FIFTH SECTION  CASE OF ROMANOV v. UKRAINE(Application no. 63782/11)   JUDGMENT This version was rectified on 24 August 2020under Rule 81 of the Rules of Court. STRASBOURG16 July 2020 This judgment is final but it may be subject to editorial revision.In the case of Romanov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Mārtiņš Mits, President, Ganna Yudkivska, Lәtif Hüseynov, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,Having deliberated in private on 23 June 2020,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 63782/11) 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 Russian national, Mr Ilya Eduardovich Romanov (“the applicant”), on 30 December 2005.2. The applicant was initially represented by Mr V. Chernikov, who was succeeded by Mr V. Komarov, both lawyers practising in Moscow. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.3. On 9 February 2012 the Government were given notice of the applicant’s complaints concerning the conditions of his detention in Odessa SIZO and conditions of his transfer to Polytska[1] Prison, the right to have adequate facilities for the preparation of his defence and right to effective participation in person and legal representation in his criminal trial, his conviction for his political beliefs, and the lack of effective remedies for his complaints about the conditions of his detention and transfer.4. The Government of the Russian Federation did not make use of their right to intervene (Article 36 § 1 of the Convention).THE FACTSTHE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1967 and lives in Nizhniy Novgorod.Background to the caseDissemination of printed material6. In 2001 Ya. formed a group consisting of former Komsomol members, whose aim was to revive the communist State through a communist revolution. Following arrangements between Ya. and his counterpart in Russia, different material was printed out in Russia, delivered to Ukraine and disseminated in different towns during protest meetings taking place at that time in the context of a mass protest campaign calling for the resignation of President Kuchma. The material included, inter alia, issues 5 and 6 of the Soviet of Workers’ Deputies (Совет рабочих депутатов) and issue 1 of the Rada of Workers’ Deputies (Рада робітничих депутатів) newspapers. The latter was a Ukrainian supplement to issue 5 of the Soviet of Workers’ Deputies newspaper. Its front page suggested that it was the newspaper of revolutionary communists in Ukraine.7. Issue 6 of the Soviet of Workers’ Deputies newspaper contained, inter alia, the following articles, some of which had been written by Ya. using different pseudonyms:“Ukraine: from the tribunal to the revolution or the people will not be fooled!”(“Украина: от трибунала к революции, или народ не пидмануть!”) referred to the undergoing protest movement against the President and contained the following passages:“... But is it not Kuchma who should be found guilty for the genocide [of the Ukrainian people] but the whole capitalist order ... Only the creation of a Soviet of workers’, peasants’ and soldiers’ deputies and an armed revolt will make it possible to overthrow the Kuchma regime and thereafter [the capitalist] order. And the opposition leaders, who are planning a perfunctory coup d’état, are well aware of this. But they are pretending that once Kuchma has gone, the sun of freedom will rise over Ukraine. However, the majority [of the protesters] understand that is not about Kuchma. The people cannot be fooled. This is why it is too early to say what the eventual outcome of an anti-Kuchma movement will be ...”“Is the Ukrainian opposition capable of winning?” (“Может ли украинская оппозиция добиться победы?”). This article was critical of the leaders of the opposition, mainly for their vague action against the current political regime, with the following passages:“... This is why S. [the leader of the communist party] sided with the evident criminal. He believed he could use her [the criminal’s] energy and the people’s hate towards [the current President] to be ushered into power...Yes, just ushered, as to seize the power and create new State bodies one would have to be a very brave and talented person. And if the creation [of new State bodies] necessitates starting a civil war ... one would also have to be a GREAT STATE FIGURE ... Unfortunately, neither S. nor... any other opposition leader is this sort of character ...During the meetings on 16 and 24 September the revolutionists disseminated a large amount of reading material calling people for a real revolt. Unfortunately, this call has not been heard ... But we remain optimistic ... Looking at how the protests are organised, Kuchma couldn’t care less about those meetings and collected signatures. In his address to the people he had already clearly stated that he would not resign. He submitted that no revolution was possible in Ukraine as the people did not want unrest. Is it possible that [he] was right? Is it possible that the people are ready to die ... but are not taking arms in their hands? We don’t believe that! Unfortunately, the people have not yet got it that only in severe bloody fights would they gain real Freedom. But they will get it for sure!”“This crazy, crazy...” (“Этот безумный, безумный...”). Referring to hard living under capitalism and providing some illustrative examples, the article ends with the following passage:“... What would you call it? Outrage of those in power. Carefully analysing the situation, one would understand that capitalism in Ukraine has become unstable; the power of Kuchma has almost gone ... Our main task now is to stay strong and focused. Although this it not an easy task! ... Many of my friends and comrades think I am out of my mind. That is because what I suggest is to eliminate the current regime of genocide by means of a strong armed revolt of the people as, on the one hand, there is no sense in the current impotent protests and on the other – we cannot stand [the situation] anymore. And this is not just me and my comrades, but 90% of Ukrainians. But they are afraid of admitting it.”“...Genocide” (“... Геноцид”) talked about the alleged overpricing of medication by the State and included the following passage:“... The answer [why the overpricing was happening] is clear: capitalism and genocide are twin brothers in our country and therefore accusations of genocide [by those in power] of our own people are logical ... There is only one solution –overthrow the power of capitalism as a whole, set up a people’s court and thereafter prosecute officials for the genocide of [their] own people ....”“Great job” (“Замечательная работа”) referred to the low level of living in Ukraine after the collapse of the Soviet Union and, in particular, people’s unhappiness in the workplace. It included the following passages:“... The life of workers in the Soviet Union had been too free and easy, which resulted in the loss of the notion of a class system. Having all of a sudden found themselves in conditions of capitalism, the people ... felt like [they had been] knocked down. However, they still have the force to rise and fight. What you need is to just be willing and determined ...I am a professional revolutionist, a new generation of fighters against the capitalist order. We are in fact the same professionals as ... but we are illegal. And this is why we can call in a more open way for an overthrow of the regime by means of an armed revolt. You cannot do that! ... The joy we get from realising that we are prompting the fall of the capitalist order in the country is enormous! We are not afraid of any repression. We are ordinary people though, just a bit more determined. Everybody who is striving for the victory of workers in the State can do it. The axiom is simple: the more of us there are, the faster we will destroy the capitalist order. We have experienced that happiness [from fighting] ... in practice. And we hope you feel the same.”8. The Rada of Workers’ Deputies contained the following articles, with Ya. being the author of two of them:“What the communist revolutionists of Ukraine want” (“Чего хотят коммунисты-революционеры Украины”) was an introductory article, which contained the following passages:“This new newspaper ... is a printed platform of revolutionary communists whose aim is to develop the Soviet movement in Ukraine, organise a victorious revolt of the people and declare Ukraine a republic of the Soviets of Workers’, Soldiers’, and Peasants’ Deputies.A nation which is subjected to tyranny and oppression has the right to revolt. This long-forgotten by the “civilised world” international legal rule must become law for the working people of Ukraine towards the Kuchma regime. Why one would need it?It is important that the working people: workers, peasants, soldiers and honest officers realise the full extent of the situation in Ukraine ... We declare that only the Soviets, elected by the working class and supported by armed working people, have the right to rule their country and govern its assets created by the work of many generations of workers and peasants.One needs to understand that elections are conducted under the rules drafted by the CIA and Mossad – this is a deception of the people by those in power. The working class have never and nowhere managed to substantially improve their life in a peaceful way ...Therefore, all parties which assure the people that the problem of a predatory government can be resolved by means of a “democratic election” are lying ...Poor hard workers must get that only a nationwide revolt can seize the power of ... the capitalist oligarchs... The truth is that it is impossible to eliminate those parasites hanging on our neck without [there being] blood and victims. Therefore, there is only one way to save our children and grandchildren from death and shame – shed the blood of the parasites and your own in a civil war, win the war and establish firm revolutionary power. This is the hard truth, but we do not want to fool the dying people that S. [the leader of the communist party] will come and put things right. The capitalists will not give back what they have stolen without a fight.... Therefore, the task for the honest communists is to take the initiative from the capitalists, once the President has resigned, and turn “the democratic coup” into a socialist revolution. This means that the revolutionists [will] have to use the crisis of those in power and the frustration of the people to organise the victorious revolt.How to win?... Secondly, urgently create armed groups. These groups must include former soldiers and officers capable of keeping weapons in their hands and obeying discipline and having knowledge of the art of war. [Then] find out information about ammunition and weapon warehouse locations ...Thirdly, immediately start widespread propaganda, advocating a revolt and calling on the working people to join the armed groups ...Fourthly, not be afraid of criminal responsibility and be prepared for unavoidable losses ...[There is] no other way in which communists can get rid of the stigma of traitors ... and say to the people: “this is our task to fight for the happiness of the working class, and we are doing so by putting in all our efforts and lives!”.“Kuchma regime – regime of genocide” (“Pежим Kучмы – режим геноцида». In that article, the author mainly addressed the airshow disaster in Sknyliv, suggesting that it had happened because of the financial greed of those in power. It contained the following passage:“People have to clearly understand that their enemies are not military officers ... Their enemy has settled in Kyiv... Its name is the capitalist criminal order. There is only one way to overcome this enemy – a determined and offensive revolt. If we do not destroy this regime – it will slowly but steadily destroy all of us ...”“How to turn Ukraine upside down” (“Как перевернуть Украину”). The article addresses the defeat of the communist party in the parliamentary elections. The relevant parts read as follows:“What lesson is to be learned from the defeat of the communist party in the election? History gives a clear answer – we have to begin serious preparation works and propaganda for a revolt of the working people. We have to use any protest movement against the government for this purpose. Nobody should be afraid of the civil war. It is already under way! ... This is your fault as well. For all of ten years you were far behind your “communist” leaders! ...Nowadays, the first groups of the military organisation of revolutionists are already operating in Ukraine. The aim of the organisation is to arrange an overthrow by armed working people of the regime of tyranny and oppression. It will be impossible to take power in the whole territory of Ukraine. Therefore, the first strategic goal ... is to devise from the capitalist centre the region (or regions) with the highest level of protests by the suppressed working people and to proclaim a Soviet republic of workers’, peasants’ and soldiers’ deputies ... ”... thereafter [once the first-hand measures have been taken in the self-proclaimed Soviet Republic] groups of the revolutionary army will advance the attack on Kyiv in order to overthrow the anti-people regime and replace it with the power of the Soviets of Workers, Peasants and Soldiers.The communists must be prepared for this, as well as prepare the suppressed working people of Ukraine!”“For the Soviet republic of Crimea” (“За советскую республику Крым”). The article, which described current events in Crimea, included the following passages:“... The communist party does not want to take power [in Crimea] other than by winning elections ...As a result, notwithstanding the fact that the communist movement is very active in Crimea, its people continue to live in the terrible conditions of modern Ukraine. So the situation is this: the one who is more radical and determined will win. There is only one solution for ... the people: a revolt and proclamation of a Soviet republic.”Explosion9. On 21 October 2002 an explosive device was detonated in a rubbish bin in front of the State Security Service (“the SBU”) headquarters in Kyiv. Criminal proceedings were instituted in connection with the incident.Criminal proceedings against the applicant10. According to official records, on 8 December 2002, when the applicant was fishing in Kakhovka (Kherson Region), fishery workers called the police as they had found a gun in the applicant’s jacket. Following an immediate search by the police, bullets and a handmade explosive device and detonator were found in the applicant’s bag, as well as a gun and two passports in his name in his jacket. The applicant was taken to a police station in Kakhovka.11. According to the applicant, the events in question took place on 7 December 2002, and until 8 December he was held in unrecorded detention by the police.12. On 8 December 2002 the applicant was arrested on suspicion of unlawful possession of firearms and explosives. The copy of the arrest report submitted to the Court was illegible. According to the applicant, he requested legal assistance in that record.13. On 10 December 2002 the applicant was informed of his procedural rights and he expressed his wish to be assisted by a lawyer, Chet. On the same date Chet. was assigned to represent him in the proceedings. While being questioned in Chet.’s presence, the applicant submitted that he had come to Ukraine to collect material for “a journalism project”. He refused to give any further evidence, relying on his constitutional right to remain silent.14. According to the applicant, the investigator had told him to request the assistance of Chet.15. On 11 December 2002 the applicant was charged with unlawful possession of firearms and explosives and questioned. He denied his guilt and refused to give any evidence. It does not appear from the relevant interview record that Chet. was present.16. On 13 December 2002 a number of individuals were arrested at a flat in Mykolayiv on suspicion of involvement in a number of crimes committed as part of a criminal group headed by Ya. (including unlawful possession of firearms, acts of terrorism, assault and robbery) with a view to starting a communist revolution. Firearms, ammunition, explosives, drugs, copies of the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers and other printed material were seized by the police from the flat. At some point after their arrest, one of the suspects told the police that the applicant might have made the explosive devices found at the flat, as well as the device detonated near the SBU headquarters (see paragraph 9 above). Some of the bullets seized by the police from the flat were, as was subsequently established by the domestic courts, of the same calibre and identification code as those found in the applicant’s bag (see paragraph 10 above).17. On 14 and 15 December 2002 Sm., the applicant’s acquaintance, who had been in police detention, was questioned as a witness by the Kakhovka police. During those interviews he explained, among other things, that he was a member of a Russian-based non-governmental organisation which advocated rights for political prisoners and propagated communist political views. He and two other members of the organisation had been sent to Ukraine to distribute the Soviet of Workers’ Deputies newspaper and other material, as well as to participate in public activities organised by opposition political forces in Ukraine and promote networking with local leftist groups.18. On 19 December 2002 the applicant was transferred from Kherson to Mykolayiv, where members of the alleged criminal group headed by Ya. were being detained pending the outcome of investigations against them.19. On 20 December 2002 criminal proceedings were instituted against the applicant by the SBU for membership of a criminal group. On the same date that case was joined to the proceedings against those arrested on 13 December 2002 (see paragraph 16 above).20. On 21 December 2002, at the SBU premises in Mykolayiv, the applicant made a handwritten statement (known as an “explanation” (oбъяснение)) stating, among other things, that he had come to Ukraine from Moscow to participate in the protest movement against the current President, and that to show support for the protesters he had decided to carry out an explosion near the SBU headquarters in Kyiv. Another aim of the explosion, according to him, had been to divert suspicion from his wife, who was being prosecuted in Russia for carrying out a similar explosion near the Federal Security Service building in Moscow. The applicant provided details regarding how he prepared and carried out the explosion, including the technical characteristics of the explosive device he had used. In addition, he confessed to having manufactured other pieces of explosive material. He further stated that he had gone to Kakhovka to meet S., an activist from the communist movement, and to distribute the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers at a protest meeting there. The applicant concluded by stating that he believed he had done nothing criminal, as his actions had been taken in the interests of the Ukrainian Soviet Socialist Republic, of which he believed he was a citizen, and which had been temporarily under the reign of global, mostly American, imperialism. He also wished to prevent the genocide of the people of Ukraine by the current political regime in the country.21. According to the applicant, the text of the “explanation” was dictated to him by the investigator. He agreed to make the statement because a day earlier, at the detention facility, he had been subjected to psychological ill‑treatment.22. According to the applicant, at 4.40 p.m. on 21 December 2002, after drafting the “explanation”, he was informed of his procedural rights. He submitted that, in principle, he had wished to be represented by a lawyer during the investigation but had been ready to give some evidence, at his own discretion, in the absence of a lawyer. At 5 p.m. he repeated that statement when informed again of his defence rights, this time in the presence of a lawyer, Cheb.23. At 5.10 p.m. the applicant was questioned by the SBU investigator as an accused. It appears from the relevant record that no lawyer was present during the interview as the applicant had expressed his wish to be questioned without a lawyer before it had started. Apart from that, the record represents a printed version of the applicant’s “explanation” given earlier that day. It was signed by the applicant without remarks and contained a handwritten declaration that all the evidence had been given of his own free will without any pressure by the authorities.24. On 22 December 2002 the applicant engaged two lawyers, Sk. and K., from a private law firm. On the same date they were assigned to represent him in the proceedings. According to the applicant, they were chosen by the investigator and, given his particular situation, he had no other choice than to enter into an agreement with them.25. On the same date a crime scene reconstruction was conducted with the applicant’s participation and in the presence of Sk. The applicant confirmed his earlier statements related to his involvement in the explosion near the SBU headquarters. He refused to answer certain questions, including about his accomplices. The reconstruction record was signed by the applicant and Sk. without remarks.26. On 23 December 2002 Sm., in the absence of a lawyer, provided a handwritten statement to the investigator of the SBU admitting, in particular, to distributing the Soviet of Workers’ Deputies newspaper and other printed material in Ukraine and blowing up the rubbish bin near the SBU headquarters in Kyiv in October 2002 together with the applicant and another accomplice.27. On 25 December 2002 the applicant was questioned as an accused by the SBU investigator. No lawyer was present as the applicant had said, as was noted in the relevant record, that he did not wish to be assisted by a lawyer during the interview. The applicant confirmed that he had manufactured and detonated the explosive device near the SBU headquarters alone. When shown a number of items seized from the flat in Mykolayiv on 13 December 2002 (see paragraph 16 above), he confirmed that some of them belonged to him and had been used by him when manufacturing different types of explosives. He said that he did not have any information as regards the ammunition and drugs found at the flat.The applicant further denied the allegations of unlawful possession of firearms and explosives for which he had initially been arrested and submitted that the material evidence against him had been planted by the police. He also complained that he had been ill-treated by the police, who had tried to force him to confess to that crime, and that he had instructed his lawyers to lodge a complaint against the officers concerned. Lastly, he stated that he was ready to cooperate with the authorities as regards the crimes he had committed on the territory of Ukraine but refused to give any evidence as regards his accomplices.28. On 29 December 2002, after being informed of his right to legal assistance in the presence of Sk., the applicant expressed his wish to retain Sk. as his lawyer. Thereafter, in Sk.’s presence, he was charged with membership of a criminal group headed by Ya. whose aim had been to overthrow the constitutional order in Ukraine, including by means of terrorist acts, such as that which had occurred near the SBU headquarters. The applicant, in turn, challenged the legal classification given to his actions and submitted that they should have been classified either as a terrorism offence or hooliganism. In doing so, he reiterated that his actions had been aimed at preventing a more serious crime – the genocide of the Ukrainian people.29. Later that day the applicant was questioned as an accused in Sk.’s presence. During the interview he again confirmed that he had carried out the explosion near the SBU premises and had manufactured the explosive material found at the flat in Mykolayiv. He maintained that he had done it through his own initiative and alone. The applicant also submitted that Ya. had been aware of his intention to carry out the explosion and could have used this knowledge for his own purposes as a writer. According to the interview record, which was signed by the applicant and Sk. without remarks, the applicant, at his request, had had a confidential meeting with Sk. before the interview started. In his submissions to the Court, the applicant denied that such a meeting had taken place.30. On 3 February 2003 the applicant requested that Chep., a lawyer engaged by the applicant’s relatives, be assigned to the proceedings as his defence counsel and refused the services of Sk. and K. His request was granted the same day.31. On 16 and 18 February 2003 several notes addressed to different people were seized from the applicant during a routine search at Mykolayiv SIZO, where he was being held at the time. No copies of the notes were provided to the Court. It appears from the case material that in those notes the applicant, among other things, demanded witnesses in his wife’s case to change their testimony, gave instructions to different people about how to force the witnesses to change their testimony, and provided details as to what the new defence strategy by his wife should be in order to derail the investigation. He also asked that his lawyer Chep. be involved in the process, and that they send their messages to him via that lawyer. The applicant further assured the intended recipients of the notes that he was not a traitor, as he had only confirmed his own involvement in the explosion near the SBU headquarters and had refused to testify against anyone else. He also stated that the technical description of the explosive device had been wrong and that he would use this “tricky moment” in the future.32. On 19 February 2003 the applicant was questioned in the presence of Chep. He refused to give any evidence before the trial.33. On 3 March 2003 the applicant was transferred to Odessa.34. On 24 April 2003 the applicant was questioned in connection with his membership of a terrorist group and distribution of the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers. Before being questioned he agreed in writing to participate in the investigative activity without his lawyer present. During the interviews the applicant refused to answer any of the investigator’s questions, relying on his right to remain silent.35. On 21 May 2003 the original charges against the applicant were changed to dissemination, as part of a criminal group, of printed material containing calls to violently overthrow the constitutional order and seize power; banditry; terrorism; illegal production and possession of drugs; and unlawful possession of firearms and explosives. The applicant was questioned in the presence of Chep. He admitted his guilt in part, but refused to give any evidence until the trial.36. On 26 May 2003 the applicant was questioned about the notes seized from him at Mykolayiv SIZO on 16 and 18 February 2003 (see paragraph 31 above). He confirmed that he had written them, but refused to provide any further evidence.37. On 27 May 2003 the pre-trial investigation was completed and from then until 24 July 2003 the applicant and Chep. studied the case file. Although the applicant signed a schedule confirming his familiarisation with the file, he refused to sign a report confirming that he had fully familiarised himself with it. According to the applicant, he had not been provided with sufficient time to familiarise himself with all the material. Chep. stated that he had familiarised himself with all the material and signed the report without making any remarks.38. On unspecified date the applicant, along with ten other individuals implicated in the criminal activity committed as part of the group headed by Ya., were committed to stand trial before the Odessa Regional Court of Appeal (“the Regional Court”), acting as a first-instance court.39. Between 2 and 11 September 2003 the applicant was given further time to study the case file.40. On 24 September 2003 the Regional Court assigned A. (a lawyer engaged by the applicant to replace Chep., whose contract had come to an end) to represent him during the trial. She was given time until 13 October 2003 to familiarise herself with the case file.41. During the trial the applicant submitted that he had shared communist beliefs with his co-defendants, whom he considered his political comrades, but denied committing any acts aimed at overthrowing the constitutional order. In doing so, he stated that he had taken eight issues of the Rada of Workers’ Deputies newspaper from Ya.’s flat in Mykolayiv, which he had intended to use for household purposes and give to Kakhovka residents as firelighters for their stoves. He stressed that he had given the newspaper to S., whom he had met by chance at a protest meeting and who had been interested in its content, as well as to M.The applicant’s co-defendants, with the exception of Sm., admitted to distributing the newspapers at issue and other material as part of their activity aimed at restoring a Soviet republic. The editor of the newspapers and some other co-defendants admitted that the newspaper articles had contained incitement to violence, including calls for an armed revolt against the constitutional order in Ukraine and seizure of power by revolutionary communists.The applicant further denied his involvement in any of the other criminal activity he had been charged with and submitted that all his self‑incriminating statements made during the pre-trial investigation had been given under duress and in breach of the privilege against self-incrimination. In particular, his “explanation” of 21 December 2002 had been dictated to him by the investigator, whom he had been afraid of. The investigator had also promised, if he provided a statement, to have him declared insane and admitted to a psychiatric institution instead of a prison, as had been the case in the criminal proceedings against him in Russia (for the relevant facts, see Romanov v. Russia, no. 63993/00, 20 October 2005).He further submitted to the trial court that he had not given any evidence during the subsequent investigative activities, but had just signed all the documents that had been given to him by the investigator, without even reading them, as he had been afraid of ill-treatment. He also complained that Sk. had been an agent of the SBU and not a lawyer of his choice and that, accordingly, he had not represented his interests effectively.42. In November 2003 B., one of the applicant’s co-defendants, died in detention. The remaining defendants alleged that he had died as a result of torture.43. The trial court ordered an investigation into the circumstances of B.’s death. The prosecutor’s office reported that there was no torture case to answer, as B. had died of cancer.44. On 19 July 2004 the Regional Court found the applicant guilty of terrorism, dissemination of printed material calling for an armed revolt against the constitutional order, banditry and unlawful possession of firearms and explosives. He was sentenced to ten years for terrorism, one year for disseminating the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers and five and six years respectively for the remaining offences. Using the rule of absorption of a more lenient punishment by a stricter one, the applicant’s final sentence was ten years’ imprisonment. He was acquitted of illegal production and possession of drugs for lack of evidence.The Regional Court did not find the applicant’s arguments about his non‑involvement in the distribution of the Soviet of Workers’ Deputies and Rada of Workers’ Deputies newspapers convincing and credible, providing detailed reasoning for its conclusion. It referred, among other things, to the testimony of S. and M. given at trial, who had confirmed that the applicant had participated in the protest events in Kakhovka and had visited them twice during that time (on one of these occasions he had been with Sm.); both times he had brought newspapers with him and discussed their content with them maintaining, among other things, that there could be no revolution without victims. The trial court also referred to the content of some letters sent by the applicant from detention, including to one of his co‑defendants, complaining that Kakhovka’s Bolsheviks S. and R., who had been recommended to him as potential partisans, appeared to be the wrong people who more than likely had assisted the police in arresting him. At the same time, the Regional Court held that there was insufficient evidence to find that the applicant had disseminated the material outside of Kakhovka, or that he had been acting on the instructions of Ya. or the editor of the newspapers.Referring further to the content of the articles contained in the newspapers distributed by the applicant (see paragraphs 7 and 8 above) the Regional Court found it established that they clearly called for an armed revolt in Ukraine with a view to overthrowing the current legal order and a takeover of State power by Bolshevik revolutionists.As regards the conviction for terrorism, the Regional Court referred in the most part to the applicant’s confessions made during the pre-trial investigation, including the “explanation” of 21 December 2002, and the testimony of Sm. which he had made during the pre-trial investigation but retracted during the trial. The court also referred to the content of the notes seized from him at Mykolayiv SIZO, the testimony of one of his co‑defendants given at trial that the applicant had confessed to him of having carried out the explosion near the SBU headquarters, and a forensic psychiatric report suggesting that the applicant had also confirmed his involvement in the crime during his forensic examination.The court found no evidence that the self-incriminating statements, including his “explanation”, had resulted from any pressure by the investigating authorities, setting out in detail the facts which contradicted the applicant’s allegations. It noted, among other things, that at the time the “explanation” had been given by the applicant the investigator had not yet been aware of his psychiatric treatment in Russia, but had known the technical characteristics of the explosive device used near the SBU and thus could have ensured, had he so wished, that the applicant provide the correct description of the explosive device in his testimony and not the one he had made in his confession. It also noted that the applicant’s intentions to divert suspicion from his wife and the fact that he had intentionally provided the wrong description of the explosive device to the police had also been confirmed in his notes addressed to his friends, which had been seized from him at Mykolayiv SIZO.As regards the applicant’s allegations against Sk., the trial court noted that, by signing the agreement with Sk. and the law firm, he had accepted Sk. as his legal representative. The court also pointed out that since the applicant had wished to keep Sk. as his lawyer during certain investigative activities, and had asked his friends to communicate with him via that lawyer in his letters sent from detention, this suggested that there had been a trust-based relationship between them.Referring to the results of a medical examination of the applicant by a panel of experts, which it had ordered, the Regional Court also found unsubstantiated the applicant’s complaint that he had been unable to effectively participate in the hearings because of physical and mental exhaustion.[2]45. The applicant appealed. Before lodging the appeal he was granted access to the case file. In his appeal, he admitted to giving out several copies of the Rada of Workers’ Deputies newspaper and discussing its content with those to whom he had given the material. However, he considered that those actions did not constitute a criminal offence because he had had no intention of overthrowing the constitutional order in Ukraine, and the newspaper was legally published in Russia and not banned in Ukraine. He submitted that it was only during the pre-trial investigation that he had started thinking that a change of the constitutional order in Ukraine – which he understood as a resignation of its President – would be a good thing.The applicant also submitted that his conviction in respect of the other crimes had been based on inconsistent, partly falsified and insufficient evidence. In particular, as far as the conviction for terrorism was concerned, he challenged the admissibility of all his confessions made during the pre‑trial investigation, maintaining that they had been obtained under duress and in breach of his defence rights. He noted with respect to the latter issue that his “explanation” of 21 December 2002 had been obtained in the absence of a lawyer, despite the fact that shortly after his arrest he had explicitly expressed his wish to be represented by Chet., who had already been assigned to represent him in the proceedings. He further submitted that the following investigative activities had taken place either in the absence of a lawyer or in the presence of lawyers chosen for him by the investigator, including Sk. He also complained that during the trial his lawyer A. had been prevented by rules set by the convoy service from talking to him before the hearing of 24 September 2003, and that during the hearing of 5 February 2004 he had been told to keep his hands behind his back when replying to the prosecutor’s questions, without being able to use his notes.Lastly, the applicant complained that he had not had sufficient time to study the case file.46. On 26 July 2005 the Supreme Court of Ukraine, sitting as a last‑instance court, quashed the applicant’s conviction for banditry and acquitted him of that charge for lack of evidence. Otherwise, the court upheld his conviction and sentence. It found, in particular, that the testimony of various witnesses, including some of the applicant’s co‑defendants, given not only during the pre-trial investigation but also during the trial, as well as the applicant’s letters sent from detention, confirmed that the applicant had been involved in the dissemination of material unequivocally calling for the removal of the existing political regime by violent means.The Supreme Court also found that there was sufficient evidence that the applicant had been in unlawful possession of firearms and explosives, including statements by lay witnesses present during the seizure of such items from him.As regards the applicant’s involvement in a terrorist act, the Supreme Court found that his guilt was proven by the confessions he and Sm. had made during the pre-trial investigation, “including during the [crime scene] reconstruction [conducted] with [the applicant’s] participation and in the presence of a lawyer”. It ruled that those pieces of evidence had correctly been assessed and declared admissible by the Regional Court and supported the findings of the latter in this respect. The Supreme Court also noted that there had been other evidence of the applicant’s guilt, including the content of the notes seized from him in detention and implicating statements by his co-defendants given at trial.The Supreme Court found no breach of the applicant and his co‑defendants’ defence rights, noting that the analysis of the case file suggested that all issues concerning access to lawyers in the proceedings and their replacement had been resolved by the authorities in accordance with the law. Taking note of the fact that some of the investigative activities had been conducted in the absence of lawyers, the Supreme Court found that the verbatim transcripts of the relevant activities suggested that the defendants had agreed to testify in the absence of a lawyer.Lastly, the Supreme Court found that the applicant had had sufficient time to prepare his defence, which could be seen from the numerous references to various pages of the case file in his extensive appeal on points of facts and law. It also noted that the applicant and his lawyer had been provided access to the case file on a number of occasions, including at the applicant’s request.47. On 7 December 2012 the applicant was released from prison after serving his sentence in full. The next day, following a decision by the SBU, he was expelled from Ukraine with a ban on re-entering the country for the following three years.Conditions of Detention in Odessa SIZO48. From 3 March 2003 to 3 November 2005 the applicant was detained in Odessa pre-trial detention facility no. 21 (“the SIZO”).Material conditions of detention49. In his initial submissions, the applicant complained that upon his arrival at the detention facility he had been placed for two months in cell no. 4-133 which had been very cold as the window had not been glazed. The cell had accommodated five detainees, even though there had only been four sleeping places. As a result, he had had to sleep on a cold floor during this period. The SIZO had also had very poor sanitary facilities. In particular, detainees had had no access to washing facilities for two to three weeks in spring, and hot water had not always been available in summer. Apart from mattresses and covers, detainees had not had any other items in their cells. For seven days in September 2003 the applicant had been held in a disciplinary cell. It had been flooded and he had been up to his ankles in water.50. The Government submitted that the conditions of the applicant’s detention had been fair. Relying on information provided by the relevant authorities on 14 May 2012, they submitted that he had never been held in a disciplinary cell, and had been detained in cells no. 4-133, 4-135, 4-249, 4‑244, 4-245, 4-261, 2-73, 2-74, 2-94, 2-303, 2-295, 2-296, 2-298, which were ordinary cells equipped with a toilet, central water and heating, as well as artificial and natural light. The cells measured between 7.6 and 8.5 sq. m and were designed to accommodate four inmates. Pursuant to the relevant regulations, detainees enjoyed a one-hour daily walk in the courtyard, and weekly access to the shower facility.51. In his comments in reply to the Government’s observations, the applicant maintained his complaint, submitting in addition that the conditions of all the cells in which he had been detained had been poor. According to him, the cells measured between 8 and 10 sq. m with four sleeping places. The toilet was just a hole in the floor, which was not separated from the living area but located one metre away from the place where detainees would eat their food; there was no artificial ventilation and natural air was insufficient, which had resulted in the cell being thick with the smell of excrement, especially during summer; there was no water supply for most of the day; and detainees had no bedding, crockery or items of personal hygiene.Medical assistance52. Documents provided by the Government show that upon his arrival at the SIZO the applicant underwent a medical examination which revealed no particular health problems. On a number of occasions during his detention there he was examined by different medical specialists, including by a panel of civilian doctors (comprising an ophthalmologist, a urologist, a general practitioner, a pulmonologist, a cardiologist and a neurologist) on 12 March 2004, following an order by the trial court. He was diagnosed with hypertension, chronic bronchitis (remission phase), neurocirculatory dystonia and chronic pharyngitis. The relevant treatment was prescribed and provided to him. He was also diagnosed with a congenital cataract, which was a hereditary condition not amenable to conservative treatment.53. On 19 March 2004 the applicant made a written statement to the effect that he had no complaints about his state of health.54. In October 2005, before being released from the SIZO, the applicant was examined and the previous diagnosis (see paragraph 52 above) was confirmed.55. While in a prison, the applicant complained of back pain. On 14 February 2006, following an examination, he was found to be suffering from severe myopia, astigmatism, cataracts and the aftereffects of a spine injury sustained in 1980s. He was recognised as falling into the third (mildest) category of disability on account of his health conditions.56. According to the applicant, his medical examinations in the SIZO were infrequent and superficial. While he had a long history of spine problems – for which he was later recognised as having a disability – his condition was not recorded and treated at the SIZO. Medical recommendations for other health problems were not followed by the authorities and no medical treatment was provided, which resulted in a deterioration of his health. No medication or equipment was available at the SIZO, with only blood and urine tests being performed. Detainees were required to provide paper and pens for keeping records.Transfer between the SIZO and the court57. Between 24 September 2003 and 2 July 2004, during the proceedings at the Regional Court, the applicant was taken from the SIZO to the court and back.58. According to the applicant, on the days of the hearings, which were sometimes held several days in a row, and when familiarising himself with the case file, he was taken out of his cell at about 6 a.m., according to his initial submissions, and at 5 a.m., according to his comments in reply to the Government’s observations. He was then placed with other detainees in a special “assembly cell”, which had no windows or heating. They remained in that cell for more than three hours before being taken to the court. In the court building, after the hearings and until 3 to 4 p.m., the detainees were placed in a holding cell located in the basement. No hot meals were generally provided to them, except for during a short period, after detainees complained. The so-called “packed lunches” consisted of just bread. Following his return from the court, the applicant had to wait in the same “assembly cell” until 8 p.m. before being escorted to his usual cell. As a result, he missed mealtimes and could not wash himself as no water was available at that time of day. The conditions left him exhausted and hungry, and gave him no ability to properly prepare and participate in the court hearings.59. According to the Government, the majority of the hearings in the applicant’s case lasted no more than three hours per day. As a rule, they were organised as hearings over three consecutive days, followed by three or four days’ rest. The SIZO administration always arranged for him to have three meals a day. Pursuant to an order of the SIZO governor of 11 August 2003, during the weeks of his trial where there were more than three consecutive hearing days, the applicant received hot lunches arranged on the court premises by officer K. When the court weeks were shorter, he received packed lunches. Other meals were served to him in the SIZO.Transit between prisons60. In the summer of 2006 the applicant was transferred from Yenakieve Correctional Colony in the Donetsk Region (“Yenakieve Prison”) to Polytska Correctional Colony no. 76 in the Rivne Region (“Polytska Prison”), a lower security facility, to continue serving his sentence.[3]61. Having left Yenakieve Prison on 29 July 2006, the applicant arrived at Polytska[4] Prison on 22 September 2006. When in transit, he was held at Donetsk SIZO until 3 August 2006, Kharkiv SIZO from 3 to 14 August 2006, Dnipropetrovsk SIZO from 14 August to 14 September 2006, and Lviv SIZO from 14 September 2006 until his departure to the final destination prison.62. According to the applicant, during the several weeks of the transfer, he suffered inhuman and degrading treatment. In particular, the train compartments were overcrowded and unventilated. He was given no food, drink or access to sanitary facilities for lengthy periods of time. The transit cells at the pre-trial detention facilities in which he was held in between trains, with the exception of Kharkiv SIZO, had inadequate sanitary conditions, with toilets not separated from the living area, and poor light and ventilation. He was often deprived of basic necessities, such as bedsheets. The staff of the detention facilities treated the prisoners without any respect, forcing them to mop the floor and squat when outside of the cells and beating them up for not shaving. Prisoners’ correspondence was often not sent out.63. According to the Government, the travel documents containing information relevant to the conditions of the applicant’s transit were destroyed. However, they asserted that the conditions of his transport and detention at transit points had been reasonably adapted to meet his needs. Prison train carriages were of a standard size, designed to accommodate up to eighty people. They contained large compartments measuring 3.5 sq. m, designed to accommodate twelve people, and smaller compartments of 2.5 sq. m, designed to accommodate five people. It was possible to put sixteen people in the large compartments and six in the smaller compartments during trips that took less than four hours. All train carriages had artificial ventilation, and it was also possible to open the windows.RELEVANT DOMESTIC LAW and internationaL material64. The relevant provisions of the Code of Criminal Procedure of 1960 governing the review of criminal cases by the Supreme Court, as in force at the material time, can be found in the Court’s judgment in the case of Sobko v. Ukraine (no. 15102/10, § 41, 17 December 2015).65. Article 109 of the Criminal Code of 2001 (as in force at the time) provided that actions aimed at forcefully changing or overthrowing the constitutional order or taking over the government were a criminal offence. The relevant part (Article 109 § 3) provided that public calls to violently change or overthrow the constitutional order or take over the government, as well as dissemination of printed material containing calls to commit such actions, if committed by an organised group or through the mass media, was punishable by deprivation of liberty or imprisonment of up to five years.66. Extracts from the reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) following the Committee’s visits to Ukraine in 1998 to 2002 concerning the conditions in which detainees were being transferred from one place of detention to another can be found in the judgment in the case of Andrey Yakovenko v. Ukraine (no. 63727/11, §§ 70-73, 13 March 2014).THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION67. The applicant complained that the conditions of his detention, including the physical, sanitary and healthcare arrangements in the SIZO, the conditions in which he was taken to the court and back, as well as the conditions of his transfer from Yenakieve Prison to Polytska[5] Prison, had been incompatible with human dignity. He relied on Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Physical conditions of detention in the SIZOThe parties’ submissions68. The applicant maintained that the conditions of his detention had been incompatible with Article 3 of the Convention.69. Referring to the applicant’s initial description of the conditions of his detention in the SIZO (see paragraph 49 above), the Government submitted that as his complaint concerned only a few specific aspects of his detention, they could only assume that he had been satisfied with the remaining conditions in which he had been detained. They claimed that the applicant’s allegations raised before the Court were not supported by any evidence and were therefore wholly unsubstantiated. In addition, he had failed to show that any of the conditions about which he had complained to the Court – or even their cumulative effect – had been such as to subject him to distress of an intensity exceeding the unavoidable level of suffering inherent in deprivation of liberty.70. The Government further submitted that the applicant, who had been represented by a lawyer at domestic level, should have raised his complaints about the material conditions of his detention with the prosecutor’s office and the SIZO administration. His detention problems had not been of a structural nature and thus could have been resolved. They concluded by stating that, in any event, the applicant’s complaint should be rejected for non-exhaustion of domestic remedies.71. Lastly, the Government submitted that the applicant had not complained of overcrowding in his cells either to the domestic authorities or the Court, and that this part of his application was therefore incompatible ratione personae with the Convention provisions.72. In his reply to the Government’s observations, the applicant, in addition to his initial submissions, raised the issue of poor material conditions in his cells, providing a rather detailed account in this regard (see paragraph 51 above). He also referred to numerous online and other public sources describing conditions of detention at the SIZO, arguing that the information was sufficient to draw the conclusion that the conditions were incompatible with Article 3 of the Convention and were indicative of a structural problem.73. The applicant maintained that he had not been required to exhaust the domestic remedies suggested by the Government, as they were ineffective and, given that he had been a detainee, could also have resulted in repercussions. He submitted, without providing details, that when he had complained about the conditions of his detention to the SIZO administration, he had either been offered only a partial solution to his problems – as it had not been possible in practice to resolve them in full – or forced to withdraw his complaints.74. Lastly, the applicant submitted that during the trial in his criminal case he and his co-defendants had complained about the conditions of their detention in the SIZO and the trial court had ordered the prosecutor to check these allegations. The only improvement that this had led to was the ability for detainees to take a shower once a week.The Court’s assessment(a)   Admissibility75.

Article of the Convention at issue: Article 13
Outcome: violation