5.  The applicant was born in 1973 and is serving a sentence of life imprisonment in Kyiv Pre-Trial Detention Centre no. 13 (“the Kyiv SIZO”).
6.  The applicant had already lodged an application before the Court, no. 43374/02, on 12 November 2002, complaining, in particular, of the inadequacy of his medical treatment in detention. He had also raised several complaints regarding his pre-trial detention and the length of the criminal proceedings against him.
7.  On 21 October 2010 the Court delivered a judgment on the above‑mentioned application, in which it found violations of Articles 3, 5, 6 and 13 of the Convention (see Petukhov v. Ukraine, no. 43374/02, 21 October 2010).
8.  On 3 December 2004 the Kyiv City Court of Appeal, sitting as a court of first instance, found the applicant guilty of a number of serious crimes committed by an organised criminal gang, namely several counts of aggravated murder, armed robbery, illegal arms possession and carjacking, as well as an attempt on the lives of law-enforcement officials. The applicant was sentenced to life imprisonment.
9.  On 24 May 2005 the Supreme Court upheld that judgment.
10.  The applicant was detained in Kherson Prison no. 61, which had the status of a prison tuberculosis (“TB”) hospital, during the following periods: from 3 July 2010 to 22 January 2014, from 24 March to 19 October 2014 and from 2 December 2014 to 19 January 2015.
(i)  The applicant’s account
11.  All the cells in which the applicant had been detained (he mentioned, in particular, cells nos. 3, 4 and 5) lacked sufficient daylight and fresh air. The windows were covered by an opaque film impeding access to natural light and could be opened only partially. The artificial ventilation system drew in air from the prison corridor only.
12.  To substantiate the above submissions, the applicant referred to a letter sent to him from the Parliamentary Commissioner for Human Rights on 16 October 2013. As stated therein, a representative of that authority had visited the prison following the applicant’s complaints of poor conditions of detention. The letter read:
“... in order to rectify the deficiencies identified, it has been recommended that the management of the Kherson Regional Office of the State Department for the Enforcement of Sentences ensure that there is adequate natural light and artificial ventilation in the premises in which you are detained, and ensure that the outdoor walks, medical care and nutrition arrangements, as well as the choice of foodstuffs and articles of daily necessity [available] in the prison shop, comply with the legal requirements.”
13.  In 2010-14 major repairs were carried out in the prison, causing inmates inconvenience such as noise, dust and the smell of paint.
14.  The yards for outdoor walks, which were located on the roof and measured between 16 and 60 square metres, were dusty and littered with construction material, and provided no shelter from the sun or rain. While theoretically prisoners suffering from TB had the right to two-hour daily outdoor walks, in practice only a one-hour walk was possible.
15.  The applicant’s cell was under constant video surveillance, including in the toilet. In support of that statement, the applicant submitted two images printed from the video records, which had been provided to him by the prison administration at his request. As explained by the applicant, those images had been recorded when he had been using the toilet in a sitting and in a standing position. In the first image, the applicant could not be seen; in the second image his head was visible. The applicant’s lawyer complained to the prison authorities about his permanent video surveillance. In May and July 2014 the Kherson Regional Office (“the regional office”) of the State Department for the Enforcement of Sentences (“the Prison Department”) replied to her that it was a statutory security measure, of which life prisoners were aware, and that the applicant’s intimacy had not been violated given that the video camera, which was indeed placed above the toilet area, did not cover the toilet itself.
16.  The prison premises were not adequately disinfected, and the frequent transfer of life prisoners from one cell to another was dangerous for their health.
17.  When the central heating was turned off, the temperature inside the cells was extremely low. For example, on 30 April 2014 the applicant had complained to the prison administration that it was too cold in his cell (the central heating had been switched off on 31 March 2014) and that his requests for permission to buy a portable heater at his own expense had been arbitrarily rejected. On 19 May 2014 the acting governor of the prison had replied to him that the use of portable heaters by prisoners was not envisaged by law.
18.  The drinking water was of extremely poor quality, which the applicant thought was partly due to the dilapidated state of the pipelines.
19.  The food provided to prisoners was inadequate and insufficient, and did not correspond to the needs of those suffering from TB. Meat, dairy products, fruit and vegetables could only be received from relatives or bought at the prison shop.
(ii)  The Government’s account
20.  The conditions of the applicant’s detention were satisfactory. They had been further improved by refurbishment of the building. Each cell had windows measuring 130cm by 110cm, with a ventilation pane. The windows were covered with an opaque film (“frost-type”) permitting light to pass through.
21.  Although sufficient financing was not available for modernising the ventilation system, air conduits had been added in the internal walls to enhance the artificial ventilation.
22.  The cells were divided into those designated for inmates with active Mycobacterium TB (“MBT+”) and those with inactive MBT (“MBT-”). Transfers took place between either “MBT+” cells or “MBT-” cells, but not from one category to another. Cells were disinfected on a daily basis by means of a special liquid disinfectant. In addition, a routine disinfection of cells was carried out with portable ultraviolet germicidal irradiation lamps, the application of which was registered in a special logbook. Mattresses, pillows and blankets were disinfected regularly.
23.  As Kherson Prison no. 61 had the status of a TB hospital, its inmates received five meals per day. Specifically, prisoners were served daily: 450 g of bread, 85 g of cereals, 540 g of potatoes, 550 g of vegetables, 300 g of fruit, 21 g of oil, 200 g of fruit juice, 50 g of butter, 500 g of milk, 100 g of cottage cheese, 15 g of cheese, 1 egg, 30 g of sour cream, 310 g of chicken meat, 110 g of fish, 60 g of sugar, 5 g of honey, 40 g of sweets, 4 g of chicory, 3 g of coffee, and 1 g of tea. The first breakfast usually consisted of porridge or pasta, fried or stewed meat with gravy, coffee, milk, bread and butter. The second breakfast consisted of cocoa with milk or compote, nuts, a biscuit, cottage cheese and sour cream. For lunch, prisoners had “borsch” or soup with cereals or pasta, or pickle soup made with meat stock, porridge or stewed cabbage, fried or stewed meat with gravy, vegetable salad, and bread. In the afternoon, fruit juice and fruit were served. For dinner, prisoners received stewed vegetables or mashed potatoes, fried or stewed fish, tea and bread and butter. The total energy value of a daily portion of food was 3,198 calories.
24.  All foodstuffs supplied to the prison had quality certificates, as well as certificates of compliance with sanitary, veterinary and other standards. Meat and fish were stored in freezers. The prison had its own bakery and made its own bread from good-quality wheat.
25.  The quality of water supplied to the prison was regularly checked. Thirteen reports on the tap-water chemical analyses carried out on various dates from 2010 to 2014 showed that the water was fully suitable for drinking.
(b)  In the Kherson Pre-Trial Detention Facility (“the Kherson SIZO”)
26.  The applicant was detained in cells nos. 392 and 394 of the Kherson SIZO from 22 January to 24 March 2014.
(i)  The applicant’s account
27.  The Kherson SIZO was located in an old building in a dilapidated state. The cells were cold and damp, and the cell walls were covered with mould and fungus. The window panes were broken and partially missing.
28.  In substantiation of his allegations, the applicant submitted eight colour photographs of some of the premises, which he claimed to be his cells in the Kherson SIZO. The photographs showed, in particular, large dark stains on the ceiling and walls, and a window with metal grids partially covered with plastic or cloth.
29.  The applicant stated that on 3 March 2014 his lawyer had complained about the appalling conditions of his detention to the Kherson regional prosecutor’s office. She had stated in her complaint that cell no. 394, in which the applicant had been placed on 22 January 2014, had been found unsuitable for use by the SIZO administration, owing to a leaking ceiling, high humidity and low temperature. Although the applicant had been transferred, for a short period, to cell no. 392, he had subsequently been placed again in cell no. 394, where the conditions were manifestly incompatible with his poor health. The prosecutor’s reply was that the conditions of the applicant’s detention were satisfactory.
(ii)  The Government’s account
30.  Both of the cells complained of were in satisfactory condition. Cell no. 392 measured 22.8 square metres and was equipped with ten beds. Cell no. 394 measured 10.7 square metres and had four beds.
31.  There was one window in each cell. As of 20 March 2014 the inside temperature was +21oC in cell no. 392 and +22oC in cell no. 394.
32.  There was a permanent water supply in the cells and the sanitary facilities functioned properly.
33.  The SIZO administration had accepted that cell no. 394 required repairs and had carried them out at the SIZO’s expense. While those repairs were being carried out, the applicant had been transferred to cell no. 392. Thereafter, the walls in cell no. 394 had been dry and whitewashed, and the ceiling no longer leaked.
34.  The applicant has been suffering from the residual effects of a multiple fracture of his left thigh as a result of a gunshot wound in 1999. He also has a medical history of pulmonary TB since 2002. The facts pertaining to his state of health and his medical treatment prior to his transfer to Kherson Prison no. 61 were analysed by the Court in its judgment on his previous application to the Court (see Petukhov, cited above, §§ 33-66 and 73-101) and are not referred to in the present judgment.
35.  Having been diagnosed with a relapse of TB on 2 February 2010 while detained in Sokal Prison no. 47, on 3 July 2010 the applicant was transferred to Kherson Prison no. 61, which had the status of a prison TB hospital.
36.  On 13 July 2010 prison doctors reported a failure of the applicant’s TB treatment. Sputum culture and bacterial sensitivity tests showed that he had developed resistance not only to first-line anti-TB drugs (isoniazid, streptomycin and ethambutol) but also to second-line ones (kanamycin, ethionamide and para-aminosalicylic acid). His right lung exhibited indications of damage aggravated by limited pleural empyema with bronchopulmonary fistula. He was also suffering from respiratory difficulties.
37.  According to the records in the applicant’s medical file, from July 2010 to December 2014 he underwent forty-four bacteriological sputum tests; thirty general blood analyses (he reportedly refused to undergo tests on fourteen occasions); fifty-six general urine analyses (with two reported refusals); as well as X-ray examinations approximately once every three months. He also underwent regular medical examinations.
38.  On 23 November 2010 the applicant was certified as having a third‑degree disability (the mildest) on account of his tuberculosis and his thigh injury.
39.  According to the information provided by the administration of Kherson Prison no. 61, the applicant refused to take anti-TB medication during the following periods: from 30 December 2010 to 9 February 2011, from 1 to 18 July 2011, and from 3 to 15 November 2011. According to the applicant, that information was inaccurate. He alleged that often, when certain medication had been unavailable, an entry had been made in his medical file that he had refused to take it.
40.  On 1 December 2010 the regional office of the Prison Department wrote to the applicant’s lawyer stating that the supply of second-line anti‑TB drugs in Kherson Prison no. 61 was “extremely insufficient”. It was specified that, as of 26 November 2010, only three second-line drugs were available (amikacin, kanamycin and ciprofloxacin). The standard practice was that the prison ordered the required first and second-line drugs from the central procurement service of the Prison Department at the end of each year for the entire year to follow. Sometimes those amounts turned out to be insufficient, but could not be replenished. For example, by the end March 2010 the prison hospital had already used the 700 bottles of capreomycin it had received for the year.
41.  On 10 May 2011 the applicant was diagnosed for the first time with genito-urinary TB and was prescribed antibacterial treatment. As reported in his medical file, he underwent the prescribed treatment “in short cycles depending on the availability of the prescribed drugs in the prison’s pharmacy”.
42.  On 1 September 2011 the Kherson City tuberculosis clinic stated in an information note that Kherson Prison no. 61 had no second-line or substitute anti-TB drugs at its disposal. It was also stated that the applicant required further inpatient treatment with the following anti-TB drugs: rifampicin, pyrazinamide, capreomycin, levofloxacin, clofazimine and cycloserine.
43.  On 12 September 2011 the Kherson City prosecutor in charge of supervising lawfulness in prisons, to whom the applicant had complained of inadequate medical treatment, wrote to him stating that there were no reasons for prosecutorial intervention.
44.  On 2 November 2011 the regional office of the Prison Department wrote to the applicant’s lawyer stating that the supply of anti-TB drugs in Kherson Prison no. 61 remained “extremely insufficient”. As of 24 October 2011, there were only two first-line drugs, isoniazid and pyrazinamide, whereas ethambutol, streptomycin and rifampicin were not available. Of the second-line anti-TB drugs, only kanamycin, ofloxacin and protionamide were available in sufficient quantities. The prison also had an insignificant quantity of gatifloxacin, rifapentine, para-aminosalicylic acid and sodium para-aminosalicylate. It was noted in the letter that the applicant’s state of health was satisfactory. The following medication had been prescribed for him: rifampicin, pyrazinamide, ethambutol, ofloxacin and capreomycin. It was noted in the letter that de  facto the applicant was receiving only rifampicin (at his own expense) and pyrazinamide. Lastly, the official observed that the applicant had refused to be treated with ofloxacin on account of the poor state of his blood vessels.
45.  On 25 November 2011 a disability evaluation board reassessed the applicant’s medical condition and certified him as having a second-degree disability (medium level).
46.  On 20 January 2012 the regional office of the Prison Department wrote to the applicant’s lawyer stating that the applicant was receiving treatment in accordance with the prescribed regimen in its entirety, but that he was demonstrating a negative attitude to his treatment and often refused to follow it. The regional office also stated that the applicant was being provided with adequate nutrition and that the conditions of his detention were satisfactory.
47.  In reply to an enquiry sent by the applicant’s lawyer, on 6 July 2012 the deputy governor of Kherson Prison no. 61 stated that the applicant was being treated with anti-TB medication under the DOTS programme (Directly Observed Treatment, Short-course). Given a shortage of terizidone in the prison pharmacy, the applicant had not been receiving it since 6 March 2012. All the other drugs prescribed for him were available “in relatively sufficient quantities”.
48.  On 30 August 2012 the applicant sent a written statement to the head of the medical unit of Kherson Prison no. 61, claiming that he was obliged to stop his treatment because of the permanent shortage of medication. As only two out the required list of at least four drugs were available, he considered it pointless to continue the treatment.
49.  On 30 November 2012 a thoracic surgeon examined the applicant and decided that surgical treatment for TB was not feasible.
50.  According to an information note issued by the prison administration on 11 April 2013, all the drugs prescribed for the applicant were available. Before 21 February 2013 the only medication that had not been available in the prison pharmacy was cycloserine.
51.  On 2 July 2013 the applicant underwent an examination by a panel of medical experts, which established that his medical treatment for TB had failed and had no prospects of success. The experts also confirmed the applicant’s second-degree disability (see paragraph 45 above). He was prescribed palliative treatment, having attained an incurable stage of TB.
52.  On 23 July 2013 the prison administration wrote to the applicant’s lawyer stating that the decision to provide the applicant with palliative care was based on Order no. 1091 of the Public Health Ministry (see paragraph 72 below). The palliative care would consist of regular administration of isoniazid and symptomatic treatment. At the time of writing, isoniazid was available from the prison pharmacy. Furthermore, the applicant was receiving “disintoxication and strengthening therapy”.
53.  On 25 October 2013 the regional office of the Prison Department issued an internal inquiry report regarding the applicant’s complaints of inadequate medical treatment for TB. It stated that the applicant was receiving the prescribed palliative treatment in its entirety and that there was no shortage of the required drugs. His health was stable and he remained under constant medical supervision. It was also observed that the disease with which the applicant had been diagnosed did not fall within the list of diseases constituting grounds for releasing a convict on health grounds.
54.  On 21 March 2014 the applicant’s lawyer wrote to the director of the National Institute of TB Studies and Pulmonology named after F.G. Yanovskyy (Національний інститут фтизіатрії та пульмонології ім. Ф.Г. Яновського АМН України). She stated that the palliative care prescribed for the applicant included the administration of isoniazid on a permanent basis, as well as symptomatic treatment. However, the applicant had developed a steady resistance to isoniazid and his treatment therefore had to be adjusted. The applicant’s lawyer requested recommendations as to how such an adjustment could be made.
55.  On 2 April 2014 the above-mentioned institute replied that, in the circumstances of the case, resorting to palliative care was indeed justified. It had been observed that the applicant’s medical treatment had not been able to stop the emission of tubercle bacilli for about two years, that the applicant had developed a resistance to most anti-TB drugs, and that there remained no room for any further adjustment of his treatment. Furthermore, surgery was not possible in his case. It was stated in the letter that the palliative care consisted of the administration of medication enhancing the functioning of the heart (depending on the symptoms manifested), vitamins, pyretic and analgesic therapy, as well as wholesome nutrition. The applicant also required a regular thoracotomy (drainage) of the right pleural cavity and its rinsing with antiseptics. Anti-TB drugs should not be administered to him given his resistance to them and their ineffectiveness, as well as their toxic effect on all the body organs.
56.  Following a chest X-ray examination on 15 July 2014, “stabilisation of the TB process” was reported. Subsequent regular X-ray examinations showed no changes in the applicant’s lungs.
57.  On 9 December 2014 the applicant was examined by a panel of doctors and underwent another X-ray examination. He was diagnosed with the following residual symptoms of tuberculosis: dense lesions, pneumono‑cirrhosis and massive pleural thickening from the right side. It was concluded that he could be monitored in a prison for healthy inmates. The doctors prescribed a vitamin-based treatment and immunological prophylaxis, and recommended that he avoid hypothermia.
58.  On 7 August 2015 the applicant was transferred to the Kyiv SIZO to continue serving his life sentence.
59.  On 11 August 2015 he underwent an X-ray examination, which confirmed the previous diagnoses.
60.  On 23 February 2016 the applicant underwent another X-ray examination, which revealed significant post-TB residual changes in the form of multiple calcifications in the right lung with calcified costal pleura in the right side, and reduced volume of the right lung.
61.  On 24 February 2016 the Kyiv SIZO issued a medical certificate stating, in particular, that the applicant’s medical condition did not fall under the list of diseases warranting his release for health reasons. His state of health was considered compatible with imprisonment.
62.  On 15 March 2016 the applicant was examined by a senior doctor from the Kyiv City Medical Association for TB Studies (Територіальне медичне об’єднання «Фтизіатрія» в м. Києві) at the request of the Government Agent, following notification of the application to the Government. The diagnosis was as follows: post-TB residual changes in the form of pulmonary fibrosis, dense foci with calcified costal pleura. The absence of any indication of re-activation of TB was noted. The applicant was not considered to require any specialised medical treatment. Lastly, it was observed that the conditions of the applicant’s detention and the medical care arrangements afforded to him were in compliance with the applicable legal provisions.
63.  On 23 December 2013 the applicant applied for release on health grounds under Article 84 of the Criminal Code of Ukraine (see paragraph 73 below). He submitted that his TB disease had become incurable because of failures by the authorities. He also argued that his irreducible life sentence ran contrary to Article 3 of the Convention.
64.  On 17 June 2014 the Kherson Suvorovskyy District Court refused the applicant’s request on the grounds that his medical condition did not fall under the list of diseases warranting early release (see paragraph 74 below). The court considered that the applicant’s health had improved since 2010. In particular, the development of his TB had been stabilised and the emission of tubercle bacilli had stopped. Lastly, the court noted that the applicant had been convicted for a number of particularly serious crimes and that in the course of his detention, disciplinary measures had been applied to him twenty-eight times, whereas he had never been commended for good behaviour.
65.  On 21 August 2014 the Kherson Regional Court of Appeal upheld that decision by a final ruling. Like the first-instance court, it concluded that the preconditions for release on health grounds had not been met and that the applicant’s illnesses did not prevent him from serving his sentence.
66.  In 2009 the applicant married his lawyer, Ms Boykova (see paragraph 2 above). On that occasion they were allowed an extraordinary short-term meeting, during which they were separated from each other by a glass partition and communicated by telephone.
67.  During his post-conviction detention until 16 February 2010 the applicant was allowed to see his wife (he had no other relatives in Ukraine) at short-term meetings lasting up to four hours once every six months. Subsequently, he was granted the right to have short-term visits once every three months (see paragraphs 95-97 below).
68.  Following the entry into force on 6 May 2014 of legislative amendments entitling life prisoners to long-term family visits (for three days) every three months (see paragraph 98 below), the applicant’s wife complained to the penal authorities that requests made by the applicant to that effect had not been allowed.
69.  On 25 June 2014 the Kherson Regional Office of the State Prisons Service (previously named “the Prison Department”) replied to her that, indeed, life prisoners were entitled to a long-term family visit every three months. The prison administration was carrying out the necessary refurbishment with a view to creating adequate premises.
70.  According to information provided by the prison administration, the applicant had sixteen short-term meetings with his wife (not taking into account his meetings with her in her capacity as his lawyer) during the period from April 2014 to January 2015. He also had long-term visits from her on 1 August and 31 December 2014, each of which lasted for three days.