MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-43

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-43 Sukachov (Application No. 14057/17), Nevmerzhitsky group (Application No. 54825/00), Yakovenko group (Application No. 15825/06) and Melnik group (Application No. 72286/01) v. Ukraine Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)971, DH-DD(2021)975, DH-DD(2021)986, DH-DD(2021)1047, H/Exec(2021)22, H/Exec(2021)23, CM/Del/Dec(2021)1406/H46-38

 

Application	Case	Judgment of	Final on	Indicator for the classification
14057/17	SUKACHOV	30/01/2020	30/05/2020	Pilot judgment
NEVMERZHITSKY GROUP
54825/00	NEVMERZHITSKY (List of cases CM/Notes/1419/H46-43-app)	05/04/2005	12/10/2005	Structural problem
YAKOVENKO GROUP
15825/06	YAKOVENKO	25/10/2007	25/01/2008	Complex problem
31720/02	TITARENKO	20/09/2012	20/12/2012
45947/06	KOBERNIK	25/07/2013	25/10/2013
28253/11	TYMCHENKO	27/05/2021	27/05/2021
MELNIK GROUP
72286/01	MELNIK	28/03/2006	28/06/2006	Structural problem
69250/11	ALEKSANDR VLADIMIROVICH SMIRNOV	13/03/2014	13/06/2014
11773/08	TKACHEV	19/04/2018	19/04/2018
1858/08	LAVRINYUK	04/12/2018	04/12/2018
19585/18	SYENIN	21/02/2019	21/02/2019
34697/04	DOLGIKH	11/07/2019	11/07/2019
19591/18	PETROV AND KOROSTYLYOV	11/07/2019	11/07/2019
38092/18	LYSENKO	19/092019	19/092019
6128/12	RODZEVILLO	17/12/2019	17/12/2019
34745/19+	PARAMUSHCHAK AND SHPAKOVSKYY	10/12/2020	10/12/2020
59753/19+	VYSOTSKYY AND OTHERS	25/02/2021	25/02/2021

Case description

These cases mainly concern inhuman and/or degrading treatment due to overcrowding, poor material conditions and inadequate nutrition in police establishments, pre-trial detention centres and prisons, as well as during transportation between detention facilities or to courts and lack of effective preventive and compensatory remedies in all these respects (violations of Articles 3 and 13). Some cases raise other aspects of the protection of prisoners’ rights, which are examined in other groups.

In view of the scale of the problem and the lack of significant progress since the first related judgment against Ukraine in 2005, the Court delivered a pilot judgment in the case of Sukachov, which became final on 30 May 2020. The Court found that the recurrent structural problems of overcrowding and poor conditions of detention in pre-trial detention facilities, as well as the absence of effective domestic remedies thereof, remained unresolved at the domestic level. It thus indicated under Article 46 that Ukraine must: (i) take measures aimed at reducing overcrowding and improving material conditions of detention, and (ii) introduce preventive and compensatory remedies by 30 November 2021.

Status of execution

At the last examination of these cases during its 1406^th meeting (June 2021) (DH), the Committee noted with profound concern the persisting malfunctioning of the Ukrainian prison system as regards overcrowding and poor material conditions of detention and transportation; stressed the importance of comprehensive action and long term vision leading to concrete results to address these problems; requested the authorities to provide details about the concrete, additional legislative, administrative and budgetary measures envisaged and their expected impact; strongly urged them to increase, through the changes to respective legal acts, the minimum standard of personal space for detainees held in pre‑trial detention and exhorted them to take without further delay concrete steps to ensure the establishment of adequate preventive and compensatory remedies. It decided, in the absence of tangible progress in this regard by 11 October 2021, to instruct the Secretariat to prepare a draft interim resolution for consideration at the present meeting.

In response to these decisions, the Ukrainian authorities submitted two communications on 21 and 22 September 2021 (DH-DD(2021)971 and DH-DD(2021)986) and two updated action plans on 27 September 2021 (DH-DD(2021)975) and 12 October 2021 (DH-DD(2021)1047), all summarised below.

Individual measures: The authorities submitted information on the progress of the payment of the just satisfaction and on the current situation of the applicants in several cases of these groups.

General measures: The authorities reaffirmed their commitment to improve the situation in the penitentiary system in Ukraine and set out the following recent developments (see DH-DD(2021)1047 for full details).

Strategic document to reduce overcrowding and improve conditions of detention

The Ministry of Justice is developing a Penitentiary System Reform Strategy up to 2026, a policy document defining 8 concrete directions of further reform, and the Action Plan for its realisation, setting out specific deadlines and the bodies in charge. A Monitoring Committee for evaluating the implementation of the Strategy would       also be established, consisting of representatives of various state bodies, including of the Parliament Commissioner for Human Rights, as well as representatives of public associations and international organisations. Upon finalisation, these documents shall be submitted to the Cabinet of Ministers for approval.

Legislative proposals to introduce domestic remedies

The Ministry of Justice finalised the drafting of the law “On Amendments to Certain Legislative Acts on Measures to Restore the Rights of Convicts and Detainees due to Inadequate Material Conditions of Detention” (No. 5652) and of the law “On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine on Measures Aimed at Restoring the Rights of Convicts and Detainees due to Inadequate Material Conditions of Detention” (No. 5653). In June 2021, these draft laws were submitted for analysis to the Parliament Committees on Legal Policy and on Law Enforcement respectively.

These draft laws envisage preventive remedies, such as the transfer to another cell or detention centre or prison with adequate conditions of detention, the reduction in the occupancy of the cell, repairs, disinfection, or any other measures necessary to improve the claimant’s conditions of detention. They also envisage compensatory remedies, such as, for example, the reduction of the period after which parole may be granted or of the unserved part of the sentence by the period during which the claimant was held in improper material conditions, or the removal of the conviction from official records before the statutory time limit.

The complaints about the inadequacy of detention conditions, from the detainee/convict himself, a family member/a close relative or his/her defence counsel, would be heard by the “Commission on Considering Complaints about Improper Conditions of Detention in Pre-trial Detention and Penitentiary Facilities”. The Commission would examine the complaint within fifteen days from the date of its receipt. Meanwhile, members of the Commission would be entitled to visit the pre-trial detention centres/prisons in question. Copies of the Commission’s decisions would be sent to the administration of the penitentiary facility in question and to the District Prosecutor's Office, in order for them to take measures to prevent similar violations and compensate for inadequate material conditions of detention.

A right to appeal to national courts is also envisaged in accordance with the Code of Criminal procedure, but provisions to this end would need to be adopted.

Measures to promote alternative sanctions and minimise use of pre-trial detention

The Ministry of Justice finalised the drafting of the law “On Amendments to Certain Legislative Acts to Develop Probation System, Increase Alternatives to Incarceration and Create Conditions to Reduce Recidivism” (No. 5359) and of the law “On Amendments to the Criminal Code of Ukraine, the Code of Criminal Procedure of Ukraine to Develop Probation System, Increase Alternatives to Incarceration and Create Conditions to Reduce Recidivism” (No. 5360). These draft laws envisage, inter alia, the introduction of a new type of criminal sanction, namely the probationary supervision; the introduction of an assessment of risks of committing a new criminal offence; improving community service; increasing accessibility of bail as an alternative to detention on remand and limiting the total period of detention on remand to 12 months for crimes of minor gravity; 24 months for serious crimes and 48 months for very serious crimes. In April 2021, these draft laws were submitted for analysis to the Parliamentary Committee on Legal Policy.

Measures to increase the minimum standard of personal space in pretrial detention

The Ministry of Justice developed the draft law “On Amendments to the Law of Ukraine “On Pre-trial Detention” (regarding the implementation of certain standards of the Council of Europe)” (No. 0882). It envisages that the personal space for a detainee cannot be less than 4 m² and no less than 4,5 m² for a pregnant woman/woman with a child. This draft law passed the first reading in the Parliament and awaits consideration for the second reading.

Measures to improve conditions of detention

1) Repairs, refurbishing, renewal and optimisation of the prison estate: continued in 2021; in the first 8 months of the year, 3 buildings were constructed, or reconstructed, and capital repairs were made to 404 buildings. The Ministry of Justice’s project on the sale of non-operational prisons continues; 39 penitentiary institutions have been closed within this project. The proceeds from the sales are split between the State Budget and the special fund of the State Budget for the restoration of the prison infrastructure. The Ministry of Justice’s pilot project on paid cells[1] also continues; the proceeds from this project were in September 2021 of approx. EUR 197,000 and 65 cells with a capacity of 406 places were repaired during the implementation of the project.

In July 2021, the Ministry of Justice launched an online prison rating, a new mechanism to help itself in monitoring progress, in several areas including staffing, social and educational work and detention conditions.

2) Co-operation activities with the Council of Europe continue in the framework of the joint project with the European Union “Working Together to Support Prison Reform in Ukraine”. The main achievements in 2021 were that the Legal Guide for Convicts and the Guide on Prisoners' Legal Rights were presented to the Department for the Execution of Criminal Sentences, the Prison Healthcare Centre and the Centre of Probation, several relevant trainings for penitentiary staff were conducted and pilot programmes for detainees in several penitentiary facilities were initiated.

Analysis by the Secretariat

Individual measures

No further individual measures are necessary in the eight cases in which the just satisfaction was paid (and the two-months deadline for the applicants to complain of any potential irregularities in payment elapsed) and the applicants are no longer in detention. The supervision of the individual measures in these cases could therefore be closed by final resolution, without prejudice to the examination of the general measures, including those relating to the conditions of detention in the facilities where the applicants were held.

In the other cases, given the structural nature of the problem of inadequate conditions of detention, more substantial improvements in the applicants’ situation while still in detention is related to the adoption of general measures, including the establishment of effective remedies allowing them to obtain appropriate redress at the domestic level. Therefore, the authorities should continue to submit updated information on the current individual situation of the applicants (see the Memorandum H/Exec(2021)23 for details on the outstanding issues).

General measures

In its interim resolution adopted in 2018,^[2] the Committee has focused on the urgent need for the adoption of a comprehensive long-term strategy capable of leading to the resolution of the problems of a structural nature disclosed by these cases. This strategy should have clear and binding timelines for the adoption of the relevant measures and provide for the necessary human and financial resources for its implementation. It thus called upon the Ukrainian authorities:

(i)  to act on their commitment to resolve the problems linked to conditions of detention and, therefore,

(ii) to establish, as a matter of priority, effective domestic remedies for allegations of ill-treatment on account of overcrowding, poor material conditions in detention and insufficient medical care in detention.

In its pilot judgment adopted in the case of Sukachov in 2020, the Court found that the recurrent structural problems of overcrowding and poor conditions of detention in pre-trial detention facilities, as well as the absence of effective domestic remedies, remained unresolved at the domestic level fourteen years after its first judgment in this respect of 2005. It thus indicated under Article 46 that the respondent State must:

(i)   take measures aimed at reducing overcrowding and improving material conditions of detention, and

(ii)  introduce preventive and compensatory remedies by 30 November 2021.

At the last examination of these cases during its 1406^th meeting (June 2021) (DH), the Committee:

(i)   exhorted the Ukrainian authorities to take without further delay concrete steps to ensure the establishment of adequate preventive and compensatory remedies, and

(ii)  decided, in the absence of tangible progress in this regard by 11 October 2021, to instruct the Secretariat to prepare a draft interim resolution for consideration at the December 2021 meeting.

The authorities’ efforts to improve the situation in the penitentiary system in Ukraine, by continuing the repairs, refurbishing, renewal and optimisation of the prison estate are noted. These efforts should continue, in order to achieve significant tangible results in reducing overcrowding and improving material conditions of detention, transportation and nutrition. However, as already voiced by the Committee previously (see the Notes for the 1383^rd meeting (September 2020) (DH)[3]), the pilot project on paid cells, aimed at collecting money from detainees to improve conditions of detention, could not be seen as a solution compliant with the requirements of Article 3 of the Convention, which requires that acceptable conditions of detention should be provided to all prisoners, irrespective of their financial contribution or other standing.

However, while certain steps, with significant delays and inertia, have been eventually taken by the Ukrainian authorities, they are insufficient to conclude that they have complied with or are taking resolute action to comply with the indications in the pilot judgment.

Firstly, the efforts to improve material conditions of detention alone are insufficient given the extent of the problems. It is to be underlined here that these measures were not accompanied so far, despite previous calls from the Committee, by the adoption of any of the long-awaited legislative initiatives to promote alternative sanctions and minimise use of pre-trial detention, and to increase the minimum standard of personal space, in the single and multiple occupancy cells in pretrial detention.

Secondly, there is no clear perspective for the introduction of domestic remedies. The draft laws presented by the authorities in their latest submissions are not accompanied by a clear timeline for their adoption. In addition, these legislative drafts seem, prima facie, incomplete and insufficient in light of the Convention standards and the Court’s caselaw.[4] In particular, as regards the envisaged preventive remedy, it has not been made clear that the Commission for handling complaints would be an authority independent from the management of the penitentiary system, that its decisions would be binding on the prison administration and amenable to appeal, and what legal and administrative tools it would have at its disposal to enforce those decisions. As for the compensatory remedy, it is incomplete, as it lacks provisions to redress violations as regards applicants who are no longer detained or who, for various reasons, cannot benefit from a reduction in sentence. It is also unclear how these mechanisms would function in practice, as long as the structural problems disclosed by these judgments persist in the prison and detention facilities in Ukraine.

It is, therefore, deeply regrettable that, despite the Court’s indications and the Committee’s previous call, the authorities failed to take the necessary measures to implement the pilot judgment within the deadline set by the Court to this end, namely by 30 November 2021, in particular as concerns the introduction of a Convention-compliant system of domestic remedies.

The Committee could recall that the obligation to abide by the judgments of the Court under Article 46 of the Convention and the principle of subsidiarity which are enshrined therein, entail in the present cases the obligation for the state to find appropriate means to resolve the problems of inadequate conditions of detention and lack of effective domestic remedies. In addition, it could recall that these systemic and structural deficiencies have serious humanitarian implications notably for the persons held in detention. Moreover, the state authorities’ continuous lack of decisive action contradicts the compliance obligations ensuing from the absolute prohibition of ill-treatment, prescribed by Article 3 of the Convention. Having no domestic means of redress also puts an additional undue burden on the Convention system, as the Court is faced with multiple repetitive applications on the same issues.

The Committee could therefore strongly urge the authorities, at the highest political level, to hold to their commitment to resolve the problems of overcrowding and poor material conditions of detention, transportation and nutrition and lack of effective remedies thereof and to adopt, as a matter of priority, the general measures required to comply with the pilot judgment. That includes not only the urgent adoption of remedies, but also the need to ensure that these remedies fully meet the requirements of accessibility and effectiveness under the Convention. The introduction of these remedies should go hand-in-hand with substantive measures aimed at significantly reducing overcrowding and improving conditions of detention, measures that are vital to ensure the proper functioning of these remedies. In addition, pending the adoption of fully functional remedies, the authorities could be strongly encouraged to take transitional measures to allow for a resolution at the domestic level of the pending applications to the Court, in order to avoid an influx of new repetitive judgments from the Court on the same issues.

Proposal of an interim resolution

In light of the lack of tangible progress in the adoption of the necessary general measures to resolve the structural problem of overcrowding and inadequate conditions of detention and lack of effective remedies thereof in Ukraine, and in accordance with the decision of the Committee of June 2021, the Secretariat has prepared a draft interim resolution for the present meeting.

Financing assured: YES