CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 19 avril 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .s4C4F9E80 { width:206.43pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       FIFTH SECTION             CASE OF TKACHEV v. UKRAINE   (Application no. 11773/08)                         JUDGMENT         STRASBOURG   19 April 2018         This judgment is final but it may be subject to editorial revision. In the case of Tkachev v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   André Potocki, President,   Mārtiņš Mits,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 27 March 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 11773/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Kirill Aleksandrovich Tkachev (“the applicant”), on 21 March 2006. 2.     The applicant, who had been granted legal aid, was represented by Mr   A.   Bushchenko, a lawyer practising in Kyiv. In December 2017 Mr   Bushchenko informed the Court that his work on this case had been completed and that due to a change of post, he could no longer represent the applicant. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice. 3.     On 19 November 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1977. He is currently serving a life sentence in Dnipro. A.     The applicant’s conviction 5.     By the final domestic judgment of 16 July 2002, the applicant was sentenced to life imprisonment for murder and other crimes. B.     The applicant’s detention in the Cherkassy SIZO 6.     Until September 2004 the applicant was detained in the Cherkassy pre-trial detention centre (“the Cherkassy SIZO”) in which, he stated, cells had been overcrowded and had lacked basic amenities. C.     The applicant’s detention in the Sokalska Colony 7.     In October 2004 the applicant was transferred to Sokalska Correctional Colony no.   47 in Zhvyrka (“the Sokalska Colony”), where he remained until 15 November 2007. 8.     The applicant stated that during his detention in the above Colony, one of his cellmates had been Mr V.M. Guk, a former applicant to the Court, with whom he had shared the cell for three years. Mr Guk’s application has already been examined by the Court, which found, in particular, a violation of Article 3 of the Convention on account of the conditions of his detention in the above Colony (see Guk v.   Ukraine [Committee], no.   16995/05, §§   83-86, 8   December 2016). 1.     Conditions of the applicant’s detention in the Sokalska Colony (a)     Submissions by the applicant 9.     According to the applicant, during his stay in the Colony he was held in a cell, in which the living space was “extremely insufficient”. As confirmation thereof, he referred to a written statement signed by Mr   Guk, which he had submitted to the Court. According to that statement, the cell measured 3.7 by 3.4 metres (12.58 square metres) including a sanitary facility measuring 1.35 by 1.3 metres (1.76 square metres). 10.     The cell lacked basic amenities: no furniture for storage of personal belongings and food; a very small table; no rubbish container; and no toilet cleaners. The tap water was of a poor quality and water filters were not provided. Heating in the cell was inadequate; the air was damp and cold; the walls were covered with mould. (b)     Submissions by the Government 11.     According to the Government, the equipment in the applicant’s cell corresponded to the domestic standards.   Prisoners were provided with all necessary amenities. The quality of the tap water corresponded to the standards. The temperature in the cell was not less than 18 degrees Celsius and the air in the cell was neither damp nor cold. 2.     Various aspects of the regime in the Sokalska Colony (a)     Submissions by the applicant 12.     According to the applicant, the washing unit in the Colony had no changing facilities, so the prisoners had first to undress in their cells. A guard watched them wash and hurried them up. The prisoners had to shave with poor-quality razors. Prisoners with tuberculosis washed in the same unit as healthy prisoners; no disinfection measures were taken. Sick and healthy prisoners took their daily walks in the same courtyards, which were also small, damp and dark. 13.     Whenever the guards opened the cell, the prisoners had to retreat to its far corner, squat and put their arms behind their heads. When taken out of the cell, the applicant was handcuffed; he was required to walk in a squat or some other unnatural position; his head was covered with a black bag; handcuffs were not disinfected. 14.     Until April 2005 the prisoners had been required to roll up their mattresses in the morning. During the daytime they had been prohibited from lying down on the beds. 15.     In support of the above submissions, the applicant referred to the written statement of Mr Guk, which confirmed the procedure the prisoners had had to follow when the guards had opened the cell. It also stated that, when taken out of the cell, the prisoners had been handcuffed and escorted in a crouched position; a bag had often been put over a prisoner’s head. Sick and healthy prisoners washed in the same unit and walked in the same courtyard. Mattresses on the beds had to be rolled up during the daytime. 16.     The applicant also stated that the administration had carried out searches of personal belongings, leaving them in disorder and often damaged; his watch had been stolen by an unidentified guard. Prisoners had not been provided with adequate medical assistance; they had been constantly ill-treated by the administration. In 2004-2005 the applicant had been regularly beaten by the guards. In 2004-2006 family visits had not been adequately organised. The applicant’s correspondence with relatives had been reviewed and a number of his letters had disappeared. (b)     Submissions by the Government 17.     The Government stated that the washing unit had a changing room. Disinfection measures in the Colony had fully complied with the domestic standards. Prisoners with tuberculosis were detained in a separate cell; they washed after others, and the washing unit was disinfected afterwards. 18.     Whenever the cell was opened, the prisoners were required to retreat to its far end, but not to squat. When escorted out of the cell, they were handcuffed, but not required to walk in a squat or with the head covered with a bag; handcuffs were in a proper condition and their disinfection was not required. 19.     Searches were conducted pursuant to the relevant regulations, and there were no situations alleged by the applicant. Prisoners were not prohibited to use mattresses during the daytime. II.     RELEVANT DOMESTIC LAW 20.     The Internal Regulations of Penal Institutions (approved by Order No.   275 of the State Department for the Execution of Sentences on 25   December 2003 and repealed on 23 January 2015, as worded at the material time) governed, inter alia , the detention of life prisoners. They imposed special restrictions on such prisoners. In particular, they provided that male prisoners must be handcuffed with their arms behind their back whenever they were taken out of their cell (rule 25). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 21.     The applicant complained about the conditions of his detention in the Sokalska Colony and about various aspects of the regime in it: the procedure followed whenever the cell was opened and when he had been escorted outside the cell, the organisation of washing, searches, the prohibition on using mattresses and bedding during the daytime, and the lack of disinfection measures. He invoked Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 22.     The Government contested the applicant’s allegations. A.     Admissibility 1.     Complaints about the regime in the Sokalska Colony 23.     As to the applicant’s complaints about various aspects of the regime in the Colony, the Court notes the following. 24.     Concerning the complaint about the use of handcuffs, the Court considers that this measure did not subject the applicant to distress or hardship exceeding the unavoidable level of suffering inherent in detention. Even though the prison regulations appeared to allow the use of the impugned measure on all male life prisoners, without giving consideration to their personal situation and the individual risk that measure might or might not present, the applicant did not specify the nature and extent of the suffering and humiliation caused to him by the restriction complained of, and failed to substantiate whether that suffering went beyond that inevitably connected with his lawful detention (see similarly Guk , cited above, § 74). 25.     In so far as the applicant complained that he had had to squat whenever the cell had been opened or when escorted outside the cell, and that he had had to wear a bag during such escorting, the Court notes that this allegation is indirectly supported by Mr   Guk’s statement and disputed by the Government. It further notes that in the case of Guk it found that Mr   Guk’s allegation about a use of a bag over a prisoner’s head had not been supported by any evidence ( ibid ., § 73). In addition, it observes that there is no evidence that the applicant ever raised the above complaints before the domestic authorities. Lacking any evidence that these complaints were raised before the domestic authorities and not having the benefit of their findings in relation thereto, the Court, mindful of its subsidiary role under the Convention, cannot determine the reliability of the applicant’s contentions. Similar considerations apply to the allegations about the prohibition on using mattresses and bedding during the daytime. Therefore, these aspects of the case are manifestly ill-founded (see similarly Andrey   Yakovenko v. Ukraine , no.   63727/11, §§ 85-86, 13   March 2014). 26.     As to the applicant’s allegations relating to the washing and searches, they are not supported by any evidence. The written statement of Mr   Guk does not support these particular allegations. 27.     Lastly, the complaint about the risk of contracting tuberculosis and the lack of disinfection measures is not sufficiently substantiated. The applicant did not mention any incidents of healthy prisoners having been infected from sick prisoners (see similarly Solovyev v. Russia (dec.), no.   76114/01, 27   September 2007), either generally or due to the alleged lack of disinfection measures. 28.     In the light of the foregoing, the Court finds that this part of the applicant’s complaints is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 2.     Complaints concerning conditions of detention 29.     The Government submitted that the applicant’s complaints about the conditions of detention in the Sokalska Colony did not correspond to reality. 30.     The Court notes that these complaints are sufficiently detailed and are not, therefore, manifestly ill-founded within the meaning of Article   35 §   3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 31.     The Court reiterates that Article 3 of the Convention requires States to ensure that a person is detained in conditions compatible with respect for his human dignity, and that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v.   Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).   A serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” within the meaning of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 136-39, 20 October 2016). 32.     In the present case, the Court takes into account the applicant’s statement that for three years of his detention in the Sokalska Colony he had shared a cell with three or four other detainees, including Mr   Guk. The Court further notes that in respect of Mr   Guk it found a violation of Article   3 on account of the fact that he and his cellmates had clearly had less than 3 square metres of floor space each and had also been confined to their cells for most of the day during the same period as in the present case (see Guk , cited above, §§ 83-86). The Court does not see any reason to come to a different conclusion in the present case. It therefore concludes that there has been a violation of Article 3 of the Convention on the same account. 33.     Having regard to the above finding, the Court does not consider it necessary to address the applicant’s other allegations relating to conditions of his detention, including his allegations about the lack of furniture and other amenities in his cell, poor quality of water and insufficient heating. II.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 34.     Lastly, the applicant complained about the conditions of detention in the Cherkassy SIZO, and of regular beatings, inadequate organisation of family visits, inadequate medical assistance and interference with his correspondence rights in the Sokalska Colony. He invoked Article 3 and in substance Article 8 of the Convention. 35.     The Court has examined the above complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, it rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 36.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 37.     The applicant claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage. 38.     The Government considered that there had been no violation in the present case. In the alternative, they considered the above sum to be excessive and invited the Court to reject it. 39.     Deciding on an equitable basis, the Court awards the applicant EUR   7,500 in respect of non-pecuniary damage. B.     Costs and expenses 40.     The applicant did not submit any claims under this head; the Court therefore makes no award in this respect. C.     Default interest 41.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the applicant’s complaints under Article 3 of the Convention about the conditions of his detention in the Sokalska Colony admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 3 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)     that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 April 2018, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Milan Blaško   André Potocki Deputy Registrar   President