CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 29 avril 2003

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UKRAINE   (Application no. 38812/97)                       JUDGMENT     STRASBOURG   29 April 2003       In the case of Poltoratskiy v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mrs   E. Palm ,   Mr   J. Makarczyk ,   Mrs   V. Strážnická ,   Mr   M. Fischbach ,   Mr   V. Butkevych ,   Mr   R. Maruste, judges , and Mr M. O’Boyle , Section Registrar , Having deliberated in private on 25 March 2003, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   38812/97) against Ukraine lodged with the European Commission of Human Rights (“the   Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Borislav Yevgenyevich Poltoratskiy (“the applicant”), on 19 September 1997. 2.     The applicant was represented by his father, Mr Y.N. Poltoratskiy, by Mr I.G. Voskoboynikov and later by Mr O.O. Kostyan. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs   V.   Lutkovska, of the Ministry of Justice. 3.     The case concerned the conditions to which the applicant was subjected on death row in Ivano-Frankivsk Prison and his treatment there. 4.     The application was declared partly admissible by the Commission on 30 October 1998. Between 23 and 26 November 1998 the Commission carried out a fact-finding visit to Kyiv and to Ivano-Frankivsk Prison. In its report of 26 October 1999 (former Article 31 of the Convention) [1] , it expressed the opinion that there had been no violation of Article 3 of the Convention in respect of the applicant’s complaints relating to ill-treatment in Ivano-Frankivsk Prison (unanimously), that there had been a violation of Article 3 as a result of the conditions of the applicant’s detention there (unanimously), that there had been a violation of Article 3 as a result of the failure to carry out an effective investigation into the applicant’s allegations of ill-treatment in prison (twenty-four votes to one), that there had been a violation of Article 8 (unanimously) and that there had been a violation of Article 9 (unanimously). 5.     The application was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention, by the Commission on 11 September 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).   It was allocated to the Fourth Section of the Court (Rule   52 §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 §   1. 6.     Having consulted the parties, the President of the Chamber decided that in the interests of the proper administration of justice, the proceedings in the present case should be conducted simultaneously with those in Nazarenko v. Ukraine , Aliev v. Ukraine , Dankevich v. Ukraine , Khokhich v. Ukraine and Kuznetsov v. Ukraine (applications nos. 39483/98, 41220/98, 40679/98, 41707/98 and 39042/97) (Rule 43 § 2). 7.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). 8.     On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Outline of events 9.     On 12 December 1995 the Ivano-Frankivsk Regional Court (oблacний суд) convicted the applicant of the murder of four persons, sentenced him to death and ordered the confiscation of his personal property. 10.     On 22 February 1996 the Supreme Court (Верхoвний суд) upheld the judgment of the first-instance court. The applicant was transferred by the authorities responsible for the isolation block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior (Адміністрація слідчого ізолятору Управління міністерства внутрішніх справ) to one of the cells intended for persons awaiting execution of the death sentence. 11.     A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11pп/99 of 29 December 1999, the Constitutional Court of Ukraine held that the provisions of the Criminal Code concerning the death penalty were contrary to the Ukrainian Constitution. As a result, death sentences were commuted to life imprisonment by Law no. 1483-III of 22 February 2000. 12.     On 2 June 2000 the Ivano-Frankivsk Regional Court commuted the applicant’s death sentence to life imprisonment. B.     The facts 13.     The facts of the case concerning the conditions of the applicant’s detention in Ivano-Frankivsk Prison and the events during his time there are disputed. 14.     The facts as presented by the applicant are set out in paragraphs 17 to 23 below. The facts as presented by the Government are set out in paragraphs 24 to 30. 15.     A description of the material submitted to the Commission and to the Court will be found in paragraphs 31 to 58 below. 16.     The Commission, in order to establish the facts in the light of the dispute over the conditions of the applicant’s detention and the events which occurred in Ivano-Frankivsk Prison, conducted its own investigation pursuant to former Article 28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by the applicant and the Government in support of their respective assertions and appointed three delegates to take evidence from witnesses at a hearing conducted at the Ministry of Justice in Kyiv on 23 and 26 November 1998, and in Ivano-Frankivsk on 24 and 25 November 1998. The Commission’s assessment of the evidence and its findings of fact are summarised in paragraphs 59 to 75 below. 1.     The facts as presented by the applicant 17.     On 12 December 1995 the Ivano-Frankivsk Regional Court convicted the applicant of the murder of four persons, sentenced him to death and ordered the confiscation of his personal property. After the first-instance judgment, he was placed in a separate cell. He was not allowed to write to his family, nor could he be visited by his lawyer. He applied several times for permission to meet his lawyer. 18.     On 22 February 1996 the Supreme Court upheld the judgment of the first-instance court. On a decision of the authorities responsible for the isolation block of the Ministry of the Interior, the applicant was transferred to a cell intended for prisoners awaiting execution of the death sentence. On 30 March 1996 the applicant’s lawyer applied to see the applicant in order to give him the Supreme Court’s decision in the case. The prison governor did not grant him permission to do so. 19.     Conditions of detention of persons sentenced to death were governed by the Pre-Trial Detention Act 1993 (“the Act”) and by an instruction of 20 April 1998 (“the Instruction”), whose content remained top secret. Under the terms of the Instruction, exercise in the open air, watching television, buying newspapers and receiving food parcels from relatives were prohibited. The Instruction therefore prevented the applicant from enjoying the rights guaranteed by the Act. 20.     In a reply by the deputy head of the Ivano-Frankivsk Directorate of the Ministry of the Interior to a complaint by the applicant’s father concerning the conditions of the applicant’s detention, reference was made to the Instruction. Moreover, according to information received by the applicant’s father from the deputy governor of the prison, it appeared that the Act did not apply to him. Had the Act been applicable to the applicant, he would have been entitled under sections 9(1) and 13 to take daily exercise in the open air, to receive parcels twice a month and to watch television. However, this was strictly prohibited between 1995 and 1998. Up to September 1997 the applicant was also prohibited from sending and receiving letters. It was only then that the deputy governor of the prison orally informed the applicant’s mother that he could send and receive letters. Moreover, his father was refused permission to visit him on 29 May 1995 and 10 June and 31   July   1996 without any explanation from the prison authorities. From July   1996 onwards, instead of monthly visits which would last up to two hours, the applicant’s father had been allowed to visit the applicant only once every three months for not more than one hour. 21.     As regards visits from a priest, the applicant’s father and members of the clergy repeatedly but unsuccessfully applied to the prison authorities and those responsible for the isolation block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for the applicant to be allowed to receive a visit from a priest. 22.     The applicant finally stated that he had complained several times about the conditions in which he was being held. He had also unsuccessfully applied to the prison authorities for permission to lodge an application with the European Commission of Human Rights. 23.     In a letter to the Commission of 6 March 1998, the applicant’s father stated that on 4 March 1998 he had seen his son, who had told him about a check-up carried out by a commission from the Ministry of the Interior in mid-February 1998. After the commission had left, the applicant had been transferred to a cell that was worse equipped and dirty. The window in the cell had been fully shuttered. The bucket for flushing the toilet had been taken away and the toilet could not therefore be cleaned properly, which had caused an unbearable smell. Moreover, the applicant had been given only 25   cl of hot water to prepare tea and milk. All his dishes had been removed. His Bible had been taken away. He had not been allowed to read periodicals and his notebook and calendar had been confiscated. 2.     The facts as presented by the Government 24.     The Government stated that the legal status and conditions of detention of persons sentenced to death were governed by the Act and the Code of Criminal Procedure. Pursuant to section 8 of the Act, a person sentenced to death was kept in custody away from other prisoners. The cell to which the applicant had been transferred after his sentence had become final complied with the sanitary and hygiene rules laid down in section 11 of the Act: the cell measured 9 sq. m and had a bed, a table, a radio, sufficient natural and electric light, heating, running water and a toilet. 25.     The applicant was provided with three meals a day, standard clothing and footwear as well as other articles of everyday use. Medical assistance, treatment, prophylactic and anti-epidemic measures were arranged and implemented in accordance with the legislation on health protection. 26.     According to section 12 of the Act, prior to the sentence being carried out, prisoners sentenced to death were, as a rule, allowed visits from relatives and other persons not more than once a month, by written permission of the court within whose jurisdiction the case fell. The length of a visit was two hours maximum. After a case had been dealt with by an appellate court, visits by lawyers and legal assistants could be allowed by the head of the Central Directorate of the Ministry of the Interior, the head of the Regional Directorate of the Ministry of the Interior or his deputy responsible for the isolation block. According to section 12 of the Act, visits by defence counsel were allowed without any limits as to their number and length. 27.     On 13 December 1995, after the first-instance judgment, the applicant’s parents and lawyer received permission to visit him. The parents visited the applicant on 15 December 1995 and in January 1996. The applicant’s lawyer visited him on 21 December 1995 and on 7 January 1996. During the period from 22 February 1996 to 29 December 1997, the parents applied to the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for permission to visit the applicant on 24 February, 4 March, 5 April, 4 May, 2 July, 1 October, 18 November and 25 December 1996, and on 3 and 20 June and 19 September 1997. They were granted permission for visits on 24 February, 5 March, 5 April, 4 May, 2 July, 4   October and 4 December 1996, and on 4 March, 4 June, 4 September and 4 December 1997. 28.     The applicant’s lawyer applied for permission to visit the applicant on 25 April, 11 November, and 18 and 19 December 1996. Permission was granted for a first visit on 7 May 1996 and on the other occasions as requested. 29.     Persons sentenced to death were allowed to send an unlimited number of letters. During the period 1995-98 the applicant sent thirty-one letters: twenty-four letters related to his criminal case and seven letters were to his relatives. The applicant applied for the first time to the Regional Directorate of the Ministry of the Interior for permission to send letters to his relatives on 17 September 1997. Thereafter he sent letters to his parents on 19 and 26 November and 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10   August, 15 September, 22 October, 13 November and 11 December 1998. He received letters from his parents on 18 and 29 September, 19 October, 20   November and 24 December 1997, and on 16 and 26 January, 6, 10 and 23 February, 14 and 16 March, 17 April, 14 May, 1 and 8 June, 1   and 30 July, 20 August, 29 September, 10, 22 and 27 October, 4, 20, 26 and 30 November and 4, 17 and 21 December 1998. 30.     The Government further submitted that the Prosecutor-General had conducted a thorough investigation into the applicant’s and his parents’ complaints concerning the application of illegal methods of investigation in the applicant’s case, namely torture and brutal and inhuman treatment. The allegations had not been proved and had been found unsubstantiated. In fact, complaints by the applicant, his parents, his representative and his defence counsel were received on 11 March, 8 April, 13, 14 and 29 May, 24 July, 11 September and 25 October 1996, and on 5 and 17 March, 19 May and 25 July 1997, and answered on 20 and 23 March, 23 and 24 April, 23 May, 27 June, 1 August, 30 September and 14 November 1996, and on 28 and 31 March and 20 May 1997. On 31 July 1997 the exchange of letters and the proceedings concerning the complaints filed by the applicant and his parents were terminated pursuant to section 12 of the Act. C.     Documentary evidence 31.     In a letter of 26 May 1998 the prison governor replied to a complaint lodged by the applicant’s father on 10 May 1998 informing him that persons sentenced to death were allowed to send twelve letters a year. He also stated that the applicant was aware of his rights and obligations. 32.     In a letter of 10 August 1998 the Ivano-Frankivsk regional prosecutor informed the applicant’s father that visits and correspondence of persons sentenced to death were governed by the Instruction and not by the Act to which the applicant’s father had referred in his complaint. 33.     In a written complaint of 4 September 1998 addressed to the regional prosecutor the applicant’s parents stated, inter alia , that they had not seen the applicant for three months, that since 5 July 1998 they had not received any letters from him, that on 2 September 1998 they had become aware that the applicant had been beaten and humiliated, that Mr   Ivashko, the deputy governor of the prison, had intervened during their visit on 2 September 1998 when the applicant had spoken about his conditions of detention, and that, for a period of one year and six months, the applicant had been denied the possibility of a visit from a priest, despite his requests. 34.     In a letter of 10 September 1998 the regional prosecutor informed the applicant’s father that the applicant’s visits and correspondence were governed by the national legislation and that the prison administration had acted within the limits of this legislation. 35.     On 10 September 1998 the Ivano-Frankivsk deputy regional prosecutor sent a report to the Prosecutor-General. The report concerned the findings of the investigation carried out following the complaint by the applicant’s father about allegedly unlawful acts by the prison authorities in respect of the applicant’s correspondence and visits. The report concluded that the investigation had not established any violation of the applicant’s rights by the prison authorities. 36.     On 11 September 1998 the applicant’s father sent a complaint to Mr   Shtanko, the head of the State Department for the Execution of Sentences, to which the latter replied on 12 October 1998. The allegations he raised were similar to those in his complaint to the regional prosecutor of 4 September 1998. Mr Shtanko replied that the applicant had been placed in solitary confinement because he had broken the rules. Furthermore, an investigation had not established that any physical force had been used against the applicant or that the prison authorities had humiliated him or restricted his rights, as was confirmed by the applicant himself. The applicant’s father was also informed that visits, including visits by a priest, could be allowed by the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior. 37.     On 23 October 1998 the applicant’s parents submitted a request to the regional prosecutor, the Regional Directorate of the Ministry of the Interior and the prison governor that a commission of independent doctors be set up in order to examine the applicant’s state of health. They alleged that the inmates of the prison had been tortured, which resulted in a suicide attempt by one of them or an attempt on his life. On 3 November 1998 the applicant’s parents were informed by the prison governor that their request had been refused on the grounds that there had been no sign of torture or of the use of any other physical violence against the applicant and that his state of health was satisfactory. 38.     On 23 and 24 October 1998 the applicant’s parents sent a letter to Mrs Leni Fischer, then President of the Parliamentary Assembly of the Council of Europe. They complained of torture inflicted on the applicant and one of his fellow inmates, Mr Kuznetsov, which had resulted in a suicide attempt by the latter, and alleged that they had been taken to hospital and that Mr Kuznetsov had been paralysed. The parents further complained that they had been prevented from seeing the applicant. 39.     In a letter of 26 October 1998 the applicant’s parents informed the Commission that “in establishment BI 304/199 in Ivano-Frankivsk there [had] been an attempt to execute the unjustly condemned M. Kuznetsov and B.   Poltoratskiy illegally, and [that] the Government [had] tried to conceal the fact”. 40.     A handwritten medical report issued on 28 October 1998 was signed by the applicant. The report stated that the applicant did not show any signs of having been beaten and that his state of health was satisfactory. 41.     In a handwritten statement of 28 October 1998 the applicant said that he had been treated properly by the prison authorities, that no physical violence had been employed, that all disciplinary measures imposed on him had been justified and that his parents’ complaints had not been substantiated. 42.     The Regional Directorate for the Execution of Sentences of the Ministry of the Interior issued a report on 29 October 1998 in response to the applicant’s father’s complaint about alleged torture and his request for a commission of independent doctors to examine the applicant’s state of health. The report stated that on 28 October 1998 the applicant had been examined by the prison doctors who had found no signs of physical injury. It also stated that the applicant denied that he had been tortured. 43.     In a letter of 30 October 1998 the deputy head of the Regional Directorate of the Ministry of the Interior informed the applicant’s mother that her complaint concerning torture to which the applicant had allegedly been subjected had been examined and found to be unsubstantiated. A   medical examination of the applicant had not shown any signs of torture. Accordingly, there was no reason to set up a medical commission to investigate the allegations. 44.     A letter of 2 November 1998 from the deputy regional prosecutor to the Prosecutor-General reported on the findings of the investigation carried out in connection with the applicant’s father’s complaint about restrictions on the applicant’s correspondence and visits, the interference by the prison authorities during the applicant’s parents’ visit on 2 September 1998 and the physical torture inflicted on the applicant. The letter said that, as regards the restriction on the applicant’s correspondence and visits, the father had wrongly relied on the Act, which did not apply to that category of prisoners, that the interference by a prison official had been justified, and that on 25   September 1998 the applicant had undergone a thorough medical examination which had not established any physical injuries. Finally, it explained that the applicant had been placed in solitary confinement on 26   August 1998 because he had broken the prison rules by refusing to let himself be examined by a prison warder upon his return from a daily walk outside the cell. 45.     In a letter of 20 November 1998 the deputy regional prosecutor replied to the applicant’s mother’s complaint about the physical torture allegedly inflicted on the applicant and to her request for a medical examination of the applicant. He stated that on 28 October 1998 the applicant had undergone a medical examination which had established that the allegations were unsubstantiated. The medical report had been confirmed and signed by the applicant. 46.     In a letter of 23 November 1998 the regional prosecutor informed the applicant’s father that his allegations about illegal acts on the part of the prison authorities had been found to be unsubstantiated. 47.     In a letter of 30 November 1998 the deputy head of the Regional Directorate of the Ministry of the Interior informed the applicant’s representative, Mr Voskoboynikov, that he could not be granted permission to visit the applicant as the latter had already had a visit from his relatives that month. 48.     In a letter of 8 December 1998 from the State Department for the Execution of Sentences the applicant’s father was informed that a thorough investigation had proved that his complaint about an illegal attempt to execute his son was unsubstantiated and that his son’s state of health was satisfactory. 49.     On 22 December 1998 the applicant requested permission from the head of the Regional Directorate of the Ministry of the Interior to see a priest. His request was granted and he saw a priest on 26 December 1998. 50.     In a letter of 15 February 1999 the prison governor informed the applicant’s father that his complaint of 22 January 1999 had been examined. He stated that persons sentenced to death were allowed to receive two parcels a year but no food parcels. 51.     In a decision of 5 March 1999 the Senior Prosecutor rejected a criminal complaint by the applicant’s parents against the deputy regional prosecutor. He refused to institute criminal proceedings against the latter on the ground that there was no evidence of his having committed an offence. He stated, inter alia , that the Act did not apply to the conditions of detention of death-row prisoners. These were governed by the Instruction, which was covered by the rules on State secrecy. 52.     According to the prison records, the applicant’s parents applied to visit the applicant on 19 September 1997, and on 4 March, 8 April, 19 June, 22   July, 2 November and 1 December 1998. Permission was given on 7   October 1997, and on 4 March, 22 April, 20 August, 17 November and 11   December 1998 for visits which took place on 4 December 1997 and 4   March, 12 June, 2 September and 26 November 1998 and on 4   January   1999. The request of 19 June 1998 was not granted. 53.     According to the prison records, the applicant sent letters to his parents on 17 September, 19 and 26 November, and 31 December 1997, and on 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17   June, 6 July, 10 August, 15 September, 22 October, 13 November and 11   December 1998. He received letters from them and other persons on 18   and 29   September, 19 October, 20   November and 24 December 1997, and on 16 and 26 January (two letters), 6,   10, 17 and 23 February, 6, 14 and 16   March, 6, 17, 20, 27 and 29 April, 14 May, 1, 8 and 30 June, 1, 20 and 30 July, 20   August (two letters), 29 September, 10, 22 (two letters) and 27   October, 4, 13, 20, 26 and 30 November, 4, 17 and 21 December 1998. 54.     In an undated document Mr Y.M. Pavlyuk, the deputy head of the isolation block, declared that during the period between 11 September 1997 and 18 December 1998, neither the applicant nor his parents had asked for permission for the applicant to see a priest. He further declared that during the said period no member of the clergy had asked for such permission. He signed the declaration. 55.     According to the applicant’s medical card, the applicant was X-rayed and blood-tested on 23 April 1998. On 25 September, 1 and 28 October, 9, 19 and 27 November, 3, 10, 17 and 24 December 1998 the applicant was seen by a prison psychiatrist. 56.     In a written request of 2 May 2000 to the head of the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior, Mr Boyko, the applicant’s father, in his capacity as his legal representative, asked for a confidential meeting with the applicant in order to discuss issues concerning his application pending before the European Court of Human Rights. On 23   May 2000, following a further request lodged on 15 May 2000, he was granted permission for a normal visit on 5   June 2000. 57.     On 16 May 2000 the applicant’s father complained to the Deputy Minister of the Interior that his request of 2 May 2000 for a confidential meeting had remained unanswered. 58.     In a letter of 14 July 2000 the deputy head of the State Department for the Execution of Sentences, Mr V.A. Lyovochkin, replied that Mr   Boyko had given the applicant’s father permission to visit the applicant on 5 June 2000 and that the visit had taken place as scheduled. He added that in accordance with Article 40 of the Correctional Labour Code, a   lawyer could be given permission for a confidential meeting with his client on presentation of his licence and identity card. D.     The Commission’s evaluation of the evidence and its findings of fact 59.     Since the facts of the case were disputed, the Commission conducted an investigation, with the assistance of the parties, and took oral evidence from the following witnesses: the applicant; the applicant’s parents; Mr   Bronislav S. Stichinskiy, Deputy Minister of Justice; Mr Drishchenko, Deputy Prosecutor-General; Mr Ivan V. Shtanko, Deputy Minister of the Interior; Mr Petro A. Yaremkiv, the governor of Ivano-Frankivsk Prison; Mr   Bogdan V. Kachur, prison doctor; Mr Stanislav V. Prokhnitskiy, medical assistant; Mr Yuriy M. Pindus, assistant to the prison governor, who was on duty on 3 September 1998; Mr Fedir O. Savchuk, assistant to the prison governor, who was on duty during the night of 2 to 3 September 1998; Mr Igor P. Ivashko, the deputy governor of the prison; Mr Yaroslav M. Pavlyuk, the deputy head of the isolation block; Mr Valentin M. Nabiulin, the head of the Department for Supervision of Isolation Blocks and Prisons of the Directorate for the Execution of Sentences; Mr Oleksand V. Kmyta, the deputy head of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior; and Mr Anatoliy O. Boyko, the head of the Ivano-Frankivsk Regional Department for the Execution of Sentences of the Ministry of the Interior. The Commission’s findings may be summarised as follows. 1.     Alleged ill-treatment of the applicant by prison officers 60.     The applicant gave evidence before the delegates that he had been beaten on 2 September 1998 after the visit from his parents on the same day. During that visit, he had said to his parents that he had been beaten and called a beast. The applicant’s parents stated before the delegates that they had been told by their son on 2 September 1998 that he had been beaten and humiliated. The Commission observed, however, that the applicant denied before the delegates that he had been beaten before 2 September 1998. It considered, therefore, that it had not been established that the applicant had been beaten before 2 September 1998. 61.     As to the events on 2 September 1998, the applicant stated before the delegates that, after the visit from his parents on that date, he had been taken to the “cinema room” where four persons, including Mr Pavlyuk, the deputy head of the isolation block on duty, were waiting for him with clubs. He had been asked three times to tell everything, but had refused and had been struck on his legs, hips, back and chest. He had returned to his cell and had written until the morning on four sheets of paper which had been included in a file. 62.     The applicant further stated that he had been beaten on 10, 14 and 22   September 1998. One day, during a technical search of his cell, he had been taken out and ordered to get undressed so that his clothes could be checked. When he was naked, he had been beaten. He had been ordered to lie down on the floor with his face to the ground and his hands behind his head. He mentioned the name of K.Y. Hrevnin to the delegates. 63.     The Commission considered that the applicant’s account contained a   number of details and elements which it would not have expected to find in a fabricated story. It noted, however, that there was no record of any occurrence connected to the ill-treatment described by the applicant. The Commission accepted that the applicant may have been afraid to complain or to write to anyone, as he said. However, it accepted this argument with difficulty, having regard to the fact that he had not been scared when he had told his parents on 2 September 1998 that he had been beaten. Moreover, the prison psychiatrist saw him on 25 September 1998 and had not recorded any problems regarding his state of health or any injuries. The Commission added that the medical report of 28 October 1998, which the applicant had signed, concluded that he did not show any signs of having been beaten and that his state of health was satisfactory. 64.     The Commission further noted that the applicant had signed a   written statement on 28 October 1998 to the effect that he had been treated properly by the prison authorities, that no physical violence had been used against him, that all disciplinary measures imposed on him had been justified and that his parents’ complaints had not been substantiated. It took into account the fact that, before the delegates, the applicant had denied the contents of his statement, and pointed out that the practice of the prison authorities to require an inmate to confirm in writing that he had been treated properly by prison officers gave rise to suspicion. 65.     As to the applicant’s parents’ submission before the delegates that, after the alleged beatings and torture on 2 September 1998, he had been transferred to Chukopovskiy Psycho-Neurological Hospital early in the morning of 3 September 1998 and had been placed in the intensive care unit where he had been given a blood transfusion, the Commission observed that, although the applicant had maintained that he had been beaten after his parents’ visit on 2 September 1998, he had denied that he had been transferred to hospital. This was corroborated by the statements of the prison doctor, the medical assistant, the governor’s assistant on duty at the time and the deputy governor, all of whom had been heard by the delegates. In addition, there was no documentary evidence proving that the applicant had been taken to hospital on the aforesaid date. The Commission did not consider the parents’ evidence on this point convincing or reliable. 66.     The Commission found that there was no medical or other material evidence establishing that the applicant had sustained injury as a result of ill-treatment by prison officers in Ivano-Frankivsk Prison, as he had alleged. It had regard to the fact that the applicant had denied that he had been beaten before 2 September 1998 and had been transferred to hospital after that date, and that the absence of any use of force by prison officers on 2, 10, 14 and 22 September 1998 had been supported by the oral statements of the witnesses heard by its delegates. The Commission therefore found it impossible to establish, beyond reasonable doubt, that the applicant had been subjected to ill-treatment in prison as he had alleged. 2.     Investigation into the applicant’s and his parents’ allegations 67.     The applicant’s parents sent a complaint to the regional prosecutor on 4 September 1998, claiming, inter alia , that they had become aware that the applicant had been beaten and humiliated by prison officers. They made similar allegations to the head of the State Department for the Execution of Sentences on 11 September 1998. On 12 October 1998 the latter informed the applicant’s father that the investigation had not established that any physical force had been used against his son or that the prison authorities had humiliated him or restricted his rights. He also stated that this finding had been confirmed in writing by the applicant himself. 68.     On 23 October 1998 the applicant’s parents requested the regional prosecutor, the Regional Directorate of the Ministry of the Interior and the prison governor to set up an independent medical commission in order to examine the applicant’s state of health. They alleged that the prison’s inmates had been tortured, resulting in a suicide attempt by one of them, Mr   Kuznetsov, or in an attempt on his life. On 30 October 1998 the applicant’s mother was informed by the deputy head of the Regional Directorate of the Ministry of the Interior that her complaint concerning the alleged torture of the applicant had been examined and found to be unsubstantiated and a medical examination of the applicant had not revealed any signs of torture. There was, accordingly, no reason to set up a medical commission to investigate her allegations. On 3 November 1998 the prison governor informed the applicant’s parents that their request had been refused on the grounds that there was no sign of torture or the use of any other form of physical violence against the applicant and that his state of health was satisfactory. In a letter of 20 November 1998 to the applicant’s parents, the deputy regional prosecutor confirmed that on 28 October 1998 the applicant had undergone a medical examination which had established that the parents’ allegations were unsubstantiated. Moreover, on 2   November 1998 the deputy regional prosecutor sent a letter to the Prosecutor-General which reported on the results of the investigation carried out in connection with, inter alia , the allegations that the applicant had been physically tortured. The letter confirmed that on 25 September 1998 the applicant had undergone a thorough medical examination which had not revealed any physical injury. 69.     The Commission noted that on 8 December 1998 the applicant’s father had received a letter from the State Department for the Execution of Sentences stating that a thorough investigation had proved that his complaint about an attempt to execute his son was unsubstantiated and that the latter’s state of health was satisfactory. The domestic investigation had then ended on 5 March 1999 with a decision by the Senior Prosecutor on the applicant’s parents’ criminal complaint against the regional prosecutor. The Senior Prosecutor had refused to institute criminal proceedings on the ground that no criminal offence had been established. 70.     The Commission found that there were no contemporaneous records giving details of any investigation which the domestic authorities had carried out into the applicant’s parents’ allegations of the events in September 1998. It had not seen a single document proving that an investigation had been carried out by any domestic authorities other than those directly involved in the facts of which the applicant’s parents complained. Moreover, the medical report of 28 October 1998 had been drafted almost two months after the applicant’s alleged ill-treatment and the applicant had not been seen by the prison doctor or prison psychiatrist between 23 April and 25 September 1998. 3.     Conditions of the applicant’s detention on death row 71.     The Commission found that the eight death-row inmates at Ivano-Frankivsk Prison, including the applicant, were being kept in single cells without the opportunity to communicate with other inmates. The applicant’s cell measured 2 x 5 x 3 m. There was an open toilet, a washbasin with a cold-water tap, two beds, a table and a little bench, both fixed to the floor, central heating and a window with bars. The applicant had some books, newspapers, a chess set, a stock of soap and toilet paper, some fruit and other food. During the delegates’ visit on 24 and 25 November 1998, the cell had been overheated, particularly in comparison with other rooms in the prison. The light was on twenty-four hours a day and the central radio was switched off at night. The inmates were frequently observed by prison warders through a spy hole in the door of the cell, which deprived them of any kind of privacy. The cell was freshly painted, from which the inference might be drawn that conditions had been worse prior to the delegates’ visit. The Commission accepted the applicant’s evidence that between 24   February and 24 March 1998 there had been no tap or washbasin in his cell, but only a small pipe on the wall near the toilet, that the water supply could only be turned on from the corridor, that the walls were covered with faeces and that the bucket for flushing the toilet had been taken away. The Commission found the applicant’s evidence – which was not contested by the Government – persuasive. 72.     The Commission also accepted the applicant’s evidence that, until May 1998, the window in his cell had been shuttered and that he had not been allowed to take daily outdoor walks. 73.     Concerning the applicant’s parents’ requests to visit him, the Commission found that, apart from the parents’ request of 19 June 1998, all had been granted. The parents had applied to visit their son on 19 September 1997 and on 4 March, 8 April, 22 July, 2 November and 1 December 1998. Permission had been given on 7 October 1997 and on 4 March, 22 April, 20 August, 17 November and 11 December 1998 for visits which had taken place on 4 December 1997 and 4 March, 12 June, 2 September and 26 November 1998 and 4 January 1999. The Commission noted that the parents’ requests to visit the applicant had mostly been granted for a date two or three months after the request had been made. Moreover, two warders had been present during the visits, who were authorised to interrupt the conversation if they considered that the parents or the applicant had said anything “untrue”. 74.     Regarding the applicant’s correspondence, the Commission noted that the applicant had applied for the first time to the Regional Directorate of the Ministry of the Interior for permission to send a letter to his relatives on 17 September 1997. Thereafter he had sent letters to his parents on 19   and 26 November 1997, 31 December 1997, and on 5, 16, 20 and 30   January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10   August, 15 September, 22 October, 13 November and 11 December 1998. He had received letters from his parents on 18 and 29 September, 19   October, 20 November and 24 December 1997, and on 16 and 26   January, 6, 10 and 23   February, 14 and 16 March, 17 April, 14 May, 1   and 8 June, 1 and 30 July, 20 August, 29 September, 10, 22 and 27   October, 4, 20, 26 and 30 November and 4, 17 and 21 December 1998. 75.     The Commission could not establish with sufficient clarity whether the applicant or his parents had asked for permission for a priest to come to see the applicant. It nevertheless found that while the applicant had seen a priest on 26 December 1998 following his request of 22 December 1998, there had been no regular visits to inmates by any chaplain. II.     RELEVANT DOMESTIC LAW A.     The Ukrainian Constitution 76.     Under Article 8 §§ 2 and 3, the Constitution is directly applicable. There is a guaranteed right to bring an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of the Constitution. 77.     Article 9 § 1 provides that international treaties, which are in force and agreed on as binding by the Verkhovna Rada (parliament) of Ukraine, are part of the national legislation. 78.     Article 15 § 3 prohibits censorship. 79.     Under Article 19 the legal order in Ukraine is based on the principle that no one may be forced to do what is not provided by law. State authorities and local self-government bodies and their officials are required to act exclusively in accordance with this principle, within the limits of their authority, and in the manner provided by the Constitution and the laws of Ukraine. 80.     Article 22 provides that human and citizens’ rights and freedoms are guaranteed and may not be reduced by the adoption of new laws or the amendment of those that exist. 81.     Under Article 29 §§ 2 and 4 no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law. Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention, apprised of his rights and, from the moment of detention, must be given the opportunity to defend himself in person or to have the assistance of a lawyer. 82.     Under Article 55 §§ 2 and 4, everyone is guaranteed the right to challenge the decisions, actions or omissions of State authorities, local self-government bodies and officials and officers of courts of law. After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which Ukraine is a member or participant. 83.     Under Article 59 everyone has the right to legal assistance. Such assistance is provided free of charge in cases provided by law. Everyone is free to choose who is to defend his rights. In Ukraine, the Bar (адвокатура) ensures the right to a defence against charges and the provision of legal assistance before the courts and other State authorities. 84.     Article 63 § 3 provides that a convicted person enjoys all human and citizens’ rights, subject only to restrictions provided by law and determined by a court ruling. 85.     According to Article 64, human and citizens’ rights and freedoms guaranteed by the Constitution may not be restricted, except in cases provided by the Constitution. B.     Statutory regulations governing the conditions on death row 86.     Conditions on death row in the Ukrainian prison system were governed successively by the Instruction of 20 April 1998 on conditions of detention of persons sentenced to capital punishment (“the Instruction”) and by the Temporary Provisions of 25 June 1999 on the conditions of detention of persons sentenced to capital punishment in the isolation blocks (“the Temporary Provisions”). 87.     The Instruction