FOURTH SECTION         CASE OF BAKCHIZHOV v. UKRAINE (Application no. 24874/08)        JUDGMENT      STRASBOURG 30 October 2018   This judgment is final but it may be subject to editorial revision.In the case of Bakchizhov v. Ukraine,The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Faris Vehabović, President, Carlo Ranzoni, Péter Paczolay, judges,and Andrea Tamietti, Deputy Section Registrar,Having deliberated in private on 9 October 2018,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 24874/08) 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 Aleksandr Viktorovich Bakchizhov (“the applicant”), on 7 May 2008.2. The applicant, who had been granted legal aid, was represented by Mr M.O. Tarakhkalo, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice.3. On 11 January 2011 notice of the application was given to the Government. On 9 October 2013 the Government were invited to comment on the applicant’s complaints concerning his alleged ill-treatment in prison, the poor conditions of his detention, his lack of adequate medical assistance and the absence of an effective remedy in this respect, as well as his complaints of forced labour in prison, monitoring of his correspondence by the prison administration and hindrance of his right of individual application. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.4. The Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1969 and lives in Kyiv.6. On 22 January 2007 the first-instance court found the applicant guilty of inflicting bodily injuries on another individual and sentenced him to five years’ imprisonment.7. On 28 March 2007 and 23 October 2007 the Kyiv Regional Court of Appeal and the Supreme Court respectively upheld the applicant’s conviction.8. From 13 April 2007 to 17 June 2011 the applicant had been serving his sentence in Boryspil Correctional Colony (“the prison”).9. On 17 June 2011 he was released on probation.A. Detention in the prison1. The applicant’s account10. In his initial submissions, the applicant stated that he had been detained in dirty cells with poor ventilation and insufficient heating in winter. Inmates suffering from HIV and tuberculosis were kept together with healthy prisoners. The food and water provided to him and other prisoners were unsatisfactory and hazardous to their health.11. In his reply to the Government’s observations, the applicant also submitted that the cells had been overcrowded. Without specifying the periods of his detention in particular cells, he stated that he had been held in four cells, with the following characteristics: - cell 1, measuring about 70 square metres and accommodating 50 prisoners;- cell 2, measuring about 100-120 square metres and accommodating 85 prisoners; - cell 3, measuring about 120-130 square metres and accommodating 110 prisoners; - cell 4, measuring about 45 square metres and accommodating 35 prisoners.12. Prisoners were often subjected to ill-treatment by guards, which included arbitrary solitary confinement in disciplinary cells, verbal and physical abuse and threats. On many occasions during the daytime, while the prisoners were absent, searches were carried out in the applicant’s cell, as a result of which the cell was left in a mess and some personal belongings and documents from the applicant’s case file went missing. Some searches had been carried out at night. As a result, the applicant experienced fear and stress.13. No adequate medical assistance was provided to the applicant during his imprisonment. In particular, he did not undergo a thorough medical examination and no long-term strategy for his medical treatment was drawn up. He only received occasional and symptomatic treatment.14. Under the threat of disciplinary punishment, the applicant was forced to work overtime, often for twelve to fourteen hours per day and seven days per week. He did not receive adequate remuneration for the work done.15. The prison authorities screened all the applicant’s correspondence, including letters to and from the Court, and selectively failed to send letters, or delayed sending or delivering them. For example, his letter of 23 February 2009 to the Court (which the Court, in fact, received in due time) was not sent by the prison administration and the Court’s letter of 21 January 2011 was received by him a month after being dispatched by the Court. He therefore had to send some letters to the Court via friends who were at liberty. The applicant also submitted copies to the Court of letters he had received from it while in prison, one of which bore the prison stamp.16. According to the applicant, he brought the aforementioned matters to the attention of different authorities, including the prosecutor’s office. However, those complaints were either not dispatched or were ignored.2. The Government’s account(a)  Material conditions of detention17. The Government challenged the trustworthiness of part of the applicant’s submissions concerning the conditions of his detention, specifically his allegations that he had been detained in cells with poor sanitary and hygiene conditions together with inmates suffering from tuberculosis. They contended in this respect that the applicant had failed to support the allegations with any evidence.18. The Government submitted that in accordance with domestic legislation, inmates suffering from tuberculosis were detained separately from other prisoners. The relevant medical tests were performed once a year to reveal those affected by this disease.19. The food and water were regularly checked and were of adequate quality. The heating functioned adequately and the temperature in the cell in winter was between 18oC and 20oC. The sanitary conditions were appropriate. In support of their account of the facts, the Government submitted: information notes concerning living conditions in the prison, issued by the prison governor in reply to a request from the Government; an extract from the applicant’s detention card concerning the provision of bedding; and records of completed disinfection operations carried out in the prison in July and October 2011.(b)  Medical assistance20. The Government submitted that throughout the period of his detention in the prison the applicant had been provided with adequate treatment for different medical issues he had complained of and his health had generally remained stable.21. According to the summary of the applicant’s medical record submitted by the Government, upon arrival at the prison in April 2007 the applicant underwent a medical examination and was found to be healthy; he did not request medical assistance until March 2009.22. On 2 March 2009 the applicant was diagnosed with acute exacerbation of chronic bronchitis and was provided with appropriate treatment.23. On 5 March and 5 April 2009 the applicant was diagnosed with lumbar radiculoneuritis and prescribed appropriate treatment (diclofenac and menovazin).24. On 23 September 2008 and 29 April 2009 the applicant was found to be suffering from dermatitis and prescribed appropriate treatment.25. On 12 May 2010 the applicant was diagnosed with possible hypertension and prescribed treatment.(c)  Other issues relating to the applicant’s detention26. The Government could not provide any factual information about whether any force had been applied to the applicant by prison guards, or about the searches conducted in his cell, because the time-limit for keeping the relevant documents had expired and the records had been destroyed. They further stated that the applicant’s ill-treatment complaint was couched in very general terms and not supported by evidence.27. The Government challenged the trustworthiness of the applicant’s submissions concerning his forced labour. They submitted that he had performed work that prisoners were normally required to perform under the relevant domestic legislation and had received remuneration accordingly. He had normally performed the tasks of a service worker (господарча обслуга). When he had refused job offers, he had assisted unpaid with different kinds of prison maintenance work, for no more than two hours a day.28. The Government provided no information as regards the applicant’s allegation that his correspondence had been monitored by the prison administration. As regards the applicant’s communication with the Court, they denied that all the letters sent to him had been opened. According to a certificate issued by the prison governor, to which the Government referred, the applicant had sent only one letter to the Court, on 3 December 2008, and had received no reply.29. Lastly, the Government contended that the applicant had made no complaints to the domestic authorities concerning the material conditions of his detention, his alleged ill-treatment and the poor medical assistance provided to him.B. Alleged lack of access to the case file30. On 7 May 2008 the applicant lodged the present application with the Court.31. On a number of occasions before and after his application to the Court the applicant, at his request, was provided with copies of different documents from his case file, including judgments of 22 January 2007 and 28 March 2007 in his criminal case, his indictment and appeals against his conviction.32. By letters of 8 and 15 September 2008 the Brovary Town Court, at which his case file was kept, informed the applicant, inter alia, that the case file did not contain his cassation appeals or any replies from or judgments of the Supreme Court. The applicant’s request for a copy of his entire criminal case file was refused by the Brovary Town Court as having no basis in law.33. By a letter dated 14 January 2009, the Court invited the applicant to submit a copy of the judgment of the Supreme Court of 23 October 2007. Further to this letter, on 7 February 2009 the applicant submitted requests to the Brovary Town Court and the Supreme Court, asking for a copy of their refusals to provide him with the judgment requested or a copy of his request with an acknowledgment of receipt.34. On 17 February 2009 the Brovary Town Court informed the applicant that the case file did not contain any letters or judgments of the Supreme Court.35. On 9 April 2009 the applicant was provided with a copy of the Supreme Court’s judgment in his criminal case and on 13 April 2009 he submitted it to the Court.36. On 12 September 2009, at his request, the applicant was familiarised with records relating to his detention in the prison.37. After his release from the prison on 17 June 2011, the applicant was given full access to his criminal case file.THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION38. The applicant complained that he had been subjected to inhuman conditions of detention, had not been provided with adequate medical assistance and had been ill-treated by prison guards.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.”A. Admissibility1. Alleged ill-treatment in prison39. At the outset, the Court considers that the applicant’s complaint that he was subjected to ill-treatment in prison is unclear and lacking in detail. To the extent that it refers to some occasional physical treatment by prison guards, no details whatsoever about the relevant events have been provided by the applicant and there is no evidence in the case file of any force being exerted on him.40. In so far as the applicant may be understood to be complaining under this head about the stress he had suffered because of the searches conducted by prison guards (see paragraph 12 above), the Court is of the opinion that his suffering as a result of the searches did not reach the requisite level of severity to amount to inhuman or degrading treatment.41. Furthermore, there is no evidence that some of the applicant’s documents went missing after the searches, as alleged by him, and it does not appear that the applicant has raised a complaint on that account before the domestic authorities. Finally, the applicant’s allegation of a general negative attitude on the part of the prison administration towards prisoners is of a general character and unsupported by evidence.42.

Outcome for Article 3: violation