FIFTH SECTION      CASE OF DOLGIKH v. UKRAINE (Application no. 34697/04)             JUDGMENT    STRASBOURG 11 July 2019   This judgment is final but it may be subject to editorial revision.In the case of Dolgikh v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Síofra O’Leary, President, Ganna Yudkivska, Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 18 June 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 34697/04) 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 Yuriy Mikhaylovich Dolgikh (“the applicant”), on 10 September 2004.2. The applicant, who had been granted legal aid, was represented most recently by Ms Y. Zayikina, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice.3. The applicant complained, in the main: under Article 3 of the Convention of his ill-treatment by the police and the conditions of his detention in prison; under Article 6 § 1 taken in conjunction with Article 6 § 3 (b) and (c) that his defence during proceedings before the Supreme Court had been hindered; under Article 8 that his correspondence had been intercepted and monitored by the prison administration and his family visits during his post-conviction detention had been limited; under Article 13 of the absence of an effective domestic remedy for his complaints under Articles 3 and 8; and under Article 34 that his right of individual application had been hindered.4. On 3 April 2013 the Court gave notice of the application to the Government.5. The Government and the applicant submitted observations on the admissibility and merits of the application on 17 September and 27 November 2013 respectively.THE FACTSI. THE CIRCUMSTANCES OF THE CASE6. The applicant was born in 1974 and is currently detained in Berdychivska Correctional Colony no. 70 (Бердичівська виправна колонія № 70, hereinafter “prison no. 70”).A. Criminal proceedings against the applicant7. Between 1995 and 1999 a number of crimes were committed in the Donetsk Region by a gang, including multiple incidents of murder, rape, robbery and theft.8. In the course of the investigation into those crimes, the authorities identified the applicant as a member of the gang.9. In February 1999 the police arrested the applicant in connection with the investigation into those crimes.10. According to the applicant, he was ill-treated by the police and made self-incriminating statements, but he submitted no documentary evidence in that regard. No traces of ill-treatment were found on the applicant’s body during a medical examination on 4 March 1999.11. On 22 February 1999 the applicant was questioned in the presence of a lawyer, K., appointed for him by the police, and confessed to having committed some of the crimes under investigation. During that questioning the applicant was informed of his procedural rights, including the right to be assisted by a lawyer in the course of investigative actions.12. The applicant’s lawyer took part in a number of subsequent investigative actions. Between 27 December 1999 and 29 May 2000 the lawyer was present while the applicant was questioned on various dates and familiarised himself with the case file, which at the time consisted of thirty‑four volumes.13. During some of the investigative actions the applicant was unrepresented, having signed written statements confirming that he did not need legal assistance.14. When questioned in the presence of his lawyer, as well as in the absence of his lawyer, the applicant confessed to having committed a number of the alleged crimes of which the gang was suspected.15. On an unspecified date the case was referred to the Donetsk Court of Appeal for trial.16. During the trial the applicant essentially confirmed his self-incriminating statements. He also complained to the Donetsk Court of Appeal that he had been ill-treated by the police in February 1999.17. On 21 August 2001 the Donetsk Court of Appeal found that the applicant and seven other individuals had belonged to a gang and were guilty of a number of serious crimes which they had committed between 1995 and 1999, including several counts of aggravated murder, rape, robbery, theft and the unlawful possession of arms. The applicant was sentenced to life imprisonment with confiscation of all his property.18. In its judgment of 21 August 2001, the Court of Appeal relied on various pieces of evidence, including information obtained during searches, experts’ reports, and statements by witnesses and the applicant’s co‑defendants obtained during the investigation and trial. The court noted that allegations by the applicant and other defendants that their self‑incriminating statements at the investigation stage had been obtained under duress were unfounded. In particular, as regards the applicant, the court noted that his medical examination of 4 March 1999 had not revealed any injuries on his body, and that a police officer who had been questioned about those allegations during the trial had denied that any violence had been used against the applicant or other defendants in the course of the investigations. The medical expert who had examined the applicant on 4 March 1999 (see paragraph 10 above) was also questioned by the court, and he confirmed the accuracy of the findings in his medical report.19. In September 2001 the applicant asked the Court of Appeal to replace K. with another lawyer, alleging that K. did not “care” about the outcome of the case. No action was taken as regards that request.20. The applicant also asked the Court of Appeal to allow him to meet with a lawyer in the detention facility in order to examine the case file, but that request was refused for the reason that the law provided for no such possibility.21. According to the applicant, after his conviction, K. did not provide him with legal assistance for about a year, and he had no access to any other lawyer.22. In December 2001 the applicant lodged a cassation appeal with the Supreme Court, challenging the Court of Appeal’s factual findings and how it had applied the criminal law. The applicant also complained that his right to defence had been violated because some of the investigative actions had been carried out in the absence of a lawyer during the pre-trial investigation. The applicant alleged that he had been ill-treated by the police in February 1999, and stated that he had not raised his complaints at the investigation stage because the investigator had told him that those matters would be dealt with at the trial. The applicant also stated that many of the documents in his criminal case had been forged and he had not been given the possibility to familiarise himself with various expert reports, without providing further details in that regard.23. In his cassation appeal, the applicant also complained that K. had not visited him in detention after his conviction, and thus he had not been provided with legal assistance.24. In October 2003 the applicant started to examine the case file, which at the time consisted of thirty-eight volumes and was brought in parts by a clerk from the Court of Appeal to the detention facility where the applicant was held at the time.25. As the case file was allegedly not in order, the applicant refused to examine one of its volumes. For that reason, on 1 December 2003 the Court of Appeal set a schedule for his examination of the case file.26. In total, the applicant examined the case file for forty-nine days and examined twenty-six complete volumes.27. On 29 March 2004 the Court of Appeal decided to terminate the applicant’s examination of the case file, mainly for the reason that he had been delaying examining the case file.28. On 24 May 2004 the applicant amended his appeal in cassation, in particular raising various complaints as to how the evidence had been collected and assessed at the investigation stage. He also complained that he had been unlawfully and groundlessly denied the opportunity to examine the case file after his conviction.29. Between June and August 2004 the applicant made further written submissions to the Supreme Court, essentially reiterating his complaints that he had been unfairly and unlawfully convicted and had been unable to examine the entire case file and avail himself of legal assistance after his conviction.30. On 19 August 2004 the Supreme Court heard the case in the presence of the applicant, one of his co-defendants and a prosecutor. The Supreme Court upheld the judgment of 21 August 2001, changing the legal classification of some of the crimes committed by the applicant and one of his co-defendants. As to the remaining part of the case, the Supreme Court found no violation of substantive or procedural law. As regards the applicant’s allegations of ill-treatment by the police, the Supreme Court noted that they had been checked by the Court of Appeal and upheld its finding that the allegations were unfounded.B. The applicant’s detention in prison1. Submissions by the applicant31. On 27 June 2005 the applicant was transferred from a temporary detention facility (“SIZO”) to prison no. 70 to serve his sentence.32. According to the applicant, he was detained with seven other inmates in cells measuring between 13 and 14 square metres, in poor sanitary and hygiene conditions. The cells were dark, stuffy and full of rodents and cockroaches. In winter, the heating in the cells was often switched off, and the tap water was unsuitable for drinking, smelt muddy and contained rust and pieces of metal. A guard dog was always present in the corridor when inmates received food, and in terms of nutrition the daily ration did not correspond to the applicant’s actual needs or the statutory norms. He was often denied a one-hour daily walk and sometimes had to wait for two weeks to take a shower. The courtyard for daily walks measured only 11 square metres and the applicant had to share it with eight other detainees. Detainees were frequently moved between cells and healthy detainees were put into cells where detainees suffering from tuberculosis had previously been held.33. The applicant stated that, unlike female prisoners sentenced to life imprisonment, he had not been entitled to have “long-term” family visits (lasting up to three days). He had been entitled to have only “short-term” family visits (lasting up to four hours) no more than once every six months, and meetings with his mother had been held in the presence of prison guards.34. The applicant further stated that the prison authorities had intercepted, screened and censored his correspondence.2. Submissions by the Government35. The Government stated that in prison no. 70 there were seventeen cells in which life prisoners were held. Those cells measured 149 square metres in total. Each cell accommodated up to three inmates, with about 3 square metres of space for each inmate. The cells had glazed windows, and daylight and electric lighting were available in them. In addition, they were equipped with mechanical ventilation. There had been no outbreaks of diseases. Inmates received food in their cells and there was no dog in the corridor. Tap water was checked by the State Epidemiological Service and was of an appropriate quality. The food given to the applicant was satisfactory in terms of quality and quantity. Inmates were allowed to take a shower and change their underwear and bedding once a week. Inmates sentenced to life imprisonment were allowed to have a one-hour daily walk in one of eight courtyards which had a total surface area of 88.4 square metres. Such inmates were moved from one cell to another every two weeks, in accordance with a schedule approved by the prison administration. Inmates received medical aid if they required it, and sick inmates posing a risk to other inmates’ health were isolated in separate cells.C. Application to the Court1. Submissions by the applicant36. On 9 September 2004 the applicant sent a letter to the Court, seeking to lodge an official application against Ukraine. That letter and the applicant’s subsequent letters sent to the Court in 2004-2007 were accompanied by covering letters from the SIZO and later from the prison administration, briefly summarising the nature of the correspondence.37. The applicant stated that the SIZO administration had also screened the letters sent to him by the Court. He provided several copies of letters which he had received from the Court in 2004-2005 bearing the SIZO administration’s stamp. He also stated that for an unspecified period of time the administration had not allowed him to make or keep copies of letters sent to him by the domestic authorities and the Court.38. In 2004-2007 the Court asked the applicant to submit copies of various documents from the domestic case file, including court decisions, his appeals and documents relating to his complaints under Article 3 of the Convention. The applicant stated that his requests for such copies had often been refused by the prison authorities and the domestic courts, mainly owing to the absence of legal provisions entitling him to receive such copies. Over time, he had obtained copies of many of the requested documents (he had either been allowed to make copies by hand or had been given printed copies) and had submitted them to the Court. Notably, he submitted copies of his complaints to various authorities, including prosecutors and courts, alleging that the prison administration and the State Prison Department had failed to ensure adequate conditions of his detention in the prison no. 70 and had violated his rights to respect for his correspondence and to family visits. The principal details of those complaints are set out in paragraphs 32-34 above. The applicant also submitted copies of several replies from the prison authorities and prosecutors stating generally that the conditions of his detention had been in compliance with the relevant regulations, without addressing in detail all his complaints in that regard.2. Submissions by the Government39. The Government stated that copies of all the documents which the applicant had needed for his application had been provided to either him or his mother.40. The Government further stated that during his detention in prison no. 70 the applicant had received nine letters from the Court. Those letters had not been opened by the prison authorities and had been handed to him in sealed envelopes.II. RELEVANT DOMESTIC AND INTERNATIONAL MATERIAL41. In 2013 the Ukrainian Parliamentary Commissioner for Human Rights published a special report dedicated to the monitoring of conditions in detention facilities and prisons in Ukraine. According to the report, in 2012 the Commissioner visited a number of prisons, including prison no. 70. The Commissioner noted, among other things, that the failure to comply with the norms providing for 2.5 square metres of living space per person in temporary detention centres and 4 square metres per person in prisons formed part of “typical violations of human rights” in all the detention facilities and prisons visited. Other “typical violations of human rights” in the facilities which the Ukrainian Parliamentary Commissioner for Human Rights visited included the insufficient artificial and natural lighting, the absence of mechanical ventilation, the excessive humidity and the poor state of the heating system. It was also noted that the detention of those suffering from tuberculosis together with healthy inmates was a “typical violation of human rights”.42. On 5 September 2014 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment published a report on its visit to Ukraine from 9 to 21 October 2013, the relevant part of which also contains information about its visit to several Ukrainian prisons in 2012 and reads as follows (references omitted):“...44. In the course of the 2012 visit, the delegation reviewed the situation of the 21 women sentenced to life imprisonment held in the medium-security unit of Correctional Colony No. 54 in Kharkiv and the 38 male life-sentenced prisoners in the maximum-security unit of Dnipropetrovsk Correctional Colony No. 89. It also met one life-sentenced prisoner in the hospital of Correctional Colony No. 81.45. Following an amendment to the Criminal Executive Code in 2010, the national minimum standard of living space per prisoner was increased to 4 m² in correctional and educational colonies. This is a step in the right direction.However, it appeared during the 2012 visit that this standard was not always respected in dormitories/cells accommodating female and male prisoners serving life sentences. For instance, at Colony No. 54, up to four women were accommodated in a dormitory of about 12 m². Nevertheless, this state of affairs was alleviated by the open-door policy within the confines of their unit. At Colony No. 89, the situation of men was worse. By way of example, three men spent most of their time locked up in a cell measuring some 10 m² (including the in-cell toilet) and equipped with four beds....”THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS REGARDS THE CONDITIONS OF DETENTION IN PRISON No. 7043. The applicant complained that in prison no. 70 he had been subjected to conditions of detention contrary to Article 3 of the Convention, primarily on account of overcrowding and inadequate material conditions (see paragraph 32 above containing a summary of the applicant’s submissions in that regard). That provision reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility44. The Court notes that the applicant’s complaints, in so far as they concern his detention in prison no. 70 between 27 June 2005 and 3 April 2013 – the period of his detention on which the parties have commented (see paragraphs 4, 5, 31, 32 and 35 above) – are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.B. Merits45. Relying on their factual submissions (see paragraph 35 above), the Government stated that the conditions of the applicant’s detention in prison no. 70 had been adequate and had met the requirements of Article 3 of the Convention.46. The Court reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić v. Croatia [GC], no 7334/13, §§ 96‑101 and 136-41, ECHR 2016).47. In the present case, the applicant made detailed submissions concerning the material conditions of his detention in the prison no. 70 (see paragraph 32 above), from which it transpires that for around eight years he had been detained in cells that allowed him personal space of 1.75 square metres, which is well below the minimum standard of 3 square metres in multi-occupancy accommodation (see Muršić, cited above, § 110). In their turn, the Government contended that the minimum standard at issue had been respected in the applicant’s prison (see paragraph 35 above). However, the Government failed to specify the exact size of the cells in which the applicant had been detained. Nor did they specify how many inmates had actually occupied those cells at the material time. In the absence of such information, the Court is inclined to accord weight to the applicant’s factual submissions on this issue to the extent that the minimum standard of 3 square metres of personal space had not been respected during his detention (see Aleksandr Vladimirovich Smirnov v. Ukraine, no. 69250/11, § 60, 13 March 2014, and Kiyashko v. Ukraine [Committee], no. 37240/07, §§ 86-87, 23 February 2017). In this connection, the Court also has regard to the findings of the CPT concerning its visit in 2012 to another prison, where male life prisoners, like the applicant, were detained at the material time. Those findings suggest that the standard of 3 square meters of floor space per inmate, that is without counting in-cell sanitary facility (see Muršić, cited above, § 114), might not have been respected in that prison (see paragraph 42 above).48. In the light of the foregoing, a strong presumption of a violation of Article 3 thus arises in the present case (see Muršić, cited above, § 137). The Government did not demonstrate that there were factors capable of adequately compensating for the scarce allocation of personal space to the applicant in order to rebut that presumption. To a certain extent, their submissions tended to support his allegations that most of the time – at least, twenty-three hours per day – he had remained confined to his cell, while the size of the outdoor exercise facilities – measuring around 11 square metres – was very restricted, regard being had to the applicant’s uncontested statement that he had had to share those facilities with eight other detainees (see paragraphs 32 and 35 above). Furthermore, the applicant’s allegations that there were problems with lighting, ventilation and heating, which are supported by the findings of the Ukrainian Parliamentary Commissioner for Human Rights who visited the applicant’s prison in 2012 (see paragraph 41 above), suggest that the applicant’s lack of personal space might have been aggravated by those problems (see Aleksandr Vladimirovich Smirnov, cited above, § 60).49. The Court has already examined applicants’ complaints of overcrowding similar to those in the present case, albeit relating to other prisons in Ukraine, and found violations of Article 3 on that account (see, among many other authorities, Melnik v. Ukraine, no. 72286/01, §§ 102, 103 and 112, 28 March 2006; Aleksandr Vladimirovich Smirnov, cited above, §§ 58-61; and, for a more recent example, Lavrinyuk v. Ukraine [Committee], no. 1858/08, §§ 31-34, 4 December 2018).50.

Outcome for Article 3: violation