FIFTH SECTION      CASE OF BELYAEV AND DIGTYAR v. UKRAINE (Applications nos. 16984/04 and 9947/05)      JUDGMENT   STRASBOURG 16 February 2012 FINAL 16/05/2012 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Belyaev and Digtyar v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Dean Spielmann, President, Elisabet Fura, Karel Jungwiert, Mark Villiger, Ann Power-Forde, Ganna Yudkivska, André Potocki, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 24 January 2012,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in two applications (nos. 16984/04 and 9947/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Mikhail Igorevich Belyaev (“the first appalicant”) and Mr Aleksandr Vladimirovich Digtyar (“the second applicant”), on 20 April 2004 and 20 August 2004 respectively.2. The applicants, who had been granted legal aid, were represented by Ms R. Ovchynnykova, a lawyer practising in Konotop. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, succeeded by Ms V. Lutkovska.3. The applicants alleged, in particular, that the conditions of their pre-trial detention had been incompatible with Article 3 of the Convention, their right to correspondence had not been respected, as required by Article 8 of the Convention, and that they had been hindered from freely communicating with the Court, contrary to Article 34 of the Convention.4. On 12 January 2010 the Court declared the applications partly inadmissible and decided to communicate the above complaints to the Government. It also decided to rule on the admissibility and merits of the remaining parts of the applications at the same time (Article 29 § 1).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicants were born in 1981 and 1979 respectively and are currently serving life sentences in prison.A. Pre-trial detention of the applicants6. The second applicant was held in Sumy no. 25 Pre-Trial Detention Centre (“the Sumy SIZO”) from 6 February 2001 to 28 August 2004, except for the period between 24 July 2002 and 12 August 2002 when he was moved to another detention facility.7. The first applicant was held in the Sumy SIZO from 4 April 2002 to 28 August 2004 except for the period between 30 August 2003 and 17 September 2003 when he was moved to another detention facility.8. On 28 August 2004 both applicants were moved to Romny no. 56 Prison (“Romny Prison”) to serve their life sentences.1. The applicants’ correspondence during their pre-trial detention9. On 29 January and 1 July 2003 and 27 January 2004 the second applicant attempted to send letters to the Court via the postal service of the Sumy SIZO.10. On 26 November 2003 and 2 and 9 February 2004 the first applicant attempted to send letters to the Court via the postal service of the Sumy SIZO.11. According to the applicants, these letters were read by the officials of the Sumy SIZO and not sent to the Court.12. In the same way, the applicants tried to send letters to other international institutions, such as the Council of Europe Commissioner for Human Rights, the Office of the High Commissioner for Human Rights, the UN Human Rights Committee, the UN Commission on Human Rights, and the UN Committee Against Torture.13. These letters were also allegedly screened by the officials of the Sumy SIZO and not sent to the addressees.2. Conditions of the applicants’ pre-trial detention14. According to the applicants, the conditions of their detention in the Sumy SIZO were unsatisfactory. The applicants were held together in various cells, each of them measuring 4.5 sq. m with the sanitary unit covering 1.2 sq. m of that space. The cells thus allowed only 3.3 sq. m of living space for both applicants, which amounted to 1.65 sq. m per applicant.15. The cells were dark, dirty, and cold in winter and hot in summer, which gave rise to various illnesses. For at least two years there was no hot water supply. No winter footwear was supplied, while the inmates were prohibited from wearing their own footwear. As a result, in winter the applicants could not benefit from their entitlement to daily open air physical exercise. Their bed linen consisted only of a sheet. The applicants were not provided with any medical assistance in respect of their heart conditions, while keeping and administering any medicine in the cell was forbidden.16. The applicants complained to the domestic authorities on account of the physical conditions of their detention in the Sumy SIZO. In particular, on 16 January, 14 June and 25 July 2004 the relevant complaints were handed to the staff of the Sumy SIZO for onward dispatch to the domestic authorities.17. According to the Government, the cells in which the applicants were detained measured 5 sq. m and were equipped with the requisite furniture. There was a window and a sanitary unit and washstand in each cell. The temperature was at least 18 degrees Celsius during winter. The water supply, lighting system and sanitation were appropriate. The showers were made available once per week. Detainees’ clothes and bed linen were regularly changed. In support of their account of the facts, the Government submitted reports prepared in 2010 by the officials responsible for the maintenance of the facility.18. As regards medical assistance, the Government submitted that during their detention in the Sumy SIZO, the first applicant was medically examined thirty-one times and the second applicant was examined forty-six times. The applicants were x-rayed regularly to identify any signs of lung diseases and provided with appropriate treatment. They were also assessed by psychiatrists. During his detention in the Sumy SIZO the second applicant was diagnosed with and treated for gastritis. The applicants made no complaints as to their health or the insufficiency of the medical assistance offered by the medical unit of the facility. In support of their statements the Government submitted copies of the applicants’ medical records and a report of the governor of the Sumy SIZO concerning the regime of medical assistance provided to the detainees of that facility.B. The second applicant’s correspondence during his detention in Romny Prison19. In the course of his detention in Romny Prison, the second applicant attempted to send a number of letters, addressed to, among others, the following addressees:(i)            the national ombudsman (dated 20 December 2004 and 5 January and 14 February 2005);(ii)          the Office of the General Prosecutor of Ukraine (dated 25 October 2004 and 14 February and 14 July 2005);(iii)        the Coordination Committee of the President of Ukraine on Fighting Corruption and Organised Crime (dated 25 October 2004 and 4 January 2005);(iv)        the European Court of Human Rights (dated 26 July 2005); and(v)          the Council of Europe Commissioner for Human Rights (dated 26 July 2005).According to the second applicant, these letters were read by officials of Romny Prison and returned to him.C. Attempt to retract the application by the first applicant20. By letter of 12 August 2009 the applicant informed the Court that he wished to terminate the consideration of his application, claiming that his debts owed to the victims of the crimes he had committed had been covered by the State.21. By letter of 14 September 2009 the applicant informed the Court that the issue of his debts to the victims of the crimes had not been resolved by the State and he had been mislead by the authorities when asking the Court to terminate the consideration of his application. He therefore asked the Court to disregard the letter of 12 August 2009 and insisted on the continuation of the proceedings.II. RELEVANT DOMESTIC LAWA. The Pre-Trial Detention Act of 30 June 1993 (as worded at the material time)22. Section 13 of the Act provided, inter alia, for persons detained in custody to be able to correspond with relatives, other persons and legal entities upon the written consent of the authority in charge of the criminal case against the detainee concerned.The officials of the detention centre were required to monitor all detainees’ letters, except those addressed to the national ombudsman or a prosecutor.If a letter was related to the criminal case against the detainee concerned, it had to be handed over within three days for consideration by the authority in charge of the detainee’s criminal case. Letters containing information which might interfere with the administration of justice were not to be dispatched to the addressee but were to be handed over to the authority in charge of the detainee’s criminal case. The detainee and the prosecutor had to be informed of the interception made.If a letter was not related to the detainee’s criminal case, it had to be answered by the officials at the detention centre or sent on to the addressee.B. Code on the Enforcement of Sentences of 11 July 2003 (as worded at the material time)23. Article 113 of the Code provided, inter alia, that letters sent and received by prisoners would be monitored by prison officials. Letters addressed to the national ombudsman or a prosecutor would not be monitored.THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION24. The applicants complained of the physical conditions of their detention and of a lack of appropriate medical assistance in the Sumy SIZO. They referred to Article 3 of the Convention, which reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility1. The parties’ submissions25. The Government submitted that the applicants had not exhausted domestic remedies in respect of their complaints under Article 3 of the Convention. In particular, they should have complained to a prosecutor and the courts on that account.26. As to the alleged lack of medical assistance, the Government stated that the applicants had never complained of the inadequacy of their medical treatment to the medical staff of the facility. Moreover, the case file suggested that they had been regularly and appropriately examined by the medical staff and had been provided with any further medical assistance when necessary. They therefore considered that this aspect of the applicants’ complaints was manifestly ill-founded.27. The applicants claimed that they had sufficiently raised the matter before the authorities and that their complaints were well-founded.2. The Court’s assessment28. With respect to the alleged lack of medical assistance, the Court notes that it does not appear that the applicants ever complained to the medical staff of the detention facility, asking for medical assistance. The applicants’ assertion that their medical care was inappropriate is not supported by any factual information. At the same time, the materials submitted by the Government suggest that the applicants were medically examined on a regular basis and there is no indication of any failing on the part of the facility’s medical unit which would give rise to an issue under Article 3 of the Convention (see also Vergelskyy v. Ukraine, no. 19312/06, §§ 89-91, 12 March 2009, and Znaykin v. Ukraine, no. 37538/05, § 41, 7 October 2010). The Court therefore rejects this aspect of the case as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.29. The Court further notes that the applicants’ complaints concerning the physical conditions of their detention in the Sumy SIZO refer to periods of their detention which were interrupted by their removal to another detention facility. The Court therefore considers that the period of the first applicant’s detention prior to 17 September 2003 and the period of the second applicant’s detention prior to 12 August 2002 fall outside the six-month time-limit within which an applicant is required to lodge a complaint (see, for example, Malenko v. Ukraine, no. 18660/03, § 40, 19 February 2009).30. As to the Government’s plea of non-exhaustion in respect of the physical conditions of the applicant’s detention, the Court notes that, on a number of occasions, it has rejected similar objections when it has found that such complaints pointed to problems of a structural nature in the domestic prison system (see, for example, Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; Melnik v. Ukraine, no. 72286/01, §§ 69‑71, 28 March 2006; Koktysh v. Ukraine, no. 43707/07, § 86, 10 December 2009; and Znaykin, cited above, § 43).31. In the present case, the Court considers that the matters raised by the applicants under this head are also of a structural nature. It observes that the authorities must have been sufficiently aware of the applicants’ situation – especially given the fact that they raised those issues before them (see paragraph 16).

Outcome for Article 34: violation