FIFTH SECTION      CASE OF KULIK v. UKRAINE (Application no. 34515/04)          JUDGMENT    STRASBOURG  2 February 2017  This judgment is final but it may be subject to editorial revision.In the case of Kulik v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Faris Vehabović, President, Ganna Yudkivska, Carlo Ranzoni, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,Having deliberated in private on 10 January 2017,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 34515/04) 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 Sergey Anatolyevich Kulik (“the applicant”), on 14 September 2004.2. The applicant, who had been granted legal aid, was represented, most recently, by Mrs O. Ashchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms I. Lishchyna, from the Ministry of Justice.3. The applicant complained in particular that the conditions of his detention (including on trial days) and the conditions of his transportation to and from the courts had been poor, that he had been subject to ill-treatment by State agents, that his pre-trial detention had been unlawful, and that his rights of defence had been violated.4. On 24 February 2012 the application was communicated to the Government. On 26 September 2013 the Court invited the Government to submit further observations on the admissibility and merits of the present application.I. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1968 and is presently serving a life sentence in Prison no. 31 in the Chernigiv Region.A. Criminal proceedings against the applicant6. On 24 January 2003 V. and H. were found dead in their flat.7. On 25 January 2003 the police launched a murder investigation.8. On 30 January 2003 the Kyiv Prosecutor’s Office (“the prosecutor’s office”) instituted criminal proceedings against the applicant and declared him wanted for the murder of V. and H.; on the same date the applicant was charged in absentia with the double murder.9. According to the applicant, on the evening of 30 January 2003 he had been apprehended by the police in Kharkiv and detained in the Leninsky District police station. He had been ill-treated by the police in order to make him confess to the double murder. A police officer, K., and another unspecified police officer had suffocated him and threatened to kill him and members of his family. They had also promised that if the applicant confessed they would persuade the trial court that the applicant was insane and could not be held liable for the murders. The applicant, in the absence of a lawyer, had agreed to confess and had drafted a “statement of surrender and confession” (явка с повинной), as dictated by police officer K. The confession was dated 1 February 2003 and stated that the applicant’s rights under Article 63 of the Constitution had been explained to him. On 31 January 2003 he was transferred to the Desniansky District police station in Kyiv.10. According to the Government, the applicant had been apprehended on the evening of 31 January 2003 in Kharkiv and had been detained at the Leninsky District police station until 1 February 2003, when he had been transferred to Kyiv. He had not been ill-treated or questioned while in Kharkiv and had made no statement.11. On 31 January 2003 the prosecutor requested the Desniansky District Court of Kyiv (“the District Court”) to approve the applicant’s apprehension and transportation by force to the court in order to decide on the preventive measure to be applied to him. On the same date, the District Court allowed the prosecutor’s request.12. On 1 February 2003, having been delivered to the prosecutor’s office, the applicant signed a report that his defence rights had been explained to him and noted in writing that he wished to consult a lawyer before he was first questioned. Thereafter, a report on the applicant’s arrest was drawn up, according to which the applicant had been arrested in Kyiv on 1 February 2003 at 6 p.m. and his right to legal assistance following his arrest had been explained to him.13. On the same date, according to the Government, the applicant had been placed in the Kyiv Temporary Detention Facility (“the ITT”) where he had made a written “statement of surrender and confession” in which he had confessed, for the first time, to the murder of V. and H.14. On the same date the applicant’s wife informed the prosecutor that she had hired a lawyer, Mrs K., to represent the applicant and requested that she be admitted to the proceedings.15. On 3 February 2003 the investigator granted the applicant’s wife’s request and, in the presence of the lawyer, informed him of the charges brought against him on 30 January 2003. He further questioned him in this regard. The applicant made assertions similar to those contained in his confession of 1 February 2003. According to the applicant, on that day, and before each further round of questioning, police officers threatened that if he retracted his confession, his cellmates, some of whom were drug addicts suffering from AIDS, would strangle or bite him.16. On 4 February 2003 the District Court ordered the applicant’s detention, having stated that there were reasons to believe that, if released, the applicant would continue his criminal activity and might abscond from the investigation. It referred in this respect to the gravity of the charges against the applicant and his placement on a wanted list.17. On the same day, a medical expert found scratches on both sides of the applicant’s hands which, according to the expert, could have been the result of a fight between the applicant and the murder victims; the applicant did not give any explanation as to the cause of these injuries.18. On 5 February 2003 a crime scene reconstruction was carried out in the presence of the applicant’s lawyer. The applicant again acknowledged his guilt regarding the double murder. Later on the same day, having reviewed a video recording of the reconstruction, the applicant and his lawyer made no comments.19. On 13 February 2003 the applicant was admitted to the Kyiv Pre‑trial Detention Centre no. 13 (“the Kyiv SIZO”). A medical examination of the applicant on the same date revealed no injuries on his body.20. On 25 March and 27 June 2003 the applicant was questioned in the presence of his lawyer and again confessed to the murder of V. and H.21. On 26 March and on 24 April 2003 the District Court extended the applicant’s detention to three and four months respectively, reiterating the reasoning contained in its ruling of 4 February 2003 and referring to the need to complete certain investigative actions.22. On 30 May 2003 the Kyiv Court of Appeal (“the Court of Appeal”) extended the applicant’s detention to five months, citing the same grounds as the District Court.23. On 27 June 2003 the applicant was additionally charged with theft and fraud. On the same date the investigation was completed and on an unspecified date the case was sent to the Court of Appeal for trial at the first instance.24. On 22 August 2003 the Court of Appeal held a preparatory hearing and ordered that the applicant continue to be kept in detention, without giving any reason.25. During the trial the applicant retracted all his statements given at the pre-trial stage, including those given in the presence of his lawyer, and pleaded not guilty to the double murder. He stated, inter alia, that all his self-incriminating statements had been made under duress in that he had been beaten by the police officers, threatened before each round of questioning and given false promises of release. He had also wanted his case to be referred for trial as soon as possible.26. On 3 October 2003 the Court of Appeal convicted the applicant as charged and sentenced him to life imprisonment. It noted that the applicant’s guilt was confirmed, inter alia, by his initial confession and subsequent statements made in the presence of his lawyer. It was further noted that in the course of the pre-trial investigation neither the applicant nor his lawyer had ever complained about any ill-treatment by the police. The judgment contains reference to a statement by officer K. to the effect that the applicant had written his confession at a police station in Kharkiv after being apprehended. The applicant appealed against the judgment and requested that the preventive measure be changed to that of a written undertaking not to abscond.27. On 25 March 2004, in the presence of the applicant and his lawyer, the Supreme Court quashed the above judgment for procedural shortcomings. It also refused the applicant’s request for release from pre‑trial detention and upheld the preventive measure imposed on him. The court referred to the fact that no final decision had been made as to whether the applicant was guilty; it also referred to information about the applicant’s personality and his previous behaviour, but did not give further details. No time-limit was set in respect of the applicant’s continued detention.28. On 13 April 2004 the applicant’s wife was admitted to the proceedings as his lay representative.29. On 21 April 2004 the Court of Appeal, in the applicant’s presence, held a preparatory hearing at which it upheld the preventive measure taken with respect to the applicant, having refused the latter’s request for a change of preventive measure to that of a written undertaking not to abscond. In so doing it referred to the gravity of charges, information about the applicant’s personality (without giving any further details), and to “other circumstances falling under Article 148 of the Code of Criminal Procedure”. No time-limit for the continuing detention was set.30. During the re-trial the applicant asserted his innocence and repeated his previous allegation that his procedural rights had been violated during the pre-trial investigation (see paragraph 25 above).31. On 18 February 2005 the Court of Appeal disjoined the fraud charges from the case and remitted them for further investigation. By the same ruling the applicant was ordered to remain in detention; no reasons were given and no time-limit set. By another ruling of the same day the Court of Appeal dismissed the applicant’s request for a change of preventive measure on the same grounds as those given in its ruling of 21 April 2004.32. On 18 March 2005 the Court of Appeal found the applicant guilty as charged and sentenced him to life imprisonment. It relied, inter alia, on the applicant’s self-incriminating statements given during the pre-trial investigation, including his written confession dated 1 February 2003. The court noted that those statements should prevail over the testimony that the applicant had given during the trial as they had been all confirmed by the applicant in the presence of his lawyer and were consistent and concordant with a range of other evidence in the case which, in its entirety, had been gathered in compliance with domestic law.33. By the same decision, the Court of Appeal rejected the applicant’s complaint of ill-treatment by the police as unsubstantiated. Having questioned the applicant, the police officers and some witnesses, and having examined the video recording of the crime scene reconstruction and the medical report of 4 February 2003, the court found no evidence in support of the applicant’s allegations. It also noted that the applicant had been represented by a lawyer of his own choice during the pre-trial stage and had never previously complained about any ill-treatment.34. According to the documents submitted by the Government, between 29 March 2005 and 28 April 2005, the applicant requested and was granted access to all nine volumes of his case file and the audio recordings of the hearings. In June 2005 the applicant asked the Court of Appeal to allow him to go through the case file again. On 13 June 2005 that request was refused on the ground that the applicant had already studied the case file in full.35. The applicant appealed against his conviction, arguing that it had been based on forged documents, untruthful testimonies and inadmissible evidence. He submitted that he had been unlawfully arrested on 30 January 2003 in Kharkiv but that his detention had remained unrecorded until 1 February 2003 and that he had not been brought before the judge within 72 hours of his arrest. The applicant further alleged that his request for a lawyer on 30 January 2003 had been ignored and that, on that night, he had been questioned, beaten and forced to give self-incriminatory statements in exchange for the investigator’s promise not to harm his family and to release him on the grounds that he was mentally disabled. The applicant reiterated that he had been forced to repeat his confession in the presence of his lawyer and that he had informed his lawyer of his ill-treatment at the hands of the investigator. However, the investigator had not kept his promise and the applicant’s confessions had been used as a basis for the applicant’s conviction. The applicant further complained, inter alia, that his arrest and detention on remand had been unlawful; that he had not been able to communicate with his representative confidentially during the court hearings because he had been held handcuffed in a cage; that he had not been granted enough time and facilities to prepare his defence because the hearings had been held on a daily basis and he had not been granted full access to the case file; and that the authorities had unlawfully refused to allow his wife to visit him in the Kyiv SIZO on 14 February and 10 March 2005. The prosecutors also appealed against the judgement of 18 March 2005.36. On 26 July 2005 the Supreme Court, in the presence of the applicant and his lay representative, upheld the applicant’s conviction and sentence. The court based its findings to a large extent on the confessions of the applicant given during the pre-trial investigation. It noted, inter alia, that in his “statement of surrender and confession” of 1 February 2003 the applicant had provided details about the murder which he could not have known without being a direct perpetrator. At the time, those details had not been known to the police and therefore, contrary to the applicant’s statement, could not have been dictated to him by the officers. The credibility of his statements had been further confirmed by the applicant on a number of occasions in the presence of the lawyer of his choosing, as well as by a number of other pieces of evidence in the case. The court noted that the applicant had been apprehended on 30 January 2003 but stated that no investigative actions had been taken in respect of his case before 3 February 2003 and that after that date all investigative actions had been carried out in the presence of a lawyer. For those reasons and having further found that the Court of Appeal had duly examined the applicant’s complaints of ill‑treatment and lack of legal assistance, it dismissed the applicant’s allegations as ill-founded. The applicant’s allegation regarding lack of access to the case file was likewise dismissed as ill-founded; detailed reasoning was given for that dismissal.37. On 11 August 2006 the applicant lodged an extraordinary appeal with the Supreme Court. On 22 December 2006 the Supreme Court rejected that appeal as unsubstantiated.38. From 3 February 2003 and throughout the pre-trial investigation, the applicant was represented by Mrs K., the lawyer hired by the applicant’s wife. The case file further indicates that during the trial the applicant was represented by several lawyers, including legal-aid lawyers and, at one stage, a lawyer hired by the applicant’s brother.B. Disclosure to the media of information about criminal proceedings against the applicant39. On 6 February 2003, at the request of the private television channel Kyiv, information about the circumstances of the murder of V. and H. was disclosed by the prosecutors to the channel and was subsequently broadcast a number of times in the course of 2003 as a part of a regular television programme. According to the applicant, the channel had been provided with a copy of the video recording of the crime scene reconstruction.40. On unspecified dates, the applicant complained to the prosecutors about the provision of that video recording. In their written replies, the prosecutors stated that pre-trial investigation data had been disclosed within the limits authorised by law and that the disclosed information had not interfered with any of the applicant’s rights.41. During his trial, the applicant unsuccessfully complained to the courts that the provision of the video recording had violated his right to the presumption of innocence. He did not institute any separate court proceedings in respect of this alleged violation against the prosecutors or the television channel.C. Conditions of the applicant’s detention1. Police stations and the ITT42. According to the applicant, from 30 January until 13 February 2003 he had been held in cells measuring 7 sq. m with up to ten other inmates and had not been provided with a bed or linen. Moreover, he had not been given an opportunity to shave or wash himself; before 5 February 2003 he had not received any food.43. The Government submitted no factual details regarding the applicant’s detention during the above-mentioned period.2. The Kyiv SIZO44. Between 13 February 2003 and 14 December 2005 the applicant was detained in the Kyiv SIZO.(a)  The applicant’s version45. Between 14 and 24 December 2003 the applicant had been held in cell no. 32, measuring about 50 sq. m, together with fifty-two other inmates. He had then been transferred to cell no. 95, measuring 7 sq. m, and had stayed there until March 2004 together with four other inmates. In March 2003 the applicant had been transferred to cell no. 85, measuring 16 sq. m, where he had stayed with twelve other inmates.46. From 3 October 2003 until 25 March 2004 and from 18 March 2005 until 14 December 2005 the applicant had been detained in cells measuring 7 sq. m. The windows in all of the above cells had been shuttered, letting in no daylight and very little fresh air. Each cell had been infested with insects and had had a toilet which had not been separated from the living area. The food had been of poor quality (watery porridge with margarine, decaying fish, stinking sauerkraut). Meat, eggs, and dairy products had not been provided and fresh vegetables and fruit had only been provided rarely. The applicant had not been allowed to use his watch and shaving accessories or to receive parcels and have visits from his relatives. No adequate medical assistance had been provided to the applicant, and after 18 March 2005 he had been prohibited from receiving medicines from his relatives.47. On 14 February and 10 March 2005 the Kyiv SIZO administration had refused to allow the applicant’s wife to visit him.(b)  The Government’s version48. Having noted that it was no longer possible to establish in which cells the applicant had been held because the time-limit for keeping the relevant documents had expired and the records had been destroyed, the Government challenged the applicant’s description of the size of the cells and his estimate of how many inmates they had held. They provided the following details of the cells:-  cell no. 32 – 54.1 sq. m with thirty-eight individual beds;-  cell no. 85 – 21.4 sq. m with twelve individual beds;-  cell no. 95 – 9.29 sq. m with four individual beds;-  cell no. 141 – 8.2 sq. m with two individual beds;-  cell no. 154 – 9 sq. m with two individual beds.49. They further stated that all the cells in the Kyiv SIZO had been equipped with a ventilation system. The windows had been equipped with small hinged panes for ventilation, which had allowed the circulation of fresh air. Each cell had had a lavatory, separated from the living area. The cells had been regularly disinfected. The prisoners had been provided with hot meals of adequate quality three times a day, including on those days when they attended court hearings.3. The Dnipropetrovsk pre-trial detention centre50. Between 4 and 13 May 2008 the applicant stayed in the Dnipropetrovsk pre-trial detention centre (“the Dnipropetrovsk SIZO”). According to the applicant, no medical assistance had been provided to him in respect of the tuberculosis from which he suffered. Moreover, he had been held in cell no. 3 with a detainee suffering from the active form of tuberculosis.51. The Government provided no factual details regarding the conditions of the applicant’s detention in that facility.4. Prison no. 4752. The applicant stayed in the above prison from 14 December 2005 until 24 April 2008 and from 27 October 2008 until 18 April 2012.53. According to the applicant, between 14 December 2005 and 21 January 2008 he had been held together with inmates suffering from a latent form of tuberculosis. On 13 January 2008 he had been transferred to a cell which had previously been occupied by a prisoner who had suffered the active form of this disease. The latter cell had not been disinfected, had had no heating system and had had windows partly covered with plastic instead of glass. The quality of food and of medical care in the prison had been inappropriate. According to the applicant, such detention conditions had seriously affected his health in that on 13 April 2006 he had been diagnosed with hypertension and on 21 January 2008 with tuberculosis.54. The Government stated that the applicant’s cell had been equipped with ventilation and a central heating system. The prison had been provided with disinfectant products in full and cells had been regularly disinfected by the prisoners themselves. A bactericidal lamp had also been available. Under prison regulations, a special disinfection of cells was to be carried out when a prisoner was discovered to be suffering from an active form of tuberculosis. Prisoners serving life sentences were X-rayed twice a year to check for tuberculosis. Those who communicated with a person suffering from the active form of tuberculosis were X-rayed and received the appropriate treatment.5. Prison no. 6155. From 13 May 2008 until 12 October 2008 the applicant was held in a hospital for prisoners suffering from tuberculosis, located in prison no. 61. From 13 until 31 May 2008 he stayed in cell no. 1 and from 25 June 2008 until 25 July 2008 in cell no. 4. It remains unknown in which cells the applicant stayed for the rest of that time.56. According to the applicant, the cells had been stuffy as the windows had been kept closed from 7 a.m. until 6 p.m. They had never been disinfected and had been full of rats. Food and medical care in the facility had been terrible, leading to the death of many prisoners. His cellmates had suffered from the active form of tuberculosis.57. According to the Government, the applicant had been detained separately from other prisoners in cells which had been duly ventilated. He had been provided with sufficient and appropriate nutrition.D. The conditions in which the applicant was detained and transported on trial days1. The applicant’s account58. The applicant submitted that on trial days the conditions of his detention had been as follows. He had been routinely woken up between 4 a.m. and 5 a.m. From 6 a.m. until 6.30 a.m. he had been provided with a little sugar and a piece of bread and thereafter placed, for about an hour, in a special cell measuring about 30 sq. m and housing between thirty and forty detainees at a time. The cell had had a toilet that was not separated from the rest of the space and no ventilation or furniture. At about 7.30 a.m. the applicant had been taken to a transit cell, measuring about 14 sq. m and housing about 20 detainees at a time, where he had usually had to wait for several hours before being escorted onwards. The transit cell had had poor ventilation, two bunks with room for eight seated detainees, and a table. At 9.30 a.m. the applicant had been taken to a special room where he had had to undergo a strip search in front of other people. At 9.40 a.m. he and some twenty other detainees had been locked, for about half an hour, in a toilet with no ventilation or windows and then taken to the prison van. The van had measured 6 sq. m, had afforded insufficient access to fresh air and had not been heated. The applicant had thus been exposed to high temperatures in summer and freezing temperatures in winter. There had been instances when upon returning to the Kyiv SIZO the applicant had had to wait in the van for up to three hours while security checks had been carried out. During the hearings, which had normally been held between 11 a.m. and 2 p.m., the applicant had been held in a metal cage guarded by three armed officers, and nobody – including his defence counsel – had been allowed to come closer than within one metre of him. Once each day’s hearing had finished, the applicant had been taken either to a special transit cell measuring 0.8 sq. m or, with four other detainees, to a cell measuring 2 sq. m, where he had had to wait for several hours without food before being escorted to the prison van. Upon his return to the Kyiv SIZO, the applicant and nine other detainees had had to wait for an hour in an unventilated transit cell measuring 3 sq. m before being publicly strip-searched again and placed in another cell measuring 12 sq. m and housing up to twenty detainees at a time, with no windows and poor ventilation. At about 11 p.m. the applicant had been escorted to his cell.59. According to the applicant, the hearings in his case had been carried out on a daily basis. The case file suggests that the applicant was transported and detained under the above conditions on at least four occasions.60. According to the applicant, on 25 March 2004 and 20 May and 26 July 2005 he had been handcuffed all day with his hands behind his back from early morning, when he had been taken out of his cell to be escorted to the court, until the evening, when he had returned to his cell from the hearings.61. On 29 June 2005 the applicant lodged a complaint with the Pecherskyy District Court of Kyiv under the private prosecution procedure against the head of the unit which had escorted him on 20 May 2005 and claimed damages for his unlawful handcuffing. On 8 July 2005 that complaint was returned to him on account of procedural shortcomings. The applicant did not lodge his complaint again and did not appeal.2. The Government’s account62. According to the Government, prison vans measured 8 sq. m inside and were designed to accommodate twenty-two people in three compartments (two larger ones, measuring 2.5 sq. m and designed for ten passengers each, and one small compartment for two passengers). The vans had no windows, but they were equipped with ventilation grills and benches for sitting on. They further submitted that on account of the high number of detainees daily escorted from the Kyiv SIZO to courts, prison vans had had to wait in a line upon their return to the detention facility, but never for more than one hour.63. The Government also stated, referring to the relevant domestic regulations, that (a) all detainees who had at least three consecutive days of hearings in their cases should be provided with three meals per day, with lunch being delivered directly to the court; (b) a full search of the detainees before their being escorted to court was to be carried out in separate isolated premises and in the absence of persons of the opposite gender; (c) it was the responsibility of the head of the escorting unit in question to decide whether an escorted person should be handcuffed, taking into account the situation in hand, the danger posed by the escorted person, and other relevant factors. As regards the alleged handcuffing, they further submitted that it appeared to be impossible to establish whether the applicant had been handcuffed, as alleged, and whether he had lodged any complaint in this respect, because the time-limit for keeping the relevant documents had expired and all the records had been destroyed.E. Alleged ill-treatment of the applicant1. Incident at the Court of Appeal on 16 September 200464. On 16 September 2004, in the course of a hearing in his case, the applicant requested the Court of Appeal to call him an ambulance because he felt unwell. His request was refused and treated by the presiding judge as an attempt to delay the proceedings as there had been no information from the Kyiv SIZO to the effect that the applicant was in a poor state of health. However, the hearing was adjourned until 30 September 2004.2. The applicant’s alleged beating on 3 April 200565. According to the applicant, on 3 April 2005 he and his two cellmates had been beaten, for no reason, by Kyiv SIZO guards during their daily walk in the backyard. As a result he had sustained a bruise on his right leg measuring 5 cm x 7 cm.66. On 4 April 2005 the applicant’s wife complained to the Prosecutor General and to the Kyiv SIZO administration about the applicant’s beating, but did not specify any injury. On 17 May 2005 the prosecutor, having conducted an inquiry into the matter, replied to her that her complaint appeared to be unfounded. Neither the applicant nor his wife challenged the prosecutor’s reply.67. On 5 and 6 April 2005 the applicant complained to the State Department of Punishments and to the Kyiv SIZO administration respectively that the Kyiv SIZO staff had refused to record the injuries caused to him by the alleged beating and had not allowed him to summon the prosecutor.3. Events of 17 November 2007 in prison no. 4768. On 17 November 2007 searches were carried out in the prison cells.69. According to the applicant, on that day a group of hooded prison officers had burst into the cell in which he had been held together with other prisoners; he and his cellmates had been ordered to lie down with their hands behind their heads. When the applicant had tried to adopt a more comfortable position he had been hit with a rubber truncheon in the back. Thereafter, the officers had taken the prisoners into the corridor and ordered them to undress completely. They had then ordered them to squat and afterwards had taken them to the prison yard, where they had stayed for two hours half-dressed in temperatures of -10 ˚C. In the meantime, the applicant’s cell had been searched and, as a result, some of his personal belongings, such as food, books, photos and letters, had disappeared.70. On 19 November 2007 the applicant complained to the prosecutor’s office and to the Ombudsman that the above search had been unlawful and that some of his personal belongings had disappeared. He stated that he had “not been beaten this time” and mentioned nothing about staying outside half-dressed or having to squat. On 5 January 2008 an investigator arrived at the prison intending to question the applicant in connection with his complaint. The documents submitted by the Government suggest (without giving any reasons) that the applicant refused to meet the investigator. On 14 March 2008 the prosecutor informed the applicant by letter that the search had been lawful and that no instances of the use of force or any other form of inhuman treatment towards the prisoners had been established by the inquiry conducted following his complaint of 19 November 2007. The applicant did not challenge the prosecutor’s reply.71. On 20 November 2007 five prisoners from the same prison complained to the prosecutor’s office, stating that on 17 November 2007 a group of special prison officers had ill-treated them and that some of their personal belongings had disappeared. However, they refused to give further details during the subsequent investigation into their complaint. On 26 November 2007 a prosecutor refused to open criminal proceedings, and the prosecutor’s office refused to open an investigation in respect of the five prisoners’ allegations after finding that those allegations were unsubstantiated. It was established, inter alia, that the prisoners had been properly dressed when taken to the backyard and that no physical force had been exercised against them. None of the prisoners appealed against the resolution, despite the fact that the right to appeal had been explained to them.II. RELEVANT DOMESTIC LAWA. Constitution of Ukraine (1996)72. The relevant provisions can be found, for example, in the Court’s judgment in the case of Ogorodnik v. Ukraine (no. 29644/10, § 65, 5 February 2015).B. Criminal Code (2001)73. Under paragraph 1 of Article 115, premeditated murder is punishable by imprisonment for a term of between seven and fifteen years. Under paragraph 2 of Article 115, if premeditated murder has been committed in one of the aggravating circumstances listed in that paragraph (including the murder of a child), it is punishable by imprisonment for a term of between ten and fifteen years, or by life imprisonment.C. Code of Criminal Procedure (1960), as worded at the relevant time74. The relevant provisions of the Code of Criminal Procedure (“the CCP”) concerning the application of preventive measures and access to a lawyer may be found in Zakshevskiy v. Ukraine (no. 7193/04, §§ 47 and 48, 17 March 2016).75. Article 395 of the CCP provides, inter alia, that the Court of Cassation must review whether a court decision that has been challenged is lawful and substantiated on the basis of the relevant case file and any additional material submitted. The scope of such a review is limited to the arguments made in the cassation appeal(s). The court is empowered to review the case beyond the arguments made in the cassation appeal(s) only if this does not worsen the position of the convicted or acquitted person.D. Code of Criminal Procedure (2012)76. The provision of the Code concerning the reopening of proceedings reads as follows:Article 445. Grounds for a review by the Supreme Court of Ukraine of judicial decisions“1. Grounds for a review by the Supreme Court of Ukraine of judicial decisions which came into force shall be:...4)  the finding by an international judicial body, whose jurisdiction is accepted by Ukraine, of a violation by Ukraine of its international obligations during the judicial examination of the case [in question].”E. Law on the Execution of Judgments of the European Court of Human Rights 200677. Section 10 of the Law provides for additional individual measures with a view to the execution of judgments of the Court, including the review of a case by a court and the reopening of judicial proceedings.III. RELEVANT INTERNATIONAL AND DOMESTIC REPORTS78. The relevant international and domestic materials concerning conditions of detention and the transportation of detainees can be found in the judgments of Yakovenko v. Ukraine (no. 15825/06, §§ 56-61, 25 October 2007), Titarenko v. Ukraine (no. 31720/02, § 41, 20 September 2012), Gorbatenko v. Ukraine (no. 25209/06, §§ 97-98, 28 November 2013), Andrey Yakovenko v. Ukraine (no. 63727/11, §§ 71-73, 13 March 2014), and Muršić v. Croatia [GC] (no. 7334/13, §§ 136-139, 20 October 2016).THE LAWI. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION79. The applicant complained about the conditions of his detention in the ITT, the police stations, the Kyiv and Dnipropetrovsk SIZOs and prisons nos. 47 and 61. In this respect, he 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 ITT, the police stations and the Dnipropetrovsk SIZO80. The Government submitted that the applicant’s complaints had been lodged outside the six-month time-limit envisaged by the Convention.81. The applicant maintained his complaint.82. The case file indicates that the applicant’s complaint with respect to the ITT and police stations was lodged with the Court on 30 October 2004 and the complaint concerning the Dnipropetrovsk SIZO on 14 December 2008.83. Having regard to its case-law on the application of the six-month rule to complaints concerning conditions of detention (see, for example, Ananyev and others v. Russia, nos. 42525/07 and 60800/08, § 78, 10 January 2012), the Court observes that the relevant complaints were raised more than six months after the respective detention periods had ended. It therefore finds that this part of the application must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention, as being introduced out of time.2. Prison no. 6184. The Government submitted that the conditions of the applicant’s detention had been adequate and that the applicant’s submissions had been unsubstantiated.85. The applicant maintained his complaint and stated that the food and medical care in the facility had been terrible, leading to the deaths of many prisoners. To protest about his detention conditions he had had to go on hunger strike.86. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, no. 5310/71, 18 January 1978, § 161, Series A no. 25, and Kleutin v. Ukraine, no. 5911/05, § 52, 23 June 2016).87. The Court notes that the applicant’s complaint is formulated in general terms and is not sufficiently detailed for the Court to establish to what extent the applicant personally suffered from the conditions that he described. Furthermore, no judgment has yet been delivered by the Court in a case which concerned conditions of detention in prison no. 61 in the period referred to by the applicant. The Court therefore considers that this part of the application lacks substantiation and must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.3. The Kyiv SIZO and prison no. 4788. The Government referred to their factual submissions (see paragraphs 48, 49 and 54 above) and argued that the applicant’s allegations were unsubstantiated. They further referred to the applicant’s medical records and stated that the applicant had not complained to the domestic authorities that his state of health had worsened in the Kyiv SIZO or that, as a result, he had required medical assistance.89. The applicant maintained his complaints, referring to his factual submissions (see paragraphs 45-47 and 52-53 above).90. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.B. Merits1. The parties’ submissions91. The Government stated that both the Kyiv SIZO and prison no. 47 had offered conditions compatible with Article 3 of the Convention. As regards the latter they further stated that all the prison cells in which the applicant had been held had been sufficiently ventilated and disinfected, the temperature in the cells had been adequate, and prisoners with tuberculosis had been held separately from healthy detainees.92. The applicant disagreed.2. The Court’s assessment(a)  The Kyiv SIZO93. Article 3 of the Convention requires States to ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of the execution of such a measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).94. 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” within the meaning of Article 3 of the Convention and may disclose a violation, both alone or taken together with other shortcomings. When the personal space available to a detainee falls below 3 square metres of floor space in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises (see, amongst many authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39‑40, 7 April 2005, Ananyev and others, cited above, §§ 145-147 and 149, and Muršić, cited above, §§ 136-139). This presumption will normally be capable of being rebutted only if the following factors are cumulatively met: (1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor; (2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities; (3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see Muršić, cited above, §§ 130, 133 and 134).95. The Court notes that in the present case the applicant has provided some details concerning the size of each particular cell in which he stayed during specific periods of time, as well as the number of inmates accommodated therein, and other arrangements in each such cell. The Government provided their own description of the conditions in which the applicant had been detained and disputed the size of the cells and the number of detainees held in those cells, while also admitting that records concerning persons who had been in the Kyiv SIZO with the applicant had been destroyed.96. The Court does not find it necessary to resolve the factual dispute between the parties as, in any event, the available evidence indicates that during his stay in the Kyiv SIZO the applicant had lacked sufficient personal space. In particular, as reported by the Government, some of the cells in which the applicant had been detained had allowed between approximately 1.5 sq. m and 2.5 sq. m of floor space per inmate. The Government did not actually state how many inmates had occupied these cells at the relevant time, the records having been destroyed.97. Furthermore, given that the cells had also contained sanitary facilities, the personal space available to detainees had been further reduced.98. As regards other elements relevant for the assessment of the conditions of detention, the Court notes that the applicant’s submissions as regards unsanitary environment and non-respect for hygiene are well detailed. Moreover, on a number of occasions the Court has already found a violation of Article 3 of the Convention in respect of overcrowding and unsanitary environment in the same pre-trial detention centre during the same period of time – see Gavula v. Ukraine, no. 52652/07, 16 May 2013 (concerning the period from 26 February 2003 until August 2010); Koval v. Ukraine, no. 65550/01, 19 October 2006 (concerning the period from 3 August 1999 until 6 June 2000); and Kharchenko v. Ukraine, no. 40107/02, 10 February 2011 (concerning the period from 20 April 2001 until 4 August 2003). It therefore accepts the applicant’s description of the relevant facts.99. Although neither of the parties specified the amount of time the applicant had spent each day locked up in his cell, the Court observes, given the regulations concerning the SIZO regime in Ukraine, that the applicant and his cellmates had to spend most of each day in the above conditions (see Gavula, cited above, § 71).100. In these circumstances, the Court finds that the conditions of the applicant’s detention in the Kyiv SIZO (in particular the lack of personal space afforded to the applicant), combined with the unsanitary environment in respect of personal hygiene and the lack of outdoor exercise for almost three years of his detention, amounted to degrading treatment.

Outcome for Article 5: violation