FOURTH SECTION
\nCASE OF SERGEY SMIRNOV v. UKRAINE
\n(Application no. 36853\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n18 December 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Sergey Smirnov v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Paulo Pinto de Albuquerque, President, Having deliberated in private on 27 November 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 36853\/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian national, Mr Sergey Aleksandrovich Smirnov (\u201cthe applicant\u201d), on 14 June 2009.<\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Ms\u00a0O.\u00a0Ashchenko and G. Tokarev, lawyers practicing in Kharkiv, and Mr\u00a0Y.\u00a0Boychenko, a lawyer practising in Strasbourg. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, most recently Mr I. Lishchyna.<\/p>\n 3.\u00a0\u00a0On 9 November 2016 the applicant\u2019s complaintsconcerning the conditions of his detention at the Slovyanoserbsk Correctional Colony,the allegedly inadequate medical assistance that he had received while in detention, the alleged interception and monitoring of his correspondence in detention and the alleged lack of an effective domestic remedywere communicated to the Government. The remainder of the application was declared inadmissible,pursuant to Rule 54\u00a0\u00a7 3 of the Rules of Court.<\/p>\n 4.\u00a0\u00a0The Government objected to the examination of the application by a Committee, but provided no reasons. After having considered the Government\u2019s objection, the Court rejects it (see, for a similar approach, Nedilenko and Others v. Ukraine [Committee], no. 43104\/04<\/a>, \u00a7\u00a05, 18\u00a0January 2018, and Lada v. Ukraine [Committee], no. 32392\/07<\/a>, \u00a7\u00a04, 6\u00a0February 2018).<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1965 and lives in Kharkiv.<\/p>\n A.\u00a0\u00a0The applicant\u2019s detention \u2013 general information<\/strong><\/p>\n 6.\u00a0\u00a0On 3 April 2008 the applicant shot a person, causing a serious injury. He was arrested at the scene of the crime. He remained in detention throughout the criminal proceedings against him, primarily at the Kharkiv pre-trial detention centre (SIZO).<\/p>\n 7.\u00a0\u00a0On 14 April 2009 the Kharkiv Court of Appeal sentenced him to ten years and six months\u2019 imprisonment and the confiscation of all his property. On 29 December 2009 the Supreme Court upheld that judgment.<\/p>\n 8.\u00a0\u00a0The applicant served his sentence in a number of correctional colonies, including, from 11 May 2010 until 7 April 2011, the Slovyanoserbsk Correctional Colony in the Luhansk Region (hereinafter, \u201cthe colony\u201d).<\/p>\n 9.\u00a0\u00a0On 27 May 2015 the applicant was transferred to a semi-open correctional institution.<\/p>\n 10.\u00a0\u00a0On 25 December 2015 the applicant was released.<\/p>\n B.\u00a0\u00a0Conditions in the Slovyanoserbsk Correctional Colony<\/strong><\/p>\n 11.\u00a0\u00a0On 13 May 2010, the applicant was placed in a single-occupancy cell at his request, as he feared an attack on his life and health by other inmates. Decisions on his placement in isolation from the general prison population were taken in July and August 2010.<\/p>\n 12.\u00a0\u00a0According to a report by a prison guard dated 10 September 2010, the applicant refused to move from the single-occupancy cell to a dormitory, claiming that he feared violence from other inmates. Similar reports were filed monthly from October2010 until February 2011.<\/p>\n 13.\u00a0\u00a0In his application form of 8 November 2010 the applicant described the conditions of his detention in the following fashion: since 13 May 2010 he had been held inan isolation cell,which measured 4.5 sq.m as a whole (including the toilet and the washbasin), with the living space proper measuring 1\u00a0sq.\u00a0m.<\/p>\n 14.\u00a0\u00a0Following the communication of the application to the respondent Government,the applicant submitted that the average living space per inmate in the dormitory cells of the colony was 2.8 sq. m. He referred in this respect to the report (dated 23 November 2011) of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter, \u201cthe CPT\u201d) on its visit to Ukraine from 9 until 21\u00a0September 2009 (CPT\/Inf (2011) 29), which mentioned overcrowding in respect of most of the colony\u2019s dormitories.<\/p>\n C.\u00a0\u00a0Correspondence<\/strong><\/p>\n 15.\u00a0\u00a0The applicant alleged that in the course of his detention all of his correspondence had been systematically monitored by the prison authorities. He submitted in particular that on 22 July and 9 September 2009 the prison administration had handed him two letters from the Court and on 18\u00a0December 2010 a letter from the parliamentary secretariat, all ofwhich had been opened by the administration.<\/p>\n 16.\u00a0\u00a0The applicant submitted copies of registers compiled by prison authorities of his outgoing mail. They show that in the period from 22\u00a0July 2009 until December 2010 the applicant sent at least forty-seven letters to various public entities \u2013 correspondence which, under domestic law (see\u00a0paragraph 40 below), was subject to monitoring by the prison authorities \u2013 most notably various domestic courts, the High Council of Justice, the Department for the Execution of Sentences (the executive agency in charge of prisons) and Parliament. However, the same register records that the applicant also addressed a number of letters to the Court and a letter to his lawyer, correspondence exempt from such monitoring. The letters to non-exempt addresses are accompanied by brief summaries of their content (for example, in respect of the letter of 18 February 2010 addressed to a domestic court it is noted that it concerned \u201cstudy of the file, presence at a hearing\u201d) or are marked in the register as \u201capplication\u201d, \u201cpetition\u201d or \u201ccomplaint\u201d (\u201c\u0437\u0432\u0435\u0440\u043d\u0435\u043d\u043d\u044f\u201d, \u201c\u043a\u043b\u043e\u043f\u043e\u0442\u0430\u043d\u043d\u044f\u201dor \u201ccomplaint\u201d,respectively), while letters to the Court and the lawyer are marked as \u201csealed letter\u201d.<\/p>\n D.\u00a0\u00a0The applicant\u2019s state of health and medical assistance in detention<\/strong><\/p>\n 1.\u00a0\u00a0Conditions of the digestive system<\/em><\/p>\n 17.\u00a0\u00a0According to the applicant, in November 2009, while he was in the Kyiv SIZO, somebodypoisoned him; as a result, he developed gastroduodentitis (inflammation of the stomach and duodenum), which became chronic.<\/p>\n 18.\u00a0\u00a0The applicant\u2019s prison records contain no information in respect of the period from his arrest until 26 January 2010 (see paragraph 46 below).<\/p>\n 19.\u00a0\u00a0On 26 January 2010 the Kharkiv SIZO medical officer noted that the applicant was suffering from chronic gastroduodentitis that wasin unstable remission (\u0445\u0440\u043e\u043d\u0456\u0447\u043d\u0438\u0439 \u0433\u0430\u0441\u0442\u0440\u043e\u0434\u0443\u043e\u0434\u0435\u043d\u0456\u0442 \u0443 \u0441\u0442\u0430\u0434\u0456\u0457 \u0437\u0430\u0433\u043e\u0441\u0442\u0440\u0435\u043d\u043d\u044f). He prescribed a number of medications. The applicant alleges that he was not actually given those medications.<\/p>\n 20.\u00a0\u00a0On 18 March 2010 the applicant underwent a radiological examination of his intestinal tract, as a result of which the SIZO general practitioner confirmed the diagnosis of chronic gastroduodentitis.<\/p>\n 21.\u00a0\u00a0From 6 until 19 April 2010 the applicant was hospitalised in the medical unit of the Kharkiv SIZO and treated for his gastroduodentitis.<\/p>\n 22.\u00a0\u00a0On 15 February 2011 he was examined by a general practitioner at the colony,who confirmed the diagnosis of chronic gastroduodentitis, which he noted was in a state of exacerbation (\u0445\u0440\u043e\u043d\u0456\u0447\u043d\u0438\u0439 \u0433\u0430\u0441\u0442\u0440\u043e\u0434\u0443\u043e\u0434\u0435\u043d\u0456\u0442 \u0443 \u0441\u0442\u0430\u0434\u0456\u0457 \u0437\u0430\u0433\u043e\u0441\u0442\u0440\u0435\u043d\u043d\u044f). The general practitioner recommended the applicant\u2019s transfer to the hospital at Luhansk SIZO for examination and treatment. No transfer followed.<\/p>\n 23.\u00a0\u00a0On 4 October 2011 the applicant was examined at a civilian hospital in Kharkiv. He underwent an ultrasound examination and a biochemical blood test, which included aspartate aminotransferase (AST) and alanine aminotransferase (ALT) markers for liver function. He was diagnosed with acute pancreatitis, congestive duodenopathy, gastric stasis (reduced stomach functioning), inflammation of the oesophagus and chronic hepatitis(with diffuse changes in the liver).A number of medications and a special diet were prescribed.<\/p>\n 24.\u00a0\u00a0The next day a general practitioner at the correctionalcolony at which the applicant was being held at the time recommended hospitalisation in the prison hospital at Temnivka, a specialist prison hospital for the Kharkiv region. On 11 October 2011 the applicant was taken there. The applicant refused hospitalisation because he mistrusted the prison doctors and preferred to be treated in a civilian institution.<\/p>\n 25.\u00a0\u00a0On 17 October 2011 the applicant was examined by a general practitioner, who diagnosed chronic pancreatitis in the acute stage and prescribed treatment.<\/p>\n 26.\u00a0\u00a0On 1 August 2012 a general practitioner diagnosed biliary dyskinesia (a disorder in which bilehas difficulty in moving normally through the biliary tract) and prescribed medication. The applicant alleges that he was not given this medication.<\/p>\n 27.\u00a0\u00a0From 25 until 31 January 2013 the applicant was treated for hepatitis\u00a0\u2013specifically, he received antispasmodic and hepatoprotective medicine \u2013 as an inpatient in the prison\u2019s medical unit.Upon his discharge it was recommended that he abstain from spicy and fried foods. The applicant alleges that the prison authorities did not comply with this recommendation.<\/p>\n 28.\u00a0\u00a0Beginning on 15 February 2014 the applicant received medical care in civilian institutions.<\/p>\n 2.\u00a0\u00a0Back conditions<\/em><\/p>\n 29.\u00a0\u00a0The applicant had been suffering from osteochondrosis of the lumbar spinesince 1998. He was hospitalised and treated for that condition from 28\u00a0February until 5 March 2008, prior to his arrest.<\/p>\n 30.\u00a0\u00a0From 24 April until 4 May 2012 the applicant was treated in the medical unit of the colony in which he was detained at the time for his osteochondrosis and disk protrusion.<\/p>\n 31.\u00a0\u00a0On 17 May 2012 the applicant underwent an MRI (magnetic resonance imaging) scan of the spine in a civilian hospital.<\/p>\n 32.\u00a0\u00a0On 31 May 2012 a surgeon examined the applicant and recommended that he undergo examination and treatment in a specialist neurology ward. The applicant alleges that the recommendation was not implemented.<\/p>\n 33.\u00a0\u00a0From 13 until 23 July 2012 the applicant was hospitalised in the colony\u2019s medical unit and treated for osteochondrosis and multiple Schmorl\u2019s nodes (protrusions of the intervertebral disc).<\/p>\n 34.\u00a0\u00a0On 20 March 2013 the applicant was examined by a traumatologist. The previous diagnoses were confirmed. The traumatologist prescribed painkillers and anti-inflammatory medication and the use of a back-support device. The applicant alleges that the recommendations were not implemented.<\/p>\n 35.\u00a0\u00a0From 13 August until 4 September 2015 he was hospitalised in a civilian institution specialising in spinal conditions. On 3 September 2015 the applicant underwent spinal surgery. The doctors explained that surgery was needed in view of the ineffectiveness of the conservative care that he had received and the increase in pain that he was suffering.<\/p>\n 36.\u00a0\u00a0On 11 November 2015, owing to his back condition, the applicant was recognised as a person suffering from Category 2 disability. The second category is the intermediary one, the first constituting the severestlevel of disability and the third the least severe.<\/p>\n 3.\u00a0\u00a0Other medical information<\/em><\/p>\n 37.\u00a0\u00a0In the course of his detention the applicant also underwent several chest X-rays (which revealed no abnormality),and was diagnosed with bronchitis and a fungal infection of the nails; he was prescribed treatment for that infection. He was also examined by a dentist and an ophtalmologist.<\/p>\n 38.\u00a0\u00a0Beginning in October 2011 the applicant was also diagnosed with a number of heart-related conditions, notably coronary heart disease. This diagnosis was subsequently confirmed on a number of occasions. No specific treatment was indicated.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 39.\u00a0\u00a0Under the 1993 Pre-Trial Detention Act (hereinafter, \u201cthe Act\u201d) and the 2003 Code on the Enforcement of Sentences (hereinafter, \u201cthe Code\u201d),the status of remand prisoners changed to that of prisoners who are serving their sentences after their convictions are upheld on appeal. The former category of prisoners is governed by the Act; the lattercategory is governed by the Code. However, the rules governing prisoners\u2019 correspondence remain largelythe same in both cases.<\/p>\n 40.\u00a0\u00a0Section 13 of the Act and Article 113 of the Codestipulate that prisoners are allowed to correspond with relatives, other persons and organisations. All such correspondence, unless it is specifically exempted, is subject to automatic monitoring and censorship by the administration of the prison.Under the rules in effect when the applicant was first detained, correspondence addressed by prisoners to the Parliamentary Commissioner for Human Rights, the Court and other international institutions of which Ukraine was a member and to prosecutors was exempt fromsuch monitoring. In addition, rules issued by the Department for the Enforcement of Sentences on 25 January 2006 (order no.\u00a013) also exempted from such monitoring correspondence sent by those entities to prisoners.<\/p>\n The law of 21 January 2010 (in force from 9 February 2010) added to the list of exemptionsprisoners\u2019 correspondence addressed to and received from their lawyers.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0SCOPE OF THE CASE<\/p>\n 41.\u00a0\u00a0In his observations in response to those of the Government the applicant complained that at the Slovyanoserbsk Colony he had been placed in solitary confinement without justification. However, in his original submissions the applicant did not complain about this and stressed that he had been placed in isolation from other prisoners at his own request.<\/p>\n 42.\u00a0\u00a0The Court considers that this complaint cannot be considered as constituting an elaboration of the applicant\u2019s original complaints, on which the Government have already commented. The Court considers, therefore, that it is not appropriate at this time to take up this matter within the context of the present case (see, for example and mutatis mutandis,Khamroev and Others\u00a0v.\u00a0Ukraine, no.\u00a041651\/10, \u00a7 62, 15 September 2016).<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 43.\u00a0\u00a0The applicant complained that the medical assistance he had received in detention in various penitentiary establishments and the physical conditions of his detention in the colony had been so inadequate as to breach Article 3 of the Convention, which reads as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n A.\u00a0\u00a0Allegedly inadequate medical care in detention<\/p>\n 1.\u00a0\u00a0Admissibility<\/em><\/p>\n 44.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 2.\u00a0\u00a0Merits<\/em><\/p>\n (a) The parties\u2019 submissions<\/p>\n i.\u00a0\u00a0The applicant<\/p>\n 45.\u00a0\u00a0The applicant pointed to the alleged failure of the prison authorities to implement medical recommendations, as referred to in paragraphs 19, 22, 26, 27, 32 and 34above.\u00a0In addition, the authorities had failed to determine the type of hepatitis (B or C)from which he had been suffering or to provide the applicant with the prescribed diet, even though he had needed it in view of his poor physical condition.<\/p>\n ii.\u00a0\u00a0The Government<\/p>\n 46.\u00a0\u00a0The Government submitted that there was no information in the applicant\u2019s medical records for the period from his arrest in 2008 until 26\u00a0January 2010 \u2013 that is to say until his arrival, for the second time, at the Kharkiv SIZO.\u00a0The applicant had received adequate medical care and treatment, which had ensured that his health had remained stable; indeed, it had partially improved. The authorities could not be held responsible for the delay caused by the applicant\u2019s refusal to be hospitalised (see paragraph 24 above).<\/p>\n (b)\u00a0\u00a0The Court\u2019s assessment<\/p>\n 47.\u00a0\u00a0Article 3 imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, inter alia, providing them with the requisite medical care (see Blokhin v. Russia [GC], no.\u00a047152\/06, \u00a7\u00a0136, 23 March 2016). In this connection, the \u201cadequacy\u201d of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance received was adequate. The authorities must also ensure that a comprehensive record is kept concerning the detainee\u2019s state of health and his or her treatment while in detention, that diagnosis and care are prompt and accurate, and that where necessitated by the nature of a medical condition supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee\u2019s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis. The authorities must also show that the necessary conditions were created in order for the prescribed treatment to be actually followed through. Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (ibid., \u00a7 137).<\/p>\n 48.\u00a0\u00a0It is for the Government to provide credible and convincing evidence that an applicant received comprehensive and adequate medical care in detention (see, for example, Savinov v. Ukraine, no. 5212\/13, \u00a7\u00a050, 22\u00a0October 2015).<\/p>\n 49.\u00a0\u00a0The applicant pointed to a number of failings in the implementation of recommendations made in respect of him. The Government failed to rebut those allegations.The situation is further aggravated by the loss of the applicant\u2019s health records for the period prior to January 2010 (see paragraph 46above).<\/p>\n 50.\u00a0\u00a0The Court is particularly struck by the fact that, even though the applicant was diagnosed with hepatitis (see paragraph 23 above), the authorities apparently took no steps even to determine the type of hepatitis he was suffering from.<\/p>\n 51.\u00a0\u00a0The Government have not argued that the applicant\u2019s state of health, because of its nature, did not require any particular treatment (see, mutatis mutandis, Pivovarnik\u00a0v.\u00a0Ukraine, no.\u00a029070\/15, \u00a7 42, 6 October 2016). It is also relevant that there is no indication that the applicant had suffered from diseases of the digestive organs prior to his detention. The applicant\u2019s allegation that he had acquired those diseases in detention has not been rebutted.<\/p>\n 52.\u00a0\u00a0What is more, in the course of the applicant\u2019s detention thecondition of his spine deteriorated considerably, eventually leading to a disability (see paragraph 36above; seealso, mutatis mutandis,Pokhlebin v. Ukraine, no.\u00a035581\/06, \u00a766, 20 May 2010). The Government have not shown that his deterioration occurred as a result of the natural development of disease, aging or other factors outside their control rather than their failure duly to make provision for the appropriate care of the applicant.<\/p>\n 53.\u00a0\u00a0It follows that the Government failed to discharge their burden of proof; doing so would have allowed the Court to consider that the applicantreceived adequate medicalcare for his hepatitis and other diseases of the digestive organs and for his back condition.<\/p>\n 54.\u00a0\u00a0These considerations are sufficient for the Court to find that there has been a violation of Article 3 of the Convention on account of the inadequacy of the medical care that he received in detention.<\/p>\n 55.\u00a0\u00a0However, the Court accepts the Government\u2019s argument that they cannot be held responsible for the delay in the affording of care caused by the applicant\u2019s refusal to be hospitalised (see paragraphs 24 and 46 above).<\/p>\n 56.\u00a0\u00a0In view of these findings, the Court considers that there is no need to examine the remainder of the applicant\u2019s submissions concerning the alleged inadequacy of the medical assistance that he received in detention (see, mutatis mutandis,Konovalchuk v. Ukraine, no. 31928\/15, \u00a7\u00a063, 13\u00a0October 2016).<\/p>\n B.\u00a0\u00a0Physical conditions of detention in the Slovyanoserbsk Correctional Colony<\/strong><\/p>\n 57.\u00a0\u00a0In addition to the inadequacy of the medical care that he had received, the applicant also complained that the physical conditions of his detention in the colony had been inadequate. In particular, in his initial submissions he complained of the small size of hissingle-occupancy cell, which according to him measured 4.5 sq. m(see paragraph 13above). In this respect, the Court cannot but reiterate that in cases where a detainee disposed of more than 4 sq. m of personal space, in principle no issue with regard to the question of personal space arises (see Mur\u0161i\u0107 v. Croatia [GC], no. 7334\/13, \u00a7 140, 20 October 2016) Following communication of the application, the applicant made submissions (summarised in paragraph 14above) concerning alleged overcrowding in the colony\u2019s dormitories..<\/p>\n 58.\u00a0\u00a0The Government submitted that they had a limited range of information about the applicant\u2019s detention as the colony in question was located in territory that the Government no longer controlled following the events of 2014 and 2015 described in Khlebik v. Ukraine (no.\u00a02945\/16, \u00a7\u00a7\u00a09-12, 25 July 2017).<\/p>\n 59.\u00a0\u00a0The Court notes that in his initial submissions the applicant described the size of his single-occupancy cell in the colony. He did not describe the regime governing his detention in any detail:he did not explain how much time he had had to spend inside and outside the cell, did not refer to the availability or otherwise of any out-of-cell activities and, indeed, did not say exactly how long he had been kept in the single-occupancy cell.<\/p>\n 60.\u00a0\u00a0Moreover, even as far as the size of the cell was concerned, he abandoned his initial account after communication of the application: while prior to the communication the applicant stated that he had been placed in isolation at his own request and appeared to complain of the size of his single-occupancy cell (see paragraph 13above), after communication hediscussed conditions in the colony\u2019s multi-occupancy dormitories rather than single-occupancy cells. According to the post-communication allegations, the average personal space per inmate at the colony was 2.8\u00a0sq.\u00a0m, which does not match any of the numbers the applicant himself cited in his original submissions (compare paragraphs13 and 14above).<\/p>\n 61.\u00a0\u00a0In this context the Court reiterates that information regarding the physical conditions of detention falls within the knowledge of the domestic authorities. Accordingly, applicants might experience certain difficulties in procuring evidence to substantiate a complaint in that connection. Still, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and to provide \u2013 to the greatest possible extent \u2013 some evidence in support of their complaints (see, for example, Visloguzov v. Ukraine, no. 32362\/02, \u00a7 45, 20 May 2010).<\/p>\n 62.\u00a0\u00a0In view of the above considerations the Court concludes that the applicant has failed to provide a coherent and sufficiently detailed account of the physical conditions of his detention in the colony.<\/p>\n 63.\u00a0\u00a0The Court concludes that this part of the application is manifestly ill-founded and should be rejected, pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 64.\u00a0\u00a0The applicant complained of a violation of his right to respect for his correspondence on account of the prison authorities\u2019 monitoring of and interception of his correspondence. He relied on Article 8 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for … his correspondence.<\/p>\n 2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 65.\u00a0\u00a0The applicant submitted that:<\/p>\n (i)\u00a0\u00a0all of his correspondence had been systematically monitored by the prison authorities;<\/p>\n (ii)\u00a0\u00a0in the course of his detention a number of his letters and letters addressed to him had been withheld and delayed by the prison authorities;<\/p>\n (iii)\u00a0\u00a0the prison authorities failed to forward, in a timely manner, to his home address a letter informing him of the communication of his application to the respondent Government and of the Government\u2019s observations.<\/p>\n 66.\u00a0\u00a0The Government submitted that the applicant had failed to exhaust available domestic remedies in that he had not complained to the prosecutors or the courts of the alleged violations. They also submitted that all of the applicant\u2019s correspondence had been duly sent out and delivered to him.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 1.\u00a0\u00a0Admissibility<\/em><\/p>\n (a)\u00a0\u00a0Withholding and delaying letters during the detention and after release<\/p>\n 67.\u00a0\u00a0There is no evidence before the Court showing that the prison authorities withheld or delayed the applicant\u2019s correspondence during his detention.<\/p>\n 68.\u00a0\u00a0As to the post-detention period, his allegations are equally manifestly ill-founded. The applicant last informed the Court of his address at the Dergachivsk Correctional Colony on 20 March 2014. He did not inform the Court of his new address after his release. Accordingly, the Court\u2019s subsequent correspondence in respect of the communication of his application was sent to the applicant\u2019s last known address at the Dergachivsk Colony. The applicant has not shown that any difficulty he might have had in receiving that correspondence was caused by any omission on the part of the authorities rather than by his own failure to provide information about the changes in hisaddress.<\/p>\n 69.\u00a0\u00a0It follows that these complaintsare manifestly ill-founded and must be rejected, pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n (b)\u00a0\u00a0Monitoring of the applicant\u2019s correspondence by prison authorities<\/p>\n (i)\u00a0\u00a0Exempt entities<\/p>\n 70.\u00a0\u00a0To the extent that the applicant complained that his correspondence with the exempted entities \u2013 notably the Court \u2013had been monitored, in contravention of the domestic law prohibiting such monitoring (see paragraph 40 above), there is no material before the Court that would corroborate the applicant\u2019s allegations. In any event, it appears that the applicant did not initiate any proceedings in that respect before the domestic courts, as was his right (see Chaykovskiy v. Ukraine, no.\u00a02295\/06, \u00a7\u00a7\u00a072 and 73, 15 October 2009).<\/p>\n 71.\u00a0\u00a0The Court finds, therefore, that this part of the application should be rejected for failure to exhaust domestic remedies, pursuant to Article\u00a035 \u00a7\u00a7\u00a01 and 4 of the Convention.<\/p>\n (ii)\u00a0\u00a0Non-exempt entities<\/p>\n 72.\u00a0\u00a0The Government raised an objection in respect of the applicant\u2019s failure to exhaust domestic remedies.<\/p>\n 73.\u00a0\u00a0The Court found in Glinov v. Ukraine (no.\u00a013693\/05, \u00a7\u00a7\u00a045-47, 19\u00a0November 2009)that, to the extent that the monitoring was based on the domestic law, any complaint to the prosecutor or to the court in this connection would have had no prospect of success,given that neither of those authorities was empowered to overrule the legal provisions underpinning the monitoring.<\/p>\n 74.\u00a0\u00a0The Court sees no reason to find otherwise in the present case and dismisses the Government\u2019s objection of non-exhaustion of domestic remedies.<\/p>\n 75.\u00a0\u00a0Moreover, this part of the complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 2.\u00a0\u00a0Merits<\/em><\/p>\n 76.\u00a0\u00a0The Court notes that the Government did not specifically contest the applicant\u2019s submission that his correspondence with non-exempt entities, including the Court, had been routinely monitored by the prison administration, pursuant to the applicable domestic law (see, for a similar situation, Vintman\u00a0v.\u00a0Ukraine, no.\u00a028403\/05, \u00a7 126, 23 October 2014). The registers of correspondence submitted by the applicant, the authenticity of which the Government did not contest, demonstrate that the authorities did in fact engage in such monitoring (see paragraph 16 above).<\/p>\n 77.\u00a0\u00a0That monitoring constituted an interference with the exercise of the applicant\u2019s right to respect for his correspondence under Article 8 \u00a7 1. Such interference will contravene Article 8 \u00a7 1 unless, among other conditions, it is \u201cin accordance with the law\u201d (see Enea v. Italy [GC], no.\u00a074912\/01, \u00a7\u00a0140, ECHR 2009).<\/p>\n 78.\u00a0\u00a0The Court has already found in Belyaev and Digtyar v. Ukraine (nos.\u00a016984\/04 and 9947\/05, \u00a7\u00a7 53 and 54, 16 February 2012) and Vintman\u00a0v. Ukraine (no.\u00a028403\/05, \u00a7\u00a7 126, 129-33, 23 October 2014) that, since the Ukrainian legislation required, in a blanket fashion,the monitoring of all correspondence with non-exempt addresses in the absence of appropriate safeguards, monitoring conducted under those domestic legal provisions had not been \u201cin accordance with the law\u201d for the purposes of Article 8 of the Convention.The Court reached the same conclusion in respect of rules governing the monitoring of correspondence of remand prisoners in the case of Sergey Volosyuk v. Ukraine(no. 1291\/03, \u00a7\u00a7\u00a084-86, 12 March 2009).<\/p>\n 79.\u00a0\u00a0As far as correspondence with non-exempt addressees is concerned, the Court sees no reason to reach a different conclusion in the present case.<\/p>\n 80.\u00a0\u00a0It follows that the interference complained of was not \u201cin accordance with the law\u201d. The Court therefore does not consider it necessary in the instant case to ascertain whether the other requirements of paragraph 2 of Article 8 of the Convention were complied with, and holds that there has been a violation of that provision.<\/p>\n IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n 81.\u00a0\u00a0The applicant alleged that he did not have at his disposal an effective domestic remedy for his Convention complaints under Article 3, as required by Article 13 of the Convention. That provision reads as follows:<\/p>\n \u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n 82.\u00a0\u00a0The Government contested that argument.<\/p>\n 83.\u00a0\u00a0The Court, having declared inadmissible the applicant\u2019s complaint under Article 3 in respect of the physical conditions of detention in the colony (see paragraph63 above) concludes that there is no arguable claim for the purposes of Article 13 in respect of that complaint (see, for example, Valeriy Fuklev v. Ukraine, no. 6318\/03, \u00a7 98, 16 January 2014); therefore, the complaint under Article 13 in that part must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article\u00a035\u00a0\u00a7\u00a7\u00a03\u00a0(a) and 4.<\/p>\n 84.\u00a0\u00a0As far as lack of adequate medical care in detention is concerned, the Court in its previous judgments has already found that there is no effective and accessible domestic remedy in respect of such complaints in Ukraine (see, amongst many other authorities,Ukhan v. Ukraine, no.\u00a030628\/02, \u00a7\u00a7\u00a091 and 92, 18 December 2008, and Sergey Antonovv.\u00a0Ukraine, no.\u00a040512\/13, \u00a7\u00a7 96 and 97, 22 October 2015). The Court finds no reason to reach a different conclusion in the present case.<\/p>\n 85.\u00a0\u00a0There has, therefore, been a violation of Article 13 of the Convention on account of the lack of an effective domestic remedy in respect of the applicant\u2019s complaint regarding inadequate medical care in detention.<\/p>\n V.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION<\/p>\n 86.\u00a0\u00a0 The applicant complained that the authorities had monitored and intercepted correspondence between him and the Court. He relied on Article\u00a034 of the Convention, which provides:<\/p>\n \u201cThe Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.\u201d<\/p>\n 87.\u00a0\u00a0The applicant\u2019s allegations in this respect are unsubstantiated. In particular, he has not shown that any monitoring and\/or alleged interception of his correspondence with the Court has in any way prevented the latter from carrying out a proper and effective examination of his application.<\/p>\n 88.\u00a0\u00a0The Court concludes that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.<\/p>\n VI.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 89.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 90.\u00a0\u00a0The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.<\/p>\n 91.\u00a0\u00a0The Government maintained that there has been no violation of the applicant\u2019s rights.<\/p>\n 92.\u00a0\u00a0The Court, ruling on an equitable basis, awards the applicant EUR\u00a04,000 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 93.\u00a0\u00a0The applicant also claimed EUR 850 for the costs and expenses incurred before the Court.<\/p>\n 94.\u00a0\u00a0Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award, in addition to the sum already received by way of legal aid (see paragraph 2 above), the amount claimed, EUR\u00a0850,in respect of the proceedings before the Court.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 95.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresadmissible the applicant\u2019s complaintsunder Articles 3 and 13 of the Convention concerning inadequate medical care in detention and lack of an effective remedy in this regard; as well as under Article 8 of the Convention concerning the monitoring of the applicant\u2019s correspondence with entities not exempted from monitoring under domestic law;<\/p>\n 2.\u00a0\u00a0Holdsthat the respondent State has not failed to comply with its obligations under Article 34 of the Convention;<\/p>\n 3.\u00a0\u00a0 Declares the remainder of the application inadmissible;<\/p>\n 4.\u00a0\u00a0Holdsthat there has been a violation of Article 3 of the Convention on account of inadequate medical carein detention;<\/p>\n 5.\u00a0\u00a0Holdsthat there has been a violation of Article 8 of the Convention on account of the monitoring of the applicant\u2019s correspondence with entities not exempted from monitoring under domestic law;<\/p>\n 6.\u00a0\u00a0Holdsthat there has been a violation of Article 13 of the Convention on account of the lack of an effective domestic remedy in respect of the applicant\u2019s complaint regarding inadequate medical care in detention;<\/p>\n 7.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months,the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 8.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 18 December 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paulo Pinto de Albuquerque
\nEgidijus K\u016bris,
\nIulia Antoanella Motoc, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n