FOURTH SECTION         CASE OF LAVRINYUK v. UKRAINE (Application no. 1858/08)        JUDGMENT       STRASBOURG 4 December 2018   This judgment is final but it may be subject to editorial revision.In the case of Lavrinyuk 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 13 November 2018,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 1858/08) 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 Vladimir Andreyevich Lavrinyuk (“the applicant”), on 11 October 2007.2. 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.3. On 11 January 2011 notice of the application was given to the Government. At that stage of the proceedings the Government were not invited to submit observations on the case. On 9 October 2013 the Government were invited to comment on the complaints concerning the poor conditions of the applicant’s detention and transportation, unfairness of the criminal proceedings against him, an alleged interference with his rights of individual petition and of respect for his correspondence and the alleged lack of an effective domestic remedy. 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 application by a Committee. Having considered the Government’s objection, the Court rejects it.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1949 and lives in Zmiyiv.A. Criminal proceedings against the applicant6. On 7 April 2005 the Kyivskiy District Court of Kharkiv found the applicant guilty of theft and of two counts of deliberately causing bodily harm to his wife and G., and sentenced him to one year’s imprisonment for the theft, one year’s imprisonment for deliberately causing bodily harm to G. and seven years’ imprisonment for deliberately causing bodily harm to his wife. Using the rule of absorption of more lenient punishment by a stricter one the applicant was given seven years’ imprisonment as a final sentence.7. On 29 November 2005 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) partly amended the first-instance judgment. Having considered that the theft was no longer classified as an offence, the appellate court terminated the proceedings with relation to the theft. In addition, as the applicant had continued to plead his innocence in relation the episode with G. and had objected to closing the proceedings in relation to that matter, and in view of the fact that meanwhile the offence had become time-barred, the Court of Appeal absolved the applicant from having to serve the sentence in respect of the episode with G. The remainder of the sentence, namely a term of seven years’ imprisonment for deliberately causing harm to the applicant’s wife, was upheld by the Court of Appeal.8. On 8 May 2007 the Supreme Court dismissed an appeal by the applicant on points of law as unsubstantiated and upheld the findings of the Court of Appeal.9. Between 4 April 2006 and 16 July 2010 the applicant served his sentence at the Romenska Correctional Colony (“the prison”).B. Conditions of the applicant’s detention in the prison1. The applicant’s account10. According to the applicant, he was detained in overcrowded cells with poor sanitary and hygiene conditions. The unit no. 8 in which he served his sentence consisted of three rooms with a total living area of 75.5 sq. m., a dining room, a shower room and a toilet room. From April to December 2006 the applicant shared his room with fifty other prisoners. As from December 2006 onwards he was confined in another room of the same unit, measuring 48 sq. m and accommodating twenty-six prisoners. No adequate access to sanitary facilities had been ensured: every ten inmates had to share a water tap and a lavatory. Once a week, prisoners were allowed to take a bath.11. On twelve occasions the applicant was transported for medical reasons from the prison to an inter-regional hospital and on four occasions to Temnivska Correctional Colony no. 100 in Kharkiv Region. The prison vans used for transportation consisted of two compartments of about 2 to 3 sq. m each, had no windows, and accommodated twelve inmates in each compartment. Likewise, railway carriages used for transporting prisoners consisted of several compartments of 2 to 3 sq. m each, had no ventilation, and accommodated twelve inmates in each compartment. Trips lasted for more than twelve hours in one direction. The applicant referred in this respect to the relevant reports of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (hereinafter, “the CPT”) in respect of their visits to Ukraine.2. The Government’s account12. According to the Government, the applicant was detained in unit no. 8, in which inmates suffering from tuberculosis were to serve their sentences. He was provided with an individual bunk and bedding. Having relied on certificates issued by the prison authorities in March 2014, attesting to the conditions of detention in the unit on that date, the Government submitted that the unit accommodated forty-two prisoners. The dormitory of the unit was of 75.5 sq. m. and consisted of three bedrooms measuring 10.1 sq. m, 34.8 sq. m, and 27.6 sq. m respectively, which were equipped with necessary furniture. The above-mentioned certificates further attested that apart from the sleeping rooms there was also a shower room, a toilet and a room for reheating food. The Government submitted that the unit also disposed other premises, such as rooms for educational work, storage rooms for food and personal belongings of prisoners and a drying room, which the applicant was free to use between 6 a.m. and 10 p.m. each day in order to compensate the scare attribution of space in his bedroom. They relied in this respect on printed copies of various photographs, taken in 2014, allegedly showing some of the above-mentioned premises of the unit. According to them, all areas were in satisfactory condition, were equipped with furniture, stock and household goods. In the shower room there was one water tap per ten inmates and one toilet per twelve inmates. According to the prison’s schedule, the inmates of the applicant’s unit had a bath once per week, and bedding and underwear would also be changed. The Government thus concluded that the applicant was detained in appropriate conditions which afforded him in total no less than 3 sq. m of personal space which was in compliance with relevant minimum standard set in the domestic law.13. The Government acknowledged the fact that, on a number of occasions, the applicant had been transported from the prison to different medical institutions. He had been taken in a prison van to the Romny railway station and had then continued his journey in a railway carriage specially equipped for transporting prisoners. However, they could not provide any details relating to the conditions of the applicant’s transportation because the time-limit for keeping the relevant documents had expired and the records had subsequently been destroyed. The Government therefore referred to domestic statutory provisions governing prisoners’ transportation.C. The application to the Court1. The applicant’s efforts to obtain certain documents for his application to the Court14. On 26 August 2008 the Court invited the applicant to submit copies of documents pertinent to his complaints, including his appeal and appeal on points of law.15. In his letter to the Court of 27 November 2008, the applicant stated that his request of 26 September 2008 for copies of the necessary documents had remained unanswered, even though there was evidence that the request had been received by the Kyivskiy District Court of Kharkiv.16. According to the Government, in 2004 and 2005, following the applicant’s requests, he had studied the case file in detail and had been served with copies of procedural documents in his case, save for a copy of his appeal on points of law, which was not available in the case file at the time. They provided no factual information as regards the applicant’s requests for documents submitted in 2008.17. On 16 July 2010 the applicant’s sentence came to an end and he was released from the prison (see paragraph 9 above). According to domestic law, his access to the case file following his release was not limited. There is no evidence that, after his release, the applicant applied to the relevant authorities with a request to have access to his case file or to have copies of documents made.2. Alleged interference with the applicant’s correspondence with the Court.18. The applicant alleged that the prison administration had deliberately delayed sending certain of his letters to the Court, had monitored his correspondence and had withheld documents attached to some of the complaints, which he had asked them to send to the Court. According to the applicant, he had also been persecuted by the administration of the prison for communicating with the Court. In particular, on an unspecified date in 2009 he had been placed in disciplinary detention for fifteen days.19. The prosecutor’s office examined the applicant’s grievances and found them to be unsubstantiated.20. The Court received all the letters referred to by the applicant with all their enclosures.II. RELEVANT INTERNATIONAL MATERIAL21. The relevant extracts from the reports of the CPT concerning conditions of transportation of detainees in Ukraine can be found in Yakovenko v. Ukraine (no. 15825/06, §§ 59-61, 25 October 2007).THE LAWI. SCOPE OF THE CASE22. The Court notes that in his reply to the Government’s observations of 20 June 2014, the applicant made a further complaint under Article 3 of the Convention that he had not been provided with adequate medical care while in detention.23. In the Court’s view, this further complaint is not an elaboration of his original complaints to the Court on which the parties have commented. The Court considers, therefore, that it is not appropriate to assess this complaint in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION24. The applicant complained that at the prison he had been subjected to conditions of detention which were contrary to Article 3 of the Convention, on account primarily of overcrowding in addition to poor sanitary and hygiene arrangements. He further complained about the conditions of his transportation to and from the prison.Article 3 reads as follows:“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”A. Admissibility25. The Government argued that this part of the applicant’s complaint was inadmissible for non-exhaustion of domestic remedies. They contended that the applicant could have raised his complaint before the public prosecutor in charge of supervising the prison authorities’ compliance with the law. Any decision taken by the prosecutor could have been further challenged before the domestic courts.26. The applicant alleged that the remedies referred to by the Government were ineffective and that he was therefore absolved from the obligation to exhaust them.27. The Court observes that it has rejected non-exhaustion arguments, similar to those raised by the Government in the present case, in a number of other cases where the complaints concerned problems of a structural nature in the domestic penitentiary system (see, for example, Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001-XI; Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Yakovenko v. Ukraine, no. 15825/06, §§ 75-76, 25 October 2007; Koktysh v. Ukraine, no. 43707/07, § 86, 10 December 2009; and Logvinenko v. Ukraine, no. 13448/07, § 57, 14 October 2010). It does not see any reason to depart from its previous approach in the present case and therefore dismisses the Government’s objection of non-exhaustion.28. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits29. The relevant elements of the parties’ submissions are set out in paragraphs 10 to 13 above.30. 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, either on its own or when taken together with other shortcomings (see Muršić v. Croatia [GC], no. 7334/13, §§ 96‑101 and 136-41, ECHR 2016).31. In the instant case the Court notes that the Government provided no information as to the particular conditions in which the applicant had been detained in the prison, including how many inmates had been held with the applicant in the cells during the relevant period. Their description of the general conditions of detention in the prison unit was based on information provided by the prison authorities in March 2014, attesting to the conditions of detention in the unit on that date (see paragraph 12 above), while the applicant was serving his sentence in the prison from April 2006 to July 2010 (see paragraph 9 above). At the same time, they did not deny the fact that the applicant was detained in overcrowded conditions, as alleged by him, but considered that possibility of using, at given times, additional premises of the unit would adequately compensate for the lack of space in the living area (see paragraph 12 above).32. In these circumstances, the Court cannot but give weight to the applicant’s submissions and conclude that for the major part of his detention in the prison he was confined in a compartment which allowed him less than 2 sq. m of personal space (see paragraph 10 above), which is significantly below the minimum standard of 3 sq. m in multi-occupancy accommodation (see Muršić, cited above, § 110).33. A strong presumption of a violation of Article 3 thus arises (see Muršić, cited above, § 137). The Government’s statement to the effect that there had been adequate compensation for such a scarce allocation of space in the living area as a result of the possibility of using additional space, such as a shower room, a dining room and storage rooms, is too vague to rebut that presumption, and it has not been shown by the Government that there were other factors capable of adequately compensating for the scarce allocation of personal space.34.

Outcome for Article 34: violation