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FIFTH
SECTION
CASE OF FELDMAN v. UKRAINE (no. 2)
(Application
no. 42921/09)
JUDGMENT
STRASBOURG
12
January 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Feldman v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Angelika Nußberger, judges,
Mykhaylo
Buromenskiy, ad hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 76556/01)
against Ukraine lodged with the Court under
Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Mr Boris Mordukhovich Feldman (“the
applicant”), on 14 November 2000.
- The
applicant was represented by Mr V. N. Ageyev, a lawyer practising in
Kyiv. The Ukrainian Government (“the Government”)
were represented by their Agent, Mrs V. Lutkovska, from the Ministry
of Justice.
-
On 11 August 2009 it was decided to sever the applicant’s
complaints concerning the refusals to authorise visits by his
relatives and a rabbi and the refusal to allow him to attend his
father’s funeral during his pre-trial detention, and to
register them as a separate application.
- On
8 February 2010 the President of the Fifth Section decided to give
notice of application no. 42921/09 to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1). Mrs G. Yudkivska, the judge
elected in respect of Ukraine, was unable to sit in the case (Rule 28
of the Rules of Court). The President of the Chamber decided to
appoint Mr Mykhaylo Buromenskiy to sit as an ad hoc judge (Rule 29 §
1(b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in
Dnipropetrovsk.
- The
applicant was the Vice-President, founder and majority shareholder of
the Bank Slavyansky (hereinafter – the Bank). On
2 February 2000 the State Tax Police instituted criminal
proceedings into tax evasion by the management of the Bank and on 10
March 2000 the State Tax Administration instituted another set of
criminal proceedings for abuse of office by the management of the
Bank (for more details see Feldman v. Ukraine, nos.
76556/01 and 38779/04, 8 April 2010).
- On
13 March 2000 the applicant was arrested and from that date he was
detained as a criminal suspect until his conviction by the
Artemivskiy Court on 19 April 2002.
- On
4 May 2000 the applicant asked the investigator to arrange a visit by
the Rabbi of the Dnipropetrovsk Region. On the same date the rabbi
also made a request to see the applicant for religious conversations.
- On
6 May 2000 the investigator refused the requests on the ground that a
meeting between the applicant and the rabbi might impair the
establishment of truth in the case.
- On
19 May 2000 the applicant asked the investigator to allow him visits
by his wife and sister. The request was refused on same day on the
ground that such a visit might impair the establishment of truth in
the case.
- On
7 and 11 August 2000 the applicant’s sister requested leave to
visit the applicant. By letters of 15 August 2000 these requests were
refused, on the ground that the investigation was pending and the
visit might impair the establishment of truth in the case.
- On
9 August 2000 the applicant’s lawyer asked the investigator to
transfer the applicant to Dnipropetrovsk to attend his father’s
funeral. On 11 August 2000 the investigator refused this request
on the ground that domestic law did not provide for escorting
suspects for such purposes.
II. RELEVANT DOMESTIC LAW
- Under
section 12(1) of the Pre-Trial Detention Act 1993, 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 authorities of the
place of detention, but only with the written approval of an
investigator or a court dealing with the case, depending on whether
it is at the investigation or the trial stage.
14. The
relevant provisions of the Code of Criminal Procedure 1960 read:
Section 162
Visiting a detainee
“Visits of relatives or other
persons to a detainee may be allowed by the person or institution
that deals with the case. The duration of the visits shall be fixed
from one to two hours. Visits may be allowed, as a rule, not more
than once a month.”
15. In
their observations the Government further referred to the
penitentiary instructions concerning the procedure for holding
detainees in SIZOs, issued on 20 September 2000.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained about the refusal by the
domestic authorities to grant him family visits during his pre-trial
detention, and also that he was not allowed to attend his father’s
funeral. He relied on Article 3 of the Convention.
- The Court has previously found that restrictions of
this kind do not attain a minimum level of severity to fall within
the scope of Article 3 (see, mutatis mutandis, Sannino
v. Italy (dec.), no. 72639/01, 3 May 2005; and Lind v.
Russia, no. 25664/05, § 88, 6 December 2007). In a
number of cases it considered complaints about the rejection of a
detainee’s request for permission to be visited by a relative
or attend a relative’s funeral under Article 8 of the
Convention (see, respectively, Shalimov v. Ukraine,
no. 20808/02, § 83, 4 March 2010; and Płoski v.
Poland, no. 26761/95, §§ 26-39, 12 November
2002). Accordingly, 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 ... family life...
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.”
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Refusal of family visits
- The
applicant submitted no observations within the fixed time-limit.
- The
Government admitted that there had been an interference with the
applicant’s family life. However, they considered that such
interference was justified. They maintained that the issue of
authorisation for family visits was foreseen by the domestic law,
namely Article 162 of the Code of Criminal Procedure. The refusal to
allow such family visits during the investigation stage was in the
interests of public safety and was necessary in a democratic society.
a. Whether there has been an interference
- The Court considers, and this was not disputed by the
parties, that there was “an interference by a public authority”
within the meaning of Article 8 § 2 of the Convention with the
applicant’s right to respect for his family life, guaranteed by
paragraph 1 of Article 8.
b. Whether the interference was justified
- The
cardinal issue that arises is whether the above interference is
justifiable under paragraph 2 of Article 8. 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, 25 March 1993,
Series A no. 61, § 84, and Petra v. Romania, 23 September
1998, Reports 1998-VII, § 36).
- 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,
24 April 1990, Series A no. 176-A, § 27, and Series A no. 176-B,
§ 26, respectively).
- In
contending that these requirements were met, the Government referred
in their written observations to the provisions of Article 162 of the
Code of Criminal Procedure and section 12(1) of the Pre-Trial
Detention Act 1993, which provide that a detainee may be allowed
family visits during pre-trial detention. They further referred to
the penitentiary instructions concerning the procedure
for holding detainees in SIZOs, issued on 20 September 2000.
- The
Court first notes that the applicant’s complaint concerns
events that took place in May-August 2000, that is, before the
instructions of 20 September 2000 were
issued. Thus, the Court fails to see the relevance of these
instructions to the present application.
- The
Court further notes that Article 162 of the Code of Criminal
Procedure and section 12(1) of the Pre-Trial Detention Act 1993
provide that an investigator or a judge can authorise family visits
during pre-trial detention, but that these provisions do not indicate
with reasonable clarity the scope and manner of exercise of the
discretion conferred on the public authorities in respect of
restrictions on detainees’ contacts with their families.
Indeed, the above provisions do not require them to give any reasons
for their discretionary decision or even to take any formal decision
that could be appealed against, and therefore contain no safeguards
against arbitrariness or abuse. In the applicant’s case the
investigator simply mentioned that the requested visits might impair
the establishment of truth in the case.
- The
Court finds that in these circumstances it cannot be said that the
interference with the applicant’s right to respect for his
family life was “in accordance with the law” as required
by Article 8 § 2 of the Convention (see Shalimov v. Ukraine,
cited above, §§ 88 and 89).
- In
view of the above finding, the Court 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.
- There
has therefore been a violation of Article 8 of the Convention in this
respect.
2. Refusal to allow the applicant to attend the funeral
of his father
- The
applicant submitted no observations within the fixed time-limit.
- The
Government submitted that the investigator refused the applicant’s
request for a transfer to Dnipropetrovsk to attend his father’s
funeral, since domestic law did not provide for escorting suspects
for such purposes. They concluded that the domestic authorities had
not been able, within their competence and in accordance with the
domestic legislation, to provide the applicant with a possibility to
attend his father’s funeral.
a. Whether there has been an interference
- With
respect to this complaint, the Government did not express their
position on whether there had been “an interference by a public
authority” within the meaning of Article 8 § 2 of the
Convention with the applicant’s right to respect for his family
life as guaranteed by paragraph 1 of Article 8. The Court has already
found that the refusal to a detainee of leave to attend a relative’s
funeral constituted an interference with the right to respect for
family life (see Schemkamper v. France, no. 75833/01, §
31, 18 October 2005; Sannino (dec.), cited above;
and Płoski, cited above, § 32).
The Court does see no reason to depart from this case-law in the
present case. Accordingly, the refusal to transfer the applicant so
that he could attend the funeral of his father interfered with the
applicant’s rights under Article 8 of the Convention.
b. Whether the interference was justified
- The Court reiterates that any interference with an
individual’s right to respect for his private and family life
will constitute a breach of Article 8, unless it was “in
accordance with the law”, pursued a legitimate aim or aims
under paragraph 2, and was “necessary in a democratic society”
in the sense that it was proportionate to the aims sought to be
achieved (see, among other authorities, Elsholz v. Germany
[GC], no. 25735/94, § 45, ECHR 2000-VIII).
- In
accordance with the Court’s case-law, Article 8 of the
Convention does not guarantee a detained person an unconditional
right to leave to attend a relative’s funeral. At the same time
the Court emphasises that even if a detainee by the very nature of
his situation must be subjected to various limitations of his rights
and freedoms, every such limitation must be nevertheless justifiable
as necessary in a democratic society (see Lind v. Russia,
cited above, § 94). The State can refuse an individual the right
to attend the funerals of his parents only if there are compelling
reasons and if no alternative solution can be found (see Płoski,
cited above, § 37).
- In
the instant case, the applicant’s individual situation was not
assessed at all by the domestic authorities and he was denied the
right to attend the funeral of his farther only on the ground that
the domestic law did not provide for such a possibility. In the
Court’s opinion such an unconditional denial to the applicant
of compassionate leave or another solution to enable him to attending
his father’s funeral is not compatible with the State’s
duty to assess each individual request on its merits and to
demonstrate that the restriction on the individual’s right to
attend a relative’s funeral was “necessary in a
democratic society”.
- In
the light of the above, the Court finds that there has been a
violation of Article 8 of the Convention in this respect also.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
- The
applicant complained that while in pre-trial
detention he had not been allowed to see a rabbi. He
relied on Article 3 of the Convention, but the Court considers that
this complaint falls within the ambit of Article 9 of the Convention,
which provides:
“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.”.
- The parties made no observations as to the
admissibility of this complaint. In particular, the Government did
not submit any observations on the question of the six-month rule. In
this respect the Court reiterates that the six-month rule, in
reflecting the wish of the Contracting Parties to prevent past
decisions being called into question after an indefinite lapse of
time, serves the interests not only of the respondent Government but
also of legal certainty as a value in itself. It marks out the
temporal limits of supervision carried out by the organs of the
Convention and signals to both individuals and State authorities the
period beyond which such supervision is no longer possible. It is
therefore not open to the Court to set aside the application of the
six-month rule solely because a Government have not made a
preliminary objection based on it (see Walker v. the United
Kingdom (dec.), no. 34979/97, ECHR 2000-I).
- The
Court observes that in the initial submissions the exact date of the
impugned refusal to authorise a rabbi’s visit was not
specified. From the documents available at this stage, it appears
that the disputed refusal by the investigator dated back to 6 May
2000. There were no allegations by the applicant that there had been
any other instances of interference with his religious beliefs.
- The Court notes that restrictions on visits by either
relatives or other persons are governed by the same legislative
provisions, which, as the Court has established above, do not require
the relevant authorities to take any formal decision that could be
appealed against (see paragraph 26 above). The Court reiterates that
where no effective remedy is available to an applicant, the six-month
period runs from the date of the acts or measures complained of, or
from the date of knowledge of that act or its effect on or prejudice
to the applicant (see Dennis and Others v. the United Kingdom
(dec.), no. 76573/01, 2 July 2002). In this respect, the
impugned refusal took place on 6 May 2000 and there are no
allegations that the applicant was informed of it with undue delay.
Given that the application was lodged on 14 November 2000 and this
particular complaint was raised for the first time in the letter of
16 December 2000, it was introduced out of time and must therefore be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just
satisfaction within the fixed time-limit. Accordingly, the Court
considers that there is no call to award him any
sum under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicant’s complaints under
Article 8 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention concerning the refusal to authorise family
visits;
- Holds that there has been a violation of Article
8 of the Convention concerning the refusal to authorise the applicant
to attend his father’s funeral.
Done in English, and notified in writing on 12 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
