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The applicant alleged, in particular,that he had been detained in poor conditions and without adequate medical assistance, contrary to the standards enshrined in Article 3 of the Convention. He further complained under the same provision that his life sentence was de jure and de facto irreducible. Lastly, the applicant complained under Article 8 of the Convention of restrictions on his right to family visits in prison. The case originated in an application (no. 41216/13) 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 Volodymyr Sergiyovych Petukhov (“the applicant”), on 11 June 2013.
FOURTH SECTION
CASE OF PETUKHOV v. UKRAINE (No. 2)
(Application no. 41216/13)
JUDGMENT
STRASBOURG
12 March 2019
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Petukhov v. Ukraine (No. 2),
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Paulo Pinto de Albuquerque, President,
Ganna Yudkivska,
Faris Vehabović,
Egidijus Kūris,
Carlo Ranzoni,
Marko Bošnjak,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 22 January 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 41216/13) 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 Volodymyr Sergiyovych Petukhov (“the applicant”), on 11 June 2013.
2. The applicant was represented by Mr A.P. Bushchenko,Mr M. O. Tarakhkalo, Mr I.V. Karaman, and Ms I.A.Boykova, lawyers who at the time were practising in Kyiv. In May and December 2017 Mr Karaman and Mr Bushchenko, respectively, informed the Court that their work on this case had been completed and that due to a change of post, they could no longer represent the applicant. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.
3. The applicant alleged, in particular,that he had been detained in poor conditions and without adequate medical assistance, contrary to the standards enshrined in Article 3 of the Convention. He further complained under the same provision that his life sentence was de jure and de facto irreducible. Lastly, the applicant complained under Article 8 of the Convention of restrictions on his right to family visits in prison.
4. On 16 November 2015the Government were given notice of the above complaints and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1973 and is serving a sentence of life imprisonment in Kyiv Pre-Trial Detention Centre no. 13 (“the Kyiv SIZO”).
A. Previous proceedings before the Court (application no. 43374/02)
6. The applicant had already lodged anapplication before the Court, no. 43374/02, on 12 November 2002, complaining, in particular, of the inadequacy of his medical treatment in detention. He had also raised several complaints regarding his pre-trial detention and the length of the criminal proceedings against him.
7. On 21 October 2010 the Court delivered a judgment on the above‑mentionedapplication, in which it found violations of Articles 3, 5, 6 and 13 of the Convention (see Petukhov v. Ukraine, no. 43374/02, 21 October 2010).
B. Criminal proceedings against the applicant leading to his life sentence
8. On 3 December 2004 the Kyiv City Court of Appeal, sitting as a court of first instance, found the applicant guilty of a number of serious crimes committed by an organised criminal gang, namely several counts of aggravated murder, armed robbery, illegal arms possession and carjacking, as well as an attempt on the lives of law-enforcement officials. The applicant was sentenced to life imprisonment.
9. On 24 May 2005 the Supreme Court upheld that judgment.
C. Conditions of the applicant’s detention
1. Material conditions of detention
(a) In Kherson Prison no. 61
10. The applicant was detained in Kherson Prison no. 61, which had the status of a prison tuberculosis (“TB”) hospital, during the following periods: from 3 July 2010 to 22 January 2014, from 24 March to 19 October 2014 and from 2 December 2014 to 19 January 2015.
(i) The applicant’s account
11. All the cells in which the applicant had been detained (he mentioned, in particular, cells nos. 3, 4 and 5) lacked sufficient daylight and fresh air. The windows were covered by an opaque film impeding access to natural light and could be opened only partially. The artificial ventilation system drew in air from the prison corridor only.
12. To substantiate the above submissions, the applicant referred to a letter sent to him from the Parliamentary Commissioner for Human Rights on 16 October 2013. As stated therein, a representative of that authority had visited the prison following the applicant’s complaints of poor conditions of detention. The letter read:
“… in order to rectify the deficiencies identified, it has been recommended that the management of the Kherson Regional Office of the State Department for the Enforcement of Sentences ensure that there is adequate natural light and artificial ventilation in the premises in which you are detained, and ensure that the outdoor walks, medical care and nutrition arrangements, as well as the choice of foodstuffs and articles of daily necessity [available] in the prison shop, comply with the legal requirements.”
13. In 2010-14 major repairs were carried out in the prison, causing inmates inconvenience such as noise, dust and the smell of paint.
14. The yards for outdoor walks, which were located on the roof and measured between 16 and 60 square metres, were dusty and littered with construction material, and provided no shelter from the sun or rain. While theoretically prisoners suffering from TB had the right to two-hour daily outdoor walks, in practice only a one-hour walk was possible.
15. The applicant’s cell was under constant video surveillance, including in the toilet. In support of that statement, the applicant submitted two images printed from the video records, which had been provided to him by the prison administration at his request. As explained by the applicant, those images had been recorded when hehad been using the toilet in a sitting and in a standing position. In the first image, the applicant could not be seen;in the second image his head was visible.The applicant’s lawyer complained to the prison authorities about his permanent video surveillance. In May and July 2014 the Kherson Regional Office (“the regional office”) of the State Department for the Enforcement of Sentences (“the Prison Department”) replied to her that it was a statutory security measure, of which life prisoners were aware, and that the applicant’s intimacy had not been violated given that the video camera, which was indeed placed above the toilet area, did not cover the toilet itself.
16. The prison premises were not adequately disinfected, and the frequent transfer of life prisoners from one cell to another was dangerous for their health.
17. When the central heating was turned off, the temperature inside the cells was extremely low.For example, on 30 April 2014 the applicant had complained to the prison administration that it was too cold in his cell (the central heating had been switched off on 31 March 2014) and that his requests for permission to buy a portable heater at his own expense had been arbitrarily rejected. On 19 May 2014 the acting governor of the prison had replied to him that the use of portable heaters by prisoners was not envisaged by law.
18. The drinking water was of extremely poor quality, which the applicant thought was partly due to the dilapidated state of the pipelines.
19. The food provided to prisoners was inadequate and insufficient, and did not correspond to the needs of those suffering from TB. Meat, dairy products, fruit and vegetables could only be received from relatives or bought at the prison shop.
(ii) The Government’s account
20. The conditions of the applicant’s detention were satisfactory. They had been further improved by refurbishment of the building. Each cell had windows measuring 130cm by 110cm,with a ventilation pane. The windows were covered with an opaque film (“frost-type”) permitting light to pass through.
21. Although sufficient financing was not available for modernising the ventilation system, air conduits had been added in the internal walls to enhance the artificial ventilation.
22. The cells were divided into those designated for inmates with active Mycobacterium TB (“MBT+”) and those with inactive MBT (“MBT-”). Transfers took place between either “MBT+” cells or “MBT-” cells, but not from one category to another. Cells were disinfected on a daily basis by means of a special liquid disinfectant. In addition, a routine disinfection of cells was carried out with portable ultraviolet germicidal irradiation lamps, the application of which was registered in a special logbook. Mattresses, pillows and blankets were disinfected regularly.
23. As Kherson Prison no. 61 hadthe status of a TB hospital, its inmates received five meals per day. Specifically, prisoners were served daily: 450 g of bread, 85 g of cereals, 540 g of potatoes, 550 g of vegetables, 300 g of fruit, 21 g of oil, 200 g of fruit juice, 50 g of butter, 500 g of milk, 100 g of cottage cheese, 15 g of cheese, 1 egg, 30 g of sour cream, 310 g of chicken meat, 110 g of fish, 60 g of sugar, 5 g of honey, 40 g of sweets, 4 g of chicory, 3 g of coffee, and 1 g of tea. The first breakfast usually consisted of porridge or pasta, fried or stewed meat with gravy, coffee, milk, bread and butter. The second breakfast consisted of cocoa with milk orcompote, nuts, a biscuit, cottage cheese and sour cream. For lunch, prisoners had“borsch” or soup with cereals or pasta, or pickle soup made with meat stock, porridge or stewed cabbage, fried or stewed meat with gravy, vegetable salad, and bread. In the afternoon, fruit juice and fruit were served. For dinner, prisoners received stewed vegetables or mashed potatoes, fried or stewed fish, tea and bread and butter. The total energy value of a daily portion of food was 3,198 calories.
24. All foodstuffs supplied to the prison had quality certificates, as well as certificates of compliance with sanitary, veterinary and other standards. Meat and fish were stored in freezers. The prison had its own bakery and made its own bread from good-quality wheat.
25. The quality of water supplied to the prison was regularly checked. Thirteen reports on the tap-water chemical analyses carried out on various dates from 2010 to 2014 showed that the water was fully suitable for drinking.
(b) In the Kherson Pre-Trial Detention Facility (“the Kherson SIZO”)
26. The applicant was detained in cells nos. 392 and 394 of the Kherson SIZO from 22 January to 24 March 2014.
(i) The applicant’s account
27. The Kherson SIZO was located in an old building in a dilapidated state.The cells were cold and damp, and the cell walls were covered with mould and fungus.Thewindow panes were broken and partially missing.
28. In substantiation of his allegations, the applicant submitted eight colour photographs of some of the premises, which he claimed to be his cells in the Kherson SIZO.The photographs showed, in particular, large dark stains on the ceiling and walls, and a window with metal grids partially covered with plastic or cloth.
29. The applicant stated that on 3 March 2014 his lawyer had complained about the appalling conditions of his detention to the Kherson regional prosecutor’s office. She had stated in her complaint that cell no. 394, in which the applicant had been placed on 22 January 2014,had been found unsuitable for use by the SIZO administration, owing to a leaking ceiling, high humidity and low temperature. Although the applicant had been transferred, for a short period, to cell no. 392, he had subsequently been placed again in cell no. 394, where the conditions were manifestly incompatible with his poor health. The prosecutor’s reply was that the conditions of the applicant’s detention were satisfactory.
(ii) The Government’s account
30. Both of the cells complained of were in satisfactory condition. Cell no. 392 measured 22.8 square metres and was equipped with ten beds. Cell no. 394 measured 10.7 square metres and had four beds.
31. There was one window in each cell. As of 20 March 2014 the inside temperature was +21oC in cell no. 392 and +22oC in cell no. 394.
32. There was a permanent water supply in the cells and the sanitary facilities functioned properly.
33. The SIZO administration had accepted that cell no. 394 required repairs and had carried them out at the SIZO’s expense. While those repairs were being carried out, the applicant had been transferred to cell no. 392. Thereafter, the walls in cell no. 394 had been dry and whitewashed, and the ceiling no longer leaked.
2. The applicant’s state of health and medical treatment
34. The applicant has been suffering from the residual effects of a multiple fracture of his left thigh as a result of a gunshot wound in 1999. He also has a medical history of pulmonary TB since 2002. The facts pertaining to his state of health and his medical treatment prior to his transfer to Kherson Prison no. 61were analysed by the Court in its judgment on his previous application to the Court (see Petukhov, cited above, §§ 33-66 and 73-101) and are not referred to in the present judgment.
35. Having been diagnosed with a relapse of TB on 2 February 2010while detained in Sokal Prison no. 47, on 3 July 2010 the applicant was transferred to Kherson Prison no. 61,which had the status of a prison TB hospital.
36. On 13 July 2010 prison doctors reported a failure of the applicant’s TB treatment. Sputum culture and bacterial sensitivity tests showed that he had developed resistance not only to first-line anti-TB drugs (isoniazid, streptomycin and ethambutol) but also to second-line ones (kanamycin, ethionamide and para-aminosalicylic acid). His right lung exhibited indications of damage aggravated by limited pleural empyema with bronchopulmonary fistula. He was also suffering from respiratory difficulties.
37. According to the records in the applicant’s medical file, from July 2010 to December 2014 he underwent forty-four bacteriological sputum tests; thirty general blood analyses (he reportedly refused to undergo tests on fourteen occasions); fifty-six general urine analyses(with two reported refusals); as well as X-ray examinations approximately once every three months.He also underwent regular medical examinations.
38. On 23 November 2010 the applicant was certified as having a third‑degree disability (the mildest) on account of his tuberculosis and his thigh injury.
39. According to the information provided by the administration of Kherson Prison no. 61, the applicant refused to take anti-TB medication during the following periods: from 30 December 2010 to 9 February 2011, from 1 to 18 July 2011, and from 3 to 15 November 2011. According to the applicant, that information was inaccurate. He alleged that often, when certain medicationhad been unavailable, an entry had been made in his medical file that he had refused to take it.
40. On 1 December 2010 the regional office of the Prison Department wrote to the applicant’s lawyer stating that the supply of second-line anti‑TB drugs in Kherson Prison no. 61 was “extremely insufficient”. It was specified that, as of 26 November 2010, only three second-line drugs were available (amikacin, kanamycin and ciprofloxacin). The standard practice was that the prison ordered the required first and second-line drugs from the central procurement service of the Prison Departmentat the end of each year for the entire year to follow. Sometimes those amounts turned out to be insufficient, but could not be replenished. For example, by the end March 2010 the prison hospital had already used the 700 bottles of capreomycin it had received for the year.
41. On 10 May 2011 the applicant was diagnosed for the first time with genito-urinary TB and was prescribed antibacterial treatment. As reported in his medical file, he underwent the prescribed treatment “in short cycles depending on the availability of the prescribed drugs in the prison’s pharmacy”.
42. On 1 September 2011 the Kherson City tuberculosis clinic stated in an information note that Kherson Prison no. 61 had no second-line or substitute anti-TB drugs at its disposal. It was also stated that the applicant required further inpatient treatment with the following anti-TB drugs: rifampicin, pyrazinamide, capreomycin, levofloxacin, clofazimine and cycloserine.
43. On 12 September 2011 the Kherson City prosecutor in charge of supervising lawfulness in prisons, to whom the applicant had complained of inadequate medical treatment, wrote to him stating that there were no reasons for prosecutorial intervention.
44. On 2 November 2011 the regional office of the Prison Department wrote to the applicant’s lawyer stating that the supply of anti-TB drugs in Kherson Prison no. 61 remained “extremely insufficient”. As of 24 October 2011, there were only two first-line drugs, isoniazid and pyrazinamide, whereas ethambutol, streptomycin and rifampicin were not available. Of the second-line anti-TB drugs, only kanamycin, ofloxacin and protionamidewere available in sufficient quantities. The prison also had an insignificant quantity of gatifloxacin, rifapentine, para-aminosalicylic acid and sodium para-aminosalicylate. It was noted in the letter that the applicant’s state of health was satisfactory. The following medication had been prescribed for him: rifampicin, pyrazinamide, ethambutol, ofloxacin and capreomycin. It was noted in the letter that de facto the applicant was receiving only rifampicin (at his own expense) and pyrazinamide. Lastly, the official observed that the applicant had refused to be treated with ofloxacin on account of the poor state of his blood vessels.
45. On 25 November 2011 a disability evaluation board reassessed the applicant’s medical condition and certified him as having a second-degree disability (medium level).
46. On 20 January 2012 the regional office of the Prison Department wrote to the applicant’s lawyerstating that the applicant was receiving treatment in accordance with the prescribed regimen in its entirety, but that he was demonstrating a negative attitude to his treatment and often refused to follow it. The regional office also stated that the applicant was being provided with adequate nutrition and that the conditions of his detention were satisfactory.
47. In reply to an enquiry sent by the applicant’s lawyer, on 6 July 2012 the deputy governor of Kherson Prison no. 61stated that the applicant was being treated with anti-TB medication under the DOTS programme (Directly Observed Treatment, Short-course). Given a shortage of terizidone in the prison pharmacy, the applicant had not been receiving it since 6 March 2012. All the other drugs prescribed for him were available “in relatively sufficient quantities”.
48. On 30 August 2012 the applicant sent a written statement to the head of the medical unit of Kherson Prison no. 61,claiming that he was obliged to stop his treatment because of the permanent shortage of medication. As only two out the required list of at least four drugs were available, he considered it pointless to continue the treatment.
49. On 30 November 2012 a thoracic surgeon examined the applicant and decided that surgical treatment for TB was not feasible.
50. According to an information note issued by the prison administration on 11 April 2013, all the drugs prescribed for the applicant were available. Before 21 February 2013 the only medication that had not been available in the prison pharmacy was cycloserine.
51. On 2 July 2013 the applicant underwent an examination by a panel of medical experts, which established that his medical treatment for TB had failed and had no prospects of success. The experts also confirmed the applicant’s second-degree disability (see paragraph 45 above). He was prescribed palliative treatment, having attained an incurable stage of TB.
52. On 23 July 2013 the prison administration wrote to the applicant’s lawyer stating that the decision to provide the applicant with palliative care was based on Order no. 1091 of the Public Health Ministry (see paragraph 72 below). The palliative care would consist of regular administration of isoniazid and symptomatic treatment. At the time of writing, isoniazid was available from the prison pharmacy. Furthermore, the applicant was receiving “disintoxication and strengthening therapy”.
53. On 25 October 2013 the regional office of the Prison Department issued an internal inquiry report regarding the applicant’s complaints of inadequate medical treatment for TB. It stated that the applicant was receiving the prescribed palliative treatment in its entirety and that there was no shortage of the required drugs. His health was stable and he remained under constant medical supervision. It was also observed that the disease with which the applicant had been diagnosed did not fall within the list of diseases constituting grounds for releasing a convict on health grounds.
54. On 21 March 2014 the applicant’s lawyer wrote to the director of the National Institute of TB Studies and Pulmonology named after F.G.Yanovskyy (Національний інститут фтизіатрії та пульмонології ім. Ф.Г.Яновського АМН України).She stated that the palliative care prescribed for the applicant included the administration of isoniazid on a permanent basis, as well as symptomatic treatment. However, the applicant had developed a steady resistance to isoniazid and his treatment therefore had to be adjusted. The applicant’s lawyer requested recommendations as to how such an adjustment could be made.
55. On 2 April 2014 the above-mentioned institute replied that, in the circumstances of the case, resorting to palliative care was indeed justified. It had been observed that the applicant’s medical treatment had not been able to stop the emission of tubercle bacilli for about two years, that the applicant had developed a resistance to most anti-TB drugs, and that there remained no room for any further adjustment of his treatment. Furthermore, surgery was not possible in his case. It was stated in the letter that the palliative care consisted of the administration of medication enhancing the functioning of the heart (depending on the symptoms manifested), vitamins, pyretic and analgesic therapy, as well as wholesome nutrition. The applicant also required a regular thoracotomy (drainage) of the right pleural cavity and its rinsing with antiseptics. Anti-TB drugs should not be administered to him given his resistance to them and their ineffectiveness, as well as their toxic effect on all the body organs.
56. Following a chest X-ray examination on 15 July 2014, “stabilisation of the TB process” was reported. Subsequent regular X-ray examinations showed no changes in the applicant’s lungs.
57. On 9 December 2014 the applicant was examined by a panel of doctors and underwent another X-ray examination. He was diagnosed with the following residual symptoms of tuberculosis: dense lesions, pneumono‑cirrhosis and massive pleural thickening from the right side. It was concluded that he could be monitored in a prison for healthy inmates. The doctors prescribed a vitamin-based treatment and immunological prophylaxis, and recommended that he avoid hypothermia.
58. On 7 August 2015 theapplicant was transferred to the Kyiv SIZOto continue serving his life sentence.
59. On 11 August 2015 he underwent an X-ray examination, which confirmed the previous diagnoses.
60. On 23 February 2016 the applicant underwent another X-ray examination, which revealed significant post-TB residual changes in the form of multiple calcifications in the right lung with calcified costal pleura in the right side, and reduced volume of the right lung.
61. On 24 February 2016 the Kyiv SIZO issued a medical certificate stating, in particular, that the applicant’s medical condition did not fall under the list of diseases warranting his release for health reasons.Hisstate of health was considered compatible with imprisonment.
62. On 15 March 2016 the applicant was examined by a senior doctor from the Kyiv City Medical Association for TB Studies (Територіальне медичне об’єднання «Фтизіатрія» в м. Києві)at the request of the Government Agent, following notification of the application to the Government. The diagnosis was as follows: post-TB residual changes in the form of pulmonary fibrosis, dense foci with calcified costal pleura. The absence of any indication of re-activation of TB was noted. The applicant was not considered to require any specialised medical treatment. Lastly, it was observed that the conditions of the applicant’s detention and the medical care arrangements afforded to him were in compliance with the applicable legal provisions.
D. The applicant’s requests for release on health grounds
63. On 23 December 2013 the applicant applied for release on health grounds under Article 84 of the Criminal Code of Ukraine (see paragraph 73below). He submitted that his TB disease had become incurable because of failures by the authorities. He also argued that his irreducible life sentence ran contrary to Article 3 of the Convention.
64. On 17 June 2014 the Kherson Suvorovskyy District Court refused the applicant’s request on the grounds that his medical condition did not fall under the list of diseases warranting early release (see paragraph 74 below). The court considered thatthe applicant’s health had improved since 2010. In particular, the development of his TB had been stabilised and the emission of tubercle bacilli had stopped. Lastly, the court noted that the applicant had been convicted for a number of particularly serious crimes and that in the course of his detention, disciplinary measures had been applied to him twenty-eight times, whereas he had never been commended for good behaviour.
65. On 21 August 2014 the Kherson Regional Court of Appeal upheld that decision by a final ruling. Like the first-instance court, it concluded that the preconditions for release on health grounds had not been metand that the applicant’s illnesses did not prevent him from serving his sentence.
E. Family visits in detention
66. In 2009 the applicant married his lawyer, Ms Boykova (see paragraph 2 above). On that occasion they were allowed an extraordinary short-term meeting, during which they were separated from each other by a glass partition and communicated by telephone.
67. During his post-conviction detention until 16 February 2010 the applicant was allowed to see his wife (he had no other relatives in Ukraine)at short-term meetings lasting up to four hours once every six months. Subsequently, he was granted the right to have short-term visits once every three months (see paragraphs 95-97below).
68. Following the entry into force on 6 May 2014 of legislative amendments entitling life prisoners to long-term family visits (for three days) every three months (see paragraph 98 below), the applicant’s wife complained to the penal authorities that requests made by the applicant to that effect had not been allowed.
69. On 25 June 2014 the Kherson Regional Office of the State Prisons Service (previously named “the Prison Department”) replied to her that, indeed, life prisoners were entitled to a long-term family visit every three months. The prison administration was carrying out the necessary refurbishment with a view to creating adequate premises.
70. According to information provided by the prison administration, the applicant had sixteen short-term meetings with his wife (not taking into account his meetings with her in her capacity as his lawyer) during the period from April 2014 to January 2015. He also had long-term visits from her on 1 August and 31 December 2014, each of which lasted for three days.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. TB treatment and palliative care
71. The principles of palliative care after a failure of medical treatment in cases of multi-resistant TB are set out in Order no. 620 of the Public Health Ministry of 4 September 2014. As indicated therein, palliative care should consist of pain management; treatment of respiratory insufficiency (oxygenotherapy); nutrition by frequent and small portions; symptomatic treatment of nausea; regular medical examinations; pathogenetic therapy; hospitalisation, treatment in a hospice or at home; prevention of bed sores and muscle contractions; sanitary and hygiene measures;and infection control (patients remain contagious for the rest of their lives).
72. The above-mentioned Order replaced Order no. 1091 of 21 December 2012, which had provided for the same palliative care measures but had also provided for the administration of isoniazid, regardless of a patient’s resistance to it.
B. Dispensation from serving a prison sentence on health grounds
73. The relevant provisions of the Criminal Code of 2001 read as follows:
Article 84. Release on health grounds
“…
2. A person who, after the commission of a crime or after the pronouncement of the verdict, has started to suffer from [a serious] illness preventing him or her from serving his or her sentence, may be dispensed from serving the sentence or the outstanding part of the sentence. When deciding on this matter, a court shall take into account the seriousness of the crimes committed, the nature of the illness, the person’s character, as well as other circumstances of the case.
…
4. If the convicted person has recovered, he or she must continue serving [his or her] sentence …”
74. The Prison Department and the Public Health Ministry adopted joint Decree no. 3/6 of 18 January 2000 setting out alist of diseases which could serve as a basis for applying for release under Article 84 of the Criminal Code.On 15 August 2014 the Ministry of Justice and the Public Health Ministry adopted joint Order No. 1348/5/572, whichrepealed the above-mentioned decree and containeda new list. It remained the same in the part concerning TB.A prisoner could apply for release on health grounds if he or she was suffering from: (1) advanced fibrous cavernous pulmonary TB affecting both lungs, or chronic total pleural empyema with bronchopulmonary fistula and second or third-degree (that is medium-gravity or the most serious) pulmonary and cardiac insufficiency; (2) advanced infiltrative pulmonary TB (caseous pneumonia) with manifestations of third-degree pulmonary and cardiac insufficiency; or (3) advanced destructive spinal or bone TB complicated by amyloidosis of the internal organs, cavernous kidney TB affecting both kidneys and complicated by specific urethral processes and development of chronic kidney failure in a terminal stage leading to complete and steady loss of working capacity.
C. Life imprisonment
75. By a decision of 29 December 1999 the Constitutional Court declared the death penalty,which had been in force until then, to be contrary to the Constitution of Ukraine. As a follow-up, on 22 February 2000 the Verkhovna Rada of Ukraine (“the Parliament”) adopted legislative amendments to the Criminal Code of 1960 introducing the penalty of life imprisonment. The amendments entered into force on 29 March 2000.
76. On 5 April 2001 the Parliament adopted a new Criminal Code, which entered into force on 1 September 2001. Its relevant provisions, as worded following subsequent amendments, read as follows:
Article 12. Classification of criminal offences
“1. Depending on their gravity, criminal offences are divided into: minor, of medium gravity, serious and particularly serious.
…
4. A serious crime is a crime punishable by a fine of up to 25,000 times the non-taxable income amount or imprisonment of up to ten years.
5. A particularly serious crime is a crime punishable by a fine of over 25,000 times the non-taxable income amount, imprisonment for over ten years or life imprisonment. …”
Article 63. Fixed-term imprisonment
“1. Punishment in the form of imprisonment consists in the isolation of a convict in a closed-type penal facility for a fixed term.
2. Imprisonment may be applied for a term of one to fifteen years, except for the cases provided for under the General Part of this Code.”
Article 64. Life imprisonment
“Life imprisonment is envisaged [as punishment] for particularly serious crimes and shall be imposed only in cases explicitly provided for by this Code and where a court does not consider it possible to impose a fixedterm of imprisonment.
Life imprisonment shall not be imposed in respect of persons who were under the age of 18 at the time of the commission of the offence, persons older than 65 years, women pregnant at the time of the commission of the offence or at the time the verdict was pronounced, as well as in the case provided for by Article 68 § 4 of this Code.”
Article 68. Penalties for incomplete crimes and conspiracy to commit crimes
“…
4. Life imprisonment shall not be imposed [as a penalty] for crime preparation and attempted crime, except in cases of crimes against the fundamentals of the national security of Ukraine …, against peace, public security and the international legal order ….
Article 81. Release on parole
“1. Release on parole may be applied to persons sentenced to correctional work, duty-related restrictions for military officers, restriction of liberty, custody in a penal battalion for military officers, or [fixed-term] imprisonment. …”
77. Under the Criminal Code of 2001, the penalty of life imprisonment is never provided as the only possible punishment, but always as an alternative to a fixedterm of imprisonment, and it is for the courts to choose the most appropriate penalty in each individual case.
D. Presidential clemency
1. Legal frameworks
(a) Constitution of Ukraine 1996
78. Paragraph 27 of part 1 of Article 106 of the Constitution of Ukraine provides the President of Ukraine with the power of clemency.
(b) Criminal Code 2001
79. The relevant provision reads as follows:
Article 87. Clemency
“1. The President of Ukraine may grant clemency to particular individuals.
2. Clemency may consist in replacing a life sentence imposed by a court by a sentence of fixed-term imprisonment for no less than twenty-five years. …”
80. The provision cited above has been worded in the same way since the enactment of the Criminal Code in 2001.
(c) Code of Enforcement of Criminal Sentences 2003
81. Before the legislative amendments of 16 March 2006, the provisions of the Code pertaining to conditions of detention had referred to the possibility of replacing life imprisonment by a fixed-term prison sentence, but had not contained any further details in that regard.
82. On 16 March 2006 a new paragraph 7 was added to Article 151 of the Code, reading as follows:
Article 151. Procedure for and conditions of serving a life sentence
“…
7. A convict sentenced to life imprisonment may apply for clemency after having served at least twenty years of the imposed sentence.”
83. Subsequently, on 21 January 2010, the following provision was added:
Article 151-1. Changes to the conditions of detention of life prisoners
“…
2. Male life prisoners may be transferred:
– from cell-type premises shared by two inmates to multi-occupancy cell-type premises of a maximum-security prison, with permission to participate in group educational, cultural and sport activities … – after having de facto served at least five years [before further amendments of 8 April 2014 that period had been ‘at least fifteen years’] of their sentence in such premises;
– from multi-occupancy cell-type premises to ordinary residential premises in a maximum-security prison – after having de facto served at least five years of their sentence in such premises.
3. Life prisoners who breach the established order in the prison in a malicious manner may be transferred from ordinary residential to cell-type premises of a maximum-security prison.
4. The [above] changes … shall not apply to life prisoners suffering from a sexually transmitted disease, an active form of tuberculosis or a psychiatric disorder.”
84. The Scientific and Practical Commentary on the Code of Execution of Criminal Sentences of Ukraine (Кримінально-виконавчий кодекс України: Науково-практичний коментар, 2-ге вид., перероблене та доповнене / За заг. ред. А.Х.Степанюка. – ТОВ «Одіссей», 2008) contained a calculation of the minimum duration of imprisonment in the event that a life prisoner’s request for presidential clemency was granted. According to the author, that period would amount to thirty-eight years and nine months (twenty years being the minimum statutory “waiting” period before a life prisoner was eligible to apply for clemency, plus eighteen years and nine months,being two thirds of the subsequent fixed-term imprisonment of twenty-five years, after which release on parole would be possible).
(d) Presidential Decree on Clemency Procedure Regulations
85. The Clemency Procedure Regulations (Положення про порядок здійснення помилування), approved by a presidential decree, set out the procedure to be followed by the President of Ukraine in order to implement his clemency power. Since the declaration of independence by Ukraine in 1991, several versions of the regulations were adopted,each one replacing the former version, albeit not varying considerably.
86. The regulations currently in force were approved by Presidential Decree No. 223/2015 on 21 April 2015 (and further amended on 14 May 2016). The relevant part reads as follows:
“1. These Regulations define the procedure for presidential clemency under paragraph 27 of part 1 of Article 106 of the Constitution of Ukraine.
2. Clemency for convicts shall consist in:
– replacement of life imprisonment by fixed-term imprisonment for at least twenty-five years; …
3. The following persons shall be entitled to apply for clemency:
– a person convicted by a Ukrainian court and serving a sentence of imprisonment in Ukraine;
– …
– [his or her] defender, parent, spouse, child or other family member.
In exceptional cases, subject to extraordinary circumstances, the head or a member of the Presidential Clemency Commission (Комісія при Президентові України у питаннях помилування; hereinafter: “the Clemency Commission”), the Parliamentary Commissioner for Human Rights, the Commissioner for Children’s Rights, the Commissioner for Disabled Persons’ Rights, or the Commissioner for the Rights of the Crimea Tatar People may lodge a request for clemency.
4. …
Life prisoners may lodge a request for clemency at the earliest after having served twenty years of the sentence imposed.
5. Persons convicted for serious or particularly serious crimes, or on two or more counts of premeditated crimes … may be granted clemency in exceptional cases and subject to extraordinary circumstances. …
6. An application for clemency … shall be lodged through the administration of the prison [in which the person is serving his or her sentence]. The prison administration shall register the application in accordance with the established procedure and without delay, and shall forward it within fifteen days of the dateon which it was lodged to the Administration of the President of Ukraine, together with copies of the verdict [and other judicial decisions], the person’s character reference with a written opinion of the [prison] administration … as regards the appropriateness of clemency, as well as other documents and information of relevance for deciding on the application for clemency.
Prisoners may enclose any other documents which they consider relevant.
…
7. The Presidential Clemency Department (Департамент з питань помилування Адміністрації Президента України – hereinafter “the Clemency Department”)shall prepare the case file for examination of the application for clemency and shall inform the applicant of the result. To fulfil its tasks, the Clemency Department is entitled to request, in accordance with the established procedure, and to receive, various documents, information and material from State authorities, local self-government bodies and penal institutions.
8. The Clemency Commission… shall carry out a preliminary examination of requests for clemency and the material prepared by the Clemency Department.
The President of Ukraine shall establish the Clemency Commission with the following composition: a head, two deputy heads and members. One of the two deputy heads of the Clemency Commission is ex officio the head of the Clemency Department. One of the members of the Clemency Commission shall perform the functions of secretary.
The Clemency Commission shall include highly qualified lawyers, public figures, politicians and intellectuals.
[It] shall operate in meetings convened and conducted by its head or, in hisorher absence, by one of the deputy heads.
A meeting of the Clemency Commission shall be legitimate if the majority of its members are present.
Decisions of the Clemency Commission shall be taken by a majority vote of the members present. In the event of an equal number of votes, the chairman’s vote shall be decisive.
9. The following considerations shall be taken into account in the examination of requests for clemency:
– the seriousness of the committed crime, the duration of the sentence already served, the character of the convict, his or her behaviour, the existence of sincere repentance, compensation for or redress of the damage caused, as well as family-related and other circumstances;
– the opinion of the [prison] administration, the supervisory board, the children’s commission, the local executive authority, the local self-government body, non‑government organisations and other entities about the appropriateness of clemency.
10. The Clemency Department shall inform the Clemency Commission of applications which are inadmissible under the provisions of the present Regulations.
11. Proposals of the Clemency Commission after the preliminary examination of requests for clemency shall be documented in a report signed by the head and the secretary.
12. The Clemency Commission shall make its proposal to the President of Ukraine on granting a request for clemency on the basis of the preliminary examination of [that request] and the material prepared by the Clemency Department.
The Clemency Commission shall inform the President of Ukraine of applications for clemency which it considers should not be granted.
13. Clemency is awarded by means of a decree issued by the President of Ukraine.
14. In the event that the Clemency Commission rejects an application for clemency, the prisoner may lodge a new request for clemency, provided that there are no new noteworthy circumstances, at the earliest one year after the rejection of the previous request by the Clemency Commission. …”
87. Prior to 16 September 2010 (Presidential Decree No. 902/2010), the regulations had not specified the procedure for lodging a request for clemency through the prison administration. The regulations in force until then had stated that such a request, together with the relevant documents and material, was to be forwarded to the Secretariat of the President of Ukraine. The version in force thereafter specified that the prison administration was under an obligation to register such an application and to send it to the Presidential Administration within fifteen days.
88. Furthermore, prisoners became entitled to submit, along with their request for clemency, any additional documents which they considered to be of relevance, starting from 21 April 2015 (Presidential Decree No. 223/2015). Until then, such a possibility had been open only for the prison administration.
89. The above-mentioned Presidential Decree of 21 April 2015 outlined, for the first time, the criteria regarding the composition of the Clemency Commission,stating that “highly qualified lawyers, public figures, politicians and intellectuals” could be appointed as its members.
90. Lastly, the legislative amendments of 14 May 2016 gave the head or a member of the Clemency Commission, the Parliamentary Commissioner for Human Rights, the Commissioner for Children’s Rights, the Commissioner for Disabled Persons’ Rights, or the Commissioner for the Rights of the Crimea Tatar People the right to lodge an application for clemency, in exceptional cases and subject to extraordinary circumstances.
2. Publicly available information on domestic practice
91. On 6 July 2016 the Head of the Clemency Department, Mr Bukalov, briefed the media on the work of his Department during the first half of 2016. The summary provided by him was published on the Presidential Administration’s website. It stated that during the first half of 2016 the Clemency Department had received 669 requests for clemency, of which 276 had been examined. Forty-one prisoners had been granted presidential clemency: twenty-two of them had been absolved from serving the outstanding part of their sentences, whereas nineteen prisoners had had their outstanding sentences reduced. Furthermore, Mr Bukalov provided the following statistics: during the period from 2011 to 2014 every 100th applicant had been granted clemency; in 2015 every ninth, and in 2016 every seventh, request for clemency had been successful.
92. As regards life prisoners, Mr Bukalov stated:
“Life prisoners are an important category of potential applicants. These persons can neither count on amnesty, nor are they entitled for release on parole. Clemency is the only chance for them to regain theirliberty. To become eligible for lodging a request for clemency, they must serve at least twenty years of their sentence. As of June 2016,of the 70-plus [life prisoners] who had already served that term, about 40 had used their right to apply for [presidential] clemency. However, no life prisoner has been granted clemency for the time being.
The Clemency Commission treats requests from such prisoners with particular diligence. On two occasions its members visited prisons in order to talk in person with the life prisoners seeking clemency.”
93. In April 2018 numerous mass-media outlets reported that presidential clemency had been granted for the first time to a life prisoner in Ukraine. It became known that Ms K., who had been sentenced to life imprisonment in 2005 for aggravated double murder and who had de facto served twenty years and two months of her sentence, had been released on 10 April 2018 in accordance with Presidential Decree No. 49/2018 of 28 February 2018. The decree in question is not publicly available.The parties did not make any submissions to the Court in respect of the above‑mentioned event.
E. Family visits for life prisoners
94. The relevant provisions of the Code of Execution of Criminal Sentences 2003 can be summarised as follows.
95. Pursuant to Article 110, a short-term visit in a prison lasts up to four hours and a long-term visit, up to three days.
96. Under Article 151, as worded before 16 February 2010, convicted prisoners sentenced to life imprisonment were entitled to one short-term visit every six months.
97. Following the entry into force of amendments on 16 February 2010, prisoners of that category became entitled to one short-term visit every three months.
98. Subsequently, Article 151 was further amended with effect from 6 May 2014, after which prisoners serving a life sentence became entitled to one short-term visit per month and one long-term visit every three months.
99. Following another round of amendments, which were adopted on 7 September 2016, life-prisoners are now entitled to one long-term family visit every two months.
100. Article 151 specifies that such visits are for meeting close relatives (a spouse, parents, children, step-parents, stepchildren, siblings, grandparents and grandchildren).
III. RELEVANT INTERNATIONAL MATERIAL
A. TB treatment
101. The relevant extracts from the “Treatment of Tuberculosis: Guidelines” by the World Health Organisation (fourth edition, 2009) are quoted in the Court’s judgment on the case of Makshakov v. Russia (no. 52526/07, § 50, 24 May 2016).
102. The relevant excerpt 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 (“the CPT”)from 21 to 30 November 2016 (CPT/Inf (2017) 15) read as follows (footnotes omitted):
“41. Prison health care is another area of long-standing concern to the CPT – a concern that was shared by the delegation’s interlocutors at the Ministry of Justice. As acknowledged by them, andagain observed by the delegation in the establishments visited, health-care staffing levels continueto be insufficient (moreover, many health‑care workers are approaching retirement age, youngerstaff are either leaving the system or unwilling to work in it due to the unattractive conditions), the premises and equipment are run down, outdated (some dating back to the Soviet times)and incomplete, the supply of medication problematic (despite the assistance provided bythe International Committee of the Red Cross, the Global Fund and the World Health Organizationthanks to which there had recently been a slight improvement) and the quality of care (includingprofessional standards) leave much to be desired.”
103. In their joint report “Tuberculosis surveillance and monitoring in Europe 2018 – 2016 data”, the Regional Office for Europe of the World Health Organisation and the European Centre for Disease Prevention and Control stated:
TB in prisons
“In the 2015 cohort of all clinically-diagnosed and bacteriologically-confirmed new TB and relapse cases, a total of 17 403 (8.0%) cases were reported to have died, 4.6% to have been lost to follow-up and 4.2% to have had treatment that failed. […] Countries reporting the highest failure rates were Ukraine (8.2%) and Russia (7.0%).
The WHO European Region is the most affected area for MDR TB in the entire world. Of the 30 countries in the world with the highest MDR TB burden, nine are in the Region (Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Ukraine and Uzbekistan).”
104. Furthermore, in 2016 the World Health Organisation’s Regional Office for Europe published a report entitled “Anti-tuberculosis drug resistance among tuberculosis patients in Ukraine and risk factors for MDR‑TB: Results of the first national survey, 2013-2014”, in which it stated:
Main findings
“This first national anti-TB drug resistance survey implemented in Ukraine detected alarmingly high proportions of TB cases with MDR-TB: 24.1% among new and 58.1% among previously treated cases. …
Despite more than two decades since the country regained its independence, with associated ruptures with the former system for TB treatment and care, drug-resistant TB continues to spread in Ukraine. The reasons for this ongoing MDR-TB epidemic in the country are numerous and include: continued shortages of first-line drugs both at peripheral and central levels resulting in suboptimal treatment; lack of access to second-line full treatment schemes, especially in prison settings …”
B. Life imprisonment
105. The relevant texts of the Council of Europe and other international legal texts on the imposition and review of life sentences, as well as the importance to be attached to rehabilitation, are set out in Kafkaris v. Cyprus ([GC], no. 21906/04, §§ 68-76, ECHR 2008), Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, §§ 60-67, ECHR 2013 (extracts)), and Murray v. the Netherlands ([GC], no. 10511/10, §§ 70-76, 26 April 2016).
106. A summary of, and relevant extracts from,the 25th General Report of the CPT entitled“Situation of life-sentenced prisoners” (CPT/Inf(2016)10-part) can be found in the Court’s judgment on the case of Matiošaitis and Others v. Lithuania (nos. 22662/13 and 7 others, §§ 114-15, 23 May 2017).
107. The relevant excerpt from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 8 to 21 December 2017 (CPT/Inf (2018) 41) read as follows (original emphasis, footnotes omitted):
“5. Life-sentenced prisoners
78. Concerning the regime for life-sentenced prisoners, the situation has remained basically unchanged as the relevant legislation has not been amended despite the CPT’s long-standing recommendations. Lifers continued to be segregated from other prisoners and spent up to 23 hours per day in their (usually) double or triple-occupancy cells, with little in terms of organised activities and association (with the exception of occasional work and limited access to the gym, table tennis and the Internet – up to one hour per day – in Lviv and Ivano-Frankivsk). The situation was particularly difficult for those of the inmates who were accommodated alone in their cells (either on their own request or on security grounds, because they were deemed to represent a danger to their fellow prisoners), whose regime de facto amounted to solitary confinement, for years on end.
79. The CPT remains of the view that the regime for life-sentenced prisoners in Ukraine should be fundamentally reviewed, so as to include a structured programme of constructive and preferably out-of-cell activities; social workers and psychologists should be proactive in working with life-sentenced prisoners to encourage them to take part in that programme and attempt to engage them safely with other prisoners for at least a part of each day. There is no justification to systematically segregate life-sentenced prisoners from the rest of prisoner population.
Consequently, the CPT once again calls upon the Ukrainian authorities to develop the regime for life-sentenced prisoners, in particular by providing more communal activities (including access to work and education). Access to the Internet should be offered to life-sentenced prisoners at Kyiv SIZO.
The Committee also once again urges the Ukrainian authorities to integrate life-sentenced prisoners into the general prison population as soon as possible following their conviction (taking into account the European Prison Rules and the Committee of Ministers’ Recommendation Rec (2003) 23 on the management by prison administrations of life sentence and other long-term prisoners).
80. Furthermore, in all the establishments accommodating life-sentenced prisoners (except Ivano-Frankivsk SIZO), custodial staff continued to use unmuzzled service dogs inside the lifers’ units, when escorting prisoners outside their cells including for outdoor exercise. The CPT once again calls upon the Ukrainian authorities to stop this dangerous and intimidating practice immediately.
81. Further, the Committee must recall the basic principle that, in order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee the safety of the outside community, the law should offer a realistic prospect of conditional release to all sentenced prisoners, including life-sentence prisoners. This is still not the case at present.
The CPT once again calls upon the Ukrainian authorities to amend the legislation with a view to making conditional release (parole) available to all life‑sentenced prisoners, subject to a review of the threat to society posed by them on the basis of an individual risk assessment. Reference is also made here to the CPT’s 25th General Report.”
THE LAW
I. SCOPE OF THE CASE
A. Distinguishing the applicant’s complaint of inadequate medical care from thatcovered by the Court’s judgment on his previous application (Petukhov v. Ukraine, no. 43374/02, 21 October 2010)
108. The applicant submitted that he had lodged the present application, in so far as his complaint of inadequate medical care was concerned, so that the Court would examine the deficiencies in his medical treatment in detention as from August 2002, and not only as from the date of his transfer to Kherson Prison no. 61 in July 2010.
109. The Government confined their observations on that aspect to the period of the applicant’s detention starting from July 2010.
110. The Court notes that, when giving notice of the present application to the respondent Government on 16 November 2015, it pointed out in the “Statement of facts”:
“In the applicant’s prior application no. 43374/02 the Court, in a judgment of 21 October 2010, found that the State had failed to comply with its obligations to secure the applicant’s health in detention from August 2001 to August 2002.”
111. The Court further observes that the Government were given notice of application no. 43374/02 on 6 November 2008 (see Petukhov, cited above, § 4). Thereafter, in the first half of 2009, the parties exchanged their observations on the admissibility and merits of the case. Both of them had been free to refer to any facts regarding the medical care provided to the applicant in detention up until the date of their observations. Even subsequently, nothing had prevented them from providing the Court with a factual update on the matter.
112. In its judgment of 21 October 2010 the Court observed the absence of any medical documents covering the period between the applicant’s admission to the SIZO in August 2001 and the date of his diagnosis with TB in August 2002 (idem, § 94). The Court stated that it “[had] doubts as to the availability of adequate medical assistance to the applicant before August 2002” (idem, § 96). Furthermore, the Court noted the absence of any evidence showing that the applicant had received any particular treatment in respect of his thigh injury prior to 2006 (idem, § 97).
113. In other words, the Court based its analysis of that complaint on the material which was available in the case fileat the time and which the applicant had had ample opportunity to supplement in due time. The temporal scope of the previous application covered the period from August 2001, when the applicant had been placed in detention, till the date of the Court’s judgment, 21 October 2010. Since the parties had not provided the Court with any information regarding the medical care provided to the applicant since his transfer to Kherson Prison no. 61 on 3 July 2010, the period from 3 July to 21 October 2010 had not been analysed in the case of Petukhov (cited above).
114. The Court therefore considers that the scope of the applicant’s complaint in the present case regarding the alleged failure of the State to comply with its obligation to safeguard his health in detention should be limited to the period of his detention starting from 3 July 2010, that is the date of his transfer to Kherson Prison no. 61, which was not the subject-matter of the Court’s judgment on application no. 43374/02.
B. Complaints raised for the first time after the communication of the case to the Government
115. In his submissions of 4 June 2016 made in reply to the Government’s observations, the applicant complained for the first time about the conditions of his detention in the Novgorod-Siverskyy SIZO, where he had been detained from 29 May to 7 August 2015, and in the Kyiv SIZO, where he had been detained from 19 October to 2 December 2014, from 19 January to 29 May 2015 and from 7 August 2015 onwards.
116. The Court notes that these new, belated complaints do not constitute an elaboration or elucidation of the applicant’s original complaints, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see Korneykova and Korneykovv. Ukraine,no. 56660/12, §§ 95-96, 24 March 2016, and contrastRadomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 122 and 129, 20 March 2018).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTIONIN RESPECT OF THE CONDITIONS OF THE APPLICANT’S DETENTION
117. The applicant complained that he had been detained in poor conditions in Kherson Prison no. 61 and the Kherson SIZO and that he had not been provided with adequate medical treatment. 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.”
A. Admissibility
1. Material conditions of the applicant’s detention
118. The Court reiterates that, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as of specific allegations made by the applicant. The length of the period during which a person is detained in the particular conditions has also to be considered (see Muršić v. Croatia, [GC], no. 7334/13, § 101, 20 October 2016, with further references).
(a) In Kherson Prison no. 61
119. The Court notes from the outset that the applicant’s criticism of the conditions of his detention in prison did not include the overcrowding argument as such.
120. The Court further observes that in its judgment on the case Yarovenko v. Ukraine ([Committee], no.24710/06, §§ 113-20, 6 October 2016) it examined similar complaints regarding the conditions of detention in Kherson Prison no. 61 from an inmate who had been detained there at the same time as the applicant in the present case. Namely, the complaints raised in the cited case, like those in the present application, concerned the allegedly inadequate disinfection of cells, poor conditions in the exercise yard and limited possibilities for outdoor walks, poor ventilation and dampness in the cells, as well as inconveniences inherent in the refurbishment of the prison premises. No violation of Article 3 of the Convention was found in the Yarovenko case (cited above, § 120). The applicant in the present case has not provided any weighty evidence that could lead the Court to reach a different conclusion. While it appears from the case-file materials that the Parliamentary Commissioner for Human Rights did establish certain deficiencies in the conditions of the applicant’s detention in Kherson Prison no. 61 (see paragraph 12 above), there is no indication that they were serious enough to raise an issue under Article 3 of the Convention.
121. The Court notes that in the present case the applicant also complained of permanent video surveillance in his cell, as well as of the poor quality of the drinking water and food.
122. The Court has held in its case-law that monitoring of a prisoner’s behaviour, although certainly intrusive, is not per se incompatible with Article 3. This measure serves the purposes of both ensuring prison security and protecting the prisoner from the risk of pressure or even physical attack (see, mutatis mutandis, Klibisz v. Poland, no. 2235/02, § 320, 4 October 2016).There is no evidence in the present case that the toilet itself in the applicant’s cell was exposed to video surveillance as alleged by him. To the contrary, the print-outs from the video-camera recordings submitted by him rather indicate that it was not the case (see paragraph15above).
123. In so far as the applicant complained, in broad terms, of the poor quality of the drinking water and food, the Court observes that the Government submitted detailed information refuting his allegations (see paragraphs 23-25 above). The applicant did not contest the veracity of that information. There is therefore no indication for the Court that the food and drinking water in Kherson Prison no. 61 were of such poor quality that an issue might arise in that regard under Article 3 of the Convention.
124. In the light of the foregoing, the Court considers that this complaint has not been properly substantiated by the applicant.
(b) In the Kherson SIZO
125. The Court observes that the applicant was detained in the Kherson SIZO for about two months, in cells nos. 392 and 394. He criticised the conditions of his detention there, mainly referring to the overall dilapidated state of the building, low temperatures and high humidity, broken window panes and a leaking ceiling (see paragraphs 27-29 above).
126. The photographs submitted by the applicant generally corroborated his allegations (see paragraph 28 above). It is noteworthy, however, that the SIZO administration had admitted that cell no. 394 required urgent repairs and had carried out those repairs, during which the applicant had been transferred to cell no. 392 (see paragraph 33 above).
127. In the absence of any comments from the applicant on those events and any details as to the periods of his detention in each cell, the Court considers this complaint to be unsubstantiated too.
(c) Conclusion
128. Having regard to the above considerations, the Court concludes that the applicant’s complaint of poor conditions of detention both in Kherson Prison no. 61 and in the Kherson SIZO, must be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.
2. Medical care in detention
129. The Court notes that this complaint 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. The parties’ submissions
(a) The applicant
130. The applicant argued that the State authorities were responsible for causing an irreversible deterioration in his health.
131. Although he had received treatment for TB in Kherson Prison no. 61, the recurrent shortages of drugs had rendered it ineffective. As a result, he had developed resistance to all possible anti-TB drugs and his disease had become incurable.
132. The applicant invited the Court not to trust the records in his medical file which stated that he had refused treatment on some occasions (see paragraph 39 above) and submitted that they were either inaccurate or referred to his protest against the obvious deficiencies in his treatment.
133. The applicant submitted that although he had initially been suffering from pulmonary TB, in May 2011 he had also been diagnosed with genito-urinary TB (see paragraph 41 above). That was another indication of the inadequacy and ineffectiveness of the medical care afforded to him in detention.
134. The applicant also expressed the view that the decision to place him in palliative care had been premature and had caused him considerable anguish. The administration of isoniazid, to which he was resistant, had been imposed on him as part of the palliative care measures. Since his transfer to the Kyiv SIZO as a “prison for healthy persons”, the only medical care available for him was an X-ray examination twice a year. Otherwise, palliative care in his case meant nothing more than the absence of any medical supervision or treatment. He submitted that it was impossible to provide palliative care up to the requisite standards in detention, given all the inherent restrictions as regards access to fresh air and light, nutrition and so on.
(b) The Government
135. The Government argued that the Ukrainian authorities had taken all appropriate measures to safeguard the applicant’s health in detention. He had been under constant medical supervision, which included regular medical check-ups, X-ray examinations, clinical analyses and so on.
136. When a relapse of TBhad been recorded, the applicant had been transferred to Kherson Prison no. 61,which had the status of a specialised TB hospital.The applicant’sstate of health had remainedsatisfactory.
137. The Government further submitted that the applicant had refused medical examinations or treatment on a number of occasions (see paragraphs 37, 39 and 46 above).
138. Lastly, the Government submitted that the medical unit of the Kyiv SIZO, to which the applicant had been transferred in August 2015, was adequately staffed and equipped. They noted that, as of the date of their observations (15 April 2016), the applicant had not required any medical treatment.
2. The Court’s assessment
139. The Court reiterates that Article 3 of the Convention imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The relevant case-law principles concerning the adequacy of medical assistance provided to detainees have been summarised in the Court’s judgment on the case of Blokhin v. Russia ([GC], no. 47152/06, §§ 136-38, 23 March 2016).
140. Turning to the present case, the Court observes that during the period under consideration the applicant suffered a recurrence of his pulmonary TB, which was the reason for his transfer on 3 July 2010 to Kherson Prison no. 61 specialising in TB treatment.Shortly after his arrival at that prison, the failure of his previous TB treatment was recorded (see paragraphs35 and36 above). It follows that the applicant’s state of health at that stage raised serious concerns and warranted particular medical attention.
141. The Court further notes that, while on 23 November 2010 the applicant had been certified as having the mildest (third degree) category of disability, a year later, on 25 November 2011, his condition was reassessed and he was certified as having a more serious, second-degree disability (see paragraphs 38 and 45 above). Meanwhile,his TB disease had spread beyond his lungs and on 10 May 2011 he was diagnosed with genito-urinary TB (see paragraph 41 above). His TB treatment yielded no positive results, as he had developed resistance to most anti-TB drugs, and on 2 July 2013 his further medical treatment was found to be devoid of any prospect of success (see paragraph 51 above). Consequently, the Court cannot agree with the Government’s assertion that the applicant’s health remained satisfactory. To the contrary, it considers his submission that he had suffered an irreversible deterioration in his health to have a sufficient factual basis.
142. The Court reiterates that the mere fact that an applicant’s state of health has deteriorated may raise, at an initial stage, certain doubts concerning the adequacy of his or her treatment in prison.However, it cannot suffice, by itself, for a finding of a violation of the State’s positive obligations under Article 3 of the Convention if, on the other hand, it can be established that the relevant domestic authorities have provided in a timely fashion all reasonably available medical care in a conscientious effort to hinder development of the disease in question (see, for example, G. v. Russia, no. 42526/07, § 82, 21 June 2016).
143. It is not disputed in the present case that the applicant was regularly examined by various doctors and subjected to various screening and laboratory tests. It cannot therefore be said that the respondent State left him unattended. However, the question remains as to whether the State’s response to the applicant’s disease proved to be an effective one.
144. The domestic authorities acknowledged on several occasions, namely in December 2010, September and November 2011, as well as in July 2012, that there was a shortage of anti-TB medication available in Kherson Prison no. 61 (see paragraphs 40, 42, 44 and 47above). Moreover, having regard to the apparently deficient procurement procedures, which were criticised by the penal authorities themselves (see paragraph40 above), such a deplorable situation appeared to be far from exceptional.
145. The Court reiterates in this connection that the authorities’ inability to assure a regular, uninterrupted supply of essential anti-tuberculosis drugs to patients is a key factor in the failure of tuberculosis treatment (see Reshetnyak v. Russia, no. 56027/10, § 87, 8 January 2013). Moreover, when necessary medicines are unavailable, the overall quality of medical assistance is called into question(seeMakharadze and Sikharulidze v. Georgia, no. 35254/07, § 80, 22 November 2011).
146. Against that background the Court considers that the applicant’s isolated refusals of treatment constituted a legitimate attempt to draw the authorities’ attention to the poor quality of medical care available to him (compare with Makshakov v. Russia, no. 52526/07, § 100, 24 May 2016).
147. The Court has noted evidence of poor medical assistance and protection against tuberculosis in Ukrainian detention facilities in a number of cases against Ukraine (see, for example, Kushnir v. Ukraine, no. 42184/09, § 142, 11 December 2014, with further references). In the case of Kondratyevv. Ukraine (no. 5203/09, § 72, 15 December 2011) it noted concerns about multiple-drug-resistant tuberculosis in prisons and the fact that Ukraine still had one of the highest incidences of tuberculosis in Europe.
148. Similar concerns have been expressed, more recently, by the WHO Regional Office for Europe. According to its 2016 data, Ukraine was among the countries reporting the highest rate of failure in tuberculosis treatment. It also noted that drug-resistant tuberculosis continued to spread in Ukraine and that the reasons for that included continued shortages of first-line drugs and lack of access to second-line full treatment schemes, especially in prison settings (see paragraphs 103 and 104 above).
149. The circumstances of the present case disclose another example of the above-mentioned problems.
150. Lastly, the Court takes note of the applicant’s arguments regarding the lack of adequate palliative care for him in detention. Those arguments are not without basis.
151. The Court observes that, as pointed out by the applicant, the administration of isoniazid regardless of a patient’s resistance to it had been a part of standard palliative-care measures until the change in the applicable legal standards in September 2014 (see paragraphs 52, 72 and 134). Although the applicant’s resistance to that drug had been documented as early as in July 2010 (see paragraph 36above), once he was placed under palliative care in July 2013, it was administered to him on a regular basis. Subsequently, in April 2014, he received confirmation from an independent tuberculosis specialist that “anti-TB drugs should not be administered to him given his resistance to them and their ineffectiveness, as well as their toxic action on all the body organs” (see paragraph 55 above).
152. More broadly, the Court notes the absence of any legal framework in Ukraine for ensuring palliative care in prisons (see paragraphs 71 and 72 above). Furthermore, the Government did not show that any particular medical arrangements had been made for the applicant in the Kyiv SIZO, other than those for healthy prisoners. The Court therefore considers credible the applicant’s allegation that the palliative care prescribed for him was merely non-existent in practice.
153. In the light of the foregoing and without considering it necessary to analyse the medical care arrangements for the applicant in other detention facilities nor in respect of his other health-related concerns, the Court considers that it has sufficient groundsto find a violation of Article 3 of the Convention on account of the authorities’ failure to safeguard the applicant’s health in detention from 3 July 2010 onwards.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S IRREDUCIBLE LIFE SENTENCE
154. The applicant complained that his life sentence was incompatible with Article 3 of the Convention.
A. Admissibility
155. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. Neither it is inadmissible on any other grounds. The complaint must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
156. The applicant argued that his life sentence was neither de jure nor de facto reducible and was thus in breach of Article 3 of the Convention. Given thatUkrainian law did not provide for release on parole for life prisoners, the only possibility for that category of prisoner to seek release was through the procedure of presidential clemency.
157. The applicant contended that the presidential clemency mechanism lacked clarity and foreseeability. It was unclear from the applicable legal provisions whether the twenty-five years’ imprisonment, in the event that clemency was granted, was to be calculated from the beginning of the sentence or from the date of the application for clemency. In the former case the overall duration of the sentence would be twenty-five years, whereas in the latter it would amount to forty-five years. Furthermore, once a life sentence was replaced by a fixed-term sentence as a result of an act of clemency, it was unclear whether the release-on-parole mechanism was applicable to that fixed-term sentence. If so, in the first case mentioned above, the overall twenty-five years’ sentence could be reduced to twenty‑three years and nine months, and in the second case the forty-five years’ sentence could be reduced in practice to thirty-eight years and nine months.
158. The applicant drew the Court’s attention to the provision of the Clemency Procedure Regulations,which provided that clemency could be granted to prisoners convicted for serious or particularly serious crimes, or to those convicted on two or more counts of premeditated crimes, in exceptional cases and subject to extraordinary circumstances. Given that a life sentence was usually imposed in such cases, even theoretical prospects for life prisoners to be granted clemency were non-existent in practice. Moreover, there was no reference to any penological considerations to be taken into account.
159. The applicant further argued that the Clemency Commission, which consisted of “public figures, politicians and intellectuals” in addition to lawyers, could hardly be expected to examine applications for clemency in a professional manner. It examined those applications in the prisoners’ absence, but on the basis of material provided by the prison authorities, the contents of which remained unknown to the prisoner and could not be challenged.
160. The applicant also contended that the criteria listed in the applicable regulations were vague. Neither the Clemency Commission nor the President was obliged to give reasoning in their decisions on clemency applications;nor was there any obligation to make those decisions public. Lastly, they were not amenable to any judicial review. Accordingly, life prisoners whose applications were rejected were left in a state of uncertainty and despair. That being so, and in the absence of any tangible plan for release, at least at some point in the future, life imprisonment in Ukraine was devoid of any rehabilitative aim.
161. The applicant submitted that although the life-imprisonment sentence had been introduced in Ukraine in 2000, it did not mean that the minimum period of twenty years’ imprisonment required in order to be eligible to lodge a clemency application was to be calculated from that point. Thus, in 2000 the death penalty was commuted to a life sentence for a number of prisoners, who by now had served twenty or more years in prison. The absence of any statistics on the number of life prisoners who had applied for clemency and the decisions taken on them proved the ambiguity and ineffectiveness of that mechanism.
162. The applicant claimed that only an insignificant number of clemency applications lodged by fixed-term prisoners had been granted. According to his information, in 2015 the President of Ukraine had granted clemency to sixty-seven fixed-term prisoners out of 1,320 persons who had applied for it (that is, about 5%). The prospects of clemency being granted to life prisoners were, in the applicant’s opinion, even slimmer.
163. Lastly, the applicant submitted that, even if a prisoner’s progress towards rehabilitation was one of the benchmarks for deciding whether to grant clemency, he had been de facto deprived of any such possibility, given the appalling conditions of his detention, his poor state of health and the absence of adequate medical care.
(b) The Government
164. The Government emphasised from the outset that the penalty of life imprisonment was imposed in exceptional cases in Ukraine and that there was always a fixed-term imprisonment alternative to it (see paragraph 77above). Under the applicable legal provisions, the court was to impose a life sentence only if it considered it impossible to impose a fixedterm of imprisonment.
165. The Government conceded thatthere was indeed no possibility of release on parole for life prisoners in Ukraine. However, Ukraine was not alone in Europe in choosing such an approach. The legal regulation of that matter was similar in Iceland, Lithuania, Malta and the Netherlands.
166. The Government submitted that they were not in a position to provide any statistics regarding presidential clemency given that, at the time of their observations (15 April 2016), there was no life prisoner in Ukraine eligible to apply for it. Thus, in the Government’s opinion, the minimum period of twenty years that a prisoner had to serve before being eligible to apply for clemency was to be calculated from 2000, when life imprisonment had been introduced in Ukraine. Accordingly, such a possibility would not be opened until 2020 at the earliest.
167. Lastly, the Government maintained that the presidential clemency mechanism was clear and foreseeable, and that domestic law did not therefore deprive the applicant of all hope of a reduction in his life sentence.
2. The Court’s assessment
(a) General principles laid down in the Court’s case-law
168. The general principles established in the Court’s case-law on life sentences have been summarised, quite recently, in Hutchinson v. the United Kingdom ([GC], no. 57592/08, §§ 42-45, 17 January 2017) and read as follows:
“42. The relevant principles, and the conclusions to be drawn from them, are set out at length in the Vinter judgment (cited above, §§ 103-122; recently summarised in Murray v. the Netherlands[GC], no. 10511/10, §§ 99-100, ECHR 2016). The Convention does not prohibit the imposition of a life sentence on those convicted of especially serious crimes, such as murder. Yet to be compatible with Article 3 such a sentence must be reducible de jure and de facto, meaning that there must be both a prospect of release for the prisoner and a possibility of review. The basis of such review must extend to assessing whether there are legitimate penological grounds for the continuing incarceration of the prisoner. These grounds include punishment, deterrence, public protection and rehabilitation. The balance between them is not necessarily static and may shift in the course of a sentence, so that the primary justification for detention at the outset may not be so after a lengthy period of service of sentence. The importance of the ground of rehabilitation is underlined, since it is here that the emphasis of European penal policy now lies, as reflected in the practice of the Contracting States, in the relevant standards adopted by the Council of Europe, and in the relevant international materials (Vinter and Others, cited above, §§ 59-81).
43. As recently stated by the Court, in the context of Article 8 of the Convention, ‘emphasis on rehabilitation and reintegration has become a mandatory factor that the member States need to take into account in designing their penal policies’ (Khoroshenko v. Russia [GC], no. 41418/04, § 121, ECHR 2015; see also the cases referred to in Murray, cited above, § 102). Similar considerations apply under Article 3, given that respect for human dignity requires prison authorities to strive towards a life sentenced prisoner’s rehabilitation (see Murray, cited above,§§ 103-104). It follows that the requisite review must take account of the progress that the prisoner has made towards rehabilitation, assessing whether such progress has been so significant that continued detention can no longer bejustified on legitimate penological grounds (Vinter and Others, cited above, §§ 113‑116). A review limited to compassionate grounds is therefore insufficient (ibid., § 127).
44. The criteria and conditions laid down in domestic law that pertain to the review must have a sufficient degree of clarity and certainty, and also reflect the relevant case-law of the Court. Certainty in this area is not only a general requirement of the rule of law but also underpins the process of rehabilitation which risks being impeded if the procedure of sentence review and the prospects of release are unclear or uncertain. Therefore prisoners who receive a whole life sentence are entitled to know from the outset what they must do in order to be considered for release and under what conditions. This includes when a review of sentence will take place or may be sought (Vinter and Others, cited above, § 122). In this respect the Court has noted clear support in the relevant comparative and international materials for a review taking place no later than twenty-five years after the imposition of sentence, with periodic reviews thereafter (ibid., §§ 68, 118, 119 and 120). It has however also indicated that this is an issue coming within the margin of appreciation that must be accorded to Contracting States in the matters of criminal justice and sentencing (ibid., §§ 104, 105 and 120).
45. As for the nature of the review, the Court has emphasised that it is not its task to prescribe whether it should be judicial or executive, having regard to the margin of appreciation that must be accorded to Contracting States (Vinter and Others, cited above, § 120). It is therefore for each State to determine whether the review of sentence is conducted by the executive or the judiciary.”
(b) Application of the above principles in the present case
169. Turning to the present case, the Court notes that life prisoners in Ukraine may expect to regain their liberty only in two cases: if they have a serious illness preventing their further imprisonment, or if they are granted presidential clemency (see paragraphs 73-74and 79, 82 and 86above). In the former case, however, eventual recovery, if any, would mean the end of the person’s liberty and his or her return to prison (see paragraph 73 above).
170. The Court has consistently held that the commutation of life imprisonment because of terminal illness, which only means that a prisoner is allowed to die at home or in a hospice rather than behind prison walls, cannot be considered as a “prospect of release”, as the notion is understood by the Court (seeVinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, § 127, ECHR 2013 (extracts), and Matiošaitis and Others v. Lithuania, nos. 22662/13 and 7 others, § 162, 23 May 2017, with the case-law references therein).
171. Accordingly, the regulation and practice of presidential clemency, being the only possibility for mitigating life sentences in Ukraine, calls for stricter scrutiny (see, mutatis mutandis,László Magyarv. Hungary, no. 73593/10, § 56, 20 May 2014).
172. The Court notes that the procedure for dealing with requests for clemency is set out in the Clemency Procedure Regulations, approved by a presidential decree to that effect. Among the considerations to be taken into account during the examination of a request for clemency, the regulations refer to “the seriousness of the committed crime, the duration of the sentence already served, the character of the convict, his or her behaviour, the existence of sincere repentance, compensation for or redress of the damage caused, as well as family-related and other circumstances” (see paragraph 86 above).
173. In the Court’s opinion, the above considerations provide some guidance as to the criteria and conditions for review of a life sentence and could be construed as referring to legitimate penological grounds for the continuing incarceration of prisoners (see and compare with Bodein v. France, no. 40014/10, § 60, 13 November 2014, Murray v. the Netherlands [GC], no. 10511/10, § 100, 26 April 2016, as well as Harakchiev and Tolumovv. Bulgaria, nos. 15018/11 and 61199/12, § 258, ECHR 2014 (extracts), and the Court’s further analysis in Hutchinson, cited above,§ 61). It is noteworthy, however, that those considerations are applicable in the context of a broader restriction. Namely, the Clemency Procedure Regulations state that “persons convicted for serious or particularly serious crimes, or having two or more criminal records in respect of the commission of premeditated crimes … may be granted clemency in exceptional cases and subject to extraordinary circumstances” (see paragraph 86 above). All life prisoners clearly fall within this category (see paragraph76 above). It is not known what is meant by “exceptional cases” and “extraordinary circumstances”, and there is nothing to suggest that the penological grounds for keeping someone in prison are of relevance for the interpretation of those notions under the legal frameworks as they presently stand in Ukraine.
174. In other words,prisoners who receive a whole life sentence do not know from the outset what they must do in order to be considered for release and under what conditions (seeVinter and Others, cited above, § 122, and Hutchinson, also cited above, § 44).
175. The Court also takes note of the Government’s submission that as of April 2016 there were no life prisoners in Ukraine eligiblefor presidential clemency, given that the twenty years’ “waiting” period was to be calculated from 2000 when life imprisonment had been introduced in Ukraine and would therefore not expire until 2020 (see paragraph 166above). However, according to the information provided by the head of the Clemency Department during a media briefing on 6 July 2016, by June 2016 more than seventy life prisoners had already served the required minimum of twenty years in prison and forty of them had requested presidential clemency, but their requests had been rejected (see paragraph91above). Such a drastic discrepancy in the authorities’ interpretation of the twenty-year “waiting” period is another indication for the Court of the lack of sufficient clarity and certainty in the applicable criteria and conditions for a life-sentence review under the presidential clemency procedure.
176. Against that background, the Court is inclined to accept the applicant’s argument that the calculation of the twenty-five years’ imprisonment replacing a life sentence as a result of presidential clemency might be open to different interpretations too. The applicant provided four possible scenarios (see paragraph 157 above). One of them – that the minimum period of imprisonment in the event that presidential clemency was granted would be thirty-eight years and nine months – is concordant with the interpretation of the legal provision in question by the authorsof the Scientific and Practical Commentary on the Code of Execution of Criminal Sentences of Ukraine (see paragraph 84 above). As known from public sources, the only life prisoner whose request for presidential clemency was successful had served twenty years and two months (see paragraph93 above). The reasons behind the calculation that was applied are unknown.
177. The Court further observes that the procedure in Ukraine requires neither the Clemency Commission nor the President to give reasons in their decisions regarding requests for clemency. The Court has held in its case-law that transparency of a life sentencereview may nonetheless be ensured by other means, such as, for example, the established requirement for the Clemency Commission to take account of the relevant case-law of international courts and other bodies on the interpretation and application of international human rights in force in respect of the State in question, and to publish activity reports on a regular basis detailing the examination of requests for clemency (see Hutchinson, cited above, § 61). No such information is made public in Ukraine, except for the general outline of the criteria relevant for the examination of requests for clemency (see paragraph 86 above), to demonstrate how, if at all, those criteria are applied in practice by the President of Ukraine.The only time when the clemency authorities informed the public about its activities was at the media briefing conducted by the head of the Clemency Department on 6 July 2016. However, that was an isolated event confined to sharing some statistics (see paragraphs 91 and 92 above).
178. The Court acknowledges that having regard to the margin of appreciation which must be accorded to Contracting States in matters of criminal justice and sentencing, it is not its task to prescribe the form (executive or judicial) such a review should take (see paragraph 168above). It nevertheless considers that in order to guarantee proper consideration of the changes and the progress towards rehabilitation made by a life prisoner, however significant they might be, the review should entail either the executive giving reasons or a judicial review, so that even the appearance of arbitrariness is avoided (see Matiošaitis and Others, cited above, § 181, with further case-law references).
179. In the present case the absence of an obligation on the President of Ukraine and his subordinate authorities to give reasons in their decisions on clemency requests is further aggravated by the lack of any judicial review of those decisions. In such circumstances, the exercise by life prisoners of their right to a review of their life sentence by way of presidential clemency cannot be regarded as surrounded by sufficient procedural guarantees (see Murray, cited above, § 100).
180. Therefore, in the light of the above considerations, the Court considers that in Ukraine the presidential power of clemency is a modern‑day equivalent of the royal prerogative of mercy, based on the principle of humanity, rather than a mechanism, based on penological grounds and with adequate procedural safeguards, for review of a prisoner’s situation so that the adjustment of his or her life sentence could be obtained (see and compare with Matiošaitis and Others, cited above, § 173).
181. The Court also reiterates that European penal policy currently places emphasis on the rehabilitative aim of imprisonment, even in the case of life prisoners (see, for example, Matiošaitis and Others, cited above, § 163). Life prisoners are to be provided with an opportunity to rehabilitate themselves. As to the extent of any obligations incumbent on States in this regard, the Court considers that even though States are not responsible for achieving the rehabilitation of life prisoners, they nevertheless have a duty to make it possible for such prisoners to rehabilitate themselves. Were it otherwise, a life prisoner could in effect be denied the possibility of rehabilitation, with the consequence that the review required for a life sentence to be reducible, in which a life prisoner’s progress towards rehabilitation is to be assessed, might never be genuinely capable of leading to the commutation, remission or termination of the life sentence or to the conditional release of the prisoner. The obligation to offer a possibility of rehabilitation is to be seen as an obligation of means, not one of result. However, it entails a positive obligation to secure prison regimes tolife prisoners which are compatible with the aim of rehabilitation and enable such prisoners to make progress towards their rehabilitation. In this context the Court has previously held that such an obligation exists in situations where it is the prison regime or the conditions of detention which obstruct rehabilitation (see Murray, cited above, § 104, with further references).
182. The Court notes that life prisoners in Ukraine are segregated from other prisoners and spend up to twenty-three hours per day in their cells, which are usually double or tripleoccupancy, with little in terms of organised activities and association(see paragraphs 83 and 107 above).The Government have failed to explain how a prisoner can progress towards rehabilitation in such conditions.
183. The Court also notes that the Government’s observations in the present case did not even mention the issue of social rehabilitation for life prisoners.
184. Consequently, the Court cannot but conclude that the existing regime for life prisoners in Ukraine is incompatible with the aim of rehabilitation.
185. Lastly, the Court has held in its case-law that in assessing whether a life sentence is reducible de facto, it may be of relevance to take account of statistical information on prior use of the review mechanism in question, including the number of persons who have been granted a pardon (see Murray, cited above, § 100, with further references).
186. It is known from public sources that only one clemency request from a life prisoner has been granted in Ukraine to date (see paragraph 93 above). From the statistical point of view, this shows that in practice life prisoners have negligible prospects of having their requests for clemency granted.
187. All the foregoing considerations lead the Court to conclude that there has been a violation of Article 3 of the Convention on account of the applicant’s irreducible life sentence.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
188. The applicant also complained under Article 8 of the Convention of restrictions on his right to family visits.
189. Having regard to the facts of the case, the submissions of the parties, and its findings under Article 3 of the Convention (see paragraphs 153 and 187above), the Court considers that it has examined the main legal questions raised in the present application, and that there is no need to give a separate ruling on the admissibility and merits of the above-mentioned complaint (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
190. Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
191. The Court reiterates that by virtue of Article46 the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers of the Council of Europe. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures (seeAssanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004‑II, and Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 106, ECHR 2010 (extracts)). The State is obliged to take such measures also in respect of other persons in the applicant’sposition, notably by solving the problems that have led to the Court’s findings (see Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 142, ECHR 2014).
192. The violation of Article 3 of the Convention, which the Court has found in the present case on account of the irreducibility of the applicant’s life sentence, affects many people. There are already over sixty similar applications pending before the Court and many others might follow. Therefore, before examining the applicant’s individual claims for just satisfaction under Article 41 of the Convention, the Court wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention (see, for example, Spahić and Others v. Bosnia and Herzegovina, nos. 20514/15 and 15 others, § 33, 14 November 2017).
193. The Court reiterates that the Contracting States enjoy a wide margin of appreciation in deciding on the appropriate length of prison sentences for particular crimes. The mere fact that a life sentence may eventually be served in full does not make it contrary to Article 3 of the Convention. Accordingly, review of whole life sentences must not necessarily lead to the release of the prisoner in question (see László Magyar, cited above, § 72, 20 May 2014).
194. Nevertheless, the Court observes that the present case, in so far as it concerns the irreducibility of a life sentence, discloses a systemic problem calling for the implementation of measures of a general character. The nature of the violation found under Article 3 of the Convention suggests that for the proper execution of the present judgment the respondent State would be required to put in place a reform of the system of review of whole-life sentences. The mechanism of such a review should guarantee the examination in every particular case of whether continued detention is justified on legitimate penological grounds and should enable whole-life prisoners to foresee, with some degree of precision, what they must do to be considered for release and under what conditions, in accordance with the standards developed in the Court’s case-law.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
195. 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
196. The applicant claimed 49,423.71 Ukrainian hryvnias (UAH) in respect of pecuniary damage, which included UAH 28,215 spent on food and water during his detention in Kherson Prison no. 61 and UAH 21,217 spent on medication and postal services. He also claimed 100,000 euros (EUR) in respect of non-pecuniary damage.
197. The Government contested those claims as unsubstantiated and exorbitant.
198. The Court has found a violation of Article 3 of the Convention on account of the failure of the prison authorities to provide the applicant with adequate medical treatment from 3 July 2010 onwards (see paragraph 153 above). It finds that there is a direct causal link between the medical expenses incurred by the applicant and the violation of Article 3 (see Mirzashvili v. Georgia, no. 26657/07, § 84, 7 September 2017). As regards the other expenses referred to by the applicant, the Court does not discern any direct link between the violations found and the pecuniary damage alleged. In so far as the applicant’s expenses for postal services are concerned, this issue will be examined under the “Costs and expenses” heading below.
199. Having regard to the receipts provided by the applicant, the Court awards him EUR 750 in respect of pecuniary damage.
200. The Court also considers that the applicant must have suffered distress and anxiety on account of the absence of adequate medical care that led to the irreversible deterioration of his health, which the finding of a violation of the Convention in this judgment does not suffice to remedy. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 under this head.
201. As for the finding of a violation of Article 3 of the Convention on account of the applicant’s irreducible life sentence, the Court considers that the finding of a violation constitutes sufficient just satisfaction (see, for example, Vinter and Others, cited above, § 136, and Murray, also cited above, §131).
B. Costs and expenses
202. The applicant also claimed EUR 17,400 for the costs and expenses incurred before the Court, to be paid directly into Mr Tarakhkalo’s bank account. In support of his claim, he submitted a legal assistance contract signed by him and Mr Tarakhkalo on 20 April 2016, indicating an hourly fee of EUR 150. According to the contract, payment was due after completion of the proceedings in Strasbourg and within the limits of the sum awarded by the Court in respect of costs and expenses. The applicant also submitted a report of 4 June 2016 on the work completed under the aforementioned contract. It specified that Mr Tarakhkalo had worked on the case for 116 hours (EUR 17,400).
203. The Government contested the above claim as excessive.
204. 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-mentioned criteria, the Court considers it reasonable to grant the applicant’s claim in part and to award him EUR 10,000 for legal fees incurred before the Court, plus any tax that may be chargeable to the applicant. The award is to be paid into Mr Tarakhkalo’s bank account, as indicated by the applicant (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 116-17, 7 November 2013).
205. Furthermore, having regard to the receipts for postal services submitted by the applicant (see paragraphs 196 and 198 above), the Court awards him EUR 20 for postal costs.
C. Default interest
206. 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
1. Declares, unanimously, the applicant’s complaints under Article 3 of the Convention regarding the lack of adequate medical care in detention and the irreducibility of his life sentence admissible;
2. Declares, unanimously, the applicant’s complaint under Article 3 of the Convention in respect of the material conditions of his detention in Kherson Prison no. 61 and the Kherson SIZO inadmissible;
3. Holds, unanimously, that there has been a violation of Article 3 of the Convention on account of the lack of adequate medical care available to the applicant in detention since 3 July 2010;
4. Holds, unanimously, that there has been a violation of Article 3 of the Convention on account of the applicant’s irreducible life sentence;
5. Holds, by five votes to two, that it is not necessary to examine the admissibility and merits of the applicant’s complaint under Article 8 of the Convention;
6. Holds, by six votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant in relation to his complaint concerning his irreducible life sentence;
7. Holds, unanimously,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 750 (seven hundred and fifty euros) in respect of pecuniary damage;
(ii) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage sustained on account of the lack of adequate medical care available to the applicant since 3 July 2010;
(iii) EUR 10,000 (ten thousand euros) in respect of legal costs before the Court (the net award to be paid into the bank account of the applicant’s lawyer, Mr Tarakhkalo);
(iv) EUR 20 (twenty euros) for postal costs and expenses;
(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;
8. Dismisses, by six votes to one, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 March 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Paulo Pinto de Albuquerque
Registrar President
________________
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of JudgesP. Pinto de Albuquerque, E. Kūris and M. Bošnjak are annexed to this judgment.
P.P.A.
M.T.
PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE
1. I subscribe to the findings of the present judgment with the exception of the decision on Article 41. For the reasons already stated in my opinion in Murray v. the Netherlands[1], I cannot agree with the majority position in the present case that “the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant in relation to his complaint concerning his irreducible life sentence”[2]. In addition to the arguments set out on the occasion of Murray, I would underline that it is essential to distinguish between the obligation to acknowledge the violation of Article 3 of the European Convention on Human Rights (“the Convention”), on the one hand, and the obligation resulting therefrom, to ensure full reparation, on the other[3]. The majority failed to ensure such reparation in the present case, although it acknowledged the violation.
2. While I fully subscribe to the Chamber’s finding that there has been a violation of Article 3, due to the lack of medical care available and the applicant’s irreducible life sentence in the present case, I do not agree with the Chamber’s reasoning in paragraph 178, insofar as it states that “having regard to the margin of appreciation which must be accorded to Contracting States in matters of criminal justice and sentencing, it is not its task to prescribe the form (executive or judicial) such a review should take” and that subsequently “the review should entail either the executive giving reasons or a judicial review, so that even the appearance of arbitrariness is avoided”.
In my view, the implied perspective, namely that the obligation to give reasons for the decision and the obligation to provide judicial review are alternative and not cumulative ones, does not comply with the Grand Chamber judgment delivered in the above mentioned Murray case. Hence, the present judgment aggravated the lack of clarity and consistency of the Court’s own case-law.
3. It has been said that the Court does not prescribe the form which should take the review mechanism[4]. But in Murray the Grand Chamber went a step further, stating that:
“… The prisoner’s right to a review entails an actual assessment of the relevant information, and the review must also be surrounded by sufficient procedural guarantees. To the extent necessary for the prisoner to know what he or she must do to be considered for release and under what conditions, it may be required that reasons be provided, and this should be safeguarded by access to judicial review”[5].
After two precursor cases, László Magyar v. Hungary and Harakchiev and Tolumov v. Bulgaria[6], the development of the case law reached what seemed to be a point of no return in 2016 with the Murray judgment, the Grand Chamber having circumscribed the State’s positive obligation to ensure the existence of an effective and independent review mechanism. In order to be compatible with the Convention, a review mechanism should comply with the following five binding, “relevant principles”:
“(1) the principle of legality (“rules having a sufficient degree of clarity and certainty”, “conditions laid down in domestic legislation”);
(2) the principle of the assessment of penological grounds for continued incarceration, on the basis of “objective, pre-established criteria”, which include resocialisation (special prevention), deterrence (general prevention) and retribution;
(3) the principle of assessment within a pre-established time frame and, in the case of life prisoners, “not later than 25 years after the imposition of the sentence and thereafter a periodic review”;
(4) the principle of fair procedural guarantees, which include at least the obligation to give reasons for decisions not to release or to recall a prisoner;
(5) the principle of judicial review”[7].
In the light of this last principle, it was apparently clear that the review mechanism “must [either] be under the authority of a court or at least subject to full judicial review of both the factual and the legal elements of the parole decision, as also provided by the universal standard established in Article 110 § 2 of the Rome Statute”[8]. The imperative language utilised by the Grand Chamber in paragraph 110 of Murray (“should be safeguarded by access to judicial review”) was intended to leave no doubt as to its intention.
Unfortunately, the Hutchinson judgment blurred the message of Murray. As a matter of principle, the Grand Chamber in Hutchinson referred to the “relevant principles” set out in paragraphs 99 and 100 of the Murray judgment,[9] but seriously distorted these principles when applying them. In this respect, the Hutchinson judgment represented “a peak in a growing trend towards downgrading the role of the Court before certain domestic jurisdictions, with the serious risk that the Convention is applied with double standards”[10].Six months after the delivery of judgement in Murray, which reflected the Court’s hands-on approach on the issue of the review mechanism, it was difficult to explain the hands-off approach in Hutchinson.[11]. The suspicion of double standards in the Court’s practice is compounded by Matiošaitis and Others v. Lithuania, in which the Court has performed a more thorough control of the Lithuanian review mechanism, as compared with the control of the British review mechanism in Hutchinson[12].
In Matiošaitis and Others v. Lithuania, the Chamber stated that:
“In order to guarantee proper consideration of the changes and the progress towards rehabilitation made by life prisoner, however significant they might be, the review should entail either the executive giving reasons or judicial review, so that even the appearance of arbitrariness is avoided. The Court has also stated that to the extent necessary for the prisoner to know what he or she must do to be considered for release and under what conditions, it may be required that reasons be provided, and this should be safeguarded by access to judicial review”[13].
In other words, in the Lithuanian case, the Chamber misinterpreted the obligation of judicial review, which had been the main added value of the Murray judgement. While in Murray this obligation was logically attached to the obligation of reasoning, as a complementary guarantee against arbitrariness, in Matiošaitis and Others it was converted into an alternative guarantee to the latter. This alternative is logically untenable. The requirement of provision of reasons only makes sense if they can be tested by an independent authority. Asking the governmental or administrative authority to provide reasons regarding the penological needs for continued incarceration, but depriving the detained person of the benefit of the supervision of these reasons by a court, means little, if anything at all, in terms of restricting arbitrariness on the part of the Government or the authorities.
It is therefore recommended that the Grand Chamber shoulders its responsibility and clarifies once and for all what it meant with the requirement that the review mechanism “should be safeguarded by access to judicial review” in paragraph 100 of the Murray judgment. The State’s obligation to provide for a mechanism of review of the penological needs for continued incarceration cannot be taken seriously when judicial review is not acknowledged.
PARTLY DISSENTING OPINION OF JUDGE KŪRIS
1. I voted against point 5 of the operative part of the judgment, that is to say the finding by the majority that the applicant’s complaint under Article 8 of the Convention merited no separate examination. In my opinion, it in fact did. That finding is based on the application of the so-called Câmpeanu formula, a sparing one-sentence consideration that, owing to the fact that the Court “has examined the main legal questions raised in the present application”, it is absolved from the “need to give a separate ruling on the admissibility and merits of the [remaining] complaint”. This condensed consideration is to be found in paragraph 189 of the judgment, in which the reference is made to Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, 17 July 2014 and into which the template was copied verbatim from paragraph 156 of that judgment.
Truth to tell, the case of Centre for Legal Resources on behalf of Valentin Câmpeanu was not the one where the Câmpeanu formula was first introduced. It was used in several earlier cases. But it was specifically that case which bestowed its name on the formula in question in the internal argot of the Court, because it was in that judgment that that formula was consolidated as a template to be employed in subsequent cases – which is exactly what is happening since (see paragraph 52 below).
2. In the instant case, before turning to the applicant’s complaint under Article 8, the Court had already examined his two complaints under Article 3 and found a violation of that Article on two accounts. Consequently, the complaint under Article 8 was left unexamined, as regards both its merits and, indeed, its admissibility.
I
3. By the “main legal questions” the majority meant the questions raised in the applicant’s two complaints under Article 3. One of them related to the conditions of the applicant’s detention (one part of this complaint, which pertained to the material conditions of detention, was rejected as manifestly ill-founded, but another part, concerning the lack of adequate medical care, was declared admissible and was examined on the merits); the other to the irreducibility of his life sentence. I have no objections to the finding of a violation of Article 3 as regards both Article 3 complaints which were declared admissible.
4. Apropos of the second of the above-mentioned complaints, the applicant was sentenced for life even before the Vinter era (see Vinter and Others v. the United Kingdom, nos. 66069/09, 130/10 and 3896/10, 9 July 2013). He lodged his application on 11 June 2013, that is to say almost one month before the delivery of that landmark judgment. At that time the leading case on the issue of the (ir)reducibility of life sentences was Kafkaris v. Cyprus [GC], no. 21906/04, 12 February 2008. Under the Kafkaris principles, the applicant’s life sentence would most likely have been considered reducible, and no violation of Article 3 would have been found. With the advent of Vinter and Others, however, the Court’s approach changed radically, this conversion being confirmed in a series of subsequent judgments.
All the same, even now there still persists a question as to at what time and by which domestic body the particular violation of Article 3 on account of the irreducibility of the applicant’s life sentence was committed. The materiality of this question proceeds from the trivial fact that every concrete violation of law (and of the law of the Convention in particular) as such is always committed not only in a specific place, but also at a specific time, and, last but not least, by a specific “transgressor”. Still, this question was never addressed by the Court – neither in the context of any particular pre-Vinter life imprisonment situation examined by it, nor as a general, across-the-board issue. For all one knows, it may never be addressed. Even if at this stage of development of the Court’s case-law on life imprisonment this awkward question (or rather an assemblage of several associated questions) can be regarded as predominantly theoretical or overly analytical, it can by no means be discounted, at least not wholly.
But I shall not delve into these intricacies here. On this matter I refer to my two separate opinions (one dissenting and another one concurring) in T.P. and A.T. v. Hungary, nos. 37871/14 and 73986/14, 4 October 2016 and Matiošaitis and Others v. Lithuania, nos. 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69428/13 and 72824/13, 23 May 2017.
5. Be that as it may, the Court’s well-established (how “well”?) case-law, as it stands today, conclusively left no room for a different finding on the above-discussed issue. The same holds true for the finding of a violation of Article 3 on account of the conditions of the applicant’s detention (the broad concept, which in this particular case was limited to the lack of adequate medical care). I therefore concurred with my colleagues in the Chamber as regards these findings.
6. At the same time, I was not able to support the majority’s resolution not to examine the applicant’s complaint under Article 8.
The underlying complication relates not so much to the unexamined complaint of this particular applicant – although the very fact that his grievance as regards visits in detention was left not properly addressed is embarrassing in itself. The prime problem lies with the tool which was employed in the instant case for the disqualification of the applicant’s complaint under Article 8 and which, if used too often and indiscriminately (even if it may not be not unwholesome in and of itself), may hinder the protection and promotion of various Convention rights on even a broader scale.
The name of that underlying problem is the Câmpeanu formula.
II
7. Normally, applicants complain to the Strasbourg Court not for the sake of experiencing the dubious pleasure of litigation, in the course of which (as a subsidiary product of the examination) certain legal issues of broader importance may be (and often are) tackled: they complain about factual situations unpropitious to them, which they want to be straightened out. Perhaps the lion’s share of all the applications lodged contain not one but several complaints (or, as is sometimes the case, the first application is followed by further applications from the same applicant), which, in the applicants’ view, either pertain to different factual situations (or different aspects of the same factual situation) or should be legally assessed under not one, but several provisions of the Convention. Such complaints are formulated as separate. Yet they may in fact overlap with each other, because they either share the same factual background, or invoke interrelated provisions of the Convention. Such overlapping, or interrelatedness, of the same applicant’s complaints may allow (or at times even require) the Court to treat them as raising the same legal issue and, given that that issue has already been examined (at least in essence, if not in every detail) from one angle, factual or legal, to resolve that its re‑examination from a different angle is not required.
8. The interrelatedness of complaints is both an asset and a liability for the Court, which, as is well-known, is overloaded with a backlog of pending cases (one colleague of mine has jokingly, but aptly called the Strasbourg Court “the biggest legal factory in the world”). It is an asset, as it allows for some of the complaints being left unexamined – and to do this to no one’s, even the applicants’, detriment. By choosing not to examine separately each and every one of the overlapping complaints, the Court actually saves time and other resources, but still fulfils its mission. However, the interrelatedness of complaints is, or most certainly can become, also a liability, because the temptation to leave some complaints unexamined based on the sole premise that they are interrelated – and in this way to lighten the Court’s docket – may be too strong to be effectually resisted. If such a temptation seizes the judicial mind, what I just have called a “premise” may in fact only be a pretext, or excuse.
9. In order to reasonably and legitimately perceive and treat the same applicant’s complaints allegedly pertaining to different factual situations (or different aspects of the same set of facts) or lodged under different Articles as two sides of the same coin, some sort of linking element is needed, which would bring them together as two aspects of the same whole.
The basis for the grounds on which the same applicant’s complaints may be legitimately considered to be interrelated can derive from one of the two domains (or both of them). These domains are: (i) the realm of the reality of life, that is, the concrete factual circumstances, in which the controversy, which was presented for the Court’s examination, originated; and (ii) the province of law per se, that is to say, the provisions of the Convention itself. Tertium non datur. If the necessary linking element is not to be found in the realm of facts, the only other domain where it could be sought – and perchance found – is that of the legal provisions themselves.
This crucial distinction should be never lost sight of whenever the Court is faced with two or more complaints from the same applicant, be they contained in one single or two or more separate applications: the Court must consider whether they merit a separate examination or they are interrelated and some of them may be left unassessed. Had this distinction not been overlooked in the instant case, this opinion would have not been written. Below I shall deal consecutively with these two spheres and their bearing on the actual or alleged interrelatedness of complaints.
10. In deciding whether some of the same applicant’s complaints may be legitimately left unexamined as being interrelated with those which the Court has already examined, their factual interrelation is a necessary prerequisite, a sine qua non. If the factual background of one complaint overlaps with that of another, it may be legitimate (but not necessarily preferable) not to examine anew what is essentially the same complaint, because that would be redundant (by the way, such a choice would tally with an additional, pragmatic, consideration as to the celerity of examination and economising the Court’s resources). Faced with such a choice, the Court may exercise its discretion and resolve that separate examination of the other complaint, which is only nominally separate from the one already examined, is not necessary. However, such resolution does not mean in and of itself that the same factual situation cannot or should not be examined from the standpoint of two or more Articles: for the determination of this aspect another criterion, which refers to the domain of legal provisions, must be employed (see paragraphs 11-13 below).
If, however, two or more complaints concern unrelated factual situations, that is to say, if they do not share the same factual background, they must be dealt with as separate, even if they both (all) invoke the same Article. There cannot be any legitimate rationale behind otherwise admissible complaints being left unexamined. And there is none. The only discernible rationale for such a manoeuvre would be the celerity of the examination of the case. Such a consideration would be laudable as pragmatic and in this sense reasonable, but pragmatic is by no means necessarily equivalent to legitimate. Not infrequently it is the reverse.
11. Now to the legal, or formal, interrelation of complaints. This proceeds from the law of the Convention itself. The legal, or formal, interrelatedness of complaints may be a decisive factor in cases in which the Court is called upon to deal with the same factual situation, which is challenged not from one but from several angles, that is to say from the standpoint of two or more different Articles.
As it happens, in many applications the same factual situation serves for a bombastic invocation of rather a large number of Articles (which, quite understandably, may arouse suspicion as to the well-foundedness of some of the complaints). More often than not the examination of some of the multiple challenges set out indeed proves redundant. Even so, the challenging of the same factual issue from the standpoint of several Articles is not in and of itself superfluous. The Convention was not meant to be compartmentalised in the sense that its Articles (at least many of them), enshrining individual rights and freedoms, should be applicable to one area only, to which other Articles had no access. Nor, conversely, was it intended to render its Articles (or many of them) inapplicable to the areas to which other Articles were applicable. The provisions of the Convention concur, and this to no small extent; the subject matter of certain Articles overlaps, fully or in part, with the subject matter of other Articles. Some Articles are absorbed, fully or in part, by (subsumed by, subordinate to etc. – the Court has used different terms in its case-law to describe the overlapping of the subject matter of various Articles) other Articles and in this sense are lex specialis in relation to the latter, and those other Articles are lex generalis. For example, in particular (although not exclusively) where the right claimed is a civil one, Article 6 § 1 is regarded in the Court’s case-law as a lex specialis in relation to Article 13, which is a lex generalis; in a similar vein Article 11 is regarded as a lex specialis in relation to Article 10, which is a lex generalis.
If the complaint regarding the same factual situation invokes both a lex specialis and a lex generalis, then, once a violation of the Convention has been found based on a lex specialis, the re‑examination of the same matter under a lex generalis may be redundant. In such an event the Court has the discretion to resolve that a separate examination of the same complaint under lex generalis is not necessary.
12. It must be underscored again and again and again that this can be so only with regard to the same complaint. If, however, there is no commonality of the two complaints lodged by the same applicant at the level of their factual background, the fact of leaving one of them unexamined on the pretext that the Articles invoked by the applicant are a lex generalis and a lex specialis in relation to each other would be far‑fetched.
13. To conclude, whereas the factual background criterion allows the Court to decide that some factually interrelated complaints may be legitimately left unexamined on the basis of the assessment that the plurality of factual issues raised in them is only nominal, the criterion of the link between the legal provisions can only be employed to the one single factual issue, with regard to which more than one Article was invoked, and allows for the non-examination of that issue under certain Articles, if their provisions overlap to some significant extent with those of the Articles under which that complaint was already examined.
Accordingly, where the Court deals with a plurality of factual issues and has to establish whether that plurality is real or only nominal, the factual background criterion is an indispensable yardstick, and the shared factual background a necessary condition for resolving that some complaints are to be left unexamined; the link between the provisions of the Convention is a criterion, applicable only when it has been established that the plurality of factual situations complained of was only nominal. The legal link criterion is thus auxiliary.
III
14. The foregoing considerations as regards the legal (formal) interrelation of complaints pertains to those under Articles 3 and 8, when they are lodged by the same applicant. These two Articles have not been regarded in the Court’s case-law as overlapping, let alone as a lex generalis and a lex specialis in relation to each other. Accordingly, a complaint under Article 8 should not be seen a priori as being covered by a complaint under Article 3 (as it is, for example, with complaints under Articles 11 and 10).
15. This, however, does not completely exclude the possibility that in the particular circumstances of a specific case a complaint under Article 8 can be embraced, in whole or at least in part, by a complaint under Article 3. That is because any ill-treatment, which is proscribed by Article 3 (torture, inhuman or degrading treatment or punishment), inherently also involves some encroachment upon the person’s or his or her family’s private life, respect of which is protected by Article 8; on the other hand, an intrusion into the person’s (or even his or her family’s) privacy may assume forms which hardly could be called ill-treatment in the specific sense of Article 3. But a similar relation may be said to exist between Articles 8 and 2, 8 and 4, 8 and 5 and so on.
16. The links between the subject matter of Articles 3 and 8 therefore do not per se allow for treating these two Articles as overlapping in the proper sense of the word, let alone as lex generalis and lex specialis in relation to each other. Articles 3 and 8 remain separate legal territories – but such as are not completely isolated one from another and which, depending on the particular circumstances, can be bridged.
17. For example, in Melnik v. Ukraine, no. 72286/01, § 62, 28 March 2006, the Court acknowledged that Article 8 may extend to situations of deprivation of liberty and may be regarded as affording a protection in relation to the conditions during detention which do not attain the level of severity proscribed by Article 3. This possibility of extension owes in particular to the fact that the notion of “private life” is a broad one and is not susceptible to exhaustive definition, but covers the moral and physical integrity of the person and thus embraces multiple aspects of the person’s physical and social identity (see, as one of the most recent authorities, Denisov v. Ukraine [GC], no. 76639/11, §§ 95-96, 25 September 2018; but note also Abu Zubaydah v. Lithuania, no. 464454/11, § 664, 31 May 2018, and Al Nashiri v. Romania, no. 33234/12, § 697, 31 May 2018, which, although adopted earlier, became final subsequently to Denisov (on 8 October 2018) and in which the interpretation of the notion of “private life” as covering the moral and physical integrity of the person is hedged with the caveat “depending on the circumstances”). In Melnik the Court found violations of Articles 3 and 13, but, referring to Nuray Şen v. Turkey (no. 2), no. 25354/94, 30 March 2004 and Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004, held, already in its preliminary considerations, that it was “not appropriate to take [also the matter of the State’s alleged interference with the applicant’s right to correspond from prison] up separately at this stage”, notwithstanding that this complaint under Article 8 was not an “elaboration” of that under Article 3 (paragraph 63). No less meaningful for such a resolution was the fact that the applicant’s complaint under Article 8 was lodged after the communication to the respondent Government of his several initial and later also additional complaints under Articles 3 and 13. In these particular circumstances of that case any claim that the complaint under Article 8 was left unexamined owing specifically to its legal link with Article 3 would be shaky. In addition to that, when considering that Article 8 may extend to situations of deprivation of liberty and afford protection in relation to conditions during detention (which is a “natural” domain of Article 3), the Court referred to Raninen v. Finland, 16 December 1997, § 63, Reports of Judgments and Decisions 1997‑VIII; curiously enough, in the latter case the Court, despite the general acknowledgment of the possibility of the legal interrelatedness of the complaints under Articles 3 and 8, found no violation of Article 3 (but it found violations of Article 5 §§ 1 and 2), and then held that no separate issue arose under Article 8, because the “applicant based [this] complaint … on the same facts as that under Article 3” and had not shown that there were no “sufficient elements enabling it to find that the treatment complained of entailed such adverse effects on [the applicant’s] physical or moral integrity as to constitute an interference with [his] right to respect for private life as guaranteed by Article 8” (paragraph 64).
18. In general, the watershed between Article 3 and Article 8 complaints is fairly plain, but not completely clear-cut. Complaints under Article 3 and Article 8 can be interrelated, but, as a rule, they cannot overlap on the sole basis of the legal link between the subject matter of Article 3 and that of Article 8. Even if exceptions are not inconceivable in theory, the conclusive criterion allowing for a resolution that Article 3 and Article 8 complaints are interrelated, fully or in part, is the one already mentioned in paragraph15 above – the particular circumstances of the case. This criterion points, first and foremost, to the shared factual background of the concurring complaints. Only when the complaints under Articles 3 and 8 do share some factual background can an auxiliary criterion of legal links between the two Articles be brought in to allow for determining that the non-isolatedness of the provisions of these Articles may be sufficient for the Court to resolve that the complaint falls under such requirements of the Convention, which, in view of the particular circumstances of the case, may be seen as overlapping to some significant extent, and this absolves the Court from examining the same factual situation from the standpoint of all the Articles invoked.
IV
19. The above observation fully applies to the complaints under Article 8 concerning family visits in detention (as well as other aspects of detainees’ private and family lives), as well as those which pertain to the conditions of detention, which are the issues dealt with in the present case. In the Court’s case-law such complaints were always treated as not overlapping and were examined separately (provided that they were not inadmissible on Convention-warranted grounds). The fact that the Court had already examined the complaints under Article 3 did not prevent it from addressing those under Article 8, let alone induce it to declare that owing to that examination it was absolved from another one, properly requested by an individual, who exercised his or her right under Article 34. Below are a few examples.
20. In Peers v. Greece, no. 28524/95, ECHR 2001‑III, the Court found a violation of Article 3 on account of what it called the “objectively unacceptable conditions of the applicant’s detention” (paragraph 75), and a violation of Article 8 on account of the monitoring of the applicant’s correspondence, inter alia, with the Convention organs. Again in Poltoratskiy v. Ukraine,no. 38812/97, ECHR 2003‑V, it did not see itself as precluded from examining the applicant’s complaint as regards the restrictions on family visits in prison and finding a violation of Article 8, even though it had already found a violation of Article 3 on account of the conditions of detention (as well as other violations of Article 3); going even further, the Court also examined the complaint under Article 9 (and found a violation of that Article). In Aleksanyan v. Russia, no. 46468/06, 22 December 2008, the Court found inter alia, both a violation of Article 3 on account of the lack of proper medical assistance in the remand prison and a violation of Article 8 on account of the searches of the applicant’s premises. In Visloguzov v. Ukraine, no. 32362/02, 20 May 2010, it found violations of Article 3 on account both of the physical conditions of the applicant’s detention and of the lack of appropriate medical assistance for the applicant in detention, but also a violation of Article 8 on account of the seizure and retention by the prison officials of the letter from the Court. In István Gábor Kovács v. Hungary, no. 15707/10, 17 January 2012, the Court, having found a violation of Article 3 on account of the overcrowded conditions in which the applicant was detained, went on to examine his complaint as regards the restrictions “on the frequency and duration of family visits”, and found a violation of Article 8. In Idalov v. Russia[GC], no. 5826/03, 22 May 2012 two violations of Article 3 were found on account of the applicant’s conditions of detention, and also a violation of Article 8 on account of the opening by the officer of the correctional facility of letters from the Court to the applicant (along with a number of violations of other Articles); see also Buglov v. Ukraine, no. 28825/02, 10 July 2014.
21. In a number of cases the findings as regards the alleged violations of Article 3 and 8 were composite, so to speak. In Valašinas v. Lithuania, no. 44558/98, ECHR 2001‑VIII, the Court found a violation of Article 8 on account of the control correspondence between the applicant, who was a prisoner, and the Court, a violation of Article 3 on account a body search of the applicant which amounted to degrading treatment, but no violation of Article 3 on account of disciplinary sanctions against him. In Nazarenko v. Ukraine, no. 39483/98, 29 April 2003 and Dankevich v. Ukraine, no. 40679/98, 29 April 2003, a violation of Article 3 was found on account of the applicant’s conditions of detention and a violation of Article 8 on account of interference with the applicant’s right to respect for his correspondence as regards one period of detention, but no violation of that Article as regards another period. Even more composite were the findings in Khokhlich v. Ukraine, no. 41707/98, 29 April 2003: a violation and no violation of Article 3, and a violation and no violation of Article 8. Somewhat similar, but even more composite, were the findings in Voykin and Others v. Ukraine, no. 47889/08, 27 March 2018, where the Court dealt with an application lodged by four applicants. In Rodzevillo v. Ukraine,no. 38771/05, 14 January 2016 the Court found a violation of Article 8 (encumbering of the applicant’s parents’ ability to visit him in prison) and a violation of Article 3 (conditions of detention), but one complaint under Article 3 was rejected as manifestly ill-founded. And so on.
In none of these judgments was there even the slightest hint that any of the legal issues, irrespective of whether a violation or a no violation of the Convention was found, were to be considered as “main” (as in the present case), whereas others, accordingly, as “not main”, whatever that label may mean (cf. paragraphs 54, 68 and 73 below).
22. There were also cases in which the Court, having found a violation of Article 3 on account of the conditions of detention, then found a violation of Article 14 in conjunction with Article 8, and then set aside the examination of the complaint under Article 8 taken alone. For example, in Varnas v. Lithuania, no. 42615/06, 9 July 2013 the applicant complained of his inability to receive conjugal visits from his wife during his pre-trial detention (arguing, inter alia, that his entitlement in that respect had been more restricted than that of a convicted person serving a prison sentence); in Costel Gaciu v. Romania, no. 39633/10, § 50, 23 June 2015 the applicant complained of the refusal of his requests for conjugal visits for the sole reason that he was not a convicted prisoner (under domestic law a person being held in pre-trial detention was not entitled to conjugal visits, in contrast with a person already convicted, who had such a right). The Court considered that since it had found a breach of Article 14 of the Convention taken in conjunction with Article 8, it was unnecessary to consider whether there had been a violation of Article 8 alone. This setting aside of an Article 8 complaint, however, represented a very different approach from that used in the present case, where such a complaint has been left unexamined from any angle. Interestingly enough, the applicants in the above-mentioned cases did not invoke Articles 8 or 14 themselves: Mr Varnas relied on Article 3, and Mr Gaciu on Articles 3 and 7. It was the Court which proprio motu requalified their complaints as falling under Articles 8 and 14, based on the consideration that the essence of their grievances appeared “to be the allegedly unjustified difference in treatment as concerns conjugal visits between himself, a person in pre-trial detention, and a convicted prisoner serving a prison sentence” (see Varnas, § 92, and Costel Gaciu, § 43). From this perspective, it is not so evident that the Court should have declared at all that it set aside the complaints under Article 8 taken alone, because such complaints were not specifically identified by either the applicants or the Court itself.
23. To complete the picture, in yet other cases the Court, having already examined complaints concerning conditions of detention (and sometimes also other allegations), refrained from ruling on the merits of the complaints as regards restrictions on family visits, but not on the grounds that the examination of some “main legal questions” had allegedly absolved it from the need to examine certain other issues.
For example, in Savenkovas v. Lithuania, no. 871/02, 18 November 2008, the Court, having found a violation of Article 3 on account of the applicant’s conditions of detention and a violation of Article 8 on account of excessive control of his correspondence (and having examined also the complaints under Articles 5 and 6), further examined the admissibility of the Article 8 complaint as regards family visits, but rejected it as manifestly ill-founded, because the applicant “ha[d] not shown that he was denied any visits from his family” (paragraph 100). In Piechowicz v. Poland, no. 20071/07, 17 April 2012, the Court rejected for non-exhaustion of domestic remedies the applicant’s complaint regarding his conditions of detention, but then went on to examine the complaint under Article 8 and found a violation on account of the restrictions on the applicant’s contact with his family during his detention.
24. In the Court’s practice, the usual order of examination of cases, in which both Article 3 and Article 8 complaints were invoked, is that where Article 3 complaints are examined first. There have been exceptions though. For instance, in Varnas, discussed in paragraph 22 above, the Court first found a violation of Article 8 in conjunction with Article 14 (after having rejected as manifestly ill-founded the applicant’s complaints under Article 5 concerning the length of detention), and then undertook the Article 3 complaint regarding the allegedly deplorable prison conditions, but rejected it, as the applicant “had not raised this issue with the [domestic] administrative courts … an effective remedy for [such] complaints” (paragraph 124). Notwithstanding the difference in the order of examination, the structural pattern persisted: Article 8 complaints were perceived as separate, autonomous from those under Article 3.
25. So much for the relationship between the legal issues arising from complaints under Article 3 pertaining to the conditions of detention (including the lack of medical care) and those arising under Article 8. The Court’s structural approach has not been different at all with regard to complaints concerning the irreducibility of the applicant’s life sentence (Article 3) and the restrictions on family visits in detention (Article 8): these complaints have been examined separately. For instance, in Öcalan v. Turkey (no. 2), nos. 24069/03 and 3 others, 18 March 2014, no violation of Article 8 was found as regards the alleged restrictions on visits by and the applicant’s communication with his family members, but a violation of Article 3 was found on account of the lack of possibility that the applicant, a lifer, could be released on parole. More generally, the violations of Article 3 being found on account of the irreducibility of a life sentence were not a justification for the failure also to examine other complaints under Article 8. The latter were not set aside; see for example, Harakchiev and Tolumovv. Bulgaria, nos. 15018/11 and 61199/12, ECHR 2014 (extracts), where one of the applicants complained that his correspondence with his lawyers was being routinely opened and read by the prison authorities and that some letters had not been dispatched to his lawyers; this complaint was examined, but rejected for being “partly out of time and partly manifestly ill-founded” (paragraph 277).
26. The same structural pattern was also in evidence in cases where the applicants were not detainees, but nonetheless under the control of the authorities. For example, in V.C. v. Slovakia, no. 18968/07, ECHR 2011 (extracts), the Court found a violation of Article 3 on account of the applicant’s sterilisation, to which she did not give her informed consent, and a violation of Article 8 on account of the “absence … of safeguards giving special consideration to the reproductive health of the applicant as a Roma woman[, which] resulted in a failure … to secure to her a sufficient measure of protection enabling her to effectively enjoy her right to respect for her private and family life” (§ 154). Both these violations, in fact, consisted of the same action, yet this did not prevent the Court from assessing that action from the standpoint of both Articles 3 and 8 (although the Court held that the finding of a violation of Article 8 absolved it from also examining that action separately from the standpoint of Article 12, that is to say whether it gave rise also to a breach of the applicant’s right to marry and to found a family). A violation of both Articles 3 and 8 was found in R.R. v. Poland, no. 27617/04, ECHR 2011 (extracts); and no violation of Article 3, but a violation of Article 8 in Tysiąc v. Poland, no. 5410/03, ECHR 2007‑I.
27. In each of these cases both the complaints under Article 3 and those under Article 8 were examined, unless there were weighty grounds under the Convention for not doing so. Still, in certain cases, which appear to be rather exceptional, the Court, having found a violation of Article 3 on account of the conditions of detention, has refused to examine an Article 8 complaint concerning family visits in detention. The crucial, decisive criterion in such cases was whether the complaints shared the same factual background. In Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004‑VII, the Court found a violation of Article 3, but, having turned to the applicants’ complaints under Article 8, considered that it was not necessary to examine them separately from the standpoint of that Article, pointing out that the Article 8 complaint was “limited to the fact that it was impossible for the applicants to write freely to their families … from prison and to the difficulties they encountered in receiving the visits from their families”, but these allegations had already been “taken … into account in the context of Article 3”; the Court referred to four paragraphs of that judgment, where the same facts were assessed (paragraphs 469 and 470). In the particular circumstances of that case, this was an explanation (which some might, however find debatable), not an abrupt statement that the Article 8 complaint would be not examined, because this was simply “not necessary”. As a comparison, in a later case relating to the same international conflict, Mozer v. the Republic of Moldova and Russia, [GC], no. 11138/10, 23 February 2016, the Court, having found a violation of Article 3 on account of the inadequacy of the applicant’s conditions of detention, went on to examine his Article 8 complaint that for no apparent reason he had been unable to meet his parents for a considerable length of time, and found a violation of Article 8 because “the restriction of prison visits from his parents” did not comply with the Convention requirements (§ 196).
28. The principled approach that Article 3 and Article 8 complaints raise separate legal issues was (and hopefully still is, notwithstanding the most unfortunate deviation in the present case) entrenched in the Court’s practice to such an extent that, as the years have passed, cases involving such complaints are increasingly being dealt not by Chambers, but by Committees, which testifies to the fact that no novelties should be reasonably expected in cases of this category.
To give just a couple of recent examples, in Oskirko v. Lithuania [Committee], no. 14411/16, 25 September 2018, the Court found a violation of Article 3 on account of the applicant’s conditions of detention (which, incidentally, involved a number of privacy-related elements), and then went on to examine his complaint under Article 8 (taken alone and in conjunction with Article 14) as regards the alleged lack of long-term conjugal visits, but rejected it as incompatible ratione personae with the provisions of the Convention because, as it transpired, the applicant had never requested such visits; in Michno v. Lithuania [Committee], no. 29826/15, 4 December 2018, the Court, having found a violation of Article 3 on account of the applicant’s material conditions of detention, further examined his Article 8 complaint and found a violation of that Article because the applicant had not been allowed, while in lengthy detention on remand, to receive long-stay visits from his partner and his sister. The same pattern was typical of the cases against Ukraine. In Guk v. Ukraine [Committee], no. 16995/05, 8 December 2016, for example, a violation of Article 3 was found on account of the applicant’s material conditions of detention, and then another one of Article 8 on account of the frequency and length of the family visits during his post-conviction detention, the number of people admitted per visit, and the manner in which these visits were conducted; in a related case, Tkachev v. Ukraine [Committee], no. 11773/08, 19 April 2018, the Court, referring to its Guk judgment, found a violation of Article 3 on the “same account” as in that case, and held that it was not necessary to address the applicant’s other allegations concerning his conditions of detention (paragraphs 32 and 33), but then addressed his complaint Article 8 complaint, which it rejected as manifestly ill-founded.
29. In view of such practice, Article 8 complaints concerning family visits in detention (or, where applicable, conjugal visits – in the light of the proviso that the Court has not so far interpreted the Convention as requiring provision to be made for such visits – for perhaps the most recent confirmation of this decidedly ancient thesis from the 1990s, Varnas and Costel Gaciu, both discussed in paragraph 22 above) or conditions of detention can in no way be seen, in any legally meaningful sense, and treated as being covered by those under Article 3 from the point of view of the link between those two Articles.
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30. So much (some would say too much) for the pure theory and the Court’s case-law regarding concurring complaints under Articles 3 and 8. I turn now to the applicant’s complaints in the instant case.
31. As a reminder, the complaint under Article 8 concerned the alleged infringement of the applicant’s right to family visits in detention, whereas the complaints under Article 3 related to the applicant’s conditions of detention (the lack of adequate medical care) and the irreducibility of his life sentence.
The Article 8 complaint thus stood aside from and was not interrelated with the Article 3 complaints as regards their factual background. Their disparity was pronounced. They did not overlap by one iota.
The one and only factual circumstance common to them was that the applicant was a detainee. There were no other discernible qualities which would ally them, and the quality of being a detainee was not determinative, however far-reaching it might be for the person concerned. If not, the complaints lodged by the same detainee should always, in all cases be treated as (factually) interrelated, however separate they may be in life, let alone law.
32. Family (or conjugal) visits are one thing; conditions of detention and irreducibility of life sentence another. It is perfectly conceivable that family (conjugal) visits are denied to life prisoners held in decent conditions and, conversely, that life prisoners held in conditions falling short of the requirements of Article 3 enjoy family (conjugal) visits whenever they request them. Until now the Court, in its case-law, has respected this basic distinction: for all I know, perhaps it has never found a violation of Article 3 solely on account of restrictions on family (or conjugal) visits in prison, and (even accepting that Article 8 may extend to situations of deprivation of liberty – see paragraph 17 above), also has never found a violation of Article 8 on the sole basis that the conditions of detention were unsatisfactory, including the inadequacy of medical care.
33. Owing to the fact that the applicant’s complaints under Articles 3 and 8 did not share any factual background, there is no need to test them under the auxiliary criterion, that is to say, from the perspective of the legal links between those Articles. There are no particular circumstances which would warrant invoking such test, let alone allowing his Article 8 complaint to be left unexamined.
34. Let us imagine for a moment that the applicant lodged not one but two separate applications regarding the same alleged violations: one under Article 3 (regarding the conditions of detention and the irreducibility of life sentence) and the second under Article 8 (regarding family visits); and that the Court (for whatever reason) did not join them, but dealt with them consecutively. Could the Court then hold in the second case (regarding family visits) that, as the “main” legal questions (under Article 3) have been examined in the first case, the complaint under Article 8 does not deserve a separate examination? I do not think so. That would be too unconvincing and unjustifiable. Too nonchalant and haughty.
35. Consequently, the complaint under Article 8 merited a separate examination, because it raised a separate legal issue. But not only that. It could not be legitimately set aside, because this was contrary to the well‑established Court’s case-law, where, as it was shown, Article 3 and Article 8 complaints were always examined each on its own merits (provided that they were not inadmissible on Convention-warranted grounds).
36. At least this was so until the advent of the Câmpeanu formula. Or rather until its indiscriminate application as a template in the cases where it does not fit. As in the present case.
VI
37. If using the Câmpeanu formula in the instant case in order to set aside the applicant’s Article 8 complaint was an attempt to create the impression that that complaint was somehow (factually or at least legally) interrelated with his complaints under Article 3, such an impression would be misleading. Had these complaints indeed been interrelated, it would have been unnecessary to invoke the Câmpeanu formula. Quite unnecessary. For, when the Court has had to resolve that one of the interrelated complaints could be left unexamined, it has actually employed other devices, depending on whether the interrelatedness of the concurring complaints was determined by the fact that they shared at least some factual background or whether it proceeded from the overlapping of the provisions of the Convention invoked.
But it is not my intention to provide in this narrative anything resembling an exhaustive list of devices, already present in the Court’s arsenal; a couple of typical examples, each pertaining to one of the two types of the interrelatedness of the concurring complaints, should suffice to demonstrate that such tools have been available and widely used.
38. The device most notably (but not exclusively) used in tackling factually interrelated complaints was the template consideration that the complaints left unexamined did not raise issues separate from those which had already been examined under different Articles.
For example, in Jalloh v. Germany [GC], no. 54810/00, ECHR 2006‑IX, the Court found that the applicant, on whom the authorities had forcibly administered medication, “ha[d] … been subjected to inhuman and degrading treatment contrary to Article 3” (and found a violation of that Article), and then held that the applicant’s complaint under Article 8, which concerned the same fact, did not give rise to any separate issue (paragraphs 82, 83 and 86).
Why then, in the present case, use some new tool, namely the Câmpeanu formula, if there was a tried and tested one available, which had, so to speak, been certified through decades of the Court’s practice? Was it only for the reason that the new formula was fashionable? But why has it become fashionable? And, most importantly, where might the fact of following this (in my opinion, very dubious) fashion take the Court’s case-law?
39. Of course, the Court’s case-law, including its language, is constantly evolving. It would be gratuitous to reckon on the formula used in Jalloh (and many cases involving Articles 3 and 8 decided before Jalloh, and an uncountable number of cases involving various other Articles) remaining unmodified forever (notwithstanding the fact that it is used verbatim time and again in so many judgments). Also, Jalloh precedes Centre for Legal Resources on behalf of Valentin Câmpeanu by eight years. One perhaps could presume that in 2006, the year of Jalloh, the Câmpeanu formula was not invented yet, or at least was not seen as helpful for the purposes of the cases, which involved complaints under both Articles 3 and 8. Not really; as mentioned, that formula was used, even though sporadically, even before Centre for Legal Resources on behalf of Valentin Câmpeanu (for further details see paragraphs 41 and 50 below). So, better late than never? With that case a new era had dawned: from now on that formula should allow for the Court, if it so wishes, to leave the complaints lodged under Article 8 (but also other Articles) unexamined, substantiating their setting aside by means of a one-sentence template.
40. In Centre for Legal Resources on behalf of Valentin Câmpeanu the Court, having found violations of Article 2 (taken alone and in conjunction with Article 13), stated that “it ha[d] examined the main legal questions raised in the present application and that there [was] no need to give a separate ruling on the remaining complaints”, that is those under Articles 5, 8 and 14 (paragraph 156). As it transpires, in that case not only Article 8 was invoked, though it was left unexamined, but Article 3 was also relied on (taken alone and in conjunction with Article 13). However, as regards the complaint under Article 3, the Court stated that it did not give rise to an issue, which would have been separate from those raised in other complaints and already examined by the Court, that is to say those under Article 2 (taken alone and in conjunction with Article 13), which the Court found to have been violated (paragraphs 144, 147, 153 and 154). This setting aside of the complaint under Article 3 was very different from that of the Article 8 complaint in the same judgment, virtually on the same page – so different that it merits to be dealt with more closely (see paragraphs 48-50 below).
41. But let us first take a look at whether the Câmpeanu formula (which was not, of course, so called in the Court’s argot at the time) was used in cases involving both Articles 3 and 8 prior to its consolidation in Centre for Legal Resources on behalf of Valentin Câmpeanu. As already mentioned more than once, this formula was not first introduced in the case which gave the template its name. Even before it the Court’s case-law sometimes resorted to the explanation that the examination of the “main legal questions” absolved the Court from the need to examine certain other questions. Several authorities, in which that idea had materialised, were referred to in a motley list of judgments set out in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu, in particular: Kamil Uzun v. Turkey, no. 37410, 10 May 2007; Women On Waves and Others v. Portugal, no. 31276/05, 3 February 2009; Velcea and Mazăre v. Romania, no. 64301/01, 1 December 2009; Villa v. Italy, no. 19675/060, 20 April 2010; and The Argeş College of Legal Advisers v. Romania, no. 2162/05, 8 March 2011. These were Chamber cases, all pre-Stanev (see paragraph 42 below); but a couple of post-Stanev cases were also cited, namely Ahmet Yıldırım v. Turkey, no. 3111/10, ECHR 2012 and Mehmet Hatip Dicle v. Turkey, no. 9858/04, 15 October 2013. However, the “main legal questions” formula was also used by the Grand Chamber in Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, ECHR 2009, which also was included in that list (and distinguished from the Chamber cases by a “see also” remark).
42. The formula in question was thus a part of the Court’s arsenal as long ago as 2012, the year of Stanev v. Bulgaria [GC], no. 36760/06, ECHR 2012, which involved concurring complaints under Articles 3 and 8 (and some others). Nevertheless, it was not used in Stanev. In order to substantiate the setting aside of Article 8 (and some other) complaints, the Court used the above-discussed tried-and-tested device – the “no separate issue” formula, which it apparently considered to be more appropriate than the “main legal questions” formula, which would amount to a blank declaration that it would not consider certain complaints because there was simply no need. And rightly so. In that case a violation of Article 3 was found on the grounds that the living conditions in a social care home, to which the applicant was exposed, amounted to degrading treatment. The Court, however, held that neither those conditions nor the restrictive guardianship regime, which had effectively barred the applicant from taking part in community life and developing relations with persons of his choosing, raised an issue under Article 8 which would have been separate from that already examined under Article 3, as well as Articles 5, 6 and 13 (paragraphs 212, 213 and 252). This was so because, in the Court’s assessment, the complaints under Articles 3 and 8 were interrelated by their factual background.
43. It may be said that neither Jalloh nor Stanev directly concerned the lack of adequate medical treatment. Here is another example – this time of a case where that issue was at the heart of the dispute: D. v. the United Kingdom (no. 30240/96, 2 May 1997). The applicant was an alien who had served his prison sentence and was subject to expulsion from the United Kingdom, because he had no entitlement to remain in her territory. While in prison, he had benefited from medical, social or other forms of assistance provided by that State. The Court found that the removal of the applicant (to St Kitts) would violate Article 3, but then held that Article 8 complaints (which obviously pertained to the same factual situation) raised no separate issue (paragraphs 54 and 64).
44. In Jalloh or Stanev the applicants’ complaints under Articles 3 and 8 shared, at least in part, the same factual background, but the “main legal questions” formula was not invoked. It was not considered to be universal. The “no separate issue” formula sufficed to justify leaving the complaints under Article 8 unexamined.
For its approbation as a template designed and ready for a broader application, the “main legal questions” formula had to wait for Centre for Legal Resources on behalf of Valentin Câmpeanu.
45. So much for one of the devices used by the Court in cases where the complaints under Articles 3 and 8 shared some factual background. Where there was no commonality of factual context, the Court always had at its disposal another device, which would allow for leaving one or the other unexamined. Article 8 complaints, which have originated from other facts than those complained of under Article 3, were rejected not as raising no separate issue, but as raising no issue at all. There is abundant case-law to that effect. A typical example would be Iustin Robertino Micu v. Romania, no. 41040/11, 13 January 2015. The applicant was suffering from an illness. While being under the control of the police, whom he had informed of his condition, he was nevertheless refused medical treatment (as well as food and drink). On that account the Court found a violation of Article 3 (it also found violations of Articles 5 § 1 and 13). The applicant’s other complaints, including one under Article 8, were rejected as manifestly ill-founded, using the habitual formula that these complaints “do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols”.
46. As I already made clear, I do not intend to provide a comprehensive analysis (or a list) of tools which the Court can (and could even in 2014, the year of Centre for Legal Resources on behalf of Valentin Câmpeanu) employ to justify the setting aside of an Article 8 complaint, once it had examined (and had found a violation of) an Article 3 complaint. The gist of the above-provided examples (which could be complemented by many others) is that even before the gradual introduction and consolidation of the “main legal questions” formula a set of devices was available which enabled the Court, after having found a violation of Article 3, to legitimately set aside Article 8 complaints. The choice of the appropriate tool was basically factual background-dependent. If the complaints shared the same factual background, the one under Article 8 could be considered as raising no separate issue. If they were unrelated because they had originated from different factual settings, the Article 8 complaint was left unexamined when it was inadmissible on one of the Convention-warranted grounds, for example, where it was manifestly ill-founded.
47. Such a simple basic scheme: in each instance the setting aside of an Article 8 complaint had a proper legal basis. No room was left for arbitrary setting aside of Article 8 complaints. In other words, no room for the rationing of justice (which, in its own right, would be a species of denial of justice), where the applicant would be entitled to a certain (unspecified) quota of alleged violations of the Convention to be examined and found, and if that quota has been reached, his or her other complaints, whatever their subjective and objective importance, would be considered as meriting no separate examination. Which in fact means no examination at all.
48. In this respect Centre for Legal Resources on behalf of Valentin Câmpeanu was a novelty. And a rather intriguing one, because in that case not one but two tools were used for tackling similar situations: the tried-and-tested Jalloh formula and the (now consolidated) Câmpeanuformula. I shall deal with these two situations consecutively.
49. The Court held that no separate issue arose under the Article 3 complaint taken alone and in conjunction with Article 13, in view of its finding of a violation of Article 2 in both its substantive and procedural limbs. The Court’s reasoning on this issue merits a closer look. It is limited to a reference to two judgments, namely Nikolova and Velichkova v. Bulgaria, no. 7888/03, 20 December 2007, andTimus and Tarusv. the Republic of Moldova, no. 70077/11, 15 October 2013. Nikolova and Velichkova states: “[h]aving regard to the grounds on which [the Court] has found a dual violation of Article 2 …, [it] considers that no separate issue arises under Article 3” (paragraph 78). But, curiously enough, paragraph 58 of Timus and Tarus, referred to in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu, does not contain the formula “no separate issue”: it states that the Court, in view of its findings (that is, the finding of a violation of Article 2 under both its substantive and procedural limbs), “does not consider it necessary to also examine the case under Article 3”. Perhaps this should explain the caveat “mutatis mutandis”, contained in the reference (although “mutatis mutandis” precedes the reference to Nikolova and Velichkova, not that to Timus and Tarus). Notwithstanding that caveat (or maybe even reinforced by it), the references to Nikolova and Velichkova and Timus and Tarus, as well as the “no separate issue” conclusion in Centre for Legal Resources on behalf of Valentin Câmpeanu, signify that even in the latter case the formula “no separate issue” was understood as synonymous to the formula “not necessary to examine”. They both pointed to the fact that (i) the questions raised in the applicant’s complaint under Article 3, taken alone or in conjunction with Article 13, but set aside by the Court, had indeed already been examined by it, fully or in part, from the standpoint of Article 2; (ii) the consideration that the complaints already examined under Article 2 were in essence the same as those lodged under Article 3 owed to the fact that they shared, at least in part, the same factual background; (iii) the separate examination of the same set of facts from one more standpoint therefore was redundant.
50. In contrast to the setting aside of the applicant’s complaint under Article 3, based on the “no separate issue” formula, the Court embarked on the “main legal questions” enterprise in order to justify refraining from the separate examination of the complaint under Article 8 alongside those under Articles 5 and 14. This explanation was also limited to nothing more than references to the Court’s earlier judgments (already listed in paragraph 41 above. A closer look at the cases referred to shows their wide diversity.
In Kamil Uzun, for instance, the Court set aside the complaints under Articles 6, 8, 13 and 14, and Article 1 of Protocol no. 1 on the grounds that it had examined the complaint under Article 3 (and found a violation of that Article), which, as it appeared, raised the “main legal question”. In Women On Waves and Others it found a violation of Article 10, which it held to be the “main legal question”; once that question had been examined, it was not necessary to examine the complaints under Articles 2 and 6, and Article 2 of Protocol no. 4. In Velcea and Mazăre the Court found violations of Articles 2 and 8; relying on the finding of violations of Article 2 (but not of Article 8), it left unexamined the complaint under Article 5. In Villa v. Italy it set aside the complaint under Article 6 § 1, after having found a violation of Article 2 of Protocol no. 4 (and having found that Article 5 § 1, also invoked by the applicant, was not applicable to his situation), which, in its opinion, raised the “main legal question”. In The Argeş College of Legal Advisers the Court left unassessed the complaint under Article 6 § 1, in view of the fact that it found a violation of Article 11. In Ahmet Yıldırım as many as four complaints, namely the ones under Articles 6, 7 and 13 and Article 2 of Protocol no. 1, were left unexamined in view of the finding of a violation of Article 10. In Mehmet Hatip Dicle the Court found a violation of Article 10, which, in its opinion, raised the “main legal question”, and then declared that it would not address the complaints under Articles 7, 14 and 18. Finally, in Varnava and Others the Grand Chamber, having found continuing violations of Articles 2, 3 and 5 (as regards the latter, not on all counts, as invoked by the applicants), resolved not to examine the complaints under Articles 4, 6, 8, 10, 12, 13 and 14.
As it transpires, most of these cases did not at all involve, as in Centre for Legal Resources on behalf of Valentin Câmpeanu, the relationship between Article 2 (taken alone or in conjunction with Article 13), as raising the “main legal question”, and Articles 5, 8 and 14 as such, which allegedly could be left unexamined in view of the Court’s findings as regards Article 2. This issue was definitely not involved in Kamil Uzun, where the “main legal question” was the one raised under Article 3; not in Women On Waves and Others, Ahmet Yıldırım, or Mehmet Hatip Dicle, where it was raised under Article 10; and not in The Argeş College of Legal Advisers (Article 11); and not in Villa v. Italy (Article 2 of Protocol no. 4). In most of the cases referred to in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu, that is to say, in all of them, except Velcea and Mazăre and Varnava and Others, the complaints under Article 2 were not the ones which the Court assessed as raising the “main legal questions”. In fact, in Kamil Uzun, Villa, The Argeş College of Legal Advisers, Ahmet Yıldırım and Mehmet Hatip Dicle Article 2 was not at all invoked by the applicants. In Women on Waves and Others the complaint under Article 2 was set aside by the Court on the grounds that the “main legal question” was the one raised in the complaint under Article 10. As already mentioned, Article 2 was involved only in two of the cited cases: Velcea and Mazăre and Varnava and Others, but even in these two cases the differences with Centre for Legal Resources on behalf of Valentin Câmpeanu were outstanding. In Velcea and Mazăre the legal question, which the Court assessed as “main”, was indeed the one examined under Article 2, but the legal question which was left unexamined concerned only Article 5, and not Articles 8 or 14. The difference is even more striking with Varnava and Others, where the legal issue raised in the complaint under Article 2 also was among those assessed by the Court as one of the “main” ones, but the complaint under Article 3 was also examined as separate from that under Article 2, that is to say, the finding of a violation of Article 2 was not seen as sufficient for resolving that the complaint under Article 3 (or, for that matter, Article 5) could be set aside as not raising a legal question which was in any sense less than “main” or as raising “no separate issue” (cf. paragraph 49 above). Without going into further detail, it is evident that the list of judgments in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu obscures rather than clarifies the law proceeding from the precedents referred to and ostensibly relied upon.
It also should be noted that the paragraphs of the judgments referred to in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu, in their turn, contain references to earlier judgments, in which the “main legal questions” formula was used. Irrespective of the issues examined or left unexamined in these cases, they all, save Varnava and Others alone, refer to Kamil Uzun. Perhaps this could explain why, prior to being consolidated in Centre for Legal Resources on behalf of Valentin Câmpeanu, the “main legal questions” formula was called, in the Court’s argot “Uzun formula”. Only in Velcea and Mazăre and Ahmet Yıldırım there are references to judgments other than Kamil Uzun, and these not always involved the same Articles as the cases in which those judgments were relied upon. What is more, these judgments, in their turn, refer to Kamil Uzun and sometimes to other cases, which, again in their turn, most often referred to Kamil Uzun, but sometimes introduced the “main legal questions” formula without any reference to previous judgments. A yet deeper investigation would show that in some instances the use of the “main legal questions” formula was substantiated with the reference to judgments, where that formula was not used. Perhaps the earliest judgment (or at least one of the earliest) referred to at the far end of this multi-storey passage from judgment to judgment (sometimes with a change of wording), which resulted in what has now become the Câmpeanu formula, was Sadak and Others v. Turkey (no. 1), nos. 29900/96 and 3 others, ECHR 2001‑VIII, where the Court left unexamined the complaints under Articles 10, 11 and 14 (as well as some of the complaints under Article 6), on the grounds that it had already examined most of the complaints under Article 6; there the Court agreed with the European Commission of Human Rights, which had held before, that the “main legal questions” were raised in the latter.
51. Be that as it may, the hotchpotch of references provided in paragraph 156 of Centre for Legal Resources on behalf of Valentin Câmpeanu hardly could be seen as conducive to treating the formula in question as universal, that is to say, applicable to the most diverse situations. And initially it was not – as transpires from Stanev. For some time.
52. But then the whole thing turned out otherwise. A brief and simple search in the Court’s case-law database reveals that an overwhelming majority of Chamber and Committee judgments where the phrase “main legal questions” is used, are from the post-Câmpeanuperiod. Since 2014, that is to say since the consolidation of the “main legal questions” formula in Centre for Legal Resources on behalf of Valentin Câmpeanu, it has become almost a matter of course to resort to the “no need to examine” formula in an ever-increasing number of cases, where the Court (“the biggest legal factory in the world”) considers that it has already examined some “main” legal questions, as in the present case.
And indeed: as that formula was coined by the Grand Chamber based on references to the cases, which differed very much with regard to the legal questions, why then could it not be used as a template in setting aside complaints in any other types of cases, where the Court for some reason did not wish to engage in a full-scale examination of otherwise admissible complaints? The legitimacy of the explosion of its indiscriminate use would not seem to be a matter of concern.
53. Still, the question persists: why on earth did the Court, in Centre for Legal Resources on behalf of Valentin Câmpeanu, base the setting aside the complaints under Articles 5, 8 and 14 on the “main legal questions” clause, rather than using any of the two habitual formulas (which would appear to be synonymic)?
54. Two answers are possible. The first would be that the Câmpeanu formula was but one more synonymous wording of the Court’s earlier‑developed devices “no separate issue” and “not necessary to examine”. That would be understandable, given that the legal questions already examined and those set aside were interrelated by their shared factual background. The notion of the “main legal questions”, which is central to the formula in question, unequivocally presupposes that the remaining legal questions are in one way or another subsumed by the legal questions already examined. For a legal question can indisputably only be “main” to something, which is comparable to it, and that something cannot be anything other than a legal question itself, which, in its turn, is “secondary” (“supplementary”, “auxiliary” etc.); and it can be “secondary” only by virtue of the fact that it is “derived” from, or subsumed (fully or partly) by, the “main” question. Once it is established that the concurring complaints share the factual background, they (or rather, in fact, the one and the same complaint) still can be assessed from different legal angles, but the overlapping of the provisions of the Convention may render the new separate examination unnecessary.
55. The second answer would be that the Câmpeanu formula was used to tackle a different situation, namely that where there was no commonality of factual background. In that case it should be, in essence, a mere paraphrase of the formulas used when the complaints left unexamined are unrelated to those examined, and a reference is made to the provision of the Convention, which allows (or even requires) them to be declared inadmissible (such as, for example, the “manifestly ill-founded” clause of Article 35 § 3).
56. Why then was the “main legal questions” formula (which was only sporadically used in pre-Câmpeanu case-law) reinforced in Centre for Legal Resources on behalf of Valentin Câmpeanuas a distinct construct of the Court’s legalese?
57. Trying to answer that rather general question in this (already quite lengthy) opinion would go far beyond its purpose, which is more moderate. The underlying purpose and content, and the limits, of the legitimate employment of the Câmpeanu formula still wait to be revealed.
My point is that the formula in question is not at all universal and, in particular, that it was not applicable in the present case. Its non-universality implies that caution should be exercised each and every time the Court is tempted to employ it as a tool for justifying the narrowing of the scope of the examination of an applicant’s grievances.
58. Be that as it may, those who maintain that the Court does not intend to engage itself in resolving the issues arbitrarily would like to believe (or at least hope) that the Câmpeanu formula, as a relatively new device, was not meant to be just an ingenious camouflage of a mere fiat – the Court’s naked will to refrain from examining certain questions, whatever their subjective importance to the applicants or, more broadly, their objective importance to the legal system of the respondent State (and, by extension, of other member States). In other words, this formula had to be intended either (i) to supplement the already existing set of habitual tools used to substantiate the setting aside of certain complaints (not only those under Article 8), or (ii) to provide a new synonymic wording for one of the already existing tools. Again, tertium non datur. That would be perhaps the most benevolent interpretation of all those possible.
59. But if there is in fact a tertium, that is to say, if neither the first nor the second option holds, then the legitimacy of the Câmpeanu formula can hardly be sustained. In the unfortunate event of tertium, what this template is about is a camouflage of a fiat. An escapist smokescreen (whatever the reason for the escapism).
And, one must acknowledge, an extremely convenient one. For when complaints are set aside on the grounds that they are subsumed by other complaints already examined in the same case, or when they are declared inadmissible on Convention-warranted grounds, some reasoning, however concise, is still there (or, if the reasoning is not explicit, the relevant legitimate reasons can be inferred from the whole text of the judgment, including references to the Court’s case-law, evenif not accompanied by broader explanations or, in the alternative, deduced from the whole body of the Court’s case-law pertaining to similar matters). But a non-transparent and artless reference to the “main legal questions” already examined by the Court may leave the readership guessing: why certain questions are “main”, and others are not “main”? If the formula in question is not a stalking-horse for escaping difficult or uncomfortable questions, and its application is not a rationing of justice, then what are they? The very fact that such questions naturally arise is in itself a matter of concern.
60. “Please don’t let me be misunderstood”, as a popular song would hav it. The problem of the excessive use of the Câmpeanu filter originated not in the instant case and is not limited to it. The finding dealt with in hereis just one instance of a broader, creeping pattern of circumvention of the fundamental requirement of Article 45 that “[r]easons shall be given for judgments, as well as for decisions declaring applications admissible or inadmissible”. This increasingly popular (not in the best sense of this word) pattern is gaining an ever-greater currency in the Court’s post-Câmpeanu judgments.
Someday their name may be Legion.
VII
61. Whatever may be the merits of the umbrella formula in question outside the context of the present dispute (I hope that there were some, and we cannot rule out that there may be some), itwas (as already mentioned) not applicable in the present case. Regrettably, in this case, together with the applicant’s complaint under Article 8, the caution which the Court should exercise when it is tempted to use the Câmpeanu formula (see paragraph 57 above), has also been set aside.
62. Every court, not excluding the Strasbourg Court, relies on its earlier case-law in subsequent cases, including verbatim self-quotations. Self‑quoting is desirable, necessary and often unavoidable. It is, in its own right, one of the prerequisites for the continuity of the respective court’s jurisprudence. And it often involves the use of templates. But mechanical, uncritical, indiscriminate self-quoting, especially the copy-pasting of templates, may be the opposite of what is desirable and necessary. It should be avoided.
63. The Câmpeanu formula, as a structural device (assuming that it was rightly employed in Centre for Legal Resources on behalf of Valentin Câmpeanu), may not suit each and every other case. It certainly does not fit where there is an essential difference in the factual background behind two or more complaints put together in the same application by the same applicant. As the majority chose to abandon the complaint under Article 8 (which they did), this choice had to be somehow reasoned, even if briefly, as, for example, in the pre-Câmpeanu case of Ilaşcu and Others (see paragraph 27 above). A mere copy-paste of a template is a poor substitute for reasoning. Or rather no substitute at all.
64. “Reasons”, of which Article 45 authoritatively speaks (see paragraph 60 above), are not just any “reasons”. Article 45 is not (only) about the structural technicalities of the Court’s judgments and decisions. Its raison d’être lies in precluding, to the extent possible, the denial of justice by the Court, both that which may stem from a benevolent error (for who does not err?) and that which may result from excessive caution or outright whim. “Reasons shall be given” means that reasons must be transparent, they shall be stated explicitly or at least be discernible from the whole text of the judgment or decision (for example, by means of relevant references, as in Ilaşcu and Others (see paragraph 27 above), or – which, although it would be not the “neatest” option from the perspective of the applicants, also cannot be excluded – from the larger body of the Court’s case-law. Article 45 does not tolerate reasons being substituted by their simulacra. A simulacrum of reasoning may (rightly or wrongly, but nevertheless) very naturally be suspected of camouflaging some undisclosed motives (which, in their turn, may be legitimate or not).
65. However, what one reads in paragraph 189 of the present judgment, in which the Câmpeanu formula was copy-pasted, is a simulacrum, a surrogate of reasoning. For what does it mean in this particular case: the notion of “main legal questions”? By which mystical virtue were certain questions considered to be “main”, whereas other questions, not less “legal”, were not? And “main” – in what sense? “Main” – to whom? Definitely not to the applicant, for whom the conditions of detention, which hopefully will be improved sooner or later, and the possibility to be ever released from prison, which hopefully someday will be guaranteed under the relevant domestic legislative instruments, are an issue different from the visits by his family members. Even if (hypothetically) the legislation pursuant to which the applicant was not allowed family visits may have improved by now, this would not warrant the dismissal of his Article 8 complaint as something irrelevant at the material time.
Similar questions pertain to the “no need to give a separate ruling” clause. “No need” – to whom? To the applicant? Few would be surprised if he disagrees with that. Then – to the Court? As if the Court works for itself.
66. Let it be noted en passant that, as a rule, the number of violations of the Convention found in a case also has a bearing on the amount of just satisfaction awarded to the applicant under Article 41. This is, I repeat, only by the way.
67. By abruptly labelling the legal questions already examined in the instant case as the “main” ones, the majority effectively categorised, in an a contrario manner, the questions arising from the complaint under Article 8 as “not main” (most certainly they had not meant “not legal”).
68. This raises another issue – on the surface a linguistic one, but with legal and doctrinal implications.
Words have meanings (at least those used in courts’ rulings should have them), even those which are an attempt at a camouflage. Antonyms of the word “main” include “auxiliary”, “inessential”, “inferior”, “insignificant”, “minor”, “nonessential”, “secondary”, “subordinate”, “trivial”, “unimportant”, “unnecessary”, and several others, all belonging to the tribe of second-rate members of the words kingdom. None of these antonyms can be convincingly – in either the factual or the legal sense – applied to the present applicant’s complaint under Article 8. Equating that complaint to something “minor”, “trivial”, “insignificant” or “nonessential”, etc., would be unsustainable, to put it mildly. The same goes for “auxiliary” and the like.
VIII
69. The Court’s case-law, in particular some of the judgments adopted in the cases against Ukraine, might perhaps allow us to predict with sufficient (albeit not absolute) accuracy, the outcome of the examination of the applicant’s complaint under Article 8, had the majority not resorted to the “no need to examine” gimmick. For instance, in Trosin v. Ukraine, no. 39758/05, 23 February 2012, a violation of Article 8 was found as regards the restrictions on family visits during the applicant’s post‑conviction detention. I would not go so far as to suggest that there was (let alone still is) a structural (systemic) problem in Ukraine as regards family visits in prison, but the domestic legal framework as described and assessed in Trosin (although it had undergone some amendments, mentioned in, inter alia, paragraph 99 of the present judgment), does not seem, at least at a first glance, to be on an extremely friendly footing with the general principles pertaining to prisoners’ visiting rights and the Court’s approach in the relevant cases, as summarised in, say, Khoroshenko v. Russia [GC], no. 41418/04, ECHR 2015 (or at least was not on such a footing at the material time). By holding that the present applicant’s complaint was undeserving of separate examination, the majority missed the opportunity to clarify the issue.
70. Maybe another opportunity will be seized in the foreseeable future? Who knows. An analogous complaint, Bigun v. Ukraine, no. 30315/10, was communicated in 2016 to the same respondent Government. The case is now pending before the Court. Two applicants, a married couple, one of whom is a lifer, complained of their inability to have long-term visits in prison. They complained under Articles 8, 12 and 13, but on the factual side the gist of their grievances, basically, was the same: the rejection of their requests to be allowed long-term visits. Most notably, the applicant in detention does not complain of the conditions of detention or the irreducibility of his life sentence. The legal question raised in the Bigun couple’s complaint cannot be legitimately dismissed as something “minor”, “trivial”, “insignificant” or “nonessential” etc., let alone “subordinate” or “auxiliary”, because – contrary to the Article 8 complaint in the instant case – it stands in proud isolation and has no “main” counterpart. Furthermore, in Trosin the solitary Article 8 complaint was not deemed undeserving of examination.
71. However, Mr Bigun must properly understand the discouraging message, which the present judgment has broadcasted – not least – to him. If he, before the judgment in his case regarding family visits is adopted, endeavours to apply to the Court anew, complaining this time of the irreducibility of his life sentence under Article 3 (which would be not an unreasonable thing to do, once the present judgment becomes final), he risks falling foul of the quite dubious precedential force of that part of the instant judgment, where the applicant’s complaint under Article 8 was left unexamined. To wit, his (hypothetical) new application may be (as is the usual thing to do) joined to the one already communicated under Article 8; then, if a violation of Article 3 is found (many would say that this might be a predictable outcome in the post-Vinter era), and given that the “main legal question”, namely the one relating to Article 3, has already been examined, his (and his wife’s) complaint under Article 8 regarding family visits may be assessed by the Court as undeserving of examination, that is to say, something “minor”, “trivial”, “insignificant”, “nonessential”, you name it. Think twice before applying anew. Beware of the precedent.
The same would pertain also to (hopefully only hypothetical) complaints as regards the conditions of that applicant’s detention (which presumably are not unsatisfactory prima facie, if I have drawn the correct conclusion from the communication report), if they deteriorate in future.
72. The risk is there that the Câmpeanu formula, if indiscriminately, nay enthusiastically applied (I again refer to the Court’s case-law database – see paragraph 47 above), may serve as a tool for levelling those applications, which are loaded with a greater number of allegations, with those which contain less of them. This would look like a quota system, would it not?
73. If any categorisation of the applications lodged with the Court to those “main” and those “secondary”, “minor” etc. were needed at all (apart from where the word “main” is a mere synonym of “absorbing”, “subordinating”, “subsuming” etc. – see paragraphs 11 and 68 above), I propose a simple, even banal test. Let us label as “main” those legal questions the examination of which by the Court also tackled a specific human rights problem. It would be desirable that the Court’s examination of that question be instrumental to the overall promotion of human rights by triggering the solution of the respective problem (if indeed there is a problem, as alleged) – as a minimum, for the person(s) concerned, but, as the case may be, also at the national level or even Europe-wide. And let us label as “secondary”, “minor” etc. those legal questions the setting aside of which amounts, in plain language, to the problem being effectively ignored by the Court.
74. How would the present judgment look like under such test?
Not terribly inspiring. The score is two to one:
Problem A – Conditions of detention (lack of medical care) Tackled
Problem B – Irreducibility of life sentence Tackled
Problem C – Family visits in detention Ignored
In football two to one would be a win. But that win would be tarnished if the winning team had scored an own goal.
Continuing on this analogy, I regret to say that in the instant case the Câmpeanu formula served as a means of disqualifying the goalie.
75. I shall not speculate any further on the future of cases in which the Court may wish to take the same stance as in this case and divide unrelated applications into “main” ones and “not main” ones. If, however, the Bigun couple’s future solitary Article 8 application (like that of Mr Trosin) is examined on the merits (which, I believe, would be fair, provided that the complaint is not inadmissible on Convention-warranted grounds), one can reasonably and legitimately ask why those applicants who complain of a plurality of infringements of their unrelated rights are discriminated against as compared with those who allege only one infringement? This question is even more acute in cases like the present one, where the applicant appears to have indeed suffered violations of at least some of those rights which the Court has not refrained from looking into.
For if this is not discrimination, then, for the Convention’s sake, what is it?
Post scriptum. Only after this opinion was written and submitted for annexation to the judgment did I become aware of a rather recent judgment by the Chamber of the Third Section – in Popov and Others v. Russia (no. 44560/11, 27 November 2018). Three months after the delivery of that judgment, it is not yet final, as a request for the case’s referral to the Grand Chamber is pending before the competent panel. Whatever may be the outcome of that case, I have a pressing moral obligation to refer to and commend the most elegant partly dissenting opinion of my distinguished colleague Pere Pastor Vilanova, whose arguments I find to be all-resistant. His approach is very much like mine – or, to put it more correctly, mine is very much like his. It appears that I follow in the footsteps of at least one like-minded judge. On this occasion I should not fail to mention also Judge Bošnjak, who in the instant case has dissented on the same point as myself. If more judges share our approach, this should give us hope that the Câmpeanu formula may not stay there forever. Perhaps all courts of the world (not excluding this Court, for – I repeat myself – who does not err?) have resorted, at times, to practices which later proved to be legally unsustainable. It is in the interests of capital-J Justice that they (again, not excluding this Court) acknowledge their stumbles sooner rather than later – and abandon them.
PARTLY DISSENTINGOPINION OF JUDGE BOŠNJAK
1. Unfortunately I cannot agree with the majority that it is unnecessary to examine the applicant’s complaint under Article 8 of the Convention. In this respect, I share all the crucial arguments advanced by Judge Kūris in his separate opinion. Above all, I believe that the issue of restrictions on spousal visits is factually and legally separate from the questions of (a) adequacy of medical care in prison and of (b) irreducibility of life sentence. Furthermore, I consider it impossible to characterise the issue of such restrictions as being of “secondary legal importance” as compared with the “main legal questions” pertaining to Article 3 of the Convention. A separate examination of the applicant’s complaint regarding restrictions on spousal visits is particularly necessary in the light of the existing case-law abundantly cited in Judge Kūris’s separate opinion. The latter convincingly cites a number of cases, including recent Grand Chamber cases, where the Court, alongside issues regarding the applicants’ ill-treatment while serving their prison sentences, addressed the question of visit restrictions.
2. In this separate opinion, I wish to make reference also to the partly dissenting opinion submitted by Judge Pastor Vilanova in the case of Popov and Others v. Russia, no. 44560/11, 27 November 2018. Although the judgment in that case is not yet final, my colleague’s separate opinion convincingly argues that failure to address complaints raised by applicants under the guise of regarding them as secondary has no support in the Convention and its interpretation and may be considered as tantamount to a denial of justice. In the present case, one can reasonably assume that the applicant retains a genuine interest in the examination of his Article 8 complaint, which for him may be of fundamental importance. That is why I voted against the decision not to examine the applicant’s complaint under Article 8 of the Convention.
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[1]. In this regard, see the joint partly dissenting opinion of Judges Spielmann, Sajó, Karakaş and Pinto de Albuquerque in Murray v. the Netherlands (GC), no. 10511/10, 26 April 2016.
[2]. Point no. 6 of the operative provisions of the present judgment. To the same effect, see para. 201 of the present judgment.
[3]. See the concurring opinion of Judge Ziemele in Vinter v. United Kingdom (GC), nos. 66069/09, 130/10 and 3896/10, 9 July 2013, para. 2: “The wording that the Court uses, in my view, mixes together the establishment of State responsibility by a court based on a violation of the State’s obligations under the Convention and the question of the Court’s view on the possible legal consequences following the finding of responsibility”.
[4]. See Vinter v. United Kingdom (GC), cited above, §120; László Magyar v. Hungary, no. 73593/10, §51, 20 May 2014; Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, §246, 8 July 2014; Murray v. the Netherlands, no. 10511/10, § 99, 26 April 2016; Hutchinson v. the United Kingdom, no. 57592/08, § 45, 17 January 2017; and Matiošaitis and Others v. Lithuania, nos. 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69425/13 and 72824/13, §181, 23 May 2017.
[5]. See Murray v. the Netherlands (GC), prec., § 100.
[6]. See László Magyar, cited above; Harakchiev and Tolumov, cited above.
[7]. See my opinion in Murray, cited above, §§ 13 and 16. See also my opinion in Hutchinson, cited above, § 10.
[8]. See my opinion in Murray, cited above, §§ 13 and 16.
[9]. See Hutchinson, cited above, § 42.
[10]. See my opinion in Hutchinson, cited above, pt. 38.
[11]. See the opinion of judge Sajo in Hutchinson, cited above.
[12]. In this regard, see M. Pettigrew, “Politics, power and Parole in Strasbourg: Dissociative judgment and differential treatment at the European Court of Human Rights”, 2018 4(1) International comparative jurisprudence 16-26; and L. Graham, “From Vinter to Hutchinson and Back Again? The Story of Life Imprisonment Cases at the European Court of Human Rights”, 2018 (3) European Human Rights Law Review 258-277.
[13]. Matiošaitis and Others, cited above, § 181.
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