FIFTH SECTION      CASE OF MOROZ v. UKRAINE (Application no. 5187/07)        JUDGMENT   STRASBOURG 2 March 2017 FINAL 18/09/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Moroz v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President, Erik Møse, Ganna Yudkivska, Faris Vehabović, Síofra O’Leary, Carlo Ranzoni, Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 31 January 2017,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 5187/07) 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 Oleg Viktorovich Moroz (“the applicant”), on 16 January 2007.2. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr I. Lishchyna from the Ministry of Justice.3. The applicant complained of the inappropriate conditions of his pre‑trial detention and the lack of medical assistance. He also alleged that he had not been allowed to have visits from his relatives and to correspond with them while in pre-trial detention. He further stated that his right to practice his religion had been breached during pre-trial detention.4. On 12 December 2012 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1967 and is currently serving his prison sentence.A. Events of 1 June 2005 and the criminal proceedings against the applicant6. At about 10 a.m. on 1 June 2005 O., the president of the Ukrainian Dental Association, was shot at his office with a rifle which the applicant had brought. The applicant was present at O.’s office at the time of the event. He asked for the police and an ambulance to be called and, once the police arrived, stated that an accident had happened. He explained that he and O. were interested in hunting and he had brought the shotgun to O. as a present. While he had been demonstrating the gun to O., the latter had wanted to see it closer and had pulled it towards himself; the gun had accidentally gone off. According to the applicant, once he had replied to the questions of the police, handcuffs were put on him; he was searched and samples were taken from him for forensic examination. His request for a lawyer was allegedly ignored.7. On the same date the applicant’s arrest report was drawn up which stated that the applicant had been arrested for the murder of O. at 10 p.m. at the police station. He was subsequently questioned in the presence of K., his lawyer. He pleaded not guilty and repeated his statements made earlier. According to the applicant, his lawyer immediately indicated to the investigator that, under the Code of Criminal Procedure, the applicant had to be provided with the possibility to talk with him in private before the questioning, with a view to defining the legal defence strategy. Having heard that, the applicant insisted on such a meeting. The investigator, however, rejected that request on the ground that the applicant would be able to talk to his lawyer later.8. On 2 June 2005 a reconstruction of the crime was carried out in the presence of the applicant’s lawyer.9. On 3 June 2005 the applicant’s pre-trial detention was ordered by a court.10. On 6 June 2005 L. was admitted to the proceedings as the applicant’s second lawyer.11. On 9 June 2005 the applicant was charged with murder and questioned in the presence of his lawyers. He pleaded not guilty and repeated his previous statement that O. had been shot by accident.12. On 11 August 2005 the applicant was questioned in the presence of K. The applicant repeated his previous statements.13. On the same date the applicant and the lawyer K. became aware of the results of a number of forensic examinations in the case. They made no observations in this connection.14. On 17 November 2005 criminal proceedings were instituted against the applicant for illegal production, possession and storage of firearms. On the same day the applicant was charged with the above offence and questioned in the presence of K. Those proceedings were subsequently joined to the murder case against the applicant.15. On 16 January 2006 the case was referred to the Kyiv City Court of Appeal (“the Court of Appeal”) for trial. Throughout the trial the applicant denied the murder charge and consistently claimed that O. had been shot by accident.16. On 19 May 2006 the Court of Appeal, acting as a first-instance court, found the applicant guilty as charged and sentenced him to fifteen years’ imprisonment. The court found that on 27 May 2005 the coordinating council of the Ukrainian Dental Association had held its meeting in Kyiv and the applicant had run for the position of acting executive director of the Association. The victim, O., had proposed another candidate for the same position and that candidate had been elected. The applicant had therefore decided to take revenge and had come to the office of O. with a shotgun and fired twice at O.’s head. The applicant had also been found guilty of modifying the shotgun in question prior to the incident.17. The Court of Appeal noted that although the applicant had never pleaded guilty and had claimed that the incident had been an accident, his guilt was proved by the testimonies of witnesses and the results of forensic examinations. In particular, O.’s wife had testified that she had been in the neighbouring office when the incident had taken place and when she had entered her husband’s office she had seen the applicant smiling with satisfaction. She had also maintained that her husband had not liked hunting and therefore would not have accepted a shotgun as a present. The negative attitude of O. to hunting had also been confirmed by his brother. O.’s secretary and one of his colleagues had also confirmed that the applicant had been smiling when they had entered the office after the incident.18. Several witnesses had also confirmed that the applicant had shown dissatisfaction with the fact that he had not been elected to the position of the executive director of the Dental Association.19. The forensic expert, questioned in the court hearings, had confirmed the conclusions of the examination that the shots had been fired from some distance and not from close range, as the applicant had suggested, given that traces of metals and gunpowder, typically found following close-range shots, had not been found on the victim. The court also noted that the outcome of the ballistic examination as to the distance, trajectory and angle of the entry wounds had not matched the applicant’s version of events.20. The applicant appealed. He submitted, inter alia, that his defence rights had been violated as he had not been given an opportunity to talk to his lawyer in private before his questioning at the police station on 1 June 2005, with no further details given.21. On 28 November 2006 the Supreme Court, in the presence of the applicant and his two lawyers, upheld the decision of the Court of Appeal, noting the aggregate of evidence against the applicant.B. Conditions of the applicant’s pre-trial detention22. From 5 July 2005 to 25 January 2007 the applicant was detained at Kyiv pre-trial detention centre no. 13 (“the SIZO”).1. The applicant’s account23. According to the applicant, the facility was often overcrowded with the number of detainees exceeding the number of beds. It was infested with insects, cockroaches and mice. The quality and quantity of food was unsatisfactory. There was only one pair of scissors and one hair clippers for the whole SIZO and they were not disinfected prior to or after use. As a result, the applicant contracted Hepatitis B.24. From 8 July until 8 November 2005 he was detained in cells nos. 18 and 116 in conditions which were detrimental to his health and incompatible with human dignity. In particular, those cells had no access to natural light as the windows were obscured by metal slats. The walls were permanently wet and covered with mould. The applicant had to share cell no. 116, which measured about 12 square metres, with three other detainees who were heavy smokers. The artificial lighting was not sufficiently powerful with the result that the cells were dim. Their clothes and linen were always wet and cold.25. On 7 September, 7 and 21 November 2006 the applicant requested that the investigator allow visits from his family but to no avail; the investigator attempted to extort money from him for granting permission to see the relatives.26. On 5 February and 4 July 2006 the applicant asked the Court of Appeal to allow him to correspond with his relatives but received no answer. He unsuccessfully complained of these matters to the prosecutor’s office on a number of occasions.27. The applicant was not allowed to visit the SIZO church. His requests to the SIZO governor of 15 July and 1 August 2005 to meet with a priest also remained unanswered. On 6 and 7 September 2005 the applicant further complained to the SIZO administration that his religious literature and some items of a religious nature had been seized by the SIZO staff. On 23 September 2005 a “talk” was held with the applicant by one of the prison staff on account of his complaints during which it was explained to him that nothing untoward had happened. On 1 October 2006 the applicant complained to the Prosecutor General about the violation of his right to practise his religion but received no reply.2. The Government’s account28. During his stay at the SIZO the applicant was held in twelve different cells (including cells nos. 18 and 116) and was moved fourteen times.29. The Government could not provide any information about the number of inmates in the cells at the relevant time or regarding the conditions of the floor, walls and linen because the compulsory period for keeping the relevant documents had expired and the records had been destroyed.30. They stated that the general detention conditions in the SIZO had been satisfactory and in compliance with the domestic standards: all the cells had had windows and had been equipped with sufficient artificial lighting; the applicant had been provided with adequate nutrition in accordance with the applicable standards. Scissors and other hairdressing implements had been disinfected after each use in accordance with the relevant regulations. That fact had been confirmed by the results of an investigation conducted by the Ministry of Health and the prosecutor’s office following the applicant’s complaints.31. The Government submitted, having provided the relevant documents, that the applicant had requested family visits before the relevant authorities only on 10 and 20 October and 29 December 2005 and on 11 January and 5 February 2006 and had asked for permission to send correspondence to his relatives on 10 and 27 October 2005 and 5 February and 8 August 2006. All his requests were rejected for security reasons.32. The applicant had been free to ask the investigator in his case or a court to allow him to meet with a priest but had failed to do so. He had also been entitled by law to possess religious literature and other items of a religious nature and never raised any complaint in this connection either before the SIZO governor or with the prosecutor responsible for observing compliance with the law in the detention facilities.C. Medical treatment in the SIZO1. The applicant’s account33. No medical aid was provided to the applicant in respect of his heart and teeth problems. On 3 June 2006 the applicant asked the SIZO governor to conduct a medical examination as he believed he had contracted hepatitis B because of the failure of the SIZO staff to respect hygiene rules. This request was rejected; so was another request for a special diet in view of his possible hepatitis infection. On 2 November 2006 the applicant asked the Minister of Health to order a medical examination in view of his possible hepatitis infection, to no avail. No copies of the mentioned requests have been provided by the applicant.2. The Government’s account34. According to the Government, during his stay in the SIZO the applicant never went to the medical unit on account of his suffering from hepatitis B, heart pain or problems with his teeth and never lodged any complaints regarding a lack of medical assistance. His state of health did not necessitate a special diet.35. Following a liver-related complaint that the applicant was suffering from, he was diagnosed with bile-duct dyskinesia (дискінезія сечовивідних шляхів) and from 20 October to 15 November 2006 he underwent inpatient treatment in the SIZO medical unit. A number of laboratory tests were carried out on the applicant, including a specialised blood test for hepatitis indicators. The latter revealed hBs antigens, which meant that the applicant had hepatitis B antibodies in his blood but not that he had been definitely suffering from the active form of the disease. The applicant was prescribed the relevant treatment (Carsil, Livolin, Alochol, Gastronorm, Ursohol), which he received in full, and at the end of his treatment he was deemed to be in good health.36. On 1 July 2007 the applicant was transferred to prison no. 72 to serve his sentence. On 11 August 2007 he was diagnosed with hepatitis B. Thereafter he lodged a number of complaints with different State bodies alleging that he had contracted hepatitis in the SIZO owing to the failure to disinfect hairdressing implements, and demanding investigation of this matter. Following his allegations, investigations were conducted by the Health Ministry and the prosecutor’s office, which found no evidence to support the applicant’s allegations. The applicant was informed of the results of the investigation by a prosecutor’s letter of 27 July 2009.II. RELEVANT DOMESTIC LAWA. Code of Criminal Procedure of 1960 (“the CCP”)37. Article 162 of the CCP provided, at the relevant time, that visits of relatives or other people to a detainee could be allowed by the responsible person or institution dealing with the case. The duration of the visit should be fixed at from one to two hours. Visits should be allowed, as a rule, not more than once a month.B. Pre-Trial Detention Act of 30 June 1993 (as in force at the relevant time)38. The relevant provisions of the Act read as follows:Article 9. Rights of individuals remanded in custody“Any person remanded in custody shall have the right:...to worship individually [and] use religious literature and devotional articles related to his or her religious faith made of low-value materials, provided that this does not violate the established order in the pre-trial detention facility or impair the rights of others; ...”Article 11. Material and everyday supply of detainees“Detainees shall be provided with living conditions corresponding to the requirements of sanitation and hygiene rules.The area of the cell per detainee shall not be less than 2.5 square metres and for the pregnant women and women accompanied by a child, not less than 4.5 square metres....Detainees shall be provided for free with food, personal sleeping space, bedding and other types of material and everyday goods under the unified rules adopted by the Cabinet of Ministers of Ukraine. In cases of necessity they can be also provided with standard clothes and shoes.Medical services as well as preventive medical and anti-epidemic measures shall be organised and carried out in places of pre-trial detention in compliance with health legislation ...”Article 12. Allowing individuals remanded in custody to receive visitors“Visits by relatives or other people can be allowed to individuals remanded in custody by the administration of a pre-trial detention facility only with the written permission of an investigator, the investigating authorities or the court examining the case, as a rule, once per a month. The duration of a visit is from one to four hours ...”Article 13. Correspondence of individuals remanded in custody. Procedure for sending complaints, applications, or letters“Individuals remanded in custody shall have the right to correspond with their relatives and other people, enterprises, institutions, and organisations with the written consent of the person or authority in charge of the criminal case against the detainee concerned. After the judgment convicting a detainee becomes final, he or she can carry on correspondence in accordance with the law ...”Article 22. Prosecutor’s inspection of compliance with legislation at remand prisons“An inspection of compliance with legislation at remand prisons shall be carried out by the General Prosecutor of Ukraine and prosecutors subordinate to him or her pursuant to the Public Prosecutor’s Office Act.Rulings and resolutions issued by prosecutors as to the compliance with the procedure and conditions of detention established by legislation shall be subject to compulsory fulfilment by the detention centre’s administration.”C. Citizens’ Appeals Act (Закон України «Про звернення громадян») of 2 October 199639. Article 12 of this Act provides that it shall not apply to complaints and applications subject to examination under criminal procedural legislation.THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION40. The applicant complained of the poor conditions of his detention in the SIZO and that he had not been provided with appropriate medical assistance in that facility. 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. Conditions of detention41. The Government claimed that the applicant’s complaints were unsubstantiated, some of them being general statements not supported by any evidence.42. The applicant disagreed.43. The Court notes that the applicant complained of the particular conditions of his detention only regarding two cells (nos. 18 and 116), in which he had been detained for about four months in total in 2005, while providing no description and making no complaints in respect of ten other cells (see paragraphs 24 and 28 above).44. The Court reiterates in this connection that in accordance with Article 35 § 1 of the Convention it may only deal with a matter within a period of six months of the date of the final domestic decision, a rule which may not be set aside solely because a Government have not raised the relevant objection (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I). The Court further reiterates that where no domestic remedy is available, the six‑month period runs from the act alleged to constitute a violation of the Convention and where it concerns a continuing situation, it runs from the end of the situation concerned (see Antonenkov and Others v. Ukraine, no. 14183/02, § 32, 22 November 2005). The Court has already found in a number of similar cases lodged against Ukraine that no effective domestic remedies in respect of complaints concerning poor conditions of detention were available (see, among other authorities, Melnik v. Ukraine, no. 72286/01, §§ 113-16, 28 March 2006; Ukhan v. Ukraine, no. 30628/02, §§ 91-92, 18 December 2008; and Iglin v. Ukraine, no. 39908/05, § 77, 12 January 2012).45. Having regard to the above principles, the Court observes that the period of the applicant’s detention in the above cells ended more than six months before the present application was lodged with the Court (16 January 2007). Consequently, this part of the applicant’s complaint must be rejected for having been lodged out of time.46. The applicant failed to specify which cells – out of the twelve in which he had been detained according to the Government – had been overpopulated and provided no further details in that connection. In the absence of the relevant information, the Court dismisses this complaint as unsubstantiated.47. As regards the remainder of the applicant’s complaint, the Court notes that the applicant’s allegation of the overcrowding as well as his initial complaint concerning inadequate nutrition in the SIZO were confined to general statements with no further details given. Some details regarding the nutrition in the SIZO had been given by the applicant only in reply to the Government’s comments. In any event, the applicant has failed to provide evidence showing that the level of nutrition did not comply with the statutory norms or that the food was inadequate (see Yakovenko v. Ukraine, no. 15825/06, § 88, 25 October 2007). Likewise, the applicant provided no evidence in support of his statements about poor hygiene and sanitary conditions in detention, such as, for example, statements by his cellmates or other detainees (compare Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010, with further references; Korneykova and Korneykov v. Ukraine, no. 56660/12, §§ 26, 48 and 50, 24 March 2016; and Gavula v. Ukraine, no. 52652/07, § 73, 16 May 2013).48. The Court therefore considers that the above complaints have not been properly substantiated by the applicant.49. In view of the aforesaid, this part of the application must be rejected pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.B. Medical assistance in detention50. Having referred to their factual submissions, the Government claimed that the applicant’s complaint was manifestly ill-founded. They particularly noted the general nature of the applicant’s allegations and his failure to specify what kind of assistance his condition had necessitated, whether and when he had applied for that assistance to the SIZO medical unit, and what the alleged inadequacy of the medical treatment had consisted of. They further stated that the applicant had received adequate medical assistance for his liver-related problems. This aspect of the case was therefore manifestly ill-founded.51. The applicant contested this view. In reply to the Government’s observations he stated that he had never received the medicine referred to by the Government. He further submitted, without providing any details, that no inpatient treatment had been provided to him for hepatitis in prison following conviction.52. The Court agrees with the Government that the applicant’s complaint concerning a lack of medical assistance for heart pain and dental problems was limited to brief and general statements. He also did not take the opportunity to elaborate on this aspect of the application in the observations that he submitted in response to those of the Government. The Court therefore finds that the applicant has not sufficiently substantiated his allegations in this regard.53. As regards the applicant’s allegation that he had contracted hepatitis B in the SIZO and that he had not been examined by a doctor nor given treatment in this connection, the Court notes from the outset that, as it has held in its case-law, it would be desirable if, with their consent, prisoners could benefit, within a reasonable time after being committed to prison, from free screening for transmissible diseases such as hepatitis or HIV/AIDS. Such a facility would have made it easier to assess the applicant’s allegations in terms of ascertaining whether or not he had contracted the disease in the detention centre. However, in the absence of such a possibility, the Court must examine the applicant’s allegations in the light of the evidence provided (see Cătălin Eugen Micu v. Romania, no. 55104/13, § 56, 5 January 2016). In the present case, that there is no evidence that would enable the Court to conclude beyond reasonable doubt that the applicant had contracted hepatitis B in the SIZO.54. As regards the applicant’s allegations concerning the authorities’ failure to conduct a specialised examination to find out if he had been suffering with hepatitis B and, as a result, their failure to treat him for this disease, the Court reiterates that in assessing the quality of medical treatment administered to the applicant, it must ascertain whether the services provided corresponded to the applicant’s state of health and “the practical demands of imprisonment” (see Kaverzin v. Ukraine, no. 23893/03, § 138, 15 May 2012, with further references).55. The Court observes in this connection that, as is apparent from the medical documents provided by the Government, once the applicant approached the medical unit with liver-related problems, he underwent a medical examination during which he was offered a number of tests, including a specialised blood test for hepatitis B antibodies, which appeared to be positive. The treatment prescribed included, among other medicines, antivirals (see paragraph 35). The relevant extract from the applicant’s medical file suggests that the applicant received the prescribed treatment in full; no evidence is available in the case file in support of the applicant’s statements to the contrary. The applicant further failed to show that the diagnosis made by the SIZO doctors had not been correct or that the prescribed treatment had not corresponded to his condition and that other treatment should have been administered to him. No medical opinion was submitted by the applicant in this regard. The mere fact that a complex examination for hepatitis was not carried out in the SIZO cannot be regarded as proof of an overall deficiency in the medical assistance available to the applicant as it has not been shown that such an examination was indispensable in his particular situation and that his state of health was adversely affected (see, mutatis mutandis, Polufakin and Chernyshev v. Russia, no. 30997/02, § 169, 25 September 2008).56. As regards the applicant’s allegation concerning the lack of appropriate medical treatment for his hepatitis in the prison, the Court notes that this complaint was raised for the first time in the applicant’s reply to the Government’s observations and that the Government was therefore not invited to comment on it. In any event, this complaint is couched in very general terms and not substantiated. It therefore does not raise any issue under Article 3 of the Convention.57. In these circumstances, having examined all the material in its possession, the Court finds no basis on which to conclude that the medical assistance provided to the applicant in the SIZO was inadequate. It therefore rejects this part of the application as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION58. The applicant stated that his defence rights had been violated at the initial stage of the criminal proceedings. He relied on Article 6 of the Convention, the relevant parts of which provide:“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...3. Everyone charged with a criminal offence has the following minimum rights: ...(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”A. Admissibility59. In his initial application to the Court the applicant complained that he had not been allowed to have a confidential consultation with his lawyer prior to his interview at the police station on 1 June 2005. In his observations lodged with the Court on 10 April 2013 he submitted in addition that his first interview as a suspect had, in fact, taken place at the scene of the crime and no lawyer had been provided to him then despite his request for legal assistance.60. The Government stated that the applicant had failed to exhaust domestic remedies for his complaint concerning the alleged failure to grant him a confidential meeting with his lawyer before the interview on 1 June 2005. In particular, in his appeal before the Supreme Court, the applicant had presented this complaint in a very general manner, without developing or substantiating it in any way.61. The applicant contested those arguments. He submitted that he and his lawyers had raised the relevant issues during the hearings before the domestic courts but to no avail.62.

Outcome for Article 9: violation