Last Updated on September 2, 2020 by LawEuro
FIFTH SECTION
CASE OF TYURYUKOV v. UKRAINE
(Application no. 35627/10)
JUDGMENT
STRASBOURG
18 June 2020
This judgment is final but it may be subject to editorial revision.
In the case of Tyuryukov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Yonko Grozev, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Victor Soloveytchik, Deputy Section Registrar,
Having regard to:
the application 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 Andrey Aleksandrovich Tyuryukov (“the applicant”), on 11 June 2010;
the decision to give notice to the Ukrainian Government (“the Government) of the complaints concerning the conditions of the applicant’s detention, his alleged ill-treatment in prison and the investigation thereof, as well as the restrictions on his right to have family visits in prison, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 21 April 2020,
Delivers the following judgment, which was adopted on that date:
1. The applicant complained under Article 3 of the Convention that the conditions of his detention in Vinnytsya Prison no. 1 (“Vinnytsya Prison”) had been inadequate, that he had been ill-treated on several occasions and that there had been no effective investigation into the matter. He also complained under Article 8 that, as a life prisoner, he had not been entitled to long-term family visits in prison until May 2014.
THE FACTS
2. The applicant was born in 1975 and is serving a life sentence in Vinnytsya Prison. Having been granted legal aid, he was represented by Mr R. Kravets, a lawyer practising in Kyiv.
3. The Government were represented by their Agent, Mr I. Lishchyna.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Physical conditions of detention
5. The applicant was sentenced to life imprisonment and placed in Vinnytsya Prison in September 2004.
6. The parties submitted a list of cell numbers (nos. 19, 21, 22, 23, 24, 25, 26, 29, 117, 103, 104, 111, 177, 179, 180, 181, 170, 194, 192, 110, 246, 219, 218, 223, 227, 155, 259 and 154), without specifying the period of the applicant’s detention in each cell, their size or the number of inmates held therein.
A. The applicant’s account
7. The cells were small, unheated and damp, with concrete floors, no ventilation, poor lighting and appalling sanitary conditions. Often the toilet was a mere hole with no flush in the close vicinity of the living area, permanently smelling of excrement. The constant artificial lighting in the cells prevented sleep, but was too dim for reading. There was no shower or sink in any of the cells. The applicant often had to wash dishes and his hands over the toilet hole. No soap, toothpaste or shaving accessories were provided. The applicant did not participate in any activities or have leisure time other than an hour’s exercise in an extremely small and dirty yard.
8. In protest against the poor conditions of detention, on 26 August 2008, 23 July 2009 and during January and February 2010 the applicant went on hunger strike, but this was ignored by the authorities.
9. The applicant sent the Court statements given by two fellow prisoners, P. (dated 12 May and 20 November 2010) and N. (dated 8 June 2011), generally supporting his description of the conditions of detention in Vinnytsya Prison.
10. He also sent the Court several short video recordings made in December 2012 and January 2013, consisting mainly of himself addressing the Court. Some of the recordings showed a small and dilapidated yard for outdoor exercise. There was nobody else in the yard apart from the applicant. He also filmed the food distribution routine on certain days, including on 31 December 2012 and 1 January 2013. On one of the videos, he complained to the guard that there was no meat, fruit or vegetables. The guard replied that there were extremely scarce quantities of onions and carrots but no other fruit or vegetables. On each occasion the applicant was given some bread, a spoonful of sugar and some porridge. Sometimes soup was also served.
11. In his reply to the Government’s observations (see paragraph 13 below) of 28 August 2019, the applicant admitted that the conditions of his detention, in cell no. 219 at the time, were indeed acceptable.
B. The Government’s account
12. According to the information provided by the Government to the Court on 16 February 2012 in reply to a request for information, life prisoners were detained in maximum security cells designed to accommodate two to three inmates. The cells were equipped with metal beds, one or two benches or chairs, a wardrobe or cabinet, a clothes rail and a speaker for the public address system. The equipment and furniture were fixed to the floor and the wall. There was a toilet separated from the living area and a sink in each cell. The cells had a water supply, shower, sewage connection, central heating, ventilation, electric lighting and natural light. Each prisoner was provided with an individual bed, bedding and soap. Bedding was changed four times a month. Prisoners regularly received meat and fish of good quality. The quality of the food was verified daily by the medical staff. Life prisoners were entitled to an hour’s outdoor exercise per day.
13. In their observations dated 18 March 2019, the Government noted that at the material time the applicant was detained in cell no. 219, which measured 12 sq. m. According to a cell inspection report of 7 February 2019, the conditions of detention there were satisfactory. More precisely, there was electricity and water, and the sewage system was functioning properly. Furthermore, the cell was in a good state of repair and was equipped with a radiator.
14. The prison had sufficient supplies of soap and washing powder. As regards individual hygiene items, they were provided “at the expense of charities”. Prisoners could also purchase everything they needed in the prison shop.
15. The yards were equipped with benches and exercise bars, and were sufficiently sheltered from rainfall.
16. Prisoners were provided with three meals per day, in accordance with established nutrition standards. Those standards did not provide for the supply of fermented dairy products or fruit to detainees in the maximum security wing. There was a centralised supply of frozen poultry and fish.
17. The applicant did not announce that he was going on hunger strike.
18. During 2018 he did not lodge any complaints with the prison administration regarding the conditions of his detention or nutrition.
C. The applicant’s complaints to the prosecution authorities
19. The applicant’s mother complained to the Vinnytsya city prosecutor’s office about the conditions of her son’s detention (“the prosecutor’s office”). She brought to their attention the video recordings made by him in December 2012 and January 2013 (see paragraph 10 above).
20. On 26 July 2013 the prosecutor’s office issued a report in that regard stating, in particular, that on 27 September 2010 the prison administration had declared the exercise yards (shown on the video recordings) unsuitable for outdoor activities. Accordingly, they were no longer in use. It was also noted in the report that between 2012 and 2013 ninety-seven cells had been renovated.
21. On 18 July 2013 an official from the prosecutor’s office collected written statements from four detainees concerning the allegations made by the applicant in his video recordings regarding, in particular, food in the prison. All four statements were virtually identical and asserted that on 30 and 31 December 2012 and 1 January 2013 there had been a “festive menu” in the prison which had included meat and salad. The detainees submitted that they were regularly served meat and fish, and that they had no complaints against the prison administration. It was stated in all four statements that the applicant was a troublemaker whose allegations had no basis.
II. Alleged ill-treatment of the applicant and domestic investigation
A. On 25 September 2007
22. In his application to the Court, the applicant submitted that while being taken to the court on that date there had been an attempt on his life by unidentified individuals. They had fled and the convoy officers, in order to cover up their incompetence, had drawn up a report stating that the applicant had tried to escape. The applicant also alleged that he had been severely beaten by the convoy officers. According to him, there had been no justification for the use of force against him as he had not done anything illegal and had been powerless, given that he had been blindfolded with his hands and legs shackled.
23. According to the Government, no force or measures of restraint other than handcuffs had been used on the applicant.
24. The applicant complained about the incident to various authorities, including the Vinnytsya Zamostyanskyy District Court, which was examining a criminal case against him at the material time (irrelevant for the present application). The judge enquired with the police what had happened.
25. The chief of the police unit in charge wrote to the judge that at about 2.30 p.m. on 25 September 2007, while walking from the convoy vehicle to the court, the applicant had made a sudden movement to try and break the convoy line. Three police officers “had taken effective measures to prevent an emergency situation and apprehend a criminal demonstrating active physical resistance trying to escape”. As a result, a rubber truncheon and handcuffs had been used on him.
26. The case file does not contain any information or documents regarding the judge’s reaction to the above-mentioned letter.
27. On 26 November 2007 the chief of the Vinnytsya regional police department responsible for the convoy of prisoners wrote to the applicant that “the use of blindfolds (обмежувачі зору) and wrist-and-leg shackles (кайдани металеві «КМ-4») [had been] confirmed, but that it did not run counter to the applicable legal provisions regulating the issues of security and convoy of detainees and prisoners”.
28. On 12 February 2009 the Leninskyy district prosecutor’s office issued a ruling refusing to institute criminal proceedings against the convoy officers who had accompanied the applicant on 25 September 2007, for lack of constituent elements of a criminal offence. The ruling referred, in particular, to a statement made by the applicant on 27 December 2007 that he had felt that his life was in danger and had tried to escape. He had also stated that the convoy officers had beaten him, put him in the vehicle and taken him back to the prison. The prosecutor’s office observed that the applicant had later refused to make any statements. The officers concerned had submitted that they had only applied “a handgrip and handcuffs” to him in reaction to his escape attempt. A medical examination carried out the same day did not reveal any injuries and found his health to be satisfactory.
B. On 18 June 2009
29. On 18 June 2009 there was a general search of the prison. According to the applicant, a group of masked officers wearing black uniforms with no badges carried out the search of his cell (no. 241) and kicked and hit him numerous times with a rubber truncheon. According to the Government, no force was used on the applicant or other prisoners.
30. On 19 June 2009 it was mentioned on a national TV channel that there had been a demonstration near the prison to protest against the entry of a special forces unit there. Also on 19 June 2009 the Vinnytsya Human Rights Group, an NGO, informed the public of the alleged beating of prisoners in Vinnytsya Prison by masked officials of a special forces unit.
31. According to the applicant, he complained to various authorities of ill‑treatment, but his complaints were dismissed as unsubstantiated.
C. On 29 November 2012
32. In one of the video recordings sent to the Court on 30 April 2013, the applicant stated that the video had been filmed on 10 December 2012. He showed what he alleged to be injuries inflicted on him by the prison administration on 29 November 2012: a bruise on his right shoulder near his armpit, and a bruise on the right side of his chest. The applicant also complained that he had not been provided with adequate medical care for an unhealed fractured rib sustained in 2007 and a shoulder sprain suffered on an unspecified date, and that he was not receiving proper dental care.
33. The applicant filmed the above-mentioned video as a public appeal to various authorities, human rights organisations and the media.
34. On 25 June 2013 the applicant’s mother sent it to the prosecution authorities. She complained, in particular, that her son had been systematically ill-treated in prison and that the video recordings proved that.
35. On 26 July 2013 the prosecutor’s office took written explanations from six life prisoners who had shared their cells with the applicant at various points. They stated that the applicant had told them of his intention to obtain a mobile telephone with a video camera, so that he could injure himself, film the injuries and accuse the prison administration of ill-treatment.
36. On 20 September 2013 an entry was made in the Unified Register of Pre-trial Investigations marking the beginning of an investigation into suspected abuse of power by State officials, on account of the applicant’s ill-treatment allegation.
37. On 3 October 2013 the prosecutor’s office drew up a crime-statement report (протокол прийняття заяви про вчинений злочин) documenting the applicant’s complaint. The report contained a number of questions and blank spaces filled in by the applicant in writing. The questions and answers were as follows:
“1. Circumstances of the event (date, time and place): “Since 2007 the [prison] staff members have been periodically using physical force on me, they have been ill-treating me.”
2. Was any pecuniary damage sustained…? – “None.”
3. Was there physical violence or a threat of such violence? What exactly happened? Were any objects used (such as a knife, gun, pepper spray, truncheon etc.)? … – “Physical force was used.”
4. Was anybody injured? If so, did that person request a medical examination/assistance and what treatment was provided? – “Injuries were inflicted.”
5. Did you see the perpetrator? Would you be able to recognise him/her? – “Yes, I did.”
6. Is anybody suspected of the criminal offence? If so, on what grounds? Please provide any information about this person. – “Staff members of [Vinnytsya Prison].”
7. Were there any eyewitnesses to the crime? What do we know about them? – “Yes, there were.”
38. On the same day the applicant was questioned as a victim. He wrote that he was refusing to make a statement and that he needed a lawyer.
39. Later that day the prosecutor also questioned the prison staff, who denied coercing the applicant. They submitted that his attempts to obtain preferential treatment in prison had been unsuccessful and that he had therefore been behaving in a provocative manner to try and discredit the administration.
40. Also on that day the applicant underwent a medical examination, which revealed no injuries or acute conditions.
41. The following day the investigator contacted the Vinnytsya regional legal aid centre regarding the applicant’s wish to have a lawyer. The latter’s reply was that it was impossible to appoint a legal aid lawyer for the applicant because he had the status of a victim, but not of a suspect or accused. The investigator informed the applicant thereof and the latter submitted that he would engage a lawyer at his own expense. He did not however do so and informed the investigator that he was refusing to make a statement. As a result, on 7 October 2013 the investigator issued a report stating that, in such circumstances, it was impossible to question the applicant.
42. On 8 October 2013 the investigation was closed for lack of evidence of a criminal offence.
43. The applicant challenged that decision before the courts, but to no avail. His arguments were couched in broad terms: that he had been systematically ill-treated and that the video recordings proved that. Courts at two levels of jurisdiction dismissed his appeal as unfounded. They held that the investigation had made all reasonable efforts to establish the truth, whereas the applicant had refused to provide any help.
III. Restrictions on long-term family visits
44. In early 2011 the applicant complained to the prosecution authorities that he had not been allowed to have long-term visits from his mother. On 9 February 2011 the Vinnytsya prosecutor’s office replied to him that he had received five short-term visits from his mother in 2010, which was the maximum permitted by law.
45. Life prisoners became entitled to long-term family visits on 7 May 2014 (see paragraph 51 below).
46. According to the information provided by the Government, in 2018 the applicant received seven short-term visits from his friends and sister and one long-term visit from his mother. The Government submitted that the applicant had not asked for more visits.
LEGAL FRAMEWORK
I. Criminal Code 2001
47. The relevant provision reads as follows:
Article 64. Life imprisonment
“Life imprisonment is imposed for particularly serious crimes and shall only be applied in the cases expressly provided for by this Code and where a court considers it impossible to apply a fixed-term sentence …”
II. Code of Execution of Criminal Sentences (2003)
48. Article 110 of the Code of Execution of Criminal Sentences (“the Code”) provides that short-term visits in a prison may last up to four hours and long-term visits up to three days. Short-term visits may be made by relatives or others and must take place in the presence of a prison officer. Long-term visits may only be made by close relatives and take place in a specifically allocated private room.
49. Under Articles 138 to 140 of the Code, prisoners serving a fixed‑term sentence were entitled to one short-term visit per month and one long-term family visit every three months. Following amendments on 7 September 2016, the above-mentioned provisions became the minimum visiting entitlement for fixed-term prisoners detained in the “enhanced control sector” (у дільниці посиленого контролю). Those detained in the “resocialisation sector” (у дільниці ресоціалізації) are entitled to one short‑term visit per month and one long-term family visit every two months. Lastly, fixed-term prisoners detained in the “social rehabilitation sector” (у дільниці соціальної реабілітації) have the right to as many short-term visits as they wish and to one long-term family visit per month.
50. Under Article 151 of the Code, convicted prisoners sentenced to life imprisonment were entitled to one short-term visit every six months. Following amendments on 16 February 2010, they became entitled to one short-term visit every three months.
51. Article 151 of the Code was later amended, with effect from 7 May 2014, to provide that prisoners serving a life sentence were entitled to one short-term visit per month and one long-term family visit every three months.
52. Following further amendments, which took effect on 7 September 2016, life prisoners are now entitled to one long-term family visit every two months.
III. Relevant Council of Europe documents
53. The Council of Europe material concerning family visits to prisoners is quoted in Khoroshenko v. Russia ([GC], no. 41418/04, §§ 58‑67, ECHR 2015).
54. The relevant excerpts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 21 September 2009 (CPT/Inf (2011) 29) read as follows (footnotes omitted, original emphasis):
“92. As regards possibilities for contact with the outside world, the CPT considers that special efforts should be made to prevent the breakdown of family ties of prisoners serving life sentences. Ukrainian legislation continues to impose severe restrictions on the visiting entitlement of life-sentenced prisoners. This approach runs counter to the generally accepted principle that offenders, whatever the crimes for which they have been sentenced, are sent to prison as a punishment, not to receive punishment.
Lifers’ visits took place in secure booths with a glass partition, which allowed no physical contact between inmates and their visitors. In addition, some lifers at Colony No. 89 indicated that they remained handcuffed during visits. As the CPT has indicated in the past, to be handcuffed when receiving a visit could certainly be considered as degrading for both the prisoner concerned and his visitors. Further, life-sentenced prisoners had no access to a telephone.
The CPT calls upon the Ukrainian authorities to increase substantially the visit entitlement of life-sentenced prisoners. As a general rule, visits should take place in open conditions (e.g. around a table), visits through a partition being the exception. Further, life-sentenced prisoners should only be prohibited from receiving long-term visits on the basis of an individual risk assessment. In addition, staff must receive clear instructions that life-sentenced prisoners should not be kept in handcuffs during visits. Steps should also be taken to ensure that life-sentenced prisoners have access to a telephone.
…
93. More generally, during the 2009 visit, the delegation was informed of proposals to amend the legislation with a view to improving the situation of life-sentenced prisoners (e.g. increasing their visit entitlement, […]). However, there was reportedly political resistance to these proposals. The CPT urges the Ukrainian authorities to pursue these legislative proposals without further delay.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION on account of the conditions of detention in vinnytsYa prison
55. The applicant complained that he had been detained in appalling conditions in Vinnytsya Prison. 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.”
56. The parties provided conflicting accounts regarding the physical conditions of the applicant’s detention in Vinnytsya Prison (see paragraphs 7-18 above).
57. The Court reiterated the general principles governing the application of Article 3 of the Convention to conditions of detention in Muršić v. Croatia ([GC], no. 7334/13, §§ 96-141, 20 October 2016). In particular, it confirmed that a serious lack of space in a prison cell weighed heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described were “degrading” from the point of view of Article 3 and could disclose a violation, either on its own or when taken together with other shortcomings.
58. In addition to the need for sufficient personal space, other aspects of physical conditions of detention are relevant in assessing whether they comply with Article 3. Such elements include access to outdoor exercise, natural light or air, the availability of ventilation, the adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygiene requirements (see Story and Others v. Malta, nos. 56854/13 and 2 others, §§ 106 and 112, 29 October 2015, and Muršić, cited above, § 140). Furthermore, the State authorities’ obligation to ensure the health and general well-being of a detainee includes, among other things, an obligation to provide adequate food (see Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006).
59. Turning to the present case, the Court notes that, apart from alleging in general terms that his cells had been small (see paragraph 7 above), the applicant did not complain that he had been detained in overcrowded conditions. Furthermore, neither he nor the Government provided any details regarding the size of the cells or the number of occupants held therein.
60. Accordingly, the Court finds, based on the parties’ submissions, that no arguable complaint of overcrowding was raised by the applicant.
61. As regards other aspects, the Court notes that the applicant failed to support his allegation of poor sanitary conditions with any details as to which cells he was referring to and how long he had been detained there. It is noteworthy that he agreed with the Government’s submission that the conditions in cell no. 219, at least in 2019, had been satisfactory (see paragraphs 11 and 13 above). Furthermore, he did not contest the accuracy of the prosecutor’s report of 26 July 2013 stating that ninety-seven cells in Vinnytsya Prison had been renovated in 2012 and 2013 (see paragraph 20 above). Nor did he submit any comments as to whether those renovations had affected the conditions of his detention.
62. Likewise, the applicant failed to substantiate his allegation that he had not been provided with any soap, toothpaste or shaving accessories (see paragraph 7 above). He left without comment the Government’s submission that the prison had sufficient supplies of soap and washing powder, whereas other personal hygiene items had been paid for by charities (see paragraph 14 above). Such an arrangement does not in itself raise an issue under Article 3 of the Convention.
63. As regards the condition of the exercise yard, the Court observes that the applicant did not comment on the prosecutor’s statement that the dilapidated yard shown on the applicant’s video recordings had stopped being used (see paragraph 20 above). The video recordings themselves do not contain elements allowing the Court to clarify this issue, neither did the applicant provide further detail on the time and circumstances when they were made. Given that the applicant is the only person seen on the video, without any other prisoners or guards being present, and the lack of further explanations, the Court cannot accept these videos as evidence of the conditions of the applicant’s official daily exercise.
64. Lastly, as regards the applicant’s allegation of poor food in prison, the Court notes that, while failure to provide food in accordance with the general nutritional tables and menus in prison may put the health of detainees at risk (compare Rotaru v. Moldova, no. 51216/06, § 37, 15 February 2011), it has not been established that this was the situation in the present case. The Court also observes that the applicant had three meals per day (contrast Kadiķis, cited above, § 55, where prisoners had only one meal per day), and there is no indication that the food was inedible or manifestly scarce.
65. Regard being had to the above, the Court cannot establish that the overall conditions of the applicant’s detention in Vinnytsya Prison reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE ALLEGED ILL-TREATMENT OF THE APPLICANT AND THE LACK OF AN EFFECTIVE DOMESTIC INVESTIGATION
66. The applicant complained that he had been ill-treated on three occasions and that there had been no effective domestic investigation into the matter. He relied on Article 3 of the Convention (cited in paragraph 55 above).
A. The parties’ submissions
1. As regards the alleged ill-treatment of the applicant on 25 September 2007
67. The applicant alleged that the convoy officers had severely beaten him. He emphasised that as he had been blindfolded and shackled and overcome by their force, he could not have possibly attempted to escape (see paragraph 22 above). Had that been the case, a separate criminal case should have been opened in that regard. However, he had not been charged with attempting to escape.
68. The applicant also contended that the domestic investigation into the matter had been superficial. He submitted, without providing further details, that although there had been irrefutable evidence of the use of force against him, the relevant reports had wrongly stated that he had had no injuries. He considered that no meaningful efforts had been made to establish what had really happened.
69. In his reply to the Government’s observations, the applicant submitted that he “could still show [the] scars which were left on his body, an unhealed fractured rib and missing teeth”.
70. The Government argued that the applicant had not been ill-treated and had only been handcuffed (see paragraph 23 above).
71. They also maintained that the domestic authorities had dealt with the applicant’s complaint in a diligent manner.
2. As regards the alleged ill-treatment of the applicant on 18 June 2009
72. The applicant submitted that the real purpose of the general search of 18 June 2009 had been to intimidate prisoners and discourage them from complaining about the prison administration. He also complained that the domestic authorities had not investigated his allegation of ill-treatment.
73. The Government submitted that no physical force or means of restraint had been used on the applicant. They also considered that the domestic investigation had been effective.
3. As regards the alleged ill-treatment of the applicant on 29 November 2012
74. The applicant submitted that the video filmed by him proved that he had sustained bodily injuries. He also maintained that the domestic authorities had dismissed his allegation of ill-treatment in a formalistic manner.
75. The Government confined their observations to a statement that the applicant had not raised any complaints in that regard at domestic level.
76. The applicant argued that their submission was inaccurate.
B. The Court’s assessment
1. General principles
77. Allegations of ill-treatment must be supported by appropriate evidence (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV). In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof to provide a satisfactory and convincing explanation may be regarded as lying with the authorities (see Ribitsch v Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).
78. Applicants are therefore expected to submit at the very least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints (see, for example, Kushnir v. Ukraine, no. 42184/09, § 102, 11 December 2014, with further references).
79. Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation where an individual raises an arguable claim of ill-treatment (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998‑VIII).
2. Application of the above principles to the present case
(a) As regards the alleged ill-treatment of the applicant on 25 September 2007
80. The Court notes that the applicant provided a vague and inconsistent account of the events of 25 September 2007. He alleged that unidentified individuals had assaulted him and that the convoy officers had proved their inability to defend him. At the same time, he submitted that the convoy officers, were the ones who had in fact ill-treated him (see paragraph 22 above). Apart from the allegation in broad terms that he had been beaten up, the applicant did not explain, either to the domestic courts or the Court, what had actually happened.
81. Nor did he specify the precise injuries sustained by him in this incident. The applicant also failed to comment on the prosecutor’s statement in the ruling of 12 February 2009 that on the day of the alleged incident he had undergone a medical examination which had not revealed any injuries. His belated argument, submitted in reply to the Government’s observations, that he “could still show [the] scars which were left on his body, an unhealed fractured rib and missing teeth”, was never raised before the domestic authorities, lacked factual details and was not supported by any evidence (see paragraph 69 above).
82. The Court takes note of some documents in the case file, from which it may be inferred that there was indeed an altercation between the applicant and the convoy officers on 25 September 2007 (see paragraphs 24-28 above). However, in the absence of any factual details provided by the applicant, or evidence in support of his allegation, the Court cannot but reject his complaint of ill-treatment as manifestly ill-founded.
(b) As regards the alleged ill-treatment of the applicant on 18 June 2009
83. Apart from alleging, in broad terms, that he had been beaten during the general search on that date, the applicant failed to provide any factual details (compare Karabet and Others v. Ukraine, nos. 38906/07 and 52025/07, § 312, 17 January 2013).
84. Like in the previous episode of his alleged ill-treatment, he did not specify whether he had sustained any injuries.
85. Accordingly, this complaint should also be rejected as manifestly ill-founded.
(c) As regards the alleged ill-treatment of the applicant on 29 November 2012
86. The applicant showed two bruises on his body in the video recording of 10 December 2012 (see paragraph 32 above). In the particular circumstances of the present case the Court does not consider that the applicant brought an arguable claim of ill-treatment before at the national level and thus, the State authorities cannot be blamed for failing to provide a plausible explanation of those injuries.
87. Although, contrary to what has been argued by the Government (see paragraph 75 above), the applicant did complain to the domestic authorities, he failed to provide any information to them as to the circumstances in which he had sustained the injuries. Relying on the video in question, he argued, before the domestic prosecution authorities and courts, as well as before the Court, that he had been ill-treated, without providing any further details (see paragraphs 34-43 above). He did not allege in his submissions to the Court that there had been any circumstances preventing him from explaining what had happened to him.
88. It follows that this complaint is also manifestly ill-founded.
(d) Effectiveness of the domestic investigation
89. Having regard to its findings (see paragraphs 82, 85 and 88 above), the Court is not persuaded that the allegations of ill-treatment raised by the applicant before the domestic authorities and subsequently during the Strasbourg proceedings were “arguable”. The Court therefore considers that the authorities were under no obligation to conduct a more in-depth investigation into the applicant’s allegations than that which they had already conducted (see Tanış v. Turkey (dec.), no. 15442/08, § 51, 9 February 2016, with numerous further references).
(e) Conclusion
90. Accordingly, the Court rejects the applicant’s complaint of ill‑treatment under both the substantive and procedural limbs of Article 3 of the Convention as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
91. The applicant complained that the absolute ban on long-term family visits, which had existed for life prisoners in Ukraine until May 2014, had infringed his rights 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.”
A. Admissibility
92. The Court notes that this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
93. The applicant submitted that for about ten years after his conviction he had been able to see his relatives only during infrequent short-term visits.
94. He argued that the absolute ban on long-term family visits, which had existed until May 2014, had been devoid of any legitimate aim. While officially justified for security reasons, in practice it remained unclear how such an excessively restrictive arrangement could enhance security and safety in prisons. In the applicant’s opinion, the factual developments, namely the legislative amendments enacted in May 2014 and later, proved the contrary.
95. The Government submitted that the interference in question with the applicant’s rights under Article 8 of the Convention had been lawful, given that it had been based on Article 151 of the Code of Execution of Criminal Sentences, as worded at the material time. They also argued that the ban on long-term family visits for life prisoners had served the legitimate purpose of preventing disorder and crime.
96. The Government further observed that life imprisonment, to which the applicant had been sentenced, was the most severe penalty applied in the case of the most serious crimes. Accordingly, considerable restrictions were inherent in the regime of that prison sentence.
2. The Court’s assessment
97. The Court has held in its case-law that detention, like any other measure depriving a person of his liberty, entails inherent limitations on a prisoner’s private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see Khoroshenko, cited above, § 106).
98. The starting point for regulating the visiting rights of prisoners, including life prisoners, at European level is that the national authorities are under an obligation to prevent the breakdown of family ties and provide life prisoners with a reasonably good level of contact with their families, with visits organised as often and in as normal a manner as possible (see Khoroshenko, cited above, § 134, with further references to the relevant Council of Europe’s documents).
99. The Court notes that in the present case the contested restriction was imposed on the applicant in accordance with Article 151 of the Code of Execution of Criminal Sentences, which at the material time only provided for short-term visits for life prisoners, whereas other categories of prisoners were also entitled to long-term visits (see paragraphs 49 and 50 above). Accordingly, the interference in question had a legal basis in Ukrainian law and the law itself was clear, accessible and sufficiently precise.
100. Even assuming that that interference served a legitimate aim within the meaning of Article 8 § 2, it remains to be examined whether it was proportionate (see Trosin v. Ukraine, no. 39758/05, § 40, 23 February 2012, and Khoroshenko, cited above, § 139).
101. The Court is aware that life sentences in Ukraine can only be imposed for certain extremely reprehensible and dangerous acts and that in the case at hand the authorities had to, among other things, strike a delicate balance between a number of private and public interests (see paragraph 47 above, and compare Khoroshenko, cited above, § 131).
102. However, the restriction in question was imposed directly by law and concerned the applicant solely on account of his life sentence and irrespective of any other factors (see paragraph 50 above). The Court has held that the State does not have a free hand in introducing restrictions in a general manner without affording any degree of flexibility for determining whether limitations in specific cases are appropriate or indeed necessary, especially regarding post-conviction prisoners (see Khoroshenko, cited above, § 126).
103. It is noteworthy that the legislation in question was eventually amended and the ban in question lifted. However, at the material time the applicant was affected by it for a considerable number of years. It is also worth noting that the CPT recommended that life prisoners should only be prohibited from receiving long-term visits on the basis of an individual risk assessment (see paragraph 54 above).
104. The Court therefore concludes that the interference with the applicant’s family life resulting from the absolute ban on long-term family visits for life prisoners solely on account of the gravity of a prisoner’s sentence without any individual risk assessment was, as such, disproportionate to the aims invoked by the Government. That situation was further aggravated by various rules regarding the conditions of prison visits, such as the ban on direct physical contact, separation by a glass partition or metal bars, the continuous presence of prison guards during visits, and the limit on the maximum number of adult visitors (see Trosin, cited above, §§ 43-46).
105. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
106. 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
107. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
108. The Government contested the above claim as unsubstantiated and excessive.
109. The Court considers it appropriate to award EUR 3,000 to the applicant in respect of non-pecuniary damage.
B. Costs and expenses
110. The applicant also claimed EUR 5,240 in respect of his legal representation by Mr Kravets in the proceedings before the Court, which included: EUR 5,200 for legal work, plus EUR 40 for copying expenses. The applicant requested that this amount be paid into his lawyer’s bank account. To substantiate his claim, he submitted a legal assistance contract with Mr Kravets dated 4 April 2019 under which he agreed to pay the latter a fee in the amount of EUR 80 per hour upon completion of the proceedings in Strasbourg and only within the limits of the Court’s award in costs and expenses. The applicant also submitted an invoice of 27 August 2019 under which he agreed to pay Mr Kravets EUR 5,200 for sixty-five hours of work. Furthermore, he submitted a receipt of 24 June 2019 confirming that Mr Kravets had paid EUR 40 for copying.
111. The Government observed that the applicant had not yet incurred any legal expenses. Furthermore, they noted that the case did not raise any complex legal issues. As regards the claim for copying expenses, the Government left the matter to the Court’s discretion.
112. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and the fact that legal aid was granted (see paragraph 2 above), the Court awards the applicant EUR 40 for costs and expenses. This amount is to be paid directly into the bank account of his representative, Mr Kravets, as requested (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).
C. Default interest
113. 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 complaint under Article 8 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 40 (forty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses (the net award to be paid into the bank account of the applicant’s lawyer, Mr Kravets);
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 18 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Victor Soloveytchik Yonko Grozev
Deputy Registrar President
Leave a Reply