FIFTH SECTIONCASE OF SMILYANSKAYA v. UKRAINE(Application no. 46196/11)      JUDGMENT STRASBOURG21 November 2019 This judgment is final but it may be subject to editorial revision.In the case of Smilyanskaya v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gabriele Kucsko-Stadlmayer, President, Yonko Grozev, Lado Chanturia, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 22 October 2019,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 46196/11) 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 Ukrainian national, Ms Viktoriya Gennadiyevna Smilyanskaya (“the applicant”), on 15 July 2011.2. The applicant, who had been granted legal aid, was initially represented by Ms Y. Zaikina, a lawyer practising in Kharkiv. She was succeeded by Ms N. Okhotnikova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.3. The applicant alleged, under Article 3 of the Convention, that the material conditions of her detention had been poor and that adequate medical treatment had not been available to her in detention. She also complained, under Article 5 of the Convention, that her pre-trial detention had been arbitrary, that the relevant court decisions had lacked reasoning, and that there had been no effective procedure available to her to challenge the lawfulness of her detention and receive compensation for the above violations.4. On 4 April 2018 the Government were given notice of the application.THE FACTSTHE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1969 and lives in Kharkiv.Criminal proceedings against the applicant6. On 13 January 2011 a criminal investigation was instituted against the applicant, who was suspected of being involved in the illegal purchase, storage, and trafficking of drugs.7. On 17 January 2011 she was arrested within the framework of the above investigation and placed in police custody. The investigator drew up a report on her arrest, making a general reference to Article 106 § 2 and Article 115 of the Code of Criminal Procedure.8. On 20 January 2011 the Kyivskyi District Court of Kharkiv (“the District Court”) extended the applicant’s police custody to ten days with a view to obtaining an assessment of her personality.9. On 27 January 2011 it ordered her detention for two months. The decision stated that she had been accused of a serious crime and could otherwise escape and hinder the investigation or continue with her criminal activity. No further details about those reasons were provided by the court.10. On 16 March, 27 April, and 16 May 2011 the applicant applied for release. The District Court further extended her detention for three, four, and five months respectively. Its decisions stated that she had been accused of a serious crime and that no other reasons which could justify changing the preventive measure had been presented to the court.11. On 16 March and 27 April 2011 the District Court, when considering whether to extend the applicant’s detention, dismissed her requests for release. No explanation was provided in its decisions. According to the applicant, her request for release of 16 May 2011 remained unanswered by the court.12. On an unspecified date (presumably in June 2011) the criminal case against the applicant, together with the relevant bill of indictment, was transferred to the District Court for consideration on the merits.13. On 1 November 2011 the court, having regard to the applicant’s state of health, released her on an undertaking not to abscond. In the course of the proceedings the District Court found that the applicant needed treatment at a specialist medical facility.14. According to the Government, the criminal case against the applicant is currently ongoing before the trial court.Conditions of detention in the Kharkiv SIZO15. According to the applicant, on 2 February 2011 she was placed in the Kharkiv Pre-trial Detention Centre (“the SIZO”).16. She was kept in cell no. 412 (from 2 February to 27 July 2011 and from 12 August to 1 November 2011) and in cell no. 409 (from 1 to 12 August 2011). Cell no. 412 measured 52.1 sq. m in total and housed twelve detainees, while cell no. 409 measured 18.1 sq. m in total and housed twenty-two detainees.17. The cells were damp and lacked ventilation. Most detainees smoked and the applicant, an asthma sufferer, experienced breathing difficulties. Outside walks lasted between ten to thirty minutes per day in a small yard measuring between 7 and 10 sq. m. The sanitary facilities were in the same space as the living area, and were not fully partitioned. Nutrition was poor and hygiene conditions were inadequate. Detainees did not have sufficient access to hot water and were allowed to shower only once or sometimes twice per week. An artificial light was switched on in the cells day and night.18. Despite numerous requests to the SIZO and prosecution authorities, the applicant’s conditions of detention did not improve and she was not transferred to a cell with non-smokers. Similarly, she was not provided with appropriate nutrition. In written complaints of 10 and 21 February, 5 March, 4 and 10 August 2011 the applicant informed the SIZO authorities about the continued deterioration of her health, in particular that she was suffering from breathlessness, headaches, weakness and a persistent cough. She asked to be transferred to a cell with non-smokers.19. The applicant submitted copies of written statements given by Ms Sh., a former detainee who had allegedly shared cell no. 412 with her between 11 May and 24 June 2011, and by Ms T., a former SIZO officer. They both confirmed the applicant’s description of the conditions of her detention.Medical care provided to the applicant20. According to the material in the case file, the applicant has suffered from asthma since 1980.21. On the morning of 17 January 2011, while still at liberty, she suffered a major asthma attack and was admitted to the Kharkiv City Hospital for treatment. That evening, after her state of health had improved, she was discharged and left the hospital accompanied by police officers, who then arrested her.22. On 20 February 2011 the applicant complained to the Prosecutor General’s Office that she had not been receiving asthma treatment in the SIZO.23. On 17 March 2011 the investigator dealing with the applicant’s criminal case ordered a forensic examination with a view to establishing her state of health and the possibility of her being provided with the relevant medical treatment at the SIZO.24. According to the results of the forensic examination of 6 April 2011, the applicant suffered from step 4 asthma (the most severe form), chronic obstructive pulmonary disease, emphysema, pulmonary insufficiency, pneumonosclerosis and chronic cor pulmonale. The forensic expert concluded that she should be examined at a specialist lung clinic outside the SIZO.25. On 4 and 10 August and 5, 8, 15, 18 and 28 October 2011 the applicant asked the SIZO administration to provide her with asthma treatment.26. According to the applicant, she was not given a medical examination or treatment while in custody and her applications sent to the Prosecutor General’s Office and SIZO administration remained unanswered.RELEVANT international material27. The Report to the Ukrainian Government on the visit to Ukraine carried out by the Committee for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment (CPT) from 29 November to 6 December 2011 (CPT/Inf (2012) 30) reads as follows:“43. The delegation gained a generally positive impression of the material conditions in the units for juveniles at the [SIZO] in ... Kharkiv.However, conditions of detention were quite simply appalling in many of the other detention units of the [SIZO]. Numerous cells were in a poor state of repair and had only very limited access to natural light. In addition, the CPT is concerned about the severe overcrowding observed in a number of detention units of [the facility]. At the time of the visit, the ... Kharkiv SIZO [accommodated] 3,415 prisoners (official capacity: 2,808 places).”THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION28. The applicant complained that the material conditions of her detention had been poor and that adequate medical treatment had not been available to her in detention. She 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.”Admissibility29. The Government submitted that the applicant had failed to exhaust effective domestic remedies in respect of her complaint of a lack of medical treatment. They considered that she should have lodged her health complaints with the prosecutor’s office and the domestic courts.30. The applicant submitted that the remedy referred to by the Government had already been examined by the Court in other cases against Ukraine and had been found to be ineffective.31. The Court notes that it has already examined and dismissed similar objections, finding the remedy referred to by the Government ineffective (see, for instance, Melnik v. Ukraine, no. 72286/01, §§ 69, 113-16, 28 March 2006; Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October 2006; Ukhan v. Ukraine, no. 30628/02, §§ 91-92, 18 December 2008; Iglin v. Ukraine, no. 39908/05, § 77, 12 January 2012; Barilo v. Ukraine, no. 9607/06, §§ 104-05, 16 May 2013; Buglov v. Ukraine, no. 28825/02, § 74, 10 July 2014; and Sokil v. Ukraine, no  9414/13, § 38, 22 October 2015). With reference to the above-mentioned case-law and the circumstances of the present case, the Court finds that the Government have not shown that the applicant had an opportunity in practice to obtain an effective remedy for her complaint  that is, a remedy which could have prevented the violations from occurring or continuing, or which could have afforded her appropriate redress. The Court therefore considers that the applicant’s complaint of a lack of medical treatment cannot be rejected for failure to exhaust domestic remedies.32. The Court notes that the above complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.Merits33. The applicant reiterated her complaints outlined in the application form, namely that the conditions of her detention had been poor and that she had not been provided with adequate medical treatment while in detention.34. The Government submitted that the documentation on the subject had been destroyed on the expiry of the statutory storage period. At the same time, they contended that the conditions of the applicant’s detention and the medical treatment provided to her had been compatible with the requirement of Article 3 of the Convention.Conditions of detention35. The applicable general principles in respect of conditions of detention have been summarised in Muršić v. Croatia ([GC] no. 7334/13, §§ 96‑141, 20 October 2016).36. The Court notes that, in the present case, the applicant provided a detailed description of the conditions in the Kharkiv SIZO during her detention, and supported it with relevant documentary evidence (see paragraphs 16 to 19 above).37. While the parties have not provided the Court with precise information concerning the amount of personal space per inmate, it can be concluded from the available submissions that from 2 February to 27 July 2011 and from 12 August to 1 November 2011 the applicant had approximately 3 to 4 sq. m of personal space, and less than 1 sq. m of personal space from 1 to 12 August 2011.38. In cases where a prison cell measuring in the range of 3 to 4 sq. m of personal space per inmate is at issue, the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances, a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see Muršić, cited above, § 139).39. In this connection, the Court observes the applicant’s allegations that there were problems with lighting, ventilation, heating, sanitation, nutrition and hygienic conditions (see paragraph 17 above). Moreover, it cannot overlook the fact that her state of health required specific medical care, and that she was not transferred to a cell with non-smokers, despite being an asthma sufferer (see paragraph 18 above).40. Next, the Court refers to the witnesses’ written statements concerning the conditions of the applicant’s detention (see paragraph 19 above) and the findings of the CPT, which visited the Kharkiv SIZO in November and December 2011, that is to say after the applicant had already been discharged from the facility (see paragraph 27 above).41. Lastly, the Court notes that it has already found that the conditions of detention in the Kharkiv SIZO did not meet the requirements of Article 3 of the Convention (see Gorbatenko v. Ukraine, no. 25209/06, §§ 134-37, 28 November 2013; Zakshevskiy v. Ukraine, no. 7193/04, §§ 63-68, 17 March 2016; and Korneykova and Korneykov v. Ukraine, no. 56660/12, §§ 135-48, 24 March 2016).42. The combination of the above-mentioned factors is sufficient to enable the Court to conclude that the conditions of the applicant’s detention in the Kharkiv SIZO amounted to inhuman and degrading treatment contrary to the requirements of Article 3 of the Convention.

Outcome for Article 3: violation