GUK v. UKRAINE - 16995/05 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2016] ECHR 1082 (08 December 2016)

In the case of Guk v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          André Potocki, President,
          Ganna Yudkivska,
          Síofra O’Leary, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 15 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 16995/05) 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 Viktor Mykhaylovych Guk (“the applicant”), on 21 April 2005.

2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice.

3. The applicant initially complained that the authorities had obstructed his access to the criminal case file and had refused to provide him with copies of documents which he had required in order to substantiate his previous application to the Court. He also complained of lack of access to court in this regard. Subsequently, the applicant complained, in the main, under Article 3 of the Convention of ill-treatment by prison guards, conditions of his detention and inadequate medical assistance; under Article 8 of restrictions on family visits and telephone calls; and under Article 13 of lack of an effective domestic remedy for his complaints under Article 3. He also complained of hindrance of the effective exercise of his right of application as regards his present case, as guaranteed by Article 34.

4. On 29 March 2010 the application was communicated to the Government.

5. On 14 June 2012 the President of the Section decided to invite the parties to submit further observations regarding the factual developments which took place after the communication of the case. The applicant and the Government each submitted further observations and comments.

6. Having examined the applicant’s request for a hearing, the Chamber decided, under Rule 54 § 3 of the Rules of Court, that no hearing was required in the case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1966 and lives in Cherkasy.

A. The applicant’s conviction and requests for review of his sentence

8. On 23 August 2001 the Cherkasy Regional Court of Appeal found the applicant guilty of murder, attempted murder and illegal possession of firearms, and sentenced him to life imprisonment. On 12 February 2002 the Supreme Court upheld that judgment.

9. Subsequently, the applicant applied to the courts for a review of his sentence. Although initially the courts refused the requested review, in 2009 the Supreme Court changed the applicant’s sentence to fifteen years’ imprisonment, considering that life imprisonment had been imposed on him not in compliance with the law.

B. The applicant’s detention

10. During the investigations and trial the applicant was held in the Cherkasy Temporary Investigative Isolation Unit (“the SIZO”) No. 30. He remained there until 22 September 2004, when he was transferred to Kyiv SIZO no. 13.

11. On 15 October 2004 the applicant was placed in Sokalska Correctional Colony no. 47 in the Lviv Region (“Sokalska Prison”). In November 2007 he was transferred to the Zamkova Correctional Colony no. 58, in the Khmelnytsk Region (“Zamkova Prison”).

12. In May 2012 the applicant suffered an ischemic stroke and was taken to a hospital within the Shepetivska Correctional Colony No. 98, in which he underwent treatment as regards the stroke and generally hypertension. On 23 October 2012 the applicant was released from prison. In particular, it was noted that given his health condition he could no longer serve his sentence and he no longer posed danger to the society.

C. The applicant’s alleged ill-treatment on 15 October 2004

13. According to the applicant, on the day he arrived at Sokalska Prison (15 October 2004) he was beaten by several guards. As a result, he allegedly suffered an eye injury and several bruises and scratches on his body. Subsequently, the applicant was placed in a cell in which he was visited by a group of officers, including the prison governor and medical officer, with a view to completing the formalities related to the applicant’s transfer to that prison. The applicant claimed to have complained to those officers that he had been beaten up, but to no avail. Allegedly, his injuries were not noted and he received no medical assistance. In October 2005 the applicant was diagnosed with left-eye mydriasis of traumatic origin, which allegedly developed because of the eye injury he had received on 15 October 2004.

14. The applicant stated that on 19 October 2004 he had asked the prison authorities to send a complaint about his alleged beating to a prosecutor. The administration of the prison refused to send that complaint or other similar complaints which the applicant continued submitting after that date.

15. On 28 June 2006, during an official visit to the prison by a prosecutor in charge of supervising the prison authorities’ compliance with the law, the applicant handed his complaint of beating to that prosecutor.

16. By a decision of 18 August 2006, the prosecutor refused to open a criminal investigation into the applicant’s complaint, finding that there was no evidence of the alleged beating. The prosecutor based his decision on the information available from the applicant’s medical file and the written statements obtained from the prison staff, including the medical officer who had examined the applicant upon his arrival at the prison, and also from some of the prisoners who had been transferred to the prison on the same day as the applicant. Those prisoners, except for one of them, L., stated that the prison staff had not beaten or otherwise ill-treated them. L. stated that he had been punched on the limbs and back, but that he had not seen other prisoners being beaten.

17. On 26 October 2006 the applicant challenged the prosecutor’s decision before the courts, stating that it had not been based on the facts. In support of his appeal, the applicant submitted a statement, allegedly written by L. in June 2005, that the applicant had had bruises on his limbs on 16 October 2004.

18. The courts at two levels of jurisdiction upheld the prosecutor’s findings, relying, in the main, on the material contained in the prosecutor’s file concerning the applicant’s complaint that he had been beaten.

19. The applicant stated that the courts had refused his requests to be heard in person and for the prisoners who had been detained with him in Sokalska Prison to be questioned. The applicant lodged a cassation appeal with the Supreme Court.

20. On 17 December 2007 the Supreme Court refused to consider the applicant’s cassation appeal, because he had failed to submit certified copies of the lower courts’ decisions. On 30 January 2008 the applicant sent the required copies to the Supreme Court, asking it to review his case in cassation. The applicant did not provide any further information concerning that set of proceedings.

D. Conditions of the applicant’s detention and medical assistance in Sokalska Prison

1. Size of the cells, sanitation and hygiene, quality of food and water and application of restraints

(a) Submissions by the applicant

21. During his detention in Sokalska Prison between October 2004 and November 2007 the applicant stayed in cells of twelve square metres, together with three other inmates. According to him, as the cells contained sanitary facilities, four bunks, a table and two benches, the applicant and his cellmates had very limited living space, which, given the fact that they spent twenty-three hours a day in the cell and were not allowed to take physical exercise, was humiliating and intolerable. The cells were unventilated, always damp, and not sufficiently heated in winter. For several weeks in 2004 and 2005 the applicant was held in the same cells in which inmates suffering from the open form of tuberculosis were also detained.

22. Every time he left his cell the applicant was handcuffed and was followed by several prison officers with a guard dog. While the applicant was escorted to a medical unit or a meeting place, allegedly a felt-lined bag was put over his head, which prevented him from seeing and limited his air supply. When the applicant was taken out of his cell to the exercise area he was allegedly obliged to walk with his hands handcuffed behind his back and raised above his head, causing him physical and mental suffering. The exercise area measured about twenty-two square metres; it was damp and lacked direct sunlight.

23. According to the applicant, the food and water provided to him and other prisoners were unsatisfactory and hazardous to their health. The prison authorities did not ensure adequate sanitary conditions and he was not offered a chance to work and earn money to enable him to purchase medicine, sanitary supplies or additional food.

24. In 2005-06 the applicant allegedly tried to complain to prosecutors about the conditions of his detention. However, the prison authorities refused to send, or delayed sending, about twenty letters addressed by the applicant to prosecutors. Although some of his letters reached the prosecutors, his complaints about the conditions of his detention contained in those letters were not examined.

(b) Submissions by the Government

25. According to the Government, a part of the applicant’s submissions concerning the conditions of his detention, specifically his allegations that he had been detained in cells with poor sanitary and hygiene conditions together with inmates suffering from the open form of tuberculosis, that he had been escorted to a medical unit or a meeting place with a felt-lined bag over his head, and that while handcuffed he had been obliged to walk with his hands raised above his head, were untrue and not supported by any evidence.

26. The Government stated that the open-air exercise area measured twenty-four square metres and was equipped with a canopy protecting inmates from rain and snow. It was not dark or damp. There was also equipment enabling inmates to do physical exercises.

27. They further submitted that the applicant had had no opportunity to work, as at the time no facilities for work were available in the maximum security sector of Sokalska Prison. The food and water was regularly checked and was of adequate quality.

28. The Government contended that the applicant had made no complaint to the domestic authorities concerning the material conditions of his detention.

2. Medical assistance

(a) Submissions by the applicant

29. According to the applicant, his principal health problem was hypertension and in 2005 he had had four heart attacks. Allegedly, he had not received adequate medical treatment in that regard and had not been allowed to keep medication he needed.

30. In August 2005 the applicant complained of inadequate medical assistance to a prosecutor in charge of supervising the prison authorities’ compliance with the law. The prosecutor conducted an inquiry into the applicant’s complaints of inadequate medical assistance. The prosecutor found that the medical assistance provided to the applicant by the administration of the prison had been adequate; the applicant was informed of this by a letter of 3 November 2005. The prosecutor’s finding was based on the information contained in the applicant’s medical file, according to which the applicant had received treatment for hypertension in October and December 2004, in January and February 2005, and between April and July 2005, which included the administration of inosine, nitroglycerinum and other medication. It was noted that the applicant had also been given the medication his relatives had sent him. The treatment prescribed by the prison doctors was later endorsed by a cardiologist from a civilian hospital, who examined the applicant in August 2005.

31. The applicant disagreed with the prosecutor’s findings and complained to the Sokal Town Court. By a ruling of 20 February 2006, the court refused to deal with the applicant’s complaint, holding that the matter fell outside the court’s jurisdiction. On 14 August 2006 the Lviv Regional Court of Appeal upheld that ruling. On 8 July 2008 the Higher Administrative Court quashed those decisions, finding that the matter had to be examined in the framework of the administrative proceedings. The case was remitted to the Lviv Administrative Court for fresh examination. By a ruling of 16 October 2008, that court returned the case, refusing to examine it as the applicant had failed to submit a formal claim with documents in support. The applicant did not pursue the matter further.

(b) Submissions by the Government

32. According to the information submitted by the Government, throughout the period of his detention in the SIZO and in Sokalska Prison the applicant had been examined by various doctors, including doctors from civilian medical institutions, and had been provided with treatment for different medical issues he had at the time, including hypertension.

E. Restrictions on family visits and telephone calls

1. Submissions by the applicant

33. According to the applicant, during his post-conviction detention he maintained contact with his wife, two minor children whose ages were not specified, his mother, and four other relatives. Generally, he was entitled to family visits no more than once every six months and for no longer than four hours per visit.

34. During his stay in the Cherkasy SIZO allegedly only three adults and one child or two adults and two children could be present at any one time at such meetings. In Sokalska Prison no more than two adults and one child could be present at any one time. His family members, who lived in the Cherkasy Region, had experienced difficulties travelling to see him in Sokalska Prison, which is in the Lviv Region (about 700 km away).

35. In that prison, only one room was made available for family visits, on a specified day (Sunday), which, because of the high demand for such visits, usually resulted in the duration of the visits being substantially reduced. In particular, the applicant’s meetings with his family on 28 November 2004, 29 May 2005 and 28 November 2006 lasted no longer than two hours, whereas on 27 November 2005 and 28 May 2006 they lasted no longer than three hours.

36. The family visits took place in the presence of a guard with a guard dog; the applicant was placed in a cage and separated from the others by a glass partition. The applicant and his visitors had to use a telephone during such meetings and their conversations were constantly monitored by a prison guard.

37. Despite numerous requests by the applicant, the administration of the Cherkasy SIZO and Sokalska Prison did not allow him to have any intimate contact with his wife. The refusal was based on the ground that prisoners sentenced to life imprisonment did not have a statutory right to long family meetings.

38. Between 15 October 2004 and 2 November 2005 the applicant allegedly was not allowed to make any telephone calls to his family. On the latter date he was allowed to make a telephone call to his wife, the duration of which was limited to five minutes. Subsequently, the applicant was only allowed to receive telephone calls once every three months upon his written request.

39. The applicant complained to the Sokalska Prison authorities about the above-mentioned restrictions on family visits and telephone calls. In reply, they provided the applicant with extracts of the provisions of the Code on the Execution of Sentences of 2003 governing the conditions of detention of persons sentenced to life imprisonment.

2. Submissions by the Government

40. The Government challenged the trustworthiness of part of the applicant’s submissions concerning restrictions on family visits and telephone calls, specifically his allegations that family visits had lasted less than two hours, that he had not been allowed to make telephone calls between 15 October 2004 and 2 November 2005, that other restrictions had been imposed on his right to make telephone calls after 2 November 2005, that only three adults and one minor child or two adults and two minor children had been allowed to visit him at any one time in the Cherkasy SIZO, that only two adults and two minor children had been allowed to visit him at any one time in Sokalska Prison, and that those visits had taken place in the presence of a guard with a guard dog. The Government further stated that the applicant had not raised those complaints before the domestic authorities.

F. Alleged events during the applicant’s detention in Zamkova Prison in 2012

41. In a letter dated 19 May 2012 the applicant stated that the Court’s letter, sent to him in January 2012, had been opened and read by the administration of Zamkova Prison no. 58, where he had been serving a prison sentence, and that he had been persecuted by the administration of the Prison for communicating with the Court. In particular, the applicant was placed in solitary confinement for the period from 28 January to 15 May 2012; on an unspecified date all the documents in his possession and his pen were taken from him; and he was not given the opportunity to contact his relatives for two months, the exact calendar period not being specified. The applicant also stated that before those events he had been subjected to disciplinary sanctions when he had received letters from the Court in detention, but provided no details in this regard.

42. The Government in their turn contended that no letter to the applicant had been opened, that there had been no interference with his communication with the outside world, and that the applicant’s allegations of persecution for complaining to the Court were wholly unfounded. According to them, the applicant was disciplined on several occasions for breaches of prison regulations, which included, inter alia, not respecting the prison daily schedule and insulting the prison guards.

G. The applicant’s previous application to the Court

43. On 4 July 2002 the applicant lodged an application with the Court, complaining, inter alia, under Article 3 of the Convention that he had been tortured by the police and under Articles 6 and 7 of the Convention that he had been unfairly convicted and that his sentence had not been based on the law in force at the material time.

44. In order to substantiate his complaints before the Court, the applicant tried to obtain from the domestic courts copies of various documents from his criminal case file. By letters dated 19 April and 10 May 2002 and 26 March 2003 his requests for copies of documents were refused by the President and Vice-President of the Cherkasy Regional Court of Appeal as having no basis in law.

45. In 2002-03 the applicant’s mother and wife, who were given leave to represent him during his trial (see paragraph 8 above) and after the trial by a ruling of 6 March 2003 issued by a judge of the Cherkasy Regional Court of Appeal, visited that court on several occasions with a view to obtaining copies of the documents from the applicant’s criminal case file. According to the applicant, they were not allowed to consult the file or to take any documents from it. On an unspecified date their copy of the ruling of 6 March 2003 was allegedly taken and not returned by that judge.

46. By letters dated 19 August 2003 and 25 February 2004, the Court asked the applicant to submit documentary evidence in respect of his complaints under Articles 3 and 6 of the Convention. In particular, he was invited to submit copies of his written complaints to the national authorities concerning his alleged ill-treatment, a copy of the prosecutor’s decision concerning those complaints, a copy of his cassation appeal against the judgment of the Cherkasy Regional Court of Appeal of 23 August 2001, and copies of his written applications to have a witness on his behalf examined by that court.

47. Further to the Court’s letters, the applicant submitted several requests to the Donetsk Regional Court of Appeal, asking for copies of the requested documents. The applicant’s requests were refused, but he was informed that, at the request of the Court, the entire criminal case file would be sent to it.

48. On an unspecified date the applicant’s mother hired a lawyer to represent the applicant before the authorities. The lawyer obtained copies of the documents indicated in the Court’s letters, and they were subsequently submitted to the Court. However, the applicant stated that the lawyer had not obtained copies of all the necessary documents, and that the applicant’s mother’s further attempts to obtain copies of additional documents had been unsuccessful.

49. Meanwhile, the applicant lodged a complaint with the Prydniprovskyy District Court against the judges of the Cherkasy Regional Court of Appeal, challenging their refusal to provide him with copies of documents from his case file or to allow his relatives to represent him before the domestic authorities.

50. On 10 June 2004 the court dismissed the applicant’s complaint, holding that the matter did not fall to be considered by the courts. On 16 November 2004 the Cherkasy Regional Court of Appeal confirmed the ruling of the first-instance court.

51. On 16 June 2006 the Higher Administrative Court rejected the applicant’s cassation appeal as lodged out of time. According to the applicant, he missed the deadline because the Sokalska Prison authorities had failed to dispatch his correspondence on time. The applicant lodged a new cassation appeal with the Higher Administrative Court, together with a request for an extension of the time-limit. The outcome of that appeal is unknown.

52. On 27 March 2007 the Court declared the applicant’s previous application inadmissible.

II. RELEVANT DOMESTIC LAW

A. Correctional Labour Code of 1970 (repealed on 1 January 2004), as worded at the material time

53. Article 30 provided that prisoners sentenced to imprisonment, who were temporarily in an investigative isolation unit (SIZO), were subject to the rules governing detention at the type of penal institution in which they were to be placed pursuant to their sentence. They were allowed to have only short meetings with relatives and other persons.

54. Under Article 39, prisoners sentenced to life imprisonment were entitled to have a four-hour meeting with relatives or other persons in the presence of a prison guard once every six months. Provided it was technically possible, once every three months they were allowed a fifteen-minute telephone call under the supervision of the prison authorities and against a charge for its cost.

B. Execution of Sentences Code of 2003 (in force on 1 January 2004), as worded at the material time

55. Article 150 provided that prisoners sentenced to life imprisonment were to serve their sentences in correctional colonies of the highest level of security.

56. Pursuant to Article 151, they were, as a rule, placed in two-person cells. In certain circumstances they could be placed in solitary confinement. They were allowed to have one hour’s exercise daily. Prior to the amendments to the Code on 21 January 2010 (which came into effect on 16 February 2010), life prisoners were entitled to short visits (up to four hours) from their relatives and other persons once every six months. With those amendments, life prisoners became entitled to such visits once every three months.

57. Prisoners were also entitled to have four fifteen-minute telephone conversations a year under the supervision of the prison authorities, the costs of which were to be borne by prisoners (Article 110).

C. Internal Regulations of Penal Institutions, approved by Order No. 275 of the State Department for the Execution of Sentences on 25 December 2003 (repealed on 23 January 2015), as worded at the material time

58. The rules governing the detention of prisoners sentenced to life imprisonment subjected them to special restrictions as regards physical conditions, activities and opportunities for human contact, which included permanent separation from the rest of the prison population, limited visit entitlements, prohibition of communication with other prisoners, and being escorted by three officers with a guard dog and handcuffed with their arms behind their back whenever they were taken out of their cell (Sections 23-25).

59. Pursuant to Section 26, the admission of newly arriving prisoners was carried out by a commission composed of the prison staff, including medical officers, and headed by the prison governor. Upon their arrival at the prison, prisoners had to undergo a medical examination.

60. Under Section 47, prisoners were entitled to meetings with no more than three adults at one time; these could also be accompanied by the prisoner’s minor children.

61. Pursuant to Section 94, prisoners sentenced to life imprisonment were to receive medical assistance, as a rule, in their cells in the presence of at least three guards. Prisoners were to be transferred to a medical institution of the State Department for the Execution of Sentences, or to a civilian medical institution, if they needed urgent medical assistance.

62. Annex 9 to the Regulations provided that prisoners were not allowed to keep in their possession any medication or medical items.

63. Annex 17 provided for two options of equipping a room for short meetings. According to the first option, the meeting room was to be equipped with tables along the room separated by free space of 120 centimetres in width. There were to be no more than ten chairs for visitors; stools for the prisoners were to be fixed to the floor.

64. According to the second option, a meeting room was to be equipped with booths 80 centimetres in width and 100 centimetres in length. One or two booths were to be of 140 centimetres in width to accommodate two visitors or visitors with children coming to see the same prisoner. The visitors’ booths and the prisoners’ booths were to be separated by glass partitions. Booths were to be equipped with a loudspeaker and a telephone handset. Booths for life prisoners had to be additionally equipped with metal bars and doors with mechanical locks. The supervising officer’s table was to be equipped with a device for listening to the conversations in the booths.

III. Relevant Council of Europe documents

65. The Council of Europe material pertaining to family visits to prisoners was quoted in Trosin v. Ukraine (no. 39758/05, §§ 30-31, 23 February 2012).

THE LAW

I. SCOPE OF THE CASE

66. The Court notes that, after the case had already been communicated to the respondent Government, the applicant lodged new complaints. In particular, in his submissions dated 15 September 2010 the applicant complained under Articles 8 and 14 of the Convention about the allegedly discriminatory gender-related differences in the restrictions applicable to prisoners sentenced to life imprisonment.

67. In the Court’s view, the applicant’s new complaints constitute more than a mere expansion of his original complaints to the Court, on which the parties have commented. The Court considers, therefore, that it is not appropriate to take these matters up in the context of the present case (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

68. In his submissions of 18 March 2008, the applicant complained, under Article 3 of the Convention, that he had been beaten by the prison guards on 15 October 2004, that he had been denied medical assistance for his health problems in Sokalska Prison, and that the conditions of his detention in that prison had been humiliating and degrading. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

69. The Government contested that argument.

A. Admissibility

1. Inadmissible complaints

(a) Alleged beating on 15 October 2004

70. At the outset, the Court considers that the applicant’s complaint that he was beaten on 15 October 2004 is not “arguable” for the purposes of Article 3 of the Convention. There is no evidence of the alleged beating. The written statement of his cellmate at the time, to which the applicant referred in this regard, is too vague and contains no information as to the nature or origin of the applicant’s injuries mentioned therein (see paragraph 17 above). Moreover, for unknown reasons, the other injuries alleged by the applicant, notably his eye injury, were not mentioned in that statement. Although it is true that while in detention the applicant might have had difficulties in obtaining a medical examination by a doctor independent of the prison authorities, it was not demonstrated that the doctors who had examined him on a number of occasions after 15 October 2004 had been or could have been reluctant to register any injuries, should they have noted such injuries or if the applicant had informed the doctors of them. In this connection it should be observed that the applicant’s eye problem was noted about a year after the alleged beating had taken place (see paragraph 13 above).

71. Furthermore, the applicant’s allegation that his complaints were blocked by the prison authorities is wholly unsubstantiated. Although the applicant stated that before June 2006 he had had no opportunity to complain of his beating to a prosecutor, his complaint of inadequate medical treatment had reached the prosecutors in 2005 (see paragraph 30 above).

(b) Allegedly inadequate medical assistance

72. In so far as the applicant complained of inadequate medical treatment, the Court observes that, judging by the evidence before it, the applicant’s complaints of specific health problems were dealt with by the authorities (see paragraphs 30 and 32 above). On the whole, it cannot be argued that they addressed them inadequately. The applicant was examined by a number of doctors, including some from civilian medical institutions. He remained under their supervision while in Sokalska Prison. It was those doctors who were best placed to determine the applicant’s treatment, and he was given the treatment prescribed. There is no evidence, and it was not persuasively argued, that the doctors had acted in bad faith, or that the treatment provided had been ineffective. Nor did the applicant demonstrate that the domestic examination of his complaints of inadequate medical treatment had been deficient (ibid.).

73. As to the applicant’s complaints of other abuses in Sokalska Prison, specifically that a felt-lined bag had been put over his head, that he had been obliged to walk with his hands handcuffed behind his back and raised above his head, and that a guard dog had been present during his family visits, the Court notes that they are not supported by any evidence at all.

74. In these circumstances, the Court considers that the applicant’s being handcuffed when out of his cell did not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention. Even though the prison regulations appeared to allow the authorities to use the impugned measure of restraint on all male life prisoners, without giving consideration to their personal situation and the individual risk those measures might or might not present, the applicant did not specify the nature and extent of the suffering and humiliation caused to him by the restriction complained of, and failed to substantiate whether that suffering went beyond that inevitably connected with his lawful detention (see, for instance, Zakshevskiy v. Ukraine, no. 7193/04, §§ 75-78, 17 March 2016, and compare and contrast with Kaverzin v. Ukraine, no. 23893/03, §§ 153-63, 15 May 2012).

(d) Conclusion

75. In the light of the foregoing, the Court finds that this part of the applicant’s complaints under Article 3 should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

2. Complaints concerning the material conditions of the applicant’s detention in Sokalska Prison

76. The Government argued that this part of the applicant’s complaints was inadmissible on the ground of non-exhaustion of domestic remedies. They contended that the applicant could have raised his complaints before the public prosecutor in charge of supervising the prison authorities’ compliance with the law. Any decision taken by the prosecutor could be further challenged before the domestic courts.

77. The Government also argued that the applicant’s initial submissions before the Court had not contained a detailed account of the material conditions of his detention. Thus, they considered that the applicant could not claim to be a victim of a violation of Article 3 in that regard.

78. They further stated that it had been in September 2010 that the applicant had complained for the first time about the material conditions of his detention in Sokalska Prison between October 2004 and November 2007. For that reason, they invited the Court to reject those complaints as lodged out of time.

79. The Court notes that it has already dismissed the Government’s objections on the ground of non-exhaustion of domestic remedies on a number of occasions, finding the remedy referred to by the Government ineffective, as it had not been shown that recourse to such proceedings could have brought about an improvement in the applicant’s detention conditions (see, for a recent authority, Zakshevskiy, cited above, §§ 57 and 59). The Court sees no reason to depart from that finding in the present case, and therefore considers that this part of the applicant’s complaints cannot be rejected for failure to exhaust domestic remedies.

80. The Court further notes that the applicant’s complaints about the material conditions of his detention in Sokalska Prison between October 2004 and November 2007, which were included in his submissions of 18 March 2008 and a copy of which was sent to the Government in March 2010, are sufficiently detailed and are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They were thus lodged in time and are not inadmissible on any other grounds. The Court therefore declares them admissible.

B. Merits

81. The Court reiterates that Article 3 of the Convention requires States to ensure that a person is detained in conditions which are compatible with respect for his human dignity, and that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).

82. 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” within the meaning of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see, amongst many other authorities, Karalevičius v. Lithuania, no. 53254/99, §§ 39-40, 7 April 2005; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 146-149, 10 January 2012; Muršić v. Croatia [GC], no. 7334/13, §§ 136-139, 20 October 2016).

83. In the present case, for over three years while in Sokalska Prison the applicant was detained, together with three other inmates, in cells measuring twelve square metres, which also contained sanitary facilities, furniture and fittings. The applicant and his cellmates, who had clearly less than 3 sq. m. floor space each, were also confined to their cells for most of the day.

84. The Court has frequently found a violation of Article 3 of the Convention in similar situations (see, for a recent authority, Zakshevskiy, cited above, §§ 63-68).

85. Assessing the applicant’s situation in the present case in the light of the principles developed in its case-law, the Court considers that there is no reason to depart from its previous approach. The Government did not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

86. The Court therefore concludes that there has been a violation of Article 3 of the Convention as regards the material conditions of the applicant’s detention in Sokalska Prison.

87. Having regard to this finding, the Court does not consider it necessary to address the applicant’s other allegations relating to the material conditions of his detention, including his allegations of inadequate sanitation and hygiene, poor quality of food and water, and of sharing the cell with inmates with tuberculosis.

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

88. In his submissions of 18 March 2008, the applicant complained that the restrictions on family visits, intimate relations and telephone calls which had been applied to him during his post-conviction detention in the SIZO and in Sokalska Prison had been unlawful and disproportionate. The applicant relied on Article 8 of the Convention and Article 5 of Protocol No. 7 in that regard.

89. The Court considers that this part of the application falls to be examined solely under Article 8 of the Convention, which reads as follows:

“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.”

90. The Government contended that the part of the applicant’s complaints relating to the restrictions on family visits (see paragraph 40 above) was unsubstantiated. They further argued that that part of the applicant’s complaints was inadmissible on the ground of non-exhaustion of domestic remedies. According to them, the applicant could have raised them before the public prosecutor in charge of supervising the prison authorities’ compliance with the law. Any decision taken by the prosecutor could be further challenged before the domestic courts.

91. As to the remaining part of the applicant’s complaints relating principally to the duration and frequency of family visits, the conditions in which those visits had taken place, and the ban on family visits of long duration, the Government stated that the impugned restrictions had been in accordance with the law and had pursued the legitimate aim of ensuring security and safety in prison and preventing crimes. Given that the applicant had been sentenced to life imprisonment, the restrictions were justified.

92. The Government finally argued that on 16 January 2010 the relevant domestic regulations had been amended and since that time the applicant had been entitled to one family visit per three months.

A. Admissibility

93. The Court notes that there is no evidence that during the applicant’s post-conviction detention in the SIZO and in Sokalska Prison there had been any restrictions imposed on his contact with his family other than those which were set out at the time in the relevant domestic regulations (see paragraphs 53-64 above). The Government challenged the trustworthiness of the applicant’s submissions in that regard (see paragraphs 40 and 90 above), and the Court does not find sufficient basis to take a different position on that matter. Furthermore, the applicant did not submit any evidence showing that he had raised those allegations before the domestic authorities. It follows that this part of the applicant’s complaints under Article 8 of the Convention must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

94. In so far as the applicant’s complaints concern the restrictions on family visits during his post-conviction detention in the SIZO and Sokalska Prison regarding their frequency and duration, the number of visitors allowed at a time and the manner of conducting these visits, as was provided for by the domestic regulations, the Court notes that those complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Whether there was an interference with the applicant’s rights under Article 8

95. The Government did not dispute that the application of the impugned restrictions in the applicant’s case constituted an interference with his right to respect for his family life protected by Article 8 of the Convention.

96. Regard being had to its case-law (see, for a recent authority, Khoroshenko v. Russia [GC], no. 41418/04, §§ 106-09, ECHR 2015), and the circumstances of the case, the Court finds that the restrictions in question constituted an interference with the applicant’s “family life” within the meaning of Article 8 of the Convention. It remains to be seen whether this interference was justified under the second paragraph of that provision.

2. Whether the interference was justified

97. As it was reiterated in Khoroshenko (cited above, §§ 116-17, with further references), during their imprisonment prisoners continue to enjoy all fundamental rights and freedoms, save for the right to liberty. Accordingly, on imprisonment a person does not forfeit his or her Convention rights, including the right to respect for family life, so that any restriction on those rights must be justified in each individual case. That is, any restriction on that right must be applied “in accordance with the law”, must pursue one or more of the legitimate aims listed in paragraph 2 of Article 8 of the Convention, and in addition must be justified as “necessary in a democratic society”.

98. As to the present case, the Court notes that it has already dealt with a similar situation in another case against Ukraine. Notably, in Trosin (cited above, §§ 40-47), it found that the restrictions on the life-sentenced prisoner’s contact with his family, imposed by the same regulations as in the present case, had not been justified as regards the frequency and length of the family visits, the number of persons admitted per visit, and the manner of conducting these visits. In particular, the State did not take the necessary measures to ensure that the prisoner’s private interest in meeting with his family was properly balanced against the relevant public interest in restricting prisoners’ contact with the outside world. Therefore, the Court found a violation of Article 8 of the Convention in that case (ibid.).

99. Assessing the applicant’s situation in the present case in the light of the principles developed in its case-law (see Khoroshenko, cited above, §§ 146-49), the Court considers that there is no reason to depart from its previous findings in Trosin (cited above). The Government did not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

100. The Court therefore concludes that there has been a violation of Article 8 of the Convention as regards the frequency and length of the family visits to the applicant during his post-conviction detention while in the SIZO and in Sokalska Prison, the number of people admitted per visit, and the manner in which these visits were conducted.

101. Having regard to this finding, the Court does not consider it necessary to examine separately whether and in what way the restrictions in question affected the applicant’s opportunities to maintain intimate relations with his wife. Nor is it necessary, in the circumstances, to examine whether his family had difficulties arranging their travel in order to visit the applicant in Sokalska Prison.

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

102. In his submissions of 18 March 2008 the applicant further complained that he had not had an effective domestic remedy in respect of his above complaints under Articles 3 and 8 of the Convention (see paragraphs 68 and 88 above). He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

103. The Government contended that the applicant had had at his disposal effective domestic remedies for his complaints under Article 3 of the Convention.

A. Admissibility

104. The Court, having declared part of the applicant’s complaints under Articles 3 and 8 of the Convention inadmissible (see paragraphs 75 and 93 above), concludes that the applicant has no arguable claim for the purposes of Article 13 of the Convention in that regard (see, for instance, Valeriy Fuklev v. Ukraine, no. 6318/03, § 98, 16 January 2014). It follows that the applicant’s complaint under Article 13 of the Convention, in so far as it relates to his inadmissible complaints, must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.

105. In so far as the applicant’s complaint under Article 13 is linked to his complaints, regarding which the Court found a violation Articles 3 and 8 of the Convention (see paragraphs 86 and 100 above), it 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. Lack of remedies for the applicant’s complaints under Article 3 of the Convention concerning the material conditions of his detention

106. With reference to its earlier case-law (see, for a recent authority, Savinov v. Ukraine, no 5212/13, §§ 58-59, 22 October 2015, with further references) and the circumstances of the present case, the Court finds that the Government have not proved that the applicant had in practice an opportunity to obtain an effective remedy for his complaints concerning the material conditions of his detention - that is, a remedy which could have prevented the violations from occurring or continuing, or which could have afforded the applicant appropriate redress.

107. The Court concludes, therefore, that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints under Article 3 about the material conditions of his detention.

2. Lack of remedies for the applicant’s complaints under Article 8 of the Convention concerning the restrictions on his contact with his relatives

108. The Court notes that it found a violation of Article 8 of the Convention as regards the restrictions on the applicant’s contact with his family which had been imposed by the domestic law (see paragraph 100 above). However, it reiterates that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention (see, for instance, Ostrovar v. Moldova, no. 35207/03, § 113, 13 September 2005, and Titarenko v. Ukraine, no. 31720/02, § 110, 20 September 2012). In these circumstances, the Court finds no breach of Article 13 of the Convention in that regard.

V. ALLEGED interference with the applicant’s right of individual APPLICATION

109. The applicant complained that he had not been able to obtain copies of documents for his previous application (see paragraphs 44-48 above). He further alleged that the authorities had monitored his communication with the Court and had persecuted him for complaining to the Court (see paragraph 41 above).

110. This part of the application falls to be examined under Article 34 of the Convention, which provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

111. The Government contested the applicant’s allegations, arguing essentially that there had been no interference with the applicant’s correspondence, and that the disciplinary sanctions which had been imposed on him in prison had had no connection with his application to the Court.

112. The applicant made no submission in reply to the Government’s observations.

113. In so far as the applicant’s complaints concern his alleged inability to obtain copies of documents for his previous application, the Court notes that the applicant eventually obtained copies of the documents from his domestic case file and subsequently submitted them to the Court, which made it possible for the Court to examine his previous application and to declare it inadmissible on 27 March 2007.

114. As to the applicant’s allegations of opening of the Court’s letter addressed to him and his persecution by the Zamkova Prison authorities for communicating with the Court, it is to be noted that the applicant did not set out those allegations in a detailed and substantiated way. Nor did he challenge the Government’s submissions in that regard.

115. Accordingly, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

116. The applicant complained under Articles 6, 7, and 13 of the Convention and Article 2 of Protocol No. 7 that he had been unlawfully sentenced to life imprisonment and that initially the courts had unlawfully refused to review his sentence.

117. He further complained under Article 6 of the Convention that the court proceedings concerning his complaint of beating on 15 October 2004 had been unfair. Relying on the same provision of the Convention, the applicant complained that he had been denied access to the courts in respect of his complaint concerning the conditions of his detention in Sokalska Prison.

118. The applicant also complained of a lack of access to the domestic courts in respect of his complaint against the judges of the Cherkasy Regional Court of Appeal.

119. Relying on Article 14 of the Convention, the applicant alleged that he had been discriminated against in the enjoyment of his rights guaranteed by Articles 3, 6, 8, 13 and 34 of the Convention on the basis of his status as a prisoner sentenced to life imprisonment.

120. The Court has examined those complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

121. 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.”

A. Damage

122. The applicant claimed 35,000 euros (EUR) in respect of pecuniary damage, principally relating to his alleged loss of earnings and deteriorating health during the time he had been imprisoned, and EUR 75,000 for non-pecuniary damage, principally relating to his allegedly unfair conviction, the alleged infringement of his right of application and the restrictions on his family life during imprisonment.

123. The Government contested that claim.

124. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects the claim in so far as it concerns the alleged pecuniary damage. Deciding equitably, it awards the applicant EUR 10,000 in respect of non-pecuniary damage.

B. Costs and expenses

125. The applicant stated that he had incurred costs and expenses in connection with his application, but did not specify a sum.

126. In these circumstances, the Court makes no award under this head.

C. Default interest

127. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the applicant’s complaints under Article 3 of the Convention about the conditions of the applicant’s detention in Sokalska Prison, under Article 8 of the Convention about the restrictions, as imposed by the domestic regulations, on the applicant’s contact with his family during his post-conviction detention in the Cherkasy SIZO and Sokalska Prison, and the applicant’s related complaints under Article 13 of the Convention, admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 8 of the Convention;

4. Holds that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints under Article 3 about the material conditions of his detention;

5. Holds that there has been no violation of Article 13 of the Convention on account of the lack of an effective domestic remedy for the applicant’s complaints under Article 8 about the restrictions on the applicant’s contact with his family imposed by the domestic law;

6. Holds that Ukraine has not failed to comply with its obligations under Article 34 of the Convention;

7. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

8. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin André Potocki
Acting Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> GUK v. UKRAINE - 16995/05 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2016] ECHR 1082 (08 December 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/1082.html Cite as: [2016] ECHR 1082