RODZEVILLO v. UKRAINE - 38771/05 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 74 (14 January 2016)

In the case of Rodzevillo v. Ukraine,

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

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Erik Møse,
          André Potocki,
          Yonko Grozev,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 8 December 2015,

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

PROCEDURE

1. The case originated in an application (no. 38771/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleg Leonidovich Rodzevillo (“the applicant”), on 18 October 2005.

2. The applicant, who had been granted legal aid, was represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr B. Babin.

3. The applicant complained, in particular, of the conditions of his detention, of having been beaten by guards on 24 August 2006, of having no access to effective remedies for the above complaints, and of the denial of his requests for a transfer to a prison facility located closer to his parents’ home.

4. On 25 November 2009 the President of the Fifth Section decided to give notice of the application to the Government.

5. On 2 February 2015 the President of the Fifth Section decided to ask the parties an additional question under Article 8 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1967. He is currently serving a life sentence in Ladyzhynska Correctional Colony no. 39, Gubnyk (“the Ladyzhynska Colony”), in the Vinnytsia Region.

A. Criminal proceedings against the applicant

7. On 14 October 2003 the applicant, with several other individuals, was arrested on suspicion of having formed a criminal association and committed several murders, robberies and other crimes.

8. On 6 January 2005 the Dnipropetrovsk Regional Court of Appeal, acting as a court of first instance, convicted the applicant as charged and sentenced him to life imprisonment.

9. On 4 October 2005 the Supreme Court of Ukraine dismissed the applicant’s appeal.

B. Conditions of the applicant’s detention

1. SIZO no. 3 (October 2003 - April 2007)

(a) The applicant’s account

10. In October 2003 the applicant was remanded in custody pending criminal proceedings against him and placed in the Dnipropetrovsk Pre-trial Detention Centre (SIZO) no. 3, where he remained in detention until April 2007.

11. According to the applicant, the conditions of his detention in SIZO no. 3 were incompatible with human dignity. In particular, for some time he had to share a ten-bed cell with nineteen detainees. However, for most of his time as an inmate in SIZO no. 3 he shared a two-bunk cell with one other inmate. The applicant spent most of the day in the cell, which measured 1.9 by 3.7 metres. The cell was located in the basement and so was exposed to hardly any daylight or fresh air, while the electric light was dim and there was no artificial ventilation. The cell lacked basic furniture and appliances, such as cupboards, a mirror or a rubbish bin. The toilet was some 1.2 metres from the dining table and was not separated from the living quarters. It smelled of excrement and was frequently flooded. The premises were infested with rats and were never disinfected. The detainees had very limited access to news and information about the outside world, the only source being a radio, which was turned on by the guards for a limited part of each weekday and was turned off completely at weekends. The food was meagre and consisted mostly of bread and wheat cereal. On numerous occasions the applicant’s requests for medical treatment for the after-effects of a head injury he had sustained in 2001 and for elevated blood pressure were ignored or rejected. Likewise, a request by the applicant to be placed in a solitary cell on account of his unstable psychological state was refused.

12. The applicant submitted to the Court copies of abundant correspondence that he and his mother had conducted throughout his stay in SIZO no. 3 with prosecutorial and other authorities relating to a variety of issues concerning the conditions of his detention. In their responses, the authorities had maintained that there had been no breaches of the law in respect of the applicant. According to the applicant, a number of his letters to various authorities had received no response at all.

(b) The Government’s account

13. The Government stated that the conditions of the applicant’s detention in SIZO no. 3 had been adequate. They submitted a certificate from the SIZO no. 3 authorities dated February 2010 attesting that an inspection that they had carried out on that date had determined that each cell in SIZO no. 3 comprised at least 3.5 square metres per detainee housed. The dimensions of the bunks used in SIZO no. 3 were 1.85 metres by 0.70 metres. The basement cells, where the life prisoners were held, had windows measuring 1.10 meters by 1 meter, which afforded sufficient access to daylight. In the evenings the cells were lit by 100-watt bulbs, which enabled the detainees to read and write without damaging their eyes. Each window had a special ventilation pane which could be opened to air the cells. In addition, an electric ventilator in the corridor ensured artificial ventilation of the cells. The cells had radiators to ensure a stable temperature of between 18°C and 20°C. Each cell was equipped with two metal bunks, a chair, a shelf for personal belongings, a table, two small cupboards (which could also be used as stools for sitting on), a clothes hanger, a tap with a sink, a mirror, and a toilet. The toilets had “U-bend” pipes to prevent unpleasant odours; they were separated from the living area by fixed partitions.

14. The Government further submitted (without providing any documents) that, as regards sanitary arrangements, the SIZO no. 3 detainees had weekly access to bathing facilities, where they were also provided with razors and scissors. The cells and other premises were cleaned and disinfected regularly; twice a year (in spring and autumn) thorough measures against rats were implemented and the entire SIZO no. 3 facility was disinfected. The detainees were provided with meals three times a day, freshly cooked by the SIZO no. 3 cooks. The food was varied and in conformity with applicable regulations concerning nutrition.

15. The applicant had been able to consult various doctors when he needed to and was monitored regularly on account of a neurasthenic condition from which he suffered.

2. Ladyzhynska Colony no. 39 (May 2007 - June 2010)

16. In May 2007 the applicant was moved to the Ladyzhynska Colony no. 39 (“the Ladyzhynska Colony”) to serve his sentence, where, according to the case-file, he has been accommodated until present. The present application covers the period of the applicant’s detention in the Ladyzhynska Colony from May 2007 until June 2010.

17. Before the case was communicated to the respondent Government, the applicant submitted that he had effectively being denied any medical service in the Ladyzhynska Colony. Because the colony regulations only allowed inmates to lie on their beds between 10 p.m. and 6 a.m., the applicant had to lie on the floor during days when he felt unwell. Because of this, he had contracted a kidney condition, for which he was receiving no treatment.

18. In his correspondence with the Court after the communication of the case to the Government on 25 November 2009, the applicant additionally notified the Court of other matters concerning his detention in the Ladyzhynska Colony which, according to him, constituted breaches of his rights. These matters included an alleged prolonged failure on the part of the administration to repair and clean the bathing facilities and to exterminate rats; the administration’s failure to renovate the applicant’s cell and to transfer him to the second floor, despite the fact that his parents had made donations towards the cost of renovating the prison; alleged instances of beating detainees by the guards and arbitrary orders of the administration that the detainees wear woollen hats in summer and assume unnatural positions when moving around the colony or when the doors to their cells were opened by guards. All of the applicant’s submissions were forwarded to the respondent Government.

19. According to the Government, the conditions of the applicant’s detention in the Ladyzhynska Colony were fair and he was provided with prompt and sufficient medical attention when required. Upon his arrival, the applicant had been examined by the Ladyzhynska Colony’s doctors and found not to be suffering from any illness in an active phase. Subsequently, he had often consulted doctors and had been treated for various chronic conditions and contracted diseases, including hypertension, neurasthenia, intestinal dyskinesia, bladder infections, chronic haemorrhoids, and other complaints. The Government presented a detailed excerpt from the record of the applicant’s medical consultations (comprising over forty medical visits between summer 2007 and winter 2010). They also stated that there was no evidence to support the applicant’s complaints of ill-treatment by the Ladyzhynska Colony guards or administration.

C. Beating on 24 August 2006

20. According to the applicant, on 24 August 2006 he was severely beaten by eight SIZO no. 3 guards in response to his request for the radio to be turned on. He further alleged that his request that a doctor examine and record his injuries had been refused and that he had only been given a painkiller by way of medical treatment. Subsequently (on 16 February 2007), during the applicant’s temporary stay in SIZO no. 15 in Simferopol, he had been X-rayed in the course of tuberculosis screening and told by a doctor that traces of a recent rib fracture could be observed on the X-ray. The applicant had been unable, however, to obtain a written record of that conversation.

21. The applicant presented statements by two detainees, M. and Ch., who alleged that on 24 August 2006 they had heard the applicant crying out. In addition, Ch. stated that he had been the applicant’s cellmate and had seen him bruised and in pain. According to the applicant, both he and Ch. had complained about the incident to the SIZO no. 3 governor and to the prosecutor’s office, but those complaints had received no response. He presented to the Court copies of several handwritten letters that referred to the incident, but did not present any records confirming that those letters had actually been sent.

22. According to the Government, the prosecutor’s office had never received any complaints concerning the applicant’s alleged beating on 24 August 2006.

23. In 2008 the applicant lodged an administrative complaint against the governor of SIZO no. 3, claiming compensation for “moral damage” to his “honour and dignity” as a result of the governor’s alleged omissions, including the failure to investigate his complaint concerning the alleged beating on 24 August 2006. On 14 August 2008 the Kyiv District Administrative Court gave the applicant until 14 October 2008 to rectify procedural shortcomings in his submissions (in particular, his failure to pay the court fee). According to the case file, the applicant did not pay the fee and did not appeal against the aforementioned court decision.

24. On 9 September 2010 the senior doctor at SIZO no. 15 issued a certificate attesting that on 16 February and 13 and 23 March 2007 the applicant had been X-rayed and found not to be suffering any pathological condition, and no traces of any rib fractures had been visible on the X-ray.

D. Requests for a transfer to a prison facility located closer to the applicant’s hometown

25. From autumn 2005 the applicant filed numerous applications (specifically, on 3 and 11 November 2005, 28 February, 14 March, 6 and 26 July, 5 October, 27 November, and 11, 21 and 25 December 2006 and 10 January 2007) with the State Department for the Enforcement of Punishments (“the Prison Department”) and various other authorities requesting a transfer to a detention facility located closer to his hometown of Simferopol, in the Crimea, in order to facilitate visits by his parents and minor son. He noted, in particular, that his parents were pensioners (his mother was born in 1940 and his stepfather in 1925) who were unable to undertake long-distance travel for financial and health reasons (his step-father had a serious disability; his mother suffered from hypertension and other diseases and was his stepfather’s primary caregiver). On a number of occasions the applicant’s mother also sent similar requests to the Prison Department and other authorities.

26. On several occasions (specifically, on 28 October 2005, 28 July and 18 October 2006 and 7 February, 13 March and 12 April 2007) the Prison Department responded to the applicant and his mother by promising to take their requests into account if space became available at an appropriate detention facility.

27. On other occasions (in particular, on 13 December 2005 and 31 January, 19 August and 6 December 2006) the Prison Department informed them that it was not possible to accommodate their requests, as there were no penal institutions accommodating life prisoners in the Crimea.

28. On 25 July 2007, following his transfer in May 2007 to the Ladyzhynska Colony, the applicant complained to the National Ombudsman that the Prison Department had transferred him to that facility without paying any regard whatsoever to his wish to maintain contact with his family. The applicant noted, in particular, that the Ladyzhynska Colony located in the village of Gubnyk, which had no train connection, was some 1,000 kilometres from his parents’ home in Simferopol. It took rides in two trains, followed by either an expensive private taxi or an infrequent bus, to travel from his parents’ home to Gubnyk. The journey took some twenty-four hours one way, which was impossible for his disabled stepfather and very difficult for his ailing mother, in addition to being financially burdensome. The applicant also noted that, to the best of his knowledge, Colony no. 55 in Volniansk, in the Zaporizhzhia Region, which could be accessed by direct train from Simferopol, was equipped for accommodating life prisoners, and asked the National Ombudsman to explore the possibility of transferring him to that establishment.

29. On 29 August 2007 the Prison Department, to which the applicant’s complaint had been forwarded by the National Ombudsman’s office, responded that it was not possible to grant his request because under applicable law, a prisoner had, as a general rule, to serve his or her entire sentence in one establishment, save in exceptional circumstances preventing him or her from remaining there.

30. On numerous occasions between 2007 and 2015 the applicant and his mother asked the Prison Department to review the decision concerning the applicant’s placement in the light of their personal situation and their mutual wish to maintain contact by means of regular visits. All those requests were turned down, either with reference to the aforementioned legal rule and the absence of any “exceptional circumstances” preventing the applicant from staying in the Ladyzhynska Colony (specifically, on 5 October and 8 November 2007, 23 January, 14 February, 30 October 2008, 23 June 2009, and 6 April 2010) or with reference to the unavailability of any space in other establishments (specifically, on 29 March, 3 June and 14 July 2010).

31. In March 2011 the applicant brought an action in the Vinnytsia District Administrative Court seeking to oblige the State Prison Service (the successor of the State Department for the Enforcement of Punishments) (hereinafter also referred to as “Prison Department”) to transfer him to an establishment situated closer to his parents’ home - in particular, in Volniansk - reiterating his previous arguments concerning the difficulties faced by his parents in travelling to the Ladyzhynska Colony. He also noted that during his detention in the Ladyzhynska Colony, his mother had been able to visit him only three times (on 18 September 2007, 25 June 2008 and 18 June 2009), even though according to the applicable rules the applicant had been eligible to receive two four-hour visits a year (before January 2010) and was now (since January 2010) eligible to receive four such visits. One of the aforementioned visits had lasted only two hours instead of four, because the applicant’s mother had needed to catch a bus.

32. On 20 May 2011 the court dismissed the applicant’s claims. It noted, in particular, that under the applicable law, unless a convicted prisoner was eligible for a transfer to an establishment with a more relaxed regime (which was not the applicant’s case), a transfer to a facility with an equivalent regime was possible only when there existed “exceptional circumstances” preventing him or her from remaining in his or her current establishment. The remoteness of a prison facility from the place of residence of a prisoner’s parents did not constitute such “exceptional circumstances”.

33. On 27 September 2011 the Vinnytsia Administrative Court of Appeal dismissed the applicant’s appeal against the above judgment and endorsed the first-instance court’s reasoning.

34. On 16 April 2014 the applicant’s stepfather died. According to the applicant, his mother, aged 75 and only able to walk with the aid of a cane, is unable at present to undertake a 1,000-kilometre journey by public transport to visit him.

II. RELEVANT DOMESTIC LAW AND OTHER MATERIALS

35. Relevant Council of Europe and other materials establishing standards for the conditions of detention, together with international reports concerning the conditions of detention in Ukraine, can be found in the Court’s judgments in the cases of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, §§ 101-108, 1 July 2010) and Gorbatenko v. Ukraine (no. 25209/06, §§ 97-98, 28 November 2013).

36. Relevant provisions of Ukrainian law concerning the allocation of prisoners and their transfers from one prison to another and pertinent Council of Europe materials are cited in the Court’s judgment in the case of Vintman v. Ukraine (no. 28403/05, §§ 42-44 and 56-59, 23 October 2014).

37. Relevant provisions of domestic law concerning life prisoners’ rights to receive visits from relatives are summarised in the Court’s judgment in Trosin v. Ukraine (no. 39758/05, § 26, 23 February 2012).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION

38. The applicant complained under Article 3 of the Convention about the conditions of his detention in SIZO no. 3 and the Ladyzhynska Colony. Article 3 reads as follows:

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

A. Admissibility

1. Exhaustion of domestic remedies

39. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaints concerning the conditions of detention. In particular, he could have brought them at three levels of domestic jurisdiction (in this connection they referred to Article 55 of the Constitution, Article 248-1 of the Code of Civil Procedure and Article 2 of the Code of Administrative Justice) or raised them with the prosecutor’s office.

40. The applicant alleged that the remedies referred to by the Government had been ineffective and that he was therefore exempt from the obligation to exhaust them.

41. The Court observes that it has rejected non-exhaustion arguments similar to those raised by the Government in the present case in a number of other cases where the complaints concerned problems of a structural nature in the domestic penal system in question (see, for example, Kalashnikov v. Russia (dec.), no. 47095/99, 18 September 2001; Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Yakovenko v. Ukraine, no. 15825/06, §§ 75-76, 25 October 2007; Koktysh v. Ukraine, no. 43707/07, § 86, 10 December 2009; and Logvinenko v. Ukraine, no. 13448/07, § 57, 14 October 2010). It does not see any reason to depart from its previous approach in the present case.

42. In view of the above, the Court dismisses the Government’s objection concerning non-exhaustion.

2. Substantiation of the complaints under Article 3 concerning the Ladyzhynska Colony

43. The Government also maintained that, as far as the conditions of detention in the Ladyzhynska Colony were concerned, the applicant’s submissions were vague and general and not such as to demonstrate that he had been ill-treated by the Colony authorities within the meaning of Article 3 of the Convention. The Government also submitted excerpts from the applicant’s medical record, which indicated that his state of health had been monitored regularly (see paragraph 19 above).

44. In his observations in response to those of the Government, the applicant submitted (without providing any details) that the medical assistance available to him in the Ladyzhynska Colony was inadequate and did not meet his needs. He did not elaborate on any other matters related to his detention in the Ladyzhynska Colony.

45. The Court notes, like the Government, that the applicant’s allegations with respect to the physical conditions of his detention and the quality of the medical assistance available to him in the Ladyzhynska Colony between May 2007 and June 2010 were limited to brief and general statements, in contrast to his complaints about SIZO no. 3, which were very detailed and specific. Before the case was communicated, the applicant submitted minimal factual details and provided no documentary evidence that would have enabled the Court to establish the relevant facts. The Court acknowledges that in cases concerning complaints about detention conditions it has not always required that an applicant support each and every allegation with particular documents, recognising that relevant information and opportunities to investigate the facts in such cases lie primarily in the hands of the authorities. At the same time, the Court notes that an applicant must provide an elaborate and consistent account of the conditions of his or her detention mentioning the specific elements, which would enable the Court to determine that the complaint is not manifestly ill-founded or inadmissible on any other grounds. Only a credible and reasonably detailed description of the allegedly inhuman or degrading conditions of detention constitutes a prima facie case of ill-treatment and serves as a basis for giving notice of the complaint to the respondent Government (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 122, 10 January 2012 and Ukhan v. Ukraine, no. 30628/02, § 64, 18 December 2008).

46. In the Court’s opinion, this requirement has not been met in the present case with respect to the conditions of detention in the Ladyzhynska Colony, as the applicant’s initial complaints have been limited to vague and general statements. He also did not take the opportunity to elaborate on this aspect of the application in the observations that he submitted in response to those of the Government. Overall, the Court finds that the applicant did not provide an account of the events that was sufficiently coherent, detailed, comprehensive and reasonably supported by evidence to raise a reasonable suspicion that the extent of his suffering on account of the physical conditions of detention in the Ladyzhynska Colony reached a threshold of severity that brought the matter within the ambit of Article 3 of the Convention or that he might have otherwise been ill-treated by the Colony staff within the meaning of the aforementioned provision.

47. The Court therefore finds that the applicant has not sufficiently substantiated his allegations about ill-treatment in the Ladyzhynska Colony between May 2007 and June 2010 within the meaning of Article 35 §§ 3 (a) of the Convention.

3. Conclusions as to admissibility

48. The Court finds that the applicant’s complaint concerning the conditions of his detention in SIZO no. 3 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. This complaint must therefore be declared admissible.

49. As regards the complaints concerning the Ladyzhynska Colony, this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.

B. Merits

50. The applicant alleged that the conditions of his detention in SIZO no. 3 had been incompatible with human dignity. He contested the Government’s account of events, alleging that it referred only to the situation in SIZO no. 3 in 2010, while the period complained about had in point of fact ended in April 2007. He further submitted that the Government’s account had been too general and had not addressed the specifics of his situation. The applicant also referred to international and domestic reports by various bodies, according to which the conditions of detention in Ukrainian remand facilities were overall very poor.

51. The Government contested this view. They submitted that the conditions of the applicant’s detention in SIZO no. 3 had been adequate and fair.

52. The Court notes that it is not disputed by either of the parties that for the majority of the period spent by the applicant in SIZO no. 3 (some three and a half years) he was confined in a basement cell, shared with another inmate, which measured some seven square metres. Each inmate therefore had some 3.5 square metres of personal space (including the space occupied by furniture and fixtures), which is less than the minimum standard recommended for Ukraine by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (see Davydov and Others, cited above, § 107). In the light of its case-law (see, for example, Iglin v. Ukraine, no. 39908/05, § 52, 12 January 2012 and Gorbatenko v. Ukraine, cited above, § 139), the Court finds that the lack of personal space afforded to the applicant, who was largely confined to his cell throughout the day, raised of itself an issue under Article 3 of the Convention.

53. The Court next notes that the Government’s affirmation that ventilation, lighting, food, sanitary arrangements and medical assistance had been adequate reflects the findings of an inspection conducted in 2010, whereas the period complained of ended in 2007. In any event, the Government’s submissions are not supported by sufficient evidence and are couched in only general terms. They do not contain direct responses to the applicant’s specific and consistent allegations to the contrary.

54. The Court further notes that it has examined and found violations of Article 3 in respect of similar allegations regarding the conditions of detention in SIZO no. 3 in the cases of Iglin and Gorbatenko (both cited above, see §§ 51-56 and 139-143 respectively), in which the applicants were detained there at about the same time as the applicant in the present case. The Court finds that the conclusions reached by it in those cases are equally pertinent in the present case. It concludes that the conditions of the applicant’s detention in SIZO no. 3 were inhuman and degrading.

55. There has therefore been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF PURPORTED ILL-TREATMENT ON 24 AUGUST 2006

56. The applicant also complained under Article 3 of the Convention that he had been beaten on 24 August 2006 and that his complaint had not been investigated.

57. The Government submitted that there was no medical evidence whatsoever to substantiate the allegation that any physical force had been administered to the applicant on the date in question. They referred to the medical certificate from the senior doctor at SIZO no. 15, according to which, contrary to the applicant’s submissions, no traces of rib fractures had been detected by the X-rays taken of him in 2007. They also presented an excerpt from the applicant’s medical history which listed no medical consultations in SIZO no. 3 during August and September 2006, together with a certificate from the governor of SIZO no. 3 indicating that no physical force or restrictive devices had been applied to the applicant during his detention in that facility.

58. The Government further stated that in any event, domestic remedies had not been exhausted in respect of this aspect of the application. In particular, the applicant had not lodged any complaints concerning the alleged incident with the prosecutor’s office, which was the proper body to investigate them. The applicant should have been aware of this remedy, as he had used it to air other complaints.

59. The applicant alleged that he had taken reasonable measures to raise his allegations before the competent domestic authorities. In particular, he had lodged relevant complaints with the governor of SIZO no. 3, the prosecutor’s office and the administrative court. However, these authorities had ignored his complaints.

60. The Court notes that there is no medical evidence to substantiate the applicant’s allegations that he was subjected to ill-treatment on 24 August 2006. In respect of his statement that traces of injuries had been detected during X-ray examinations performed on him in SIZO no. 15, the medical documents available to the Court expressly state that no such traces were identified (see paragraph 24 above).

61. There is also no evidence that the applicant properly brought his complaints before the domestic authorities that were competent to investigate them. In respect of the applicant’s statement that he had repeatedly complained to the governor of SIZO no. 3, who had ignored his demands for an investigation, the Court reiterates that hierarchical complaints in principle do not constitute an effective remedy for the purposes of Article 35 § 1 of the Convention (see, for example, Znaykin v. Ukraine, no. 37538/05, § 68, 7 October 2010).

62. As regards the applicant’s statement that the matter had also been raised in writing with the prosecutor’s office, which had likewise taken no action, the Court notes that the Government denied that any such complaint had ever been brought. In the Court’s view, in the light of the Government’s position, the onus had been on the applicant to show that his complaints had been properly delivered, or at least that he had taken reasonable steps to have them delivered and to seek responses to those complaints. Given that, according to the case file, the applicant and his mother abundantly corresponded with the prosecutor’s office regarding a variety of matters concerning the conditions of his detention, it appears that they had ample opportunities to pursue any complaint, and, if necessary, to follow up on a matter, which, in their view, had been overlooked or mishandled by the addressee. In these circumstances the Court considers that the applicant’s general submissions that his letters had been ignored by the prosecutor’s office do not provide sufficient basis for dismissing the Government’s allegation that he had not informed the prosecutor’s office of the ill-treatment that he had allegedly suffered on 24 August 2006 (see, mutatis mutandis, Korneykova v. Ukraine, no. 39884/05, § 62, 19 January 2012).

63. Finally, in respect of the applicant’s attempt to bring a court action claiming damages from the governor of SIZO no. 3, the Court notes that the applicant lodged this action only some two years after the ill-treatment incident had allegedly taken place and abandoned it before it had been accepted for examination. In particular, he neither complied with the procedural requirement to pay a court fee nor challenged its applicability to his situation (see paragraph 23 above). In view of the applicant’s procedural conduct, the Court considers that it is not called upon to examine any further whether the applicant’s action for damages could in principle be an effective avenue of redress for his ill-treatment complaint.

64. In light of all the above, the Court concludes that the applicant has not shown that his ill-treatment complaint had been sufficiently brought to the attention of any independent authority and, accordingly, even assuming that it was arguable, that the respondent State was under a procedural duty to investigate the relevant facts.

65. Further, lacking objective evidence of the ill-treatment complained of and the comments of the domestic authorities on the substance of the applicant’s relevant complaints, the Court, mindful of its subsidiary role under the Convention, is unable to take up the role of a first-instance tribunal and reach any conclusion as to the reliability of the applicant’s contentions as to his purported ill-treatment (see, e.g., Andrey Yakovenko v. Ukraine, no. 63727/11, § 85, 13 March 2014).

66. This part of the application should therefore be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 IN CONNECTION WITH ARTICLE 3 OF THE CONVENTION

67. The applicant further complained under Article 13 of the Convention that there were no effective remedies for his complaints under Article 3 of the Convention regarding the conditions of his detention and his alleged beating by the SIZO no. 3 guards on 24 August 2006. The relevant provision reads as follows:

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

68. The Government contested this argument.

A. Alleged lack of remedies for the complaint concerning the conditions of detention in SIZO no. 3

69. The Court finds that this complaint is not manifestly ill-founded or indeed inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible.

70. With reference to its earlier case-law (see, among other authorities, Melnik, cited above, §§ 113-116, and Ukhan, cited above, §§ 91-92 and Iglin, cited above, § 77) and the circumstances of the present case, the Court finds that the Government have not proved that the applicant had an opportunity in practice to secure effective remedies for his complaints - that is to say, remedies which could have prevented the violations from occurring or continuing, or could have afforded the applicant appropriate redress.

71. The Court therefore concludes that there has been a violation of Article 13 of the Convention on account of the lack of an effective and accessible remedy under domestic law for the applicant’s complaints in respect of the conditions of his detention in SIZO no. 3.

B. Alleged lack of remedies for the complaints concerning the Ladyzhynska Colony and the alleged beating of the applicant on 24 August 2006

72. The Court reiterates that it has found that the applicant has not made out an arguable claim under Article 3 of the Convention that he was held in inhuman or degrading conditions or otherwise ill-treated in the Ladyzhynska Colony or that he was beaten on 24 August 2006. The guarantees enshrined in Article 13 do not therefore apply to these complaints (see Vergelskyy v. Ukraine, no. 19312/06, § 124, 12 March 2009).

73. This part of the application is therefore inadmissible and must be rejected, in accordance with the requirements of Article 35 §§ 3 (a) and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

74. The applicant complained that in refusing his requests for a transfer to a prison closer to his parents’ home, the domestic authorities had arbitrarily and unfairly failed to take into account his personal situation.

75. The Court considers that this complaint falls to be examined under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

76. The Government have not filed any objections concerning the admissibility of the present complaint.

77. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. This complaint must therefore be declared admissible.

B. Merits

78. The applicant submitted that his placement in a colony located in Gubnyk, in the Vinnytsia Region, amounted to arbitrary and disproportionate interference with his right to maintain contact with his family - and in particular, with his frail and aged parents. He noted that this detention facility was located some 1,000 kilometres from Simferopol, where his parents lived. Travelling by public transport from Simferopol to Gubnyk involved rides in two trains, followed by either an unreliable bus or a costly taxi. The overall journey took some twenty-four hours, one way - which was impossible for the applicant’s stepfather (who was born in 1925 and suffered from advanced disability). His mother, born in 1940, also suffered from various health problems. Taking a two-day multi-leg journey to attend a meeting with her son lasting several hours was an exhausting endeavour for her. It also involved a serious financial outlay and the need to make special care arrangements for her disabled husband during her absence. Accordingly, in spite of the applicant’s mother’s strong desire to maintain close contact with him, she could not afford to visit him four times a year, as permitted by law (two times a year before 2010). Between 2007 and 2015 the applicant received only seven visits from his mother and no visits whatsoever from other family members.

79. The applicant further alleged that the reliance of the authorities on the domestic rule which dictated that prisoners were to serve their entire sentences in a single penal facility - save in “exceptional circumstances” which “prevented” them from remaining therein - made it virtually impossible for him to seek a transfer on the basis of his family situation. While in its replies to the applicant’s transfer requests the Prison Department at times referred to a lack of available space, there was nothing in those replies to indicate that it had in fact attempted to locate an alternative place for the applicant. Even assuming there were no places in any detention facilities in Crimea or the Volniansk Colony, which had a direct train connection with Simferopol, there were nine other regions which were located closer to the applicant’s parents’ home than Vinnytsia and which offered better connections. Overall, in the applicant’s view, the domestic authorities had given no consideration whatsoever to his and his mother’s arguments and to their personal situation and had acted arbitrarily and unfairly in rejecting their requests for a transfer.

80. The Government disagreed. They submitted that the competent domestic authorities had treated the applicant’s and his mother’s demands for a transfer in a lawful and fair manner. There had been no objective possibility of transferring the applicant to the Volniansk Colony, as it had had no spare places for life prisoners at the time the applicant made his requests. The authorities’ refusals to grant his requests for a transfer to that facility were therefore prompted by a legitimate interest in preventing overcrowding.

81. Furthermore, in accordance with the general rule specified under law, the prisoners were placed in one institution for the entire term of their imprisonment. This rule was justified by the need to put in place a personalised rehabilitation programme based on the continuous observation of each individual prisoner and to ensure the consistent implementation of the relevant corrective measures. In special circumstances, the applicable law allowed exceptions to this rule. However, no such special circumstances could be discerned in the applicant’s case.

82. The placement of the applicant in the Ladyzhynska Colony had not prevented his mother from visiting him on seven occasions. In addition, he regularly kept in contact with his family by telephone and correspondence. In particular, according to the log kept by the Ladyzhynska Colony’s administration, during his detention in that facility, the applicant had sent and received hundreds of letters and carried out over 360 telephone conversations with his relatives. Overall, in the Government’s view, given the constraints inherent in the requirements of imprisonment, the competent authorities could not be reproached for having created unjustified or insurmountable obstacles to the applicant’s maintaining contact with his family.

83. The Court reiterates that the Convention does not grant prisoners the right to choose their place of detention, and the fact that prisoners may be separated from their families and housed at some distance from them is an inevitable consequence of their imprisonment (see, for example, Ospina Vargas v. Italy (dec.), no. 40750/98, 6 April 2000). However, it is inconceivable that prisoners should forfeit all of their Article 8 rights merely because of their status as persons detained following conviction (see, for example, Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 836, 25 July 2013). An essential element of a prisoner’s right to respect for his or her family life is that the prison authorities should assist him or her in maintaining contact with close family members (see, for example, Messina v. Italy (no. 2), no. 25498/94, § 61, ECHR 2000-X). Detaining an individual in a prison which is so far from his or her family as to render family visits very difficult or even impossible may in certain circumstances constitute disproportionate interference with family life (see, for example, Vintman (cited above, §§ 78 and 103-104). While the Court has accepted that the domestic authorities must enjoy a wide margin of appreciation in matters relating to the execution of sentences, the distribution of the prison population should not remain entirely at the discretion of the administrative bodies. The interests of prisoners in maintaining at least some family and social ties must somehow be taken into account (see, for example, Khodorkovskiy and Lebedev, cited above, §§ 836-838 and 850).

84. Turning to the facts of the present case, the Court notes that, insofar as the Government refer to prevention of prison overcrowding and the need to implement an individualised and consistent rehabilitation program to justify the applicant’s placement in the Ladyzhynska Colony and repeated refusals to transfer him to a different facility, the Court is prepared to accept that those aims qualified as “legitimate” under Article 8 § 2 of the Convention. In particular, they contributed to preventing “disorder and crime” and securing the “rights and freedoms” of others. In light of the Court’s recent findings in the Vintman case (cited above, see §§ 88-93), it is also prepared to proceed on the assumption that the interference in question was lawful.

85. At the same time, in examining whether the interference was also “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, the Court notes that, on the basis of the material in its possession, it appears that the competent authorities took a formalistic and restrictive approach in interpreting and applying the relevant legislation. There is no appearance that they attempted, in any meaningful way, to consider the applicant’s and his mother’s arguments concerning their personal situation, including serious health-related and budgetary constraints on the applicant’s parents’ ability to travel in order to visit him in the Ladyzhynska Colony. The Court observes that the aforementioned circumstances giving rise to the applicant’s complaint under Article 8 of the Convention in the present case are very similar to those that served as a basis for the finding of a violation of that provision in the aforementioned Vintman case (cited above, see §§ 100-104). The Court finds that legal assessment of the relevant facts in the Vintman case is equally pertinent to the case at issue.

86. Accordingly, the Court finds that the interference with the applicant’s family life in the present case, on the basis of the law, as interpreted and applied by the domestic authorities, was not “necessary” in a democratic society within the meaning of Article 8 § 2 of the Convention.

87. There has therefore been a violation of Article 8 of the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

88. The Court notes that on various dates the applicant also raised a number of other complaints concerning the alleged unfairness of the criminal proceedings against him and various other matters and events. He referred to Articles 1, 2, 3, 5, 6, 7, 8, 10, 13, 14, and 17 of the Convention, Article 1 of Protocol No. 1 and Article 1 of Protocol no. 12.

89. Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

90. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

91. 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

92. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

93. The Government alleged that this claim was unsubstantiated.

94. The Court finds that the applicant must have suffered non-pecuniary damage on account of the violations found. Making its decision on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage.

B. Costs and expenses

95. The applicant, who had also been granted legal aid (in the amount of EUR 850), claimed 1,300 United States dollars (USD) and 14,450 Ukrainian hryvnias (UAH) in legal fees for his representation before the Court, to be transferred directly to the account of his lawyer, Mr A. Kristenko.

96. In support of his claim, the applicant produced a copy of a contract with Mr A. Kristenko dated 30 December 2009 and invoices dated 31 May 2010 and 24 February 2015. According to the aforementioned contract, the applicant was bound to pay for Mr Kristenko’s services an hourly rate amounting to the hryvnia equivalent of USD 100 in the event that (i) the Court found a violation of the provisions of the Convention in his case, or (ii) the applicant obtained an award under a friendly-settlement agreement or a unilateral declaration submitted by the Government. On 31 May 2010 Mr Kristenko invoiced the applicant USD 1,300 for thirteen hours that he had spent in the preparation of observations in response to those of the Government. On 24 February 2015 Mr Kristenko additionally invoiced the applicant USD 500 (which sum, according to the invoice, was equivalent to UAH 14,450) for a further five hours that he had spent on preparing observations in respect of an additional question communicated by the Court under Article 8 of the Convention.

97. The Government submitted that an hourly rate of USD 100 was excessive.

98. 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.

99. The Court notes that although the applicant has not yet paid his legal fees, it appears from the documents before it that he is bound to pay them pursuant to a contractual obligation. As can be seen from the case file, Mr A. Kristenko prepared observations on the applicant’s behalf and is therefore entitled to seek payment of his fees under the contract. Accordingly, the Court considers those fees to have been “actually incurred” (see, for example, Belousov v. Ukraine, no. 4494/07, §§ 115, 7 November 2013). Further, the Court notes that the applicant has already been provided with legal aid in the amount of EUR 850 to assist him in covering the aforementioned fees.

100. Having regard to the material in its possession, the Court finds it reasonable to award the applicant EUR 800 in legal fees, plus any tax that may be chargeable to him on this amount, to be transferred directly to the account of the applicant’s representative (ibid., §§ 116-117).

C. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the conditions of detention in SIZO no. 3 (Article 3) and the lack of effective remedies for this complaint (Article 13) and the failure of the authorities to consider the applicant’s family situation in their refusal to transfer him to a prison facility located closer to his parents’ home (Article 8) admissible, and the remainder of the application inadmissible;

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

3. Holds that there has been a violation of Article 13 of the Convention (in conjunction with Article 3);

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

5. Holds

(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, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the account of the applicant’s lawyer, Mr A. Kristenko;

(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;

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

Done in English, and notified in writing on 14 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> RODZEVILLO v. UKRAINE - 38771/05 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 74 (14 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/74.html Cite as: [2016] ECHR 74