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

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display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     FOURTH SECTION     CASE OF KHOKHLICH v. UKRAINE     (Application no. 41707/98)     JUDGMENT     STRASBOURG   29 April 2003         FINAL   29/07/2003           This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Khokhlich v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   M. Pellonpää ,   Mrs   E. Palm ,   Mr   J. Makarczyk ,   Mrs   V. Strážnická ,   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 the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no.   41707/98) 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   Polish national, Mykola Khokhlich (“the applicant”), on 9 February 1998. 2.     The applicant was represented by Mr Voskoboynikov and, from June   2000, by Mr Khitsinskiy and Mr Stetsko. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska, from the Ministry of Justice. 3.     The applicant complained, inter alia , that the conditions to which he was subjected on death row in Khmelnitskiy Prison amounted to inhuman and degrading treatment . 4.     The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The application 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 of the Rules of Court. 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 the cases of Nazarenko v. Ukraine, Aliev v. Ukraine, Dankevich v. Ukraine, Poltoratskiy v. Ukraine and Kuznetsov v. Ukraine (applications nos. 39483/98, 41220/98, 40679/98, 38812/97 and 39042/97 (Rule 43 § 2)). 7.     By a decision of 25 May 1999, the Court declared the application partly admissible. On 7 and 8 October 1999 the Court carried out a fact-finding visit to Khmelnitskiy Prison. 8.     The Government, but not the applicant, filed observations on the merits (Rule 59 § 1). 9.     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. 10.     Between 13 and 15 June 2000, at the request of the Court, the TB   Yanovski Institute carried out an independent medical examination of the applicant and his fellow inmate, Mr R. Yusev. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Outline of events 11.     In February 1995 the applicant who was then aged nineteen was arrested by the police on several occasions and on 13 March 1995 he was detained on remand. 12.     On 9 February 1996 the Khmelnitskiy Regional Court (обласний суд) convicted the applicant of the murder of two persons and sentenced him to death. 13.     On 26 March 1996 the Supreme Court (Верховний суд) upheld the judgment of the first-instance court. 14.     In September 1997 the applicant was diagnosed as having tuberculosis. 15.     On 29 October 1997 the Khmelnitskiy Regional Prosecutor (Прокурор Хмельницькoï oблacmi) informed the applicant’s mother that the domestic legislation did not provide for visits by a notary to persons sentenced to death. On 30 October 1997 the Ministry of the Interior confirmed this information. 16.     On 10 December 1997 the Regional Court gave the applicant leave to receive a visit from a notary. 17.     On 6 January 1998 the Khmelnitskiy Notary Office (Перша Xмельницька державна нотарiальна контoрa) confirmed that between 5   December 1997 and 6 January 1998 they did not receive any written permission for a visit of the applicant. 18.     On 10 February 1998 a notary visited the applicant and certified the applicant’s signature on the power of attorney. 19.     A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11рп/99 of 29 December 1999 the Constitutional Court held that the provisions of the Criminal Code concerning the death penalty were contrary to the Constitution of Ukraine. The death penalty was therefore abolished and replaced by life imprisonment by Act no. 1483-III of 22   February 2000. 20.     On 21 June 2000 the Regional Court commuted the applicant’s death sentence to life imprisonment. B.   Oral evidence before the Court Delegates 21.     Evidence from the applicant and four other witnesses was taken by a   Court delegation in Khmelnitskiy Prison on 7 and 8 October 1999. The statements may be summarised as follows: 1.     The applicant (a)     General conditions of the applicant’s detention on death row 22.     The applicant stated that he had been informed about his rights and obligations as a convicted person on 23 September 1999, having been given a sheet of paper with the rules containing the rights and obligations of an inmate. He had had to sign this document. 23.     He confirmed that he preferred to be detained alone. On the day of the Delegates’ visit to Khmelnitskiy Prison, he was held in a single cell. 24.     The applicant did not complain about the medical care in the prison, apart from the treatment of tuberculosis. He had applied for dental treatment, but had been told that during such treatment a warder had to be present and that the treatment was lengthy. He had repeatedly complained about this practice to the head of the prison medical unit and to the medical assistant (фельдшер) . However, he had never submitted any written complaint. He had not informed his mother about his dental problems. 25.     The applicant stated that he was almost always hungry. Moreover, hot water which had been brought from the prison kitchen was not hot enough to prepare tea. 26.     He also stated that the temperature in his cell was satisfactory during summer but that in winter it was very cold. 27.     He was allowed to take a hot shower once a week, but according to him, the bathroom was in an unacceptable state. 28.     The only lamp in his cell was switched on 24   hours a day, but it did not disturb the applicant too much. The window was opened by the prison staff during his daily walks. He could not open it himself. According to him, the window had been shuttered until 1 October 1999. 29.     He said that the toilet in his cell was not covered. He was able to flush it. 30.     The applicant stated that the conditions in the cells which he had successively occupied had been similar. 31.     He confirmed that on 25 February, 29 April and 27 October 1998 he had written, of his own free will, three statements attesting that he did not have any complaints against the prison administration. He had written these statements at the request of the prison administration without, however, having been told why the statements had been needed. He confirmed that no pressure had been exerted on him in this respect. 32.     The applicant said that he had never been punished in the prison. 33.     He said that in 1997 he had become aware that the moratorium on execution of the death penalty had been introduced. However, he had not been formally informed about it by the national authorities. (b)     Details concerning the applicant’s tuberculosis 34.     The applicant stated that he had been placed in a cell with a man, Mr   Yusev, who was suffering from tuberculosis and that he had been infected with the same disease. He said that he had undergone his first X-ray examination in March 1995, when he had been admitted to Khmelnitskiy Prison. According to him, between March 1995 and September 1997 he had not been X-rayed. He confirmed that he had been detained with Mr Yusev for five months, between 3 February and 4 July 1997. 35.     The applicant stated that the inmates had undergone an X-ray examination every six months and had been given special medication in order to prevent the progress of tuberculosis. However, he did not reply to the Delegates’ comment: “You are saying that you are X-rayed every six months. But this does not apply to the period we discussed before, because you said that you were not X-rayed between March 1995 and September   1997.” 36.     According to the applicant, apart from Mr Yusev, nobody else with whom he had shared his cell had been suffering from tuberculosis. 37.     He said that the medication for tuberculosis had been provided by his family. His state of health had not improved immediately after the medication had been administered to him. He said: “It got worse from the very beginning. But as soon as I started taking medicine, my health condition improved.” He was not hospitalised. (c)     Prison practice concerning the applicant’s correspondence and receipt of parcels and small packets [1] 38.     The applicant stated that before his death sentence had become final, he had been allowed to receive monthly one parcel of goods bought from the prison shop. On 5 October 1998 he had received his first parcel from his mother. He wished to receive more parcels or small packets. He had never been punished by the prison administration by means of a restriction on the number of parcels that could be sent to him by his family. 39.     The applicant said that prior to 23 September 1999 he had not known that he had the right to send and receive letters and parcels to and from his relatives, but said that he had written one letter a month. (d)     Prison practice concerning daily outdoor walks 40.     The applicant confirmed that he had started having daily one-hour outdoor walks on 5 May 1998. The walks had taken place every day, but the applicant, not having had a watch, could not say whether they had lasted exactly one hour. He did not have the impression that the walks had been shortened. He had had to walk alone and had been handcuffed during his walks, even during the winter, which had deprived him of the possibility of physical exercise. He said that when he had been detained with another inmate, they had walked together. (e)     Visit by a notary to the applicant 41.     The applicant confirmed that permission from the prison authorities for a visit by the notary public had been delayed and had been given only after a decision by the Regional Court, and that the notary had visited him on 2 February 1998. He complained that the court decision had been given on 10 December 1997 and permission had been granted two months later. Nevertheless, this delay had not caused any damage to him. 42.     According to the applicant, it was his mother who had requested that a notary come to see him in the prison. He personally had not applied for the visit in writing, but only orally. (f)     Prison practice concerning visits from the applicant’s relatives 43.     The applicant said that his mother tongue was Polish. He had encountered some problems on the part of the prison administration in communicating with his relatives in Polish. He confirmed that the matter had been resolved seven months ago. 2.     Mr Anatoliy P. Yurchenko 44.     The witness was the governor of Khmelnitskiy Prison. He had been working as governor for twelve years. a)     General conditions of the applicant’s detention on death row 45.     The witness said that about 584 persons were detained in the prison of whom 411 were in pre-trial detention and 173 were convicted. Nine inmates were on death row. They were held in a separate corridor in eight special cells intended for that category of prisoners. 46.     At the beginning the applicant had shared his cell with another inmate. On the day of the Delegates’ visit, he was held in a single cell. According to him, death row inmates were generally detained in double cells and, at their own request, in single cells. During his stay on death row, the applicant had successively occupied four or five cells. The prison had kept a record of the inmates’ movement. 47.     According to him, the applicant had initially been sentenced to three years’ imprisonment in 1994. He had been released under a presidential amnesty. He had been arrested again on 10 March 1995 and detained in Khmelnitskiy Prison since 13 March 1995. 48.     The witness stated that inmates had the right to file complaints about their detention conditions through a member of the prison staff responsible for a particular part of the prison who regularly walked around the cells and registered those complaints, forwarding them to the prison governor. The witness confirmed that all internal complaints had been registered. 49.     He said that the applicant had never made any written complaints, either to him or to the prosecutor or to the Supreme Court. All the complaints on the applicant’s behalf had been submitted by his mother. During his stay in Khmelnitskiy Prison, the applicant had personally submitted one request to be provided with a mattress. His mother had contacted the witness when complaining about the arrangements concerning parcels and small packets and her meetings with the applicant. 50.     In reply to the Delegates’ question: “Have there been any cases, apart from that of the applicant, when a complaint concerning detention conditions or misconduct on the part of staff members has led to consequences such as a reprimand or a penalty?” the witness stated: “No, we have had no such examples.” 51.     The witness considered in a positive light the recent improvements concerning the conditions of detention of persons sentenced to death, as a   result of the moratorium on execution of the death penalty. (b)     Details concerning the applicant’s tuberculosis 52.     The witness stated that while in pre-trial detention and after his sentence had been pronounced, the applicant had been held with Mr Yusev. Both of them had been healthy at that time, a fact that had been confirmed by an X-ray examination. 53.     On 4 July 1997 a regular medical examination had revealed that Mr   Yusev was suffering from tuberculosis, and his treatment had started. At the same time, the applicant had been separated from Mr Yusev and had been given preventive treatment as a person who had been in contact with an infected person. In fact, two months later the applicant had also been diagnosed with tuberculosis and had had to undergo appropriate treatment. 54.     In reply to the Delegates’ comments: “The first diagnosis of Mr   Yusev occurred on 4 July 1997. At that time, the applicant was X-rayed and there was a suspicion of tuberculosis. Later, on 18 September 1997, that suspicion changed to certainty because the X-ray led to the conclusion that he had tuberculosis,” the witness stated: “I would like you to know that every inmate undergoes a medical examination upon his arrival. He is X-rayed and, according to the results, he is placed in an appropriate cell.” 55.     The witness said that the head of the prison medical division had been working in Khmelnitskiy Prison for five years and had been working there as a doctor between 1995 and 1997, when the applicant’s tuberculosis had been detected and treated. 56.     He also stated that in 1999, twenty-three persons detained in Khmelnitskiy Prison had been suffering from tuberculosis. They had been held separately and specific measures had been taken to prevent other inmates from any contact with them. (c)     Prison practice concerning correspondence and receipt of parcels and small packets 57.     According to the witness, the prison kept a register of incoming and outgoing letters. Each inmate had a personal file in which the prison administration kept a record of all his correspondence, parcels and meetings. (d)     Visit by a notary to the applicant 58.     In reply to the Court Delegates’ comments: “In 1997 the applicant’s mother requested repeatedly that the prison governor certify a power of attorney for her son’s lawyer or allow a notary to visit him in the prison. The notary was allowed to visit the applicant on 10 February 1998, but in comparison with other cases there seems to have been a delay of several months,” the witness stated: “Permission for the notary to meet the applicant was given by the Regional Court. Only after we received that permission could we allow the meeting to take place.” He confirmed that the applicant’s mother had been told that the governor of the pre-trial institution was not empowered to certify the power of attorney. The witness added that according to Ukrainian legislation, if an inmate wanted to see his lawyer, he submitted an application to the prison governor. If the lawyer had all the necessary documents proving that he was a certified lawyer, he was given permission to see the inmate, even every day, without any restriction. However, the regulations governing visits by a notary were different. 59.     The Government representative explained that according to the national legislation, a lawyer was entitled to visit his client at any time, without any restriction as to the length of the visits, provided that prior notice had been given to the prison governor. The applicant’s representative before the European Court, Mr Voskoboynikov, was not a lawyer and did not have a legal background. If he were a lawyer, he would not need a   power of attorney. 60.     The witness further stated that since Mr Voskoboynikov was not a   lawyer, he was not obliged to give him any information, including information concerning the regime applicable to the applicant. 3.     Mrs Maria Y. Khokhlich 61.     The witness was the applicant’s mother. (a)     General conditions of the applicant’s detention on death row 62.     The witness said that the electric lamp in her son’s cell was very bright and switched on all the time. There was no daylight. The cell was very damp and cold. The food was, according to her, also very bad. She said that she had complained about these facts to the prison governor and to the Head of the Department for the Execution of Sentences. 63.     She stated that her son had sometimes been provided with hot water instead of tea. 64.     In reply to the Delegates’ question: “We were informed that your son had made several statements attesting that he had not made any complaints about detention conditions, medical treatment, etc. Did your son tell you that he had been forced to make such statements?” the witness stated: “After we had applied to the Council of Europe, my son and other inmates wrote the statement saying that they did not want the delegation to come. I spoke to my son and he told me that I did not know many things, and I understood what he meant.” (b)     Details concerning the applicant’s tuberculosis and other health problems 65.     The witness stated that her son had fallen ill from tuberculosis in the prison. During a meeting he had said that he had coughed up blood. Afterwards, she had applied to the prison governor, claiming that the applicant had shared his cell with a sick person. She had also applied to the authorities for medical assistance. The medication had been partly brought by her and partly provided by the prison medical service. According to the witness, the medical treatment had not been sufficient. 66.     The witness said that the applicant had had problems with his liver and stomach and with his teeth. She had applied to the prison doctor but had been told that the prison did not have sufficient financial means to provide the inmates with proper dental treatment. She said that her son had had two teeth extracted without undergoing an anaesthetic, and that she had complained about this orally and in writing. 67.     She further said that she had wanted to bring some medicine for her son in prison, but the prison governor had not given the permission to do so. She stated: “The medicine for tuberculosis or flu, general painkillers, I used to bring them regularly. However, the ones like animal fat were first allowed only about two or three months ago.” 68.     In reply to the Delegates’ question: “The prison authorities maintain that Mr Yusev was X-rayed on 19 August 1995 and that he was not ill at that time. Considering that they both fell ill, but no infection was passed on from Mr Yusev to your son, do you have any comments on this allegation?” the witness stated: “They found tuberculosis in Yusev first and after they were both detained in the same cell they discovered tuberculosis in my son as well.” In reply to the Delegates’ comments: “Our records indicate that the examination in which it was discovered that Mr Yusev had tuberculosis took place on 4 July 1997 and that your son was detained together with him from 5 February to 4   July 1997. The authorities maintain that as soon as the state of health of Mr Yusev was discovered, your son was put into another cell”, the witness stated: “No, that is not true. Another inmate who was held with Mr Yusev before my son said that even at that time he was coughing up blood.” 69.     The witness further said that she had asked to have access to her son’s medical file but had been refused. Her request that her son be examined by a specialist had also been refused. She had been told that an examination of that kind was not possible for this category of prisoners. (c)     Prison practice concerning receipt of parcels and small packets 70.     The witness confirmed that her son had received his first parcel from her on 5   October 1998. She had applied for permission to send a parcel on several previous occasions since her son had fallen ill, but permission had been refused. Her first application had been submitted a year and a half ago. 71.     The witness said that in August 1999 the prison administration had not wanted to accept her parcels for her son. She had been told that his category of prisoners were not allowed to receive normal parcels, but only two small packets per year. She had applied “everywhere” but without any success. (d)     Prison practice concerning daily outdoor walks 72.     The witness said that the applicant had not been allowed to go for a   walk before she had applied to the Council of Europe. According to her, he had been allowed to go for daily walks since April 1998. The witness confirmed that her son had complained to the prison governor that he had been handcuffed during the walks. (e)     Prison practice concerning visits from the applicant’s mother 73.     The witness said that the applicant had been handcuffed during his meetings with her. Moreover, they had encountered problems when they had spoken Polish together during their meetings. According to her, the prison governor had come to one of their meetings with a tape recorder. 4.     Mr Oleg S. Vychavka 74.     The witness was the prison doctor, having been the head of the prison medical unit since 1 June 1999. Previously, he had been working in Khmelnitskiy Prison as a doctor since 1995. 75.     He stated that the medical unit included two full-time doctors and a   number of part-time specialists: a dentist, a dermatologist, an X-ray specialist, the head of the laboratory and a tuberculosis specialist. It also had two full-time medical assistants and a part-time nurse, an X-ray assistant and a laboratory assistant. He considered this staffing sufficient for the needs and the size of Khmelnitsky Prison. He confirmed that there was no difference between the categories of prisoners in the eyes of the members of the medical unit. Every day the medical assistant walked around all the cells in the prison. If he was able to provide the necessary assistance in distributing medication, he did so. If not, he arranged an appointment with the prison doctor or an appropriate specialist. 76.     The witness stated that those inmates who were detained in the prison for more than six months were X-rayed on a regular basis every six months. 77.     In reply to the Delegates’ question: “We have information that the applicant and Mr Yusev were X-rayed upon arrival at this prison on 13   March and 19 August 1995 respectively. These examinations did not show any signs of tuberculosis. The applicant and Mr Yusev subsequently shared a cell from 3   February to 4 July 1997. On 4 July 1997 a regular medical examination revealed that Mr Yusev had pulmonary tuberculosis without growth of micro-bacteria. Then the applicant started displaying some symptoms and there was a strong suspicion that he also had tuberculosis. That was confirmed by an X-ray examination of 18   September   1997. We would like to ask you a very important question and we will have to check this with the medical files. Between the initial X-ray examination in 1995 and the examinations which led to the discovery of tuberculosis, first in Mr Yusev and second in the applicant, were the half-yearly regular obligatory X-ray examinations carried out in respect of the two prisoners?” the witness stated: “Not every six months, but once a year.” There had been a difference between the normal prisoners and the death row inmates, who had been subjected to stricter conditions during the period from 1995 to 1996. According to him, conducting half-yearly X-ray examinations could not help prevent the spread of tuberculosis as it was not possible to avoid infection. He said that the applicant and Mr Yusev were the only two cases in which inmates had contracted tuberculosis in the prison. 78.     The witness added that the last X-ray examination of the applicant had not shown any signs of nitrification, fibrosis or lung deformation. Mr   Yusev’s X-ray had revealed only signs of fibrosis. They were now in a   special group of inmates and would be under medical observation for the next five years, during which time they would receive preventive treatment in order to avoid a relapse. 79.     In reply to the Delegates’ question: “The applicant complains that he fell ill because he had been kept in the same cell as a person who was already ill. The Government say that the disease was not transmitted because they both became ill at the same time. What do you think about it?” the witness stated: “Yes, they were held together for five months. But when Mr Yusev was diagnosed with tuberculosis, he was immediately put into a   separate cell. He was prescribed treatment and the applicant, as a person who had been in contact with him, was given preventive treatment.” According to him, Mr Yusev had undergone an X-ray examination in 1996, after having complained of symptoms of tuberculosis. 80.     The witness confirmed that there was a special diet called “8B”for those suffering from tuberculosis. He admitted that there was not always a   regular meat supply, but milk and butter were always available for the diet. Moreover, the lack of certain food products was compensated for by what inmates received in parcels from their relatives. 81.     He said that the conditions in the cells where the inmates suffering from tuberculosis were held were slightly better than the conditions in other cells. The cells themselves were bigger. 82.     The witness further stated that the applicant had complained of his dental problems. Two of his teeth had been extracted because it had not been possible to treat them. He confirmed that teeth were extracted only if they were not treatable. The medical unit had not been able to provide a   general anaesthetic, but had used a local one. There was no problem with having false teeth fitted either; the only problem encountered in that connection was lack of money. In such cases the inmate had to pay for the materials because an outside specialist had to come to the prison. 83.     In reply to the Delegates’ remark: “Yesterday the applicant complained that in the shower room it is so cold that one can catch a cold. We were there yesterday and it really is cold in there. Have you seen the place?” the witness stated: “Yes. It has got colder since yesterday; before, it was relatively warm. But on 15 October the heating will be switched on.” 84.     In reply to the applicant’s representative’s question: “How can you explain this logical contradiction: Mr Yusev had no micro-bacterial growth but after a while he infected the applicant?” the witness stated: “Every human being has the tubercle bacillus. Under certain conditions the bacillus manifests itself. The two inmates stayed together for a long time, for almost two and a half years. And the applicant’s statements concerning his being infected by Mr Yusev are unreliable.” In reply to the applicant’s representative’s next questions: “How can you explain the statements of other inmates who were detained with Mr Yusev before the applicant that they saw Mr Yusev coughing up blood even then? Was not that a symptom of tuberculosis in its contagious form?” the witness stated: “Only a doctor can say. The blood could have come from the gums or teeth, or from the nose. The source can be defined only by a doctor. I do not have any information from other inmates, I know that only the applicant said that. The most recent tests did not detect any bacteria in Mr Yusev.” 85.     The witness acknowledged that the prison was not equipped with a   laboratory, instead using the laboratory facilities of the militia hospital and, for tuberculosis tests, those in the regional tuberculosis hospital. He said that the prison medical unit sent an inmate to the tuberculosis hospital only if there was a suspicion of illness. The applicant had last been consulted on 7 October 1998. After that, he had been transferred to the second group. The witness had not received any request from the applicant’s mother for detailed tests after the applicant had been diagnosed with tuberculosis. 86.     He confirmed that relatives could send additional parcels to inmates suffering from tuberculosis. Permission was given by the prison administration at his suggestion. However, he had not made such a   suggestion in the applicant’s case. 87.     The witness further confirmed that the medical unit possessed the necessary dental equipment. The inmate’s relatives had to pay the cost of material. If there was money in the inmate’s account, the medical unit could arrange for his dental treatment. According to him, the applicant had officially asked about false teeth two days before the Delegates’ visit to Khmelnitskiy Prison. His mother had not applied to the witness for this treatment, but she might have applied to the prison governor. C.     Inspection of Khmelnitsky Prison 88.     The Court Delegates visited the cell where the applicant was detained. The size of the applicant’s cell was about 9 square metres. The cell was in order and clean. There was an open toilet, a washbasin with a   cold water tap, two beds fixed on the floor, central heating and a window with bars. There were some books, newspapers and a cup for making tea. The cell seemed to be sufficiently heated and ventilated. 89.     The Delegates were shown the prison shower cubicle which was about 1 metre square. The ceiling was covered only by bars. It was lit by an electrical lamp and was very cold. 90.     The Delegates also visited the prison’s exercise yard. D.     Excerpts from the statement of the independent medical commission examining the applicant’s and Mr Yusev’s health 91.     The commission established the following: The applicant was taken to Khmelnitskiy Prison on 13 March 1995. Upon this, he was given a general medical examination by the therapist, who concluded that the applicant was healthy. His first X-ray examination, carried out on 15 March 1995, established that his lungs and heart were in a   normal condition. Bacteriological analysis of faeces for dysentery, typhoid and paratyphoid fever did not show any sign of disease. Microprecipitation of the applicant’s blood produced a negative reaction. The applicant was given a complete medical examination and a court psychiatric assessment by Khmelnitskiy Regional Psychiatric Assessment Unit no. 1 in May 1995, and a conclusion of “sane” was reached with regard to psychopathy. On 16 June 1996 the applicant underwent an X-ray examination which did not show any sign of disease of the lungs or heart. From 13 March 1995 to 18 November 1996 he was held in a separate cell. From 18 November 1996 to 23 April 1997 the applicant and Mr Yusev shared a cell. From 23 April to 4 November 1997 they were again kept in separate cells. Afterwards, the applicant was found to be suffering from pulmonary tuberculosis and was transferred to the cell of Mr Yusev, who also suffered from tuberculosis. They shared the same cell from 4   November 1997 until 9 June 1998. Since 9 June 1998 the applicant and Mr   Yusev have been kept in separate cells. On 11 July 1997, when Mr   Yusev was found to be suffering from tuberculosis, the applicant was instructed to undergo one and a half to two months’ anti-recurrence isoniazid treatment. On 7 August 1997 an X-ray examination for the first time showed pathological changes in the upper right lung. On 18   September   1997 Mr O. Sidenko, a tuberculosis specialist from the prison medical unit, diagnosed the applicant as suffering from tuberculosis and he received treatment in a cell designed for prisoners in that condition. His treatment started on the same day. The applicant was X-rayed three times in 1998, twice in 1999 and twice in 2000. The examinations showed no changes as regards active tuberculosis in the lungs and no residual changes were observed in the upper right lung. Between 13 and 15 June 2000 the commission carried out a   thorough clinical and laboratory examination of the applicant and Mr   Yusev. It agreed with the clinical diagnosis of the applicant given by the prison medical unit in 2000: clinical recovery after focal tuberculosis of the upper right lung, presence of MBT ( mycobacterium tuberculosis ). Mr Yusev was taken to Khmelnitskiy Prison on 19 August 1995. He was given a general medical examination by a therapist, who concluded that he was healthy. An X-ray examination carried out on 29 August 1995 established that his lungs and heart were in a normal condition. Bacteriological analysis of faeces for dysentery, typhoid and paratyphoid fever did not show any sign of disease. Microprecipitation of his blood produced a negative reaction. He was given a complete medical examination and an interregional court psychiatric assessment by Khmelnitskiy Regional Psychiatric Assessment Unit no. 1 in March 1996. It was concluded that he was reasonably healthy and was sane. X-ray examinations carried out on 20 August 1996 and 14 February 1997 did not reveal any pathological changes in the lungs and heart. Three examinations of phlegm carried out between 11 and 13 February 1997 by the method of bacterioscopy did not reveal any presence of MBT. On 4 July 1997 an X-ray examination of Mr Yusev showed a   homogeneous infiltration in the right lung. On 11 July 1997 the diagnosis was, for the first time, infiltrative tuberculosis of the right lung in the phase of decomposition, with the presence of MBT. Mr Yusev received treatment in a cell designed for his category of prisoners. On 23 July 1997 he began intensive chemotherapy treatment. During 1999 and 2000 he received seasonal (in spring and autumn) anti-recurrence isoniazid treatment (each lasting two months). As the result of the ongoing treatment, there had been a   substantial improvement in the general state of his health and the main clinical symptoms of the disease had been eliminated. The clinical progress observed by X-ray examinations was the most pronounced during the first four months of the treatment. The X-ray examination on 5 May 1998 revealed limited fibrosis and individual infiltrated nidi in the upper right lung. The X-ray examinations carried out at the end of 1998 and in 1999-2000 showed only limited fibrosis at the site of former lesions. The commission established that it was unlikely that the applicant had contracted tuberculosis from Mr Yusev. In its opinion, the main factor was that the latter did not excrete tuberculosis microbacteria, and therefore did not represent an epidemiological danger. During the first period when the applicant had shared a cell with Mr Yusev, from 18   November 1996 to 23   April 1997, no pathological changes in the lungs had been detected by the X-ray examination of 14 February 1997. During this period Mr Yusev could not therefore have infected the applicant with tuberculosis. The second period during which the applicant and Mr Yusev had shared a cell had lasted from 4 November 1997 to 9 June 1998, that is to say four months after Mr Yusev had been found to be suffering from tuberculosis and his treatment had started, and one and a half to two months after the applicant had been found to be infected with tuberculosis and his treatment had started. In the period when the two inmates were placed in separate cells, Mr Yusev had been subjected to intensive chemotherapy. Moreover, for the first six weeks during which intensive chemotherapy was administered to the applicant, positive progress had been achieved (X-ray examination of 24   November 1997). Therefore, during the period in which the convicts shared the same cell, there would have been a very insubstantial possibility of repeated infection of the applicant by Mr Yusev. The intensive chemotherapy administered to Mr Yusev during the first two months halted bacillus excretion – that is to say, eliminated the epidemiological threat in 90-100 per cent of bacteria producers. The commission took also into account the fact that the applicant was suffering from a mild, very limited form of pulmonary tuberculosis without any excretion of bacteria or any destructive changes in the lungs. It was most probable that the origin and manifestation of pulmonary tuberculosis in the applicant was connected with the poor state of his health and the stress caused by having committed a crime, being imprisoned and, finally, being sentenced to capital punishment. In addition, the applicant and Mr   Yusev suffered from two different forms of tuberculosis (the applicant suffered from focal tuberculosis, while Mr Yusev suffered from infiltrative tuberculosis). E.     Documentary evidence 92.     According to the prison record, the applicant’s mother, sometimes accompanied by his grandmother, visited her son on 16 April, 16 May, 11   June, 12   July, 13 August, 13 September, 14   October, 15 November and 17 December 1996, and on 17 January, 17 February, 20 May, 20 June, 21   July, 27 August, 4   February, 5 March, 8 April, 8 May, 8 June, 10 July, 11 August, 11   September and 12 October 1998. 93.     The applicant received a parcel from his mother on the following occasions: 27 February, 27 March and 26 April 1996. He received a small packet (бандероль) on the following occasions: 27 May, 31 July, 2 October and 15 December 1996 and on 5 February, 11 April, 4 June, 4 August, 6   October and 10 December 1997, and on 10   February and 14 April 1998. 94.     The applicant’s medical file was created on 10 March 1995. It states that in March and May 1995 the applicant underwent a general medical check-up and X-ray examination. He was found to be healthy. Subsequent X-ray examinations were carried out on 16 June 1996, on 7 August and 24   November 1997, on 10 February, 5 May and 23 September 1998, on 11   January, 15 July and 15 October 1999 and on 21 February and 13   June   2000. On 11 July 1997 the applicant received isoniazid treatment as a person who was in contact with persons suffering from pulmonary tuberculosis. On 18 September 1997 he was diagnosed as suffering from pulmonary tuberculosis in its latent form. He was given appropriate treatment. On the same day he underwent a complementary medical examination at the Khmelnitskiy TB Division of the Ministry of Public Health. Further examinations by the Division were carried out on 8 June and 7   October   1998 and on 23 February 2000. Laboratory analysis of the applicant’s mucus was conducted at the Khmelnitskiy Hospital of the Ministry of the Interior on 18, 19 and 20   September, 13, 14 and 15 November 1997, on 25 February, 20 April, 10   July and 23 November 1998, on 24 February 1999, and on 10, 11 and 12   May 2000. The applicant underwent a blood test on the following dates: 15   November 1995, 18 September and 13 November 1997, 25 February, 20   April, 10 July, 15 October and 24 November 1998, 25 and 26   February   1999, and 14 February and 11 May 2000. 95.     Mr Yusev’s medical file was created on 3 August 1995. It states that in August 1995 Mr Yusev underwent a general medical check-up and X-ray examination. He was found to be healthy. Subsequent X-ray examinations were carried out on 20 August 1996, 14 February, 4 July and 24   November 1997, on 10 February, 5 May and 23 September 1998, on 11   January and 15   July 1999 and on 1 March and 13 June 2000. The X-ray examinations which took place on 20 August 1996 and 14 February 1997 confirmed that Mr Yusev’s lungs and heart were in a good state. The X-ray examination of 11   July 1997 revealed pulmonary tuberculosis in Mr Yusev. On 23   July   1997 a tuberculosis specialist at the Khmelnitskiy TB Division of the Ministry of Public Health confirmed that Mr Yusev was suffering from pulmonary tuberculosis. On that date Mr Yusev was given appropriate medical treatment. On 8 June and 7 October 1998 Mr Yusev underwent complementary examinations at the Division. According to the medical notes of 6 March and 9 June 2000, Mr Yusev’s state of health had improved and the symptoms of tuberculosis had disappeared. Laboratory analysis of Mr Yusev’s mucus took place at the Khmelnitskiy Hospital of the Ministry of the Interior on 11, 12 and 13 February, 20 April, 20   July, 13, 14 and 15 November 1997, on 25 February, 20 April, 10   July and 23 November 1998, on 24 February 1999, and on 10, 11 and 12   May   2000. Mr Yusev underwent a blood test on the following dates: 24 July and 13   November 1997, 25 February, 20   April, 10 July, 15 October and 24   November 1998, 25 and 26 February 1999, and 11 May and 14   June   2000. 96.     In a letter of 28 February 1998, addressed to the Prosecutor General’s Office, the applicant stated that he had been detained in Khmelnitskiy Prison since 13 March 1995 and that he had never been subjected to inhuman or degrading treatment. He also stated that he was satisfied with the conditions in which he was detained and that he had no complaints against