ITEMID: 001-61062
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF DANKEVICH v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 3;Violation of Art. 8 with regard to initial period;No violation of Art. 8 with regard to later period;Violation of Art. 13;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 10. On 3 April 1997 the Zaporozhie Regional Court (Запорізький обласний суд) convicted the applicant of the murder of three persons and the attempted murder of one person and sentenced him to death.
11. On the same day the Administration of the Zaporozhie Isolation Block of the Central Department of the Ministry of the Interior (адміністрація слідчого ізолятору Головного Управління Міністерства внутрішніх справ України в Запорiзькій областi) decided to move the applicant to a separate cell to await execution, in accordance with the Pre-trial Detention Act 1993 (hereinafter “the Act”).
12. On 24 July 1997 the Supreme Court (Верховний суд) upheld the judgment of the first-instance court.
13. On 15 August 1997 the Prosecutor General (Генеральний Прокурор), on an extraordinary appeal by the applicant's mother, found that the national courts had properly assessed all the evidence adduced before them and had reached sound legal conclusions. He held that the appeal was manifestly ill-founded.
14. On 27 August 1997 the applicant filed a plea for pardon with the President of Ukraine.
15. On 19 September and 15 December 1997 the Vice-President of the Supreme Court refused two further extraordinary appeals by the applicant's wife and mother.
16. A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In a judgment no. 11рп/99 of 29 December 1999 the Constitutional Court held that the provisions of the Criminal Code concerning the death penalty were contrary to the Constitution of Ukraine. The death penalty was abolished and replaced by life imprisonment by Act no. 1483-III of 22 February 2000.
17. On 14 June 2000 the Zaporozhie Regional Court commuted the applicant's death sentence to one of life imprisonment.
18. The evidence of the applicant was taken by the Court Delegates in Zaporozhie Prison no. 1 on 6 October 1999. The Delegation was composed of Judges M. Pellonpää, J. Makarczyk and R. Maruste. The statements of certain witnesses were taken in Zaporozhie Prison no. 2. The evidence taken may be summarised as follows:
19. The applicant was admitted to Zaporozhie Prison no. 1 two weeks before the Court Delegates' visit. Previously, he had been detained in Zaporozhie Prison no. 2, where he had stayed for three years. On the day of the Court Delegates' visit, he confirmed that he had been informed about his rights and obligations. However, the practice in Zaporozhie Prison no. 2 had been different. He described it as follows: “Whenever a commission from Kiev came - they do not care much when the local commission from the supervising prosecutor's office comes - the prison authorities distributed a sheet of paper with rules, posted it on the walls and the next day took it off. Although the paper was not on the walls in the cells, we were informed about it.”
20. In Zaporozhie Prison no. 2, the applicant changed cells every week and later every month, having generally been detained alone. This practice had still been in force six months ago. According to him, the windows in his cells had been covered and there was no water tap. The cells for two inmates were the same size as those in Zaporozhie Prison no. 1, but those for one inmate were much smaller, even twice as small, as the cell where he was detained on the day of the Delegates' visit. The applicant acknowledged that he had been detained alone at his own request. However, when the prison administration of Zaporozhie Prison no. 2 had insisted that he share the cell with somebody else, he had agreed.
21. The applicant had not been officially informed about the moratorium on execution of death sentences, learning about it from the radio and other inmates.
22. When he had been transferred to death row, two inmates had been taken out to be executed. The executions had been carried out in Dnipropetrovsk Prison. Although inmates had rarely been informed about any execution taking place, they could observe that the inmates concerned had been handcuffed and taken away without their personal belongings, which had been recovered by the prison administration officials later.
23. According to the applicant, cells in Zaporozhie Prison no. 2 had been very cold in the wintertime until the heating was switched on and had been hot in the summertime.
24. The applicant had repeatedly complained of the conditions of detention in Zaporozhie Prison no. 2, but had always been told that there were no financial resources for improving them. He alleged that certain of his written complaints had not reached their addressees.
25. He had suffered from stomach aches and high acidity, but the prison medical staff had not given him medication because they did not have any, and had prescribed the wrong drugs, which had not helped him. A medical assistant had usually seen inmates once or twice a week, registering those wishing to see a doctor. However, a visit to the doctor had been permitted upon application to the prison governor. The applicant had visited the doctor outside his cell once or twice during his stay in Zaporozhie Prison no. 2. He said that he had probably applied to see a doctor only once because, on the first occasion, he had been examined not by a general practitioner but by a psychiatrist, and had been told that his stomach was fine, even though during the examination he had felt pain in his stomach. The applicant had then been allowed to have dietary food for one month.
26. The applicant said that some of his teeth had not been treated, but only extracted. His relatives had suggested bringing all the necessary medication for proper dental treatment, but the prison administration had refused. He said that, according to the regime, dental treatment had not been provided by Zaporozhie Prison no. 2.
27. The applicant had not been allowed to watch TV, but his relatives had brought him books and newspapers. He felt that in Zaporozhie Prison no. 1 there was a humane attitude among the prison staff, unlike Zaporozhie Prison no. 2, where he had been psychologically ill-treated. According to him, inmates' relatives had also been treated in a very improper manner.
28. The lamp in the applicant's cell in Zaporozhie Prison no. 1 where he was detained on the day of the Delegates' visit was permanently switched on and daylight was let in through the window. The lamp in his cells in Zaporozhie Prison no. 2 had been much stronger.
29. The applicant had started to have daily outdoor walks one and a half years before the Delegates' visit. He had been allowed to walk for 20-30 minutes, and sometimes for 50 minutes without handcuffs. The prison administration had not informed him how long walks had to last according to national law. His wife had brought a copy of the prison rules which specified that walks had to last for between one and two hours. To the Delegates' question: “When you were informed by your wife about those rules, did you complain that you had not been allowed to have meetings with your wife for one hour or to have walks according to these rules?” the applicant answered: “We filed complaints. Regarding the meetings, we were told that there were too many inmates, especially those who were still under investigation, and that the prison did not have enough facilities to allow all inmates to have longer meetings.” To the Delegates' next question: “Does that mean that this practice continued all the time?” the applicant answered: “Thanks to my wife, we found out that the prison rules adopted in 1993 allowed us to have one-hour meetings.”
30. When the applicant learnt that walks should last one hour, the prison administration prevented him from taking them. In practice, when other inmates went for an outdoor walk, he was summoned to a meeting. As soon as the meeting was over, the exercise period was over too. This had lasted until the applicant's wife and mother said that they would complain to the Court, and had stopped about one or two months before the Delegates' visit.
31. After the applicant's death sentence had become final, he was allowed to receive one parcel every two months. Once he had been given permission to go for outdoor walks, his correspondence had been limited to one letter per month and one small packet weighing up to two kilograms every six months, including food, toiletries and clothes. According to him, these allowances were not sufficient, taking into account the poor quality of the food in prison and the fact that at that time he had not been able to buy goods in the prison shop. He said that six months prior to the Delegates' visit a new rule was introduced allowing him to purchase goods for an amount equal to 70-75% of the statutory minimum wage. The applicant confirmed that he always had sufficient money in his prison bank account to buy goods from the prison shop.
32. As far as correspondence with his relatives was concerned, the applicant confirmed that at the date of the Delegates' visit he could send and receive an unlimited number of letters. He further confirmed that he had the right to receive one parcel of 8 kilograms and three small packets every two months.
33. The witness was the governor of Zaporozhie Prison no. 1. He had a staff of 129 officers.
34. The witness said that there were 836 detainees in the prison, of whom 176 were serving a prison sentence, including 18 on death row. He confirmed that the applicant had been transferred to Zaporozhie Prison no. 1 recently.
35. He confirmed that a document with prisoners' rights and obligations was posted in cells. Inmates could read it and familiarise themselves with the contents of the document. He said that several changes for death row prisoners had taken place since the moratorium on executions had been introduced: previously, they had not been allowed to go for daily outdoor walks and could receive only two small packages per year and one letter per month. He confirmed that the prison administration had informed the death row prisoners about the moratorium.
36. As to the number of prisoners in the cells, the prison administration complied with national law requiring that no more than two prisoners should be held in one cell. The administration respected inmates' wishes to be detained alone, as the applicant himself had requested. During winter, cells were heated to about 22-25o C.
37. Inmates could complain to him or to the public prosecutor, but the witness had not received any complaints. He said that every month an official from the Department for Execution of Sentences and the Deputy Public Prosecutor walked around the cells and collected complaints. Inmates complained of their sentences, but not of the detention conditions.
38. The witness visited death row inmates at least every week. On several occasions he had met the applicant, who had not complained of his detention conditions.
39. He confirmed that a member of the prison medical staff visited the cells on a daily basis. If need be, the inmate was transferred to the prison medical unit for appropriate treatment, or if necessary to a hospital.
40. The death row prisoners had started to take daily one-hour outdoor walks in March 1998. The changes concerning parcels and correspondence had been introduced on 25 June 1999. The prisoners were not handcuffed during their outdoor walks. Moreover, they had the right to have one two-hour meeting with their relatives per month and could receive six parcels and three small packets per year.
41. He said that outgoing letters were not censored, although they were opened and looked through. Incoming letters from the Court and the Prosecutor General were never opened, as provided for in the Pre-Trial Detention Act. Unlike letters to and from prisoners' relatives, parcels were registered in a special file. The witness said that no inmates had complained that letters had not been sent or received. As far as letters to inmates' legal representatives were concerned, prisoners usually applied for a visit by a lawyer. The witness confirmed that the procedure of not registering letters had been introduced on 25 June 1999.
42. The witness was the prison doctor and had been working in Zaporozhie Prison no. 1 for four years. She knew the applicant personally. She confirmed that the prison administration could provide all necessary dental treatment inside the prison. According to her, there was no difference in the medical regime between death row prisoners and other inmates.
43. The witness was the governor of Zaporozhie Prison no. 2. He took up his duties on 4 September 1998.
44. He said that on the day of the Delegates' visit, 1,735 persons were detained in the prison, all of them in pre-trial detention. He confirmed that the applicant had recently been transferred to Zaporozhie Prison no. 1.
45. The witness personally knew the applicant, who had not complained about his detention conditions, although in early July 1999 he had criticised the duration of his meetings with his relatives, alleging that they should have lasted for two hours. The head of the department and the first deputy to the regional prosecutor had investigated the facts and found that the applicant's complaint was well-founded. However, the prison administration could not grant the applicant longer meetings, having regard to the large number of prisoners waiting for such meetings. In general, inmates' complaints were registered in a journal and, at the same time, in their personal files. A reply was delivered to the inmate concerned for information and signature.
46. The witness confirmed that, before their sentences became final, inmates on death row could not send or receive correspondence, but two parcels per month were allowed. After the sentence became effective the regime changed.
47. The witness said that the applicant had moved from one cell to another every ten days in accordance with the rules, having been confined alone in a double cell as he had requested. He confirmed that all four death row cells in the prison facility were double cells of the same size. On the day of the Delegates' visit two of them were empty.
48. He confirmed that he had met the applicant's wife when she had asked for a meeting with her husband, but he had never heard any complaints from her regarding the applicant's conditions of detention.
49. The witness was the doctor in Zaporozhie Prison no. 2, where she had been working since June 1999. She had heard about the applicant, although he had never applied to her for any medical assistance.
50. She confirmed that every other day the feldscher (фельдшер) (medical assistant) walked around the cells and registered complaints and requests to see a doctor. She had not heard about the applicant's stomach problems, and denied that the applicant would have been refused dental care. According to her, the prison administration had a high-level professional dentist, and all inmates were entitled to his assistance.
51. The prison medical unit contained 15 persons including a radiologist, a dermatologist, a psychiatrist, a dentist, a physician and feldchers. The unit had all the necessary equipment and medication to provide qualified medical assistance. If inmates' relatives brought medicines or vitamins, the inmates received them through the medical unit. The witness confirmed that an inmate's consent was necessary for an HIV test. According to her, it was not possible that an inmate suffering from tuberculosis would be held together with another inmate: on arriving at the prison he underwent an X-ray examination, the results of which were ready on the same day. If he was diagnosed with tuberculosis, he was kept separately. If he came from preliminary detention, he had his medical record with him.
52. The Delegates visited the cell where the applicant was detained. The cell was about 10 square metres. It was renovated, in order and clean. There was an open toilet, a washbasin with a cold water tap, two beds and a table fixed to the floor, central heating and a window with bars. There were some books, a newspaper, and a stock of soap and toilet paper. The cell was sufficiently ventilated.
53. The Delegates saw the prison shower area, which seemed to be renovated and was clean. They also visited the exercise yard.
54. The Delegates visited two cells intended for inmates sentenced to death, which were empty on the day of their visit. The size of the cells was about 12 square metres. There was an open toilet, a washbasin with a cold water tap, two beds fixed to the floor, central heating and a window with bars. The cells were properly ventilated.
55. The Delegates saw the prison shower area shortly after a group of female detainees had taken a bath. The area included two rooms without windows. They were very humid and dirty.
56. The Delegates were not allowed to visit cells which were occupied by death row inmates.
57. According to the prison records, the applicant's wife and mother applied to visit the applicant on 21 August, 23 September, 23 October, 21 November and 23 December 1997 and on 18 and 25 February, 25 March, 18 April and 21 May 1998. They visited the applicant on 23 September, 23 October, 21 November and 23 December 1997 and on 23 January, 25 February, 25 March, 24 April and 26 May, 25 September and 27 October 1998. His mother also visited him on 26 January 1999 and his wife, on 25 December 1998 and 26 February 1999.
58. On 26 August, 27 October and 26 December 1997 and on 27 February, 24 April and 27 October 1998, the applicant received packages from his wife and mother. They generally contained food and toiletries, but also clothes.
59. The applicant regularly purchased goods from the prison shop. According to the prison shop records, in October and December 1997 he spent 16.30 Ukrainian hryvnas (UAH) and UAH 10.40. In February and March 1998 he bought different articles for UAH 10.25 and UAH 17.50. On 23 June (UAH 45.20), 18 August (UAH 64.66), 10 September (UAH 16.40), 19 October (UAH 18) and 12 November 1998 (UAH 6.20), he purchased food and toiletries. In January and February 1999 he spent UAH 38.94 and UAH 8.70.
60. According to the prison records, the applicant received money in his prison bank account on 3 July (UAH 40), 26 June (UAH 100), 8 September (UAH 30) and 27 October 1998 (UAH 50).
61. According to the prison records, the applicant sent letters on 18 May, 15 June, 19 August, 28 September and 29 October 1998. However, the document submitted to the Court did not specify the addressees.
62. On 12 November 1998 the Zaporozhie Regional Prosecutor informed a certain Mrs Belova that the prosecutor, on a complaint by her, had inspected Zaporozhie Prison no. 2. He had found that none of the death row inmates had complained of any violation of the Convention. As far as the regime and conditions of detention were concerned, the prison administration followed the provisions of the Instruction of 20 April 1998 (see paragraph 73 below). He further said that Mrs Belova's suspicion about tuberculosis being spread in the cells of the death row inmates had not been well-founded. He acknowledged that one inmate had died in March 1998 but his cell and those of his neighbours had been cleaned and disinfected. Moreover, inmates regularly underwent X-ray examinations and, so far, no inmates had had to be treated for tuberculosis.
63. Under Article 8 §§ 2 and 3, the Constitution is directly applicable. There is a guaranteed right to lodge an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of the Constitution of Ukraine.
64. Article 9 § 1 provides that international treaties, which are in force and agreed on as binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.
65. Article 15 § 3 prohibits censorship.
66. Under Article 19 the legal order in Ukraine is based on the principles according to which no one may be forced to do what is not envisaged by the legislation. State authorities and local self-government bodies and their officials are obliged to act only according to these principles, within the limits of their authority, and in the manner envisaged by the Constitution and the laws of Ukraine.
67. Article 22 provides that human and citizens' rights and freedoms are guaranteed and may not be diminished by the adoption of new laws or the amendment of laws that are in force.
68. Under Article 29 §§ 2 and 4 no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law. Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention, apprised of his rights, and from the moment of detention must be given the opportunity to defend himself in person, or to have the assistance of a defence lawyer.
69. Under Article 55 §§ 2 and 4, everyone is guaranteed the right to challenge the decisions, actions or omissions of State authorities, local self-government bodies, officials and officers of a court of law. After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which Ukraine is a member or participant.
70. Under Article 59 everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his rights. In Ukraine the Bar (адвокатура) ensures the right to a defence against charges and the provision of legal assistance in deciding cases in courts and before other State authorities.
71. Article 63 § 3 provides that a convicted person enjoys all human and citizens' rights, subject only to restrictions determined by law and established by a court ruling.
72. Under Article 64, human and citizens' rights and freedoms guaranteed by the Constitution may not be restricted, except in cases envisaged by the Constitution of Ukraine.
73. Conditions on death row in the Ukrainian prison system were successively governed by an Instruction of 20 April 1998 on conditions of detention of persons sentenced to capital punishment (hereinafter “the Instruction”) and by Temporary Provisions of 25 June 1999 on the conditions of detention of persons sentenced to capital punishment in the isolation blocks (hereinafter “the Temporary Provisions”).
74. The Instruction provided that after the sentence had become final, persons sentenced to death had to be kept in isolation from other prisoners in specially designed cells. Save in exceptional cases, no more than two such prisoners were to be detained in one cell. The cell area allocated to one prisoner in a single cell had to be not less than 4 square metres and in a double cell not less than 3 square metres. The prisoners were provided with an individual sleeping-place and with bed linen. They wore a uniform designed for the category of especially dangerous recidivists. Reference was also made to their legal status and obligations. This determined the frequency of meetings with relatives and the number of letters inmates could send and receive: they were allowed one visit per month and could send one letter per month. There was no limitation on the correspondence they could receive. The inmates could receive two small packets a year. They were allowed to have a daily one-hour walk in the fresh air. Outside their cells, inmates were handcuffed. They were not allowed to work.
Prisoners were also allowed to read books, magazines and newspapers borrowed from the prison library and/or bought through the prison distribution network; they could receive money transfers; they could keep personal objects and food in their cells and buy food and toiletries in the prison shop twice a month (up to the value of the statutory minimum wage), and play board games. They could meet lawyers. Medical treatment was provided in accordance with national legislation.
The prisoners could lodge complaints with State authorities. Such complaints had to be dispatched within three days. Complaints to the Public Prosecutor were not censored.
75. The Temporary Provisions extended the rights of persons sentenced to capital punishment in comparison with the Instruction. In particular, prisoners were allowed to have eight hours of sleep during the night; they could receive six parcels and three small packets per year, buy food and toiletries in the prison shop (up to the value of 70% of the statutory minimum wage), pray, read religious literature and have visits from a priest, and write complaints to State authorities. They were allowed to send and receive letters without any limits and to have monthly visits of up to two hours from their relatives. A prison official had to be present during visits.
76. According to the Code of Criminal Procedure, pre-trial detention is a preventive measure in respect of an accused, a defendant or a person suspected of having committed a crime punishable with imprisonment, or a convicted person whose sentence has not yet been enforced.
77. In accordance with section 8(4), persons sentenced to capital punishment whose sentence had not become final were held separately from all other detained persons.
78. Section 9(1) of the Act provides inter alia that detainees have the right (a) to be defended in accordance with the rules of criminal law, (b) to be acquainted with the rules of detention, (c) to take a one-hour daily walk, (d) to receive twice a month a parcel weighing up to eight kilograms and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery, (e) to buy foodstuffs and toiletries to the value of one month's statutory minimum wage, paying by written order, as well as unlimited amounts of stationery, newspapers and books in prison shops, (f) to use their own clothing and footwear and to have with them documents and notes related to their criminal case, (g) to use TV sets received from relatives or other persons and board games, newspapers and books borrowed from the library in their previous place of imprisonment or bought at shops, (h) individually to perform religious rituals and use religious literature and objects made of semi-precious materials pertaining to their beliefs, provided that this does not lead to a breach of the rules applicable to places of pre-trial detention or restrict the rights of other persons, (i) to sleep eight hours a night, during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency, and (j) to lodge complaints and petitions and send letters to State authorities and officials in accordance with the procedure prescribed by section 13 of the Act.
79. Under section 11, detainees are required to be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 square metres. Detainees are to be supplied with meals, an individual sleeping-place, bedclothes and other types of material and everyday provisions free of charge and according to the norms laid down by the Government. In case of need, they are to be supplied with clothes and footwear of a standard form.
80. In accordance with section 12(1), permission for relatives or other persons to visit a detainee (in principle, once a month for one to two hours) can be given by the administrative authorities of the place of detention, but only with the written approval of an investigator, an investigative authority or a court dealing with the case. Under paragraph 4, detainees have the right to be visited by defence counsel, whom they may see alone with no restrictions on the number of visits or their length, from the moment the lawyer in question is authorised to act on their behalf, such authorisation being confirmed in writing by the person or body dealing with the case.
81. Under section 13(1), detainees can exchange letters with their relatives and other persons and enterprises, establishments and organisations with the written permission of an authority dealing with the case. Once a sentence starts to run, correspondence is no longer subject to any limitations.
82. According to Article 28 of the Code (Main requirements of the regime in detention institutions), the main features of the regime in detention establishments are: the compulsory isolation and permanent supervision of sentenced persons, so as to exclude any possibility of the commission of new crimes or other acts against public order; strict and continuous observance of obligations by these persons; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person.
Sentenced persons must wear a uniform. They must also be searched; body searches must be conducted by persons of the same sex as the person searched. Correspondence is subject to censorship, and parcels and packages subject to opening and checking. A strict internal routine and rules must be established in corrective labour establishments.
Sentenced persons are prohibited from keeping money and valuables, or other specified objects, in corrective labour establishments. Any money and valuables found are to be confiscated and, as a rule, transferred to the State in accordance with a reasoned decision of the governor of the institution, sanctioned by a prosecutor.
A list of objects which sentenced persons are allowed to possess, showing the number or quantity of each item, and the procedure for confiscating objects whose use is prohibited in corrective labour establishments, must be established by the internal regulations of such establishments.
Under the procedure established by the Code, sentenced persons are allowed to buy food and toiletries, paying by written order, to be visited, to receive parcels, packages, postal packages and money by remittance, to correspond and to send money to relatives by remittance.
83. Article 37 § 1 (Purchase of food and toiletries by sentenced persons) provides that sentenced persons are allowed to buy food and toiletries, paying by written order, from the money received by remittance.
84. Article 40 provides inter alia that a lawyer may be given permission to meet his client on presentation of his licence and identity card. Visits are not limited as to their number and length and, at the lawyer's request, may be carried out without a prison warder being present.
85. Under Article 41 (Receipt of parcels and small packets by persons sentenced to imprisonment) sentenced persons held in corrective labour colonies (виправнo-тpудова колонія) are allowed to receive, per year: seven parcels in colonies subject to the general regime (колонія загального режиму), six parcels in colonies subject to the strengthened regime (колонія посиленого режиму) and five parcels in colonies subject to the strict and special regime (колонія суворого режиму). Sentenced persons held in educational labour colonies (колонія виховно-трудова) are allowed to receive per year: ten parcels in colonies subject to the general regime and nine parcels in colonies subject to the strengthened regime.
Convicted offenders serving their sentence in a prison are not allowed to receive parcels.
Irrespective of the type of regime under which they are held, sentenced persons are allowed to receive not more than two small packets per year, and to buy literature through the sales distribution network without any restrictions.
The quantity of parcels and small packets of all types is not restricted for sentenced persons held in corrective labour colony camps (виправнo-тpудова колонія-поселення).
A list of foodstuffs and toiletries which sentenced persons are allowed to receive in parcels and small packets, as well as the procedure for their receipt by and delivery to the sentenced persons, is to be established in the internal regulations of corrective labour establishments.
86. Under Article 42 (Receipt and sending of money by sentenced persons by remittance) sentenced persons are allowed to receive unlimited amounts of money by remittance, as well as to send money to their relatives and, if this is permitted by the authorities of the corrective labour establishments, to other persons. The money received by remittance is transferred to the personal account of the sentenced person.
87. Article 43 § 2 (Correspondence of persons sentenced to imprisonment) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows: one letter per month for those held under the general regime and one letter every two months for those held under the strengthened regime.
88. According to section 12(1), the public prosecutor deals with petitions and complaints concerning breaches of the rights of citizens and legal entities, except complaints that are within the jurisdiction of the courts. Paragraph 4 provides that an appeal lies from the prosecutor's decision to the supervising prosecutor and, in certain cases, to the court. Paragraph 5 provides that the decision of the Prosecutor General is final.
89. Under section 38 the prosecutor or his deputy has the power to make a request to a court for any material in a case where a judgment or another decision has come into force. If there are any grounds for reopening the proceedings, the prosecutor challenges the court judgment or any other decision.
90. Under section 44(1) the matters subject to the public prosecutor's supervision are: adherence to the legal rules on pre-trial detention and corrective labour or other establishments for the execution of sentences or coercive measures ordered by a court, adherence to the procedures and conditions for holding or punishing persons in such establishments; the rights of such persons; and the manner of carrying out by the relevant authorities of their duties under the criminal law and legislation on the enforcement of sentences. The public prosecutor may at any time visit places of pre-trial detention, establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform, in order to conduct interviews or peruse documents on the basis of which persons have been detained, arrested or sentenced or subjected to compulsory measures; he may also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such establishments, terminate the implementation of such acts, appeal against them or cancel them where they do not comply with the law, and request officials to give explanations concerning breaches which have occurred.
91. In its Resolution, the Assembly deplored the executions which, reportedly, had been carried out recently in Latvia, Lithuania and Ukraine. In particular, it condemned Ukraine for apparently violating its commitments to introduce a moratorium on executions of the death penalty upon its accession to the Council of Europe. It called upon this country to honour its commitments regarding the introduction of a moratorium on executions and the immediate abolition of capital punishment, warning it that further violation of its commitments, especially the carrying out of executions, would have consequences under Order No. 508 (1995).
92. The Assembly confirmed in this Resolution that it had received official information that, in the first half of 1996, eighty-nine executions had been carried out in Ukraine, and regretted that the Ukrainian authorities had failed to inform it of the number of executions carried out in the second half of the year. The Assembly was particularly shocked that executions in Ukraine had been shrouded in secrecy, with apparently not even the families of the prisoners having been informed, and that the executed prisoners had been reportedly buried in unmarked graves. It condemned Ukraine for having violated its commitment to put into place a moratorium on executions, deplored the executions that had taken place, and demanded that it immediately honour its commitments and halt any executions still pending.
93. In these texts, the Assembly noted that Ukraine had clearly failed to honour its commitments (212 persons had been executed between 9 November 1995 and 11 March 1997, according to official sources). At the same time, it noted that since 11 March 1997 a de facto moratorium on executions had been in effect in Ukraine. The Assembly insisted that the moratorium be reconfirmed de jure and that the Verkhovna Rada ratify Protocol No. 6 to the Convention. It stressed the importance of the de facto moratorium on executions and firmly declared that, if any further executions took place, the credentials of the Ukrainian parliamentary delegation would be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure.
94. Delegates of the CPT visited places of detention in Ukraine in the years 1998, 1999, and 2000. Reports on each of the visits were published on 9 October 2002, together with the Responses to the Reports of the Ukrainian Government.
95. The visit of the delegation, which took place from 8 to 24 February 1998, was the CPT's first periodic visit to Ukraine. In the course of the visit the delegation inspected, inter alia, the pre-trial prison (SIZO) (“investigation isolation” establishment) No. 313/203 in Kharkiv. On the ground floor of building No. 2 of SIZO No. 203 were housed at the time of the visit fifteen prisoners who had been sentenced to death, although as was recorded in a footnote to the Report, the delegation had received assurances that since 11 March 1997 a de facto moratorium on executions had been observed.
96. In its Report (paragraph 131), the CPT expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them. It was noted that prisoners sentenced to death were usually accommodated two to a cell, the cell measuring 6.5-7m². The cells had no access to natural light, the windows being obscured by metal plates. The artificial lighting, which was permanently on, was not always sufficiently strong with the result that some cells were dim. To ventilate the cells, prisoners could pull a cord that opened a flap; despite this the cells were very humid and quite cold (paragraph 132).
The equipment in the cells was described in the Report as being rudimentary, consisting of a metal bed and/or sloping platform (equipped with a thin mattress, sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold), a shelf and two narrow stools. Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell, but it had been reported to the delegation that the radio only functioned sporadically (ibid.).
All the cells had un-partitioned toilets which faced the living-area; as a result, a prisoner using the toilet had to do so in full view of his cellmate. As regards toiletries, prisoners sentenced to death were in a similarly difficult situation as many of the other inmates; items such as soap and toothpaste were rarities (ibid.).
It was further recorded that prisoners sentenced to death had no form of activity outside their cells, not even an hour of outdoor exercise. At best they could leave their cells once a week to use the shower in the cell-block, and for an hour a month, if they were authorised to receive family visits. In-cell activities consisted of reading and listening to the radio when it worked. Apart from the monthly visits which some inmates received, human contact was limited essentially to the occasional visit by an Orthodox priest or a member of the health-care staff, who spoke to the prisoners through a grille in the cell-door (paragraph 133).
97. The CPT summarised its findings in this regard as follows:
“In short, prisoners sentenced to death were locked up for 24 hours a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting, with virtually no activities to occupy their time and very little opportunity for human contact. Most of them had been kept in such deleterious conditions for considerable periods of time (ranging from 10 months to over two years). Such a situation may be fully consistent with the legal provisions in force in Ukraine concerning the treatment of prisoners sentenced to death. However, this does not alter the fact that, in the CPT's opinion, it amounts to inhuman and degrading treatment.” (paragraph 134).
It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation the progress of their cases, follow-up to applications for cases to be reviewed, examination of their complaints etc. (paragraph 138).
98. In its Response to the 1998 Report, the Ukrainian Government recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the CPT. In particular, the Temporary Regulations had been introduced to guarantee to prisoners sentenced to death the right to be visited once a month by relatives, to be visited by a lawyer to get legal assistance, to be visited by a priest and to receive and send correspondence without limitation. It was further noted
(i) that prisoners sentenced to death would have daily walks in the open air and that for this purpose 196 yards of the pre-trial prisons had been rebuilt or re-equipped;
(ii) that, in order to improve natural lighting and air of all cells, the blinds and metal peakes over cell windows had been removed; and
(iii) that, for the purposes of informing inmates sentenced to death of their rights and legal status, extracts from the Temporary Regulations had been placed on the walls of each cell.
99. A CPT delegation visited Ukraine from 15 to 23 July 1999 in the course of which they again inspected SIZO No. 313/203 in Kharkiv where, at the time of the visit, there were detained 23 prisoners who had been sentenced to death. The Report noted that certain changes had occurred since the previous visit. In particular, the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air, although it was observed that there was insufficient space for real physical exercise (paragraphs 34-35). The Report further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond (paragraph 36). However, the CPT noted certain unacceptable conditions of detention including the fact that prisoners continued to spend 23 out of 24 hours a day in their cells and that opportunities for human contact remained very limited (paragraph 37).
100. A third visit to Ukraine took place from 10 to 21 September 2000, in the course of which the delegation inspected, inter alia, the pre-trial prison (SIZO No.15) in Simferopol. The CPT welcomed the decision of the Ukrainian authorities to abolish the death penalty and noted that most of the approximately 500 prisoners subject to the death sentence had had their sentences commuted to life imprisonment.
101. Despite these welcome steps, the CPT recorded that the treatment of this category of prisoner was a major source of concern to the Committee (paragraph 67). It was noted that, further to a provisional instruction issued in July 2000 and pending the establishment of two high-security units specifically intended for life prisoners, such prisoners were subjected to a strict confinement regime (paragraph 68). While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited, there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation (paragraph 69). Moreover, life-sentence prisoners were confined in their cells for 23 ½ hours a day with no form of organized activities and, by way of activities outside their cells, were entitled to only half an hour outdoor exercise, which took place in unacceptable conditions. There was virtually no human contact: since the entry into force of the July 2000 instruction, visits from relatives had been forbidden and prisoners were only allowed to send one letter every two months, although there were no restrictions on receiving letters (paragraph 70).
102. In their Response to the Report the Ukrainian Government noted further legal amendments which ensured that life prisoners had one hour of exercise per day and two family visits of up to four hours per month. Further, to ensure adequate access to light, metal shutters had been removed from windows in all cells.
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