\n The chief of the police unit in charge wrote to the judge that on 25\u00a0September 2007, at about 2.30 p.m., when MrTyuryukov was walking from the convoy vehicle to the premises of the court, he had made a sharp movement trying to break the convoy line. Three police officers \u201chad taken effective measures to prevent an emergency and to apprehend a criminal who demonstrated active physical resistance trying to escape\u201d. As a result, a rubber truncheon and handcuffs had been applied to him.<\/p>\n On 26 November 2007 the chief of the Vinnytsya Regional Police Department in charge of detainees\u2019 convoy wrote to MrTyuryukov that \u201cthe use of blindfolding (\u043e\u0431\u043c\u0435\u0436\u0443\u0432\u0430\u0447\u0456 \u0437\u043e\u0440\u0443) and wrist-and-leg shackles (\u043a\u0430\u0439\u0434\u0430\u043d\u0438 \u043c\u0435\u0442\u0430\u043b\u0435\u0432\u0456 \u00ab\u041a\u041c-4\u00bb) [had been] confirmed, but that it did not run counter to the applicable legal provisions regulating the issues of security and convoy of detainees and prisoners\u201d.<\/p>\n On 12 February 2009 the Leninskyy District Prosecutor\u2019s Office refused to institute criminal proceedings against the police officers carrying out Mr\u00a0Tyuryukov\u2019s convoy on 25 September 2007, for the lack of constituent elements of a criminal offence in their actions. The ruling referred, in particular, to Mr\u00a0Tyuryukov\u2019s statement of 27 December 2007, according to which he had felt a danger for his life and had tried to escape. The convoy officers had beaten him up, had put him in the vehicle and had taken him back to the prison. Thereafter they had allegedly continued beating him. The prosecutor observed that later on MrTyuryukov had refused to make any statements. The police officers concerned had submitted that they had only applied \u201ca handgrip and handcuffing\u201d to MrTyuryukov as a reaction to his escape attempt. His medical examination, which had been carried out on the same date, did not document any injuries and found his health condition to be satisfactory.<\/p>\n It appears that at some point the above-mentioned ruling was quashed, and further investigation was ordered.<\/p>\n On 12 February 2010 the Leninskyy Prosecutor\u2019s Office once again refused to institute criminal proceedings in respect of MrTyuryukov\u2019s allegations.<\/p>\n 4.\u00a0\u00a0Alleged ill-treatment of the applicants on 18 June 2009 and domestic investigation into the matter<\/em><\/p>\n According to the applicants, on 18 June 2009 a group of masked officers wearing black uniforms with no insignia carried out a search in their cell (they shared cell no.\u00a0241 then). The applicants, who waited handcuffed in the corridor, were allegedly subjected to numerous kicks and hits with a rubber truncheon.<\/p>\n On 19 June 2009 it was mentioned in the news at one of the national TV channels that there had been a demonstration near the prison in protest of the entry of a special force unit there. Also on 19 June 2009 the Vinnytsya Human Rights Group (an NGO) informed the public of the alleged beating of prisoners of the Vinnytsya prison by masked special force unit officials.<\/p>\n The applicants complained to various authorities about their alleged ill\u2011treatment, but their complaints were dismissed as unsubstantiated.<\/p>\n 5.\u00a0\u00a0Alleged ill-treatment of MrTyuryukov by the prison administration on 29 November 2012 and domestic investigation into the matter<\/em><\/p>\n In one of the video recordings sent to the Court on 30 April 2013, Mr\u00a0Tyuryukov submitted that that video had been filmed on 10 December 2012. He demonstrated what he alleged to be the injuries inflicted on him by the prison administration on 29 November 2012: a bruise on his right shoulder near the armpit, and a bruise on right side of the chest. Mr\u00a0Tyuryukov indicated the names of the prison staff who had allegedly ill-treated him.<\/p>\n Mr\u00a0Tyuryukov filmed the above-mentioned video as a public address to various authorities, human rights organisations and mass media. It was also brought to the knowledge of the Vinnytsya Regional Court of Appeal, which issued a ruling on 2 September 2013 directing the prosecution authorities to investigate MrTyuryukov\u2019s allegations.<\/p>\n On 20 September 2013 an entry was made to the Unified register of pre-trial investigations marking the beginning of the investigation into suspected abuse of power by State officials.<\/p>\n On 3 October 2013 the Vinnytsya City Prosecutor\u2019s Office questioned Mr\u00a0Tyuryukov in that regard. He confined his submission to a general statement that he had been ill-treated. The prison staff members were also questioned and denied any coercion towards MrTyuryukov.<\/p>\n On 8 October 2013 the investigation was closed for lack of evidence of a criminal offence.<\/p>\n MrTyuryukov tried to challenge that decision before the courts, but to no avail.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n Pursuant to Article 110 of the Code of Execution of Criminal Sentences (\u201cthe Code\u201d, 2003), a short-term visit in a prison lasts up to four hours and a long-term visit \u2013 up to three days. Under Article 151 of the Code, as worded before 16 February 2010, convicted prisoners sentenced to life imprisonment were entitled to one short-term visit every six months. Following the entry into force of those amendments on 16\u00a0February 2010, prisoners of that category became entitled to one short-term visit every three months. Subsequently, Article\u00a0151 of the Code was further amended, with those changes coming into effect on 6 May 2014, after which prisoners serving a life sentence became entitled to one short-term visit per month and to one long-term visit every three months. Following another round of amendments, which were enacted on 7 September 2016, life-prisoners are now entitled to one long-term visit every two months. Article\u00a0151 of the Code specifies that these visits are for meeting close relatives (a spouse, parents, children, step-parents, stepchildren, siblings, grandparents and grandchildren).<\/p>\n COMPLAINTS<\/strong><\/p>\n The applicants complain under Article 3 of the Convention that they have been detained in appalling conditions in the Vinnytsya prison. They also complain under the same provision that they were ill-treated by masked special-force officers on 18 June 2009 and that the authorities failed to effectively investigate their complaints in that regard and to hold those responsible liable. The applicants next complain under Article 8 about the absolute ban, until 2014, on long-term family visits for life prisoners.<\/p>\n MrTyuryukov additionally complains under Article 3 of the Convention that he was ill-treated by the convoy officers on 25 September 2007 and by the prison administration on 29 November 2012, and that there has been no effective domestic investigation into the matter.<\/p>\n QUESTIONS TO THE PARTIES<\/strong><\/p>\n 1.\u00a0\u00a0Did\/do the material conditions of the applicants\u2019 detention in the Vinnytsya prison amount to inhuman or degrading treatment?<\/p>\n 2.\u00a0\u00a0Were the applicants subjected to torture, inhuman or degrading treatment or punishment in breach of Article 3 of the Convention on 18\u00a0June 2009 in the Vinnytsya prison?<\/p>\n 3.\u00a0\u00a0Was MrTyuryukov subjected to ill-treatment in breach of Article 3 of the Convention on 25\u00a0September 2007 and 29 November 2012?<\/p>\n 4.\u00a0\u00a0Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no.\u00a026772\/95, ECHR\u00a02000-IV), was the investigation undertaken by the domestic authorities into the applicants\u2019 above-mentioned allegations of ill\u2011treatment in compliance with Article 3 of the Convention?<\/p>\n 5.\u00a0\u00a0Did the ban on long-term visits by family members to prisoners serving a life sentence constitute an interference with the applicants\u2019 right to respect for their private and\/or family life within the meaning of Article 8 of the Convention? If so:<\/p>\n (a)\u00a0Was that interference lawful?<\/p>\n (b)\u00a0Did it pursue a legitimate aim?<\/p>\n (c)\u00a0Was it proportionate to the aim pursued?<\/p>\n The Government are also invited to comment on the present situation, following the amendments to the Code of Execution of Criminal Sentences enacted on 6 May 2014 and 7 September 2016.<\/p>\n