Print EUROPEAN COURT OF HUMAN RIGHTS
Poltoratskiy v. Ukraine
Application no. 38812/97
29 April 2003
(Excerpts)
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
B. The facts
1. Facts as presented by the applicant
18. On 22 February 1996 the Supreme Court upheld the judgment of the first-instance court. On a decision of the Administration of the Isolation Block of the Ministry of the Interior, the applicant was transferred to a cell intended for prisoners awaiting the death penalty. On 30 March 1996 the applicant's lawyer applied to visit the applicant in order to give him the Supreme Court's decision in the case. The prison governor did not grant him permission to do so.
19. Apart from the Pre-Trial Detention Act 1993 (hereinafter “the Act”), the detention conditions of persons sentenced to death were governed by an Instruction, whose content remained a closely guarded secret. Under the terms of the Instruction, exercise in the open air, watching television, buying newspapers and receiving food parcels from relatives were prohibited. The Instruction therefore prevented the applicant from enjoying the rights guaranteed by the Act.
20. In a response by the Deputy Head of the Ivano-Frankivsk Directorate of the Ministry of the Interior to a complaint by the applicant's father concerning the conditions of the applicant's detention, reference was made to the Instruction. Moreover, the applicant's father received information from the deputy governor of the prison from which it appeared that the Act did not apply to the applicant. If the Act had been applicable to the applicant, then, according to sections 9(1) and (13) thereof, he would have been entitled to take daily exercise in the open air, to receive parcels twice a month and to watch television. However, this was strictly prohibited between 1995 and 1998. Up to September 1997 the applicant was also prohibited from sending and receiving letters. It was only then that the deputy governor of the prison orally informed the applicant's mother that the applicant could send and receive letters. Moreover, his father was refused permission to visit him on 29 May 1995 and 10 June and 31 July 1996 without any explanation from the prison authorities. From July 1996 onwards, instead of monthly visits which would last up to two hours, the applicant's father had been allowed to visit the applicant only once every three months for not more than an hour.
21. As regards visits from a priest, the applicant's father and members of the clergy repeatedly but unsuccessfully applied to the prison authorities and the Administration of the Isolation Block of the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for permission for the applicant to receive a visit from a priest.
22. The applicant finally stated that he had complained several times about the conditions in which he had been held. He had also unsuccessfully applied to the prison authorities for permission to lodge a petition with the European Commission of Human Rights.
23. In his letter to the Commission of 6 March 1998, the applicant's father stated that on 4 March 1998 he had met his son, who had told him about a check-up carried out by a commission from the Ministry of the Interior in mid-February 1998. After the commission had left, the applicant had been transferred to a cell that was worse equipped and dirty. The window in the cell had been fully shuttered. The bucket for flushing the toilet had been taken away and the toilet could not therefore be cleaned properly, which had caused an unbearable smell. Moreover, the applicant had been given only 250g of hot water to prepare tea and milk. All his dishes had been removed. His Bible had been taken away. The applicant had been prohibited from reading periodicals and his notebook and calendar had been seized.
2. Facts as presented by the Government
24. The Government stated that the legal status and the conditions governing the detention of persons sentenced to capital punishment were set out in the Act and the Code of Criminal Procedure. According to section 8 of the Act, a person sentenced to death was kept in custody away from other prisoners. The cell to which the applicant had been transferred after his sentence had become final complied with the sanitary and hygiene rules laid down in section 11 of the Act: the cell measured 9 square metres, it had a bed, a table, a radio, sufficient natural and electric light, heating, running water and a toilet.
25. The applicant was provided with three meals a day, clothing and footwear of standard type as well as other articles of everyday use. Medical assistance, treatment, prophylactic and anti-epidemic measures were arranged and implemented in accordance with legislation on health protection.
26. According to section 12 of the Act, prior to the sentence being carried out, prisoners sentenced to death were, as a rule, allowed visits from relatives and other individuals not more than once a month, by written permission of the court within whose jurisdiction the case fell. The length of a visit was two hours maximum. After a case had been dealt with by an appellate court, visits by lawyers and legal assistants could be allowed by the Head of the Central Directorate of the Ministry of the Interior, the Head of the Regional Directorate of the Ministry of the Interior or his deputy responsible for the isolation block. According to section 12 of the Act, visits by defence counsel were allowed without any limits as to their number and length.
27. After the first-instance judgment, on 13 December 1995, the applicant's parents and solicitor received permission to visit him. The parents visited the applicant on 15 December 1995 and in January 1996. The applicant's lawyer visited him on 21 December 1995 and 7 January 1996. During the period from 22 February 1996 to 29 December 1997, the parents applied to the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior for permission to visit the applicant on 24 February, 4 March, 5 April, 4 May, 2 July, 1 October, 18 November and 25 December 1996, and on 3 and 20 June and 19 September 1997. They were granted permission for visits on 24 February, and on 5 March, 5 April, 4 May, 2 July, 4 October and 4 December 1996, 4 March, 4 June, 4 September and 4 December 1997.
28. The applicant's lawyer applied for permission to visit the applicant on 25 April, 11 November, 18 and 19 December 1996. Permission was granted for a first visit on 7 May 1996 and on the other occasions as requested.
29. Persons sentenced to capital punishment were allowed to send an unlimited number of letters. During the period 1995-1998 the applicant sent 31 letters: 24 letters related to his criminal case and 7 letters were to his relatives. On 17 September 1997 the applicant applied for the first time to the Regional Directorate of the Ministry of the Interior for permission to send letters to his relatives. Thereafter he sent letters to his parents on 19 and 26 November and 31 December 1997, and 5, 16, 20 and 30 January, 3 February, 11 March, 6 April, 15 May, 17 June, 6 July, 10 August, 15 September, 22 October, 13 November and 11 December 1998. He received letters from his parents on 18 and 29 September, 19 October, 20 November and 24 December 1997, and 16 and 26 January, 6, 10 and 23 February, 14 and 16 March, 17 April, 14 May, 1 and 8 June, 1 and 30 July, 20 August, 29 September, 10, 22 and 27 October, 4, 20, 26 and 30 November and 4, 17 and 21 December 1998.
30. The Government further submitted that the Prosecutor General had conducted a thorough investigation into the issues raised in the applicant's and his parents' applications concerning the application of illegal methods of investigation in the applicant's case, namely torture and brutal and inhuman treatment. The allegations had not been proved and had been found unsubstantiated. In fact, complaints by the applicant, his parents and representative and his defence counsel were received on 11 March, 8 April, 13, 14 and 29 May, 24 July, 11 September, 25 October 1996, and 5 and 17 March, 19 May and 25 July 1997, and answered on 20 and 23 March, 23 and 24 April, 23 May, 27 June, 1 August, 30 September and 14 November 1996 and 28 and 31 March and 20 May 1997. On 31 July 1997 the exchange of letters and the proceedings concerning the complaints filed by the applicant and his parents were terminated pursuant to section 12 of the Act.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
76. Under Article 8 §§ 2 and 3, the Constitution is directly applicable. There is a guaranteed right to lodge an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of the Constitution of Ukraine.
77. Article 9 § 1 provides that international treaties, which are in force and agreed on as binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.
78. Article 15 § 3 prohibits censorship.
79. Under Article 19 the legal order in Ukraine is based on the principles according to which no one may be forced to do what is not envisaged by the law. State authorities and local self-government bodies and their officials are obliged to act only on these principles, within the limits of their authority, and in the manner envisaged by the Constitution and the laws of Ukraine.
80. Article 22 provides that human and citizens' rights and freedoms are guaranteed and may not be diminished by the adoption of new laws or the amendment of laws that are in force.
81. Under Article 29 §§ 2 and 4 no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law. Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention, apprised of his rights, and from the moment of detention must be given the opportunity to defend himself in person, or to have the assistance of a defence lawyer.
82. Under Article 55 §§ 2 and 4, everyone is guaranteed the right to challenge the decisions, actions or omissions of State authorities, local self-government bodies, and officials and officers of a court of law. After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which Ukraine is a member or participant.
83. Under Article 59 everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his rights. In Ukraine the Bar (адвокатура) ensures the right to a defence against charges and the provision of legal assistance in deciding cases in courts and before other State authorities.
84. Article 63 § 3 provides that a convicted person enjoys all human and citizens' rights, subject only to restrictions determined by law and established by a court ruling.
85. According to Article 64, human and citizens' rights and freedoms guaranteed by the Constitution may not be restricted, except in cases envisaged by the Constitution of Ukraine.
B. Statutory regulations governing the conditions on death row
86. Conditions on death row in the Ukrainian prison system were governed successively by an Instruction of 20 April 1998 on conditions of detention of persons sentenced to capital punishment (hereinafter “the Instruction”) and by Temporary Provisions of 25 June 1999 on the conditions of detention of persons sentenced to capital punishment in the isolation blocks (hereinafter “the Temporary Provisions”).
87. The Instruction provided that after the sentence had become final, persons sentenced to death had to be kept in isolation from other prisoners in specially designed cells. Save in exceptional cases, there were to be no more than two such prisoners in one cell. The cell area allocated to one prisoner in a single cell had to be not less than 4 square metres and in a double cell not less than 3 square metres. The prisoners were provided with an individual sleeping-place and with bed linen. They wore a uniform designed for the category of especially dangerous recidivists. Reference was also made to their legal status and obligations. This determined the frequency of meetings with relatives and the number of letters inmates could send and receive: they were allowed one visit per month and could send one letter per month. There was no limitation on the correspondence they could receive. The inmates could receive two small packets a year. They were allowed to have a daily one-hour walk in the fresh air. Outside their cells, inmates were handcuffed. They were not allowed to work.
88. Prisoners were also allowed to read books, magazines and newspapers borrowed from the prison library and/or bought through the prison distribution network; they could receive money transfers; they could keep personal objects and food in their cells, and buy food and toiletries in the prison shop twice a month (up to the value of the statutory minimum wage), and play board games. They could meet lawyers in accordance with the national legislation. Medical treatment was provided in accordance with national legislation.
89. The prisoners could lodge complaints with State authorities. Such complaints had to be dispatched within three days. Complaints to the Public Prosecutor were not censored.
90. The Temporary Provisions extended the rights of persons sentenced to capital punishment in comparison with the Instruction. In particular, prisoners were allowed to have eight hours of sleep during the night; they could receive six parcels and three small packets per year, buy food and toiletries in the prison shop (up to the value of 70% of the statutory minimum wage), pray, read religious literature and have visit from a priest, and write complaints to State authorities. They were allowed to send and receive letters without any limits and to have monthly visits of up to two hours from their relatives. A prison official had to be present during those visits. Meetings with a lawyer in order to provide the inmates with legal aid were carried out in accordance with the correctional-labour legislation.
C. Pre-Trial Detention Act 1993 (“the Act”)
91. According to the Code of Criminal Procedure, pre-trial detention is a preventive measure applicable to an accused, a defendant or a person suspected of having committed a crime punishable with imprisonment, or a convicted person whose sentence has not yet been enforced.
92. In accordance with section 8(4) of the Act, persons sentenced to capital punishment, but whose sentence had not become final, were held separately from all other detained persons.
93. Section 9(1) of the Act provides inter alia that detainees have the right (a) to be defended in accordance with the rules of criminal law, (b) to be acquainted with the rules of detention, (c) to take a one-hour daily walk, (d) to receive twice a month a parcel weighing up to eight kilograms and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery, (e) to buy foodstuffs and toiletries to the value of one month's statutory minimum wage, paying by written order, as well as unlimited amounts of stationery, newspapers and books in prison shops, (f) to use their own clothing and footwear and to have with them documents and notes related to their criminal case, (g) to use TV sets received from relatives or other persons and board games, newspapers and books borrowed from the library in their previous place of detention or bought from shops, (h) individually to perform religious rituals and use religious literature and objects made of semi-precious materials pertaining to their beliefs, provided that this does not lead to a breach of the rules applicable to places of pre-trial detention or restrict the rights of other persons, (i) to sleep eight hours a night, during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency, and (j) to lodge complaints and petitions and send letters to State authorities and officials in accordance with the procedure prescribed by section 13 of the Act.
94. Under section 11, detainees are required to be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 square metres. Detainees are to be supplied with meals, an individual sleeping-place, bedclothes and other types of material and everyday provisions free of charge and according to the norms laid down by the Government. In case of need, they are to be supplied with clothes and footwear of a standard pattern.
95. In accordance with section 12(1), permission for relatives or other persons to visit a detainee (in principle, once a month for one to two hours) can be given by the administrative authorities of the place of detention, but only with the written approval of an investigator, an investigative authority or a court dealing with the case. Under paragraph 4, detainees have the right to be visited by defence counsel, whom they may see alone with no restrictions on the number of visits or their length, from the moment the lawyer in question is authorised to act on their behalf, such authorisation being confirmed in writing by the person or body dealing with the case.
96. Under section 13(1), detainees can exchange letters with their relatives and other persons and enterprises, establishments and organisations with the written permission of an authority dealing with the case. Once a sentence starts to run, correspondence is no longer subject to any limitations.
D. Correctional Labour Code (“the Code”)
97. According to Article 28 of the Code (Main requirements of the regime in detention institutions), the main features of the regime in detention establishments are: the compulsory isolation and permanent supervision of sentenced persons, so as to exclude any possibility of the commission of new crimes or other acts against public order being committed by them; strict and continuous observance of obligations by these persons; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person.
Sentenced persons must wear a uniform. They must be searched; body searches must be conducted by persons of the same sex as the person searched. Correspondence is subject to censorship, and parcels and packages are subject to opening and checking. A strict internal routine and strict rules must be established in corrective labour establishments.
Sentenced persons are prohibited from keeping money and valuables, or other specified objects, in corrective labour establishments. Any money and valuables found are to be confiscated and, as a rule, transferred to the State in accordance with a reasoned decision of the governor of the institution, sanctioned by a prosecutor.
A list of objects which sentenced persons are allowed to possess, giving the number or quantity of each item and the procedure for confiscating objects whose use is prohibited in corrective labour establishments, must be established by the internal regulations of such establishments.
Under the procedure established by the Code, sentenced persons are allowed to buy food and toiletries, to be paid for by written order, to be visited, to receive parcels, packages, postal packages and money by remittance, to correspond and to send money to relatives by remittance.
98. Article 37 § 1 (Purchase of food and toiletries by sentenced persons) provides that sentenced persons are allowed to buy food and toiletries, paying by written order, from the money received by remittance.
99. Article 40 provides inter alia that a lawyer may be given permission to meet his client on presentation of his licence and identity card. Visits are not limited as to their number and length and, at the lawyer's request, may be carried out without a prison warder being present.
100. Under Article 41 (Receipt of parcels and small packets by persons sentenced to imprisonment) sentenced persons held in corrective labour colonies (виправнo-тpудова колонія) are allowed to receive, per year: seven parcels in colonies subject to the general regime (колонія загального режиму), six parcels in colonies subject to the restricted regime (колонія посиленого режиму) and five parcels in colonies subject to the strict and special regime (колонія суворого режиму). Sentenced persons held in educational labour colonies (колонія виховно-трудова) are allowed to receive per year: ten parcels in colonies subject to the general regime and nine parcels in colonies subject to the restricted regime.
Convicted offenders serving their sentence in a prison are not allowed to receive parcels.
Irrespective of the type of regime under which they are held, sentenced persons are allowed to receive not more than two small packets per year, and to buy literature through the sales distribution network without any restrictions.
The quantity of parcels and small packets of all types is not restricted for sentenced persons held in corrective labour colony camps (виправнo-тpудова колонія-поселення).
A list of foodstuffs and toiletries which sentenced persons are allowed to receive in parcels and small packets, as well as the procedure for their receipt by and delivery to the sentenced persons, is to be established in the internal regulations of corrective labour establishments.
101. Under Article 42 (Receipt and sending of money by sentenced persons by remittance) sentenced persons are allowed to receive unlimited amounts of money by remittance, as well as to send money to their relatives and, if this is permitted by the authorities of the corrective labour establishments, to other persons. The money received by remittance is transferred to the personal account of the sentenced person.
102. Article 43 § 2 (Correspondence of persons sentenced to imprisonment) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows: one letter per month for those held under the general regime and one letter every two months for those held under the strengthened regime.
E. Public Prosecutor's Office Act
103. According to section 12(1), the public prosecutor shall deal with petitions and complaints concerning breaches of the rights of citizens and legal entities, except complaints that are within the jurisdiction of the courts. Paragraph 4 provides that an appeal lies from the prosecutor's decision to the supervising prosecutor and, in certain cases, to the court. Paragraph 5 provides that the decision of the Prosecutor General is final.
104. Under section 38 the prosecutor or his deputy has the power to make a request to a court for any materials in a case where a judgment or another decision has come into force. If there are any grounds for reopening the proceedings, the prosecutor may challenge the court judgment or any other decision.
105. Under section 44(1) the matters subject to the public prosecutor's supervision are: adherence to the legal rules on pre-trial detention and corrective labour or other establishments for the execution of sentences or coercive measures ordered by a court; adherence to the procedures and conditions for holding or punishing persons in such establishments; the rights of such persons; the manner of carrying out by the relevant authorities of their duties under the criminal law; and legislation on the enforcement of sentences. The public prosecutor may at any time visit places of pre-trial detention, establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform, in order to conduct interviews or peruse documents on the basis of which persons have been detained, arrested or sentenced or subjected to compulsory measures; he may also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such establishments, terminate the implementation of such acts, appeal against them or cancel them where they do not comply with the law, and request officials to give explanations concerning breaches which have occurred.
IV. REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN AND DEGRADING TREATMENT AND PUNISHMENT (CPT)
109. Delegates of the CPT visited places of detention in Ukraine in the years 1998, 1999, and 2000. Reports on each of the visits were published on 9 October 2002, together with the Responses to the Reports of the Ukrainian Government.
1998 Report
110. The visit of the delegation, which took place from 8 to 24 February 1998, was the CPT's first periodic visit to Ukraine. In the course of the visit the delegation inspected, inter alia, the pre-trial prison (SIZO) (“investigation isolation” establishment) No. 313/203 in Kharkiv. On the ground floor of building No. 2 of SIZO No. 203 were housed at the time of the visit fifteen prisoners who had been sentenced to death, although as was recorded in a footnote to the Report, the delegation had received assurances that since 11 March 1997 a de facto moratorium on executions had been observed.
111. In its Report (paragraph 131), the CPT expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them. It was noted that prisoners sentenced to death were usually accommodated two to a cell, the cell measuring 6.5-7m². The cells had no access to natural light, the windows being obscured by metal plates. The artificial lighting, which was permanently on, was not always sufficiently strong with the result that some cells were dim. To ventilate the cells, prisoners could pull a cord that opened a flap; despite this the cells were very humid and quite cold (paragraph 132).
The equipment in the cells was described in the Report as being rudimentary, consisting of a metal bed and/or sloping platform (equipped with a thin mattress, sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold), a shelf and two narrow stools. Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell, but it had been reported to the delegation that the radio only functioned sporadically (ibid.).
All the cells had un-partitioned toilets which faced the living-area; as a result, a prisoner using the toilet had to do so in full view of his cellmate. As regards toiletries, prisoners sentenced to death were in a similarly difficult situation as many of the other inmates; items such as soap and toothpaste were rarities (ibid.).
It was further recorded that prisoners sentenced to death had no form of activity outside their cells, not even an hour of outdoor exercise. At best they could leave their cells once a week to use the shower in the cell-block, and for an hour a month, if they were authorised to receive family visits. In-cell activities consisted of reading and listening to the radio when it worked. Apart from the monthly visits which some inmates received, human contact was limited essentially to the occasional visit by an Orthodox priest or a member of the health-care staff, who spoke to the prisoners through a grille in the cell-door (paragraph 133).
112. The CPT summarised its findings in this regard as follows:
“In short, prisoners sentenced to death were locked up for 24 hours a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting, with virtually no activities to occupy their time and very little opportunity for human contact. Most of them had been kept in such deleterious conditions for considerable periods of time (ranging from 10 months to over two years). Such a situation may be fully consistent with the legal provisions in force in Ukraine concerning the treatment of prisoners sentenced to death. However, this does not alter the fact that, in the CPT's opinion, it amounts to inhuman and degrading treatment.” (paragraph 134).
It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation the progress of their cases, follow-up to applications for cases to be reviewed, examination of their complaints etc. (paragraph 138).
113. In its Response to the 1998 Report, the Ukrainian Government recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the CPT. In particular, the Temporary Regulations had been introduced to guarantee to prisoners sentenced to death the right to be visited once a month by relatives, to be visited by a lawyer to get legal assistance, to be visited by a priest and to receive and send correspondence without limitation. It was further noted
(i) that prisoners sentenced to death would have daily walks in the open air and that for this purpose 196 yards of the pre-trial prisons had been rebuilt or re-equipped;
(ii) that, in order to improve natural lighting and air of all cells, the blinds and metal peakes over cell windows had been removed; and
(iii) that, for the purposes of informing inmates sentenced to death of their rights and legal status, extracts from the Temporary Regulations had been placed on the walls of each cell.
1999 Report
114. A CPT delegation visited Ukraine from 15 to 23 July 1999 in the course of which they again inspected SIZO No. 313/203 in Kharkiv where, at the time of the visit, there were detained 23 prisoners who had been sentenced to death. The Report noted that certain changes had occurred since the previous visit. In particular, the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air, although it was observed that there was insufficient space for real physical exercise (paragraphs 34-35). The Report further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond (paragraph 36). However, the CPT noted certain unacceptable conditions of detention including the fact that prisoners continued to spend 23 out of 24 hours a day in their cells and that opportunities for human contact remained very limited (paragraph 37).
2000 Report
115. A third visit to Ukraine took place from 10 to 21 September 2000, in the course of which the delegation inspected, inter alia, the pre-trial prison (SIZO No.15) in Simferopol. The CPT welcomed the decision of the Ukrainian authorities to abolish the death penalty and noted that most of the approximately 500 prisoners subject to the death sentence had had their sentences commuted to life imprisonment.
116. Despite these welcome steps, the CPT recorded that the treatment of this category of prisoner was a major source of concern to the Committee (paragraph 67). It was noted that, further to a provisional instruction issued in July 2000 and pending the establishment of two high-security units specifically intended for life prisoners, such prisoners were subjected to a strict confinement regime (paragraph 68). While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited, there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation (paragraph 69). Moreover, life-sentence prisoners were confined in their cells for 23 ½ hours a day with no form of organized activities and, by way of activities outside their cells, were entitled to only half an hour outdoor exercise, which took place in unacceptable conditions. There was virtually no human contact: since the entry into force of the July 2000 instruction, visits from relatives had been forbidden and prisoners were only allowed to send one letter every two months, although there were no restrictions on receiving letters (paragraph 70).
117. In their Response to the Report the Ukrainian Government noted further legal amendments which ensured that life prisoners had one hour of exercise per day and two family visits of up to four hours per month. Further, to ensure adequate access to light, metal shutters had been removed from windows in all cells.
THE LAW
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
120. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Alleged assaults of the applicant in prison
121. Before the Commission's Delegates, the applicant submitted that he had been beaten on 2 September 1998, after a meeting with his parents, and again on 10, 14 and 22 September 1998. His parents stated that during the meeting of 2 September 1998 they had been told by the applicant that he had been beaten and humiliated. They further stated that on 3 September 1998 the applicant had been taken to hospital because of the consequences of the beating and torture to which he had been subjected in prison.
122. Having examined the complaint according to the strict standards applied to the interpretation of Article 3 of the Convention, the Commission found that it had not been established “beyond reasonable doubt” that ill‑treatment attaining the minimum level of severity had occurred.
123. The Court, like the Commission, considers that on the basis of the evidence, oral and written, it has not been established to the requisite standard of proof that the applicant was assaulted in Ivano-Frankivsk Prison in breach of Article 3 of the Convention.
124. The Court accordingly finds no violation of Article 3 of the Convention in this regard.
B. Adequacy of the investigation
125. The Court recalls that where an individual raises an arguable claim that he has been subjected to ill-treatment by agents of the State unlawfully and in breach of Article 3 of the Convention, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible (see, in relation to Article 2 of the Convention, McCann v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, § 161; Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86; and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2438, § 98).
126. In its Report the Commission found that the complaints made by applicant's parents gave rise to an arguable claim that he had been ill-treated in prison and that, following the complaints, the State authorities seem to have carried out some investigation into the parents' allegations. However, the Commission was not satisfied that the investigation was sufficiently thorough and effective to meet the requirements of Article 3 of the Convention. In particular, it was found to be unsatisfactory that the medical examination of the applicant by the prison doctor (as opposed to the prison psychiatrist) was not carried out until 28 October 1998, almost two months after the parents' letter to the Regional Prosecutor of 4 September 1998 and at a time when any signs of his alleged ill-treatment were likely to have disappeared. The Commission further observed that decisions of the national authorities which had been produced to it contained no detailed reasons for the dismissal of the complaints of the applicant's parents. It was additionally noted that there was a lack of any contemporaneous records which could demonstrate, step by step, the nature of the investigation carried out into the allegations and that no external authority appeared to have been involved in any such investigations . In these circumstances, the Commission concluded that the investigations had been both perfunctory and superficial and did not reflect any serious effort to discover what had really occurred in the prison in September 1998.
127. In the light of its own examination of the material before it, the Court shares the findings and reasoning of the Commission and concludes that the applicant's arguable claim that he was assaulted in prison was not subject to an effective investigation by the domestic authorities as required by Article 3 of the Convention.
128. There has therefore been a violation of Article 3 of the Convention in this regard.
C. Conditions of the applicant's detention on death row
129. In his original application, the applicant submitted that his right to see his family had been restricted, that he had been prevented from sending and receiving any correspondence, and that he had not been allowed to watch television or to have any communication with the outside world. He had not been allowed to see a priest either.
130. As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).
131. According to the Court's case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Even the absence of such a purpose cannot conclusively rule out a finding of a violation of this provision (see Peers v. Greece, no. 28524/95, §§ 67-68 and 74, ECHR 2001-III; and Valašinas v. Lithuania, no. 22558/98, § 101, ECHR 2001-VIII).
132. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).
133. In addition, as underlined by the Court in the Soering v. the United Kingdom judgment, present-day attitudes in the Contracting States to capital punishment are relevant for the assessment whether the acceptable threshold of suffering or degradation has been exceeded (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 41, § 104). Where the death penalty is imposed, the personal circumstances of the condemned person, the conditions of detention awaiting execution and the length of detention prior to execution are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (ibid.). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II; and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI).
134. The Court notes that the applicant complained of certain aspects of the conditions to which he had been subjected in Ivano-Frankivsk Prison, where he was awaiting execution of the death penalty pronounced by the Ivano-Frankivsk Regional Court on 12 December 1995 and upheld by the Supreme Court on 22 February 1996. It reiterates in this respect that the Convention only governs, for each Contracting Party, facts subsequent to its entry into force in respect of that Party. The Court therefore has jurisdiction to examine the applicant's complaints in so far as they relate to the period after 11 September 1997, when the Convention came into force in respect of Ukraine. However, in assessing the effect on the applicant of the conditions of his detention, the Court may also have regard to the overall period during which he was detained as a prisoner, including the period prior to 11 September 1997, as well as to the conditions of detention to which he was subjected during that period (see Kalashnikov, cited above, § 96).
135. The Court further observes that the applicant was detained under a sentence of death until his sentence was commuted to one of life imprisonment in June 2000. As is noted above (see paragraphs 106-108), the use of capital punishment in Ukraine was the subject of strong and repeated criticism in Resolutions of the Parliamentary Assembly of the Council of Europe, in which it was recorded that between 9 November 1995 and 11 March 1997 a total of 212 executions had been carried out in the State. However, on the latter date a de facto moratorium on executions was declared by the President of Ukraine; on 29 December 1999 the Constitutional Court held the provisions of the Criminal Code governing the use of the death penalty to be unconstitutional; and on 22 February 2000 the death penalty was abolished by law and replaced by a sentence of life imprisonment (see paragraph 11 above). The applicant was sentenced to death in December 1995, some 15 months before the moratorium came into force. The Court accepts that, until the formal abolition of the death penalty and the commutation of his sentence, the applicant must have been in a state of some uncertainty, fear and anxiety as to his future. However, it considers that the risk that the sentence would be carried out, and the accompanying feelings of fear and anxiety on the part of those sentenced to death, must have diminished as time went on and as the de facto moratorium continued in force.
136. Concerning the conditions of the applicant's detention on death row, the Court has had regard to the Commission Delegates' findings and especially to their conclusions concerning the size, lighting and heating of the applicant's cell, but also to those relating to the prison practice concerning daily outdoor walks, the applicant's correspondence and his visits from his relatives. It takes into account the fact that the Delegates investigated the applicant's complaints in depth, giving special attention, during their inspection, to the conditions in the place where the applicant had been detained. In these circumstances, the Court considers that the findings of the Commission's Delegates should be relied on.
137. The Court has also had regard to the documents submitted by the parties concerning the period from 26 October 1999, when the Commission adopted its report (former Article 31 of the Convention), to 2 June 2000, when the applicant's sentence was commuted to life imprisonment as well as to the Reports of the CPT covering the period in question, so far as relevant.
138. At the time of the murders in respect of which the applicant was convicted he was nineteen years old. He was placed on death row in Ivano-Frankivsk Prison on 22 February 1996, when the Supreme Court upheld his sentence of capital punishment (see paragraph 10 above).
139. The Court notes the findings of the Commission that eight death row inmates were detained on the day of the Delegates' visit to Ivano-Frankivsk Prison in single cells, without the possibility of communicating with other inmates. They were frequently observed by prison guards through a little window in the door of the cell. The light was on during 24 hours per day and the radio was switched off only at night.
140. The Court further notes the findings of the Commission that until May 1998 death row inmates were not allowed to have daily outdoor walks, and that the windows of their cells were completely shuttered until shortly before the visit of the Delegates. When inspected by the Commission's Delegates, the applicant's cell was found to have been freshly painted, with an open toilet and a washbasin with cold water, two beds, a table and a little bench, both fixed to the floor, central heating and a window with bars. There were some books, newspapers, a chess set, a stock of soap and toilet paper, some fruit and other food. The Court notes that during the Delegates' visit in November 1998 the applicant's cell was found to be overheated, particularly in comparison with other rooms in the prison. It accepts the Commission's finding that the conditions had been very poor prior to November 1998.
141. Concerning the visits by the applicant's relatives, the Court relies on the Commission's finding that two warders were present when his parents visited him, who were authorised to interrupt their conversation when they considered that the parents or the applicant had said anything “untrue”. Except for their request of 19 June 1998, all the requests of the applicant's parents to visit him had been granted. However, the visits took place mostly two or three months after the requests had been submitted and they were limited to a maximum of twelve in a year.
142. The Court notes that it was not possible for the Commission to establish with sufficient clarity whether the applicant or his parents asked for permission for a priest to come to see him. It could be said, however, that when the applicant met the priest on 26 December 1998 following his request of 22 December 1998, there were no regular visits to inmates by any chaplains as the Instruction did not provide for such visits.
143. Concerning the applicant's correspondence, the Court observes that although the applicant was entitled to send more than twelve letters a year in accordance with the Instruction, until September 1997 he was not entitled to do so.
144. On the basis of the large amount of documentary evidence submitted by the parties and the facts established by the Commission during its fact-finding visit to Ivano-Frankivsk Prison relatively shortly after the applicant's death sentence had become final and after the Convention had entered into force in respect of Ukraine, the Court is in a position to establish a detailed picture of the conditions in which the applicant was detained from 1996 onwards, and particularly between 11 September 1997, the date on which the Convention entered into force in respect of Ukraine, and May 1998, when the Instruction started to be applied in Ivano-Frankivsk Prison.
145. The Court views with particular concern the fact that, until at earliest May 1998, the applicant, in common with other prisoners detained in the prison under a death sentence, was locked up for 24 hours a day in cells which offered only a very restricted living space, that the windows of the cells were covered with the consequence that there was no access to natural light, that there was no provision for any outdoor exercise and that there was little or no opportunity for activities to occupy himself or for human contact. In common with the observations of the CPT concerning the subjection of death row prisoners in Ukraine to similar conditions, the Court considers that the detention of the applicant in unacceptable conditions of this kind amounted to degrading treatment in breach of Article 3 of the Convention. In the case of the present applicant, the situation was aggravated by the fact that in the period between 24 February and 24 March 1998, he was detained in a cell where there was no water tap or washbasin but only a small pipe on the wall near the toilet, and where the water supply could only be turned on from the corridor, where the walls were covered with faeces and where the bucket for flushing the toilet had been taken away. The applicant' situation was further aggravated by the fact that he was throughout the period in question subject to a death sentence, although, as noted in paragraphs 11 and 135 above, a moratorium had been in effect since 11 March 1997.
146. The Court considers that in the present case there is no evidence that there was a positive intention of humiliating or debasing the applicant. However, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 of the Convention (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; and Kalashnikov, cited above, § 101). It considers that the conditions of detention, which the applicant had to endure in particular until May 1998, must have caused him considerable mental suffering, diminishing his human dignity.
147. The Court acknowledges that following May 1998 substantial and progressive improvements had taken place, both in the general conditions of the applicant's detention and in the regime applied within the prison. In particular, the coverings over the windows of the cells were removed, daily outdoor walks were introduced and the rights of prisoners to receive visits and to correspond were enhanced. Nevertheless, the Court observes that, by the date of introduction of these improvements, the applicant had already been detained in these deleterious conditions for a period of nearly 30 months, including a period of 8 months after the Convention had come into force in respect of Ukraine.
148. The Court has also borne in mind, when considering the material conditions in which the applicant was detained and the activities offered to him, that Ukraine encountered serious socio-economic problems in the course of its systemic transition and that prior to the summer of 1998 the prison authorities were both struggling under difficult economic conditions and occupied with the implementation of new national legislation and related regulations. However, the Court observes that lack of resources cannot in principle justify prison conditions which are so poor as to reach the threshold of treatment contrary to Article 3 of the Convention. Moreover, the economic problems faced by Ukraine cannot in any event explain or excuse the particular conditions of detention which it has found in paragraph 145 to be unacceptable in the present case.
149. There has, accordingly, been a violation of Article 3 of the Convention in this respect.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
150. In his original application, the applicant complained that his right to see his family was restricted, that he was prevented from seeing his lawyer and from sending and receiving any correspondence, and that he was not allowed to watch television or to have any communication with the outside world.
151. The Court considers that the applicant's complaints fall to be examined under Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
152. The Commission found it established that the applicant's right to receive visits from his relatives, which included visits by his representative, Mr Voskoboynikov, was limited to one per month and that, during the visits, two warders were present listening to the conversations who were authorised to intervene when they considered that the inmate or his relatives had said anything “untrue”. The Commission further found that a visit could be withdrawn as a disciplinary punishment inflicted upon the applicant for a violation of the prison rules. As to correspondence, the Commission noted that while, according to the Instruction, the applicant could send his relatives one letter per month and receive letters without any limits as to their number, his correspondence was censored.
153. The Court, agreeing with the Commission, considers that the above-mentioned restrictions constituted an interference by a public authority with the exercise of the applicant's right to respect for his private and family life and his correspondence guaranteed by Article 8 § 1 of the Convention.
154. Such interference can only be justified if the conditions in the second paragraph of this provision are met. In particular, if it is not to contravene Article 8, the interference must be “in accordance with the law”, pursue a legitimate aim and be necessary in a democratic society in order to achieve that aim (see Silver and Others v. the United Kingdom, judgment of 25 March 1993, Series A no. 61, p. 32, § 84; and Petra v. Romania, judgment of 23 September 1998, Reports 1998-VII, p. 2853, § 36).
155. The Court must first consider whether the interference was “in accordance with the law”. This expression requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and be compatible with the rule of law (see Kruslin v. France and Huvig v. France, judgments of 24 April 1990, Series A no. 176‑A, p. 20, § 27, and Series A no. 176-B, p. 52, § 26, respectively).
156. In contending that these requirements were met, the Government referred in their written observations to the Pre-Trial Detention Act (“the Act”) and the Correctional Labour Code (“the Code”). In their further observations, they added a reference to the Instruction and the Temporary Provisions. The applicant submitted that only certain internal regulations had been issued to govern the conditions in which persons awaiting the death penalty were detained.
157. The Court observes that the Act governs conditions of detention until a sentence becomes final. It further observes that, although the Code provides a general legal basis for conditions of detention, the competent national authorities in the present case did not refer to its provisions when informing the applicant or his parents about the rules to be followed as regards a death row inmate.
158. It appears from the documents presented by the parties and the Commission's findings of fact that, after the sentence became final, the detention conditions of persons sentenced to capital punishment were governed by the Instruction issued by the Ministry of Justice, the Prosecutor General and the Supreme Court. The Court notes that the Instruction was an internal and unpublished document which was not accessible to the public.
159. The Court notes that the Instruction was replaced by the Temporary Provisions, approved by the State Department for the Execution of Sentences on 25 June 1999 as Order no. 72 and registered by the Ministry of Justice on 1 July 1999 as no. 426/3719, which entered into force on 11 July 1999 and which were accessible to the public. The Temporary Provisions extended the rights of persons sentenced to capital punishment. In particular, prisoners were allowed to receive six parcels and three small packets per year, to send and receive letters without any limitations and to have monthly visits of up to two hours from their relatives. However, as noted by the Commission, the Temporary Provisions have no application to the facts complained of by the applicant, which occurred before 11 July 1999.
160. The Court finds that in these circumstances it cannot be said that the interference with the applicant's right to respect for his private and family life and his correspondence was “in accordance with the law” as required by Article 8 § 2 of the Convention.
161. In view of the above finding, the Court, like the Commission, considers it unnecessary to examine whether the interference in the present case was necessary in a democratic society for one of the legitimate aims within the meaning of Article 8 § 2 of the Convention.
162. There has therefore been a violation of Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
163. In his original application the applicant claimed that he had not been allowed any visits from a priest.
164. The Court considers that the applicant's complaint should be examined under Article 9 of the Convention which reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals or for the protection of the rights and freedoms of others.”
165. The Government submitted that the applicant had never asked to have a visit from a priest. This was disputed, according to the Commission's findings, by the applicant's parents but corroborated by certain witnesses heard by it and by the undated document signed by Mr Y.M. Pavlyuk, Deputy Head of the Isolation Block. In its letter of 12 October 1998, following the applicant's parents' complaint of 11 September 1998, the State Department for the Execution of Sentences stated that visits from a priest could be granted by the Ivano-Frankivsk Regional Directorate of the Ministry of the Interior.
166. The Commission was unable to establish with sufficient clarity whether the applicant or his parents requested permission from the national authorities for the applicant to be visited by a priest before 22 December 1998. However, the Commission found it to be established by the oral evidence and documents produced to it that the applicant was not able to participate in the weekly religious service which was available to other prisoners and that he was not in fact visited by a priest until 26 December 1998.
167. The Court accepts the findings of the Commission and, like the Commission, considers that this situation amounted to an interference with the exercise of the applicant's “freedom to manifest his religion or belief”. Such an interference is contrary to Article 9 of the Convention unless it is “prescribed by law”, serves one or more of the legitimate aims in paragraph 2 and is “necessary in a democratic society” to achieve those aims.
168. The Court, when examining the applicant's complaints under Article 8 of the Convention, has already observed that the conditions of detention of persons sentenced to death were governed by the Instruction which, according to the extract submitted by the Government, did not confer on persons sentenced to death the right to be visited by a priest. In addition, the Court has already concluded that the Instruction did not satisfy the requirements for a “law” within the meaning of Article 8 § 2 of the Convention.
169. It true that the Instruction was replaced by the Temporary Provisions which entered into force on 11 July 1999. However, although they guarantee the right of death row inmates to pray, read religious literature and to receive visits from a priest, the Temporary Provisions have no application to the facts complained of by the applicant which occurred before 11 July 1999.
170. In these circumstances, the Court finds that the interference with the applicant's right to manifest his religion or belief was not “in accordance with the law” as required by Article 9 § 2 of the Convention. It considers it unnecessary to examine whether the interference in the present case was “necessary in a democratic society” for one of the “legitimate aims” within the meaning of Article 9 § 2 of the Convention.
171. Accordingly, there has been a violation of Article 9 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of Article 3 of the Convention as regards the alleged assaults of the applicant in Ivano-Frankivsk Prison;
2. Holds that there has been a violation of Article 3 of the Convention as regards the failure to carry out an effective official investigation into the applicant's allegations of assaults in Ivano-Frankivsk Prison;
3. Holds that there has been a violation of Article 3 of the Convention as regards the conditions of detention to which the applicant was subjected on death row;
4. Holds that there has been a violation of Article 8 of the Convention;
5. Holds that there has been a violation of Article 9 of the Convention;
SEPARATE OPINION OF JUDGE SIR NICOLAS BRATZA
I am in full agreement with the conclusion and reasoning of the majority of the Court on all points, save that I would have preferred that the complaint relating to the failure of the prison authorities to carry out an effective official investigation into the applicant's allegations of assault in the Ivano-Frankivsk Prison had been examined under Article 13 of the Convention rather than under the so-called “procedural aspects” of Article 3.
In holding that Article 3 has such a procedural aspect, the Court, like the Commission, draw on well-established case-law under Article 2 of the Convention to the effect that, where allegations are made of an unlawful deprivation of life, the provision requires by implication that there should be an effective official investigation, capable of leading to the identification and punishment of those responsible. This view has indeed received express confirmation in the Court's judgment in the case of Assenov and Others v. Bulgaria (Reports 1998-VIII, p. 3290, §§ 102-103) in which the Court found a procedural breach of Article 3 due to the inadequate investigation made by the national authorities into the first applicant's complaint that he had been severely ill-treated by the police. The Court there observed that, if it were not the case that Article 3 embodied such a procedural aspect, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and that it would be possible for agents of the State to abuse the rights of those within their control with virtual impunity.
However, the Assenov and Others case was decided before the judgment of the Grand Chamber of the Court in Ilhan v. Turkey [GC], no. 22277/93, p. 267, ECHR 2000-VII, in which the Court (reflecting the partly dissenting opinion of Mr Pellonpää in the Commission) voiced certain doubts as to the analogy drawn in this respect between the provisions of Article 2 and those of Article 3. The Court pointed out that, while the obligation to provide an effective investigation into the deaths caused by, inter alia, the security forces had been held to be implied into Article 2 in order to ensure that the rights guaranteed by that Article were not theoretical or illusory but practical and effective, the provisions of Article 2 included the requirement that the right to life be “protected by law”. In addition, the Court noted, Article 2 may also concern situations where the initiative must rest on the State for the practical reason that the victim is deceased and the circumstances of the death may be largely confined within the knowledge of State officials (p. 295, § 91). The Court continued:
“92. Article 3, however, is phrased in substantive terms. Furthermore, although the victim of an alleged breach of this provision may be in a vulnerable position, the practical exigencies of the situation will often differ from cases of use of lethal force or suspicious deaths. The Court considers that the requirement under Article 13 of the
Convention that a person with an arguable claim of a violation of Article 3 be provided with an effective remedy will generally provide both redress to the applicant and the necessary procedural safeguards against abuses by State officials. The Court's case-law establishes that the notion of effective remedy in this context includes the duty to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for any ill-treatment and permitting effective access for the complainant to the investigatory procedure (see the Aksoy v. Turkey judgment [of 18 December 1996, Reports 1996 - III], p. 2287, § 98). Whether it is appropriate or necessary to find a procedural breach of Article 3 will therefore depend on the circumstances of the particular case.”
In the Ilhan case itself, the Court found that the applicant had suffered torture at the hands of the security forces and that his complaints concerning the lack of any effective investigation by the authorities into the causes of his injuries fell to be dealt with under Article 13, rather than Article 3, of the Convention. In this respect the present case differs from the Ilhan case, in that no substantive breach of Article 3 has been found by the Court to have been established. Nevertheless, I consider that, as in that case, the applicant's complaint concerning the lack of an effective official investigation into the applicant's allegations of ill-treatment would have been more appropriately examined under Article 13 of the Convention.
Since, however, I share the view of the majority not only that the complaints of the applicant's parents gave rise to an arguable claim of ill-treatment which required to be investigated, but that the investigation which was in fact carried out by the authorities was deficient in the respects found by the Court in its judgment, I have not voted against the finding of a violation of Article 3 of the Convention in this regard.