CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 janvier 2020

.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 } .s780F5245 { border:0.75pt solid #000000; clear:both } .sD0557F7A { margin-top:0pt; margin-bottom:0pt; text-align:left; padding-top:1pt; padding-right:4pt; padding-left:4pt } .s4D8560E5 { margin-top:0pt; margin-bottom:0pt; text-align:left; padding-right:4pt; padding-left:4pt } .s1F1EF4FD { margin-top:0pt; margin-bottom:0pt; text-align:left; padding-right:4pt; padding-left:4pt; padding-bottom:1pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; 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 } .sE3D66594 { border:0.75pt solid #000000; border-collapse:collapse } .sE796E78A { height:11.8pt } .s8B1C0247 { border-right-style:solid; border-right-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#cccccc } .s598389F7 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt } .sEA734167 { border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#cccccc } .s3890E0F { border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#cccccc } .sB30C44B0 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sC3AB69A { border-style:solid; border-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s2342A031 { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s2607E78A { height:13.3pt } .s37E060DC { height:3pt } .s546C9D04 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s40B7A780 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s4F2EDFF { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s9032BEEB { font-family:Arial; font-weight:bold; text-decoration:underline; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .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 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s8DF6C4 { font-family:Arial; color:#333333 } .s5E66C671 { font-family:Arial; font-size:8pt; vertical-align:super; color:#333333 } .sB14F9765 { font-family:Arial; color:#292b2c } .s46AB85A0 { font-family:Arial; font-style:italic; color:#292b2c } .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 } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; 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 } .s2BF44DB3 { width:159.61pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }       FIFTH SECTION         CASE OF SUKACHOV v. UKRAINE   (Application no. 14057/17)           JUDGMENT     Art 3 (substantive) • Degrading treatment • Poor conditions of pre-trial detention Art 13 (+Art 3) • Lack of effective domestic remedies Art 46 • Pilot-judgment • Structural problem • Respondent State required to reduce prison overcrowding, improve conditions of detention and introduce preventive and compensatory remedies     STRASBOURG   30 January 2020     FINAL   30/05/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sukachov v. Ukraine , The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President ,   Ganna Yudkivska,   André Potocki,   Yonko Grozev,   Síofra O’Leary,   Mārtiņš Mits,   Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar , Having deliberated in private on 10 December 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 14057/17) 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 Viktor Valeryevich Sukachov (“the applicant”), on 10   February 2017. 2.     The applicant, who had been granted legal aid, was represented by Ms   Y. Ashchenko, a lawyer practising in Kharkiv. On 23 August 2018 Ms   Ashchenko informed the Court that she could no longer represent the applicant. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. 3.     The applicant alleged, in particular, that the conditions of his pre-trial detention and of his transfer to and detention at the court on hearing days had been inhuman and degrading, in breach of Article 3 of the Convention. He also complained, in substance under Article 13 of the Convention, that he had had no effective remedies for the above complaints. 4.     On 19   December 2017 the Court decided to grant priority to the application under Rule 41 of the Rules of Court, give the Government notice of the applicant’s complaints, and invite the parties to comment on the suitability of the case for the pilot ‑ judgment procedure (Rule 61 § 2 (a)). 5.     The parties provided observations on the case. The Government also submitted comments on the application of the pilot ‑ judgment procedure in the present case, while the applicant left this matter to the Court’s discretion. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1978 and is currently detained in Dnipro. A.     Conditions of the applicant’s pre-trial detention 7.     On 31 May 2012 the applicant was arrested on suspicion of involvement in terrorism and production and storage of explosives. 8.     Eventually, on 20 February 2018, the Industrialnyy District Court of Dnipro (“the District Court”) found him guilty as charged and sentenced him to twelve years’ imprisonment. 9.     Since 12 July 2012 the applicant has been held in detention in the Dnipropetrovsk (now Dnipro) Pre-trial Detention Facility no. 3, which in March 2016 was recategorised as a prison (hereinafter referred to, for practical purposes, as “the Dnipro SIZO”). 10 .     From 12 July 2012 to 19 July 2013 the applicant was held in cell no.   661 and from 21 November 2013 to 8 May 2014 in cell no.   655. According to him, both cells were located in unit 6. The parties did not specify in which of those cells the applicant had been held from 19   July to 21   November 2013, the applicant having referred to both cells. Each cell had an overall surface area of 7.7 square metres of which 6.7 square metres was the living space meant for two people. The applicant submitted that the personal living space available to him in the cells had been 3.35 square metres, which suggests that another detainee was held with him in each cell. Without disputing that submission, the Government stated that they were unable to provide information about the number of detainees held in those cells because the relevant records had been destroyed on expiry of the statutory storage period. 11 .     From 8 to 26 May 2014 the applicant was held in cell no. 931, which had an overall surface area of 14.5 square metres or 13 square metres of living space and was designed for five people. The applicant submitted that four to five detainees had been held in that cell. Without disputing the above submission, the Government referred again to the unavailability of the relevant records. 12 .     From 26 May 2014 to 22 March 2017 the applicant was held in cell no.   911, which had an overall surface area of 14.5 square metres or 13   square metres of living space and was designed for five people. The table below provides information submitted by the Government, which has not been disputed by the applicant, about the number of detainees held in the cell in various periods from 1 January 2015 to 22 March 2017.   The parties did not provide exact information about the number of detainees held in that cell between 26 May 2014 and 1 January 2015, the applicant having referred to “four to five detainees”, which the Government did not dispute. Based on the principles established in Muršić v. Croatia ([GC], no. 7334/13, §   114, 20   October 2016), the last column in the table indicates the personal space available to the applicant in the cell between 1 January 2015 and 22   March 2017 (the parties did not provide information for the period beyond the latter date):   Period of the applicant’s detention (days) Number of detainees Personal space, square metres 01.01-15.01.2015 (14) 5 2.6 15.01-16.01.2015 (1) 3 4.3 16.01-18.01.2015 (2) 4 3.25 18.01-28.01.2015 (10) 5 2.6 28.01-13.03.2015 (44) 4 3.25 13.03-15.03.2015 (2) 5 2.6 15.03-20.03.2015 (5) 4 3.25 20.03-28.03.2015 (8) 5 2.6 28.03-17.04.2015 (20) 4 3.25 17.04-05.05.2015 (18) 5 2.6 05.05-15.05.2015 (10) 4 3.25 15.05-28.05.2015 (13) 5 2.6 28.05-09.06.2015 (12) 3 4.3 09.06-16.06.2015 (7) 4 3.25 16.06-26.06.2015 (10) 4 3.25 26.06-07.07.2015 (11) 4 3.25 07.07-27.07.2015 (20) 5 2.6 27.07-02.08.2015 (6) 4 3.25 02.08-07.08.2015 (5) 5 2.6 07.08-11.08.2015 (4) 4 3.25 11.08-22.08.2015 (11) 3 4.3 22.08-04.09.2015 (13) 5 2.6 04.09-24.09.2015 (20) 4 3.25 24.09-27.09.2015 (3) 3 4.3 27.09-07.10.2015 (10) 4 3.25 07.10-14.11.2015 (38) 5 2.6 14.11-16.11.2015 (2) 4 3.25 16.11-04.12.2015 (18) 5 2.6 04.12-17.12.2015 (13) 4 3.25 17.12-18.12.2015 (1) 5 2.6 18.12.2015-11.02.2016 (55) 4 3.25 11.02-08.04.2016 (57) 5 2.6 08.04-19.04.2016 (11) 4 3.25 19.04-13.10.2016 (177) 5 2.6 13.10-17.10.2016 (4) 4 3.25 17.10-31.10.2016 (14) 5 2.6 31.10-03.11.2016 (3) 4 3.25 03.11.2016-03.01.2017 (61) 5 2.6 03.01-17.01.2017 (14) 4 3.25 17.01-22.03.2017 (64) 5 2.6 13.     According to the applicant’s initial submissions, the above ‑ mentioned cells were poorly ventilated. In the winter the windows were locked shut so that they could not be opened and no fresh air could enter the cells. From May to October the window frames were removed and the air inside the cells became cleaner. However, due to the partial absence of glass panes in the windows, mosquitos attracted by the artificial light from the cells, which was never switched off, flew into the cells.   The toilet facilities in the cells were separated from the living area by a low partition wall. They were not equipped with a siphon drainage system, as a result of which an unpleasant odour always remained in the cells.   Detainees had the opportunity to take a shower only once a week. The shower cabins had an insufficient number of taps, of which only a few were usually working. It was often impossible to set an acceptable water temperature.   Centralised laundry was not organised by the administration, and detainees had to wash and dry their laundry in their cells. Cells were constantly damp. 14 .     In support of his statements the applicant submitted five photographs of cell no.   911 taken by him and other detainees. The photographs show a toilet facility with a low partition wall and no door, a wash stand, a table, a bench, five beds, and laundry hanging on ropes. The applicant also referred to other detainees’ written statements. In particular, A.B., R.Sh. and A.Y., who had apparently shared cell no. 911 with him during an unspecified period, stated that the available space in the cell was limited to the 0.9-metre wide passage between the beds, which was insufficient for any physical activity. They also stated that the toilet was separated from the living area only by a 0.53 metre high wall. Detainees had had to conceal the toilet with a “curtain” made from bed sheets. The toilet hole had been blocked with a plug ( grusha ) made by the detainees, as there was a smell from the sewage pipe.   The detainees also mentioned the inadequate ventilation in the cell and said that mosquitos entered the cell in huge quantities (given that in the summer the window frame was removed). 15 .     The applicant further referred to the written statements of the above ‑ mentioned detainees and two other detainees (S.K and K.Z.) about the general situation in the Dnipro SIZO. All of them stated that detainees could take a shower only once a week and that the showers were dirty and some of the taps were out of order. They also confirmed the situation with the laundry as described by the applicant.   S.K. and K.Z. also referred to overcrowding, poor lighting and ventilation in their own cells, their unsanitary condition, lack of separation of the toilet from the living area, no provision of personal hygiene material, necessities or cleansers, daily walks lasting less than one hour in a small, dirty and dusty exercise yard, poor food, and so on. 16.     Lastly, in support of his submissions about the conditions of detention in the Dnipro SIZO, the applicant referred to the reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) following its 2009 and 2013 visits to Ukraine (see paragraphs 28 and 30 below) and to the report for 2012 prepared by the National Preventive Mechanism (“the NPM”; see   paragraph 46 below), both of which had visited the SIZO. 17 .     According to the Government, which referred to a letter from the Administration of the State Service for the Execution of Sentences (“the SSES”) of 16 March 2018 prepared at their request, all cells mentioned by the applicant were in a satisfactory state. They were equipped with sitting and sleeping places as well as the necessary furniture and other items. Detainees had the possibility to work with documents, eat and rest in the cells. All cells had sanitary facilities, including wash stands and toilets with a working flush system, which were isolated from the living area by a 1.6   metre high wall. Lights were on day and night in the cells and the ventilation was adequate.   From 10 p.m. until 6 a.m. detainees were allowed to sleep uninterrupted; daily walks outside the cells lasted for one hour; the exercise yard for cells nos. 661 and 655 measured 11.5 square metres, and for cells nos. 911 and 931 – 15 and 30 square metres, respectively. 18 .     On 2 December 2016 the applicant sent a petition ( звернення ) to a member of parliament, M., in which he complained, inter alia , that the material conditions in the Dnipro SIZO had deteriorated and that detainees had not been allowed to take a shower for three weeks. He requested M. to assist with arranging an inspection of the SIZO. On 22   December 2016 M. asked the Prosecutor General to take the relevant measures and inform him thereof.   On 19   January 2017 the regional prosecutor, to whom the petition had been forwarded, informed M. and the applicant that, following an internal inspection, the latter’s allegations had not been confirmed. Bathing facilities and laundry services for prisoners were provided in accordance with the set schedule and there were no irregularities in the functioning of the boiler facility and shower cabins. 19.     On 23 February 2017 the applicant sent a complaint to the Prosecutor General, claiming that his complaints about the inappropriate condition of the shower cabins had not been properly examined and that the condition of some shower cabins had not been checked during the inspection. He also stated that he could take a shower only once a week. 20 .     On 31 May 2017 the regional prosecutor informed the applicant that the inspection carried out following his petition had established that washing facilities in the SIZO had been provided in accordance with the law and the set schedule. In accordance with the domestic standards, washing facilities were available at least once a week. No disruptions in the functioning of the boiler facility and washroom had been established. The sanitary and technical condition of showers had been satisfactory. Following the interviewing of other detainees, no complaints on their part had been established in this respect. B.     Conditions of the applicant’s transfer and detention on hearing days 21 .     The Government stated, and the applicant did not dispute, that from November 2012 to March 2018 the latter had been transported by prison van, on 392 occasions, from the Dnipro SIZO to the District Court to participate in court hearings on his criminal case.   The distance from the SIZO to the court was about 26.5 km and a one-way trip lasted from forty minutes to one and a half hours. 22 .     According to the applicant, the following vehicles were usually used for transporting detainees: a GAZ van with two cells designed for two to three and three to four detainees respectively; a GAZ van with two cells measuring 2.1 to 2.2 square metres (for six to ten detainees) and 0.4 square metres (for one detainee); a GAZ van with three cells, two of which were designed for one to two detainees and one for four to five detainees; and a GAZ van with four cells. The vans had insufficient lighting and ventilation. It was cold inside them during the winter, whilst in the summer the temperature rose to 35-40 degrees Celsius. The vans had no special space for smokers, and non ‑ smokers had to inhale tobacco smoke.   In support of his statements the applicant submitted eight photographs of several vans, showing that some of them had no windows. He also generally referred to the NPM report for 2013 (see paragraph 47 below). 23 .     According to the Government, which referred to a letter from the National Police of Ukraine of 27 March 2018, based in turn on an inspection of 21 November 2017, the applicant had been transported in the following vehicles: a UAZ-31519 van, with one multi-prisoner cell designed for two detainees; a GAZ-27521 van, with one multi-prisoner cell for four detainees; a TK-AZU-1 van designed for transporting seven detainees, with one multi-prisoner and three single cells; a GAZ-2705-222 van designed for transporting eight detainees, with two multi-prisoner cells; a Foton-BL 1043 van, designed for transporting twelve detainees, with one multi-prisoner, two two-prisoner and three single cells; and a GAZ-3307 van, designed for transporting twenty-one detainees, with one multi ‑ prisoner, two two-prisoner and two four-prisoner cells. The above ‑ mentioned vehicles had been constructed in accordance with domestic and international standards. Each cell in them was equipped with artificial lighting, which was always turned on during the transfer. The ventilation of the cells was achieved by means of vents installed in the body of the vehicles; these could be regulated by prisoners in order to get access to air. The upper and lower parts of the cell doors consisted of grates through which access to air was also ensured. The vans were equipped with heaters. The 2017 records stated that ventilation and heating systems had been “available” in the prison vans, and that the ventilation system had been “functioning” in one van and the heating system in three vans. 24.     On arrival at the District Court, the applicant was held in cells located in the holding area, where there was a room for convoy officers, three holding cells for detainees and a toilet facility. The Government stated, and the applicant did not dispute, that the cells measured 6 square metres   each, were equipped with benches and had artificial lighting. 25 .     According to the applicant, there was no access to fresh air and natural light, no artificial ventilation and no tables in the holding cells. Detainees were allowed to go to the toilet only with the permission of a convoy officer when there were two to three officers in the holding area. From three to seven detainees were usually held in the holding cells. On hearing days the applicant remained in the court for most of the day, since a van collected detainees from the SIZO at 8.30 a.m., but hearings did not begin until 2.20 to 2.30 p.m. and finished at 5.30 p.m., after which the van went back to the SIZO. 26 .     In support of his statements, the applicant submitted four photographs of the holding cells. He also referred to a letter from the State Judicial Administration of 25 May 2015, which confirmed that there had been no artificial ventilation in those cells. The applicant also referred to the NPM reports for 2013 and 2014 (see paragraph 47 below). II.     RELEVANT COUNCIL OF EUROPE, INTERNATIONAL AND DOMESTIC MATERIAL A.     Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1.     General Reports 27 .     Relevant excerpts from the CPT’s General Reports read as follows: 2nd General Report ( CPT/Inf (92) 3 ) “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather ... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners ...” 7th General Report ( CPT/Inf (97) 10 ) “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” 11th General Report ( CPT/Inf (2001) 16 ) “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports. As the CPT’s field of operations has extended throughout the European continent, the Committee has encountered huge incarceration rates and resultant severe prison overcrowding. The fact that a State locks up so many of its citizens cannot be convincingly explained away by a high crime rate; the general outlook of members of the law enforcement agencies and the judiciary must, in part, be responsible. In such circumstances, throwing increasing amounts of money at the prison estate will not offer a solution. Instead, current law and practice in relation to custody pending trial and sentencing as well as the range of non-custodial sentences available need to be reviewed. This is precisely the approach advocated in Committee of Ministers Recommendation No R (99) 22 on prison overcrowding and prison population inflation. The CPT very much hopes that the principles set out in that important text will indeed be applied by member States; the implementation of this Recommendation deserves to be closely monitored by the Council of Europe. 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis ...” 2.     Reports in respect of Ukraine 28 .     Since 1 September 1997, when the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment entered into force in respect of Ukraine, CPT delegations have visited various detention facilities in Ukraine, including the Dnipro SIZO (in 2009 and 2013).   Thus, in its 2011 Report ( CPT/Inf (2011) 29 ) prepared following the visit to Ukraine on 8-21 September 2009, the CPT noted as follows (original emphasis; footnotes omitted): “107. ... The CPT recommends that the Ukrainian authorities make strenuous efforts to offer organised out-of-cell activities (work, recreation/association, education, sport) to prisoners at the Kyiv SIZO. Further, the Committee recommends that steps be taken to construct more appropriate exercise yards which allow prisoners to exert themselves physically, as well as indoor and outdoor sports facilities ... 109. When visited by the delegation, the SIZO in Dnipropetrovsk was holding 2,900   prisoners (including 220 women and 63 juveniles) for an official capacity of 3,456. The prisoner population comprised 26 life-sentenced prisoners. The SIZO served as a transit point for prisoners being transferred between penitentiary establishments and had a monthly turnover of some 5,000 inmates. Prisoners were accommodated in 10 buildings of different age and configuration. Given that the visit to the establishment was of a targeted nature – focusing on newly arrived prisoners and life-sentenced prisoners – the delegation received an impression of material conditions only in some of the buildings. 110. In a detention block which had recently been renovated (units 6 and 7), cells measuring some 7 m² were holding usually 2, but occasionally 3, prisoners. There was enough natural light coming through the cells’ large windows, and access to artificial light and ventilation also appeared to be adequate. Each cell was equipped with a partitioned toilet and sink. This block, referred to as the “Euro-standard” block, was considered by the administration as a model. In the four-storey building accommodating female prisoners (unit 10) and some of the male remand prisoners (unit 9), the delegation observed that the cells were less overcrowded than in the Kyiv SIZO (e.g. a cell measuring some 15 m² was holding 6   female prisoners; there were 13 prisoners in a cell of 33 m²). The cell equipment (double-bunk beds, lockers, a partitioned sanitary annexe) did not call for any particular comments. However, it was a matter of concern to the delegation that all cells’ windows were fitted with a solid metal shutter which considerably limited access to natural light. The CPT welcomes the immediate steps taken by the management of the SIZO to remove the metal shutters from all the cell windows in units 9 and 10, following a remark by the delegation at the end of the visit to the SIZO in Dnipropetrovsk. The CPT recommends that, at the Dnipropetrovsk SIZO, efforts be made to decrease overcrowding, the objective being to offer a minimum of 4 m² of living space per prisoner in multi-occupancy cells. 111. As at the Kyiv SIZO, the vast majority of prisoners spent almost all their time locked up in their cells, without being offered any activities worthy of the name. The first recommendation made in paragraph 107 applies equally to the Dnipropetrovsk SIZO.” 29.     The CPT also made the following general recommendations to the Ukrainian authorities: “- the examination of proposals to amend the Code of Criminal Procedure and the Criminal Code to be considered a priority, the aim being to shorten the length of court proceedings in criminal cases and to circumscribe more closely the circumstances in which recourse can be had to the preventive measure of remand in custody ... - efforts to be made to develop the training provided to judges and prosecutors, with a view to promoting the use of alternatives to imprisonment ... - in their endeavours to combat prison overcrowding, the Ukrainian authorities should be guided by Recommendation Rec(99)22 of the Committee of Ministers of the Council of Europe concerning prison overcrowding and prison population inflation, Recommendation Rec(2000)22 on improving the implementation of the European rules on community sanctions and measures, Recommendation Rec(2003)22 on conditional release (parole) and Recommendation Rec(2006)13 on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse ... - the Ukrainian authorities to review as soon as possible the norms fixed by legislation for living space per prisoner, ensuring that they provide for at least 4 m² per inmate in multi-occupancy cells in all the establishments under the authority of the Department on Enforcement of Sentences (SIZOs included ... - the Ukrainian authorities to step up their efforts to develop the programmes of activities for sentenced and remand prisoners. The aim should be to ensure that both categories of prisoner are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ...” 30 .     In its 2014 Report ( CPT/Inf (2014) 15 ) prepared following the visit to Ukraine on 9-21 October 2013, the CPT noted as follows (original emphasis; footnotes omitted): “118. The CPT’s delegation paid follow-up visits to Kyiv, Dnipropetrovsk, Odessa and Simferopol SIZOs, where remand prisoners/inmates not yet serving their sentences represented about 90% or more of the whole prison population in these establishments. It should be noted from the outset that these establishments were operating below their official capacities at the time of the 2013 visit, although these capacities were still based on the national standard of 2.5 m² of living space per inmate: ... ● Dnipropetrovsk SIZO was accommodating 1,777 inmates (including 129 women and 24 juveniles) for an official capacity of 3,519 places; ... 119. The CPT is pleased to note that in the establishments visited, all the inmates appeared to have been provided with their own beds in the cells seen by the delegation. Further, the standard advocated by the Committee of 4 m² of living space per inmate in multi-occupancy cells was observed in many cells of the establishments concerned. Both penitentiary staff and prisoners with whom the delegation spoke expressed their appreciation about the significant reduction of the prison population and the larger amount of living space in the cells in the context of the adoption and entry into force of the new CCP. Nevertheless, ... the CPT’s delegation observed localised overcrowding in all the establishments visited. Cell occupancy rates in many cells were not only far from meeting the CPT’s standard of at least 4 m² per prisoner, but were also in breach of Ukrainian standards, with as little as 1.5 m² of living space per prisoner in some multi-occupancy cells (e.g. 38 prisoners were being held in a cell of some 57 m², without counting the space taken up by the in-cell toilet, in Kyiv SIZO; four prisoners were being accommodated in a cell of some 7 m², not including the space taken up by the in-cell toilet, at Odessa) ... The delegation noted that at Dnipropetrovsk SIZO, metal shutters attached to the cells’ windows in blocks Nos. 9 and 10 had been removed following the 2009 visit. Steps were also being taken to pursue gradual renovation works in the cells; most of the accommodation areas were indeed in a poor state of repair, badly ventilated and dirty. Further, in-cell toilets were only partially partitioned ... c. outdoor exercise 122. In all the SIZOs visited, inmates had access to one hour of daily outdoor exercise (two hours for juveniles). Nevertheless, the yards seen by the CPT’s delegation were frequently too small for their intended occupancy and for real physical exertion (e.g. 9.5 m² for up to two inmates or 34 m² for up to 12 prisoners in Kyiv) ... d. activity programmes 123. The philosophy behind the detention regime applicable to remand prisoners is set out in Section 7 of the Pre-Trial Detention Act. More specifically, the main characteristics of the detention regime are the “isolation” of remand prisoners, their constant supervision and the observance of the segregation rules. Accordingly, the activities which remand prisoners are entitled to consist mainly of watching TV (when a TV set is provided), playing board games, reading books/magazines and having access to religious literature. Newly adopted Internal Rules on SIZOs indicate that remand prisoners may have access to general education regardless of their age. However, if a remand prisoner wishes to work, an authorisation from an investigator or judge should be sought ... 124. In the course of the 2013 visit, the delegation found that there was virtually no change as regards the provision of out-of-cell activities for remand prisoners. Most remand prisoners were locked up in their cells for 23 hours per day, with little to occupy themselves (e.g. watching TV or reading books). Only a few women on remand were allowed to work (e.g. in Kyiv) and none of the prisoners interviewed were offered any kind of educational activities. As on previous visits, the only exception concerned juveniles on remand, who had access to some schooling, association and sports activities during weekdays ... f. conclusions 126. The delegation’s findings during the 2013 visit clearly indicate that the adoption/entry into force of the new CCP and other recent measures had contributed to the eradication of massive, severe, overcrowding in the establishments visited. The Ukrainian authorities should be commended for this. However, overcrowding remains an issue for many inmates who still enjoy an extremely limited amount of living space (i.e. far lower than 4 m² per inmate) in cells which were often found to be in a poor condition. In addition, the bulk of remand prisoners were confined to such cells for at least 23 hours a day, with no meaningful out-of-cell activities on offer and little incentive to take daily outdoor exercise. In addition, few of them had opportunities to maintain contacts with their relatives. This situation was aggravated for a number of prisoners who were still being held in such a situation for several years under the former CCP. In short, the cumulative effect of these conditions and restrictions could well be considered, for many inmates, as a form of inhuman and degrading treatment. 127. In the light of the above remarks, the CPT recommends that ... the Ukrainian authorities take further action to: ● redouble their efforts in the SIZOs visited to meet the objective of offering at least 4 m² of living space per inmate in multi-occupancy cells and of placing no more than one inmate in cells measuring 6 m² (not counting the area taken up by the in-cell toilets), in particular by distributing prisoners more evenly amongst the available accommodation, reducing intended capacity levels in the cells in compliance with national standards and reviewing the official capacities of the establishments in question accordingly; ... ● pursue their refurbishment/reconstruction programmes in older accommodation buildings of Kyiv and Dnipropetrovsk SIZOs; ... ● ensure, when implementing refurbishment/(re)construction programmes, that in-cell toilets/sanitary annexes are fully partitioned (i.e. up to the ceiling); ... ● ensure that prisoners have the possibility of genuine physical exertion every day; this will require enlarging the exercise yards. Whenever possible, the current yards located on the roofs of the accommodation blocks should be replaced by outdoor exercise facilities located at ground level; ● ... steps should be taken to ensure that, when designing and constructing new SIZOs/accommodation blocks for remand prisoners, provision is made for proper outdoor exercise at ground level, association with prisoners from other cells, work, education and other meaningful activities ...” 31 .     The CPT has also repeatedly acknowledged general problems concerning conditions of detention in Ukraine. In particular, in its 2017   Report ( CPT/Inf (2017) 15 ) prepared following its visit to Ukraine on 21 ‑ 30   November 2016, it stated that it had been informed by the Ukrainian authorities about the ongoing re-organisation of the prison system and of measures taken to reduce prison overcrowding. In particular, the authorities planned to close down some of the old SIZOs and to sell the old buildings and the land to private investors who would then build new remand prisons. The CPT welcomed the reforms, but urged the authorities to pursue their efforts to further reduce the number of remand prisoners. It observed: “... unfortunately, the above-mentioned reforms have not yet impacted upon the situation of remand prisoners. In particular, the old inadequate norm of living space per inmate in SIZOs (2.5 m²) was still in force at the time of the visit, complex rules on separation of different categories of remand prisoners continued to result in localised overcrowding in the pre-trial facilities visited ...” 32 .     The CPT thus called upon the Ukrainian authorities to take decisive steps to revise the legislation and the regime for remand prisoners. It also observed (original emphasis, footnotes omitted): “... the most striking feature of the SIZOs visited were the appalling material conditions, in particular at Odesa, Khmelnytskiy and Kyiv SIZOs (with the notable positive exception of the juvenile units at Khmelnytskiy and Kyiv SIZOs). Those in Kyiv and Odesa had further deteriorated since the CPT’s last visits in, respectively, September 2014 and October 2013 and could now easily be considered inhuman and degrading. The above-mentioned situation was made even worse by the fact that the heating was either completely switched off or barely working. Conditions were somewhat better at Kharkiv SIZO although they remained quite poor due to the age and infrastructure of the buildings. The Committee recommends that the ongoing renovation of Kharkiv SIZO be continued and that, to the extent possible with the existing infrastructure, it comprise the transformation of large-capacity cells into smaller living units. Such transformation should also be the objective for all the other SIZOs (and, as applicable, all the other penitentiary establishments) in Ukraine. Further, it is a matter of serious concern for the CPT that, in all the SIZOs visited, remand prisoners were usually not offered any out-of-cell activities other than outdoor exercise for one hour per day.” 33 .     Most recently, in the 2018 Report ( CPT/Inf (2018) 41 ) prepared following its visit to Ukraine on 8-21 December 2017, the CPT stated as follows (original emphasis; footnotes omitted): “9. ... the CPT is very concerned to note that, after its 7 th periodic visit to Ukraine (and 14 visits altogether), little or no action has been taken to implement several of its long-standing recommendations concerning in particular the prison system, especially as regards material conditions, the legal norm of living space for remand prisoners, the regime for remand prisoners ... The CPT must stress that if no progress is made to implement its recommendations, the Committee might have to consider having recourse to Article 10, paragraph 2, of the Convention . However, the CPT hopes that decisive action by the Ukrainian authorities to implement its recommendations will render such a step unnecessary ... 54. The delegation carried out a follow-up visit to Kyiv Pre-Trial Detention Centre (hereafter Kyiv SIZO); further, first-time visits were carried out to Chernivtsi Penitentiary Institution No. 33 (hereafter Chernivtsi SIZO), Ivano-Frankivsk Penitentiary Institution No. 12 (hereafter Ivano-Frankivsk SIZO), Lviv Penitentiary Institution No. 19 (hereafter Lviv SIZO) ... A general description of Kyiv SIZO can be found in the reports on previous visits. At the time of the 2017 visit, the establishment was accommodating 2,371 inmates ... and had the official capacity of 2,474. However, this capacity included the former women’s block which was out of service due to fire damage; in fact, the establishment had 2,200 operational places which meant that it was officially overcrowded. Chernivtsi SIZO is an old Austrian-built prison, a listed monument located in centre of town. It was opened in 1819, partly damaged during WW2 and extensively refurbished in the 1950s (when electricity, sewage and central heating were installed). With the official capacity of 304, the establishment was accommodating 198 inmates living in a single detention block (with two floors) ... Ivano-Frankivsk SIZO, brought into service in 1918, is located in the centre of town on a relatively small area adjoining to the city’s police headquarters, the prosecutor’s office and the court. The establishment has the official capacity of 401 and was accommodating 380 prisoners ... Lviv SIZO, located in the city centre and with the official capacity of 900, occupies a former monastery built in the 17 th century and transformed into a prison in 1784. A listed monument composed of two 3-storey detention blocks and several adjoining buildings (administration, health-care unit, kitchen, etc.), it was accommodating 821   prisoners ... 55. At the outset of the visit, the delegation was informed by senior officials from the Ministry of Justice about the progress of prison reform which inter alia included the drafting of new legislation (e.g. the new draft Penitentiary Service Act which would define anew the mission of the Service and put more stress on the objective of prisoner rehabilitation, draft new house rules for SIZOs and colonies, draft legislation facilitating early release and setting up probation service) and preparation of a document called ‘Passport for reforms’ containing the aims of further reforms of the prison system. Unfortunately, most of these measures were still at an early stage of adoption and/or implementation and the aforementioned draft legislation was under consideration by the Rada with no clear indication as to when it would be adopted. Meanwhile, since the repeal of the ‘Savchenko Act’ in May 2017, the prison population had reportedly started growing again – especially in SIZOs, some of which were again overcrowded even as compared with the official norm of living space per prisoner (e.g. in Kyiv, see paragraph 54 above). The Ministry of Justice tried to take measures to tackle this trend e.g. by planning to open new remand units in some of the colonies with spare accommodation. The situation was rendered even more difficult by the fact that – despite very poor, sometimes indeed appalling (see paragraph 62 below) conditions of detention in prisons – the Ministry had close to no budget for refurbishment and repairs, forcing the establishments’ Directors to seek funds by themselves, from private sponsors, municipalities and charities, and even from inmates’ (and their families’) own resources. The 2018 budget of the prison service was actually lower than in 2017, despite the population increase and ongoing deterioration of material conditions. Furthermore, implementation of the plans regarding prison estate (described in ... the report on the 2016 ad hoc visit) had hardly progressed. 56. The CPT wishes to stress that it is fully aware of the overall difficulties and challenges facing Ukraine. However, given the dramatic situation in a