Ukraine v. Russia (Re Crimea) [GC] (extracts)

1205. The applicant Government submitted that the respondent Government were responsible for administrative practices that amounted to a violation of Article 3 of the Convention.

Admissibility

1206. The Court observes that the applicant Government’s version of the facts contains references to different episodes of events which allegedly occurred predominantly in Crimea but also in other parts of Ukraine or in the Russian Federation. Nevertheless, it transpires from the applicant Government’s submissions that they take a holistic approach to the presentation of the claims concerning “Ukrainian political prisoners” and consider that the different accounts of events cannot be viewed in isolation. The Court accepts this approach, subject to the need to ascertain that there is sufficiently substantiated prima facie evidence that the events relied on actually occurred and that they represent “an accumulation of identical or analogous breaches which are sufficiently numerous and interconnected not to amount to merely isolated incidents or exceptions but to a pattern or system” (“repetition of acts”) and that there is “official tolerance” of those breaches. The Court will decide, having regard to the particular circumstances of the case, on the extent of events required in order to be able to conclude that an administrative practice in breach of the Convention existed.

1207. It follows from the applicant Government’s submissions that they complain of an administrative practice consisting of: (i) acts of ill-treatment, including torture, inflicted on political prisoners and a lack of proper investigation into these allegations by the Russian authorities; (ii) inhuman conditions of detention, in particular in the Simferopol SIZO and Lefortovo SIZO (Moscow); (iii) a lack of medical assistance in prison, and (iv) “cruel and unreasonable punishment” inflicted on “political prisoners” in the form of placement in solitary confinement and punishment cells with extremely harsh conditions.

1208. In relation to the applicant Government’s allegations regarding allegedly inadequate conditions of detention in penal facilities on the territory of the Russian Federation (item (ii) above), the Court notes that the material submitted does not enable it to conclude that there exists sufficiently substantiated prima facie evidence of an administrative practice in this regard. The few instances referred to cover a few separate episodes in different establishments and there is no evidence provided either with regard to the material conditions of detention in Lefortovo SIZO, which was singled out by the applicant Government in their submissions and in which at least ten Ukrainian prisoners had been incarcerated after March 2014, or to support a finding that the detention conditions imposed in the instances concerned were sufficiently “interconnected”. Therefore, the evidence adduced, taken as a whole, does not enable the Court to reach the conclusion that there has been “an accumulation of identical or analogous breaches” “which are sufficiently numerous and interconnected” to amount to “a pattern or system” in this respect. It is therefore not necessary for the Court to examine whether there is sufficient evidence of “official tolerance” as regards these particular allegations. This part of the complaint must therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.

1209. With respect to their complaint of lack of proper medical assistance (item (iii) above), the applicant Government submitted that this had resulted in the prisoners’ state of health deteriorating badly during their detention, including some with chronic illnesses. In some instances, the Russian authorities had restricted the administration of required medication or refused to provide information about the prisoners’ state of health. The Court observes that the applicant Government referred in the application form to the situation of eight individuals (see also paragraph 1213 below), but did not subsequently provide any further evidence in this respect, after the admissibility decision (16 December 2020).

1210. The Court accepts that, on the limited evidence before it, it cannot be excluded that individual prisoners may have been denied the required medical assistance. Indeed, the reports prepared by some IGOs addressed some of those cases. However, they did not make any suggestion of systemic occurrences or reach any conclusions in that regard. Against this background, it cannot be said that there was “an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected not to amount to merely isolated incidents or exceptions but to a pattern or system” (“repetition of acts”). Accordingly, the required standard of proof (prima facie evidence) has not been met in relation to the complaint under this head. It is therefore not necessary for the Court to examine whether there was sufficient evidence of “official tolerance” as regards these particular allegations. This part of the complaint is therefore also inadmissible and must be rejected in accordance with Article 35 § 4 of the Convention.

1211. The applicant Government also maintained that “Ukrainian political prisoners” had been placed in solitary confinement and in punishment cells in conditions they described as “extremely harsh” (item (iv) above). The Court notes that while the formulation of the complaint under this head may be said to be in general terms, in their presentation of the facts the applicant Government identified eight individuals who had allegedly been placed in punishment cells and five who had been placed in solitary confinement. Besides the low number of individuals concerned by those measures, the Court notes that some of the allegations are not substantiated by evidence at all and that the evidence adduced with regard to the remaining allegations contains little or no detailed information about the conditions prevailing in the respective facilities. Accordingly, the required standard of proof (prima facie evidence) has not been met in relation to the complaint under this head. It is therefore not necessary for the Court to examine whether there was sufficient evidence of “official tolerance” as regards these particular allegations. Accordingly, this part of the complaint is also inadmissible and must be rejected in accordance with Article 35 § 4 of the Convention.

1212. Turning, lastly, to items (i) and (partly) (ii) above, the Court considers that the applicant Government’s claims regarding, firstly, the alleged acts of ill-treatment inflicted on the “Ukrainian political prisoners” and the lack of a proper investigation into these allegations by the Russian authorities, and secondly, the inhuman conditions of detention in the Simferopol SIZO, do not fall short of the prima facie evidential threshold, and that they comply with the six-month time-limit for reasons which will be explained below. This part of the complaint must therefore be declared admissible.

Merits

(b) The Court’s assessment

(i) General principles

1215. The general principles, as set out in numerous judgments, were summarised, in so far as relevant, in Georgia v. Russia (II) (cited above, § 240 – see paragraph 985 above).

1216. The relevant passage from the El-Masri (cited above, § 197), recently reiterated in Georgia v. Russia (II) (cited above, § 271), reads as follows:

“197. In order to determine whether any particular form of ill-treatment should be classified as torture, the Court must have regard to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of ‘torture’ to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aksoy, cited above, § 62). In addition to the severity of the treatment, there is a purposive element, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which came into force on 26 June 1987, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (Article 1 of the United Nations Convention) (see İlhan v. Turkey [GC], no. 22277/93, § 85, ECHR 2000‑VII).”

(ii) Application of the principles referred to above in the present case

(α) Allegations of ill-treatment and lack of an effective investigation in this respect

1217. The Court reiterates that there is consistent information before it that, after the Russian Federation gained effective control over Crimea, “multiple and grave violations of the right to physical and mental integrity have been committed by State agents of the Russian Federation in Crimea” and that such acts had been committed by members of the “Crimean self‑defence forces” and various Cossack groups and later by representatives of the Crimean FSB and the police (see paragraphs 85 and 90 of the 2017 OHCHR Report, A 102 and paragraph 986 above).

1218. Against this backdrop, the Court notes that the applicant Government have described for illustrative purposes numerous instances of ill-treatment inflicted on “Ukrainian political prisoners” during the period 2014-2018 (see in this connection the accounts concerning Mr Oleksandr Kostenko, Mr Andrii Kolomiyets, Mr Mykola Shyptur, Mr Ihor Movenko, Mr Ismail Ramazanov, Mr Yevhen Panov, Mr Andriy Zakhtey, Mr Volodymyr Prysych, Mr Volodymyr Dudka, Mr Hlib Shabliy, Mr Stanislav Klykh, Mr Mykola Karpyuk, Mr Oleg Sentsov, Mr Oleksandr Kolchenko, Mr Hennadii Afanasiev, Mr Oleksiy Cherniy, Mr Mykola Dadeu, Mr Serhiy Lytvynov, Mr Valentyn Vyhivskyi, Mr Viktor Shur and Mr Oleksii Syzonovych). Many of those acts of ill-treatment consisted of beatings, the use of electric current, mock executions and the administration of unknown drugs and were aimed at inflicting severe pain or suffering in order to obtain information, extract confessions about the commission of crimes or testimony about acts carried out by others, or inflict punishment or intimidation. The severity of the treatment taken together with its purposive element warrants its classification as acts of torture (see paragraph 1216 above). Other types of conduct, such as, for example, threats of ill-treatment or psychological pressure exerted on the same individuals mentioned above or on others amounted at least to inhuman or degrading treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 108, ECHR 2010). With respect to Mr Mykola Karpyuk, the Court reiterates that it has already found that his complaints concerning the torture he had been subjected to and the failure to investigate his allegations of ill-treatment disclosed a breach of both the substantive and procedural limbs of Article 3 of the Convention (Maslova and Others v. Russia [Committee], nos.62807/09 and 10 others, §§ 15-18, 11 January 2024).

1219. Some of the applicant Government’s allegations are supported by direct testimony of the victims and/or their lawyers (through complaints raised on the subject with the Russian authorities). Other allegations are supported by accounts reported by the media and based on interviews with victims or on information provided by prisoners’ lawyers, family members or Ukrainian consular officials. Further allegations are supported by both types of material mentioned above. These numerous accounts equate to first-hand information which appears to be truthful and credible, carrying significant probative value.

1220. These allegations are corroborated firstly and most specifically by the information provided by OHCHR (see paragraph 158 of the Report on the Human Rights Situation in Ukraine Report covering the period from 16 February to 15 May 2015, A 99; paragraphs 86-91 of the 2017 OHCHR Report, A 102; and paragraphs 22-25 of the 2018 OHCHR Report, A 103) and the UN Human Rights Committee (A 62), and, secondly, by numerous NGOs (see paragraph 846 above), given the first-hand information collected (obtained through monitoring of the situation and developments in Crimea and/or interviews with representatives of key target groups), the media monitoring, and the event and legislative framework analysis therein (see the reports published by the Human Rights Watch, the Open Society Justice Initiative, IPHR, and Crimean Human Rights Group, A 110, 115, 117 and 135).

1221. Further evidence in the form of documentary material is provided by the Ukrainian prosecuting authorities (see the letter from the Prosecutor General of Ukraine regarding the ongoing investigation in respect of alleged perpetrators concerning instances of ill-treatment of named individuals, A 159 and 162; and the letter from the Ukrainian Ombudsperson, A 258‑59).

1222. Importantly, according to the reports of the UN Secretary-General and the Commissioner for Human Rights, practices of ill-treatment and torture have continued in Crimea and the alleged perpetrators of torture and ill-treatment have not been brought to account (see paragraph 20 of the Secretary-General’s 2019 Report, paragraphs 17-18 of the 2020 Report, and paragraph 13 of the 2022 Report (A 93-95); and paragraph 12 of the 2023 Commissioner’s Report, A 74).

1223. The Court reiterates that, while it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to the allegations of ill-treatment fail to disclose crucial documents in order to enable the Court to establish the facts or to provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences may be drawn (see Varnava and Others,cited above, § 184). In the present case, the respondent Government did not engage at all with the merits of the complaints under Article 3 besides making a general statement that no administrative practice of a violation of the Convention could be found to exist. They also failed to submit any material in this connection (such as medical files, arrest reports, possible judicial decisions concerning allegations of ill-treatment or other relevant material in their exclusive possession). The Court is accordingly prepared to draw the necessary inferences, in particular from the total failure to present material of any kind to the Court in connection with the allegations of ill‑treatment of “the Ukrainian political prisoners”.

1224. Given the above-mentioned circumstances, the Court is satisfied that it has sufficient evidence in its possession to enable it to conclude beyond reasonable doubt that there existed an accumulation of identical or analogous breaches which are sufficiently numerous and interconnected to amount to a pattern or system. Indeed, the evidence reveals numerous instances of ill‑treatment which are part of the sustained campaign of political repression of actual or perceived opponents of the Russian policies.

1225. Furthermore, it appears from the available evidence that such acts were perpetrated by representatives of the FSB and the police forces, and in certain instances directly by (or with the cognisance of) agents of penal facilities in Crimea or Russia. In these circumstances, the responsibility of the Russian Federation cannot be questioned.

1226. As regards the “official tolerance” element of the administrative practice, the Court refers to its previous findings under Article 3 insofar as the situation in Crimea is concerned (see paragraphs 994 et seq. above). The same considerations are applicable with respect to the acts perpetrated by Russian agents on the territory of the Russian Federation.

1227. Furthermore, the Court notes that the Russian Federation authorities have not been transparent about any investigations into allegations of ill-treatment concerning “Ukrainian political prisoners”. As explained above, the respondent Government failed to provide any substantive submissions about whether any formal investigations had been initiated or, if so, their outcomes. It appears, however, from the material submitted by the applicant Government that when the available evidence pointed to the existence of complaints lodged by victims of ill-treatment, such complaints either resulted in decisions not to open criminal proceedings, or the investigations eventually carried out produced no results. The Court concludes that the lack of proper investigations into the allegations of ill‑treatment constitutes a separate pattern of violations of the Convention. In addition, reiterating that the question of the effectiveness and accessibility of domestic remedies may be regarded as additional evidence of whether or not an administrative practice exists (see, in particular, Cyprus v. Turkey (merits),cited above, § 87, and Georgia v. Russia (I), cited above, § 126), the Court finds that given its scale and duration, this pattern reinforces the Court’s conclusion as to the existence of “official tolerance” on the part of the Russian Federation authorities of the practice of ill-treatment.

1228. Having regard to all those factors, the Court concludes that there has been an administrative practice contrary to Article 3 of the Convention as regards the ill-treatment of “Ukrainian political prisoners” which caused them undeniable mental and physical suffering, and the lack of an effective investigation in this connection. The Court is also satisfied that this administrative practice has continued after the allegations on the matter were brought before the Court on 10 August 2018 and that therefore no issue arises under the six-month rule.

1229. The Court concludes that there has been a violation both of the substantive and the procedural limbs of Articles 3 of the Convention under this head.

(β) Conditions of detention in the Simferopol SIZO

1230. As indicated above (see paragraph 1213 above), the applicant Government maintained that the “Ukrainian political prisoners” were kept in poor conditions of detention. Pointing to the Simferopol SIZO located in Crimea, they emphasised in particular the serious overcrowding in the cells and the inadequacy of the sleeping facilities.

1231. The Court notes that most of the “Ukrainian political prisoners” referred to by the applicant Government had been detained for various periods of time in the Simferopol SIZO, the only pre-trial detention facility in Crimea until the Autumn of 2022 (see paragraph 29 of the 2023 report of the Secretary General of the Council of Europe, A 72). It observes that the description of the conditions of detention therein by the applicant Government is substantiated by consistent accounts provided by the detainees themselves, by their lawyers or by representatives of local NGOs (for example, the Kharkiv Human Rights Protection Group or the Crimean Human Rights Group), as relayed by the media or published on the websites of the NGOs in question. The information reported by the local NGOs is particularly revealing with regard to the overcrowding in the detention facility, the insufficiency of sleeping space, the poor quality of food, the lack of furniture, infestation, the inadequate temperatures, the lack of ventilation and the lack of privacy in relation to toilet facilities (A 466-67, 527, 643, 662).

1232. Of further evidential value is the 2015 report of the Russian Ombudsperson who, after having conducted a field visit, described the inadequate conditions of detention in the Simferopol SIZO (A 879).

1233. Those accounts are further corroborated by IGO reports. In this connection, the Court notes that in the report published following his visit of September 2014, the Commissioner for Human Rights recorded that several of his interlocutors in Kyiv, Moscow and Simferopol had drawn his attention to the poor detention conditions in the penal institutions in Crimea and that the local Ombudsperson had expressed particular concerns over the lack of food and medical supplies and overcrowding in places of detention (see paragraph 52 of the 2014 Commissioner’s report, A 73). The situation had failed to improve over the years according to the OHCHR, which documented the severe state of overcrowding in the Simferopol SIZO (see paragraph 113 of the 2017 OHCHR Report, A 102; paragraph 26 of the 2019 report of the UN Secretary-General, A 93; and paragraph 21 of the 2020 report of the UN Secretary-General, A 94). According to the 2020 report of the UN Secretary‑General, former detainees had complained of a lack of personal space, insufficient natural light and air, cold temperatures, a failure to meet basic sanitary and hygiene requirements, the extremely poor quality of food, as well as a lack of privacy as a result of the constant video surveillance of toilets.

1234. The respondent Government neither rebutted the alleged facts nor did they submit any evidence or counter arguments.

1235. The Court refers to the principles established in its case-law regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96-101, 20 October 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, either alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 -141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149-159, 10 January 2012).

1236. Bearing in mind all the considerations above, the Court cannot but find that the evidence submitted to it shows that, since 2014, “Ukrainian political prisoners” have been kept in inadequate conditions of detention amounting to degrading treatment, in particular on account of the lack of sufficient personal space during their detention in the Simferopol SIZO, but also on account of the other deficiencies described above, such as the insufficiency of sleeping space, inadequate temperatures, lack of ventilation, infestation, lack of privacy of toilets and poor food.

1237. Therefore, the Court is satisfied that it has sufficient evidence in its possession to enable it to conclude beyond reasonable doubt that there existed “an accumulation of identical or analogous breaches” “which are sufficiently numerous and interconnected” to amount to “a pattern or system” with respect to the inadequate conditions of detention in the Simferopol SIZO (Crimea), for which the respondent State did not deny responsibility. Furthermore, it appears from the available evidence that such breaches are the result of shortcomings in the organisation and functioning of the Crimean prison system. The scale and the systemic nature of this practice confirms in addition the existence of the “official tolerance” element of the administrative practice.

1238. Accordingly, there has been a violation of Articles 3 of the Convention on account of the administrative practice consisting in the incarceration of prisoners in inadequate conditions of detention in the Simferopol SIZO. The Court is also satisfied that the administrative practice has continued after the allegations in this respect were raised before the Court on 10 August 2018 and that therefore no issue arises under the six‑month rule.