CASE OF PETUKHOV v. UKRAINE (No. 2)

1. The case originated in an application (no. 41216/13) 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 Volodymyr Sergiyovych Petukhov (“the applicant”), on 11 June 2013.
2. The applicant was represented by Mr A.P. Bushchenko, Mr M. O. Tarakhkalo, Mr I.V. Karaman, and Ms I.A.Boykova, lawyers who at the time were practising in Kyiv. In May and December 2017 Mr Karaman and Mr Bushchenko, respectively, informed the Court that their work on this case had been completed and that due to a change of post, they could no longer represent the applicant. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.
3. The applicant alleged, in particular, that he had been detained in poor conditions and without adequate medical assistance, contrary to the standards enshrined in Article 3 of the Convention. He further complained under the same provision that his life sentence was de jure and de facto irreducible. Lastly, the applicant complained under Article 8 of the Convention of restrictions on his right to family visits in prison.
4. On 16 November 2015 the Government were given notice of the above complaints and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1973 and is serving a sentence of life imprisonment in Kyiv Pre-Trial Detention Centre no. 13 (“the Kyiv SIZO”).
A. Previous proceedings before the Court (application no. 43374/02)
6. The applicant had already lodged an application before the Court, no. 43374/02, on 12 November 2002, complaining, in particular, of the inadequacy of his medical treatment in detention. He had also raised several complaints regarding his pre-trial detention and the length of the criminal proceedings against him.
7. On 21 October 2010 the Court delivered a judgment on the above ‑ mentioned application, in which it found violations of Articles 3, 5, 6 and 13 of the Convention (see Petukhov v. Ukraine, no. 43374/02, 21 October 2010).
B. Criminal proceedings against the applicant leading to his life sentence
8. On 3 December 2004 the Kyiv City Court of Appeal, sitting as a court of first instance, found the applicant guilty of a number of serious crimes committed by an organised criminal gang, namely several counts of aggravated murder, armed robbery, illegal arms possession and carjacking, as well as an attempt on the lives of law-enforcement officials. The applicant was sentenced to life imprisonment.
9. On 24 May 2005 the Supreme Court upheld that judgment.
C. Conditions of the applicant ’ s detention
1. Material conditions of detention
10. The applicant was detained in Kherson Prison no. 61, which had the status of a prison tuberculosis (“TB”) hospital, during the following periods: from 3 July 2010 to 22 January 2014, from 24 March to 19 October 2014 and from 2 December 2014 to 19 January 2015.
( i ) The applicant ’ s account
11. All the cells in which the applicant had been detained (he mentioned, in particular, cells nos. 3, 4 and 5) lacked sufficient daylight and fresh air. The windows were covered by an opaque film impeding access to natural light and could be opened only partially. The artificial ventilation system drew in air from the prison corridor only.
12. To substantiate the above submissions, the applicant referred to a letter sent to him from the Parliamentary Commissioner for Human Rights on 16 October 2013. As stated therein, a representative of that authority had visited the prison following the applicant ’ s complaints of poor conditions of detention. The letter read :
“ ... in order to rectify the deficiencies identified, it has been recommended that the management of the Kherson Regional Office of the State Department for the Enforcement of Sentences ensure that there is adequate natural light and artificial ventilation in the premises in which you are detained, and ensure that the outdoor walks, medical care and nutrition arrangements, as well as the choice of foodstuffs and articles of daily necessity [available] in the prison shop, comply with the legal requirements.”
13. In 2010-14 major repairs were carried out in the prison, causing inmates inconvenience such as noise, dust and the smell of paint.
14. The yards for outdoor walks, which were located on the roof and measured between 16 and 60 square metres, were dusty and littered with construction material, and provided no shelter from the sun or rain. While theoretically prisoners suffering from TB had the right to two-hour daily outdoor walks, in practice only a one-hour walk was possible.
15. The applicant ’ s cell was under constant video surveillance, including in the toilet. In support of that statement, the applicant submitted two images printed from the video records, which had been provided to him by the prison administration at his request. As explained by the applicant, those images had been recorded when he had been using the toilet in a sitting and in a standing position. In the first image, the applicant could not be seen; in the second image his head was visible. The applicant ’ s lawyer complained to the prison authorities about his permanent video surveillance. In May and July 2014 the Kherson Regional Office (“the regional office”) of the State Department for the Enforcement of Sentences (“the Prison Department”) replied to her that it was a statutory security measure, of which life prisoners were aware, and that the applicant ’ s intimacy had not been violated given that the video camera, which was indeed placed above the toilet area, did not cover the toilet itself.
16. The prison premises were not adequately disinfected, and the frequent transfer of life prisoners from one cell to another was dangerous for their health.
17. When the central heating was turned off, the temperature inside the cells was extremely low. For example, on 30 April 2014 the applicant had complained to the prison administration that it was too cold in his cell (the central heating had been switched off on 31 March 2014) and that his requests for permission to buy a portable heater at his own expense had been arbitrarily rejected. On 19 May 2014 the acting governor of the prison had replied to him that the use of portable heaters by prisoners was not envisaged by law.
18. The drinking water was of extremely poor quality, which the applicant thought was partly due to the dilapidated state of the pipelines.
19. The food provided to prisoners was inadequate and insufficient, and did not correspond to the needs of those suffering from TB. Meat, dairy products, fruit and vegetables could only be received from relatives or bought at the prison shop.
( ii ) The Government ’ s account
20. The conditions of the applicant ’ s detention were satisfactory. They had been further improved by refurbishment of the building. Each cell had windows measuring 130cm by 110cm, with a ventilation pane. The windows were covered with an opaque film (“frost-type”) permitting light to pass through.
21. Although sufficient financing was not available for modernising the ventilation system, air conduits had been added in the internal walls to enhance the artificial ventilation.
22. The cells were divided into those designated for inmates with active Mycobacterium TB ( “ MBT+”) and those with inactive MBT (“MBT-”). Transfers took place between either “MBT+” cells or “MBT-” cells, but not from one category to another. Cells were disinfected on a daily basis by means of a special liquid disinfectant. In addition, a routine disinfection of cells was carried out with portable ultraviolet germicidal irradiation lamps, the application of which was registered in a special logbook. Mattresses, pillows and blankets were disinfected regularly.
23. As Kherson Prison no. 61 had the status of a TB hospital, its inmates received five meals per day. Specifically, prisoners were served daily: 450 g of bread, 85 g of cereals, 540 g of potatoes, 550 g of vegetables, 300 g of fruit, 21 g of oil, 200 g of fruit juice, 50 g of butter, 500 g of milk, 100 g of cottage cheese, 15 g of cheese, 1 egg, 30 g of sour cream, 310 g of chicken meat, 110 g of fish, 60 g of sugar, 5 g of honey, 40 g of sweets, 4 g of chicory, 3 g of coffee, and 1 g of tea. The first breakfast usually consisted of porridge or pasta, fried or stewed meat with gravy, coffee, milk, bread and butter. The second breakfast consisted of cocoa with milk or compote, nuts, a biscuit, cottage cheese and sour cream. For lunch, prisoners had “ borsch ” or soup with cereals or pasta, or pickle soup made with meat stock, porridge or stewed cabbage, fried or stewed meat with gravy, vegetable salad, and bread. In the afternoon, fruit juice and fruit were served. For dinner, prisoners received stewed vegetables or mashed potatoes, fried or stewed fish, tea and bread and butter. The total energy value of a daily portion of food was 3,198 calories.
24. All foodstuffs supplied to the prison had quality certificates, as well as certificates of compliance with sanitary, veterinary and other standards. Meat and fish were stored in freezers. The prison had its own bakery and made its own bread from good-quality wheat.
25. The quality of water supplied to the prison was regularly checked. Thirteen reports on the tap-water chemical analyses carried out on various dates from 2010 to 2014 showed that the water was fully suitable for drinking.
(b) In the Kherson Pre-Trial Detention Facility (“the Kherson SIZO”)
26. The applicant was detained in cells nos. 392 and 394 of the Kherson SIZO from 22 January to 24 March 2014.
( i ) The applicant ’ s account
27. The Kherson SIZO was located in an old building in a dilapidated state. The cells were cold and damp, and the cell walls were covered with mould and fungus. The window panes were broken and partially missing.
28. In substantiation of his allegations, the applicant submitted eight colour photographs of some of the premises, which he claimed to be his cells in the Kherson SIZO. The photographs showed, in particular, large dark stains on the ceiling and walls, and a window with metal grids partially covered with plastic or cloth.
29. The applicant stated that on 3 March 2014 his lawyer had complained about the appalling conditions of his detention to the Kherson regional prosecutor ’ s office. She had stated in her complaint that cell no. 394, in which the applicant had been placed on 22 January 2014, had been found unsuitable for use by the SIZO administration, owing to a leaking ceiling, high humidity and low temperature. Although the applicant had been transferred, for a short period, to cell no. 392, he had subsequently been placed again in cell no. 394, where the conditions were manifestly incompatible with his poor health. The prosecutor ’ s reply was that the conditions of the applicant ’ s detention were satisfactory.
( ii ) The Government ’ s account
30. Both of the cells complained of were in satisfactory condition. Cell no. 392 measured 22.8 square metres and was equipped with ten beds. Cell no. 394 measured 10.7 square metres and had four beds.
31. There was one window in each cell. As of 20 March 2014 the inside temperature was +21 oC in cell no. 392 and +22 oC in cell no. 39 4.
32. There was a permanent water supply in the cells and the sanitary facilities functioned properly.
33. The SIZO administration had accepted that cell no. 394 required repairs and had carried them out at the SIZO ’ s expense. While those repairs were being carried out, the applicant had been transferred to cell no. 392. Thereafter, the walls in cell no. 394 had been dry and whitewashed, and the ceiling no longer leaked.
2. The applicant ’ s state of health and medical treatment
34. The applicant has been suffering from the residual effects of a multiple fracture of his left thigh as a result of a gunshot wound in 1999. He also has a medical history of pulmonary TB since 2002. The facts pertaining to his state of health and his medical treatment prior to his transfer to Kherson Prison no. 61 were analysed by the Court in its judgment on his previous application to the Court (see Petukhov, cited above, §§ 33-66 and 73-101 ) and are not referred to in the present judgment.
35. Having been diagnosed with a relapse of TB on 2 February 2010 while detained in Sokal Prison no. 47, on 3 July 2010 the applicant was transferred to Kherson Prison no. 61, which had the status of a prison TB hospital.
36. On 13 July 2010 prison doctors reported a failure of the applicant ’ s TB treatment. Sputum culture and bacterial sensitivity tests showed that he had developed resistance not only to first-line anti-TB drugs ( isoniazid, streptomycin and ethambutol) but also to second - line ones ( kanamycin, ethionamide and para-aminosalicylic acid). His right lung exhibited indications of damage aggravated by limited pleural empyema with bronchopulmonary fistula. He was also suffering from respiratory difficulties.
37. According to the records in the applicant ’ s medical file, from July 2010 to December 2014 he underwent forty-four bacteriological sputum tests; thirty general blood analyses (he reportedly refused to undergo tests on fourteen occasions ); fifty-six general urine analyses (with two reported refusals); as well as X-ray examinations approximately once every three months. He also underwent regular medical examinations.
38. On 23 November 2010 the applicant was certified as having a third ‑ degree disability (the mildest) on account of his tuberculosis and his thigh injury.
39. According to the information provided by the administration of Kherson Prison no. 61, the applicant refused to take anti-TB medication during the following periods: from 30 December 2010 to 9 February 2011, from 1 to 18 July 2011, and from 3 to 15 November 2011. According to the applicant, that information was inaccurate. He alleged that often, when certain medication had been unavailable, an entry had been made in his medical file that he had refused to take it.
40. On 1 December 2010 the regional office of the Prison Department wrote to the applicant ’ s lawyer stating that the supply of second-line anti ‑ TB drugs in Kherson Prison no. 61 was “extremely insufficient”. It was specified that, as of 26 November 2010, only three second-line drugs were available ( amikacin, kanamycin and ciprofloxacin). The standard practice was that the prison ordered the required first and second - line drugs from the central procurement service of the Prison Department at the end of each year for the entire year to follow. Sometimes those amounts turned out to be insufficient, but could not be replenished. For example, by the end March 2010 the prison hospital had already used the 700 bottles of capreomycin it had received for the year.
41. On 10 May 2011 the applicant was diagnosed for the first time with genito - urinary TB and was prescribed antibacterial treatment. As reported in his medical file, he underwent the prescribed treatment “ in short cycles depending on the availability of the prescribed drugs in the prison ’ s pharmacy”.
42. On 1 September 2011 the Kherson City tuberculosis clinic stated in an information note that Kherson Prison no. 61 had no second-line or substitute anti-TB drugs at its disposal. It was also stated that the applicant required further inpatient treatment with the following anti-TB drugs: rifampicin, pyrazinamide, capreomycin, levofloxacin, clofazimine and cycloserine.
43. On 12 September 2011 the Kherson City prosecutor in charge of supervising lawfulness in prisons, to whom the applicant had complained of inadequate medical treatment, wrote to him stating that there were no reasons for prosecutorial intervention.
44. On 2 November 2011 the regional office of the Prison Department wrote to the applicant ’ s lawyer stating that the supply of anti-TB drugs in Kherson Prison no. 61 remained “extremely insufficient”. As of 24 October 201 1, there were only two first - line drugs, isoniazid and pyrazinamide, whereas ethambutol, streptomycin and rifampicin were not available. Of the second-line anti-TB drugs, only kanamycin, ofloxacin and protionamide were available in sufficient quantities. The prison also had an insignificant quantity of gatifloxacin, rifapentine, para-aminosalicylic acid and sodium para-aminosalicylate. It was noted in the letter that the applicant ’ s state of health was satisfactory. The following medication had been prescribed for him: rifampicin, pyrazinamide, ethambutol, ofloxacin and capreomycin. It was noted in the letter that de facto the applicant was receiving only rifampicin (at his own expense) and pyrazinamide. Lastly, the official observed that the applicant had refused to be treated with ofloxacin on account of the poor state of his blood vessels.
45. On 25 November 2011 a disability evaluation board reassessed the applicant ’ s medical condition and certified him as having a second -degree disability (medium level).
46. On 20 January 2012 the regional office of the Prison Department wrote to the applicant ’ s lawyer stating that the applicant was receiving treatment in accordance with the prescribed regimen in its entirety, but that he was demonstrating a negative attitude to his treatment and often refused to follow it. The regional office also stated that the applicant was being provided with adequate nutrition and that the conditions of his detention were satisfactory.
47. In reply to an enquiry sent by the applicant ’ s lawyer, on 6 July 2012 the deputy governor of Kherson Prison no. 61 stated that the applicant was being treated with anti-TB medication under the DOTS programme (Directly Observed Treatment, Short-course). Given a shortage of terizidone in the prison pharmacy, the applicant had not been receiving it since 6 March 2012. All the other drugs prescribed for him were available “in relatively sufficient quantities”.
48. On 30 August 2012 the applicant sent a written statement to the head of the medical unit of Kherson Prison no. 61, claiming that he was obliged to stop his treatment because of the permanent shortage of medication. As only two out the required list of at least four drugs were available, he considered it pointless to continue the treatment.
49. On 30 November 2012 a thoracic surgeon examined the applicant and decided that surgical treatment for TB was not feasible.
50. According to an information note issued by the prison administration on 11 April 2013, all the drugs prescribed for the applicant were available. Before 21 February 2013 the only medication that had not been available in the prison pharmacy was cycloserine.
51. On 2 July 2013 the applicant underwent an examination by a panel of medical experts, which established that his medical treatment for TB had failed and had no prospects of success. The experts also confirmed the applicant ’ s second -degree disability (see paragraph 45 above). He was prescribed palliative treatment, having attained an incurable stage of TB.
52. On 23 July 2013 the prison administration wrote to the applicant ’ s lawyer stating that the decision to provide the applicant with palliative care was based on Order no. 1091 of the Public Health Ministry (see paragraph 72 below). The palliative care would consist of regular administration of isoniazid and symptomatic treatment. At the time of writing, isoniazid was available from the prison pharmacy. Furthermore, the applicant was receiving “disintoxication and strengthening therapy”.
53. On 25 October 2013 the regional office of the Prison Department issued an internal inquiry report regarding the applicant ’ s complaints of inadequate medical treatment for TB. It stated that the applicant was receiving the prescribed palliative treatment in its entirety and that there was no shortage of the required drugs. His health was stable and he remained under constant medical supervision. It was also observed that the disease with which the applicant had been diagnosed did not fall within the list of diseases constituting grounds for releasing a convict on health grounds.
54. On 21 March 2014 the applicant ’ s lawyer wrote to the director of the National Institute of TB Studies and Pulmonology named after F.G. Yanovskyy ( Національний інститут фтизіатрії та пульмонології ім. Ф.Г. Яновського АМН України ). She stated that the palliative care prescribed for the applicant included the administration of isoniazid on a permanent basis, as well as symptomatic treatment. However, the applicant had developed a steady resistance to isoniazid and his treatment therefore had to be adjusted. The applicant ’ s lawyer requested recommendations as to how such an adjustment could be made.
55. On 2 April 2014 the above-mentioned institute replied that, in the circumstances of the case, resorting to palliative care was indeed justified. It had been observed that the applicant ’ s medical treatment had not been able to stop the emission of tubercle bacilli for about two years, that the applicant had developed a resistance to most anti-TB drugs, and that there remained no room for any further adjustment of his treatment. Furthermore, surgery was not possible in his case. It was stated in the letter that the palliative care consisted of the administration of medication enhancing the functioning of the heart (depending on the symptoms manifested), vitamins, pyretic and analgesic therapy, as well as wholesome nutrition. The applicant also required a regular thoracotomy (drainage) of the right pleural cavity and its rinsing with antiseptics. Anti-TB drugs should not be administered to him given his resistance to them and their ineffectiveness, as well as their toxic effect on all the body organs.
56. Following a chest X-ray examination on 15 July 2014, “stabilisation of the TB process” was reported. Subsequent regular X-ray examinations showed no changes in the applicant ’ s lungs.
57. On 9 December 2014 the applicant was examined by a panel of doctors and underwent another X-ray examination. He was diagnosed with the following residual symptoms of tuberculosis : dense lesions, pneumono ‑ cirrhosis and massive pleural thickening from the right side. It was concluded that he could be monitored in a prison for healthy inmates. The doctors prescribed a vitamin -based treatment and immunological prophylaxis, and recommended that he avoid hypothermia.
58. On 7 August 2015 the applicant was transferred to the Kyiv SIZO to continue serving his life sentence.
59. On 11 August 2015 he underwent an X-ray examination, which confirmed the previous diagnoses.
60. On 23 February 2016 the applicant underwent another X-ray examination, which revealed significant post- TB residual changes in the form of multiple calcifications in the right lung with calcified costal pleura in the right side, and reduced volume of the right lung.
61. On 24 February 2016 the Kyiv SIZO issued a medical certificate stating, in particular, that the applicant ’ s medical condition did not fall under the list of diseases warranting his release for health reasons. His state of health was considered compatible with imprisonment.
62. On 15 March 2016 the applicant was examined by a senior doctor from the Kyiv City Medical Association for TB Studies ( Територіальне медичне об ’ єднання «Фтизіатрія» в м. Києві ) at the request of the Government Agent, following notification of the application to the Government. The diagnosis was as follows: post- TB residual changes in the form of pulmonary fibrosis, dense foci with calcified costal pleura. The absence of any indication of re-activation of TB was noted. The applicant was not considered to require any specialised medical treatment. Lastly, it was observed that the conditions of the applicant ’ s detention and the medical care arrangements afforded to him were in compliance with the applicable legal provisions.
D. The applicant ’ s requests for release on health grounds
63. On 23 December 2013 the applicant applied for release on health grounds under Article 84 of the Criminal Code of Ukraine (see paragraph 73 below). He submitted that his TB disease had become incurable because of failures by the authorities. He also argued that his irreducible life sentence ran contrary to Article 3 of the Convention.
64. On 17 June 2014 the Kherson Suvorovskyy District Court refused the applicant ’ s request on the grounds that his medical condition did not fall under the list of diseases warranting early release (see paragraph 74 below). The court considered that the applicant ’ s health had improved since 2010. In particular, the development of his TB had been stabilised and the emission of tubercle bacilli had stopped. Lastly, the court noted that the applicant had been convicted for a number of particularly serious crimes and that in the course of his detention, disciplinary measures had been applied to him twenty-eight times, whereas he had never been commended for good behaviour.
65. On 21 August 201 4 the Kherson Regional Court of Appeal upheld that decision by a final ruling. Like the first-instance court, it concluded that the preconditions for release on health grounds had not been met and that the applicant ’ s illnesses did not prevent him from serving his sentence.
66. In 2009 the applicant married his lawyer, Ms Boykova (see paragraph 2 above ). On that occasion they were allowed an extraordinary short-term meeting, during which they were separated from each other by a glass partition and communicated by telephone.
67. During his post-conviction detention until 16 February 2010 the applicant was allowed to see his wife (he had no other relatives in Ukraine) at short-term meetings lasting up to four hours once every six months. Subsequently, he was granted the right to have short-term visits once every three months (see paragraphs 95 - 97 below).
68. Following the entry into force on 6 May 2014 of legislative amendments entitling life prisoners to long-term family visits (for three days) every three months (see paragraph 98 below), the applicant ’ s wife complained to the penal authorities that requests made by the applicant to that effect had not been allowed.
69. On 25 June 2014 the Kherson Regional Office of the State Prisons Service (previously named “the Prison Department” ) replied to her that, indeed, life prisoners were entitled to a long-term family visit every three months. The prison administration was carrying out the necessary refurbishment with a view to creating adequate premises.
70. According to information provided by the prison administration, the applicant had sixteen short-term meetings with his wife ( not taking into account his meetings with her in her capacity as his lawyer) during the period from April 2014 to January 2015. He also had long-term visits from her on 1 August and 31 December 2014, each of which lasted for three days.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. TB treatment and palliative care
71. The principles of palliative care after a failure of medical treatment in cases of multi-resistant TB are set out in Order no. 620 of the Public Health Ministry of 4 September 2014. As indicated therein, palliative care should consist of pain management; treatment of respiratory insufficiency (oxygenotherapy); nutrition by frequent and small portions; symptomatic treatment of nausea; regular medical examinations; pathogenetic therapy; hospitalisation, treatment in a hospice or at home; prevention of bed sores and muscle contractions; sanitary and hygiene measures; and infection control (patients remain contagious for the rest of their lives).
72. The above-mentioned Order replaced Order no. 1091 of 21 December 2012, which had provided for the same palliative care measures but had also provided for the administration of isoniazid, regardless of a patient ’ s resistance to it.
B. Dispensation from serving a prison sentence on health grounds
73. The relevant provisions of the Criminal Code of 2001 read as follows:
Article 84. Release on health grounds
2. A person who, after the commission of a crime or after the pronouncement of the verdict, has started to suffer from [a serious] illness preventing him or her from serving his or her sentence, may be dispensed from serving the sentence or the outstanding part of the sentence. When deciding on this matter, a court shall take into account the seriousness of the crimes committed, the nature of the illness, the person ’ s character, as well as other circumstances of the case.
4. If the convicted person has recovered, he or she must continue serving [his or her] sentence ... ”
74. The Prison Department and the Public Health Ministry adopted joint Decree no. 3/6 of 18 January 2000 setting out a list of diseases which could serve as a basis for applying for release under Article 84 of the Criminal Code. On 15 August 2014 the Ministry of Justice and the Public Health Ministry adopted joint Order No. 1348/5/572, which repealed the above-mentioned decree and contained a new list. It remained the same in the part concerning TB. A prisoner could apply for release on health grounds if he or she was suffering from: (1) advanced fibrous cavernous pulmonary TB affecting both lungs, or chronic total pleural empyema with bronchopulmonary fistula and second or third-degree (that is medium-gravity or the most serious) pulmonary and cardiac insufficiency; (2) advanced infiltrative pulmonary TB (caseous pneumonia) with manifestations of third-degree pulmonary and cardiac insufficiency; or ( 3 ) advanced destructive spinal or bone TB complicated by amyloidosis of the internal organs, cavernous kidney TB affecting both kidneys and complicated by specific urethral processes and development of chronic kidney failure in a terminal stage leading to complete and steady loss of working capacity.
75. By a decision of 29 December 1999 the Constitutional Court declared the death penalty, which had been in force until then, to be contrary to the Constitution of Ukraine. As a follow-up, on 22 February 2000 the Verkhovna Rada of Ukraine (“the Parliament”) adopted legislative amendments to the Criminal Code of 1960 introducing the penalty of life imprisonment. The amendments entered into force on 29 March 2000.
76. On 5 April 2001 the Parliament adopted a new Criminal Code, which entered into force on 1 September 2001. Its relevant provisions, as worded following subsequent amendments, read as follows:
Article 12. Classification of criminal offences
“1. Depending on their gravity, criminal offences are divided into: minor, of medium gravity, serious and particularly serious.
4. A serious crime is a crime punishable by a fine of up to 25,000 times the non-taxable income amount or imprisonment of up to ten years.
5. A particularly serious crime is a crime punishable by a fine of over 25,000 times the non-taxable income amount, imprisonment for over ten years or life imprisonment. ... ”
Article 63. Fixed-term imprisonment
“1. Punishment in the form of imprisonment consists in the isolation of a convict in a closed-type penal facility for a fixed term.
2. Imprisonment may be applied for a term of one to fifteen years, except for the cases provided for under the General Part of this Code.”
“Life imprisonment is envisaged [as punishment] for particularly serious crimes and shall be imposed only in cases explicitly provided for by this Code and where a court does not consider it possible to impose a fixed term of imprisonment.
Life imprisonment shall not be imposed in respect of persons who were under the age of 18 at the time of the commission of the offence, persons older than 65 years, women pregnant at the time of the commission of the offence or at the time the verdict was pronounced, as well as in the case provided for by Article 68 § 4 of this Code.”
Article 68. Penalties for incomplete crimes and conspiracy to commit crimes
4. Life imprisonment shall not be imposed [as a penalty] for crime preparation and attempted crime, except in cases of crimes against the fundamentals of the national security of Ukraine ..., against peace, public security and the international legal order ....
“1. Release on parole may be applied to persons sentenced to correctional work, duty-related restrictions for military officers, restriction of liberty, custody in a penal battalion for military officers, or [fixed-term] imprisonment. ... ”
77. Under the Criminal Code of 2001, the penalty of life imprisonment is never provided as the only possible punishment, but always as an alternative to a fixed term of imprisonment, and it is for the courts to choose the most appropriate penalty in each individual case.
(a) Constitution of Ukraine 1996
78. Paragraph 27 of part 1 of Article 106 of the Constitution of Ukraine provides the President of Ukraine with the power of clemency.
79. The relevant provision reads as follows:
“ 1. The President of Ukraine may grant clemency to particular individuals.
2. Clemency may consist in replacing a life sentence imposed by a court by a sentence of fixed-term imprisonment for no less than twenty-five years. ... ”
80. The provision cited above has been worded in the same way since the enactment of the Criminal Code in 2001.
(c) Code of Enforcement of Criminal Sentences 2003
81. Before the legislative amendments of 16 March 2006, the provisions of the Code pertaining to conditions of detention had referred to the possibility of replacing life imprisonment by a fixed-term prison sentence, but had not contained any further details in that regard.
82. On 16 March 2006 a new paragraph 7 was added to Article 151 of the Code, reading as follows:
Article 151. Procedure for and conditions of serving a life sentence
7. A convict sentenced to life imprisonment may apply for clemency after having served at least twenty years of the imposed sentence. ”
83. Subsequently, on 21 January 2010, the following provision was added:
Article 151-1. Changes to the conditions of detention of life prisoners
2. Male life prisoners may be transferred:
- from cell-type premises shared by two inmates to multi-occupancy cell-type premises of a maximum-security prison, with permission to participate in group educational, cultural and sport activities ... – after having de facto served at least five years [before further amendments of 8 April 2014 that period had been ‘ at least fifteen years ’ ] of their sentence in such premises;
- from multi-occupancy cell-type premises to ordinary residential premises in a maximum-security prison – after having de facto served at least five years of their sentence in such premises.
3. Life prisoners who breach the established order in the prison in a malicious manner may be transferred from ordinary residential to cell-type premises of a maximum-security prison.
4. The [above] changes ... shall not apply to life prisoners suffering from a sexually transmitted disease, an active form of tuberculosis or a psychiatric disorder.”
84. The Scientific and Practical Commentary on the Code of Execution of Criminal Sentences of Ukraine ( Кримінально-виконавчий кодекс України: Науково-практичний коментар, 2-ге вид., перероблене та доповнене / За заг. ред. А.Х.Степанюка. – ТОВ «Одіссей», 2008) contained a calculation of the minimum duration of imprisonment in the event that a life prisoner ’ s request for presidential clemency was granted. According to the author, that period would amount to thirty-eight years and nine months (twenty years being the minimum statutory “waiting” period before a life prisoner was eligible to apply for clemency, plus eighteen years and nine months, being two thirds of the subsequent fixed-term imprisonment of twenty-five years, after which release on parole would be possible).
(d) Presidential Decree on Clemency Procedure Regulations
85. The Clemency Procedure Regulations ( Положення про порядок здійснення помилування ), approved by a presidential decree, set out the procedure to be followed by the President of Ukraine in order to implement his clemency power. Since the declaration of independence by Ukraine in 1991, several versions of the regulations were adopted, each one replacing the former version, albeit not varying considerably.
86. The regulations currently in force were approved by Presidential Decree No. 223/2015 on 21 April 2015 (and further amended on 14 May 2016). The relevant part reads as follows:
“1. These Regulations define the procedure for presidential clemency under paragraph 27 of part 1 of Article 106 of the Constitution of Ukraine.
2. Clemency for convicts shall consist in:
- replacement of life imprisonment by fixed-term imprisonment for at least twenty-five years; ...
3. The following persons shall be entitled to apply for clemency:
- a person convicted by a Ukrainian court and serving a sentence of imprisonment in Ukraine;
- [his or her] defender, parent, spouse, child or other family member.
In exceptional cases, subject to extraordinary circumstances, the head or a member of the Presidential Clemency Commission ( Комісія при Президентові України у питаннях помилування; hereinafter: “the Clemency Commission”), the Parliamentary Commissioner for Human Rights, the Commissioner for Children ’ s Rights, the Commissioner for Disabled Persons ’ Rights, or the Commissioner for the Rights of the Crimea Tatar People may lodge a request for clemency.
Life prisoners may lodge a request for clemency at the earliest after having served twenty years of the sentence imposed.
5. Persons convicted for serious or particularly serious crimes, or on two or more counts of premeditated crimes ... may be granted clemency in exceptional cases and subject to extraordinary circumstances. ...
6. An application for clemency ... shall be lodged through the administration of the prison [in which the person is serving his or her sentence]. The prison administration shall register the application in accordance with the established procedure and without delay, and shall forward it within fifteen days of the date on which it was lodged to the Administration of the President of Ukraine, together with copies of the verdict [and other judicial decisions], the person ’ s character reference with a written opinion of the [prison] administration ... as regards the appropriateness of clemency, as well as other documents and information of relevance for deciding on the application for clemency.
Prisoners may enclose any other documents which they consider relevant.
7. The Presidential Clemency Department ( Департамент з питань помилування Адміністрації Президента України – hereinafter “the Clemency Department”) shall prepare the case file for examination of the application for clemency and shall inform the applicant of the result. To fulfil its tasks, the Clemency Department is entitled to request, in accordance with the established procedure, and to receive, various documents, information and material from State authorities, local self-government bodies and penal institutions.
8. The Clemency Commission ... shall carry out a preliminary examination of requests for clemency and the material prepared by the Clemency Department.
The President of Ukraine shall establish the Clemency Commission with the following composition: a head, two deputy heads and members. One of the two deputy heads of the Clemency Commission is ex officio the head of the Clemency Department. One of the members of the Clemency Commission shall perform the functions of secretary.
The Clemency Commission shall include highly qualified lawyers, public figures, politicians and intellectuals.
[It] shall operate in meetings convened and conducted by its head or, in his or her absence, by one of the deputy heads.
A meeting of the Clemency Commission shall be legitimate if the majority of its members are present.
Decisions of the Clemency Commission shall be taken by a majority vote of the members present. In the event of an equal number of votes, the chairman ’ s vote shall be decisive.
9. The following considerations shall be taken into account in the examination of requests for clemency:
- the seriousness of the committed crime, the duration of the sentence already served, the character of the convict, his or her behaviour, the existence of sincere repentance, compensation for or redress of the damage caused, as well as family-related and other circumstances;
- the opinion of the [prison] administration, the supervisory board, the children ’ s commission, the local executive authority, the local self-government body, non ‑ government organisations and other entities about the appropriateness of clemency.
10. The Clemency Department shall inform the Clemency Commission of applications which are inadmissible under the provisions of the present Regulations.
11. Proposals of the Clemency Commission after the preliminary examination of requests for clemency shall be documented in a report signed by the head and the secretary.
12. The Clemency Commission shall make its proposal to the President of Ukraine on granting a request for clemency on the basis of the preliminary examination of [that request ] and the material prepared by the Clemency Department.
The Clemency Commission shall inform the President of Ukraine of applications for clemency which it considers should not be granted.
13. Clemency is awarded by means of a decree issued by the President of Ukraine.
14. In the event that the Clemency Commission rejects an application for clemency, the prisoner may lodge a new request for clemency, provided that there are no new noteworthy circumstances, at the earliest one year after the rejection of the previous request by the Clemency Commission. ... ”
87. Prior to 16 September 2010 (Presidential Decree No. 902/2010), the regulations had not specified the procedure for lodging a request for clemency through the prison administration. The regulations in force until then had stated that such a request, together with the relevant documents and material, was to be forwarded to the Secretariat of the President of Ukraine. The version in force thereafter specified that the prison administration was under an obligation to register such an application and to send it to the Presidential Administration within fifteen days.
88. Furthermore, prisoners became entitled to submit, along with their request for clemency, any additional documents which they considered to be of relevance, starting from 21 April 2015 (Presidential Decree No. 223/2015). Until then, such a possibility had been open only for the prison administration.
89. The above-mentioned Presidential Decree of 21 April 2015 outlined, for the first time, the criteria regarding the composition of the Clemency Commission, stating that “ highly qualified lawyers, public figures, politicians and intellectuals ” could be appointed as its members.
90. Lastly, the legislative amendments of 14 May 2016 gave the head or a member of the Clemency Commission, the Parliamentary Commissioner for Human Rights, the Commissioner for Children ’ s Rights, the Commissioner for Disabled Persons ’ Rights, or the Commissioner for the Rights of the Crimea Tatar People the right to lodge an application for clemency, in exceptional cases and subject to extraordinary circumstances.
2. Publicly available information on domestic practice
91. On 6 July 2016 the Head of the Clemency Department, Mr Bukalov, briefed the media on the work of his Department during the first half of 2016. The summary provided by him was published on the Presidential Administration ’ s website. It stated that during the first half of 2016 the Clemency Department had received 669 requests for clemency, of which 276 had been examined. Forty-one prisoners had been granted presidential clemency: twenty-two of them had been absolved from serving the outstanding part of their sentences, whereas nineteen prisoners had had their outstanding sentences reduced. Furthermore, Mr Bukalov provided the following statistics: during the period from 2011 to 2014 every 100 th applicant had been granted clemency; in 2015 every ninth, and in 2016 every seventh, request for clemency had been successful.
92. As regards life prisoners, Mr Bukalov stated:
“Life prisoners are an important category of potential applicants. These persons can neither count on amnesty, nor are they entitled for release on parole. Clemency is the only chance for them to regain their liberty. To become eligible for lodging a request for clemency, they must serve at least twenty years of their sentence. As of June 2016, of the 70 -plus [life prisoners] who had already served that term, about 40 had used their right to apply for [presidential] clemency. However, no life prisoner has been granted clemency for the time being.
The Clemency Commission treats requests from such prisoners with particular diligence. On two occasions its members visited prisons in order to talk in person with the life prisoners seeking clemency.”
93. In April 2018 numerous mass - media outlets reported that presidential clemency had been granted for the first time to a life prisoner in Ukraine. It became known that Ms K. , who had been sentenced to life imprisonment in 2005 for aggravated double murder and who had de facto served twenty years and two months of her sentence, had been released on 10 April 2018 in accordance with Presidential Decree No. 49/2018 of 28 February 2018. The decree in question is not publicly available. The parties did not make any submissions to the Court in respect of the above ‑ mentioned event.
E. Family visits for life prisoners
94. The relevant provisions of the Code of Execution of Criminal Sentences 2003 can be summarised as follows.
95. Pursuant to Article 110, a short-term visit in a prison lasts up to four hours and a long-term visit, up to three days.
96. Under Article 151, as worded before 16 February 2010, convicted prisoners sentenced to life imprisonment were entitled to one short-term visit every six months.
97. Following the entry into force of amendments on 16 February 2010, prisoners of that category became entitled to one short-term visit every three months.
98. Subsequently, Article 151 was further amended with effect from 6 May 2014, after which prisoners serving a life sentence became entitled to one short-term visit per month and one long -term visit every three months.
99. Following another round of amendments, which were adopted on 7 September 2016, life-prisoners are now entitled to one long-term family visit every two months.
100. Article 151 specifies that such visits are for meeting close relatives (a spouse, parents, children, step-parents, stepchildren, siblings, grandparents and grandchildren).
III. RELEVANT INTERNATIONAL MATERIAL
101. The relevant extracts from the “Treatment of Tuberculosis: Guidelines” by the World Health Organisation (fourth edition, 2009) are quoted in the Court ’ s judgment on the case of Makshakov v. Russia (no. 52526/07, § 50, 24 May 2016).
102. The relevant excerpt from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT ”) from 21 to 30 November 2016 (CPT/Inf (2017) 15) read as follows ( footnotes omitted ):
“ 41. Prison health care is another area of long-standing concern to the CPT – a concern that was shared by the delegation ’ s interlocutors at the Ministry of Justice. As acknowledged by them, and again observed by the delegation in the establishments visited, health-care staffing levels continue to be insufficient (moreover, many health ‑ care workers are approaching retirement age, younger staff are either leaving the system or unwilling to work in it due to the unattractive conditions), the premises and equipment are run down, outdated (some dating back to the Soviet times) and incomplete, the supply of medication problematic (despite the assistance provided by the International Committee of the Red Cross, the Global Fund and the World Health Organization thanks to which there had recently been a slight improvement) and the quality of care (including professional standards) leave much to be desired. ”
103. In their joint report “ Tuberculosis surveillance and monitoring in Europe 2018 – 2016 data”, the Regional Office for Europe of the World Health Organisation and the European Centre for Disease Prevention and Control stated :
“ In the 2015 cohort of all clinically-diagnosed and bacteriologically-confirmed new TB and relapse cases, a total of 17 403 (8.0%) cases were reported to have died, 4.6% to have been lost to follow-up and 4.2% to have had treatment that failed. [ ... ] Countries reporting the highest failure rates were Ukraine (8.2%) and Russia (7.0%).
The WHO European Region is the most affected area for MDR TB in the entire world. Of the 30 countries in the world with the highest MDR TB burden, nine are in the Region (Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Ukraine and Uzbekistan). ”
104. Furthermore, in 2016 the World Health Organisation ’ s Regional Office for Europe published a report entitled “Anti-tuberculosis drug resistance among tuberculosis patients in Ukraine and risk factors for MDR ‑ TB: Results of the first national survey, 2013-2014”, in which it stated:
“This first national anti-TB drug resistance survey implemented in Ukraine detected alarmingly high proportions of TB cases with MDR-TB: 24.1% among new and 58.1% among previously treated cases. ...
Despite more than two decades since the country regained its independence, with associated ruptures with the former system for TB treatment and care, drug-resistant TB continues to spread in Ukraine. The reasons for this ongoing MDR-TB epidemic in the country are numerous and include: continued shortages of first-line drugs both at peripheral and central levels resulting in suboptimal treatment; lack of access to second-line full treatment schemes, especially in prison settings ... ”
105. The relevant texts of the Council of Europe and other international legal texts on the imposition and review of life sentences, as well as the importance to be attached to rehabilitation, are set out in Kafkaris v. Cyprus ( [GC], no. 21906/04, §§ 68-76, ECHR 2008 ), Vinter and Others v. the United Kingdom ( [GC], nos. 66069/09 and 2 others, §§ 60- 67, ECHR 2013 (extracts) ), and Murray v. the Netherlands ([GC], no. 10511/10, §§ 70-76, 26 April 2016).
106. A summary of, and relevant extracts from, the 25th General Report of the CPT entitled “ Situation of life-sentenced prisoners” (CPT/Inf(2016)10-part) can be found in the Court ’ s judgment on the case of Matiošaitis and Others v. Lithuania (nos. 22662/13 and 7 others, §§ 114-15, 23 May 2017).
107. The relevant excerpt from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 8 to 21 December 2017 (CPT/Inf (2018) 41) read as follows (original emphasis, footnotes omitted):
78. Concerning the regime for life-sentenced prisoners, the situation has remained basically unchanged as the relevant legislation has not been amended despite the CPT ’ s long-standing recommendations. Lifers continued to be segregated from other prisoners and spent up to 23 hours per day in their (usually) double or triple-occupancy cells, with little in terms of organised activities and association (with the exception of occasional work and limited access to the gym, table tennis and the Internet – up to one hour per day – in Lviv and Ivano-Frankivsk). The situation was particularly difficult for those of the inmates who were accommodated alone in their cells (either on their own request or on security grounds, because they were deemed to represent a danger to their fellow prisoners), whose regime de facto amounted to solitary confinement, for years on end.
79. The CPT remains of the view that the regime for life-sentenced prisoners in Ukraine should be fundamentally reviewed, so as to include a structured programme of constructive and preferably out-of-cell activities; social workers and psychologists should be proactive in working with life-sentenced prisoners to encourage them to take part in that programme and attempt to engage them safely with other prisoners for at least a part of each day. There is no justification to systematically segregate life-sentenced prisoners from the rest of prisoner population.
Consequently, the CPT once again calls upon the Ukrainian authorities to develop the regime for life-sentenced prisoners, in particular by providing more communal activities (including access to work and education). Access to the Internet should be offered to life-sentenced prisoners at Kyiv SIZO.
The Committee also once again urges the Ukrainian authorities to integrate life-sentenced prisoners into the general prison population as soon as possible following their conviction (taking into account the European Prison Rules and the Committee of Ministers ’ Recommendation Rec (2003) 23 on the management by prison administrations of life sentence and other long-term prisoners).
80. Furthermore, in all the establishments accommodating life-sentenced prisoners (except Ivano-Frankivsk SIZO), custodial staff continued to use unmuzzled service dogs inside the lifers ’ units, when escorting prisoners outside their cells including for outdoor exercise. The CPT once again calls upon the Ukrainian authorities to stop this dangerous and intimidating practice immediately.
81. Further, the Committee must recall the basic principle that, in order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee the safety of the outside community, the law should offer a realistic prospect of conditional release to all sentenced prisoners, including life-sentence prisoners. This is still not the case at present.
The CPT once again calls upon the Ukrainian authorities to amend the legislation with a view to making conditional release (parole) available to all life ‑ sentenced prisoners, subject to a review of the threat to society posed by them on the basis of an individual risk assessment. Reference is also made here to the CPT ’ s 25th General Report. ”
A. Distinguishing the applicant ’ s complaint of inadequate medical care from that covered by the Court ’ s judgment on his previous application ( Petukhov v. Ukraine, no. 43374/02, 21 October 2010 )
108. The applicant submitted that he had lodged the present application, in so far as his complaint of inadequate medical care was concerned, so that the Court would examine the deficiencies in his medical treatment in detention as from August 2002, and not only as from the date of his transfer to Kherson Prison no. 61 in July 2010.
109. The Government confined their observations on that aspect to the period of the applicant ’ s detention starting from July 2010.
110. The Court notes that, when giving notice of the present application to the respondent Government on 16 November 2015, it pointed out in the “Statement of facts”:
“In the applicant ’ s prior application no. 43374/02 the Court, in a judgment of 21 October 2010, found that the State had failed to comply with its obligations to secure the applicant ’ s health in detention from August 2001 to August 2002.”
111. The Court further observes that the Government were given notice of application no. 43374/02 on 6 November 2008 ( see Petukhov, cited above, § 4). Thereafter, in the first half of 2009, the parties exchanged their observations on the admissibility and merits of the case. Both of them had been free to refer to any facts regarding the medical care provided to the applicant in detention up until the date of their observations. Even subsequently, nothing had prevented them from providing the Court with a factual update on the matter.
112. In its judgment of 21 October 2010 the Court observed the absence of any medical documents covering the period between the applicant ’ s admission to the SIZO in August 2001 and the date of his diagnosis with TB in August 2002 ( idem, § 94). The Court stated that it “[had] doubts as to the availability of adequate medical assistance to the applicant before August 2002” ( idem, § 96). Furthermore, the Court noted the absence of any evidence showing that the applicant had received any particular treatment in respect of his thigh injury prior to 2006 ( idem, § 97).
113. In other words, the Court based its analysis of that complaint on the material which was available in the case file at the time and which the applicant had had ample opportunity to supplement in due time. The temporal scope of the previous application covered the period from August 2001, when the applicant had been placed in detention, till the date of the Court ’ s judgment, 21 October 2010. Since the parties had not provided the Court with any information regarding the medical care provided to the applicant since his transfer to Kherson Prison no. 61 on 3 July 2010, the period from 3 July to 21 October 2010 had not been analysed in the case of Petukhov (cited above).
114. The Court therefore considers that the scope of the applicant ’ s complaint in the present case regarding the alleged failure of the State to comply with its obligation to safeguard his health in detention should be limited to the period of his detention starting from 3 July 2010, that is the date of his transfer to Kherson Prison no. 61, which was not the subject-matter of the Court ’ s judgment on application no. 43374/02.
B. Complaints raised for the first time after the communication of the case to the Government
115. In his submissions of 4 June 2016 made in reply to the Government ’ s observations, the applicant complained for the first time about the conditions of his detention in the Novgorod-Siverskyy SIZO, where he had been detained from 29 May to 7 August 2015, and in the Kyiv SIZO, where he had been detained from 19 October to 2 December 2014, from 19 January to 29 May 2015 and from 7 August 2015 onwards.
116. The Court notes that these new, belated complaints do not constitute an elaboration or elucidation of the applicant ’ s original complaints, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see Korneykova and Korneykov v. Ukraine, no. 56660/12, §§ 95-96, 24 March 2016, and contrast Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 122 and 129, 20 March 2018).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE CONDITIONS OF THE APPLICANT ’ S DETENTION
117. The applicant complained that he had been detained in poor conditions in Kherson Prison no. 61 and the Kherson SIZO and that he had not been provided with adequate medical treatment. 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.”
1. Material conditions of the applicant ’ s detention
118. The Court reiterates that, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as of specific allegations made by the applicant. The length of the period during which a person is detained in the particular conditions has also to be considered (see Muršić v. Croatia, [GC], no. 7334/13, § 101, 20 October 2016, with further references).
119. The Court notes from the outset that the applicant ’ s criticism of the conditions of his detention in prison did not include the overcrowding argument as such.
120. The Court further observes that in its judgment on the case Yarovenko v. Ukraine ([Committee], no. 24710/06, §§ 113-20, 6 October 2016) it examined similar complaints regarding the conditions of detention in Kherson Prison no. 61 from an inmate who had been detained there at the same time as the applicant in the present case. Namely, the complaints raised in the cited case, like those in the present application, concerned the allegedly inadequate disinfection of cells, poor conditions in the exercise yard and limited possibilities for outdoor walks, poor ventilation and dampness in the cells, as well as inconveniences inherent in the refurbishment of the prison premises. No violation of Article 3 of the Convention was found in the Yarovenko case (cited above, § 120). The applicant in the present case has not provided any weighty evidence that could lead the Court to reach a different conclusion. While it appears from the case-file materials that the Parliamentary Commissioner for Human Rights did establish certain deficiencies in the conditions of the applicant ’ s detention in Kherson Prison no. 61 (see paragraph 12 above), there is no indication that they were serious enough to raise an issue under Article 3 of the Convention.
121. The Court notes that in the present case the applicant also complained of permanent video surveillance in his cell, as well as of the poor quality of the drinking water and food.
122. The Court has held in its case-law that monitoring of a prisoner ’ s behaviour, although certainly intrusive, is not per se incompatible with Article 3. This measure serves the purposes of both ensuring prison security and protecting the prisoner from the risk of pressure or even physical attack (see, mutatis mutandis, Klibisz v. Poland, no. 2235/02, § 320, 4 October 2016). There is no evidence in the present case that the toilet itself in the applicant ’ s cell was exposed to video surveillance as alleged by him. To the contrary, the print-outs from the video - camera recordings submitted by him rather indicate that it was not the case (see paragraph 15 above).
123. In so far as the applicant complained, in broad terms, of the poor quality of the drinking water and food, the Court observes that the Government submitted detailed information refuting his allegations (see paragraphs 23 - 25 above). The applicant did not contest the veracity of that information. There is therefore no indication for the Court that the food and drinking water in Kherson Prison no. 61 were of such poor quality that an issue might arise in that regard under Article 3 of the Convention.
124. In the light of the foregoing, the Court considers that this complaint has not been properly substantiated by the applicant.
125. The Court observes that the applicant was detained in the Kherson SIZO for about two months, in cells nos. 392 and 394. He criticised the conditions of his detention there, mainly referring to the overall dilapidated state of the building, low temperatures and high humidity, broken window panes and a leaking ceiling (see paragraphs 27 - 29 above).
126. The photographs submitted by the applicant generally corroborated his allegations (see paragraph 28 above). It is noteworthy, however, that the SIZO administration had admitted that cell no. 394 required urgent repairs and had carried out those repairs, during which the applicant had been transferred to cell no. 392 (see paragraph 33 above).
127. In the absence of any comments from the applicant on those events and any details as to the periods of his detention in each cell, the Court considers this complaint to be unsubstantiated too.
128. Having regard to the above considerations, the Court concludes that the applicant ’ s complaint of poor conditions of detention both in Kherson Prison no. 61 and in the Kherson SIZO, must be rejected as manifestly ill ‑ founded, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.
129. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
130. The applicant argued that the State authorities were responsible for causing an irreversible deterioration in his health.
131. Although he had received treatment for TB in Kherson Prison no. 61, the recurrent shortages of drugs had rendered it ineffective. As a result, he had developed resistance to all possible anti-TB drugs and his disease had become incurable.
132. The applicant invited the Court not to trust the records in his medical file which stated that he had refused treatment on some occasions (see paragraph 39 above) and submitted that they were either inaccurate or referred to his protest against the obvious deficiencies in his treatment.
133. The applicant submitted that although he had initially been suffering from pulmonary TB, in May 2011 he had also been diagnosed with genito - urinary TB (see paragraph 41 above). That was another indication of the inadequacy and ineffectiveness of the medical care afforded to him in detention.
134. The applicant also expressed the view that the decision to place him in palliative care had been premature and had caused him considerable anguish. The administration of isoniazid, to which he was resistant, had been imposed on him as part of the palliative care measures. Since his transfer to the Kyiv SIZO as a “prison for healthy persons”, the only medical care available for him was an X-ray examination twice a year. Otherwise, palliative care in his case meant nothing more than the absence of any medical supervision or treatment. He submitted that it was impossible to provide palliative care up to the requisite standards in detention, given all the inherent restrictions as regards access to fresh air and light, nutrition and so on.
135. The Government argued that the Ukrainian authorities had taken all appropriate measures to safeguard the applicant ’ s health in detention. He had been under constant medical supervision, which included regular medical check-ups, X-ray examinations, clinical analyses and so on.
136. When a relapse of TB had been recorded, the applicant had been transferred to Kherson Prison no. 61, which had the status of a specialised TB hospital. The applicant ’ s state of health had remained satisfactory.
137. The Government further submitted that the applicant had refused medical examinations or treatment on a number of occasions (see paragraphs 37, 39 and 46 above).
138. Lastly, the Government submitted that the medical unit of the Kyiv SIZO, to which the applicant had been transferred in August 2015, was adequately staffed and equipped. They noted that, as of the date of their observations (15 April 2016), the applicant had not required any medical treatment.
139. The Court reiterates that Article 3 of the Convention imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The relevant case-law principles concerning the adequacy of medical assistance provided to detainees have been summarised in the Court ’ s judgment on the case of Blokhin v. Russia ([GC], no. 47152/06, §§ 136-38, 23 March 2016).
140. Turning to the present case, the Court observes that during the period under consideration the applicant suffered a recurrence of his pulmonary TB, which was the reason for his transfer on 3 July 2010 to Kherson Prison no. 61 specialising in TB treatment. Shortly after his arrival at that prison, the failure of his previous TB treatment was recorded (see paragraphs 35 and 36 above). It follows that the applicant ’ s state of health at that stage raised serious concerns and warranted particular medical attention.
141. The Court further notes that, while on 23 November 2010 the applicant had been certified as having the mildest (third degree ) category of disability, a year later, on 25 November 2011, his condition was reassessed and he was certified as having a more serious, second-degree disability (see paragraphs 38 and 45 above). Meanwhile, his TB disease had spread beyond his lungs and on 10 May 2011 he was diagnosed with genito - urinary TB (see paragraph 41 above). His TB treatment yielded no positive results, as he had developed resistance to most anti-TB drugs, and on 2 July 2013 his further medical treatment was found to be devoid of any prospect of success (see paragraph 51 above). Consequently, the Court cannot agree with the Government ’ s assertion that the applicant ’ s health remained satisfactory. To the contrary, it considers his submission that he had suffered an irreversible deterioration in his health to have a sufficient factual basis.
142. The Court reiterates that the mere fact that an applicant ’ s state of health has deteriorated may raise, at an initial stage, certain doubts concerning the adequacy of his or her treatment in prison. However, it cannot suffice, by itself, for a finding of a violation of the State ’ s positive obligations under Article 3 of the Convention if, on the other hand, it can be established that the relevant domestic authorities have provided in a timely fashion all reasonably available medical care in a conscientious effort to hinder development of the disease in question (see, for example, G. v. Russia, no. 42526/07, § 82, 21 June 2016).
143. It is not disputed in the present case that the applicant was regularly examined by various doctors and subjected to various screening and laboratory tests. It cannot therefore be said that the respondent State left him unattended. However, the question remains as to whether the State ’ s response to the applicant ’ s disease proved to be an effective one.
144. The domestic authorities acknowledged on several occasions, namely in December 2010, September and November 2011, as well as in July 2012, that there was a shortage of anti-TB medication available in Kherson Prison no. 61 (see paragraphs 40, 42, 44 and 47 above). Moreover, having regard to the apparently deficient procurement procedures, which were criticised by the penal authorities themselves (see paragraph 40 above), such a deplorable situation appeared to be far from exceptional.
145. The Court reiterates in this connection that the authorities ’ inability to assure a regular, uninterrupted supply of essential anti-tuberculosis drugs to patients is a key factor in the failure of tuberculosis treatment (see Reshetnyak v. Russia, no. 56027/10, § 87, 8 January 2013). Moreover, when necessary medicines are unavailable, the overall quality of medical assistance is called into question (see Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 80, 22 November 2011).
146. Against that background the Court considers that the applicant ’ s isolated refusals of treatment constituted a legitimate attempt to draw the authorities ’ attention to the poor quality of medical care available to him (compare with Makshakov v. Russia, no. 52526/07, § 100, 24 May 2016).
147. The Court has noted evidence of poor medical assistance and protection against tuberculosis in Ukrainian detention facilities in a number of cases against Ukraine (see, for example, Kushnir v. Ukraine, no. 42184/09, § 142, 11 December 2014, with further references). In the case of Kondratyev v. Ukraine (no. 5203/09, § 72, 15 December 2011) it noted concerns about multiple-drug-resistant tuberculosis in prisons and the fact that Ukraine still had one of the highest incidences of tuberculosis in Europe.
148. Similar concerns have been expressed, more recently, by the WHO Regional Office for Europe. According to its 2016 data, Ukraine was among the countries reporting the highest rate of failure in tuberculosis treatment. It also noted that drug-resistant tuberculosis continued to spread in Ukraine and that the reasons for that included continued shortages of first-line drugs and lack of access to second-line full treatment schemes, especially in prison settings (see paragraphs 103 and 104 above).
149. The circumstances of the present case disclose another example of the above-mentioned problems.
150. Lastly, the Court takes note of the applicant ’ s arguments regarding the lack of adequate palliative care for him in detention. Those arguments are not without basis.
151. The Court observes that, as pointed out by the applicant, the administration of isoniazid regardless of a patient ’ s resistance to it had been a part of standard palliative - care measures until the change in the applicable legal standards in September 2014 (see paragraphs 52, 72 and 134 ). Although the applicant ’ s resistance to that drug had been documented as early as in July 2010 (see paragraph 36 above), once he was placed under palliative care in July 2013, it was administered to him on a regular basis. Subsequently, in April 2014, he received confirmation from an independent tuberculosis specialist that “anti-TB drugs should not be administered to him given his resistance to them and their ineffectiveness, as well as their toxic action on all the body organs” (see paragraph 55 above).
152. More broadly, the Court notes the absence of any legal framework in Ukraine for ensuring palliative care in prisons (see paragraphs 71 and 72 above). Furthermore, the Government did not show that any particular medical arrangements had been made for the applicant in the Kyiv SIZO, other than those for healthy prisoners. The Court therefore considers credible the applicant ’ s allegation that the palliative care prescribed for him was merely non-existent in practice.
153. In the light of the foregoing and without considering it necessary to analyse the medical care arrangements for the applicant in other detention facilities nor in respect of his other health-related concerns, the Court considers that it has sufficient grounds to find a violation of Article 3 of the Convention on account of the authorities ’ failure to safeguard the applicant ’ s health in detention from 3 July 2010 onwards.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT ’ S IRREDUCIBLE LIFE SENTENCE
154. The applicant complained that his life sentence was incompatible with Article 3 of the Convention.
155. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. Neither it is inadmissible on any other grounds. The complaint must therefore be declared admissible.
156. The applicant argued that his life sentence was neither de jure nor de facto reducible and was thus in breach of Article 3 of the Convention. Given that Ukrainian law did not provide for release on parole for life prisoners, the only possibility for that category of prisoner to seek release was through the procedure of presidential clemency.
157. The applicant contended that the presidential clemency mechanism lacked clarity and foreseeability. It was unclear from the applicable legal provisions whether the twenty-five years ’ imprisonment, in the event that clemency was granted, was to be calculated from the beginning of the sentence or from the date of the application for clemency. In the former case the overall duration of the sentence would be twenty-five years, whereas in the latter it would amount to forty-five years. Furthermore, once a life sentence was replaced by a fixed-term sentence as a result of an act of clemency, it was unclear whether the release-on-parole mechanism was applicable to that fixed-term sentence. If so, in the first case mentioned above, the overall twenty-five years ’ sentence could be reduced to twenty ‑ three years and nine months, and in the second case the forty-five years ’ sentence could be reduced in practice to thirty-eight years and nine months.
158. The applicant drew the Court ’ s attention to the provision of the Clemency Procedure Regulations, which provided that clemency could be granted to prisoners convicted for serious or particularly serious crimes, or to those convicted on two or more counts of premeditated crimes, in exceptional cases and subject to extraordinary circumstances. Given that a life sentence was usually imposed in such cases, even theoretical prospects for life prisoners to be granted clemency were non-existent in practice. Moreover, there was no reference to any penological considerations to be taken into account.
159. The applicant further argued that the Clemency Commission, which consisted of “public figures, politicians and intellectuals” in addition to lawyers, could hardly be expected to examine applications for clemency in a professional manner. It examined those applications in the prisoners ’ absence, but on the basis of material provided by the prison authorities, the contents of which remained unknown to the prisoner and could not be challenged.
160. The applicant also contended that the criteria listed in the applicable regulations were vague. Neither the Clemency Commission nor the President was obliged to give reasoning in their decisions on clemency applications; nor was there any obligation to make those decisions public. Lastly, they were not amenable to any judicial review. Accordingly, life prisoners whose applications were rejected were left in a state of uncertainty and despair. That being so, and in the absence of any tangible plan for release, at least at some point in the future, life imprisonment in Ukraine was devoid of any rehabilitative aim.
161. The applicant submitted that although the life-imprisonment sentence had been introduced in Ukraine in 2000, it did not mean that the minimum period of twenty years ’ imprisonment required in order to be eligible to lodge a clemency application was to be calculated from that point. Thus, in 2000 the death penalty was commuted to a life sentence for a number of prisoners, who by now had served twenty or more years in prison. The absence of any statistics on the number of life prisoners who had applied for clemency and the decisions taken on them proved the ambiguity and ineffectiveness of that mechanism.
162. The applicant claimed that only an insignificant number of clemency applications lodged by fixed-term prisoners had been granted. According to his information, in 2015 the President of Ukraine had granted clemency to sixty-seven fixed-term prisoners out of 1,320 persons who had applied for it (that is, about 5%). The prospects of clemency being granted to life prisoners were, in the applicant ’ s opinion, even slimmer.
163. Lastly, the applicant submitted that, even if a prisoner ’ s progress towards rehabilitation was one of the benchmarks for deciding whether to grant clemency, he had been de facto deprived of any such possibility, given the appalling conditions of his detention, his poor state of health and the absence of adequate medical care.
164. The Government emphasised from the outset that the penalty of life imprisonment was imposed in exceptional cases in Ukraine and that there was always a fixed-term imprisonment alternative to it (see paragraph 77 above). Under the applicable legal provisions, the court was to impose a life sentence only if it considered it impossible to impose a fixed term of imprisonment.
165. The Government conceded that there was indeed no possibility of release on parole for life prisoners in Ukraine. However, Ukraine was not alone in Europe in choosing such an approach. The legal regulation of that matter was similar in Iceland, Lithuania, Malta and the Netherlands.
166. The Government submitted that they were not in a position to provide any statistics regarding presidential clemency given that, at the time of their observations (15 April 2016), there was no life prisoner in Ukraine eligible to apply for it. Thus, in the Government ’ s opinion, the minimum period of twenty years that a prisoner had to serve before being eligible to apply for clemency was to be calculated from 2000, when life imprisonment had been introduced in Ukraine. Accordingly, such a possibility would not be opened until 2020 at the earliest.
167. Lastly, the Government maintained that the presidential clemency mechanism was clear and foreseeable, and that domestic law did not therefore deprive the applicant of all hope of a reduction in his life sentence.
(a) General principles laid down in the Court ’ s case-law
168. The general principles established in the Court ’ s case-law on life sentences have been summarised, quite recently, in Hutchinson v. the United Kingdom ( [GC], no. 57592/08, §§ 42-45, 17 January 2017) and read as follows :
“ 42. The relevant principles, and the conclusions to be drawn from them, are set out at length in the Vinter judgment (cited above, §§ 103-122; recently summarised in Murray v. the Netherlands [GC], no. 10511/10, §§ 99-100, ECHR 2016 ). The Convention does not prohibit the imposition of a life sentence on those convicted of especially serious crimes, such as murder. Yet to be compatible with Article 3 such a sentence must be reducible de jure and de facto, meaning that there must be both a prospect of release for the prisoner and a possibility of review. The basis of such review must extend to assessing whether there are legitimate penological grounds for the continuing incarceration of the prisoner. These grounds include punishment, deterrence, public protection and rehabilitation. The balance between them is not necessarily static and may shift in the course of a sentence, so that the primary justification for detention at the outset may not be so after a lengthy period of service of sentence. The importance of the ground of rehabilitation is underlined, since it is here that the emphasis of European penal policy now lies, as reflected in the practice of the Contracting States, in the relevant standards adopted by the Council of Europe, and in the relevant international materials ( Vinter and Others, cited above, §§ 59-81).
43. As recently stated by the Court, in the context of Article 8 of the Convention, ‘ emphasis on rehabilitation and reintegration has become a mandatory factor that the member States need to take into account in designing their penal policies ’ ( Khoroshenko v. Russia [GC], no. 41418/04, § 121, ECHR 2015; see also the cases referred to in Murray, cited above, § 102). Similar considerations apply under Article 3, given that respect for human dignity requires prison authorities to strive towards a life sentenced prisoner ’ s rehabilitation (see Murray, cited above, § § 103-104). It follows that the requisite review must take account of the progress that the prisoner has made towards rehabilitation, assessing whether such progress has been so significant that continued detention can no longer be justified on legitimate penological grounds ( Vinter and Others, cited above, §§ 113 ‑ 116). A review limited to compassionate grounds is therefore insufficient ( ibid., § 127).
44. The criteria and conditions laid down in domestic law that pertain to the review must have a sufficient degree of clarity and certainty, and also reflect the relevant case-law of the Court. Certainty in this area is not only a general requirement of the rule of law but also underpins the process of rehabilitation which risks being impeded if the procedure of sentence review and the prospects of release are unclear or uncertain. Therefore prisoners who receive a whole life sentence are entitled to know from the outset what they must do in order to be considered for release and under what conditions. This includes when a review of sentence will take place or may be sought ( Vinter and Others, cited above, § 122). In this respect the Court has noted clear support in the relevant comparative and international materials for a review taking place no later than twenty-five years after the imposition of sentence, with periodic reviews thereafter ( ibid., §§ 68, 118, 119 and 120). It has however also indicated that this is an issue coming within the margin of appreciation that must be accorded to Contracting States in the matters of criminal justice and sentencing ( ibid., §§ 104, 105 and 120).
45. As for the nature of the review, the Court has emphasised that it is not its task to prescribe whether it should be judicial or executive, having regard to the margin of appreciation that must be accorded to Contracting States ( Vinter and Others, cited above, § 120). It is therefore for each State to determine whether the review of sentence is conducted by the executive or the judiciary. ”
(b) Application of the above principles in the present case
169. Turning to the present case, the Court notes that life prisoners in Ukraine may expect to regain their liberty only in two cases: if they have a serious illness preventing their further imprisonment, or if they are granted presidential clemency (see paragraphs 73 - 74 and 79, 82 and 86 above). In the former case, however, eventual recovery, if any, would mean the end of the person ’ s liberty and his or her return to prison (see paragraph 73 above).
170. The Court has consistently held that the commutation of life imprisonment because of terminal illness, which only means that a prisoner is allowed to die at home or in a hospice rather than behind prison walls, cannot be considered as a “prospect of release”, as the notion is understood by the Court (see Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, § 127, ECHR 2013 (extracts), and Matiošaitis and Others v. Lithuania, nos. 22662/13 and 7 others, § 162, 23 May 2017, with the case-law references therein ).
171. Accordingly, the regulation and practice of presidential clemency, being the only possibility for mitigating life sentences in Ukraine, calls for stricter scrutiny (see, mutatis mutandis, László Magyar v. Hungary, no. 73593/10, § 56, 20 May 2014).
172. The Court notes that the procedure for dealing with requests for clemency is set out in the Clemency Procedure Regulations, approved by a presidential decree to that effect. Among the considerations to be taken into account during the examination of a request for clemency, the regulations refer to “the seriousness of the committed crime, the duration of the sentence already served, the character of the convict, his or her behaviour, the existence of sincere repentance, compensation for or redress of the damage caused, as well as family-related and other circumstances” (see paragraph 86 above).
173. In the Court ’ s opinion, the above considerations provide some guidance as to the criteria and conditions for review of a life sentence and could be construed as referring to legitimate penological grounds for the continuing incarceration of prisoners (see and compare with Bodein v. France, no. 40014/10, § 60, 13 November 2014, Murray v. the Netherlands [GC], no. 10511/10, § 100, 26 April 2016, as well as Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 258, ECHR 2014 (extracts), and the Court ’ s further analysis in Hutchinson, cited above, § 61). It is noteworthy, however, that those considerations are applicable in the context of a broader restriction. Namely, the Clemency Procedure Regulations state that “persons convicted for serious or particularly serious crimes, or having two or more criminal records in respect of the commission of premeditated crimes ... may be granted clemency in exceptional cases and subject to extraordinary circumstances” (see paragraph 86 above). All life prisoners clearly fall within this category (see paragraph 76 above). It is not known what is meant by “exceptional cases” and “extraordinary circumstances”, and there is nothing to suggest that the penological grounds for keeping someone in prison are of relevance for the interpretation of those notions under the legal frameworks as they presently stand in Ukraine.
174. In other words, prisoners who receive a whole life sentence do not know from the outset what they must do in order to be considered for release and under what conditions (see Vinter and Others, cited above, § 122, and Hutchinson, also cited above, § 44 ).
175. The Court also takes note of the Government ’ s submission that as of April 2016 there were no life prisoners in Ukraine eligible for presidential clemency, given that the twenty years ’ “waiting” period was to be calculated from 2000 when life imprisonment had been introduced in Ukraine and would therefore not expire until 2020 (see paragraph 166 above). However, according to the information provided by the head of the Clemency Department during a media briefing on 6 July 2016, by June 2016 more than seventy life prisoners had already served the required minimum of twenty years in prison and forty of them had requested presidential clemency, but their requests had been rejected (see paragraph 91 above). Such a drastic discrepancy in the authorities ’ interpretation of the twenty-year “waiting” period is another indication for the Court of the lack of sufficient clarity and certainty in the applicable criteria and conditions for a life - sentence review under the presidential clemency procedure.
176. Against that background, the Court is inclined to accept the applicant ’ s argument that the calculation of the twenty-five years ’ imprisonment replacing a life sentence as a result of presidential clemency might be open to different interpretations too. The applicant provided four possible scenarios (see paragraph 157 above). One of them – that the minimum period of imprisonment in the event that presidential clemency was granted would be thirty-eight years and nine months – is concordant with the interpretation of the legal provision in question by the authors of the Scientific and Practical Commentary on the Code of Execution of Criminal Sentences of Ukraine (see paragraph 84 above). As known from public sources, the only life prisoner whose request for presidential clemency was successful had served twenty years and two months (see paragraph 93 above). The reasons behind the calculation that was applied are unknown.
177. The Court further observes that the procedure in Ukraine requires neither the Clemency Commission nor the President to give reasons in their decisions regarding requests for clemency. The Court has held in its case-law that transparency of a life sentence review may nonetheless be ensured by other means, such as, for example, the established requirement for the Clemency Commission to take account of the relevant case-law of international courts and other bodies on the interpretation and application of international human rights in force in respect of the State in question, and to publish activity reports on a regular basis detailing the examination of requests for clemency (see Hutchinson, cited above, § 61). No such information is made public in Ukraine, except for the general outline of the criteria relevant for the examination of requests for clemency (see paragraph 86 above), to demonstrate how, if at all, those criteria are applied in practice by the President of Ukraine. The only time when the clemency authorities informed the public about its activities was at the media briefing conducted by the head of the Clemency Department on 6 July 2016. However, that was an isolated event confined to sharing some statistics (see paragraphs 91 and 92 above ).
178. The Court acknowledges that having regard to the margin of appreciation which must be accorded to Contracting States in matters of criminal justice and sentencing, it is not its task to prescribe the form (executive or judicial) such a review should take (see paragraph 168 above). It nevertheless considers that in order to guarantee proper consideration of the changes and the progress towards rehabilitation made by a life prisoner, however significant they might be, the review should entail either the executive giving reasons or a judicial review, so that even the appearance of arbitrariness is avoided (see Matiošaitis and Others, cited above, § 181, with further case-law references ).
179. In the present case the absence of an obligation on the President of Ukraine and his subordinate authorities to give reasons in their decisions on clemency requests is further aggravated by the lack of any judicial review of those decisions. In such circumstances, the exercise by life prisoners of their right to a review of their life sentence by way of presidential clemency cannot be regarded as surrounded by sufficient procedural guarantees (see Murray, cited above, § 100).
180. Therefore, in the light of the above considerations, the Court considers that in Ukraine the presidential power of clemency is a modern ‑ day equivalent of the royal prerogative of mercy, based on the principle of humanity, rather than a mechanism, based on penological grounds and with adequate procedural safeguards, for review of a prisoner ’ s situation so that the adjustment of his or her life sentence could be obtained (see and compare with Matiošaitis and Others, cited above, § 173).
181. The Court also reiterates that European penal policy currently places emphasis on the rehabilitative aim of imprisonment, even in the case of life prisoners (see, for example, Matiošaitis and Others, cited above, § 163). Life prisoners are to be provided with an opportunity to rehabilitate themselves. As to the extent of any obligations incumbent on States in this regard, the Court considers that even though States are not responsible for achieving the rehabilitation of life prisoners, they nevertheless have a duty to make it possible for such prisoners to rehabilitate themselves. Were it otherwise, a life prisoner could in effect be denied the possibility of rehabilitation, with the consequence that the review required for a life sentence to be reducible, in which a life prisoner ’ s progress towards rehabilitation is to be assessed, might never be genuinely capable of leading to the commutation, remission or termination of the life sentence or to the conditional release of the prisoner. The obligation to offer a possibility of rehabilitation is to be seen as an obligation of means, not one of result. However, it entails a positive obligation to secure prison regimes to life prisoners which are compatible with the aim of rehabilitation and enable such prisoners to make progress towards their rehabilitation. In this context the Court has previously held that such an obligation exists in situations where it is the prison regime or the conditions of detention which obstruct rehabilitation (see Murray, cited above, § 104, with further references).
182. The Court notes that life prisoners in Ukraine are segregated from other prisoners and spend up to twenty-three hours per day in their cells, which are usually double or triple occupancy, with little in terms of organised activities and association (see paragraphs 83 and 107 above). The Government have failed to explain how a prisoner can progress towards rehabilitation in such conditions.
183. The Court also notes that the Government ’ s observations in the present case did not even mention the issue of social rehabilitation for life prisoners.
184. Consequently, the Court cannot but conclude that the existing regime for life prisoners in Ukraine is incompatible with the aim of rehabilitation.
185. Lastly, the Court has held in its case-law that in assessing whether a life sentence is reducible de facto, it may be of relevance to take account of statistical information on prior use of the review mechanism in question, including the number of persons who have been granted a pardon (see Murray, cited above, § 100, with further references).
186. It is known from public sources that only one clemency request from a life prisoner has been granted in Ukraine to date (see paragraph 93 above). From the statistical point of view, this shows that in practice life prisoners have negligible prospects of having their requests for clemency granted.
187. All the foregoing considerations lead the Court to conclude that there has been a violation of Article 3 of the Convention on account of the applicant ’ s irreducible life sentence.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
188. The applicant also complained under Article 8 of the Convention of restrictions on his right to family visits.
189. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 3 of the Convention (see paragraphs 153 and 187 above), the Court considers that it has examined the main legal questions raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaint (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
190. Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
191. The Court reiterates that by virtue of Article 46 the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers of the Council of Europe. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures (see Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004 ‑ II, and Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 106, ECHR 2010 (extracts)). The State is obliged to take such measures also in respect of other persons in the applicant ’ s position, notably by solving the problems that have led to the Court ’ s findings (see Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 142, ECHR 2014).
192. The violation of Article 3 of the Convention, which the Court has found in the present case on account of the irreducibility of the applicant ’ s life sentence, affects many people. There are already over sixty similar applications pending before the Court and many others might follow. Therefore, before examining the applicant ’ s individual claims for just satisfaction under Article 41 of the Convention, the Court wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention (see, for example, Spahić and Others v. Bosnia and Herzegovina, nos. 20514/15 and 15 others, § 33, 14 November 2017).
193. The Court reiterates that the Contracting States enjoy a wide margin of appreciation in deciding on the appropriate length of prison sentences for particular crimes. The mere fact that a life sentence may eventually be served in full does not make it contrary to Article 3 of the Convention. Accordingly, review of whole life sentences must not necessarily lead to the release of the prisoner in question (see László Magyar, cited above, § 72, 20 May 2014).
194. Nevertheless, the Court observes that the present case, in so far as it concerns the irreducibility of a life sentence, discloses a systemic problem calling for the implementation of measures of a general character. The nature of the violation found under Article 3 of the Convention suggests that for the proper execution of the present judgment the respondent State would be required to put in place a reform of the system of review of whole - life sentences. The mechanism of such a review should guarantee the examination in every particular case of whether continued detention is justified on legitimate penological grounds and should enable whole - life prisoners to foresee, with some degree of precision, what they must do to be considered for release and under what conditions, in accordance with the standards developed in the Court ’ s case-law.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
195. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
196. The applicant claimed 49,423.71 Ukrainian hryvnias (UAH) in respect of pecuniary damage, which included UAH 28,215 spent on food and water during his detention in Kherson Prison no. 61 and UAH 21,217 spent on medication and postal services. He also claimed 100,000 euros (EUR) in respect of non-pecuniary damage.
197. The Government contested those claims as unsubstantiated and exorbitant.
198. The Court has found a violation of Article 3 of the Convention on account of the failure of the prison authorities to provide the applicant with adequate medical treatment from 3 July 2010 onwards (see paragraph 153 above). It finds that there is a direct causal link between the medical expenses incurred by the applicant and the violation of Article 3 (see Mirzashvili v. Georgia, no. 26657/07, § 84, 7 September 2017). As regards the other expenses referred to by the applicant, the Court does not discern any direct link between the violations found and the pecuniary damage alleged. In so far as the applicant ’ s expenses for postal services are concerned, this issue will be examined under the “Costs and expenses” heading below.
199. Having regard to the receipts provided by the applicant, the Court awards him EUR 750 in respect of pecuniary damage.
200. The Court also considers that the applicant must have suffered distress and anxiety on account of the absence of adequate medical care that led to the irreversible deterioration of his health, which the finding of a violation of the Convention in this judgment does not suffice to remedy. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 under this head.
201. As for the finding of a violation of Article 3 of the Convention on account of the applicant ’ s irreducible life sentence, the Court considers that the finding of a violation constitutes sufficient just satisfaction (see, for example, Vinter and Others, cited above, § 136, and Murray, also cited above, § 131).
202. The applicant also claimed EUR 17,400 for the costs and expenses incurred before the Court, to be paid directly into Mr Tarakhkalo ’ s bank account. In support of his claim, he submitted a legal assistance contract signed by him and Mr Tarakhkalo on 20 April 2016, indicating an hourly fee of EUR 150. According to the contract, payment was due after completion of the proceedings in Strasbourg and within the limits of the sum awarded by the Court in respect of costs and expenses. The applicant also submitted a report of 4 June 2016 on the work completed under the aforementioned contract. It specified that Mr Tarakhkalo had worked on the case for 116 hours (EUR 17, 400).
203. The Government contested the above claim as excessive.
204. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to grant the applicant ’ s claim in part and to award him EUR 10,000 for legal fees incurred before the Court, plus any tax that may be chargeable to the applicant. The award is to be paid into Mr Tarakhkalo ’ s bank account, as indicated by the applicant (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116-17, 7 November 2013).
205. Furthermore, having regard to the receipts for postal services submitted by the applicant (see paragraphs 196 and 198 above), the Court awards him EUR 20 for postal costs.
206. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Declares, unanimously, the applicant ’ s complaints under Article 3 of the Convention regarding the lack of adequate medical care in detention and the irreducibility of his life sentence admissible;